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Cause of Action Institute v. U.S. Department of Army

United States District Court, District of Columbia

September 29, 2019

CAUSE OF ACTION INSTITUTE, Plaintiff,
v.
U.S. DEPARTMENT OF THE ARMY, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         The Department of the Army (“Army”) is subject to the requirements of the Freedom of Information Act (“FOIA”). See 5 U.S.C. § 552(e). The White House Office-which is a unit of the Executive Office of the President (“EOP”)-is not.[1] See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980) (citing H.R. Conf. Rep. No. 93-1380, at 15 (1974)). Plaintiff Cause of Action Institute (“COA Institute”) thus seeks records from the Army that would shed light on the activities of the White House Office, along with other offices in the EOP. Lurking, then, in this seemingly run-of-the-mill FOIA case is a principle of respect for the Executive’s “‘constitutional prerogative’ to maintain[] the autonomy of its office and safeguard[] the confidentiality of its communications.’” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 224 (D.C. Cir. 2013) (“Judicial Watch I”) (quoting Cheney v. U.S. Dist. Court, 542 U.S. 367, 385 (2004)). Which, if any, records at issue in this case fall beyond FOIA’s reach, however, requires a fact-intensive inquiry that the Court cannot resolve on the present record.

         The FOIA request at issue asked that the Army release “all records of communications with any employee of the Executive Office of the President . . ., including but not limited to the Office of the White House Counsel . . ., concerning telephone and/or video conferences hosted and/or arranged by the military.” Dkt. 1-2 at 2. The request included “any email requesting that a conference line be opened, as well as any subsequent confirmation e-mail or related correspondence” for the period between January 1, 2015 and June 26, 2015. Id. In order to set up a video or telephone conference, EOP staff would submit a request using software provided to the EOP by the Army and “housed on an Army computer server.” Dkt. 29 at 7–8. That software then automatically generated and sent a confirmation email from an account with an Army domain name. See id.; Dkt. 1-5 at 18.

         In response to the FOIA request, the Army released some documents, with redactions for personnel privacy pursuant to FOIA Exemption 6. Dkt. 25-1 at 8. The Army declined to search for or to release emails sent from the address “system.manager@conus.army.mil, ” which provided conference information in response to requests from EOP employees, however, because only EOP staff-and not Army staff-were involved in arranging or hosting the conference calls. Id. In the Army’s view, these records fell outside the scope of the FOIA request because the calls were not “hosted or arranged” by the military. Id. The Army then moves for summary judgment, arguing that it had conducted an adequate search for responsive records and that its withholdings pursuant to Exemption 6 were permissible. Id. at 6. Plaintiff opposes the Army’s motion and cross-moves for summary judgment. Dkt. 26 at 1. In opposing Plaintiff’s cross-motion, the Army raised, for the first time, the contention that the email accounts that it declined to search did not contain “agency records” of the Department of the Army. Dkt. 29 at 11–15. Rather, according to the Army, it merely provided software and a computer server for the use of the EOP, and the records at issue were owned and controlled by the EOP. Id. Plaintiff disagrees and argues that, in any event, the Army has failed to carry its burden for purposes of summary judgment. Dkt. 30 at 8.

         For the reasons explained below, the Court will grant in part and deny in part the Army’s motion and will deny Plaintiff’s cross-motion without prejudice.

         I. BACKGROUND

         On June 26, 2015, the COA Institute submitted a FOIA request to the Army seeking records related to the Army’s role in “host[ing] and/or arrang[ing]” telephone and video conferences for EOP staff. Dkt. 1 at 5 (Compl. ¶ 14). That request sought “all records of communications with any employee of [EOP] . . . including but not limited to the Office of the White House Counsel . . ., concerning telephone and/or video conferences hosted and/or arranged by the military” between January 1, 2015 and the date of the request. Id. (Compl. ¶ 14– 15). The request specified that “[r]esponsive records would include any e-mail requesting that a conference line be opened, as well as any subsequent confirmation email or related correspondence.” Id. at 6 (Compl. ¶ 16).

         The White House Military Office (“WHMO”) is-despite its name-part of the Department of Defense (“DOD”) and is “tasked with supporting certain functions of the EOP.” Dkt 25-1 at 7. The White House Communications Agency (“WHCA”) is part of the WHMO and is the “[DOD] organization tasked to provide telecommunications support and services to the President and his staff.” Dkt. 25-4 at 6 (Herrington Decl. ¶ 20). Both of these offices are subject to FOIA. See 32 C.F.R. § 286.3 (identifying the office that initially processes FOIA requests submitted to the WHMO). The COA Institute’s FOIA request explained that the records that it sought “may be maintained by the White House Military Office and/or the White House Communications Agency.” Id. at 6 (Compl. ¶ 17).

