Technologist - The FindLaw Legal Technology Blog

Private Government Emails in the FOIA Era

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

The Freedom of Information Act (FOIA) was enacted to shine light on government activities for public review. Indeed, for our democracy to function effectively, those who govern must be accountable to those they govern. Along those lines, the Supreme Court has held that our citizenry is entitled to know "what the government is up to." And in the wake of Watergate, the FOIA was given greater enforcement teeth.

In a nutshell, the public can make FOIA requests to the government seeking government records pertaining to all sorts of government affairs. The government is required to produce or make available such government records, unless a narrow exemption applies, such as exempting the production of records that could compromise an ongoing law enforcement investigation, or records that would reveal classified state secrets. But the presumption is that requested government records must be produced.

As we heard about during the most recent presidential campaign, Hillary Clinton, when serving as the Secretary of State, engaged in governmental communications while using a private email server. The problem with this is that if FOIA requests are made for government records, those communications housed on a private email server could escape revelation to the public. This could mean that government could operate in secret -- undercutting the core purpose of the FOIA and the functioning of an open democracy.

Hillary Clinton admitted that it was a mistake that she used a private email server for some governmental communications. She explained that nothing consequential was kept secret, and she endeavored to produce these email communications. Nevertheless, on the campaign trail, Donald Trump whipped up his base, and there were repeated chants of "lock her up" when referring to the Clinton email debacle.

Fast-foward, Donald Trump is President, and now it has reportedly has come to light that Jared Kushner, Ivanka Trump, others in government have been using private email servers with respect to governmental communications. What does this mean?

Does this mean that Donald Trump was not truly serious when accusing Hillary Clinton of criminal conduct regarding her private email server communications? Does this mean that Trump's people should be prosecuted for private email server government communications, as he strongly suggested should happen to Hillary Clinton? Or does this mean that there should be a pox on the houses of both sides, and we truly have to be concerned about the open running of government, as these lessons seem not to be learned and there appears an ongoing desire to keep some government communications away from public scrutiny?

At this point, one can reasonably suspect that Trump will not continue as strongly to proclaim that Clinton engaged in criminal conduct, as that could boomerang back on his people. One can also guess that there will be further investigation into how Trump's people handle their government emails -- as Hillary was similarly investigated. It remains to be seen what enforcement or prosecutorial action, if any, will be taken in response to Trump administration emails that were communicated via private email servers.

Eric Sinrod (@EricSinrod on Twitter) is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod's columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

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