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Court rules Government Heads emails on private computers ARE subject to FOI

Remarkably, a US Court found a completely sensible, obvious answer (and it only took two and half years) — government agency heads can’t hide their work emails on a personal computer.  (Life could get tough for Hillary.)

Thank the CEI:

 The DC Circuit court today ruled that agency records including “departmental emails on an account in another domain” must be searched or produced in response to Freedom of Information Act (FOIA) requests. In the FOIA case brought by the Competitive Enterprise Institute (CEI) against the White House Office of Science and Technology Policy (OSTP) over OSTP Director John Holdren’s use of non-official email accounts for work-related emails, the DC Circuit overturned a district court ruling, and remanded that case back to the district court for further proceedings.

Imagine if tax invoices, receipts, and other bank accounts could be stored in “my other car” and not available for the IRS?

For the sake of the environment, people need to be able to see the emails of the people supposedly looking after it.

“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. “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! Director Holdren is not the first agency head to be found using private email for his government work, but as we continue our legal battle in this case, we seek for this unlawful behavior to come to an end.”

The CEI deserve a medal for pursuing this.

As for Hillary Clinton — she might have escaped criminal charges today, but the FOI monster may yet get those messages. The FBI found that she might have violated statutes and been “extremely careless” but “no reasonable prosecutor would bring such a case.” (It’s not like she held an important public office or anything.)

h/t Darren N.

 

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Court rules Government Heads emails on private computers ARE subject to FOI, 9.1 out of 10 based on 37 ratings

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28 comments to Court rules Government Heads emails on private computers ARE subject to FOI

  • #
    gnome

    The people of the US can be proud that the investigation into the Clintoness even went as far as it did. Where else in the world would the presumptive heir of the head of state be subjected to even this level of criticism after an investigation?

    Sure, it’s a failure of the rule of law, but you can’t expect the great and powerful to be subjected to the same standards as the rest of us. It just wouldn’t accord with Darwin’s theory.

    They’ve earned the right to operate to a different standard. Just ask them.

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    • #
      Mari C

      Hillary may be subject to FOI and breaking of -those- laws, but the fact that she used a non-government email system wasn’t, at that time, a breach of anything. Stupid, potentially catastrophic (mostly to her and her buddies) but not in violation of more than “recommendations”

      It’s less lenient in the local government I work in, although some of our lawyer council-men seem to think their private email, even in correspondence with constituents and others about city business, is off-limits. Being lawyers in “real” life they should know better, but ethics is a thing that a lot of politicians think apply to other politicians, not themselves.

      I am glad the courts reaffirmed what was a tenet of the FOI rules, and angry that it had to go so far as to court to get the emails.

      41

      • #
        Dave in the States

        Guliani says that she did violate the law and it’s not just poor judgement:

        http://video.foxnews.com/v/5021931138001/giuliani-fbi-decision-special-exception-for-the-clintons/?#sp=show-clips

        Among Guliani’s comments to paraphrase; he could, if it was up to him, certainly get a conviction in jury trial and send her to prison.

        Hillary has already said that she would illegally by-pass Congress to force climate change action:

        “Secretary Clinton believes that meeting the climate challenge is too important to wait for climate deniers in Congress to pass comprehensive climate legislation,” Mr. Podesta wrote in an emailed statement.

        http://www.nytimes.com/2016/07/03/us/politics/hillary-clintons-ambitious-climate-change-plan-avoids-carbon-tax.html?_r=0

        Same with the 2nd amendment. The rule of law and the Constitution mean nothing to her.

        90

        • #
          Mark D.

          so right Dave, If the rule of law has no effect then it only makes sense that she would make every effort to disarm the rest of us.

          We all should be very concerned about the Hillary types in the world.

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        • #
          Mari C

          Hillary may still be on the hook for refusing to give up email related to her position – I am almost 99% certain that, even if on a “private” system, or personal email, if they are related to work conducted in the course of her official capacity she has to give them up. Anyone in a government position, and I think also anyone doing business for/with a government (in Ohio Sunshine Law, it’s a definite – in FOIA, I am not as certain) must also maintain and hand over records, including emails, related to that business.

