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Landmark Legal Foundation v. Department of Labor

United States District Court, District of Columbia

August 16, 2017

LANDMARK LEGAL FOUNDATION, Plaintiff,
v.
DEPARTMENT OF LABOR, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON, UNITED STATES DISTRICT JUDGE.

         The plaintiff, Landmark Legal Foundation (“Landmark”), filed this civil case, alleging that the defendant, the United States Department of Labor (the “Department”), violated the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012), by “fail[ing] to promptly make available the records sought by [its two] FOIA requests.” Complaint (“Compl.”) ¶ 25. Currently before the Court are the Defendant's Motion for Summary Judgment (“Def.'s Mot.”), ECF No. 29, and the Plaintiff's Cross-Motion for Partial Summary Judgment (“Pl.'s Mot.”), ECF No. 31. After carefully considering the parties' submissions, the Court concludes for the following reasons that it must grant the defendant's motion for summary judgment and deny the plaintiff's cross-motion for partial summary judgment.[1]

         I. BACKGROUND

         On July 15, 2013, Landmark submitted two FOIA requests to the Department. Pl.'s Facts ¶ 1. “The first request sought ‘[r]ecords evincing the use of any private or personal e-mail account, text messaging service, instant messaging service, or any social media service such as Facebook, Google Plus[, ] or other private platform, for the conduct of [the Department's] business from January 20, 2009[, ] to July 15, 2013.'”[2] Id. ¶ 2 (first alteration in original); see Compl., Exhibit (“Ex.”) 1 (Letter dated July 15, 2013 Re: Freedom of Information Act Request Department of Labor Employee Use of Private Communication Services (“Private Communications Letter”)) at 2.

Landmark limited the scope of the first request to [the Department's] employees in political or career positions, including (a) political appointees; (b) those serving in the Senior Executive Service . . .; (c) those serving in the Office of the Secretary; (d) those serving in the Office of the Deputy Secretary; [and] (e) those serving in the Office of the General Counsel.

Id. ¶ 3; see also Compl., Ex. 1 (Private Communications Letter) at 2. On or about February 4, 2014, after discussions between the parties, they “agreed to narrow the scope of the request to approximately [fifty-seven] individuals located in[] (1) the Secretary's Office; (2) the Deputy Secretary's Office; and (3) the Solicitor's Office . . . .”[3] Id. ¶ 4.

         “Ultimately, [fifty-two] custodians were identified based on the parties' agreed upon narrowing of the scope of [the first FOIA request].” Def.'s Facts ¶ 5. The custodians were “asked to provide to [the Department] any personal email addresses used during the timeframe set forth in the request and those email addresses became search terms that were utilized to search the custodians' work email.” Id. ¶ 6. For each custodian, the Department conducted a search for responsive documents in the active work email accounts, the archived work email accounts, the Department's networks, and any stored CD-ROMs that were available. See id. ¶¶ 7-8. The Department reached the conclusion that no responsive documents existed in the form of text messages from Blackberry devices and that “[t]he individual custodians did not maintain personal social media accounts, such as Facebook, Google Plus, or instant messages, through [the Department].” Id. ¶¶ 9-10. “[The Department] released records responsive to Landmark's first FOIA request in a rolling production in four releases . . . .” Pl.'s Facts ¶ 5. “In total, [the Department] released 798 pages of agency records it deemed responsive.” Id. ¶ 6.

         After reviewing the responsive records produced by the Department, Landmark concluded “that [Department] officials use[d] non-government email services to conduct official agency business, ” id. ¶ 7, and provided several examples as supporting evidence, see, e.g., id. ¶ 14(a)-(k). Based on this conclusion, on May 21, 2014, Landmark informed the Department “that FOIA obligated [the Department] to search non-government servers to ensure an adequate production.” Id. ¶ 9. The Department “disagreed[] . . . with Landmark's assertion on the basis that it was not obligated under FOIA to search . . . beyond its own email system.” Def.'s Facts ¶ 13. Unable to resolve this dispute, the parties both moved for summary judgment, the resolution of which “turn[ed] on a critical issue: whether the FOIA imposes an obligation on the defendant to search non-governmental email accounts for responsive records to FOIA requests, where there is evidence that those accounts are used to conduct official agency business.” Order (Jan. 8, 2016) at 1, ECF No. 25. Upon its review of the parties' submissions, the Court recognized that “[t]his identical issue [was] under consideration by the District of Columbia Circuit, ” and therefore, the Court denied without prejudice both motions and ordered the parties to “monitor the status of Competitive Enter. Inst. v. Office of Sci. & Tech. Policy and [to] propose a new briefing schedule for refiling . . . their summary judgment motions after the Circuit issue[d] an opinion or order in that case.” Id. at 2-3 (footnote omitted).

         In Competitive Enterprise Institute v. Office of Science and Technology Policy, the appellant argued

that the district court improperly ruled that documents which might otherwise be government records for FOIA purposes need not be searched for or turned over to the requestor because the head of the defendant agency maintained the putative records on a private email account in his name at a site other than the government email site which the agency had searched.

827 F.3d 145, 146 (D.C. Cir. 2016). Reversing the district court's dismissal in favor of the appellee, the Circuit held “that an agency cannot shield its records from search or disclosure under [the] FOIA by the expedient of storing them in a private email account controlled by the agency head.” Id.; see also id. at 149 (“If the agency head controls what would otherwise be an agency record, then it is still an agency record and still must be searched [and] produced.”).

         In light of the Circuit's decision, the parties engaged in extensive discussions regarding the search of the identified custodians' personal email accounts. See Def.'s Facts ¶ 14; Pl.'s Facts ¶¶ 15-17. The Department thereafter informed Landmark “that a search of personal email repositories would be unmanageable, ” Pl.'s Facts ¶ 16; see also Def.'s Facts ¶ 14, and requested that Landmark “limit[] [its] request to specific subject matters regarding [the Department's] business” and to “propose a narrowed request for [the Department's] consideration, ” Def.'s Reply, Ex. 1 (Email from Jeremy Simon to Mike O'Neill dated October 6, 2016). In response, Landmark proposed narrowing the date applicability of its request to a six-month time period, and after further prompting, Landmark provided the Department with a list of approximately twenty suggested search terms. See Pl.'s Facts ¶¶ 16-17. The Department concluded that using the proposed “search terms would be infeasible because using [those] terms would result in a high number of false hits.” Id. ¶ 18. Further negotiations between the parties were unfruitful, see generally id., and the Department now moves for summary judgment, asserting that it is entitled to judgment as a matter of law because “the search that [it] already has undertaken and completed-that is, the search of its own email system using the personal email addresses of the identified custodians-was reasonably calculated to locate agency records responsive to Landmark's request.” Def.'s Mem. at 9. In response, Landmark simultaneously opposes the Department's position and cross-moves for partial summary judgment, arguing that that “[the Department's] refusal to direct its officials to undertake a search of non-government email repositories . . . constitutes a failure to conduct a search reasonably calculated to uncover responsive records.” Pl.'s Opp'n at 3.

         II. STANDARD OF REVIEW

         The Court must grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150 (2000)). The Court must, therefore, draw “all justifiable inferences” in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on “mere allegations or denials.” Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, “[c]onclusory allegations unsupported by factual data will not create a triable issue of fact.” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (alteration in original) (quoting Exxon Corp. v. FTC, 663 F.2d 120, 126-27 (D.C. Cir. 1980)). If the Court concludes that “the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof, ” then the moving party is entitled to summary judgment. Celotex ...


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