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Judicial Watch, Inc. v. FBI

United States District Court, District of Columbia

September 4, 2019

FBI, Defendant.




         Plaintiff Judicial Watch is a not-for-profit organization that aims to educate the public about government operations and activities. To gain information about the federal government's operations and activities, Judicial Watch frequently files Freedom of Information Act (“FOIA”) requests with federal agencies. Because these FOIA requests seek federal records, they inherently rely on the recordkeeping programs that federal agencies must have pursuant to the Federal Records Act (“FRA”). In this case, Judicial Watch contends that Defendant FBI has not conformed with the FRA because it has not established and maintained a recordkeeping program that provides effective controls over non-email electronic messages, including text messages. Judicial Watch thus brings this Administrative Procedure Act (“APA”) suit, contending that the FBI's lack of an adequate recordkeeping program for electronic messages is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the FRA. Defendant moves under Federal Rule 12(b)(6) to dismiss Plaintiff's claim. Because the Court finds that Judicial Watch's complaint does not allege facts that make out a plausible claim for relief, it will grant the FBI's motion to dismiss while also granting Plaintiff leave to file an amended complaint.


         A. The Federal Records Act[1]

         The Federal Records Act consists of a series of statutes that, collectively, “govern[] the creation, management and disposal of federal records.”[2] Citizens for Responsibility & Ethics in Washington v. Pruitt (“CREW I”), 319 F.Supp.3d 252, 254 (D.D.C. 2018) (quoting Armstrong v. Bush (“Armstrong I”), 924 F.2d 282, 284 (D.C. Cir. 1991)). Congress's goal in enacting the FRA was threefold: “(1) ‘efficient and effective records management'; (2) ‘[a]ccurate and complete documentation of the policies and transactions of the Federal Government'; and (3) ‘[j]udicious preservation and disposal of records.'” Armstrong I, 924 F.2d at 284-85 (quoting 44 U.S.C. § 2902).

         To execute these objectives, the FRA requires each federal agency to put in place “standards and procedures” that ensure “accurate and complete” documentation of the federal government's policies and transactions. 44 U.S.C. § 2902. The head of each federal agency must “establish and maintain an active, continuing program” for management of that agency's records that provides for, inter alia, “effective controls” over the creation, maintenance, and use of records and “cooperation with the Archivist” of the United States in maintaining and disposing of records. Id. § 3102. The Archivist of the United States, who serves as the head of the National Archives and Records Administration (“NARA”), plays an important oversight role in this statutory framework: among other responsibilities, the Archivist must issue “standards, procedures, and guidelines with respect to records management.” Id. § 2904(c)(1). Each agency's recordkeeping program must include “safeguards against the removal or loss of records” that the agency head “determines to be necessary and required by regulations of the Archivist.” Id. § 3105.

         Pursuant to the authority granted by the FRA, the Archivist's detailed regulations set forth agency recordkeeping requirements. See 36 C.F.R. §§ 1222.22-1222.34. These regulations stipulate, among other matters, how agencies are to maintain records. See Id. § 1222.34. Specifically, “[a]gencies must implement a records maintenance program so that complete records are filed or otherwise identified and preserved . . . and permanent and temporary records are physically segregated from each other or, for electronic records, segregable.” Id. Thus, each agency's records maintenance program must, inter alia, “[m]aintain electronic, audiovisual and cartographic, and microform records” in accordance with all other NARA regulations, id. §1222.34(b); “[a]ssign responsibilities for maintenance of records in all formats within each agency component, ” id. § 1222.34(c); “[i]ssue appropriate instructions to all agency employees on handling and protecting records, ” id. § 1222.34(e); and separately maintain records and non-record materials, id. § 1222.34(f).

         Both the FRA and the associated NARA regulations also further specify an agency's duty regarding electronic messaging. The FRA, as amended in 2014, defines “electronic messages” as “electronic mail and other electronic messaging systems that are used for purposes of communicating between individuals.” 44 U.S.C. § 2911. This amendment clarifies that “official business conducted using non-official electronic messaging accounts” remains subject to disclosure requirements. Id. NARA guidance published in July 2015 sets forth in greater detail the records management requirements that apply to electronic messages, including text messaging, instant messaging or other chat messaging systems, and other similar communications systems. See David Ferriero, Guidance on Managing Electronic Messages, Bulletin 2015-02 (July 29, 2015), available at This guidance clarifies that electronic messages can be federal records, so long as they are “created or received in the course of agency business.” Id. “Like all Federal records, ” any electronic records created or received in the course of agency business “must be scheduled for disposition.” Id. This requirement applies whether the electronic message in question is created on an official or a personal account, and “[a]gencies must provide clear instructions to all employees on their responsibility to capture electronic messages created or received in personal accounts” to ensure that they satisfy what the FRA demands. Id. In short, function, not form or origin, determines what the FRA mandates regarding a particular communication.