          Any politician needs to be our concern. Even the ones we like. You never know what a regular person will get up to, and politicians, by their very nature and positions, are often more prone to justifying the ends and hiding the means.

          00

  • #
    2dogs

    One aspect of this that doesn’t seem to be discussed is the an officer’s duty of care not to misuse privileged information. It is a breach of this duty to use information one has obtained in the course of one’s duty for a private purpose.

    If these officers are using a private email address to send such information, it is difficult to argue their purpose for doing so was not private.

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    • #
      OriginalSteve

      Its starker than that – FOI is neither here nor there. Its a red herring but *does* set an intersteting precedent and incentive for people not to be so lax with cyber security.

      Consider this – Any govt head would be technically an employee of Uncle Sam. As such, they are bound by certain rules about handling sensetive information, the same as any other employee. Yes you could argue they are higher up , but if you break the rule higher up, logically anyone else could do the same and you would have anarchy.

      Now – lets say some pleb lower down the chain had done the same thing and been found out? Result – instant dismissal ( usually ), and criminal charges and likely jail time, especially if it was classified information.

      Nuff said.

      However, the fact the current incumbent is constantly protected by discovery by Birthers etc shoudl tell you there is anarchy at the highest levels anyway….

      30

  • #
    pat

    not unrelated – links easy to find online:

    6 Jul: Sky News: Mark Kleinman: Branson And May Meet As Tycoon Demands New Poll
    The Virgin tycoon Sir Richard Branson has held secret talks with Theresa May in an effort to boost his plea for a second referendum on the UK’s membership of the European Union (EU)…
    Mrs May has publicly ruled out the prospect of a second referendum, saying: “Brexit means Brexit.”
    A source close to the Home Secretary said she had made that position clear during her meeting with Sir Richard…

    6 Jul: UK Independent: Olivia Blair: Theresa May meets with Richard Branson after Brexit for ‘secret talks’
    The business magnate has called for parliament to consider a second referendum over Britain’s membership of the EU
    A representative for the Virgin founder confirmed to the Independent a meeting with the Home Secretary took place after a Sky News report said Sir Richard held “secret talks” with Ms May last week…
    Last week, he suggested Virgin group had lost a third of its value since the referendum…

    BBC never stops floating the idea of a second referendum, whilst feigning impartiality by admitting it’s not likely to happen. intro for the first piece claims “politicians” are asking for a second referendum:

    AUDIO: 5 Jul: BBC Witness: Denmark’s 2nd EU Referendum
    In 1993 Denmark held a 2nd referendum on greater EU integration after the 1st vote failed. But angry anti-EU demonstrators took to the streets of the capital and riots followed. We speak to the Former Foreign Minister who campaigned for a “Yes” vote, and a former activist who protested against any Danish involvement in the EU, but who has since changed his mind about Europe…
    http://www.bbc.co.uk/programmes/p03zq4m3

    28 Jun: BBC: Reality Check: Could there be a second referendum?
    Reality Check verdict: A second referendum on the UK’s membership of the EU seems both unlikely to happen and unlikely to give a different result to the first one. A referendum on the deal reached for leaving the EU is possible but not required by current legislation.
    Since last week’s referendum on the UK’s membership of the European Union, there has been much talk of a second referendum.
    It is not the first time it has been mentioned.
    Actually, it was discussed much earlier in the campaign with Michael Howard suggesting in February that a vote to leave could “shake EU leaders out of their complacency” and lead them to offer the UK a better deal to persuade the country to stay…
    Tottenham MP David Lammy has said that people could “stop this madness through a vote in Parliament”, and there has been a ***big petition calling for another referendum…
    In a post-referendum poll by ComRes, 92% of leave voters said they were happy with the outcome, while 4% of remain voters were happy (and, overall, 7% were indifferent)…
    http://www.bbc.com/news/uk-politics-eu-referendum-36652273

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    • #
      clive

      From what I am hearing from friends in the UK,the “Remainers”may get an even bigger beating than before.MSM keep pushing the notion that if they keepbringing up the prospect of another “Vote”,eventually they will succeed.
      Not going to happen,according to what my friends are saying.But the “Leftiods will keep on trying,because it has worked before.

