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Democracy Forward Foundation v. White House Office of American Innovation

United States District Court, District of Columbia

January 9, 2019

DEMOCRACY FORWARD FOUNDATION, et al., Plaintiffs
v.
THE WHITE HOUSE OFFICE OF AMERICAN INNOVATION, Defendant

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.

         Plaintiffs bring this action to compel Defendant, the White House Office of American Innovation (“OAI”), to respond to Plaintiffs' requests under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Compl., ECF No. 1, ¶ 1. The two Plaintiff organizations each made a FOIA request to the OAI, asking the OAI to disclose certain documents. Id. at ¶¶ 56, 58. The OAI failed to respond to either FOIA request, and, as a result, Plaintiffs filed suit to enforce compliance under FOIA. Defendants have moved for dismissal of Plaintiffs' Complaint, arguing that the OAI is not an “agency” subject to FOIA's disclosure requirements.

         Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, the Court GRANTS Defendant's motion. The Court concludes that Plaintiffs' Complaint fails to state a claim because, as an entity within the White House Office which does not exercise substantial authority independent of the President, the OAI is not an agency subject to the requirements of FOIA.

         I. BACKGROUND

         The OAI was established within the White House Office by Presidential Memorandum in March 2017 and is led by Jared Kushner, a Senior Advisor to the President. Id. at ¶¶ 12, 17. The OAI was established in part to “‘focus on implementing policies and scaling proven private-sector models to spur job creation and innovation'” and to “‘ensure that America is ready to solve today's most intractable problems, and is positioned to meet tomorrow's challenges and opportunities.'” Id. at ¶ 12 (quoting Presidential Memorandum on the White House Office of American Innovation, 2017 WL 1130896 (Mar. 27, 2017) (“2017 Presidential Memorandum”)). According to the Presidential Memorandum establishing the OAI, the OAI's sole mission is to “make recommendations to the President on policies and plans that improve Government operations and services, improve the quality of life for Americans now and in the future, and spur job creation.” 2017 Presidential Memorandum.[2] With this mission in mind, the OAI “shall launch initiatives with a focus on innovation, coordinate implementation of any resulting plans, and create reports for the President setting forth policy recommendations. In carrying out these activities and producing these reports, the OAI shall gather information, ideas, and experiences from other parts of Government, from the private sector, and from other thought leaders and experts outside of the Federal Government.” Compl., ECF No. 1, ¶ 14 (quoting 2017 Presidential Memorandum).

         On May 23, 2017, Plaintiff Food & Water Watch, Inc., sent a FOIA request to the OAI seeking records concerning the OAI's authority to launch initiatives on issues related to water systems and more. Id. at ¶ 56. On March 30, 2017, the OAI notified Plaintiff that it had received the FOIA request. Id. at ¶ 57. Similarly, on November 22, 2017, Plaintiff Democracy Forward Foundation sent the OAI a FOIA request seeking documents related to the OAI's agendas, minutes, calendar entries, and communications on infrastructure. Id. at ¶¶ 58-59. On November 27, 2017, the OAI confirmed that it had received Plaintiff's request. Id. at ¶ 61.

         Under FOIA, “‘each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.'” Id. at ¶ 69 (quoting 5 U.S.C. § 552(a)(3)(A)). With some exceptions, an agency must determine whether or not to comply with a party's FOIA request within 20 business days of the receipt of the request and immediately notify the party of its determination. Id. at ¶ 63 (citing 5 U.S.C. § 552(a)(6)(A)(i)). Despite this obligation, the OAI did not notify Plaintiffs of its determination within 20 days. Id. at ¶¶ 64-67. And, as of this date, the OAI has not responded to Plaintiffs' FOIA requests. Id. In their Complaint, Plaintiffs ask that the Court compel the OAI to comply with the requirements of FOIA. Id. at ¶¶ 80-87.

         In response, Defendant argues that the Court should dismiss Plaintiffs' Complaint because the OAI is not an agency subject to the requirements of FOIA. Defendant contends that the OAI is not an agency for purposes of FOIA because it is an entity within the White House Office and because it does not exercise substantial authority independent of the President. The Court agrees and concludes that Plaintiffs have failed to state a claim under FOIA because the OAI is not an agency subject to FOIA.

         II. LEGAL STANDARD

         Defendant brings this motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).[3]Def.'s Mot., ECF No. 10, 3-4. Rule 12(b)(6) provides that a party may challenge the sufficiency of a complaint on the grounds it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. Pro. 12(b)(6). When evaluating a motion to dismiss for failure to state a claim, the district court must accept as true the well-pleaded factual allegations contained in the complaint. Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009), cert. denied, 559 U.S. 1039 (2010). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Iqubal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). In deciding a motion to dismiss under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and information about which the Court may take judicial notice. Abhe v. Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).

         III. DISCUSSION

         Defendant argues that Plaintiffs' Complaint should be dismissed because it fails to state a claim under FOIA as the OAI is not an agency subject to FOIA's disclosure requirements. The Court agrees. The OAI is not an agency subject to FOIA because it is within the White House Office and because it does not exercise substantial authority independent of the President.

