DC Circuit Court Tells District Officials They Can No Longer Hide From FOIA Requests By Using Personal Email Accounts

from the seriously,-stop-being-assholes-about-this dept

With the FOIA process increasingly being routed through courtrooms, it's refreshing to see a court stand up and tell public officials to stop trying to find ways to be less transparent. The DC circuit court recently issued a ruling that shuts down a potential opacity loophole for public officials: the use of personal email accounts.

City officials who conduct public business on personal email accounts must turn their personal emails over in response to a Freedom of Information Act request, according to a recent, first-of-its-kind ruling in D.C. Superior Court.



The July 9 order by Judge Stewart Nash brings the District into line with the majority of states that have addressed the issue, signaling an emerging trend in favor of government transparency—if not an end to efforts to work around disclosure laws.

"This argument requires the Court to ignore Ms. Barnes’s position as Commissioner of the ANC," the judge wrote. "To the extent that Ms. Barnes is acting in her capacity as Commissioner of the ANC, then communications made or received by her would be communications of the ANC, irrespective of whether such communications were associated with her personal e-mail account."

As that view has been challenged, states have increasingly found that the content, not the ownership of the device or account, is the determining factor of whether a communication about public business is subject to FOIA disclosure laws, according to the peer-reviewed journal Communication Law and Policy.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

The district's attorneys tried to argue that the neighborhood advisory commission's emails (at least those routed in and out of Commissioner Dianne Barnes' personal account) were exempt from FOIA requests because the account used wasn't a district-owned account, but the judge wasn't buying it.Public officials (like former New York City mayor Mike Bloomberg ) have tried to keep certain communications out of the hands of the public by using personal devices and email accounts. To a certain extent, this has worked. But many states have established policies in order to close this loophole, basically stating that it doesn't matter where the communication originates but what the subject matter is.Which is as it should be. The Freedom of Information law was created to help the public hold their representatives and public servants accountable, as well as to provide insight to the how and why of government activity. Routing around this by using personal devices cuts the public out of the loop. A government that often argues "nothing to hide" means "nothing to fear" certainly seems to be doing a lot of hiding, leading directly to people questioning what exactly it has to fear. Considering these are people in seats of power, these deliberate attempts to hide public communications is, at the very least, misconduct, if not actual cowardice.Judge Nash's earlier verbal order for the district to turn over the requested emails was ignored. Now, it's in writing. Without a doubt, the district will challenge this ruling before it hands over anything, forcing a member of the public to spend even more money and time suing the government into compliance with its own statutes and laws.

Filed Under: emails, foia, freedom of information, government officials, personal email accounts, stewart nash, transparency