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      • #
        Graeme No.3

        I would think that as the first born children haven’t been slain, no plague has broken out and the sky hasn’t fallen, let alone some of the more extreme threats made to scare people, that any new vote would result in a higher number for leave.

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  • #
    pat

    comment #3 is in moderation.

    decided to post the Independent url so you can read the angry comments:

    http://www.independent.co.uk/news/people/theresa-may-richard-branson-brexit-meeting-over-fears-eu-referendum-a7121016.html

    10

  • #
    ROM

    Just a thought!

    Ah well it is another long thought !!

    The green and rabid Left has had an almost unfettered run now for close on two decades in western academia, in the unbelievably badly run and governed UN, in that IPCC off shoot of the UN, in most of the media particularly the deep red left publicly financed troughing media such as the ABC, in so much of the EU and its constituent nations, even here in Australia where the Left was cowed and basically beaten by Hawk, Keating and during most of Howard’s reign but has regained its hubris over the last half dozen years and has been a major impediment to good government in both our own and other western democracy’s bureaucracies generally.

    Now we see Brexit and maybe more EUexits to come, leftists in America being brought to heel by the same legal means they have used against anybody they previously wished to destroy previously,
    Pauline Hanson and her right wing views and supporters re-emerging in our own elections,
    Germany, Britain, Spain, Denmark, Norway,  Italy, Poland cutting back its green inspired, hard leftist enforced renewable energy building,
    vast amounts of hidden wealth skimmed off by politicians and wealthy troughers of every political brand that had been domiciled in formerly untouchable excuses for nations and are being revealed by whistle blowers,
    hard Left inspired initiatives being discredited everywhere such as unlimited immigration providing those dirty immigrants don’t appear or settle in the leftist’s salubrious living areas
    and very senior operators of high distinction in the biological field now going after and thoroughly trashing the hard left Greens in Greenpeace and their deadly life destroying GMO bans,
    renewable energy corporations suddenly finding they can no longer do anything they want to do to further rip off the public and citizens,
    270 papers over the last year or so decrying the greens and lefts favorite globally catastrophic so called Climate Change as being based on climate models that have almost no relationship to the reality of the climate
    and much much more.

    Methinks we are over the hump and the conservatives will once again be left with the unenviable and near impossible task of cleaning up the social and economic garbage and political and economic and social sewerage and stinking dregs over the next couple of decades that the Left always leaves where ever it makes an appearance.

    And the trigger maybe!
    I suggested sometime ago here in on Jo’s blog that the citizenary will turn right politically when they begin to feel threatened by a number of fairly well known circumstances.
    And the prime one here is the possibility of societal breakdown from all the stupidities inflicted on the populace by leftist politicians and the plague of unaccountable NGOs nearly all of which range from the hard left to green hard left to just plain leftists and all of which seem to be almost completely lacking in any sense of a moral compass or sense of ethics and any sense of responsibility to and empathy with the populace generally.

    Economic breakdown, unelected bureaucratic dictatorships in the making , uncontrolled immigration by a mass of immigrants with cultures and religious beliefs far removed from the national populace’s own culture and religious backgrounds.
    And a deep seldom expressed fear by the citizenry of consequent civil strife and savagery on a large scale in formerly peaceful societies, all of which leading to much reduced living standards and fears for their own personal safety and future.

    And so the Conservative Right begins to awaken as the Great Wheel of History and Human Affairs continues to turn on its inevitable journey down through Time.

    160

    • #
      Mentat

      ROM,

      A reflection in response to your comment.

      I remember my 96 year old grandfather smiling benignly at my youthful irrational exuberance on things political. Of course, I was of the left (if you are young and not of the left you are heartless – he said), but the great pendulum swings…..

