Brennan Ctr. for Justice At N.Y. Univ. Sch. of Law v. U.S. Dep't of Justice

377 F.Supp.3d 428

BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW; the Protect Democracy Project, Inc., Plaintiffs,

v.U.S. DEPARTMENT OF JUSTICE; U.S. Department of Homeland Security; U.S. General Services Administration; Office of Management and Budget; U.S. Social Security Administration, Defendants.

17 Civ. 6335 (AKH)

United States District Court, S.D. New York.

Signed April 30, 2019

Allison Murphy, Washington, DC, Carl Nicholas Wedoff, Katherine Anne Rosoff, Jeremy Micah Creelan, Jenner & Block LLP, New York, NY, for Plaintiffs.

Casey Kyung-Se Lee, United States Attorney's Office SDNY, New York, NY, for Defendants.

OPINION AND ORDER GRANTING PARTIAL SUMMARY JUDGMENT

ALVIN K. HELLERSTEIN, U.S.D.J.:

I write to resolve two disputes in this Freedom of Information Act ("FOIA") case. The matter arises in the context of an investigation of alleged voter fraud, commissioned and then aborted by the President and, plaintiffs allege, continued in other ways by other agencies.

On May 11, 2017, President Donald J. Trump established the Presidential Advisory Commission on Election Integrity ("Commission") to study and report on voter fraud: "vulnerabilities in voting systems and practices used for Federal elections that could lead to improper voter registrations and improper voting, including fraudulent voter registrations and fraudulent voting." Exec. Order No. 13,799, 82 Fed. Reg. 22,389 (May 11, 2017).¹

On January 3, 2018, just seven months later, President Trump disbanded the commission. Exec. Order No. 13,820, 83 Fed. Reg. 13,820 (January 3, 2018). In a statement issued that day, the Press Secretary announced that President Trump chose to dissolve the Commission "[r]ather than engage in endless legal battles at taxpayer expense." The White House, Office of the Press Secretary, Statement on the Presidential Advisory Commission on Election Integrity (Jan. 3, 2018), https://www.whitehouse.gov/briefings-statements/statement-press-secretary-presidential-advisory-commission-election-integrity. According to the statement, President Trump "asked the Department of Homeland Security to review its initial findings and determine next courses of action." Id.

Plaintiffs Brennan Center for Justice at New York University School of Law and the Protect Democracy Project, Inc. (collectively, "Plaintiffs") made demand under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for the documents of the Commission's work, filed this suit, and subsequently moved for an order to compel the U.S Department of Justice ("DOJ"), U.S. Department of Homeland Security ("DHS"), U.S. General Services Administration ("GSA"), U.S. Office of Management and Budget ("OMB"), and U.S. Social Security Administration ("SSA") (collectively "Defendants" or "Government") to produce the documents responsive to Plaintiffs' FOIA requests.² Two issues remain for my determination: 1) whether search terms adopted by DHS and OMB, narrower than those adopted by the DOJ, SSA, and GSA,³ are reasonable and appropriate or too narrow to carry out a reasonable and responsive search; and 2) whether Defendants should be required to search the private email accounts of Acting Assistant Attorney General John Gore ("Gore") and DOJ attorney Maureen Riordan ("Riordan"), and if "potentially responsive agency records [exist] outside of a Department records system, such as in a personal email account." Gore and Riordan, although not Commission members, received emails from Commission members, concerning Commission business, in their personal email accounts. Gore also sent emails concerning Commission business to a Commission member at her personal email address.

Both sides move for summary judgment. I rule for Plaintiffs on both issues.

Factual Background

1. The Presidential Advisory Commission on Election Integrity

Plaintiffs allege that the Commission, established by President Trump to "promote fair and honest Federal elections" by detecting voter fraud, was really intended to erect legal barriers to voting by eligible citizens. Exec. Order No. 13,799, 82 Fed. Reg. 22,389 (May 11, 2017). Plaintiffs believe that the production of relevant documents may enable them to substantiate their claims. On June 28, 2017, Kris Kobach, Vice Chair of the Commission, sent letters to state election officials seeking publicly-available voter roll data, including names, addresses, political party affiliation, partial social security numbers, voter history, active/inactive status, felony status, registration status in another state, military status, and overseas citizen information. Supp. Compl. ¶ 17. The effect of these inquires and other Commission activity, Plaintiffs allege, was to chill registrations of voters and to increase cancellations of voter registrations. Allegedly, nearly 4,000 registrations were cancelled in Colorado and 1,715 in Florida, more than double the cancellations in prior years. Supp. Compl. 19.

