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American Oversight v. U.S. General Services Administration

United States District Court, District of Columbia

May 3, 2018

AMERICAN OVERSIGHT, Plaintiff,
v.
U.S. GENERAL SERVICES ADMINISTRATION, Defendant.

          MEMORANDUM OPINION

          BERYL A. HOWELL CHIEF JUDGE.

         The plaintiff, American Oversight (“AO”), a “nonpartisan organization committed to the promotion of transparency in government, ” Compl. ¶ 5, ECF No. 1, challenges the response of the General Services Administration (“GSA”), to a request for, inter alia, records reflecting communications between GSA and any member of the presidential transition team (“PTT”) for then-president-elect Donald Trump, id. ¶ 19, which request was submitted pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. The parties have now cross-moved for summary judgment. Def.'s Mot. Summ. J. (“Def.'s Mot.”), ECF No. 12; Pl.'s Cross-Mot. Summ. J. & Opp'n Def.'s Mot. (“Pl.'s Cross-Mot.”), ECF No. 14. For the reasons set forth below, summary judgment is granted to the plaintiff with respect to GSA's failure to produce non-exempt attachments to responsive emails, GSA's withholding, under Exemption 5, of information shared with the PTT or other non-federal agency entities, and GSA's withholdings under FOIA's Exemption 6, and the parties' cross-motions for summary judgment are denied, without prejudice, with respect to the sufficiency of GSA's search and GSA's withholdings under FOIA's Exemption 5.

         I. BACKGROUND

         In 2013, GSA entered into a contract with the Trump Organization to develop and lease the Old Post Office building in Washington, D.C., as Trump International Hotel. Compl. ¶¶ 7-8. The lease stipulated that “[n]o . . . elected official of the Government of the United States . . . shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom, ” id. ¶ 9, which provision raised concerns from “[e]thics experts and members of Congress … regarding the propriety of President Trump's continued financial interest in the Trump International Hotel, ” id. ¶ 10. Prompted by these concerns, the plaintiff, filed several FOIA requests for records related to GSA's lease of the Old Post Office building and contacts between GSA and the PTT, id. ¶¶ 15, 19, 23, including the FOIA request, dated April 5, 2017, at issue in this case for “[a]ll records reflecting communications (including emails, telephone call logs, calendar entries, meeting agendas, or any other records reflecting communications) between GSA and any member of the Trump transition team” from November 8, 2016 through January 20, 2017, that is, from the 2016 election through President Trump's inauguration, id. ¶ 19.[1]GSA's “initial search . . . returned over 61, 000 documents, ” Def.'s Statement of Material Facts As To Which There Is No Genuine Issue (“Def.'s SMF”) ¶ 5, ECF No. 12 at 3-6 (citing Suppl. Decl. of Travis Lewis, GSA's Director of the FOIA and Records Manager Division (“Lewis Decl.”) ¶ 9, ECF No. 13, replacing earlier version of declaration, id. at 1 n.1), or “over 100, 000 emails, ” Def.'s Mot., Ex. D at 6, Email from GSA's Duane Smith to AO's Cerissa Cafasso (July 24, 2017), ECF No. 12-5.

