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Cause of Action Institute v. Pompeo

United States District Court, District of Columbia

July 20, 2018

CAUSE OF ACTION INSTITUTE, Plaintiff,
v.
MICHAEL R. POMPEO, in his official capacity as United States Secretary of State, [1] and DAVID S. FERRIERO, in his official capacity as Archivist of the United States, Defendants.

          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 ...


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