         Under FOIA, only “agenc[ies]” are required to “make available to the public” various specified types of information. 5 U.S.C. § 552(a). Congress originally defined an agency, for purposes of FOIA, as “‘each authority of the Government of the United States, '” subject to certain exceptions which are not relevant to this case. Armstrong v. Exec. Office of the President, 90 F.3d 553, 557 (D.C. Cir. 1996) (quoting 5 U.S.C. § 551(1)). In its 1971 opinion in Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) addressed the question of whether the Office of Science and Technology, a component of the Executive Office of the President (“EOP”), was an agency subject to FOIA. 448 F.2d at 1070-71. In concluding that the Office was an agency subject to FOIA, the D.C. Circuit interpreted Congress's definition of “agency” to include “any administrative unit with substantial independent authority in the exercise of specific functions.” Id. at 1073. The Court went on to conclude that the Office was an agency because its “sole function [was not] to advise and assist the President.” Id. at 1075.

         In 1974, Congress amended FOIA's definition of agency to cover any “executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(f)(1). This definition “was not, however, meant to cover ‘the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.'” Armstrong, 90 F.3d at 558 (quoting H.R. Conf. Rep. No. 93-1380, at 14 (1974)). In drafting FOIA's new “agency” definition, Congress intended to codify the D.C. Circuit's decision in Soucie. Id. (“That the Congress intended to codify Soucie is clear enough.” (citing Meyer v. Bush, 981 F.2d 1288, 1291 (D.C. Cir. 1993))).

         This Court must determine whether or not the OAI fits within the Congressional definition of “agency” as it has been interpreted by the Supreme Court and the D.C. Circuit. Defendant has two arguments as to why the OAI is not an agency for purposes of FOIA. First, Defendant argues that the OAI is categorically not an agency because it is an entity within the White House Office. Second, Defendant agues that the OAI is not an agency because it does not exercise substantial authority independent of the President. The Court will address each argument.

         A. The OAI's Inclusion within the White House Office

         Defendant argues, and the Court concludes, that entities within the White House Office are not agencies within the meaning of FOIA. And, it is undisputed that the OAI is part of the White House Office. Accordingly, the OAI is not an agency for purposes of FOIA.

         In Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980), the Supreme Court concluded that entities within the Office of the President, also referred to as the White House Office, are not agencies under FOIA. In Kissinger, the Supreme Court invalidated a FOIA request for certain notes taken by then-Assistant to the President for National Security Affairs, Henry Kissinger. 445 U.S. at 158. The Court concluded that Mr. Kissinger's notes were not agency records within the meaning of FOIA. Id. at 156. The Court cited the Conference Report of the 1974 FOIA Amendments for the proposition that “‘the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President' are not included within the term ‘agency' under the FOIA.” Id. (citing H.R. Conf. Rep. No. 93-1380, p. 15 (1974)). Based on expressed Congressional intent, the Court explained that, while entities within the EOP are subject to FOIA, “[t]he legislative history is unambiguous … in explaining that the ‘Executive Office' does not include the Office of the President.” Id. In other words, because the Office of the President, also known as the White House Office, has the sole function of advising and assisting the President, the White House Office is not included within FOIA's scope. See Sculimbrene v. Reno, 158 F.Supp.2d 26, 29 (D.D.C. 2001) (“[T]he Supreme Court has held that the FOIA definition of ‘agency' does not include the ‘Office of the President,' also known as the White House Office.”).

         It is undisputed that the OAI is part of the White House Office. Compl., ECF No. 1, ¶ 16; see also 2017 Presidential Memorandum. As Kinssinger explained, entities within the White House Office are not agencies for purposes of FOIA. 445 U.S. at 156. Accordingly, the Court concludes that the OAI is not an agency subject to Plaintiffs' FOIA requests.

         However, Plaintiffs argue that, even if the OAI is part of the White House Office, Kissinger did not establish “a bright-line test, and instead focuses on the office's functions, rather than its form or location.” Pls.' Opp'n, ECF No. 13, 12-13. According to Plaintiffs, the inclusion of the OAI within the White House Office does not categorically preclude the OAI from being an agency subject to FOIA.

         The Court concludes that D.C. Circuit precedent provides no support for Plaintiffs' argument. In National Security Archive v. Archivist of the United States, 909 F.2d 541 (D.C. Cir. 1990), the D.C. Circuit stated that “[t]he Supreme Court has made clear that the Office of the President is not an ‘agency' for purposes of the FOIA.” 909 F.2d at 545 (citing Kissinger, 445 U.S. at 156). The Circuit Court went on to find that because the Counsel to the President was an entity within the White House Office, the Counsel to the President was not an agency which could be required to make disclosures under FOIA. Id. Similarly, in Alexander v. Federal Bureau of Investigation, 456 Fed.Appx. 1 (D.C. Cir. 2011) (unpublished), the Circuit Court stated that “Kissinger expressly held that the Office of the President … is not subject to FOIA.” 456 Fed.Appx. at 1. The Alexander Court proceeded to conclude that the White House Office of Personnel Security and the White House Office of Records Management, both entities within the White House Office, were not agencies subject to disclosure under FOIA or the analogous Privacy Act. Id. Again, in Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993), the Circuit Court explained that the President's “immediate personal staff” are exempted from FOIA “without a careful examination of [their] function.” 981 F.2d at 1293 (internal quotation marks omitted). The Circuit Court clarified that the President's “immediate personal staff” encompasses “at least those … individuals employed in the White House Office.” Id. at 1293 n.3; see also Id. at 1310 (“We and the Supreme Court have interpreted ‘immediate ...


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