Competitive Enter. Inst. v. Office of Sci. & Tech. Policy

241 F.Supp.3d 14

COMPETITIVE ENTERPRISE INSTITUTE, Plaintiff,

v.OFFICE OF SCIENCE AND TECHNOLOGY POLICY, Defendant.

Civil Action No. 14-765 (GK)

United States District Court, District of Columbia.

Signed March 13, 2017

Hans Frank Bader, Competitive Enterprise Institute, Washington, DC, for Plaintiff.

Daniel Stephen Garrett Schwei, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

Gladys Kessler, United States District Judge

Plaintiff Competitive Enterprise Institute ("Plaintiff" or "CEI") brings this action against the Office of Science and Technology Policy ("Defendant," "OSTP," or "the Government"), a component of the Executive Office of the President of the United States. Plaintiff alleges that the Government violated the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, (Counts I & II), because it failed to produce emails residing in a private email account belonging to Dr. John P. Holdren, an Assistant to the President and Director of OSTP. The email account was provided to Dr. Holdren by his former employer, the Woods Hole Research Center ("Woods Hole"), a private, non-governmental organization.

This matter is presently before the Court on Defendant's Motion for Summary Judgment ("Mot.") [Dkt. No. 32]. Upon consideration of the Motion, Opposition ("Opp.") [Dkt. No. 33], Supplemental Authority [Dkt. No. 34], Reply ("Rep.") [Dkt. No. 35], Surreply [Dkt. No. 36-1], and the entire record herein, and for the reasons stated below, Defendant's Motion is granted.

I. BACKGROUND

A. Statutory Framework

1. Freedom of Information Act

FOIA, 5 U.S.C. § 552, allows individuals to request the disclosure of records from government agencies. Id. § 552(a)(3). When an agency receives a request that "reasonably describes" the records sought, id. § 552 (a)(3)(A), it must "conduct [ ] a search reasonably calculated to uncover all relevant documents." Morl e y v. CIA , 508 F.3d 1108, 1114 (D.C. Cir. 2007) (internal quotation marks omitted). The agency must then disclose any responsive agency records it locates, with the exception of any records that are protected from disclosure by one of FOIA's nine statutory exemptions. See 5 U.S.C. § 552(b). Both paper and electronic records may constitute "agency records" under FOIA. See 5 U.S.C. § 552(f) (2) (A).

If an agency, after exhausting administrative remedies, withholds responsive records not covered by one of FOIA's exemptions, the requester may file a lawsuit in district court to challenge the agency's decision to withhold. See id. § 552(a)(4)(B). As the Supreme Court has held, in order to state a claim under FOIA, a requester must allege that the agency has (1) improperly; (2) withheld; (3) agency records. Kissinger v. Reporters Comm. for Freedom of the Press , 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980).

2. Federal Records Act

The FRA is "a collection of statutes governing the creation, management, and disposal of records by federal agencies." Pub. Citizen v. Carlin, 184 F.3d 900, 902 (D. C. Cir. 1999) ; accord 44 U.S.C. §§ 2101 - 18, 2901 - 09, 3101 - 07, 3301 - 14. Under the FRA, agency heads are required to "make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency [.]" 44 U.S.C. § 3101.

Not all documents in an agency's possession qualify as "records" under the FRA. Instead, "records" includes any "recorded information" "made or received by a Federal agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency ... as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value in them." Id. § 3301(a)(1)(A). The definition of "records" under the FRA does not include "duplicate copies of records preserved only for convenience." Id. § 3301(a)(1)(B).

Agencies may only dispose of records on terms approved by the Archivist of the United States, who is head of the National Archives and Records Administration ("NARA"). 44 U.S.C. § 3303 ; 36 C.F.R. § 1225.10. In order to efficiently manage the disposition process, agencies may create records schedules, which must be approved by the NARA, to govern recurring types of records. 44 U.S.C. § 3303(3) ; 36 C.F.R. §§ 1225.10 - 1225.26. Records may be deemed temporary or permanent, the former designation leading to destruction after a set period and the latter, to preservation and eventually, transfer to the NARA. 36 C.F.R. §§ 1225.14, 1225.16.

If an agency head learns of "any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency," he or she must notify the Archivist. 44 U.S.C. § 3106. If the agency head "knows or has reason to believe [that records] have been unlawfully removed from [his or her] agency," then the agency head "with the assistance of the Archivist shall initiate action through the Attorney General for the recovery *231 of records [.]" Id. If the agency head "does not initiate an action for such recovery or other redress within a reasonable period of time," then the Archivist "shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made." Id.

