Important case strikes a blow against government secrecy

The people have a right to know what government is doing in their name and how it spends their money. Like other rights, it’s one that must frequently be asserted or it begins to erode.

Your right to view government records is inconvenient for public officials when they would prefer to keep their work in the shadows. The temptation is always there to eliminate records, or simply not hand them over, if public attention would prove embarrassing or politically costly.

We have seen, in our state and nationally, attempts by public leaders and employees to hide their political motivations. We’ve seen dummy accounts so senior leaders can receive emails that the public and press don’t know about. We’ve seen attempts by employees in the current and previous presidential administrations to routinely conduct public business on private accounts, servers, and devices.

Case may help set important precedent
There are so many ways to skirt disclosure. That’s why a case out of D.C. is so important. A federal judge has ordered Obama appointee John Holdren, Policy Director of the Office of Science and Technology, to “preserve all of his emails from a private account while a Freedom of Information Act lawsuit about the messages proceeds.”

Prior to his White House appointment, Holdren worked for the Woods Hole Oceanographic Institution in Massachusetts. The Competitive Enterprise Institute learned that Holdren continued to use his Woods Hole account, rather than his government account, to conduct government business. The organization filed suit in 2014 to access any public records Holdren may have in his Woods Hole email account.

It may surprise you that, despite the widespread use of personal electronic devices, the law is still so unsettled regarding government business conducted on private accounts and devices. As Politico notes, the judge in the Holdren case originally tossed it out, a result seen in other cases as well:

“Kessler tossed out the case the following year, ruling that [Holdren’s] office had no duty to search a non-government email account.

“However, earlier this year the D.C. Circuit reversed that decision on appeal, holding that the mere fact that records are stored outside of government servers does not automatically put them beyond the reach of FOIA.”

That’s hugely important – and hopefully a sign of future rulings in other court districts. It’s unfortunate that it takes a court case to get a government employee to turn over government records. However, a case like this one is a necessary step for setting precedents and creating settled law about this important topic.

Open government advocates should cheer, too, that it was the D.C. Circuit Court of Appeals that issued this ruling. The D.C. Circuit hears many important cases and is viewed as a kind of junior Supreme Court. With its key reversal, the court struck a blow against those who would prefer to keep the public’s nose out of the public’s business.
-Rob McKenna

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Rob McKenna
Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.