United States District Court, District of Columbia
Landmark Legal Foundation ("Landmark") is a
non-profit law firm whose mission includes dissemination of
information obtained through public records requests about
governmental agencies' and public officials'
activities. In this Freedom of Information Act
("FOIA") action, Landmark seeks documents related
to public officials' use of private or alias email
accounts to conduct government business from two divisions of
the Department of Justice ("DOJ"): the Office of
Information Policy ("OIP") and the Civil Rights
Division. Defendant has filed a partial motion to dismiss
Count I of the complaint, seeking personal email records, as
to both OIP and Civil Rights, and Count II of the complaint,
seeking alias email records, as to Civil Rights. Because
Plaintiff failed to adequately describe the records sought
under Count I, and failed to administratively exhaust the
alias email request as to the Civil Rights division under
Count II, the court will GRANT Defendant's motion and
dismiss Count I against both divisions and Count II against
24, 2013 Plaintiff submitted two FOIA requests, the
"Personal Email FOIA Request" and the "Alias
Email FOIA Request, " to the Department of Justice.
(Compl. ¶ 6, ECF No. 1). The "Personal Email FOIA
Request, " addressed to both the OIP's Chief of
Staff and the Civil Rights Division's Chief of the
FOIA/PA Branch, requested:
Records evincing the use of any private or personal email
account, text messaging service, instant messaging service,
or any other private electronic communication, included but
not limited to those sent via any social media service such
as Facebook, Google Plus or other private platform, for the
conduct of Department business from January 20, 2009 to July
(Compl. Ex. 1 (emphasis in original)). Plaintiff indicated
that its request was limited to the records of political
appointees, individuals serving in the Senior Executive
Service, individuals in the Office of the Attorney General
and Office of the Deputy Attorney General, and in the Civil
Rights Division. (Id.). The "Alias Email FOIA
Request, " similarly addressed to both OIP Chief of
Staff and the Civil Rights FOIA/PA Branch, requested records
from January 1, 2009, to July
relating to . . . records evincing the establishment and
maintenance of any and all email addresses for all political
appointees[, ] . . . officials designated Senior Executive
Service[, ] . . . officials who currently serve or have
served in the Office of the Attorney General[, ] . . .
officials who currently serve or have served in the Office of
the Deputy Attorney General[, and] . . . officials who
currently serve or have served in the Civil Rights Division .
6 . . . records including spreadsheets, memoranda, or other
records providing a list, chart or other compilation of email
addresses created for or by, assigned to and/or used by any
political appointee or SES employee at the Department. . .
7 . . . records evincing that Department employees have
provided counsel, advice or instruction to any person that
Department employees not use their own names for their
official Department email addresses.
(Compl. Ex. 2 (emphasis in original)).
The Personal Email Request
Personal Email Request received three different case numbers,
one for each office from which Plaintiff sought records-the
Office of the Attorney General, the Office of the Deputy
Attorney General, and Civil Rights. OIP, on behalf of the
Attorney General and Deputy Attorney General, discussed the
request over the phone with Plaintiff, who agreed to narrow
the scope of its request. (Compl. ¶ 16); (Def. Partial
Mot. to Dismiss 4, ECF No. 6). OIP sent a follow-up letter on
February 27, 2014, confirming that Plaintiff "wished to
receive records in which personal e-mail accounts were
exclusively used to conduct Department of Justice business
with other offices or agencies in the government, " but
did not wish to "receiv[e] e-mails that had been
forwarded by an OAG or ODAG official between their Department
of Justice account and their personal e-mail account, or . .
. e-mails to or from a personal e-mail account when the
Department of Justice account is copied, or
'cc'd.'" (Def. Partial Mot. to Dismiss Ex.
3). Given that request, the OIP wrote, "we are unable to
conduct a search ... for the records you are seeking. Any
search . . . would locate only e-mails that were forwarded or
copied to/from a Department e-mail account, and you have
indicated that you are not interested in such material."
appealed the response, arguing that the February 27 letter
"misapprehended the scope of records to which the
Request was directed, " and that Defendant had
"wrongfully refused to instruct covered employees to
search private repositories for responsive records."
(Compl. ¶ 25). OIP denied the appeal with respect to
both the Attorney General and Deputy Attorney General,
explaining that it was affirming the initial finding that
Plaintiff "did not seek agency records that can be
located within a records system of the agency." (Def.
Partial Mot. to Dismiss Exs. 10, 11). OIP based its reasoning
on the fact that there was no specific reason to believe that
agency staff were using personal email to conduct Department
business, as well as the fact that personal email records not
referenced in the Department email system do not constitute
agency records that could be located by a Department search.
Rights responded separately to the Personal Email Request. It
determined that the records sought were not "agency
records" under FOIA and therefore the request was not a
valid FOIA request. (Def. Partial Mot. to Dismiss Ex. 2).
Plaintiff appealed, arguing that "the Department failed
to conduct a search reasonably calculated to uncover all
responsive records." (Def. Partial Mot. to Dismiss Ex.
4, at 2). Plaintiff contended that Defendant should direct
Civil Rights personnel covered by its FOIA request to search
their personal emails and text messages for agency records.
(Id. at 2-3). First, Plaintiff argued,
Defendant's refusal to search at all was "based on a
disingenuous and improper reading of Supreme Court precedent
defining "agency records." (Id. at 6).
Plaintiff noted that "DOJ has not provided any details
regarding the search it performed for records evincing the
use of personal emails" and "also failed to provide
the search terms that it utilized in determining that no
records exist." (Id. at 7). Plaintiff concluded
that a proper FOIA search by DOJ would involve asking the
covered personnel whether they used personal email to conduct
official business, and then, for those who responded
affirmatively, requiring them to search their personal
accounts for any responsive records. (Id.).
responded by remanding the request to Civil Rights. (Def.
Partial Mot. to Dismiss Ex. 5). On remand, Civil Rights
indicated that "[a]ny search conducted by this office
could possibly locate only emails that were forwarded or
copied to/from a Department email account, and you have
indicated that you are not interested in such material."
(Def. Partial Mot. to Dismiss Ex. 6, at 2). It noted,
however, that it had a collection of then-Assistant Attorney
General Thomas Perez's emails for a six-month period
between January and May 2013; Perez had volunteered to
collect those emails in relation to a different inquiry.
(Id.). Civil Rights provided Plaintiff with 64 pages
of documents from Perez's email, with information it
considered to be attorney work product and pre-decisional
deliberative material and information that would constitute
an unwarranted invasion of personal privacy redacted.
(Id.). Plaintiff appealed again, arguing that
"DOJ wrongfully refused to instruct covered employees to
search private repositories for responsive records, despite
acknowledging their use, " and that "DOJ
misunderstood or otherwise mischaracterized the scope of
records to which this FOIA request is directed." (Def.
Partial Mot. to Dismiss Ex. 7). OIP again affirmed, finding
that Civil Rights had performed an "adequate,
reasonable" search, that Civil Rights had properly
searched Perez's personal emails after becoming aware
that he had used personal emails, and that "[t]o the
extent" the request was that "the Civil Rights
Division . . . search any and all email accounts of Civil
Rights Division personnel for any evidence that any employee
used personal email to conduct ...