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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,
Office of Science and Technology Policy, Defendant




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.


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 (including as cc: or bcc:)." CEI FOIA Request at 2. [Dkt. 7-1]; see also compl. ¶ ¶ 2-3, 26-28. The 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" 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[,]" id., i.e.,, not his OSTP account(s).

On February 4, 2014, Defendant responded to CEI's request stating that " OSTP [would be] unable to search the '' account . . . because that account [was] under the control of the Woods Hole Research Center, a private organization." Compl. ¶ 29 (quoting OSTP's Response to FOIA Request [Dkt. 7-2]). OSTP stated that it " underst[ood] the records [CEI] requested to be beyond the reach of FOIA," and therefore, " consider[ed] [the] request unperfected." Id.

On February 18, 2014, CEI replied to OSTP's letter. Plaintiff requested administrative appellate review of the agency's initial determination that the records sought were outside of FOIA's ambit. Compl. ¶ 30.

On March 7, 2014,[2] OSTP responded to CEI's letter of February 18. Compl. ¶ 32. In OSTP's view, CEI's letter did not serve as an appeal; instead, it merely " clarif[ied] that [CEI was] requesting a search of Dr. Holdren's OSTP email account for records to and from" Id.

On April 18, 2014, CEI responded, calling OSTP's reading a mischaracterization and reiterating its desire for the agency to search for all OSTP-related emails sent to or from Compl. ¶ 33; CEI's April Response [Dkt. No. 7-5]. CEI noted that, in its view, the agency had failed to respond to CEI's appeal and that CEI would pursue judicial review unless OSTP provided a substantive response by May 1, 2014. Compl. ¶ 33.

On May 5, 2014, CEI filed its Complaint; on July 11, 2014, OSTP filed its Motion to Dismiss; on July 28, 20.14, CEI filed its Opposition; and on August 21, 2014 OSTP filed its Reply.


In order to survive a motion to dismiss under Rule 12(b) (6), a plaintiff' need only plead " enough facts to state a claim to relief that is plausible on its face" and to " nudge[ ] [his or her] claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " [O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 563.

Under the Twombly standard, a " court deciding a motion to dismiss must not make any judgment about the probability of the plaintiffs' success . . . [,] must assume all the allegations in the complaint are true (even if doubtful in fact) . . . [, and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17, 381 U.S.App.D.C. 76 (D.C. Cir. 2008) (internal quotation marks and citations omitted). A complaint will not suffice, however, if it " tenders 'naked assertion [s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557) (alteration in Iqbal).


A. Counts I & II: FOIA Claims Seeking an Injunction and a Declaratory Judgment

Counts I and II of CEI's Complaint arise under FOIA, which allows private persons to contest an agency's (1) improper (2) withholding of (3) agency records. Kissinger, 445 U.S. at 150.

Plaintiff has been exceedingly clear about what it wanted from OSTP: work-related emails residing on Dr. Holdren's unofficial email account,, which is maintained by a private entity, the Woods Hole Research Center. See CEI FOIA Request at 2 (" This [request] entails searching It makes sense for OSTP to search Mr. Holdren's OSTP account(s) . . . but this request is for responsive records on the cited account." ); Compl. ¶ 26 (" Plaintiff's FOIA request to OSTP . . . sought specifically described records sent to, from or copied to a specific non-official email address[.]" ).[3]

Relying on Kissinger, 445 U.S. at 139, the Government contends that it is not " withholding" the requested emails because it neither possesses nor controls them.[4] In Kissinger, the Supreme Court held that FOIA's " withholding" requirement demonstrates that an agency's " possession or control is a prerequisite to FOIA disclosure duties[.]" Id. at 152. Thus, FOIA did not reach transcriptions of Henry Kissinger's phone calls once the transcriptions had been removed from the State Department's possession and placed under the control of Mr. Kissinger and the Library of Congress. Kissinger, 445 U.S. at 154-55.

Plaintiff's own allegations, which the Court must accept as true at this stage, belie any argument that OSTP has control over emails located on the account. Plaintiff itself admits repeatedly that emails on the unofficial account are outside of OSTP's control. Compl. ¶ ¶ 23, 27, 30, 46. The Complaint specifically alleges that when an agency employee uses an email account " under the control of, a third party . . . in this case, the Woods Hole Research Center," the emails are " solely under the control of private parties and generally unknown to and inaccessible by the federal government[.]" Compl. ¶ 23. Plaintiff cannot now disregard its own allegations.

CEI attempts to resuscitate its claim with the argument that because (1) Dr. Holdren maintains control over and (2) Dr. Holdren is OSTP's Director, OSTP controls the unofficial email account. Even putting aside this argument's fundamental conflict with CEI's allegations, it has no legal basis.

