COMPETITIVE ENTERPRISE INSTITUTE v. OFFICE OF SCIENCE AND TECHNOLOGY POLICY

Filing 38

MEMORANDUM OPINION to the Order granting Defendant's Motion for Summary Judgment and granting Plaintiff's Motion for Leave to File a Surreply. Signed by Judge Gladys Kessler on 3/13/17. (CL)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

COMPETITIVE ENTERPRISE
INSTITUTE,
Plaintiff,

v.
OFFICE OF SCIENCE AND
TECHNOLOGY POLICY

Civil Action No. 14-765 (GK)

Defendant.

MEMORANDUM OPINION

Plaintiff Competitive Enterprise Institute
"CEI")

brings

this

Technology Policy

action

against

("Defendant,"

the

("Plaintiff"

Office

of

Science

or
and

"OSTP," or "the Government") ,

a

component of the Executive Off ice 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
Motion

for

is presently before

Summary

Judgment

consideration of the Motion,

the

("Mot. " )

Opposition

Court on Defendant's
[Dkt.

("Opp.")

No.

32].

[Dkt. No.

Upon
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

disclosure of records from government agencies.

to
Id.

request
§

the

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." Morely
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,
protected

from

with the exception of any records that are

disclosure

exemptions. See 5

U.S.C.

§

by

one

552(b).

of FOIA's nine
Both

paper

and

statutory
electronic

records may constitute "agency records" under FOIA. See 5 U.S.C.
§

552 (f) (2) (A).
If

withholds

an

agency,
responsive

after

exhausting

records

not

administrative

covered

by

one

remedies,
of

FOIA's

exemptions, the requester may file a lawsuit in district court to
challenge

the

agency's

decision
-2-

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 (1980).
2. Federal Records Act

The FRA is "a collection of statutes governing the creation,
management,
Citizen v.
U.S.C.

§§

heads

are

and disposal of records by federal agencies."
Carlin,

184 F.3d 900,

902

(D.C.Cir.1999);

Pub.

accord 44

2101-18, 2901-09, 3101-07, 3301-14. Under the FRA, agency
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
Not

all

u.s.c.

§

3101.

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.
The

definition

of

"records"

under
-3-

the

FRA

§

3301(a) (1) (A).

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

Archives and Records Administration ("NARA"). 44 U.S.C.
C.F.R.

§

process,

§

§

3303; 36

1225.10. In order to efficiently manage the disposition
agencies may create

approved by the NARA,
U.S.C.

National

3303(3);

records

schedules,

which must be

to govern recurring types of records.

36 C.F.R.

§§

1225.10-1225.26.

44

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

threatened unlawful

head

learns

removal,

of

"any

defacing,

actual,

impending,

alteration,

or

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

records]

have been unlawfully removed from [his or her]

§

[that

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
-4-

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
Holdren Deel.

~

21,
1

2009,

Dr.

Holdren began working at

[Dkt. No. 26.1]. Previously, he worked as the

Director of Woods Hole from 2005 to 2008.
provided

Dr.

OSTP.

Holdren

with

approximately June 2005. Id.

a
~

Woods

4.

Hole

Id.

~

2.

email

Woods Hole
account

in

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.
-5-

~

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.
U.S.C.
to Dr.

§

Id.;

see 44

2911(a). The Government and Dr. Holdren have both attested
Holdren' s

compliance with this

requirement.

See Leonard

Deel. ~~ 15-16 [Dkt. No. 32-2]; Holdren Deel. ~ 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,
search

the

informing CEI that "OSTP is unable to

'[e-mail]'

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.

-6-

On March 7, 2014, the Government responded to CEI's February 18,
2014

letter.

OSTP

interpreted

the

February

18,

letter

2014

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,
OSTP stated that it had "conducted a search of Dr.

2014 reply,

Holdren' s OSTP

email account and will produce responsive records to you on a rolling
basis[.]"

OSTP Letter of Mar.

produced the first

7,

2014

set of documents,

at

1

[Dkt.

NO.

7-4].

OSTP

consisting of 110 pages,

on

March 31, 2014. See OSTP's Letter of Mar. 31, 2014 at 2 [Dkt. No. 81] .

