A Federal Judge has ordered the top Science Policy official at the White House to preserve all of his emails from a private account while a Freedom of Information Act (FOIA) lawsuit about the messages proceeds.
U.S. District Court Judge Gladys Kessler issued the order Monday, requiring Office of Science and Technology Policy Director John Holdren to load a thumb drive with all archived messages, including messages marked as deleted, from an account provided by his former employer, the Woods Hole Oceanographic Institution in Massachusetts.
The Judge's unusual and perhaps unprecedented order came in Litigation that raises many of the same issues as the plethora of lawsuits over former Secretary of State Hillary Clinton's use of a private email server.
The case involving Holdren was brought by the Competitive Enterprise Institute (CEI) in 2014, after the group learned that he was conducting some official business on his Woods Hole account.
Kessler tossed out the case the following year, ruling that his office had no duty to search a Non-Government email account. However, earlier this year the D.C. Circuit reversed that decision on Appeal, holding that the mere fact that records are stored outside of Government servers does not automatically put them beyond the reach of FOIA.
When the case was returned to Kessler, CEI asked her to order Holdren to preserve the messages until the case is concluded. Justice Department lawyers opposed the order as unnecessary and a potential invasion of Holdren's privacy.
"The Court wishes to be clear that it is not in any way suggesting that it does not trust Dr. Holdren or that he is not to be believed when he states that he will preserve the documents until this Court rules on the merits of Plaintiff's FOIA claims. The Court also respects Dr. Holdren's privacy concerns regarding the contents of his personal emails. However, there are many factors that could affect the availability of the emails in the Woods Hole account, and it is vital that they be maintained pending the outcome of this Court's merits decision," Kessler wrote.
Kessler noted that Holdren is a Political Appointee likely to depart when the Obama Administration turns over power next month and said his departure might affect the Legal status of the emails. She also said the fact that Administration policy called for him to forward all work-related emails to his official account did not guarantee that always happened. "Policies are rarely followed to perfection by anyone," wrote Kessler, an Appointee of President Bill Clinton. "It is better to be safe than sorry."
In a bow to the privacy concerns raised by the Government, the Judge said she will allow Holdren to maintain the thumb drive with his messages on it as the case goes forward.
CEI Attorney Sam Kazman said the group is "very pleased" with Kessler's order. "Dr. Holdren has long argued for a 'precautionary principle' approach on climate issues. We’re glad to see the court is here taking a 'precautionary principle' approach in preserving his private emails," Kazman said.
Most White House Offices are beyond the reach of FOIA, but the Office of Science and Technology is one of a few with duties assigned by Statute that are covered by the Access law.
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