COMPETITIVE ENTERPRISE INSTITUTE v. OFFICE OF SCIENCE AND TECHNOLOGY POLICY
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
OFFICE OF SCIENCE AND
Civil Action No. 14-765 (GK)
Plaintiff Competitive Enterprise Institute
"OSTP," or "the Government") ,
component of the Executive Off ice of the President of the United
States. Plaintiff alleges that the Government violated the Freedom
of Information Act
because it failed to produce emails residing in a private email
account belonging to Dr.
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.
is presently before
consideration of the Motion,
("Mot. " )
Court on Defendant's
35], Surreply [Dkt. No. 36-1], and the entire record herein, and
for the reasons stated below, Defendant's Motion is granted.
A. Statutory Framework
1. Freedom of Information Act
disclosure of records from government agencies.
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)
marks omitted) . The agency must then disclose any responsive agency
records it locates,
with the exception of any records that are
exemptions. See 5
of FOIA's nine
records may constitute "agency records" under FOIA. See 5 U.S.C.
552 (f) (2) (A).
exemptions, the requester may file a lawsuit in district court to
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)
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,
and disposal of records by federal agencies."
184 F.3d 900,
2101-18, 2901-09, 3101-07, 3301-14. Under the FRA, agency
adequate and proper documentation of the organization, functions,
policies, decisions, procedures, and essential transactions of the
"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
procedures, operations, or other activities of the Government or
because of the informational value in them." Id.
3301(a) (1) (A).
"duplicate copies of records preserved only for convenience." Id.
§ 3301 (a) (1) (B).
Agencies may only dispose of records on terms approved by the
Archives and Records Administration ("NARA"). 44 U.S.C.
1225.10. In order to efficiently manage the disposition
agencies may create
approved by the NARA,
which must be
to govern recurring types of records.
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.
deletion, erasure, or other destruction of records in the custody
of the agency," he or she must notify the Archivist. 44 U.S.C.
If the agency head "knows or has reason to believe
have been unlawfully removed from [his or her]
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
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
44 U.S.C. § 2911(a).
B. Factual Background
Holdren began working at
[Dkt. No. 26.1]. Previously, he worked as the
Director of Woods Hole from 2005 to 2008.
approximately June 2005. Id.
Dr. Holdren used the Woods Hole
account as a personal email account until approximately January
Id. Occasionally, Dr. Holdren used this email account for
OSTP work-related correspondence. Id.
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.
2911(a). The Government and Dr. Holdren have both attested
compliance with this
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,
informing CEI that "OSTP is unable to
requested because that account is under the control of the Woods Hole
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,
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.
Holdren' s OSTP
email account and will produce responsive records to you on a rolling
OSTP Letter of Mar.
produced the first
set of documents,
consisting of 110 pages,
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 email@example.com'
Our request covers OSTP-related documents regardless
of whether they are from an ostp.gov email account,
of whether they are found in Dr. Holdren's ostp.gov email account."
(emphasis in original). OSTP later responded to this letter on
responsive documents. See Leonard Deel.
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
on March 3,
Government's Motion to Dismiss based on the withholding argument,
without addressing the agency records argument. March 3, 2015 Order
On July 5,
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,
the Court of Appeals issued its Mandate
[Dkt. No. 15] and on September 19, 2016, this Court held a Status
preservation of Dr.
Holdren's emails in the Woods Hole account.
See Sept. 19, 2016 Tr. at 3 [Dkt. No. 18]. Specifically, CEI stated
the Woods Hole emails would not be
preserved if Dr. Holden, a political appointee, left his position
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,
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,
the Court ordered that Summary Judgment briefing would not
occur until after the Court decided the preservation issue.
Preservation of Private Emails [Dkt. No. 24). On October 31, 2016,
the Government filed its Opposition to the Motion to Compel [Dkt.
26). On November 10,
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
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
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
31). The Court further ordered
that the Government not conduct any searches of the Woods Hole
emails at that time. Id.
On December 27,
its Motion for
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.
STANDARD OF REVIEW
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
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.
(quoting Anderson v.
535 F.3d 689,
U.S. 242, 248 (1986)).
"To prevail on summary judgment [against a FOIA challenge] ,
the defending 'agency must show beyond material doubt [ ] that it
relevant documents."' Morley v. C.I.A., 508 F.3d 1108, 1114 (D.C.
(quoting Weisberg v. U.S. Dep't of Justice,
(D.C. Cir. 1983)).
"Summary judgment may be based on
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,
(D.C. Cir. 2001)
(quoting Nation Magazine v. U.S. Customs Serv.,
71 F.3d 885,
"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
(internal citations omitted) .
documents sought from the Woods Hole account were agency records
documents were not improperly withheld.
See generally CEI,
explicitly did not
question of whether "no document found among the firstname.lastname@example.org
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.
Children & Families, No. CV 15-218, 2016 WL 5922293, at *8 (D.D.C.
Oct. 11, 2016).
Court need not determine if
the Woods Hole
A. Duplicate Emails Need Not Be Produced
The Government contends that it need not produce Dr. Holdren's
emails that exist on OSTP servers. The Court finds this argument
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.
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. ,
Government rightly points out that government employees, including
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
(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");
("the presumption applies
agency employees comply with applicable law and,
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
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,
such as Dr.
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
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
affidavits with something more than pure speculation," and CEI has
failed to do so. 2 Nance v. FBI, 845 F. Supp. 2d 197, 203
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
endeavored to follow that practice at all times." Holdren Deel. ,
7 (emphasis added). Plaintiff's creative exercise in semantics is
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.
insufficient to overcome the presumption of credibility to which
Dr. Holdren's declaration is entitled.
instance when Dr.
or even may have,
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.
at 21-23. However,
agency employees are routinely
records. See Wadelton v. Dep't of State, 106 F. Supp. 3d 139, 148149 (D.D.C. 2015).
policy of forwarding all his work-related emails from his private
email account to his OSTP accounts, the Court concludes that any
duplicates of emails located in his OSTP account. See Wright, 2016
WL 5922293 at *8.
FOIA does not require agencies to produce duplicate records.
("The statute is not a discovery tool that requires agencies to
governmental custodian."); Defs. of Wildlife v. Dep't of Interior,
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
already been furnished, it is abusive and a dissipation of agency
and court resources to make and process a second claim").
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,
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
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
(citing The Sedona Conference,
Recommendations, & Principles for Addressing Electronic Document
Production # 12 (2004) ("Unless it is material to resolving the
B. OSTP Conducted a Reasonable Search
The Government also need not produce the Woods Hole emails
relevant documents." Ancient Coin Collectors Guild v. U.S. Dep't
641 F.3d 504,
Lucena v. U.S. Coast Guard,
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,
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."
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,
dispute, there is no obligation to preserve and produce metadata
absent agreement of the parties or order of the court.")).
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 "email@example.com"
Hole e-mail address). Id.; Leonard Deel.
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
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
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
FOIA request would unlikely be located
personal email account,
search of th[at]
2016 WL 5922293
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
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.
Defendant's Motion for Summary
Judgment is granted; and it is further
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
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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