On April 18, 2014, CEI responded and argued that OSTP had mischaracterized 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 [e-mail]'
OSTP-related.

that are

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,

2o14,

producing

48o

pages

as

responsive documents. See Leonard Deel.

-7-

part
~ 10.

of

the

second

set

of

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
After

full

briefing,

on March 3,

2015,

the

Court

[Dkt. No.

7].

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
case. See CEI v. OSTP, 827 F.3d 145, 150 (D.C. Cir. 2016).
On August 29,

2016,

the Court of Appeals issued its Mandate

[Dkt. No. 15] and on September 19, 2016, this Court held a Status
Conference.

At

that

preservation of Dr.

Conference,

CEI

raised concerns

about

the

Holdren's emails in the Woods Hole account.

See Sept. 19, 2016 Tr. at 3 [Dkt. No. 18]. Specifically, CEI stated
that

its

concern was

that

the Woods Hole emails would not be

preserved if Dr. Holden, a political appointee, left his position

-8-

at OSTP at the end of the Obama administration. 1 Id. at 5-7. The
Court directed the Parties to confer about the preservation issue.
Id. at 11-12.
At a subsequent Status Conference on October 11,

2016,

the

Parties informed the Court that they failed to reach an agreement
on the preservation issue. See Oct. 11, 2016 Tr. at 3-4 [Dkt. No.
22). On October 14, 2016, the Court issued a briefing schedule for
the preservation issue. Oct. 14, 2016 Minute Order. On October 17,
2016,

the Court ordered that Summary Judgment briefing would not

occur until after the Court decided the preservation issue.
On October

17,

2016,

Plaintiff

filed

a

Motion

to

Compel

Preservation of Private Emails [Dkt. No. 24). On October 31, 2016,
the Government filed its Opposition to the Motion to Compel [Dkt.
No.

26). On November 10,

2016,

Plaintiff filed its Reply to the

Motion to Compel [Dkt. No. 29).
On December 12, 2016,

this Court granted in part and denied

in part Plaintiff's Motion to Compel, and ordered "that Dr. Holdren
preserve

all

of

the

emails

in

his

Wood

Hole

email

account,

Dr. Holdren has since left the OSTP and rejoined Woods Hole as a
senior advisor to its president. See Dr. John Holdren Rejoins the
Woods Hole Research Center
(Feb.
24,
2017),
available at
http://whrc.org/dr-john-holdren-rejoins-the-woods-hole-researchcenter/.
1

-9-

·.
including any archived emails and any deleted email archives, on
a thumb drive to be kept in his possession until such a time that
this Court determines that they must be turned over to OSTP for
processing or that they may be deleted." December 12, 2016 Order
("Preservation Order")

[Dkt.

No.

31). The Court further ordered

that the Government not conduct any searches of the Woods Hole
emails at that time. Id.
On December 27,
Summary

Judgment.

Opposition.

2016

On

On January

the Government

January
18,

10,

2017,

2017,

filed

its Motion for

Plaintiff

Plaintiff

filed

a

filed

its

Notice of

Supplemental Authority. On January 19, 2017, the Government filed
its Reply. On January 26, 2017, Plaintiff filed a Motion for Leave
to File a Surreply [Dkt. No. 36) as well as its Surreply.
II.

STANDARD OF REVIEW

"FOIA

cases

typically

and

appropriately

are

decided

on

motions for summary judgment." Defs. of Wildlife v. U.S. Border
Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). Summary judgment should
be granted only if the moving party has shown that there is no
genuine dispute of material fact and that the moving party is
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v.
Dist. of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). "A fact is
-10-

material if it

'might affect the outcome of the suit under the

governing law,' and a dispute about a material fact is genuine 'if
the evidence is such that a reasonable jury could return
for the nonmoving party."' Steele v.
(D. C.

Cir.

2008)

Schafer,

(quoting Anderson v.

a verdict

535 F.3d 689,

Liberty Lobby,

Inc.,

692
477

U.S. 242, 248 (1986)).
"To prevail on summary judgment [against a FOIA challenge] ,
the defending 'agency must show beyond material doubt [ ] that it
has

conducted

a

search

reasonably

calculated

to

uncover

all

relevant documents."' Morley v. C.I.A., 508 F.3d 1108, 1114 (D.C.
Cir.

