MEMORANDUM OPINION
TREVOR
N. MCFADDEN, U.S.D.J.
In this
suit, Cause of Action Institute invokes the Federal Records
Act as grounds for requiring the Defendants-the Secretary of
State and the Archivist of the United States-to enlist the
Attorney General's help in recovering work-related emails
that former Secretary of State Colin Powell exchanged using
an AOL email account. I denied the Government's first
motion to dismiss-despite its claim that further searching
for the emails would futile- reasoning that search efforts
thus far had been anemic, and that the Plaintiff had shown a
substantial likelihood that the emails could be recovered.
Cause of Action Inst. v. Tillerson, 285 F.Supp.3d
201, 208-09 (D.D.C. 2018). But the Defendants have since
engaged in significant additional efforts to find the emails,
ultimately securing detailed assurances from both Secretary
Powell and AOL's successor company that recovery of the
emails is technologically impossible. I therefore conclude
that the case is moot, since it is only speculation to think
that referral to the Attorney General might remedy the
Plaintiff's inability to access Secretary Powell's
emails through the Freedom of Information Act (FOIA). I will
grant the Government's Motion to Dismiss.
I.
BACKGROUND
Under
the Federal Records Act and accompanying regulations,
work-related emails that Secretary Powell exchanged on a
personal email account constitute federal records. Cause
of Action Inst., 285 F.Supp.3d at 203; see 44
U.S.C. § 3301; 5 FAM 415.1 (Sept. 17, 2004). The
Plaintiff has filed two FOIA requests seeking these emails,
and all parties agree that they remain substantially
unrecovered. Compl. ¶ 2, ECF No. 1; Answer ¶ 2, ECF
No. 27 (excepting any emails already preserved on State
Department systems). When the head of a federal agency
“knows or has reason to believe” that federal
records “have been unlawfully removed” from
agency custody, he has a duty to “initiate action
through the Attorney General for the recovery of [the]
records.” 44 U.S.C. § 3106(a). If the agency head
fails to do so “within a reasonable period of time,
” the Archivist must do the same. Id. §
3106(b). If the agency head and the Archivist ignore the
statute, private litigants may sue under the Administrative
Procedure Act to enforce it. Armstrong v. Bush, 924
F.2d 282, 295-96 (D.C. Cir. 1991).
The
Defendants have not initiated action through the Attorney
General for the recovery of Secretary Powell's missing
emails. At first, they were satisfied with assurances from
AOL's General Counsel, reported by Secretary Powell's
personal representative, that the emails no longer exist on
AOL's system. Cause of Action Inst., 285
F.Supp.3d at 204. Because “every plaintiff must satisfy
the ‘irreducible constitutional minimum' of Article
III standing: injury-in- fact, causation, and redressability,
” Shaw v. Marriott Int'l, Inc., 605 F.3d
1039, 1042 (D.C. Cir. 2010) (citation omitted), the
Government sought dismissal of the Plaintiff's suit for
lack of redressability. Cause of Action Inst., 285
F.Supp.3d at 202. After I denied that motion, id. at
23, the Plaintiff moved for summary judgment. Pl.'s Mot.
Summ. J. The Government then requested additional time to
respond, which I granted, to enable more extensive efforts to
obtain the emails. See Minute Order of Feb. 16,
2018.
First,
the State Department sent a letter to Secretary Powell in
February 2018, asking him to provide written confirmation
that he had no personal access to the emails, plus written
authorization to seek the emails directly from AOL. Decl. of
Joshua L. Dorosin (Dorosin Decl.) Ex. M, ECF No. 32-2 at 40.
Secretary Powell provided the requested letters. In the
first, he stated “under penalty of perjury” that
(a) he did not “have possession of or access to any
federal records . . . that may not otherwise be preserved in
the [State] Department's record-keeping system;”
(b) he did not “have possession of or access to any
laptops or any other devices [he] used to send, receive, or
access work-related email using a personal email
account;” (c) he “did not use any
non-governmental email accounts other than the AOL
account;” and (d) he was “not aware of any
locations outside of the [State] Department's
record-keeping systems where work-related emails sent or
received via [his] personal email account may exist.”
Dorosin Decl. Ex. N, ECF 32-2 at 43. In the second, Secretary
Powell gave the State Department written permission to obtain
from “Oath Inc, formerly known as AOL, ” any
emails sent or received on his former AOL email account.
Dorosin Decl. Ex. O, ECF No. 32-2 at 45.
Next,
the Goverment contacted Oath in March 2018, asking for
written confirmation that Secretary Powell's emails could
not be recovered, and for an explanation as to whether it
would be “technologically possible to recover them (and
if not, why).” Dorosin Decl. Ex. P, ECF No. 32-2 at 47.
Later in March, Oath replied with a letter and an email. The
Senior Manager for Oath's Law Enforcement Response Team,
Karen Vukson, sent a letter stating:
Despite a diligent search, we have found no email content
related to the AOL account of [Secretary Powell's email
address]. This includes mail sent to, received by, or stored
in the account. This was determined by a thorough search of
all mail storage databases maintained by Oath Inc. The search
included both the active mailbox database and short-term
temporary storage for accounts that are in an inactive or
closed state. Furthermore, it is not technologically possible
to recover any of the data being sought as it has been
several years since the email content was removed from the
Oath network of databases.
Dorosin Decl. Ex. Q, ECF No. 32-2 at 49.
Oath's
Deputy General Counsel, Jeffrey Novak, also sent an email
stating:
As confirmed to House Committee staff previously, AOL does
not have any emails from the period of Secretary Powell's
service at the Department of State.
This is not unusual. During this time period, there were
several automated network storage settings on AOL email
accounts including a limitation on the storage of emails in
the New (unread emails) folder and time-limited
storage/automatic deletion of emails in the Old (read emails)
and Sent folders. The initial default retention period for
read emails was 7 days; that was later adjusted to 30 days.
The default retention period for sent emails was 30 days.
Users could store email indefinitely in a Personal Filing
Cabinet on the user's hard drive or by manually moving
the email to a personal network folder. However, we are
unable to determine from our records whether a user has
elected to store information in a Personal Filing Cabinet.
Dorosin Decl. Ex. R, ECF No. 32-2 at 51.
Armed
with this evidence, the Government moved to dismiss,
contending that the case is now moot. Def.'s Mot. Dismiss
or for Summ. J. In the alternative, the Government seeks
summary judgment, claiming that it has satisfied the Federal
Records Act. Id. Cause of Action maintains ...