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Democracy Forward Foundation v. U.S. General Services Administration

United States District Court, District of Columbia

July 2, 2019



          Amit P. Mehta, United States District Court Judge.


         Defendant U.S. General Services Administration (“GSA”) is authorized by statute to supply email hosting services for a President-elect's transition team, and it did so for President-elect Trump after the 2016 election. GSA was to have destroyed the Trump transition team's electronic communications after the transition period ended, but due to law enforcement interest in those records, GSA instead duplicated them, maintained a copy, and turned a copy over to the Department of Justice. GSA still maintains actual possession of the Trump transition team's electronic communications.

         Plaintiff Democracy Forward Foundation asked GSA to disclose certain of these records under the Freedom of Information Act (“FOIA”), but GSA refused. GSA maintained that, notwithstanding its actual possession of the requested material, the Trump transition team's emails did not qualify as “agency records” subject to FOIA. Plaintiff then brought this action to compel production of the requested records.

         For the reasons outlined below, the court agrees with GSA that the Trump transition team's electronic communications are not “agency records” for purposes of FOIA and, therefore, are not subject to disclosure. Accordingly, the court grants Defendant's Motion for Summary Judgment and denies Plaintiff's Cross-Motion for Summary Judgment.


         A. Factual Background

         1. GSA's Hosting of Network Services for Presidential Transition Teams

         The Presidential Transition Act of 1963 (“Act”), Pub. L. 88-277, 78 Stat. 153, 3 U.S.C. § 102 (note), authorizes GSA to offer “necessary services” to “each President-elect and each Vice President-elect, for use in connection with his preparations for the assumption of official duties as President or Vice President.” Act § 3(a). The “necessary services” include “office machines and equipment” and “[c]ommunications services found necessary by the President-elect or Vice President-elect.” Id. §§ 3(a)(1), (5); Mem. in Support of Def.'s Mot. for Summ. J. ECF No. 11 [hereinafter Def.'s Mem.], at 3. GSA has provided telecommunications and internet technology services to presidential transition teams since 2000. Def.'s Mem., ECF No. 11-1, Erik Simmons Decl. [hereinafter “Simmons Decl”], ¶ 2; Def.'s Stmt. of Facts, ECF No. 11-3 [hereinafter Def.'s Facts], ¶ 1. Such services include maintaining the necessary networking infrastructure, including network security, and network communication services, such as email. See Simmons Decl. ¶ 2; Def.'s Facts ¶ 9.[1]

         As one might expect, GSA takes care to keep separate the transition team's network from its own. The transition team's “networks are distinct from GSA's internal network infrastructure and are not used to conduct GSA's day-to-day agency business.” Def.'s Facts ¶ 1. Furthermore, the transition team's communications are sent from accounts with the domain “, ” as opposed to the “” domain used by GSA officials. Id.; Simmons Decl. ¶ 2. Although GSA monitors transition team networks to “keep them operational and secure, ” “GSA officials do not access or review the emails of members of the presidential transition in order to conduct the agency's day-to-day business . . .” Def.'s Facts ¶ 2.

         Before 2012, GSA hosted transition team email communications on physical servers located at GSA. Def.'s Facts ¶ 3. That changed in 2012, when GSA switched to a cloud-based email service provided by Google. Id.; Simmons Decl. ¶ 5. With respect to both the 2008 and 2012 election cycles, GSA destroyed the transition teams' electronic communications, whether hosted on physical servers or as cloud data. Def.'s Facts ¶¶ 5, 7.

         On August 1, 2016, then-candidate Trump reached an agreement with GSA for telecommunication and internet technology services for both the pre- and post-election transition period. Id. ¶ 10. The parties memorialized the agreement in a Memorandum of Understanding (“MOU”). Id.; see also Decl. of Michael J. Gerardi [hereinafter Gerardi Decl.], ECF No. 11-2, Ex. A, Mem. of Understanding Between the GSA and Donald J. Trump, [hereinafter MOU]. GSA used Google's cloud-based email service to host the Trump transition team's electronic communications, Simmons Decl. ¶¶ 4, 7, and it supplied laptops and smartphone devices for the transition, Def.'s Facts ¶ 12. Under the MOU, the transition team agreed to return all equipment by February 19, 2017, and GSA promised to delete all data from those devices. MOU at 10. The MOU, however, did not expressly address whether GSA would dispose of cloud-based email after the transition period concluded. See generally MOU; Mem. in Support of Pl.'s Mot. for Partial Summ. J. and Opp'n to Def.'s Mot. for Summ. J., ECF No. 13-1 [hereinafter Pl.'s Mem.], at 3.

         In January 2017, the Trump transition team and GSA agreed to extend GSA's services. See MOU at 25.[2] The extension agreement required return of government-issued equipment by March 31, 2017. Id.

         2. GSA Turns Over Transition Team Records

         In February 2017, GSA staff responsible for managing the Trump transition team's communication system approached GSA's general counsel to inquire about preserving transition team records. Decl. of Seth Greenfield, ECF No. 17-1 [hereinafter Greenfield Decl.], ¶ 3. “In light of publicly reported investigations of a criminal and national security nature surrounding members of the transition team who were using GSA-supported transition communication services, GSA concluded that it should seek guidance before taking any further action.” Id. GSA's Inspector General then consulted with the Department of Justice and the Federal Bureau of Investigation. Id. ¶ 4. Law enforcement instructed GSA to preserve the records. In an email dated February 15, 2017, GSA's Office of General Counsel stated: “At the request of the Department of Justice, via our Office of Inspector General, please preserve all records of the Presidential Transition Team. Electronic equipment including cell phones, laptops, and tablets returned to GSA should be preserved and no information should be wiped from their memories.” Id., Ex. A, at 6 (CM-ECF pagination). GSA complied with the request. Simmons Decl. ¶ 8. GSA later received requests from other sources, including the transition team itself, to preserve the records. Greenfeld Decl. ¶ 5.[3]

         In August 2017, GSA and the FBI agreed to procedures for turning over the transition team's records. GSA agreed to give the FBI the devices used by the transition team with the understanding that the FBI would attempt to access them only with proper legal authority. Greenfeld Decl., Ex. B at 8 (CM-ECF pagination). With respect to email communications stored in Google cloud accounts, GSA copied and transferred the data of certain senior transition officials identified by the FBI. Simmons Decl. ¶ 9; Greenfeld Decl., Ex. C at 10 (CM-ECF pagination). GSA did not read, search, or review any of the transferred data. Simmons Decl. ¶ 9.

         3. Plaintiff's FOIA Request

         On January 5, 2018, Plaintiff Democracy Forward made a demand under ...

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