United States District Court, District of Columbia
Kessler, United States District Judge
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 that the Government violated
the Freedom of Information Act ("FOIA"), 5 U.S.C.
§ 552, (Counts I & II), because it failed to produce
emails residing in a private email account belonging to Dr.
John P. Holdren, an Assistant to the President and Director
of OSTP. The email account was provided to Dr. Holdren by his
former employer, the Woods Hole Research Center ("Woods
Hole"), a private, non-governmental organization.
matter is presently before the Court on Defendant's
Motion for Summary Judgment ("Mot.") [Dkt. No. 32].
Upon consideration of the Motion, Opposition
("Opp.") [Dkt. No. 33], Supplemental Authority
[Dkt. No. 34], Reply ("Rep.") [Dkt. No. 35],
Surreply [Dkt. No. 36-1], and the entire record herein, and
for the reasons stated below, Defendant's Motion is
Freedom of Information Act
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." Morely v. CIA, 508 F.3d 1108, 1114
(D.C. Cir. 2007) (internal quotation marks omitted) . The
agency must then disclose any responsive agency records it
locates, with the exception of any records that are protected
from disclosure by one of FOIA's nine statutory
exemptions. See 5 U.S.C. § 552(b). Both paper
and electronic records may constitute "agency
records" under FOIA. See 5 U.S.C. § 552(f)
agency, after exhausting administrative remedies, withholds
responsive records not covered by one of FOIA's
exemptions, 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 (1980) .
Federal Records Act
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 (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.
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). The definition of "records" under
the FRA does not include "duplicate copies of records
preserved only for convenience." Id. §
3301(a) (1) (B) .
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.
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 *231 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.
November 2014, Congress Amended the FRA to address federal
employee's obligations when using non-official email
accounts to conduct government business. The amendment states
An officer or employee of an executive agency may not create
or send a record using a non-official electronic messaging
account unless such officer or employee (1) copies an
official electronic messaging account of the officer or
employee in the original creation or transmission of the
record; or (2) forwards a complete copy of the record to an
official electronic messaging account of the officer or
employee not later than 2 0 days after the original creation
or transmission of the record.
44 U.S.C. § 2911(a).
January 21, 2009, Dr. Holdren began working at OSTP. Holdren
Decl. ¶ 1 [Dkt. No. 26.1] . Previously, he worked as the
Director of Woods Hole from 2005 to 2008. Id. ¶
2. Woods Hole provided Dr. Holdren with a Woods Hole email
account in approximately June 2005. Id. ¶ 4.
Dr. Holdren used the Woods Hole account as a personal email
account until approximately January 2014. Id.
Occasionally, Dr. Holdren used this email account for OSTP
work-related correspondence. Id. ¶ 7.
Dr. Holdren received a work-related email on his Woods Hole
account, OSTP policy and Federal law required him to forward
the email to his official email account at OSTP or to copy
his official OSTP email account on the correspondence.
Id.; see 44 U.S.C. § 2911(a). The
Government and Dr. Holdren have both attested to Dr.
Holdren's compliance with this requirement. See
Leonard Decl. ¶¶ 15-16 [Dkt. No. 32-2]; Holdren
Decl. ¶ 7 [Dkt. No. 26-1] ("My understanding is
that my practice of copying or forwarding ...