Wilbur Ross Breaks the Rules and is Deceptive. This Sharp Federal Judge Calls Him On it

Judge: Wilbur Ross’s Personal Email Account is Subject to FOIA Requests Because He Used It For Government Business

July 23, 2020

A D.C. federal judge on Wednesday said that Commerce Secretary Wilbur Ross violated federal recordkeeping laws by using his personal email account to conduct government business. As such, the judge ruled that Ross’s nongovernmental email account would be subject to discovery in a lawsuit over his agency’s records.

The decision stems from a 2017 Freedom of Information Act (FOIA) request submitted by advocacy group Democracy Forward which sought all “communications made or received in connection with the transaction of government business using any nongovernmental email account . . . established, controlled, or used by Secretary Ross.”

A search of Commerce Department employees’ emails showed that Ross had received hundreds of emails to his personal accounts, many of which were not copied to his official government account. Democracy Forward then requested that the Department check Ross’s personal account for any official communications that were not picked up in the initial search. The department refused, claiming it had done enough to reasonably expect that all responsive information had been located and that any additional searches would yield duplicative results.

Democracy Forward then filed a lawsuit to compel a more vigorous examination of Ross’s personal emails.

In an 11-page decision issued Wednesday, U.S. District Judge Dabney Friedrich granted the group’s request for summary judgment and ordered the Commerce Department to review Ross’s personal emails.

“Where, as here, a government official has used a personal email account for official business, and has not proven—either through a sworn declaration or other evidence—that the official timely and consistently copied or forwarded those emails to the official’s government email account, courts have found it reasonable to probe whether the personal email account contains agency records responsive to a FOIA request,” Friedrich wrote. “Commerce acknowledges that the Secretary used his primary personal email account for official business without complying with federal recordkeeping requirements. Yet it limited its search only to official email accounts of the Secretary and other Commerce employees.”

Friedrich concluded that the department’s failure to search Ross’s personal account, despite evidence he consistently used it to conduct government business, could not be “reasonably calculated” to uncover all documents relevant to the records request.