MEMORANDUM OPINION
Amit
P. Mehta, United States District Court Judge.
I.
INTRODUCTION
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.
II.
BACKGROUND
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 “@ptt.gov, ”
as opposed to the “@gsa.gov” 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 ...