United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
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
consideration of the pleadings,  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.
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. 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).
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
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.
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.
brings this motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6).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).
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
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.
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))).
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.
The OAI's Inclusion within the White House
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.
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
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.
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
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 ...