As anyone who regularly reports on public officials can attest, the practice of public officials transacting government business on private email accounts did not start with Hillary Clinton. It’s a problem around the country which shows no signs of abating. In fact, a recent decision of the U.S. District Court for the District of Columbia might result in a sharp increase of what is often an attempt to avoid public scrutiny. That’s why we joined the Reporters Committee for Freedom of the Press and 25 others on an amicus brief filed with the United States Court of Appeals for the District of Columbia Circuit which argues in favor of access to these emails.

In 2013, the Competitive Enterprise Institute (CEI) filed a FOIA request with the White House Office of Science and Technology Policy (OSTP) seeking “copies of all policy/OSTP-related emails sent to or from jholdren@whrc.org (including as cc: or·bcc:).” This email account is provided to OSTP Director John Holdren but is maintained by his former employer, a private entity called the “Woods Hole Research Center.” However, it is alleged that Mr. Holdren continued to use this account even after leaving the Woods Hole Research Center, including for OSTP business.

OSTP denied the request, saying that the WHRC account is under the control of WHRC, a private organization. Therefore the account is beyond the reach of FOIA. In other words, the records aren’t government records subject to FOIA.

Further legal wrangling ensued and the CEI eventually filed a lawsuit in U.S. District Court for the District of Columbia. That court affirmed the OSTP’s denial of the FOIA request.

The court noted that “possession or control” is a prerequisite to an agency’s FOIA disclosure duties. In this case, the WHRC.org emails in question are outside of OSTP’s control. It doesn’t even matter that Director Holdren has control over that account because agencies do not gain control over records merely through an employer/employee relationship of some kind. In effect, the court said, it is up to agencies to set rules under the Federal Records Act regarding employees’ use of non-government email accounts to transact public business, police that use and punish if rules are broken.

For the record, the CEI also sought a declaratory judgment that, under the Federal Records Act, OSTP has a duty to acquire, preserve, and prevent the destruction of work-related email sent or received on non-official accounts. But the court rejected this as well, saying that private parties don’t have a right to force that type of compliance; they can only challenge the adequacy of the agencies guidelines or a failure to seek in initiation of an enforcement action by the Attorney General if the guidelines are not followed.

Our brief doesn’t directly challenge the lower court decision. Instead it urges the Court of Appeals to clarify that the appropriate standard for determining whether records are being “withheld” under FOIA mirrors the “possession, custody, or control” standard applicable in the civil discovery context and making the more policy-based arguments about why it is dangerous to allow government officials to use personal email accounts to conduct private business.

The first part of the brief argues that, in holding that OSTP did not “withhold” the records (because they weren’t in possession of the records), the District Court stretched Supreme Court precedent beyond its intended bounds. Where an agency has possession, custody or control of the records, but fails to release those records, they have been withheld.

The key case in this area involves transcripts of telephone conversations of former Secretary of State Henry Kissinger which were later moved from the State Department to a private estate in New York. The records were requested by journalist William Safire and by the Reporters Committee. The Supreme Court held the records were not “withheld” by the State Department because the transcripts had already been deeded to the Library of Congress. But, more specifically, the Court simply said that the State Department was under no obligation to sue to the Library of Congress to get the records back.

Later courts have taken a very narrow view as to what constitutes “withholding,” one which mirrors the “possession, custody or control” without disclosure test employed with regard to discovery in civil lawsuits. The “control” factor is generally understood to include anytime the agency has come into possession of the records in the legitimate conduct of its duties, which most often looks at how the material was created and used, not necessarily the current possession. But the District Court here simply looked at whether these are “agency records” — the wrong analysis.

This distinction is crucial because of the importance of this issue, which his addressed in the second section of the brief. As the brief notes, government employees are increasingly using personal email accounts to conduct public business: 16% of agency personnel always or often use personal email accounts and 63% do so with some frequency. The brief highlights some of the more high profile cases involving matters of public concern (like Hillary), as well as noting the high usage of personal Email accounts for public business at the state level (including by several current candidates for President). Furthermore, when these records are accessed, they often show government misconduct.

The issue is important for several reasons. The fight over use of personal or non-official email accounts by public officials and the access to communications via those accounts is already something that is frustrating people around the country. For that reason alone, I’d recommend we join this brief; this is one of the two or three most important FOIA issues nationwide – and that was before the whole Hillary Clinton controversy.

But the lower court decision in this case has somehow even raised the stakes. We are hearing that federal agencies are already citing this decision to deny requests for emails sent to or from refuse government officials’/employees’ personal email accounts in response to FOIA requests; they won’t even search or review those accounts. You just know that that state and local officials will follow suit (or, more likely, because state governors and city mayors especially seem to have initiated this trend, they will bolster their justification for denying such requests by saying “but a federal court has said it’s OK”).

Our fear is that, if the lower court decision is allowed to stand, we will be back to a situation where government employees can simply transact business on private email accounts to avoid scrutiny.