      When he died, I was not mentioned in his will, being one of numerous grandchildren, but I managed to get many of his personal papers and diaries and thoughts on such things as philosophy, politics and religion – they were just the last things left as junk in his garage.

      He was mates with Monash and of the same philosophical bent. The generation that was alive during the birth of the constitution and lived the national dream was wise to the human condition and the need to temper individual humans within the crucible of a culture with checks and balances on tyranny.

      We have seen the pendulum swing a few times since and I trust it is swinging back our way once again. It would be good to work out the ‘forcing’ driving the ‘gravity’ of the pendulum.

      Mentat

      80

    • #
      Russ Wood

      “The conservatives will once again be left with the unenviable and near impossible task of cleaning up the social and economic garbage and political and economic and social sewerage and stinking dregs over the next couple of decades that the Left always leaves where ever it makes an appearance.”

      In actual history, down in South Africa, some years ago the middle-of-the-road Democratic Alliance (DA) party won back the Cape Town metropole from the African National Congress. They reckon that it took over a year to clean up the city’s economic mess, and to fire all of the useless hands that had been hired because they ‘knew somebody’. And now, because they are employing people who can do the jobs they are given, they are criticised constantly by the ANC as a ‘racist bunch’. But then, in South Africa (and maybe in Oz also) a civil servant’s job is something you have, not something you DO.

      40

  • #
    Egor TheOne

    Vote One … The Donald for President1

    Vote Two … Hitlery for Jail!

    Vote Three … El Presedente O’bumma for Impeachment!

    30

  • #
    DMA

    Years ago, just out of college, I got a job as a civilian facilities inspector on a SAC base. Mostly I reported chipped paint and leaking pipes but was required to inspect runways, taxiways, and aprons as well. I had to get a security clearance to go on the alert tree where the B52s with nucs were parked even though I was not allowed inside the red line around each one. I would not even remotely qualify for that lowly clearance if I had a record of activities similar to Hillery’s. Will her security clearance be revoked?

    40

    • #
      Roy Hogue

      DMA,

      Since you raise the issue of security clearance and thereby indirectly the question, what is classified and what is not, I can tell everyone some things about the subject that are missing from the public debate. They are missing mostly because reporters and talking heads have never worked in that environment and are ignorant of what the real situation is.

      I have held security clearances in the past, both in the Army and in civilian employment. The plain truth is that material is classified, not because it’s marked classified but because of what the material deals with or contains. And everyone, including Secretary Clinton knows that because you are required to sign your name to a piece of paper saying that you understand the rules before you get the clearance. That the FBI was able to find 110 emails that were classified yet Hillary denied ever having possession of, receiving or sending anything marked with a security classification shows us that she’s working a little dodge around what she must surely know is the real truth.

      Example: At one time I had a desk safe full of classified material. It was locked with a DOD approved 4 number padlock with the combination changed monthly whether I wanted it changed or not. So you know the place where I worked was serious about security. Almost none of that material had any classification markings on it. Yet I and everyone with whom I worked knew it was classified and why.

      By the way, God help me if I had left my office with anything still on top of the desk or worse, left that safe unlocked. I would have probably lost my clearance and with it my job. And there could be at least misdemeanor criminal charges as well.

      Now, if I and the thousands of others like me who had custody of classified material could manage to work within the required rules, how come Hillary Clinton could not? And the answer is simple, she didn’t want to. As I said below she didn’t give a damn.

      There is a definite double standard in play here.

      100

    • #
      Rereke Whakaaro

      There are two basic principles of security: “Need to Know”, and “Need to Hold”.

      Irrespective of the security clearances you hold, and irrespective of the security classification assigned to the material, if you don’t need to know the material content, then you shouldn’t know it. In fact you shouldn’t know that it even exists.

      The ability to retain copies of classified material, on any medium, is a more stringent tests than just knowing the content and context. “Need to Hold” refers to keeping copies of the material, on any medium, be it physically on paper, or recorded electronically. Physical and electronic documents can be copied, and it is probable that you will not even know that they have been copied.