2007)

(quoting Weisberg v. U.S. Dep't of Justice,

705 F.2d

1344, 1351

(D.C. Cir. 1983)).

"Summary judgment may be based on

affidavit,

if the declaration sets forth sufficiently detailed

information 'for a court to determine if the search was adequate."'
Students Against Genocide v.

Dep't of State,

257 F.3d 828,

838

(D.C. Cir. 2001)

(quoting Nation Magazine v. U.S. Customs Serv.,

71 F.3d 885,

(D.C.

890

Cir.

1995)).

"In determining whether the

defendant agency has met this burden,

"the underlying facts and

the inferences to be drawn from them are construed in the light
most

favorable

Generation,
2007)

Inc.

to
v.

the

FOIA

F.E.R.C.,

requester."
520 F.

(internal citations omitted) .
-11-

Supp.

Reliant
2d 194,

Energy
200

Power
(D.D.C.

III. ANALYSIS

Our

Court

of

Appeals

assumed

without

deciding

that

the

documents sought from the Woods Hole account were agency records
for

the

purpose

of

reversing

this

documents were not improperly withheld.
F.3d

145.

The

Court

of

that

the

See generally CEI,

827

reach

the

Court's

finding

explicitly did not

Appeals

question of whether "no document found among the [e-mail]
email falls within the definition of 'agency records.'" CEI, 827
F. 3d at 150. An "agency employee's communications on non-agency
accounts may constitute

'agency records. '" Wright v. Admin.

for

Children & Families, No. CV 15-218, 2016 WL 5922293, at *8 (D.D.C.
Oct. 11, 2016).
However,
emails

are

regarding

this

Court need not determine if

agency

records

duplicate

because

records

and

the
its

the Woods Hole

Government's
reasonable

arguments

search

are

determinative.

A. Duplicate Emails Need Not Be Produced

The Government contends that it need not produce Dr. Holdren's
OSTP-related Woods

Hole emails

because

they are

duplicates of

emails that exist on OSTP servers. The Court finds this argument
convincing.
-12-

The

Government

convincingly

has

challenge,

established,
that

Dr.

and

Holdren

CEI

has

failed

complied with

to

agency

policy requiring him to forward all work-related emails from his
private email account to his OSTP email account. As evidence of
this practice, the Government cites a number of sources.
First, OSTP's General Counsel and Chief FOIA Officer submits
that it is his understanding that Dr. Holdren complied with the
agency's policy of copying all OSTP related emails from his Woods
Hole account to his OSTP account. See Leonard Deel. , , 15-17, 20.
On this basis, the Government submits that all of the OSTP-related
Woods Hole emails exist on the OSTP servers. See id.
Second, Dr. Holdren submitted a declaration attesting to his
compliance with OSTP policy on forwarding private server emails.
Dr. Holdren attested that "[t]hrougout my time at OSTP, whenever
I sent or received work-related e-mail on my WHRC e-mail address,
my customary practice was to forward that e-mail to my official email account at OSTP or to copy my official OSTP email account on
the correspondence." Holdren Deel. , 7.
Third,

the Government submits that OSTP policy requires all

employees to forward work-related correspondence on non-official
email accounts to their official OSTP accounts. Compl. ,

22. The

Government rightly points out that government employees, including
-13-

Dr. Holdren,

are entitled to the presumption that they complied

with agency policies, absent evidence to the contrary. See Bracy
v. Gramley, 520 U.S. 899, 909 (1997)

("Ordinarily, we presume that

public

discharged

officials

have

'properly

their

duties'")

(quoting U.S. v. Armstrong, 517 U.S. 456 (1996)); Stone v. Stone,
136 F.2d 761, 763 (D.C. Cir. 1943)

("In an action which challenges

the conduct of a public officer, a presumption of law is indulged
in his favor that his official duties were properly performed");
Wright,

2016

WL 5922293,

at

*8

("the presumption applies

agency employees comply with applicable law and,

that

consequently,

that agency records responsive to a FOIA request would unlikely be
located solely in their personal email accounts").
The presumption that Dr. Holdren complied with OSTP policy is
further

strengthened

by

evidence

submitted

by

the

Government

showing that Dr. Holdren complied with the policy on approximately
4,500 occasions. See Leonard Deel.

