Competitive Enter. Inst. v. Office of Sci. and Tech. Policy, No. 15-5128, 2016 WL 3606551 (D.C. Cir. July 5, 2016) (Sentelle, S.C.J.)

Competitive Enter. Inst. v. Office of Sci. and Tech. Policy, No. 15-5128, 2016 WL 3606551 (D.C. Cir. July 5, 2016) (Sentelle, S.C.J.)

Re: Request for certain e-mails sent to or from nonofficial e-mail account maintained by Director of OSTP

Disposition: Reversing and remanding district court's grant of government's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  The Court of Appeals for the D.C. Circuit "reverse[s] the district court's grant of dismissal in favor of the [government], and remand[s] the case for further proceedings consistent with this opinion."  The court holds that "[i]f the agency head controls what would otherwise be an agency record, then it is still an agency record and still must be searched or produced."  The court finds that "it is not apparent to [the court] that the domain where an email account is maintained controls the emails therein to the exclusion of the user, in this case [the] Director . . ., who maintains the account."  "When one receives an email from John Doe at, for example, gmail.com, and replies thereto, the replier would be likely to think that message is going to John Doe, not gmail.com."  "Even so here."  "Further, appellee’s argument is inconsistent with the purpose 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."  The court "make[s] clear that [it is] not ordering the specific disclosure of any document."  "It may be that OSTP has valid exemption claims, or even that no document found among the jholdren@whrc.org email falls within the definition of 'agency records.'"  "However, those questions are for litigation in the district court in the first instance."
  
  Judge Srinivasan, writing separately but concurring in the judgment, states that "when a current official holds agency records, we ordinarily would expect the agency to control the documents for purposes of responding to a FOIA request."  "In this case, there is no comparable indication (at least at this stage) that [the Director] holds any agency records in his private email account under a claim of right."  "To be sure, he retains possession over the contents of the account."  "But there is no indication he has asserted control over agency records in the account in a manner inconsistent with agency control."