         In light of the significant number of potentially responsive documents, the parties conferred about the scope of the FOIA request, and on July 26, 2017, nearly one month after the plaintiff initiated the instant case, the plaintiff narrowed the scope by providing GSA with search terms and locations to be searched and specifying the names of individuals who potentially had responsive records. Def.'s SMF ¶ 5 (citing Lewis Decl. ¶ 9); Pl.'s Statement of Material Facts as to Which There is No Genuine Issue (“Pl.'s SMF”) at 2 ¶ 5, ECF No. 14-4. Specifically, the plaintiff described as “correct” GSA's search scope as covering “all records reflecting communications, ” including “emails, telephone call logs, calendar entries, meeting agendas, or any other records reflecting communications between GSA and Casey Coleman, Charles James, Robert Mackichan, Richard Milone, George Nesterczuk, Kurt Stout, Robert Tompkins, Donald Williams (the GSA landing team for the Trump Administration).”[2] Def.'s Mot., Ex. D at 1, Email from AO's Cerissa Cafasso to GSA's Duane Smith (July 26, 2017). GSA acknowledged that these eight named individuals were “listed on the greatagain.gov [s]ite” of the PTT, and “are those who were the members of the Agency Transition team in its entirety.” Id., Email from GSA's Duane Smith to AO's Cerissa Cafasso (July 26, 2017). In addition, GSA agreed to search for “all records reflecting communications (including emails, telephone call logs, calendar entries, meeting agendas, or any other records reflecting communications) between any member of the Trump transition team and” an enumerated list of twenty-two GSA employees “that contain any of the following [nine] terms: OPO, Post Office, Hotel, Trump International, THI, Ivanka, 1100 Penn, 1100 Pennsylvania, or Lease.” Id. Ultimately, however, GSA apparently searched for only seven terms, combining “Post Office” and “Hotel” into “Post Office Hotel, ” and did not search for “Ivanka” at all. Lewis Decl. ¶ 10.[3]

         After obtaining the plaintiff's clarified parameters, GSA's Office of the Chief Information Officer (“OCIO”) then conducted a search following GSA's “practice” for requests containing “the word ‘communication(s)'” by “search[ing] each employee's emails, calendar logs and shared drive files for responsive records by using the key words searches and dates as requested by the requester.” Id. ¶ 11. GSA's records retention policy requires “all agency employee communications” to be “stored via email /or on the shared drive.” Id.

         GSA's searches of “emails, calendar logs and shared drive files, ” id., identified 3, 925 pages, of which GSA's Director of FOIA and Records Management Division determined only 3, 730 pages were actually responsive to the plaintiff's request, Def.'s SMF ¶ 11 (citing Lewis Decl. ¶ 12), with the remaining 195 pages consisting of nonresponsive “news articles and fliers, ” Lewis Decl. ¶ 12. GSA produced those 3, 730 pages to the plaintiff on September 1, 2017, with redactions “pursuant to FOIA Exemptions 4, 5, and 6.” Def.'s SMF ¶ 12 (citing Lewis Decl. ¶ 13); see also Def.'s Mot., Ex. F, Letter from GSA's Travis Lewis to AO's Austin Evers (Sept. 1, 2017), ECF No. 12-7. Despite the extensive redactions, which the plaintiff characterizes as appearing on “at least 3, 721” of the produced pages, Pl.'s Mem Supp. Pl.'s Cross-Mot & Opp'n Def.'s Mot. (“Pl.'s Opp'n”) at 1, ECF No. 14-1, GSA originally provided a two-page Vaughn Index, see Def.'s Mot, Ex. A, Vaughn Index, ECF No. 12-2. After the plaintiff challenged the sufficiency of the original index, GSA provided a lengthier Corrected Revised Vaughn Index (“Revised Vaughn”), ECF No. 27-1.

         At this point, the plaintiff has withdrawn any challenge to withholdings under Exemption 4, see Pl.'s Reply Supp. Pl.'s Cross-Mot. (“Pl.'s Reply”) at 1 n.1, ECF No. 28, and GSA has “withdrawn all withholdings based on the deliberative process privilege and the attorney work-product doctrine, ” and “relies exclusively on the attorney-client privilege” under Exemption 5, Def.'s Reply Supp. Def.'s Mot. & Opp'n Pl.'s Cross-Mot (“Def.'s Opp'n”) at 9, ECF No. 24. Specifically, GSA relies on the attorney-client privilege and Exemption 5 to withhold material on pages 1-80, 129-70, 171-683, 703-2034-or nearly 2, 000 pages of the responsive “[c]ommunications between GSA and the Presidential Transition Team”-explaining that the material reflects “[p]ortions of internal communications sent by GSA attorneys to GSA employees providing legal opinions and guidance based on questions and information provided by GSA employees.” Revised Vaughn at 1, 4-6. After GSA's briefing was complete, GSA produced five pages with material previously withheld under Exemption 5. Pl.'s Reply Supp. Pl.'s Cross-Mot., Attach. 1, Second Decl. of Cerissa Cafasso, Attorney, AO (Feb. 20, 2018) (“Second Cafasso Decl.”) ¶ 6, ECF No. 28-1. The plaintiff notes, however, that twenty-nine of GSA's Exemption 5 redactions remain without explanation in the Revised Vaughn Index. Id. ¶¶16-17.[4]