~

17. Courts are entitled to

rely on evidence of customary practice,
pattern

of

compliance

with

OSTP

policy,

such as Dr.
in

finding

Holdren' s
that

the

practice was followed on a particular occasion. See Fed. R. Evid.
406. Thus, the fact that Dr. Holdren forwarded work-related emails
from the Woods Hole account to his OSTP account on 4,500 occasions

-14-

makes it more likely than not that he forwarded any particular
work-related Woods Hole email to his OSTP account.
The presumption that Dr. Holdren complied with OSTP policy is
rebuttable.

However,

"a

FOIA

plaintiff

[must]

rebut

agency

affidavits with something more than pure speculation," and CEI has
failed to do so. 2 Nance v. FBI, 845 F. Supp. 2d 197, 203

(D.D.C.

1998).
CEI argues that Dr. Holdren did not always comply with OSTP
policy but that it was only his "customary practice." See Opp. at
14. However, Plaintiff neglects to quote the following sentence in
Dr. Holdren's declaration, which states that his "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." Holdren Deel. ,
7 (emphasis added). Plaintiff's creative exercise in semantics is

2

Plaintiff points out that in the Preservation Order of December
12, 2016, this Court stated that policies are rarely followed to
perfection by anyone," and that "at this stage of the case, this
Court cannot assume that each and every work-related email in the
Woods Hole account was duplicated in Dr. Holdren' s work email
account." December 12, 2016 Memorandum Opinion at 8 [Dkt. No. 31].
However, that Preservation Order was issued so as to preserve the
status quo while Plaintiff was given a chance to rebut the
presumption that Dr. Holdren followed agency policy with specific
information to the contrary. See Wright, 2016 WL 5922293 at *8.
Plaintiff has not done so.
-15-

insufficient to overcome the presumption of credibility to which
Dr. Holdren's declaration is entitled.
Furthermore,

Plaintiff

instance when Dr.
policy.

Instead,

has

Holdren did,

not

pointed

to

or even may have,

any

specific

violated OSTP

Plaintiff argues that Dr. Holdren may not have

forwarded all of his work-related Woods Hole emails to his OSTP
account because he cannot be relied upon to determine what is workrelated. Opp.
relied

upon

at 21-23. However,
to

determine

the

agency employees are routinely

responsive

nature

of

their

own

records. See Wadelton v. Dep't of State, 106 F. Supp. 3d 139, 148149 (D.D.C. 2015).
Having

determined

that

Dr.

Holdren

complied

with

OSTP's

policy of forwarding all his work-related emails from his private
email account to his OSTP accounts, the Court concludes that any
work-related

emails

in

Dr.

Holdren's

Woods

Hole

account

are

duplicates of emails located in his OSTP account. See Wright, 2016
WL 5922293 at *8.
FOIA does not require agencies to produce duplicate records.
See,

e.g.,

Jett v.

FBI,

139 F.

Supp.

3d 352,

365

(D.D.C.

2015)

("The statute is not a discovery tool that requires agencies to
produce

every

conceivable

copy

in

the

possession

of

every

governmental custodian."); Defs. of Wildlife v. Dep't of Interior,
-16-

314 F. Supp. 2d 1, 10 (D.D.C. 2004)

("[I] t would be illogical and

wasteful to require an agency to produce multiple copies of the
exact same document."); see also Crooker v. State Dep't, 628 F.2d
9,

11

(D.C.

Cir.

1980)

(per curiam)

("Where

the

records

have

already been furnished, it is abusive and a dissipation of agency
and court resources to make and process a second claim").
Therefore,

the Court concludes that the Government does not

need to produce Dr. Holdren's work-related Woods Hole emails as
they exist in his Woods Hole account,

3

but of course must produce

those copies of his emails existing in his OSTP account which it
finds appropriate to produce under FOIA. 4

The Government has argued that the privacy interests of
government employees in their personal emails justify the
withholding of the Woods Hole emails. The Court is not persuaded
by this argument. As the Court of Appeals noted, such a rationale
would permit "an agency [to] shield its records from search or
disclosure under FOIA by the expedient of storing them in a private
email account controlled by the agency head." CEI 827 F. 3d at
146.
3