President Trump formally dissolved the Commission in January 2018. However, Plaintiffs allege, DHS has continued its work. Plaintiffs allege that Immigration and Customs Enforcement ("ICE"), an agency of DHS, continued the work of the Commission, evidenced by a subpoena issued by the U.S. Attorney of the Eastern District of North Carolina on August 31, 2018 to the State Board of Elections and Ethics Enforcement and forty-four counties in North Carolina, seeking voter records and ballots. Pl. Br. at 5–6. As of March 2019, an investigation of election fraud remained active in North Carolina.

2. Plaintiffs' FOIA Requests

In May 2017 and July 2017, Plaintiffs sent eight FOIA requests to the U.S. General Services Administration ("GSA"), Department of Homeland Security ("DHS"), Office of Management and Budget ("OMB"), and several sections of the Department of Justice ("DOJ")—its Office of Information Policy ("OIP"), Civil Rights Division ("CRT"), and Office of Legal Counsel ("OLC")—seeking documents and communications related to the Commission's formation, goals, and activities. See ECF 77-2 to 77-9. After filing this suit, Plaintiffs filed three additional FOIA requests on October 18 and 19, 2017, to DOJ-OIP, SSA, and DHS. See ECF 77-10 to 77-12 (seeking information on the Commission's use of SSA resources in carrying out its activities, DOJ emails exchanged between the Heritage Foundation and Commission members, and documents from DHS related to the Commission's termination and transfer of operations to DHS).

Each agency identified the methods and terms for its searches. See, e.g. , Vanessa R. Brinkmann Decl., ECF 82. DOJ-OIP searched: "Election Integrity," "voter fraud," "voting system," the names of members of the Commission, "citizenship status," "voter registration list," "voter file data," "voter roll data," ("detail" AND "commission"), ("assignment" AND "commission"); other agencies used these or similar terms. OMB, in contrast, searched only "PACEI," or "election commission" or "election integrity commission." Heather Walsh Decl. ECF 78, at 6. DHS used even narrower terms: "Presidential Advisory Commission on Election Integrity" or "Election Commission" or "Commission" and "Voter Fraud." James Holzer Decl., ECF 88, at 6.

Another issue relates to private email accounts of agency personnel. One agency, DOJ-OLC, asked custodians to report if "potentially responsive agency records outside of a Department records system, such as in a personal email account," existed; the agency responded in the negative. ECF 83 ¶ 18. GSA reported that Assistant General Counsel Duane Smith had "contacted the GSA employees who were involved in providing administrative support services and they confirmed that they had not used any private emails to conduct GSA business." Lewis Decl., ECF 85 ¶ 11. In contrast, SSA made no such inquiry; it argues that, since SSA policy requires the use of agency accounts to conduct agency business, there was no point to ask if private email accounts were used. Chyn Decl., ECF 86 ¶ 11. Similarly, the DOJ-CRT information officer reported that although personal email accounts were used, the emails were forwarded to the official DOJ account and, therefore, there was no need to search personal email accounts." Cooper Decl., ECF 84 ¶ 14.

Plaintiffs cite use by at least two non-Commission agency employees of personal email accounts to send and receive emails relating to Commission matters, and argue that other records must exist outside the official records system. Acting Assistant Attorney General John Gore, for example, used his personal Gmail account to correspond about allegations of illegal voting with Chris Cleveland, a partisan political activist on voter fraud issues. Wedoff Decl., ECF 77-22, 77-23; Pl. Br., ECF 76, at 13. Gore later forwarded variations of his email thread with Cleveland to Commission member Christy McCormick, also via her personal AOL address, on July 5, 2017 and September 5, 2017. Wedoff Decl, ECF 77-22, 77-23. Eighty-four days after his first private email, on September 27, 2017, Gore forwarded both emails to his official DOJ account. Id.

In a second instance, Commission member J. Christian Adams sent at least two emails on voting integrity to DOJ attorney Maureen Riordan's personal Comcast address. Wedoff Decl, ECF 77-24, 77-25. Within a day of receiving the emails, Riordan forwarded them to her official DOJ account. Id.

Legal Standards

A court may "supervise the agency's ongoing progress, ensuring that the agency continues to exercise due diligence in processing the request. Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm'n , 711 F.3d 180, 189 (D.C. Cir. 2013) ; see also § 552(a)(6)(C). "FOIA imposes no limits on courts' equitable powers in enforcing its terms." Payne Enterprises, Inc. v. United States , 837 F.2d 486, 494 (D.C. Cir. 1988) ; see also Clemente v. Fed. Bureau of Investigation , 71 F.Supp.3d 262, 263, 269 (D.D.C. 2014) ; Nat. Res. Def. Council v. Dep't of Energy , 191 F.Supp.2d 41, 42 (D.D.C. 2002).

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