The law is clear, however, that agencies do not -- merely by way of the employer/employee relationship -- gain " control" over their employees' personal email accounts.[5] Competitive Enterprise Institute v. National Aeronautics and Space Admin., 989 F.Supp.2d 74, 86 (D.D.C. 2013) (holding that NASA employee's emails located on university account were not under the agency's control); see also U.S. Gov't Accountability Office, GAO-08-742, FEDERAL RECORDS: National Archives and Selected Agencies Need to Strengthen E-Mail Management (2008)[6] (" Agencies are also required to address the use of external email systems that are not controlled by the agency (such' as private email accounts on commercial systems such as Gmail, Hotmail, Mac, etc.)" ).[7] That is precisely why agencies admonish their employees to use their official accounts for government business (and discipline employees who repeatedly fail to do so). See id.; Armstrong v. Bush, 924 F.2d 282, 296 n.12, 288 U.S.App.D.C. 38 (describing options available to agency officials to prevent and remedy the unlawful removal of agency records by employees); see also Compl. ¶ 42.

Under FOIA, even high ranking agency officials have personal interests distinct from those of the agencies they lead. See e.g., Kissinger, 445 U.S. at 157. (rejecting argument that would render " Kissinger's personal books, speeches, and all other memorabilia stored in his office . . . agency records subject to disclosure under [] FOIA." ); Bureau of Nat'l Affairs, Inc. v. Dep't of Justice, 742 F.2d 1484, 1496, 239 U.S.App.D.C. 331 (D.C. Cir. 1984) (holding that appointment calendars for DOJ Assistant Attorney General were not subject to FOIA because they " were created for the personal convenience of individual officials so that they could organize both their personal and business appointments." ). CEI fails to cite any authority supporting the proposition that simply because Dr. Holdren heads the OSTP, his unofficial email account falls under the agency's control.

Finally, CEI worries that if government employees' personal email accounts are not subject to FOIA, agency officials will escape FOIA coverage altogether by conducting government business with their personal accounts. CEI's reliance on FOIA to solve this anticipated problem is misplaced: " Congress never intended when it enacted [] FOIA, to displace the statutory scheme embodied in the Federal Records Act and the Federal Records Disposal Act providing for administrative remedies to safeguard against wrongful removal of agency records as well as to retrieve wrongfully removed records." Kissinger, 445 U.S. at 154; accord Armstrong, 924 F.2d at 294 (In post-Kissinger amendments to the. FRA " Congress again decided to rely on administrative enforcement, rather than judicial review at the behest of private litigants to prevent the destruction or removal of records." ). Accordingly, Counts I & II of Plaintiff's Complaint shall be dismissed.

B. Count III: APA Claim Seeking Review of Agency's Failure to Take Action on FOIA Request

Count III of the Complaint seeks relief under the APA for OSTP's failure to take action with respect to CEI's FOIA request. The Government contends that the APA permits judicial review only when " there is no other adequate remedy in a court[.]" Gov't's Mot. at 24 (quoting 5 U.S.C. § 704). Because FOIA provides its own remedial scheme, " [t]his Court and others have uniformly declined jurisdiction over APA claims that sought remedies made available by FOIA." Feinman v. F.B.I., 713 F.Supp.2d 70, 76 (D.D.C. 2010). For this reason, and because CEI failed to respond to the Government's arguments in its Opposition, Count III shall be dismissed.

C. Counts IV and V: FRA Claims Seeking a Declaratory Judgment and an Injunction Ordering OSTP to Preserve and Prevent the Destruction of Documents

Count IV seeks a declaratory judgment that, under the RFA, OSTP has a duty to acquire, preserve, and prevent the destruction of work-related email sent or received on non-official accounts, and Count V seeks an injunction to enforce this duty. Under the FRA, however, private parties may challenge only (1) the adequacy of an agency's record-keeping guidelines; or (2) the agency head or Archivist's failure to seek initiation of an enforcement action by the Attorney General. Armstrong, 924 F.2d at 291-93, 295. Private plaintiffs may not challenge an agency's compliance with its guidelines. Id. at 294.

As CEI's Complaint acknowledges, OSTP's records retention policies are facially adequate. Compl. ¶ 54 (" OSTP policy is also clear on this issue. After being informed that an OSTP employee was using non-official email for official business, Director Holdren affirmed the law and policy in equally clear terms, reminding OSTP staff in the Holdren memo that work-related email must be copied to the agency [.]" ); id. ¶ 30 (" [T]he Federal Records Act, OSTP policy and the 'Holdren memo' all mak[e] plain that employees cannot exempt records from the law by keeping them from the control of others in their agency." ).

Attempting to evade the FRA's preclusion of compliance claims, CEI argues that its Complaint " describes the Holdren memo to illustrate what OSTP once admitted its policy should be, not as evidence of what its policy (and practice) in fact is." Pl.'s Opp'n at 26-27 (emphasis in original). The allegations in CEI's Complaint, however, fail to show that OSTP has " repudiated the Holdren Memo" as CEI now argues. Id. at 27.

