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Competitive Enterprise Institute v. U.S. Environmental Protection Agency

United States District Court, D. Columbia.

September 4, 2014

COMPETITIVE ENTERPRISE INSTITUTE, Plaintiff,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant

Page 24

For COMPETITIVE ENTERPRISE INSTITUTE, Plaintiff: Hans Frank Bader, COMPETITIVE ENTERPRISE INSTITUTE, Washington, DC.

For UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant: Daniel Schwei, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC; Marina Utgoff Braswell, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

OPINION

ROSEMARY M. COLLYER, United States District Judge.

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Administrators of the Environmental Protection Agency have made prolific use of government-issued smart phones to send thousands of text messages. Based on its knowledge of this practice, Competitive Enterprise Institute submitted two requests under the Freedom of Information Act for certain officials' text messages, on the assumption that some of those messages would contain substantive agency communications. The Agency responded that it identified no records responsive to these requests because the text messages were not " records" that the Agency was required to retain under the Federal Records Act. Competitive Enterprise Institute challenges that determination and the Environmental Protection Agency moves to dismiss for failure to state a claim. For the reasons set forth below, the Court will grant in part and deny in part the Agency's motion.

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I. FACTS

Competitive Enterprise Institute (CEI) is an educational and public policy research institute in Washington, D.C., which is focused, in part, on the development of economically sustainable environmental policy. Am. Compl. [Dkt. 18] ¶ 14. Because of this focus, CEI is particularly interested in policy initiatives that are considered or approved by the Environmental Protection Agency (EPA), and it regularly seeks public records related to the EPA's development of environmental policy. To access this information, " CEI regularly files, and will continue to file" disclosure requests with EPA under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Id.

CEI challenges EPA's alleged practice of routinely destroying agency text messages as violative of the Federal Records Act (FRA), 44 U.S.C. § § 2101 et seq. The Court will first describe the statutory framework established under FRA, and then review the specific allegations involved in this case.

A. Federal Records Act

Congress has enacted various statutory provisions, collectively known as the Federal Records Act, to ensure the accurate and complete documentation of federal records and to encourage efficient records management practices amongst federal agencies.[1] See 44 U.S.C. § 2902. To effectuate these purposes, FRA requires " [t]he head of each Federal agency [to] make and preserve records containing . . . documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency . . . ." Id. § 3101. Agency heads also are required to establish and maintain an active records management program, id. § 3102, and to establish safeguards against the destruction of records that the agency head determines should be preserved, id. § 3105.

FRA establishes specific tasks for the National Archivist in the records retention process. First, the statute requires the Archivist to provide guidance and assistance to federal agencies to ensure adequate and proper documentation of the policies and transactions of the federal government. Id. § 2904(a). The Archivist is further directed to " promulgate standards, procedures, and guidelines with respect to records management," id. § 2904(c)(1), and to " conduct inspections or surveys of the records and the records management programs and practices within and between Federal agencies," id. § 2904(c)(7).

Because FRA is primarily directed at the preservation of federal records, the crux of the statute lies in its disposal provisions. Specifically, the statute limits an agency's ability to unilaterally dispose of " records," which are defined as:

[A]ll books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government 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

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Government or because of the informational value of data in them.

Id. § 3301.

A document that qualifies as a federal record may not be discarded except as provided by statute. Both the Archivist and agency heads participate in the initial decision to preserve or remove a federal record. See id. § 3314 (providing that no federal record may be " alienated or destroyed" except as provided under the disposal provisions of FRA). Pursuant to this process, an agency typically submits a list of records to the Archivist that the agency proposes to discard. Id. § 3303. If the Archivist agrees that the records lack " sufficient administrative, legal, research, or other value to warrant their continued preservation," id. § 3303a, the Archivist may authorize the disposal of records after providing an opportunity for notice and comment. Upon the Archivist's final approval, the agency is thereafter permitted to dispose of the records.

However, FRA and regulations promulgated thereunder also provide for the recurring disposal of certain categories of records. For instance, the head of an agency may submit to the Archivist " schedules proposing the disposal after the lapse of specified periods of time of records . . . that . . . have accumulated in the custody of the agency or may accumulate after the submission of the schedules and apparently will not . . . have sufficient administrative, legal, research, or other value to warrant their further preservation by the Government." Id. § 3303(3). Accordingly, federal records either are classified as permanent records, which must be transferred to the National Archives and Records Administration (NARA) for preservation, or temporary records, which may be destroyed after a specified period of time. See 36 C.F.R. § § 1225.14, 1225.16.

In addition, Congress has established a detailed enforcement scheme to remedy violations of FRA. The statute imposes notification requirements on the heads of agencies and the Archivist,[2] and sets forth corrective action to be taken if there is any unlawful destruction of federal records. The head of an agency

shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency of which [she] is the head that shall come to [her] attention, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records [she] knows or has reason to believe have been unlawfully removed from [her] agency, or from another Federal agency whose records have been transferred to [her] legal custody.

Id. § 3106. If the agency head does not initiate an action within a reasonable time after being notified of the unlawful destruction of federal records, " 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. " Notably, the FRA specifies only these enforcement roles and does not provide an express cause of action for private litigants to redress the unlawful removal of agency records." Citizens for Responsibility & Ethics in Wash. v. Dep't of Homeland Sec.,

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527 F.Supp.2d 101, 109 ...


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