Controversial “Climate Change” Video Results in Significant FOIA Decision by DC Circuit

On July 5, the U.S. Court of Appeals for the District of Columbia Circuit issued an important ruling interpreting the reach of the federal Freedom of Information Act (FOIA) in the case of Competitive Enterprise Institute v. Office of Science and Technology Policy. The Office is located in the Executive Branch, and it has been engaged in a long-running dispute with the Competitive Enterprise Institute (CEI) with respect to a short, two-minute video released by the Director of the Office, John Holdren. In the instant action, the Court of Appeals reviewed the CEI’s attempts to obtain the records of the Director found in emails sent to or from the Director’s private, non-governmental email account.

In January 2014, the Director’s video claimed that the extremely cold weather experienced in Washington, DC that month (the “polar vortex”) could be attributed to climate change. The CEI took exception to this claim as not being supported by scientific evidence and requested copies of the data the Director used to make this claim. Eventually, this dispute was litigated the US. District Court in Washington, and a number of rulings have been made by various federal judges serving on this court, most of them favorable to the CEI’s efforts to obtain relevant records under FOIA.

Ultimately, the Court of Appeals holds that an “agency cannot shield its records from search or disclosure under FOIA by the expedient of storing them in a private email account controlled by the agency head,” and reversed the District Court’s ruling that these records, which may otherwise be government records, need not be search or turned over. The case was remanded to the lower court to determine if any of these records may nevertheless be subject to any of the current exemptions in the FOIA.

Additional Source:  Deliberative Process Privilege” Freezes Another FOIA Request in Its Tracks; New Law Calls for Agency Transparency

Photo:  Sean MacEntee, email, Taken November 11, 2010 – Creative Commons

Additional Source:  Federal officials can’t hide documents on private servers: D.C. Circuit