Overnight Regulation: Officials can't evade FOIA with private emails, court rules

Welcome to Overnight Regulation, your daily rundown of news from the federal agencies, Capitol Hill, the courts and beyond. It's Tuesday evening here in Washington and we hope you had a happy Fourth of July. 

Here's the latest. 



The nation's second most powerful court said Tuesday that federal officials are not allowed to use private email accounts to evade public records laws. 

A three-judge panel on the U.S. Court of Appeals for the D.C. Circuit said an agency cannot shield its records from search or disclosure under the Freedom of Information Act (FOIA) by the expedient of storing them in a private email account controlled by the agency head. 


The case, Competitive Enterprise Institute (CEI) v. Office of Science and Technology Policy (OSTP), centered on a correspondence from a top White House official that the conservative think tank tried to obtain through a FOIA request. 

The Hill's Megan R. Wilson has the full story:

The White House office argued that it did not need to search for or turn over records held by the head of the OSTP on a private email account as part of the open records request.

In addition to official White House email, John Holdren, the director of the OSTP, also sent and received emails from a domain at the Woods Hole Research Center. 

The government claimed "[d]ocuments on a nongovernmental email server are outside the possession or control of federal agencies, and thus beyond the scope of FOIA." 

Judge David Sentelle disagreed with that reasoning and ordered the lower court to reconsider the case.

"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," Sentelle wrote.  

"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," he said.

While Holdren did forward some of his work-related emails from his private email account to his government one -- yielding 110 pages of responsive documents in the FOIA request -- Sentelle said the agency still had to do a search to ensure no other undisclosed records remained in the account.

The case was remanded for further proceedings.

CEI applauded the ruling on Tuesday.

"While today's ruling is a major victory for government transparency, it's stunning that it takes a court decision for federal employees to be held accountable to the law," said Marlo Lewis, CEI senior fellow, in a statement.

"The 'most transparent administration in history' has proven over and over that it has no intention of actually letting the American public know what it is doing. Just think, if today's ruling had gone the other way, the implication would be that all government business could be transacted on private email and be invisible to citizens, completely gutting FOIA – absurd!"

The ruling was released the same day that FBI Director James Comey announced his department is not recommending criminal charges against Hillary ClintonHillary Diane Rodham ClintonThe Memo: Trump 'lynching' firestorm is sign of things to come Hillary Clinton has said she'd consider 2020 race if she thought she could win: report Nielsen on leaving Trump administration: 'Saying no and refusing to do it myself was not going to be enough' MORE over her use of a private email server while secretary of State.

For more on the FOIA ruling, click here: http://bit.ly/29eY8fe  



The House Energy and Commerce Subcommittee on Energy and Power will hold a hearing to review the Environmental Protection Agency's regulatory activity during the Obama administration. http://bit.ly/29uqBDs

The House Transportation and Infrastructure Committee will hold a hearing to discuss how to increase oversight and reduce the costs of space leased by federal agencies. http://bit.ly/29gbGfF

The House Oversight and Government Reform Committee will hold a hearing to discuss agencies "inadequate safeguards" on their inventory of firearms and ammunition. http://bit.ly/1UzAB9w

The House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Laws will hold a hearing to discuss the Office of Information and Regulatory Affairs and the impact regulations have had on jobs, wages and economic recovery. http://bit.ly/29fYWRG



The Obama administration will publish 204 new regulations, proposed rules, notices and other administrative actions in Wednesday's edition of the Federal Register.

--The Fish and Wildlife Service (FWS) is deciding not to extend protections for certain rainbow trout and snails.

The FWS will not list the Eagle Lake rainbow trout and the Ichetucknee siltsnail as endangered species following a 12-month status review that was initiated by a petition.

The agency says the protections are "not warranted at this time."

The findings go into effect immediately. http://bit.ly/29M2We4

--The Federal Motor Carrier Safety Administration (FMCSA) will correct mistakes in new seatbelt requirements it issued last month for trucks.

The seatbelt requirements will now apply to truck drivers in passenger-carrying vehicles as well as property-carrying vehicles.

The changes go into effect on Aug. 8. http://bit.ly/29mft8o

--The U.S. Customs and Border Protection (CBP) is looking to expand security requirements for importers.

Currently, some importers must provide information on their cargo before it is loaded onto ships headed to the United States.

Customs and Border Protection is proposing expanding the number of importers who must meet these security information requirements. The public has 60 days to comment on the plan. http://bit.ly/29rWJGu



GOP senators: Treasury rules could erode tax base. http://bit.ly/29upOlI

Fight erupts in Congress over school lunch money. http://bit.ly/29fpCSG

Airbnb takes fight to court. http://bit.ly/29wAXA2

Dems press for details on derivatives organizations. http://bit.ly/29mfPM7

Norfolk Southern to pay $500K to settle discrimination charges. http://bit.ly/29kO7k0

Another ObamaCare co-op winding down http://bit.ly/29lBx5j

EU moves to crack down on bitcoin, prepaid credit cards http://bit.ly/29gpxlW

US negotiator: Presidential campaign won't impact climate work http://bit.ly/29ospvR

Report: Ashley Madison faces FTC investigation http://bit.ly/29uGjie

FCC moves toward second stage of historic spectrum sale http://bit.ly/29igzk4



$500,000: Amount Norfolk Southern Corp. agreed to pay to settle allegations that it discriminated against black job applicants.  http://bit.ly/29hgrBL



"If today's ruling had gone the other way, the implication would be that all government business could be transacted on private email and be invisible to citizens, completely gutting FOIA – absurd," said Marlo Lewis, Competitive Enterprise Institute senior fellow, after a court victory in a case over agency emails. http://bit.ly/29eY8fe  


We'll work to stay on top of these and other stories throughout the week, so check The Hill's Regulation page (http://thehill.com/regulation) early and often for the latest. And send any comments, complaints or regulatory news tips our way, tdevaney@thehill.com or lwheeler@thehill.com. And follow us at @timdevaney and @wheelerlydia.

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