COMMON SENSE AND FREEDOM OF INFORMATION

Here’s a piece that came in while I was on vacation ( I am reluctantly back in the office).  It’s about a private e-mail server that contains federal government records.  But it’s not about Hilary Clinton.  It actually concerns a science advisor to President Obama named John Holdren. He maintained a private e-mail account at the Woods Hole Research Center in Massachusetts. 

 A non-profit organization called the Competitive Enterprise  Institute made a Freedom of Information request for e-mails related to Holdren’s work at the U.S. Office of Science and Technology Policy.  A District Court ruled that the OSTP was not required to search an e-mail account that was not part of the OSTP’s official system.  That ruling effectively put the e-mails at Woods Hole off limits.

 The United Court of Appeals for the D.C. Circuit, however, reversed the District Court’s ruling.  Judge David Sentelle put it simply and elegantly:

 “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 [government transparency] 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.”

The point is, the nature of the document determines whether it’s a public record. Where I store it isn’t the determining factor.  If I put a pair of my boxers in the sock drawer, that doesn’t make them socks.  They remain underwear.  The analogy holds true here.

 This rather obvious ruling should be a universal rule for purposes of the federal FOIA statute and for every state open records law.  If courts consistently adopt and apply this intuitive rule, maybe government officials – I’m looking at you Hilary Clinton and Sarah Palin – would be a little less inclined to play games and skirt their duties to the public. 

 Hey, a guy can dream, right?