In November 2014, Congress Amended the FRA to address federal employee's obligations when using non-official email accounts to conduct government business. The amendment states that,

An officer or employee of an executive agency may not create or send a record using a nonofficial electronic messaging account unless such officer or employee (1) copies an official electronic messaging account of the officer or employee in the original creation or transmission of the record; or (2) forwards a complete copy of the record to an official electronic messaging account of the officer or employee not later than 20 days after the original creation or transmission of the record.

44 U.S.C. § 2911(a).

B. Factual Background

On January 21, 2009, Dr. Holdren began working at OSTP. Holdren Decl. ¶ 1 [Dkt. No. 26.1]. Previously, he worked as the Director of Woods Hole from 2005 to 2008. Id. ¶ 2. Woods Hole provided Dr. Holdren with a Woods Hole email account in approximately June 2005. Id. ¶ 4. Dr. Holdren used the Woods Hole account as a personal email account until approximately January 2014. Id. Occasionally, Dr. Holdren used this email account for OSTP work-related correspondence. Id. ¶ 7.

When Dr. Holdren received a work-related email on his Woods Hole account, OSTP policy and Federal law required him to forward the email to his official email account at OSTP or to copy his official OSTP email account on the correspondence. Id.; see 44 U.S.C. § 2 911(a). The Government and Dr. Holdren have both attested to Dr. Holdren's compliance with this requirement. See Leonard Decl. ¶¶ UK 15-16 [Dkt. No. 32-2]; Holdren Decl. ¶ 7 [Dkt. No. 26-1] ("My understanding is that my practice of copying or forwarding work-related e-mails to my OSTP account complied with OSTP records policies, and I endeavored to follow that practice at all times").

C. Procedural Background

In October 2013, Plaintiff submitted a FOIA request to OSTP, requesting all emails relating to OSTP on Dr. Holdren's Woods Hole email account. Compl. ¶ 3. The Government responded to CEI's FOIA request on February 4, 2014, informing CEI that "OSTP is unable to search the ‘jholdren@whrc.org’ account for the records you have requested because that account is under the control of the Woods Hole Research Center, a private organization." OSTP's Response to FOIA Request at 1 [Dkt. No. 7-2]. On February 18, 2014, CEI responded with a letter arguing that Dr. Holdren's OSTP-related emails were subject to FOIA regardless of where they were located.

On March 7, 2014, the Government responded to CEI's February 18, 2014 letter. OSTP interpreted the February 18, 2014 letter as clarifying CEI's FOIA request to specify that it was seeking copies of all documents sent to or from the Woods Hole account, regardless of where those documents were located. In its March 7, 2014 reply, OSTP stated that it had "conducted a search of Dr. Holdren's OSTP email account and will produce responsive records to you on a rolling basis [.]" OSTP Letter of Mar. 7, 2014 at 1 [Dkt. NO. 7-4]. OSTP produced the first set of documents, consisting of 110 pages, on March 31, 2014. See OSTP's Letter of Mar. 31, 2014 at 2 [Dkt. No. 8-1].

On April 18, 2014, CEI responded and argued that OSTP had mis-characterized CEI's FOIA request. See CEI Letter of Apr. 18, 2014 at 2 [Dkt. No. 7-5]. CEI wrote that, "OSTP incorrectly asserts that CEI had clarified that it was ‘requesting a search of Dr. Holdren's OSTP email account for records to and from jholdren@whrc.org’ that are OSTP-related. Our request covers OSTP-related documents regardless of whether they are from an ostp.gov email account, and regardless of whether they are found in Dr. Holdren's ostp.gov email account." Id. (emphasis in original). OSTP later responded to this letter on May 1, 2014, producing 480 pages as part of the second set of responsive documents. See Leonard Decl. ¶ 10.

On May 5, 2014, Plaintiff filed this lawsuit, which includes two FOIA claims. Compl. ¶¶ 71-81 [Dkt. No. 1].

On July 11, 2014, the Government moved to dismiss Plaintiff's FOIA claims on two grounds: (1) that OSTP was not withholding any records; and (2) that the OSTP-related Woods Hole emails were not agency records subject to FOIA. Motion to Dismiss [Dkt. No. 7]. After full briefing, on March 3, 2015, the Court granted the Government's Motion to Dismiss based on the withholding argument, without addressing the agency records argument. March 3, 2015 Order and Mem. Op. [Dkt. Nos. 11-12]. On July 5, 2016, the Court of Appeals reversed the dismissal of the FOIA claims and remanded the...