      How would anybody know if their social emails have been copied, or not? They will appear on the email provider’s servers, albeit for a short time, but a short time is enough to take a copy, and send it elsewhere.

      There will definitely be mutterings in the US Intelligence community, over this revelation, and I would not be surprised if some discrete forensic research is not already underway. I will be interested to see if anything material comes of it.

      40

      • #
        Roy Hogue

        RW,

        You’re correct in every detail. I was content to stay away from need to know because it isn’t an issue as far as I can tell. Also because it’s much less well known to the public because even the need to know is sometimes kept unknown to all but those who have it. As Secretary of State she had the need to know everything to do with her department and the doings of other branches that intersected with State. So pure and simple, it’s not an issue. When you’re the boss, the buck stops on your desk email server. She had to very well know what was classified and what was not for the same reason I did. The difference is that I cared and she didn’t.

        I suspect the possibility of being hacked into and all sorts of State Department information stolen is very real. Comey was not willing to say very much about that, was he? Any worthwhile hacker takes great pains to disguise the fact that he’s been into your cookie jar because just the revelation that you’ve been hacked can suddenly turn useful information into useless when you’re found out and encryption keys, projects and plans get changed to minimize the damage. So I suspect you’re right about ongoing forensic research. And I wouldn’t expect much to ever be said about what they may find for yet a long time.

        00

  • #
    Mari C

    I am betting that the US courts will continue to rule in a more conservative, more to-the-letter of law, manner in cases pending now and in future cases. The tide is turning, trite as that is, and the pollution of the far left is showing up on the beaches, and it is a big enough pile of crap that even the slow and blind can see it. I sure can smell it. Time to start cleaning it up.

    Much is made of the USAn presidential position, but in all but exceptional instances the Senate and House hold (or should hold) much of the national, federal power. States have their own versions, based on a Governor and their own House and Senate, which not only act as State government but should act as buffers between the Federal and the Local. Some do. Many, maybe most, don’t. Politics is not meant to be a swiftly moving process, a knee-jerk reaction, but a ponderous and slow beast, one that can’t leap into the fray and kill us all with short-sighted, near-sighted and just plain stupid actions. the US has policies in place for events that need swift response – which are very limited events, a very short list, and should be.

    The POTUS is not – in himself – supposed to be powerful. The position, the office, was designed to keep the power out of his hands – no more Monarchy or anything similar, ever, that was the intent. In recent decades we’ve seen an eroding of these checks and balances, these limits to power, mostly in response to perceived (and a few real) threats – terrorism, CAGW, etc. What was once, essentially, a position more akin to Head Diplomat and Host is now resembling Jr Dictator.

    I don’t like Trump. He’s a donkey’s behind, a snake-oil pitch-man, a clown. He isn’t all that smart, he isn’t all the savvy at business, he opens his mouth and lets things run in through ears and back out without knowing what they are or caring, as long he gets attention and free press. His haters have done as much to aid his campaign as his supporters.

    But he isn’t stupid, he has street-smart instincts, and he’d completely up-end the political establishment because has as much contempt for it as he does the average person, if not more. And in response, the political establishment would, most likely, restore all the checks, balances and limits on Presidential power that were never meant to be removed. The conservatives, wanting more control, fearing the left would let the damn bomb-wielders in willy-nilly, encouraged and abetted the removal of the limits on POTUS power, thinking that, at the same time, they could get the upper hand. Worked out great, eh? Now that the far left has run things for a while – and why oh why didn’t anyone see that coming? – and we’ve all seen how much the last several presidents respected the limits and balances, I am sure the moderate and mild left, the right, and the down-the-middles, are seriously regretting that move.

    And I am beginning to think that some of these recent back-to-the-law rulings, the effort being made at the conservative level to restore the balance (I hope that pendulum doesn’t swing to the hard right), and the flailing of the extreme left is a sign that Trump is making people nervous enough to speed up the swing of the pendulum – which began to swing when people got tired of being taxed into the grave and beyond and then seeing those taxes buy shiny windmills in Germany. No one wants Trump to have much power, and the fact that he might make it into the Whitehouse is making people get off their collective back-ends and start acting as if they were responsible adults – maybe if they act that way long enough, they will -become- responsible.

