Under the Freedom of Information Act, messages sent by government employees and officials can be disclosed in response to a FOIA request. If an individual whose communications were covered by FOIA encrypted their messages with a third-party program (e.g. GPG) before sending them from their government email address, what would happen if those messages were subsequently requested?

The emails would be available, technically, but they'd be unreadable because of the encryption. Would the FOIA prevent further investigation? Or would the requester be able to compel the employee to, say, disclose their private key*?

*I'm assuming that the sender encrypted the message to both their own and the receiver's key here, but it's interesting to think about what would happen if they only used the recipient's key. Would the request then be able to compel disclosure of the recipient's private key?

  • Why do you jump to "provide the key?" There's an intermediate step: provide an unencrypted copy of the specific requested emails. – cpast Aug 26 '16 at 18:13
  • I don't know the specifics, but does the FOIA not require authorities to keep (readable) copies of mails/letters they send, to allow later disclosure? That would solve the problem. – sleske Aug 29 '16 at 7:42

We don't know because (I think) there hasn't been a case about it. However, my guess is that if you sent the encrypted version of the email in response to a FOIA request, most judges would not let you get away with it. Otherwise the government would just turn over encrypted documents in response to every FOIA request. The Department would have an obligation to turn over the email, and if the employee still works for them the employee would presumably be ordered to decrypt the message.

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