A federal appeals court ruling on an unrelated case is likely to give Hillary Clinton some real headaches with respect to the use of her private email server.
On Tuesday, the U.S. Court of Appeals for the D.C. Circuit held that messages kept on a private email account may be considered government records that are subject to Freedom of Information Act (FOIA) requests and lawsuits, according to Politico.
The case involved a FOIA request for emails kept on a private account by the Office of Science and Technology Policy, a unit that is a part of the White House.
The three-judge panel reversed U.S. District Court Judge Gladys Kessler, who concluded that the email account kept by Obama science adviser John Holdren was private and therefore outside the purview of FOIA.
“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 agreed, but wrote a separate, concurring opinion.
“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.
While it’s difficult to predict exactly how the appeals court’s decision will affect the ongoing Clinton-related FOIA litigation, the ruling seems likely to bolster efforts by conservative groups to press for more answers from Clinton, her aides and the State Department about how her private server system was set up, why it wasn’t searched in response to FOIA requests and how Clinton’s lawyers determined that about 32,000 messages in her account were purely personal.
Clinton had that set of messages erased at about the same time she turned over to the State Department about 30,000 messages her team deemed work-related. The FBI recovered some of the deleted messages during its investigation and the new D.C. Circuit ruling could make it more likely some of those messages will eventually be made public.
The Competitive Enterprise Institute, a free market oriented think tank that brought the lawsuit requesting the emails, called Tuesday’s decision a win for government transparency.
“While today’s ruling is a major victory for government transparency, it’s stunning that it takes a court decision for federal employees to be held accountable to the law,” CEI senior fellow Marlo Lewis said.
In reporting the court’s decision, Politico’s Josh Gerstein wrote that “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.”
More than that, although Clinton may reach for that re-set button, it’s likely to have the same effect as it did with Russia.
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