By Josh Gerstein
Published: 07/05/16 – 12:00 PM EDT
Updated: 07/05/16 – 02:29 PM EDT
On the same day that the FBI announced that the criminal investigation of Hillary Clinton’s use of a private email server is likely to conclude without any charges, a federal appeals court issued a ruling that could complicate and prolong a slew of ongoing civil lawsuits over access to the messages Clinton and her top aides traded on personal accounts.
In a decision Tuesday in a case not involving Clinton directly, the U.S. Court of Appeals for the D.C. Circuit held that messages contained in a personal email account can sometimes be considered government records subject to Freedom of Information Act requests.
The case ruled on by the D.C. Circuit focused on a relatively obscure White House unit: the Office of Science and Technology Policy.
At least one federal judge handling a FOIA suit focused on Clinton’s emails said last month he was watching to see how the D.C. Circuit ruled in the dispute involving Obama science adviser John Holdren and an account he kept on a server at the non-profit Woods Hole Research Center in Massachusetts.
After the free-market-oriented Competitive Enterprise Institute filed suit over a request for work-related emails sent to or from that private account used by Holdren, U.S. District Court Judge Gladys Kessler ruled last year that the government had no duty to search an email account that wasn’t part of OSTP’s official system.
But the three D.C. Circuit judges who ruled Tuesday all said Kessler was too rash in throwing out the suit and they agreed the case should be reinstated.
While the opinions in the case make no mention of Clinton or her private server, it seems evident that all three appeals judges involved are aware of the obvious analogy.
“If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose is hardly served. It would make as much sense to say that the department head could deprive requestors of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control,” Judge David Sentelle wrote in an opinion joined by Judge Harry Edwards.
Judge Sri Srinivasan wrote separately, but came to much the same conclusion: that the fact a different domain name was used was not a sufficient basis—standing alone—to defeat a FOIA lawsuit.
“A current official’s mere possession of assumed agency records in a (physical or virtual) location beyond the agency’s ordinary domain, in and of itself, does not mean that the agency lacks the control necessary for a withholding,” Srinivasan wrote.
It was not entirely clear on what points Srinivasan disagreed with his colleagues, but his opinion seemed a tad friendlier towards Clinton’s predicament. He suggested that an agency might have no duty to obtain a former official’s records in response to a FOIA request or suit, and might not even have the legal obligation to do so even if a current official was involved.
Still, some of the suits in litigation over Clinton’s emails involve requests sent to State while Clinton was still secretary.
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