         GSA has also withheld, under Exemption 6, the “names and contact information for non-federal employees, ” based on the agency's “determin[ation] that any public interest in the release of the names of private individuals here was not outweighed by the disclosure of that information.” Revised Vaughn at 1-10. In response to the Court's inquiry about this justification for Exemption 6 withholdings, in light of the fact that PTT members' names were made publicly available on a PTT website, see Minute Order (Apr. 9, 2018), GSA submitted a supplemental affidavit clarifying that the PTT members' names were redacted simply because they were not federal employees, Second Decl. of Travis Lewis, GSA's Director of the FOIA and Records Manager Division (“Second Lewis Decl.”) (Apr. 11, 2018) ¶ 4, ECF No. 29-1.

         After GSA was granted six extensions to complete its briefing, see GSA's motions for time extensions, ECF Nos. 16-23, the parties' cross-motions for summary judgment are now ripe for review.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “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). “In FOIA cases, ‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.'” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fed'n of Am. v. U.S. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)) (alteration adopted); see also Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (“[A]n agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced or is wholly exempt from the Act's inspection requirements.'” (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (alteration adopted))). Indeed, the D.C. Circuit has observed that “the vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).

         The FOIA was enacted “to promote the ‘broad disclosure of Government records' by generally requiring federal agencies to make their records available to the public on request.” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (quoting U.S. Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988)). Reflecting the necessary balance between the public's interest in governmental transparency and “legitimate governmental and private interests that could be harmed by release of certain types of information, ” United Techs. Corp. v. U.S. Dep't of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (quoting Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc) (alterations omitted)), the FOIA contains nine exemptions, set forth in 5 U.S.C. § 552(b), which “are explicitly made exclusive and must be narrowly construed, ” Milner v. U.S. Dep't of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citations omitted); see also Murphy v. Exec. Office for U.S. Attys., 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice (“CREW”), 746 F.3d 1082, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). “[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976).

         The FOIA authorizes federal courts to “enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). District courts must “determine de novo whether nondisclosure was permissible.” Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015). When the sufficiency of “the release of information under the FOIA” is challenged, “‘the agency has the burden of showing that requested information comes within a FOIA exemption.'” Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898, 904 (D.C. Cir. 1999) (quoting Niagara Mohawk Power Corp. v. U.S. Dep't of Energy, 169 F.3d 16, 18 (D.C. Cir. 1999)); see also U.S. Dep't of Justice v. Landano, 508 U.S. 165, 171 (1993) (noting that “[t]he Government bears the burden of establishing that the exemption applies”); Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979) (finding that the agency invoking an exemption bears the burden “to establish that the requested information is exempt”); Elec. Frontier Found. v. U.S. Dep't of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014). This burden does not shift even when the requester files a cross-motion for summary judgment because “the Government ‘ultimately [has] the onus of proving that the [documents] are exempt from disclosure, '” while the “burden upon the requester is merely ‘to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.'” Pub. Citizen Health Research Grp., 185 F.3d at 904-05 (quoting Nat'l Ass'n of Gov't Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)) (alterations in original).

