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Competitive Enterprise Institute v. Office of Science and Technology Policy

United States District Court, District of Columbia

March 13, 2017

COMPETITIVE ENTERPRISE INSTITUTE, Plaintiff,
v.
OFFICE OF SCIENCE AND TECHNOLOGY POLICY Defendant.

          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 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.

         This 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 granted.

         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." 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) (2) (A).

         If an 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) .

         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 (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). The definition of "records" under the FRA does not include "duplicate copies of records preserved only for convenience." Id. § 3301(a) (1) (B) .

         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 *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.

         In 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 that,

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).

         B. Factual Background

         On 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.

         When 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 ...


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