Judicial Watch v. FBI

JUDICIAL WATCH, INC., Plaintiff, v. FBI, Defendant.

Civil Action No.: 18-2316 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

September 11, 2020

Re Document No.: 16

MEMORANDUM OPINION

GRANTING DEFENDANT'S MOTION TO DISMISS

I. INTRODUCTION

The Federal Records Act ("FRA") requires federal agencies to establish policies and procedures that ensure efficient and effective records management. In this case brought under the Administrative Procedure Act ("APA"), Plaintiff, an organization that frequently files Freedom of Information Act ("FOIA") requests, contends that the FBI does not have a recordkeeping program that provides for effective control over non-email electronic messages, including text messages, as required by the FRA. After the Court granted the FBI's first motion to dismiss for failure to state a claim under Federal Rule 12(b)(6), Plaintiff amended its complaint, adding additional factual allegations about the FBI's recordkeeping policy. The FBI now moves to dismiss again and argues that Plaintiff still fails to allege sufficient facts to state a plausible claim for relief. Having considered the amended complaint, the attached FBI recordkeeping policy, and the parties' briefing, the Court agrees with the FBI and finds that Plaintiff fails to state a plausible claim for relief. Accordingly, for the reasons stated below, the Court grants the FBI's motion.

II. BACKGROUND¹

A. The Federal Records Act

The Federal Records Act² "governs the creation, management and disposal of federal records." Citizens for Responsibility & Ethics in Washington v. Pruitt (CREW I), 319 F. Supp. 3d 252, 254 (D.D.C. 2018) (quoting Armstrong v. Bush, 924 F.2d 282, 284 (D.C. Cir. 1991)). The FRA "requires agencies to create 'standards and procedures' in order to ensure '[a]ccurate and complete documentation of the policies and transactions of the Federal Government." Id. at 254-55 (quoting 44 U.S.C. § 2902). Under the FRA, "[t]he head of each federal agency must 'establish and maintain an active, continuing program' for management of that agency's records that provides for, inter alia, 'effective controls' over the creation, maintenance, and use of records and 'cooperation with the Archivist' of the United States in maintaining and disposing of records." Judicial Watch, 2019 WL 4194501, at *1 (quoting 44 U.S.C. § 3102). The Archivist, who heads the National Archives Records Administration ("NARA"), issues "standards, procedures, and guidelines with respect to records management." 44 U.S.C. § 2904(c)(1).

Pursuant to this statutory authority, the Archivist has promulgated detailed regulations that set forth agency recordkeeping requirements. See 36 C.F.R. §§ 1222.22-1222.34. The regulations state that "[a]gencies must implement a records maintenance program so that complete records are filed or otherwise identified and preserved . . . and permanent and temporary records are physically segregated from each other or, for electronic records, segregable." Id. § 1222.34. As a general matter, the regulations state that agencies must establish records management controls that ensure reliability, integrity, usability, preservation of content, proper context, and a logical structure. See id. § 1236.10. While NARA's regulations lay out additional requirements for email records, see id. § 1236.22, other types of electronic records must be kept in a recordkeeping system that meets the general requirements for all electronic information recordkeeping systems as described in 36 C.F.R. § 1236.10. See id. § 1236.24. NARA's guidance clarifies that "electronic messages can be federal records, so long as they are 'created or received in the course of agency business.'" Judicial Watch, 2019 WL 4194501, at *2 (quoting David Ferriero, Guidance on Managing Electronic Messages, Bulletin 2015-02 (July 29, 2015), https://www.archives.gov/records-mgmt/bulletins/2015/2015-02.html). The guidance further explains that "[a]gencies must provide clear instructions to all employees on their responsibility to capture electronic messages created or received in personal accounts" in addition to messages created on official accounts. Guidance on Managing Electronic Messages, Bulletin 2015-02 (July 29, 2015).

B. Procedural History

Plaintiff filed its amended complaint on September 12, 2019. See Am. Compl., ECF No. 15. The amended complaint explains that "electronic messages must be captured and managed in compliance with the FRA," but that "[t]he FBI [] has failed to establish and maintain a recordkeeping program that provides effective controls over non-email electronic messages, including text messages." Id. ¶¶ 10, 11. Plaintiff alleges that "[t]he FBI has the technological capability to preserve and manage text messages automatically for FRA purposes," id. ¶ 12, but rather than utilize this technology, the FBI "instead relies upon its personnel to incorporate their text messages into a recordkeeping system," id. ¶ 14. Plaintiff further alleges that the policy is unique to text messages and other electronic messages and that emails are "automatically incorporated into FBI filing systems." Id. ¶ 15. Plaintiff argues that "[t]he FBI's recordkeeping program treats emails differently than all other electronic messages," id. ¶ 17, and gives little attention to non-email electronic communications, which only receive a "two sentence long" reference compared with the "almost four, single-spaced pages" dedicated to email, id. ¶¶ 17, 18. Plaintiff claims that this does not amount to "a recordkeeping program that provides effective controls over the maintenance of non-email electronic messages." Id. ¶ 19. As such, Plaintiff claims the recordkeeping program violates the FRA and amounts to arbitrary and capricious agency action under the APA. Id. ¶¶ 20-25.

III. LEGAL STANDARD

The Federal Rules of Civil Procedure require that a complaint contain "a short and plain statement of the claim" in order to give the defendant fair notice of the claim and the grounds upon which it rests. Fed. R. Civ. P. 8(a)(2); see also Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The complaint's factual allegations are to be taken as true, and the court is to construe them liberally in the plaintiff's favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). Notwithstanding this liberal construal, the court deciding a Rule 12 motion must parse the complaint for "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This plausibility requirement means that a plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555-56 (citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff's legal conclusions as true, see id., nor must a court presume the veracity of legal conclusions that are couched as factual allegations, see Twombly, 550 U.S. at 555.

The court ruling on a Rule 12(b)(6) motion to dismiss "may consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, or documents upon which the plaintiff's complaint necessarily relies." Busby v. Capital One, N.A., 932 F. Supp. 2d 114, 133-34 (D.D.C. 2013) (internal citations and quotations omitted). The court may also take "judicial notice of facts on the public record . . . when an undisputed fact on the public record makes it clear that the plaintiff does not state a claim upon which relief could be granted." See Covad Commc'ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (citation omitted).

IV. ANALYSIS

For an FRA claim brought under the APA to survive a motion to dismiss, Plaintiff must allege facts that could plausibly lead the court to find that the contested policy is "'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' because [it] permit[s] the destruction of record material that should be maintained." Armstrong, 924 F.2d at 297 (quoting 5 U.S.C. § 706(2)(A)). This standard of review encourages courts to defer to the agency's expertise. See Motor Vehicle Mfrs. Ass'n of U.S., Inc., v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Agency action is arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1313 (D.C. Cir. 2014) (quoting State Farm, 463 U.S. at 43). To state a proper claim under the APA, a plaintiff must allege facts that, if true, plausibly establish that the agency action is arbitrary and capricious. See James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 284 (D.C. Cir. 2000); Akpan v. Cissna, 288 F. Supp. 3d 155, 165 (D.D.C. 2018); XP Vehicles, Inc. v. Dep't of Energy, 118 F. Supp. 3d 38, 78 (D.D.C. 2015).

When ruling on the FBI's first motion to dismiss, the Court explained that Plaintiff's complaint "hing[ed] on a single factual allegation: 'text messages on [FBI]-issued devices are not automatically integrated into an FBI records system,' a policy which is 'unique to text...