    I’m not a party person, not a right or left, not even a centrist. I’m more inclined to vote for things I see are necessary, and against pretty shiny baubles – I do want my lakes, rivers, forests, grasslands, etc., to be protected and preserved, I want good libraries, roads, schools – but shiny edifices to ego can just be shredded before they get past the planning process, thank you. I vote for people who are the most seemingly responsible in the areas I deem import – you never know, really, what anyone will do, much less a politician, but you can get an idea of what they’ve done, and that’s about all anyone can go on. I’ve had to start voting -against- some politicians rather than -for- anyone because the crop out there is so wilted and pest-ridden almost no one is really worth a FOR vote.

    I want to see clean tech that works. I want to see alternatives that work. Not sorta work, maybe kinda work, that reply on destroying someone else’s farm, backyard, pristine wilderness area, to work – that are as bad, if not worse, than what we have now. CO2 isn’t a problem, it never was, and we’ve improved the devices meant to clean most other pollutants from the outflow of power and other industry that, quite frankly, I’d rather see the installation of new scrubbers and filters mandated, and even paid for by my taxes than windmills and solar panels. The US EPA is a joke, a cartoon, it wants more funding and so jumped on the CAGW gravy train as it sped past, but they can’t even enforce what they have on the books -now- so why take on more? There’s an example of wasted ideology and money. Good idea, bad implementation and a waste, a bloated carcass that should be dismantled and buried. And it isn’t the only out-of-control agency in the US, and I know other countries are having the same problems.

    33

  • #

    but the FOI monster may yet get those messages

    Probably not. While she was certainly careless in her handling of national security documents, there’s no doubt that she was a lot more careful wiping her server of incriminating evidence related to the quid pro quo between the Clinton foundation and her activities as Secretary of State, which the FBI is still investigating. I run my own mail server and know with absolute certainty that I can make anything disappear without a trace, including from the logs and the so called ‘slack space’.

    20

  • #
    Roy Hogue

    As for Hillary Clinton. . .

    Jo, I’m surprised you’re willing to tackle that one. There will be a firestorm of complaints, blaming fingers pointing from left to right and back again and no shortage of talking heads with an opinion. But since you did invite comments, here is what I think, my 2 cent opinion for whatever it’s worth.

    For as long as I’ve known anything about Hillary Clinton the most obvious and glaring fault she has always shown is that she doesn’t give a damn. She wants what she wants and will walk all over any standard of society, law and any person who stands in her way of getting it. This same bad attitude, I’m entitled to what I want, stands out so clearly in this email scandal that it might as well be on fire. Yet no one seems able to see this aspect of her character or if someone does, I haven’t found it yet.

    This is frightening in its implications. She hasn’t given a dman through all the years I’ve been able to watch her, scandal after scandal. And if she becomes president, she still won’t give a damn. And neither will those who support and enable her.

    If we think Obama has been bad, wait for President Hillary.

    90

  • #

    I follow Judicial Watch for other actions such as these.

    30

  • #
    Fuel Filter

    She also committed perjury at least three times when she was testifying UNDER OATH to the Benghazi Committee. There’s a story today at Breitbart.com by Joel Pollack on it.

    They are full-bore going after the Lizard Queen.

    Trump will have a field day with all the info that coward Comey put out at yesterday’s presser.

    The first 13-14 minutes of his presentation were devastating to Cankles. I can’t wait to see what Trump’s AV crew does with it.

    30

  • #
    Steve of Cornubia

    Meh. It won’t matter. Hillary will still be President. The Machine just did what it had to do but was careful to avoid doing anything that would actually knock her out of the race, leaving it to voters and, more importantly, the media to decide if she is fit to fill the role. I would bet my house on the media putting in a massive, pro-Hillary PR campaign that will obliterate her trail to all intents and purposes. Republicans can shout as much as they want, it won’t matter because the establishment want Hillary and Trump won’t be allowed to breathe going forwards.

    01