Democracy Forward Found. v. U.S. Dep't of Commerce

474 F.Supp.3d 69

DEMOCRACY FORWARD FOUNDATION, Plaintiff,

v.UNITED STATES DEPARTMENT OF COMMERCE, Defendant.

No. 18-cv-0246 (DLF)

United States District Court, District of Columbia.

Signed July 22, 2020

Javier M. Guzman, Jeffrey B. Dubner, Democracy Forward Foundation, Washington, DC, for Plaintiff.

Johnny Hillary Walker, III, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, United States District Judge

Before the Court are the Department of Commerce's (Commerce) Motion for Summary Judgment, Dkt. 23, and Democracy Forward's Cross-Motion for Summary Judgment, Dkt. 24. For the reasons that follow, the Court will grant Democracy Forward's motion and deny Commerce's motion.

I. BACKGROUND

On May 19, 2017, Democracy Forward submitted a request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to Commerce. Def.’s Statement of Facts ¶ 1, Dkt. 23-2. It sought "communications made or received in connection with the transaction of government business using any nongovernmental email account ... established, controlled, or used by Secretary Ross" from January 20, 2017 to the date the search was conducted. See Cannon Decl. Ex. 1 (FOIA Request), Dkt. 23-3. In response to the request, Commerce identified four nongovernmental email addresses of the Secretary. Def.’s Statement of Facts ¶ 4; Second Bogomolny Decl. ¶ 4, Dkt. 33-1. The first two accounts were personal accounts that belong to the Secretary, and the second two were mail "aliases." First Bogomolny Decl. ¶ 15, Dkt. 27-2; Second Bogomolny Decl. ¶ 9.

Initially, Commerce searched the Secretary's official Commerce email account using these four email addresses as search terms for the period of January 20, 2017 to June 9, 2017, the date on which the FOIA request was perfected. Def.’s Statement of Facts ¶¶ 2, 6–7. This initial search produced 56 pages of responsive documents, none of which contained the alias email accounts. Def.’s Statement of Facts ¶ 8.

Because the initial production revealed that the Secretary had sent emails from one of his personal accounts to Commerce accounts other than his own, Democracy Forward requested on August 14, 2018 that Commerce search other employees’ official accounts using the Secretary's four nongovernmental email addresses. Id. ¶ 9. Commerce agreed, and on September 4, 2018, it searched the official email accounts of 50 Commerce employees, including the Secretary's advisers (the Chief of Staff, the Director of the Office of Policy and Strategic Planning, the General Counsel, and the Director of the Office of Public Affairs) and administrative support professionals with whom the Secretary regularly communicated. Id. ¶¶ 11–12. Commerce also extended the time frame of the search to cover the period from June 10, 2017 to May 12, 2018. Id. ¶ 10.

This second search produced 280 email chains, id. ¶ 19, comprising over 600 pages of responsive documents, id. ¶ 13. The vast majority of these email chains (235) originated with emails sent by a third party to one of the Secretary's two primary personal email addresses. Id. ¶ 20. On 209 of these email chains, a third-party sender copied an official Commerce account on the original email, id. ¶ 23, and on the other 26 email chains, either the Secretary or the third-party sender forwarded or copied the email to an official Commerce account, id. ¶¶ 24–26. Twenty-five of the 280 email chains originated with an email from an official Commerce account. Id. ¶ 28. The remaining 20 email chains originated with an email from one of the Secretary's personal email accounts. Id.

Overall, the Secretary received a total of 213 unique emails in his two primary personal email accounts. Second Bogomolny Decl. ¶ 4. He sent 40 unique emails from his first personal email account. Id. Two of these were sent to a third party, and in both instances, the Secretary copied another Commerce email account, but not his own. Def.’s Statement of Facts ¶¶ 30–31.

The Secretary sent no emails from his second personal email account, and Commerce represents that the Secretary has not accessed this account since before February 28, 2017, the date he was sworn in as Secretary. Second Bogomolny Decl. ¶ 16. The Secretary also did not receive or send any emails through either of his "alias" email accounts. Id. ¶ 4.