4

The Court agrees with the Government that the metadata in the
Woods Hole emails does not in itself make each email unique as
compared to the forwarded reproduction of the email in Dr.
Holdren's OSTP account. See Covad Commc'ns Co. v. Revonet, Inc.,
267 F.R.D. 14, 20 (D.D.C. 2010) ("In the absence of some reason to
believe that the metadata will yield an answer that the hard copy
will not, production of the information in native format [] is not
necessary.")
(citing The Sedona Conference,
Best Practices,
Recommendations, & Principles for Addressing Electronic Document
Production # 12 (2004) ("Unless it is material to resolving the
-17-

B. OSTP Conducted a Reasonable Search

The Government also need not produce the Woods Hole emails
because

its

search was

"reasonably

calculated

to

uncover all

relevant documents." Ancient Coin Collectors Guild v. U.S. Dep't
of State,

641 F.3d 504,

514

Lucena v. U.S. Coast Guard,

(D.C. Cir.

2011)

180 F.3d 321, 325

(quoting Valencia(D.C. Cir. 1999))

(internal quotation marks omitted). "Agencies need not turn over
every stone, but they must conduct a 'good faith, reasonable search
of those systems of records likely to possess requested records.'"
Freedom Watch, Inc. v. Nat'l Sec. Agency, No. 1:12-CV-01088 (CRC),
2016 WL 7191558,

at *3

(D.D.C. Dec.

12,

2016)

(quoting SafeCard

Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991)). "[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 v.

U.S.

Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984).
As to Summary Judgment, an "agency must show that it made a
good faith effort to conduct a search for the requested records,
using methods

that

can be

reasonably expected

to produce

the

dispute, there is no obligation to preserve and produce metadata
absent agreement of the parties or order of the court.")).
-18-

information requested." Oglesby v. U.S. Dept. of Army,

920 F. 2d

57, 68 (D.C. Cir. 1990).
Here, the Government has done so. OSTP conducted a search for
OSTP-related emails sent to or from Dr. Holdren's Woods Hole email account by searching Dr. Holdren's OSTP account. Mot. at 33.
After receiving CEI's FOIA request in October 2013, OSTP requested
that EOP technical staff conduct a search of Dr. Holdren's OSTP email account for the search term "[e-mail]"
Hole e-mail address). Id.; Leonard Deel.

~

(the Woods

18. The search's date

range was from January 20, 2009 (the day prior to the beginning of
Dr. Holdren's employment at OSTP) to October 16, 2013 (the date of
the

FOIA

request)

Leonard

Deel.

~

18.

This

search

returned

approximately 4500 results. Id.
Plaintiff's challenge to the sufficiency of the Government's
search is limited to its complaint that the Government did not
search Dr.

Holdren' s

Wood Hole

account.

However,

as

described

above, this Court has no reason to doubt that Dr. Holdren complied
with OSTP's policy of forwarding all work-related emails from his
private Woods Hole email account to his OSTP account. Thus, "agency
records responsive to a
solely in

[Dr.

Holdren's]

FOIA request would unlikely be located
personal email account[],

-19-

rendering a

search of th[at]

accourit[]

unnecessary." Wright,

2016 WL 5922293

at *8.
The Court acknowledges that in Wright, the Plaintiff failed
to present any evidence that the government employees had ever
even used their personal email accounts for work related emails.
Wright, 2016 WL 5922293 at *7-8. Here, Dr. Holdren admittedly used
his

private

email

account

for

work

related

emails.

However,

Plaintiff has presented absolutely no concrete evidence that he
failed to forward any work-related Woods Hole email to his OSTP
account. Therefore the outcome here must be the same as in Wright.
The Court finds that the Government need not produce Dr. Holdren's
work-related Woods Hole emails because its search was reasonably
calculated to uncover duplicates of all of the records located in
the Woods Hole account.

IV.

CONCLUSION

For the

foregoing reasons,

Defendant's Motion for Summary

Judgment is granted; and it is further
ORDERED,

that the Government shall continue to produce Dr.

Holdren's work-related Woods Hole emails as
Holdren's OSTP email account; and it is further

-20-

they exist

in Dr.

ORDERED,

that Plaintiff's Motion for Leave to File a surreply

shall be granted.
An Order shall accompany this Memorandum Opinion.

G (µ;~/L~ .&,~

March 13, 2017

Gladys Ke ler
United States District Judge

Copies to: attorneys on record via ECF

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