- The Washington Times - Tuesday, March 3, 2015

A federal judge ruled Tuesday that federal agencies can’t be forced to go track down emails sent by employees from their personal accounts, in a case that could shield former Secretary of State Hillary Rodham Clinton, who conducted business on private accounts rather than a government email address.

The judge’s ruling stems from a case where a conservative group had sought records from the head of the White House Office of Science and Technology Policy (OSTP), who’d continued to use his private email even after being hired by the government.

But Judge Gladys Kessler, a district judge in Washington, D.C., ruled the agency never had possession of those emails and couldn’t be forced to go search for them now.

“Agencies do not — merely by way of the employer/employee relationship — gain ‘control’ over their employees’ personal email accounts,” Judge Kessler wrote.

She said agencies are supposed to police their employees and insist they use government accounts for official business — but when they don’t, there is no recourse to force the agencies to go out and capture emails that they illegally sent on their other accounts.

The case could come into play with Mrs. Clinton, who according to a report in the New York Times used private email accounts to conduct State Department business.

SEE ALSO: Hillary Clinton email shenanigans help skirt Benghazi probe: Gowdy

America Rising, a conservative political action committee, said it would try to force the State Department to release emails from other department employees that included Mrs. Clinton’s private email account.

But Judge Kessler’s ruling means there’s little chance the department can be forced to try to get the emails from Mrs. Clinton herself.

The Competitive Enterprise Institute had sought emails from OSTP Director John Holdren, saying they believed he was still using his private email from his job at the Woods Hole Research Center.

Judge Kessler said federal records laws require storage of emails conducting government business, including private emails — so if Mr. Holdren did such work from his private account he may have been in violation of the law.

She said she never had to decide whether his emails were official records, though, because either way, they aren’t in the government’s control and that means they don’t have to be searched.

The White House didn’t respond to a request for comment on the findings.

Christopher Horner, a researcher who works with the CEI and who has fought a number of open-records battles with the Obama administration, said Judge Kessler’s decision creates a dangerous loophole public officials can use to shield their communications.

“In short, it seems that those who banged the drum most loudly about transparency have figured out a way to defeat laws requiring it,” Mr. Horner said.

On Monday, another federal judge in Washington ruled against the Obama administration, accusing the Environmental Protection Agency of either flouting the law or showing intolerable carelessness in handling an open-records request.

The competing rulings suggest just how complicated the current status of law is concerning the Freedom of Information Act, which is the key tool for the public to try to pry information loose from government agencies.

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