         In September 2015, several months after Plaintiff submitted its FOIA request, the Army sent Plaintiff a letter asserting that it had performed a search of the “Chief of Legislative Liaison . . ., Defense Information System Agency . . ., and Army’s Enterprise Service desk” for responsive records and had concluded that “no responsive documents exist under our purview.” Dkt. 1-4 at 2. The COA Institute then timely filed an administrative appeal of the Army’s determination. Dkt. 1-5 at 2. Attached to this appeal was an email concerning a teleconference sent from “system.manager@conus.army.mil” (“the CONUS email account”). See Dkt. 1-5 at 18. Plaintiff argued that the CONUS email account, which is purportedly housed on an Army server, should have been searched for responsive records. Id. at 3–4.

         On May 5, 2016, the Army notified Plaintiff that it had not yet processed the FOIA request because it handles FOIA appeals in the order they are received. Dkt. 1-7 at 2. On May 31, 2016, more than eleven months after the submission of the request, Plaintiff brought suit seeking release of the requested records. See Dkt. 1. The Army ultimately released fewer than 250 pages of records in response to the FOIA request. Dkt. 25-1 at 3 (citing Dkt. 22 at 1). In the records released, moreover, the Army redacted the “names and personally identifying information of all military personnel at the rank of Colonel (O6) and below, and all civilians at the rate of GS-15 and below, ” with certain limited exceptions. Dkt. 25-4 at 6–7 (Herrington Decl. ¶ 23–24).

         The Army also determined that the CONUS emails were generated by software “housed on an Army servicer, resulting in the use of an ‘army.mil’ extension.” Dkt. 25-3 at 3 (DeAgostino Decl. ¶ 11). Because the Army determined that “only EOP [personnel] were involved in the creation of” individual emails from that account “and in hosting or arranging the conference call[s] referenced therein, ” it declined to search the CONUS email account for responsive documents. Id. at 3–4 (DeAgostino Decl. ¶ 11–13). The Army determined, in short, that the CONUS emails were not called for by the FOIA request because they did not reflect any role by the Army in “host[ing] and/or arrang[ing]” telephone and video conferences for EOP staff. Id. (DeAgostino Decl. ¶ 13).

         On June 8, 2018, the Army moved for summary judgment, contending that it had conducted an adequate search for responsive records and had properly redacted the names of various employees on the released records pursuant to FOIA Exemption 6. See Dkt. 25-1 at 6. In support of that motion, the Army provided declarations from Paul DeAgostino, the Senior Counsel to the Chief Attorney and Legal Services, Office of the Administrative Assistant to the Secretary of the Army, and from Mark Herrington, an Associate Deputy General Counsel in the Office of General Counsel at the DOD. See Dkt. 25-3; Dkt. 25-4. On July 9, 2018, Plaintiff filed its opposition to the Army’s motion for summary judgment and cross-moved for summary judgment, contending that the Army had not conducted an adequate search because it had failed to search the CONUS email account and that the Exemption 6 redactions were improper. See Dkt. 26-1 at 7–8. In opposing Plaintiff’s cross-motion, the Army raised for the first time its contention that the CONUS emails were not “agency records” of the Army but, rather, were created and controlled by the EOP. Dkt. 29 at 11–15.

         II. LEGAL STANDARD

         FOIA matters are typically resolved on a motion for summary judgment, which requires the moving party to “show that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). FOIA authorizes courts “to order the production of any agency records improperly withheld.” 5 U.S.C. § 552(a)(4)(B). Accordingly, at the summary judgment stage, the Court must discern whether there is any “genuine dispute of material fact” as to whether “any agency records” have been “improperly withheld.” See id.; Fed.R.Civ.P. 56(a).

         FOIA first requires an agency to conduct “a ‘search reasonably calculated to uncover all relevant documents.’” Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (citation omitted). To demonstrate the adequacy of the search, the agency must provide “a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Agencies may withhold responsive documents uncovered in that search only if those documents fall within one of the exemptions enumerated in 5 U.S.C. § 552(b). Insofar as the agency withholds responsive records pursuant to those exemptions, it must provide an index of that information and the justification that supports withholding each record. Vaughn v. Rosen, 484 F.2d 820, 827–28 (D.C. Cir. 1973).

         III. ...


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