         An agency may carry its burden of showing an exemption was properly invoked by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that the government has analyzed carefully any material withheld and provided sufficient information as to the applicability of an exemption to enable the adversary system to operate. See Judicial Watch, Inc., 726 F.3d at 215 (“In FOIA cases, ‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.'” (quoting Consumer Fed'n of Am., 455 F.3d at 287) (alteration adopted)); CREW, 746 F.3d at 1088 (noting that an agency's burden is sustained by submitting an affidavit that “describe[s] the justifications for nondisclosure with reasonably specific detail, demonstrate[s] that the information withheld logically falls within the claimed exemption, and [is] not controverted by either contrary evidence in the record nor by evidence of agency bad faith” (quoting Larson v. U.S. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009))); Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (instructing that an agency's description “should reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection[, ] . . . [which] serves the purpose of providing the requestor with a realistic opportunity to challenge the agency's decision.” (internal citation omitted)). While “an agency's task is not herculean” it must “‘describe the justifications for nondisclosure with reasonably specific detail' and ‘demonstrate that the information withheld logically falls within the claimed exemption.'” Murphy, 789 F.3d at 209 (quoting Larson, 565 F.3d at 862). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Judicial Watch, Inc. v. U.S. Dep't of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting ACLU v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)); Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)).

         III. DISCUSSION

         The plaintiff challenges three aspects of GSA's response to the FOIA request at issue: (1) the adequacy of GSA's search, Pl.'s Opp'n at 6; Pl.'s Reply at 1-3, ECF No. 28; (2) GSA's failure to produce “attachments to emails exchanged between GSA and the” PTT, Pl.'s Reply at 3; Pl.'s Opp'n at 8-9; and (3) the sufficiency of GSA's explanations for redactions under Exemption 5 and Exemption 6, Pl.'s Opp'n at 17-29; Pl.'s Reply at 6-14. These issues are addressed seriatim.

         A. GSA'S SEARCH WAS INADEQUATE

         GSA conferred with the plaintiff and advised via email on July 26, 2017, that the agency would search for “all records reflecting communications (including emails, telephone call logs, calendar entries, meeting agendas, or any other records reflecting communications)” between GSA and eight identified PTT members as well as for certain search terms. Def.'s Mot., Ex. D at 1, Email from GSA's Duane Smith to AO's Cerissa Cafasso (July 26, 2017). Contrary to GSA's assurance, however, the plaintiff contends that GSA failed to search “telephone call logs, calendar entries, stand-alone electronic records (i.e., records that were created electronically but never emailed), or paper records, ” and further that “GSA has systems of records that potentially contain responsive records, and yet the agency has entered no evidence that it searched those systems or an adequate alternative.” Pl.'s Reply at 2. GSA does not dispute that no search was conducted of call logs, meeting agendas, or paper records, but apparently contends that a search for these forms of records “goes far beyond what is required by the FOIA, ” Def.'s Opp'n at 3, and that the search performed was “reasonably tailored” to the request “based on its knowledge of its [own] practices, ” id. at 4.

         At the outset, GSA provides conflicting information regarding whether calendar entries were searched. The agency affidavit states that, in searches of the type performed in this case, “calendar logs” are searched. Lewis Decl. ¶ 11; see also Def.'s Mem. Supp. Def.'s Mot. (“Def.'s Mem.”) at 5, ECF No. 12 at 7 (“When conducting a search for documents responsive to a FOIA request, the OCIO searches each employee's emails, calendar logs, and shared drive files for responsive records.”). Nevertheless, while records of emailed calendar invitations were produced, no actual calendar entries or logs were reflected in GSA's production. Thus, based on this record, the plaintiff raises the reasonable suspicion “that the agency almost certainly did not actually search calendars.” Pl.'s Opp'n at 7. GSA has been silent in explaining the presence of calendar invitation emails in its production, without concomitant calendar entries or logs, despite the agency's promise to search for and produce responsive, non-exempt calendar logs. See Def.'s Opp'n at 4. In light of the “well defined requests and positive indications of overlooked materials, ” Aguiar v. DEA, 865 F.3d 730, 739 (D.C. Cir. 2017) (quoting DiBacco v. U.S. Army, 795 F.3d 178, 188 (D.C. Cir. 2015) (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999))), the GSA's silence about the lack of calendar logs fails to assure the Court on summary judgment that the search was reasonable. GSA is directed either to search calendar entries or, if such a search was already performed, to clarify the method and scope of such a search, as well as any withholdings of calendar entries.