Democracy Forward highlights 24 email chains as exhibits to their motion. See Dubner Decl. Ex. A–X, Dkt. 24-5–24-28. It identifies 18 unique emails that the Secretary sent from his personal email account that he did not copy or forward to his official account. Pl.’s Statement of Facts ¶ 18, Dkt. 24-3. Democracy Forward also points out that on at least 25 occasions, government employees sent emails to the Secretary's personal accounts without emailing his official government account. Id. ¶ 21. And on at least 22 occasions, third parties sent emails to one of the Secretary's personal accounts. Id. ¶ 22. On "multiple occasions," the Secretary responded to a third party, without copying his or any another Commerce official's account. Id. ¶ 24.

Both parties have now moved for summary judgment. Democracy Forward challenges only the adequacy of Commerce's search, arguing that Commerce must search the Secretary's personal email account because the records Commerce produced show that a significant number of emails were sent to and from his personal accounts and not found in his official account. See Pl.’s Cross-Mot. At this time, Democracy Forward requests that Commerce search the Secretary's first email account only, but it notes that the results of this search may indicate that a search of his second personal email account is also warranted. See Hr'g Tr. at 22:14–23:5, Dkt. 34. Commerce refuses to search any of the Secretary's personal email accounts because it claims its previous searches were "reasonably expected to locate all responsive information." See Def.’s Mot at 3.

II. LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure mandates that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Materiality is, of course, a function of the applicable legal standard, which in this case is that an agency responding to a FOIA request must conduct a search reasonably calculated to uncover all relevant documents, and, if challenged, must demonstrate beyond material doubt that the search was reasonable."

Kowalczyk v. Dep't of Justice , 73 F.3d 386, 388 (D.C. Cir. 1996) (internal quotation marks omitted). All facts and inferences must be viewed in the light most favorable to the requester and the agency bears the burden of showing that it complied with FOIA. Chambers v. U.S. Dep't of Interior , 568 F.3d 998, 1003 (D.C. Cir. 2009).

To meet this standard, a federal agency "must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the [FOIA's] inspection requirements." Nat'l Cable Television Ass'n, Inc. v. Fed. Commc'ns Comm'n , 479 F.2d 183, 186 (D.C. Cir. 1973). "The system of disclosure established by the FOIA is simple in theory. A federal agency must disclose agency records unless they may be withheld pursuant to one of the nine enumerated exemptions listed in [ 5 U.S.C.] § 552(b)." U.S. Dep't of Justice v. Julian , 486 U.S. 1, 8, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988).

"[F]ederal courts ... rely on government affidavits to determine whether the statutory obligations of the FOIA have been met." Perry v. Block , 684 F.2d 121, 126 (D.C. Cir. 1982) (per curiam). The agency's affidavit is accorded a presumption of good faith, SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted), and "[s]ummary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith," Judicial Watch, Inc. v. U.S. Secret Serv. , 726 F.3d 208, 215 (D.C. Cir. 2013) (internal quotation marks omitted).

If, on the other hand, "material facts are genuinely in issue or, though undisputed, are susceptible to divergent inferences bearing upon an issue critical to disposition of the case, summary judgment is not available" to the agency. Alyeska Pipeline Serv. Co. v. Envtl. Prot. Agency , 856 F.2d 309, 314 (D.C. Cir. 1988). That said, courts in this jurisdiction recognize that "the vast majority of FOIA cases can be resolved on summary judgment." Brayton v. Office of the U.S. Trade Representative , 641 F.3d 521, 527 (D.C. Cir. 2011).

III. ANALYSIS

The parties dispute whether Commerce conducted an adequate search when it declined to search the Secretary's primary personal email account for "communications made or received in connection with the transaction of government business using any nongovernmental email account [of the Secretary]." See Def.’s Statement of Facts ¶ 1.

The adequacy of a search "is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case." Weisberg v. U.S. Dep't of Justice , 745 F.2d 1476, 1485 (D.C. Cir. 1984). To survive a motion for summary judgment, an agency "must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Reporters Comm. for Freedom of Press v. FBI , 877 F.3d 399, 402 (D.C. Cir. 2017) (quoting Oglesby v. U.S. Dep't of Army , 920 F.2d 57, 68 (D.C. Cir. 1990) ). "[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate. " Weisberg , 745 F.2d at 1485 (emphasis in original); see also SafeCard , 926 F.2d at 1201. " ‘The...