UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
March 27, 2008
DEMOCRATIC NATIONAL COMMITTEE, PLAINTIFF,
UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT.
The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
The Democratic National Committee ("DNC") has sued the Department of Justice ("DOJ") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006), to obtain the release of certain communications concerning the appointment, terminations, or performance of any United States Attorney or United States Attorney's Office. Still in dispute are 68 pages of e-mails that are being withheld under FOIA Exemption 5. Each side has moved for summary judgment. For the reasons set forth below, the Court will sustain the defendant's nondisclosure of these documents.
This lawsuit has its origins in the broader controversy that arose over DOJ's dismissal of several United States Attorneys in 2005 and 2006. As part of its response to the Congressional investigation that ensued, the White House revealed that e-mail communications related to these dismissals had been sent to or from Republican National Committee ("RNC") e-mail accounts and had subsequently been lost. Sheryl Gay Stolberg, Missing E-mail May Be Related to Prosecutors, N.Y. Times, April 13, 2007, at A1. This disclosure became part of a separate Congressional investigation "into whether Karl Rove and other top aides to President Bush used the e-mail accounts maintained by the Republican National Committee to circumvent record-keeping requirements." Id.
Simultaneously with the disclosures relating to the dismissals of the United States Attorneys and the use by high-level White House officials of RNC-provided e-mail accounts, Governor Howard Dean, on behalf of the DNC, submitted a FOIA request on March 19, 2007, to the DOJ seeking documents from the Offices of the Attorney General, Deputy Attorney General, and Associate Attorney General relating to, inter alia, the appointment, performance, and dismissal of United States Attorneys.*fn1 (Def.'s Stmt. of Mat. Facts ["Def.'s Stmt."] ¶ 1.) The search was narrowed by consent of the plaintiff to records of current officials in OAG, ODAG, OAAG, and thirteen former officials in OAG and ODAG. (Id. ¶ 2.) DOJ's Office of Information and Privacy ("OIP") completed its search of those records on July 16, 2007, and identified 5,337 pages of e-mails, which were then analyzed for responsiveness, duplication, and the application of FOIA exemptions. (Def.'s Mot. 2.)
The parties have now reached agreement on all but 68 pages of e-mails. (Pl.'s Cross-Mot. 3.) Melanie Ann Pustay, Director of the OIP, has submitted a declaration and a Vaughn index, which plaintiff does not challenge, in which she explains that all of the requested e-mails were sent between officials in the White House and the Department of Justice and were sent to or from an e-mail address with the domain name "GWB43.com." (See Def.'s Ex. 1 [Pustay Declaration] ¶ 24; Def.'s Ex. K [Vaughn Index].)*fn2 The e-mails
pertain to matters such as responding to an upcoming Congressional hearing, formulating official responses to inquiries from outside the Executive Branch, suggesting a plan of action for the appointment of a U.S. Attorney or conferring on issues arising from such appointments, recommending revisions to documents, and planning for the hiring of new Department personnel.
(Def.'s Ex. 1 ¶ 29.) The requested documents also include several pages of e-mails between the White House and members of the Judicial Selection Committee, "a select group of presidential advisers which includes members of the Office of Counsel to the President and certain Justice Department Officials." (Id. ¶ 39.)*fn3 All of the requested e-mails have been withheld pursuant to FOIA Exemption 5.
Exemption 5 provides that FOIA "does not apply to matters that are . . . inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency . . . ." 5 U.S.C. § 552(b)(5). The government argues that this exemption applies to the requested e-mails because they are all communications between officials in the White House and DOJ that are protected from disclosure in litigation under the deliberative process privilege or the presidential communications privilege.*fn4 Plaintiff contends that Exemption 5 is inapplicable because these e-mails were sent to or from a GWB43.com e-mail address provided by the RNC.
Plaintiff's argument is as follows. In order to comply with the Hatch Act,*fn5 the RNC assigned GWB43.com e-mail accounts to certain White House staff members to enable them to engage in political communications while they were at work. (See Pl.'s Cross-Mot. 1.) As explained by White House Deputy Spokesperson Dana Perino, "White House business still need[ed] to be done on White House official accounts" and "political affairs business need[ed] to be done on . . . RNC account[s]." (Pl.'s Ex. 3 [Federal News Service, White House Regular Briefing (April 13, 2007)] at 5.) Because the RNC accounts were only "supposed" to be used for political communications (see Pl.'s Stmt. of Material Facts [Pl.'s Stmt.] ¶ 3), plaintiff urges the Court to presume that any communications that occurred through those accounts were necessarily "political," and therefore not part of the official duties of the government official who used that account. These "political" communications, according to plaintiff, are not protected by the presidential communications privilege because they are not related to "official government matters." See In re Sealed Case, 121 F.3d at 752 ("[T]he [presidential communications] privilege only applies to communications that these advisers and their staff author or solicit and receive in the course of performing their function of advising the President on official government matters.") Nor, plaintiff argues, can they be withheld under the deliberative process privilege because the White House officials using their RNC accounts "were not acting in a governmentally conferred capacity . . . ." Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 10 (2001) (citation omitted). Plaintiff's argument, however, crumbles because it is based on a fallacious foundation.
