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[1] (August 9, 2016)

handle is hein.crs/crsmthabggu0001 and id is 1 raw text is: CRS Reports & Analysis Legal Sidebar DC Circuit Holds an Agency Official's Private Email Account Not Beyond the Reach of FOIA 08/09/2016 On July 5, 2016, the D.C. Circuit Court of Appeals, in Competitive Enternrise institute v. Office oLScience and Technoloa Policy, held that the private email account of White House Office of Science and Technology Policy (OSTP) Director John Holdren is subject to search in response to a Fredm of Information Act (FOIA) request for work-related emails. The Director's former employer, the Woods Hole Research Center, maintained the email account on the whrc.org domain. Enaatin 1966, FOIA permits individuals to request records from federal agencies. In response to a FOIA request that reasonably describes the records sought, agencies are required to make reasonable efforts to search for the records. In 2013, the Competitive Enterprise Institute (CEI) submitted a FOIA request to OSTP for all policy/OSTP-related email sent to or from jholdren@whrc.org (including as cc: or bcc:). CEI learned of the email address in other FOJA litigation. OSTP denied the FOIA request for a search of the Director's non-official email because the account was private. CEI sued. FOIA authorizes federal district courts to enjoin an agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. Federal jurisdiction depends on a showing that an agency has (1) improperly; (2) withheld; (3) agency records. The issue here is whether the requested records are agency records. The Supreme Court adopted a £wQparUQ51 to determine when a record is an agency record: agency records are records (1) either created or obtained by an agency and (2) under agency control at the time of request. In OSTP's view, it was not withholding agency records because the agency neither possessed nor controlled, nor created or obtained, the Director's emails in his nongovernmental account. To support its position, the government relied on the Supreme Court case Kistsinger v. Regorters Comm For Freedom of/he Press which held that agencies need not produce records maintained by another federal government agency or obtain records from any other sources. The district court granted OSTP's motion to dismiss concluding that the records were not agency records. CEI appealed. A three-judge panel of the D.C. Circuit Court of Appeals reversed the lower court's dismissal. In an opinion written by Judge David Sentelle and joined by Judge Harry Edwards, the court ruled that the email records were under OSTP's constructive control. First, the court addressed whether OSTP's refusal to search the Director's private email was an improper withholding. OSTP argued that documents on a nongovernmental server were outside the control of federal agencies and beyond the scope of FOIA. CEI challenged the logic of the proposition that an agency director may place his work-related records beyond FOIA by simply using a private email account. The court found no precise guidance to resolve this question. It rejected the government's contention that Kissinger was controlling, finding that when the FOIA requests were filed in Kissinger, the records were not in the agency's possession or Kissinger's control. That differed from the OSTP situation because the emails were created by an agency official on an email account he maintained with a private organization when the FOIA requests were submitted. In addition, at the time the requests in Kissinger were received, the Secretary was holding the documents under a claim of right and the State Department apparently had ceded the documents to him. In contrast, in CEI v. OSTP, there was no

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