Another White House email scandal erupts

John Holdren

While Hillary Clinton's email scandal continues to grow – currently 60 emails have been identified as containing classified data – another senior Obama administration official is being investigated for conducting government business from his private email account.

John Holdren, director of the White House Office of Science and Technology Policy (OSTP), does not want to provide the content of the emails in question, according to the free-market think tank Competitive Enterprise Institute.

The CEI filed a Freedom of Information Act request in October 2013 for policy emails Holdren kept on his private email account at his former employer, the environmental-pressure group Woods Hole Research Center.

OSTP turned down the FOIA request, claiming that Holdren's private account was outside its control and therefore wasn't subject to the FOIA. CEI filed a lawsuit in May 2014 to force OSTP to produce the emails, citing that the use of non-official accounts for agency business frustrates federal open-government laws, undermines government accountability and evades congressional oversight efforts.

In March 2015, a U.S. district court judge upheld the agency's position, ruling the FOIA applied only to agency records controlled by the agency, and that Holdren's private email account was off-limits.

In August, CEI filed the opening brief in an appeal. CEI argued that "FOIA applies to the work-related records of agency employees regardless of where they are stored, and that agencies routinely instruct their staff to preserve any such documents that they have on their personal email accounts. OSTP staff, perhaps, were reluctant to challenge their director's private email practices, but that in no way makes the policy legal. Given the growing scandals over other top officials' private emails, a reversal of the lower court's ruling is essential to putting teeth into FOIA, especially in light of President Obama's claim that his administration is the most transparent in history."

CEI's opening brief continued, "The court's ruling on FOIA's scope is plainly incorrect. The mere fact that emails are in a personal email account does not exempt them from FOIA, nor does it place them beyond an agency's actual control for purposes of FOIA. Agencies frequently search the personal email accounts of agency employees for work-related records, demonstrating that agencies have actual control over those accounts."

According to court documents, Holdren's private email account was [email protected]. He only had a private email account, not a private server like Clinton.

"It makes little sense to claim that an agency is not 'withholding' documents," stated the opening brief, "when it refuses to produce documents held by its own chief executive that relate to 'agency business.'"

Holdren's case bears many similarities to Hillary Clinton's case, whose reluctance to turn over her private email server to the FBI continues to cause headlines.

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"[Clinton's] case is a prime example of a high official keeping a personal email account," Sam Kazman, general counsel for the CEI, said in an interview with TheBlaze. "In our case, similarly, the official is claiming that not all of the messages in the personal account are subject to the Freedom of Information Act, even when in many cases they are clearly agency-related."

Kazman said the Clinton matter has shed some light on what's happening throughout the Obama administration where several White House officials – including Holdren as well as EPA officials – have sought to withhold communications.

"It's not an atypical practice," Kazman said. "I wouldn't say it's an everyday practice by everyone in the administration, but this White House pledged to be the most transparent administration in history. Our joke is when this administration says transparency they mean invisible."

OSTP's attempts to stall and evade the FOIA are "disturbing," according to CEI senior attorney Hans Bader. In a May 5 blog post, he wrote: "OSTP first claimed that CEI lawyer Chris Horner's FOIA request was not a FOIA request at all, even though it explicitly cited FOIA and FOIA statutory provisions and regulations. Then it interpreted Chris's request as covering only certain emails already found in Holdren's official OSTP email account. …

"The use of such non-official accounts for agency business frustrates federal open-government laws, and undermines government accountability, since such accounts are generally not searched in response to FOIA or congressional oversight requests seeking work-related communications or agency records. Moreover, the use of email accounts at a former employer that lobbies the federal government gives such pressure groups direct access to and control over public records, including highly sensitive information."

The government has 30 days to respond, and the OSTP could ask for a delay. "They could produce documents," Kazman said, "or at least withhold documents and provide an explanation."

"What is ironic about this," noted Bader, "is that OSTP's Director, soon after taking office, lectured OSTP employees about not conducting official business using private email accounts, and about the need to forward all work-related communications to their agency email account in order to comply with federal record-keeping laws."