- The Washington Times - Tuesday, July 5, 2016

A federal appeals court issued a stinging rebuke to a top Obama White House official Tuesday, saying he can’t hide his emails from public scrutiny merely by shifting them to a non-government account.

The ruling, by a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia, gives a major boost to investigators, reporters and members of the public who are trying to pry information from federal officials who appear to be increasingly turning to private email systems to conduct official business.

In a stunning coincidence, the ruling was issued just minutes before the FBI announced it was not recommending criminal charges against former Secretary of State Hillary Clinton for her own use of a secret email server, which hid all of her government emails from public view for nearly six years.

In the case before the D.C. circuit, Mr. Obama’s top science adviser, John Holdren, refused to turn over emails from his account at his other job at the Woods Hole Research Center. He said that that because that account wasn’t run by the government, neither he nor his agency had the right to search it.

But the judges rejected that as illogical, saying Mr. Holdren is the head of the agency and he has to be able to go through his own account. Otherwise, they said, it would have created a bizarre loophole in the law.

“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,” Judge David B. Sentelle said in the court’s opinion. “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.”

The ruling overturned a lower court decision that had shielded the documents. The appeals court ordered the district court to rethink the case.

Mr. Holdren’s office did not respond to a request for comment Tuesday, but his behavior touches on one of the thorniest areas of open-records laws.

With the proliferation of email, some federal employees have used their own accounts to conduct business that’s supposed to be done on government accounts, so the records can be stored for posterity. But the Obama administration has battled back, arguing that once records are created on private accounts, there’s little the government can do.

Mrs. Clinton tested the limits of that argument when she set up a secret email server at her home in New York to conduct all of her government business, effectively shielding her communications from public view from the time she took office in January 2009 until December 2014, when she finally complied with a State Department demand that she relinquish her communications.

Employees at the Environmental Protection Agency and other government bureaus have also been cited for using private accounts for government business.

The case of Mr. Holdren, however, appeared to reach new limits. According to the allegations in court documents, he used his Woods Hole account for business communications. But when the Competitive Enterprise Institute sought those documents, he said that because the domain, whrc.org, belonged to Woods Hole, he couldn’t turn them over.

The court said that turned the concept of email ownership on its head.

“When one receives an email from John Doe at, for example, gmail.com, and replies thereto, the replier would be likely to think that message is going to John Doe, not gmail.com,” Judge Sentelle wrote.

Marlo Lewis, a senior fellow at the CEI, said it was a shame it took a court spanking to get the Obama White House to follow the law.

“The ‘most transparent administration in history’ has proven over and over that it has no intention of actually letting the American public know what it is doing,” he said. “Director Holdren is not the first agency head to be found using private email for his government work, but as we continue our legal battle in this case, we seek for this unlawful behavior to come to an end.”

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