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Competitive Enter. Inst. v. Office of Science and Technology Policy

United States District Court, D. Columbia.

March 3, 2015

Competitive Enterprise Institute, Plaintiff,
v.
Office of Science and Technology Policy, Defendant

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

For OFFICE OF SCIENCE AND TECHNOLOGY POLICY, Defendant: Daniel Schwei, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.

MEMORANDUM OPINION

Gladys Kessler, United States District Judge.

Plaintiff Competitive Enterprise Institute (" Plaintiff" or " CEI" ) brings this action against the Office of Science and Technology Policy (" Defendant," " OSTP," or " the Government" ), a component of the Executive Office of the President of the United States. Plaintiff alleges violations of the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, (Counts I & II), the Administrative Procedure Act (" APA" ), 5 U.S.C. § 704, et seq., (Count III), and the Federal Records Act (" FRA" ), 44 U.S.C. § § 2101-18, 2901-09, 3101-07, 3301-14, (Counts IV-VII).

This matter is presently before the Court on the Government's Motion to Dismiss, [Dkt. No. 7]. Upon consideration of the Motion, Opposition, [Dkt. No. 8], Reply, [Dkt. No. 10], and the entire record herein, and for the reasons stated below, Defendant's Motion is granted, and Plaintiff's Complaint shall be dismissed.

I. BACKGROUND

A. Statutory Framework

1. Freedom of Information Act

FOIA, 5 U.S.C. § 552, allows individuals to request the disclosure of records from government agencies. Id. § 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." Morley v. CIA, 508 F.3d 1108, 1114, 378 U.S.App.D.C. 411 (D.C. Cir. 2007) (internal quotation marks omitted). The agency must then disclose any responsive agency records it locates, except to the extent that any such records are protected from disclosure by one of FOIA's nine statutory exemptions. See 5 U.S.C. § 552(b).

If an agency withholds responsive records not covered by one of FOIA's exemptions, after exhausting administrative remedies, the requester may file a lawsuit in district court to challenge the agency's decision 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, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). " Judicial authority to devise remedies and enjoin agencies can only be invoked . . . if the agency has contravened all three components of this obligation." Id.

2. Federal Records Act

The FRA is " a collection of statutes governing the creation, management, and disposal of records by federal agencies." Pub. Citizen v. Carlin, 184 F.3d 900, 902, 337 U.S.App.D.C. 320 (D.C. Cir. 1999); accord 44 U.S.C. § § 2101-18, 2901-09, 3101-07, 3301-14. Under the FRA, agency heads are 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 U.S.C. § 3101. Not all 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. § 3301(a)(1)(A).

Agencies may only dispose of records on terms approved by the Archivist of the United States, who is head of the National Archives and Records Administration (" NARA" ). 44 U.S.C. § 3303; 36 C.F.R. § 1225.10. In order to efficiently manage the disposition process, agencies may create records schedules, which must be approved by the NARA, to govern recurring types of records. 44 U.S.C. § 3303(3); 36 C.F.R. § § 1225.10-1225.26. 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 head learns of " any actual, impending, or threatened unlawful removal, defacing, alteration, 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 [that records] have been unlawfully removed from [his or her] agency," then the agency head " with the assistance of the Archivist shall initiate action through the Attorney General for the recovery 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.

B. Factual Background[1]

On October 15, 2013, Plaintiff sent OSTP a FOIA request seeking " copies of all policy/OSTP-related emails sent to or from jholdren@whrc.org (including as cc: or bcc:)." CEI FOIA Request at 2. [Dkt. 7-1]; see also compl. ¶ ¶ 2-3, 26-28. The jholdren@whrc.org email account, provided to OSTP Director John Holdren (" Dr. Holdren" or " Director Holdren" ) is maintained by his former employer, a private entity called the Woods Hole Research Center. Compl. 52, 23. The request alleged that " John Holdren maintained this account after joining the White House, and that he used this address/account for OSTP-related correspondence." CEI FOIA Request at 2.

CEI clearly stated that its request would " entail[] searching jholdren@whrc.org." Id. According to CEI's request, while " [i]t [would] make[] sense for OSTP to search Mr. Holdren's OSTP account(s) [,] . . . this request [was] for responsive records on the cited account[,]" ...


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