Judge rules Trump transition emails held by GSA not subject to release under FOIA

Posted at 9:34 AM, Jul 03, 2019
and last updated 2019-07-03 11:34:41-04

A government transparency group cannot have access to Trump transition team emails under access to public records laws, even though they are being held by the federal General Services Administration, federal Judge Amit Mehta ruled on Tuesday.

The Democracy Forward Foundation had sued in federal court under the Freedom of Information Act for access to the transition-era emails of Trump team members Mike Pence, Michael Flynn, Chris Christie, Jeff Sessions, Jared Kushner and Trump’s adult children, among several others. The transition members all used email addresses, and the transition had made an agreement with GSA to have the agency host the email accounts.

When the transition became part of criminal and national security investigations in 2017, GSA kept the records for law enforcement purposes and shared the emails and the transition’s electronic devices, which also were on loan to team Trump from the agency, with the FBI.

Even with the emails in its possession, the GSA argued in court that the records weren’t the agency’s to make available. Presidential transition teams’ records are not covered under the Freedom of Information Act.

“The GSA did not create the records. Nor did it review, search or consult them. It did not use them in any way,” Mehta wrote in his opinion. “In short, there is nothing about the documents’ contents that would shed any light about GSA’s operations or decision-making. Therefore, the transition team’s emails are not ‘agency records’ subject to disclosure under FOIA.”

The case — one of many FOIA cases before the DC District Court related to the Trump administration and the investigations of the campaign and transition — fleshes out where the court stands on a unique public records situation related to Trump.

Not all GSA documents related to the Trump transition and the investigation of it have been shielded from the public.

In February 2018, CNN gained access to emails between the FBI and GSA, including the FBI’s request to the agency to preserve the Trump transition team emails that the Democracy Forward Foundation later sought.