First, plaintiff's position is based on the false factual premise that White House officials only used their RNC e-mail accounts for political communications. While plaintiff is correct that RNC e-mail accounts were originally "supposed" to be used exclusively for political communications (see Pl.'s Ex. 3 at 5), it is clear from plaintiff's own exhibits that, in fact, this supposition did not become reality. A report prepared for the United States House of Representatives Committee on Oversight and Government Reform indicates that it was common for many of the 88 White House officials who received RNC e-mail accounts to use them for official government business. (See Pl.'s Ex 2 [Interim Report: Investigation of Possible Presidential Records Act Violations] at i ("These [RNC] email accounts were used by White House officials for official purposes, such as communicating with federal agencies about federal appointments and policies.").) For instance, Scott Jennings, a former White House official who was Karl Rove's deputy (id.), testified before the Senate Judiciary Committee that he used his RNC e-mail account for government business because he had access to it on his laptop and Blackberry. He explained that "over the course of time, it became efficient and crucial for [him] to be able to respond to communications in a 24/7 manner," and he "had access to [that account] 24 hours a day, 7 days a week, unlike [his White House] e-mail account." (Pl.'s Ex. 1 [Senate Judiciary Committee Testimony of Scott Jennings] at 6.) It is therefore clear that RNC e-mail accounts were used (rightly or wrongly) both for official and RNC business, and thus the nature of the server is not necessarily informative as to whether the document contained official or political communications.
While plaintiff appears to acknowledge that even though "[t]he RNC email accounts were supposed to be used by White House staff for political activity or political business, as distinct from official White House business . . . ." (Pl.'s Stmt. ¶ 3), this simply did not happen. Plaintiff nonetheless argues that it is "manifestly inappropriate to extend the presidential communications privilege to political emails" under FOIA in view of the White House's failure to preserve these records as required by the Presidential Records Act, 44 U.S.C. §§ 2201 et seq. (See Pl.'s Cross-Motion 7-9).*fn6 As found by the House Oversight and Governmental Reform Committee's Interim Report "it appears that the RNC has destroyed a large volume of the e-mails of White House officials who used RNC e-mail accounts . . . . [T]he RNC has retained no e-mail messages whatsoever for 51 of the 88 White House officials with RNC e-mail accounts." (Pl.'s Ex. 2 at 4-5.)
The report concluded:
The Committee has obtained evidence of potentially extensive violations of the Presidential Records Act by senior White House officials. During President Bush's first term, momentous decisions were made, such as the decision to go to war in Iraq. Yet many e-mail communications during this period involving the President's most senior advisors, including Karl Rove, were destroyed by the RNC. These violations could be the most serious breach of the Presidential Records Act in the 30-year history of the law.
(Pl.'s Ex. 2 at 9.)
Given this apparently flagrant violation of the Presidential Records Act, plaintiff contends the Court should not treat the requested e-mails as official presidential communications to which the presidential communications privilege applies under FOIA. (See Pl.'s Cross-Mot. 8-9 ("[T]he government cannot have it both ways. If e-mails sent or received by White House staff on RNC e-mail accounts were official communications of White House advisers . . . they should have been treated as presidential records and preserved as such. If such e-mails were properly subject to the RNC's own, private document retention policies . . .then clearly such e-mails cannot be treated as official presidential communications . . . ." ).) However, the administration's violation of the Presidential Records Act is, as plaintiff acknowleges (id. 8), not before this Court, and it cannot serve as a basis for determining whether the government has properly invoked Exemption 5. Moreover, plaintiff fails to point to any case law that would indicate that the server where an e-mail is housed is relevant to its treatment under FOIA. Rather, under D.C. Circuit precedent, it is the content, not the form, of the communication that determines whether it is properly exempt under Exemption 5. See, e.g., Klamath, 532 U.S. at 8 ("To qualify [under Exemption 5], a document must . . . satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.") Therefore, because the form of the document does not factor into the analysis under FOIA, the Court cannot adopt a per se rule that any e-mails sent on the RNC servers are not covered by FOIA.*fn7
In the absence of such a per se rule, the remainder of plaintiff's argument collapses. Plaintiff appears to accept the government's declaration that the e-mails were exchanged between officials in the White House and DOJ. Moreover, plaintiff does not contest Pustay's characterization of the content of the e-mails, nor does it argue that these documents could not properly be withheld had they been sent through official government e-mail accounts.*fn8 The government has therefore demonstrated that the requirements of Section 5 have been met and its motion for summary judgment must be granted.*fn9
For the reasons stated herein, the government's motion for summary judgment is GRANTED, plaintiff's cross-motion for summary judgment is DENIED, and the above-captioned case is dismissed with prejudice. An appropriate order accompanies this memorandum opinion.