         With respect to the other forms of records sought by the plaintiff, “[a]gencies have ‘a duty to construe a FOIA request liberally.'” People for the Ethical Treatment of Animals v. Nat'l Institutes of Health, Dep't of Health & Human Servs. (“PETA”), 745 F.3d 535, 540 (D.C. Cir. 2014) (quoting Nation Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)). At the same time, agencies “are not required to . . . perform searches which are not compatible with their own document retrieval systems, ” Assassination Archives & Research Ctr., Inc. v. CIA, 720 F.Supp. 217, 219 (D.D.C. 1989), aff'd, No. 89-5414, 1990 U.S. App. LEXIS 27799 (D.C. Cir. Aug. 13, 1990), and they “need not respond to overly broad and unreasonably burdensome requests, ” Judicial Watch, Inc. v. U.S. Dep't of State, 681 Fed.Appx. 2, 4 (D.C. Cir. 2017) (citing Am. Fed'n of Gov't Emps. v. U.S. Dep't of Commerce, 907 F.2d 203, 208-09 (D.C. Cir. 1990)); see also Anderson v. U.S. Dep't of State, 661 F.Supp.2d 6, 12 n.3 (D.D.C. 2009) (an agency does not have to “honor a FOIA request that requires it to conduct an unduly burdensome search” (quoting Pub. Citizen, Inc. v. U.S. Dep't of Ed., 292 F.Supp.2d 1, 6 (D.D.C. 2003))). When confronted with a challenge to the adequacy of a search, “an ‘agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested, ' which it can do by submitting ‘[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.'” Reporters Comm. for Freedom of Press v. FBI, 877 F.3d 399, 402 (D.C. Cir. 2017) (quoting Oglesby, 920 F.2d at 68) (alteration in original).

         GSA's description of the search performed falls short of meeting the applicable standard for justifying the scope and method of the search. See Id. GSA explains that, when processing a FOIA “request which includes the word ‘communication(s)' /or any derivative thereof, ” the GSA's FOIA Office directs the OCIO to search for responsive records in “each employee's emails, calendar logs and shared drive files.” Lewis Decl. ¶ 11. GSA further explains that “[i]t is GSA policy via its record retention policy that all agency employee communications and documents are stored via email /or on the shared drive, ” id., as a justification for limiting the search conducted for records reflecting communications to those two locations (i.e., email and shared drive). In other words, when a request seeks “communications, ” the GSA reads no further and searches “emails, calendar logs and shared drive files” as a default, Lewis Decl. ¶ 11, irrespective of the specifics of a request. In this case, the plaintiff expressly sought “telephone call logs, ” Def.'s SMF ¶ 1, and “all records reflecting communications, ” id., which includes “stand-alone electronic records, ” and “paper records, ” Pl.'s Reply at 2, but GSA has not explained whether or how such records were searched for the requested communications. The agency affidavit notes as an afterthought that “our search for responsive records included calendar dates and paper records as well, ” Lewis Decl. ¶ 28, but is silent as to how that search was conducted, and whether any responsive records were found, and GSA's briefs do not even mention that point.

         In other words, GSA performed a search using its default methodology for requests seeking “communications, ” but fails to take account of the specific aspects of the plaintiff's request that may warrant a broader search. Consequently, the agency does not adequately demonstrate “that all files likely to contain responsive materials (if such records exist) were searched, ” Reporters Comm. for Freedom of Press, 877 F.3d at 402 (quoting Oglesby, 920 F.2d at 68), or that a search other than its default practice would be “unreasonably burdensome, ” Judicial Watch, Inc., 681 Fed.Appx. at 4; see also, e.g., Leopold v. U.S. Dep't of Justice, No. CV 16-1827, 2018 WL 1384124, at *7 (D.D.C. Mar. 19, 2018) (upholding the sufficiency of the FBI's search where the FBI explained the plaintiff's “request for non-investigative records is ...


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