Instead the Complaint provides an example of Director Holdren following what CEI believes to be an acceptable records retention policy, namely issuance of his memo to all employees. Compl. ¶ 54. On the basis of vague allegations, without citing any specifics, CEI bases its argument that OSTP's policy (as practiced) is inadequate and that it has engaged in a " pattern, practice, and ongoing policy of failing to acquire, and not preserving, work-related email sent to or from non-official email accounts [.] " Compl. ¶ 92. However, this allegation is no more than a " legal conclusion couched as a factual allegation[,]" and is accordingly, " not entitled to the assumption of truth." Ashcroft, 556 U.S. at 678-79. For these reasons Counts IV and V shall be dismissed.

D. Count VI: Writ of Mandamus

Count VI of the Compliant seeks a writ of mandamus ordering the Director of OSTP to " prohibit the practice of using non-official email accounts for work-related correspondence" and " to preserve and provide" the documents Plaintiff Seeks. Compl. ¶ 110. The " remedy of mandamus is a drastic one, to be invoked only in extraordinary circumstances. Mandamus is available only if: (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff." Power v. Barnhart, 292 F.3d 781, 784, 352 U.S.App.D.C. 77 (D.C. Cir. 2002) (internal citations and quotation marks omitted).

The Government argues that CEI's request for a writ of mandamus is duplicative of Plaintiff's FRA claims and that the request is faulty because: (1) the FRA precludes judicial review of agency compliance with record-retention guidelines, and therefore Plaintiff has no clear right to relief; (2) OSTP has no clear duty to act because agencies have discretion under the FRA; and (3) to the extent that Plaintiff has any right to relief, the availability of APA review of an agency's failure to notify the National Archivist of unlawful record removals is enough to preclude mandamus. CEI failed to respond to any of these arguments in its Opposition, and therefore, Count VI shall be dismissed.

E. Count VII: FRA Claim Seeking an Injunction Requiring OSTP's Director to Notify National Archivist of Removal of Federal Records

Count VII seeks an order directing the head of the OSTP to " notify the Archivist of the United States, and initiate actions through the Attorney General regarding the removal of federal records permitted by the Administrator [sic] and to assist the Attorney General in initiating an enforcement action to recover those records." Compl. ¶ 122. Unlike CEI's other FRA claims, Count VII is not barred by the Act itself. Armstrong, 924 F.2d at 296 (" [I]f the agency head or Archivist does nothing while an agency official destroys or removes records in contravention of agency guidelines and directives, private litigants may bring suit to require the agency head and Archivist to fulfill their statutory duty to notify Congress and ask the Attorney General to initiate legal action." ).

In order to state a claim, CEI must plausibly allege that records have been unlawfully " removed" from OSTP. Id. The parties do not dispute that although a record may reside on an unofficial email account, it has not been " removed" for purposes of the FRA as long as a copy also exists on an official account.[8] Thus, in order to state a claim, CEI must plausibly allege that Dr. Holdren failed to copy his official account with any agency records residing on his unofficial account.

The Complaint never directly alleges that Dr. Holdren failed to place copies of agency records on his official account. Instead -- quite tellingly -- Plaintiff merely states that OSTP's response to the FOIA request shows that contains records not copied to OSTP's files. In Plaintiff's view, " OSTP asserted that plaintiff's request was not in fact a FOIA request because it sought emails Holdren had placed under his sole control, in contravention of the Federal Records Act[.]'" Compl. ¶ 55 (emphasis added)); see also Compl. ¶ 113. Rather than state a factual basis for its allegation that Dr. Holdren unlawfully removed agency records, CEI simply point's to OSTP's response to CEI's FOIA request.[9]

However, OSTP's response, which is quoted in the Complaint, does not assert that " Holdren had placed [agency records] under his sole control [.] " Compl. ¶ 55. To the contrary, the agency responded, " OSTP is unable to search the '' account for the records you have requested because that account is under the control of the Woods Hole Research Center, a private organization." Compl. ¶ 55 (quoting Denial Letter, OSTP FOIA No. 14-02, February 4, 2014).

CEI would have the Court interpret OSTP's refusal to search Dr. Holdren's unofficial account to be an admission that uncopied agency records reside there. That does not suffice to state a claim. CEI must affirmatively allege facts that make plausible the claim that documents have been " removed" from OSTP. It has failed to do so,[10] and therefore Count VII shall be dismissed.


For the foregoing reasons, Defendant's Motion to Dismiss is granted, and Plaintiff's Complaint shall be dismissed. An Order shall accompany this Memorandum Opinion.


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 in the accompanying Memorandum Opinion, it is hereby

ORDERED, that Defendant's Motion to Dismiss [Dkt. No. 7] shall be granted, and Plaintiff's Complaint shall be dismissed.

This is a final, appealable Order.

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