         B. Factual History[3]

         Plaintiff Judicial Watch is a not-for-profit organization based in Washington, D.C., that aims to “educate the public about the operations and activities of the government and government officials.” Compl. ¶ 3, ECF No. 1. To investigate the federal government, Judicial Watch “mak[es] extensive use of” FOIA requests and “often files suit” if the agency does not timely respond to a FOIA request or if it withholds potentially responsive records. Id. Defendant FBI is one of the agencies with which Plaintiff has filed FOIA requests in the past, including sixty FOIA requests to the FBI in the year 2018. Id. Thirty of the FOIA requests sent to the FBI in the year 2018 specifically sought electronic messages. Id. In addition, as of the filing of the instant suit in late 2018, Plaintiff had eight pending lawsuits seeking communications of FBI officials, officers, or employees, two of which specifically sought electronic messages. Id.

         In the suit before this Court, Judicial Watch argues that the FBI's recordkeeping policy for preservation of non-email electronic messages falls short of what the FRA demands. Id. at 1. Plaintiff asserts that the FBI “does not have a recordkeeping program in place that provides effective controls over the maintenance of electronic messages, including text messages.” Id. ¶ 11. Because it lacks a recordkeeping program that conforms to the FRA, Judicial Watch contends that it “is unable to obtain electronic messages through FOIA requests to the FBI.” Id. ¶ 15. Plaintiff thus brings an APA challenge alleging that the FBI's failure to institute an effective recordkeeping program for electronic messages is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the FRA. Id. ¶ 19.

         Defendant FBI's recordkeeping program for all records, including electronic messages, is set forth in a Records Management Policy Guide (“Policy Guide”).[4] See Def.'s Mot. Dismiss, Ex. A, ECF No 8-2.[5] The unclassified version of the Policy Guide was last revised on July 1, 2015, id. at i, and runs to 34 pages (exclusive of appendices). The Policy Guide applies to all FBI personnel, id. § 1.5; see also Id. § 3, and sets forth the responsibilities of all personnel regarding creation and maintenance of “adequate, complete, accurate, and proper documentation” of all official agency business, including proper filing, recording, and disposition of “all records made or received while in the FBI's service, ” id. § 2.8.

         The Policy Guide begins with overarching directives for all FBI personnel. First, it defines what constitutes a record. Id. § 4.2. The agency's definition quotes directly from the FRA at § 3301 and then explains what determines whether or not a document is a “record.” See Id. (enumerating criteria and stating that a document that contains information may be considered a record, “regardless of medium”). In addition, the Policy Guide contains further specification of transitory and nontransitory records, as well as what distinguishes a record from a non-record. Id. §§ 4.3-4.5. The Policy Guide emphasizes that compliance with these requirements is the burden of each FBI employee: “[e]very employee . . . has the responsibility to adequately document activities, decisions, policies, and transactions conducted to further the FBI's mission and to do so according to FBI policies.” Id. § 4.7.1.

         The Policy Guide subsequently addresses different types of records including, as is pertinent here, electronic records, including text messages. With regard to creation and maintenance of such records, “[a]ll FBI personnel bear responsibility for identifying, capturing and moving electronic records into a recordkeeping system.” Id. § 4.8.14; see also Def.'s Mem. P. & A., Ex. B, Declaration of Michael G. Seidel (“Seidel Declaration”) ¶ 6, ECF No. 8-3 (“[T]o the extent that FBI personnel create records by using text messages to conduct official agency business, the messages are required to be uploaded to an official recordkeeping system.”).[6] The Policy Guide requires all personnel to “import electronic communications that are nontransitory records into an [electronic recordkeeping] system.” Def.'s Mot. Dismiss, Ex. A. at ¶ 4.8.14; see also Seidel Decl. ¶ 12 (“When an employee creates an agency record, . . . via text message or otherwise, they are obligated to import it into an FBI filing system.”). Individual employees bear this responsibility because text message communications are not “completed directly in and automatically integrated into FBI filing systems.” Seidel Decl. ¶ 12.

         The Policy Guide also includes four pages specifying FBI personnel's recordkeeping responsibilities regarding electronic mail (“email”). See Def.'s Mot. Dismiss, Ex. A, §§ 4.8.15- 4.8.19. This portion of the Policy Guide details how FBI personnel are to address “UNet Email” communications, see Id. §, nontransitory record emails, see Id. §§ 4.8.16-4.8.17, transitory record emails, see Id. § 4.8.18, and nonrecord emails, see Id. § 4.8.19, respectively. If the email is a nontransitory record that must be retained for more than 180 days, id. § 4.8.16, then FBI personnel must import it into the appropriate case file in Sentinel (the FBI's official central recordkeeping system, see Id. §§ 4.8.3), id. § 4.8.17. This step is necessary because many email systems such as Microsoft Outlook or UNet mail are “communication systems, not electronic recordkeeping systems.” Id. § 4.8.17. As such, FBI personnel must undertake specific further steps, as the Policy Guide explains, to import any nontransitory record email into the FBI's electronic recordkeeping system. See id.

         III. ...

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