Competitive Enterprise Institute v. Office of Science and Technology Policy
2016 U.S. App. LEXIS 12357
| D.C. Cir. | 2016Background
- CEI filed a FOIA request seeking all OSTP-related emails to/from john Holdren’s nongovernmental account jholdren@whrc.org, based on prior indications the account contained work-related correspondence.
- OSTP refused, stating emails on the Woods Hole Research Center domain were beyond FOIA because the account was controlled by a private entity; OSTP did not search that account.
- CEI exhausted administrative remedies and sued; OSTP moved to dismiss under Rule 12(b)(6) for failure to state a claim, arguing the agency lacked possession or control of the private account’s contents.
- The district court granted dismissal; CEI appealed to the D.C. Circuit.
- The D.C. Circuit reversed, holding an agency cannot avoid FOIA obligations merely because work-related emails are stored in a current agency official’s private email account on a nongovernmental domain.
- The court remanded for further proceedings; it did not order disclosure and left open agency defenses (e.g., exemptions or that items are not agency records).
Issues and Key Holdings
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OSTP must search/produce emails in Holdren’s private account under FOIA | Agency records do not lose FOIA character because the agency head stored them in a private account; OSTP must search and produce responsive work-related emails | Emails on a nongovernmental server are outside agency possession/control and therefore beyond FOIA, so OSTP need not search that account | An agency cannot shield records by having an official store them in a private account; dismissal reversed and remanded for further fact development and potential search/production and exemption claims |
| Whether Kissinger controls to bar CEI’s claim | Kissinger is distinguishable; here there is no clear ceding of custody or claim of right by the official | Relied on Kissinger to argue FOIA does not reach records not in agency possession/control | Kissinger does not compel dismissal because Kissinger involved donation/claim of right that removed agency control; facts here do not show a similar relinquishment |
| Whether an agency acts separately from its officials for FOIA possession analysis | Agency acts through officials; if an official controls what would be an agency record, it remains an agency record | Agency argued the official’s private account placed control with a private entity, not the agency | Court rejected a bright-line rule that agency control vanishes when an official uses a private account; control depends on whether official holds records under a claim of right |
| Whether dismissal was proper on the pleadings without factual development | CEI alleged OSTP refused to search and that the account contained work-related emails; this sufficed to survive 12(b)(6) | OSTP argued as a matter of law it could not be required to search a private account | Court held dismissal premature; factual record needed to determine whether items are agency records, whether official asserts control, and whether exemptions apply |
Key Cases Cited
- Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980) (agency possession/control is prerequisite to FOIA disclosure; distinguished where official held records under a claim of right)
- Founding Church of Scientology of Washington, D.C., Inc. v. Regan, 670 F.2d 1158 (D.C. Cir. 1981) (courts cannot compel agencies to obtain records they do not possess from third parties)
- Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d 508 (D.C. Cir. 1996) (agency must search for records under its constructive control even if not on its premises)
- Ryan v. Dep’t of Justice, 617 F.2d 781 (D.C. Cir. 1980) (an agency is not distinct from its head for FOIA purposes; documents controlled by the AG still implicate agency obligations)