Cause of Action Institute v. United States Department of the Army ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CAUSE OF ACTION INSTITUTE,
Plaintiff,
v. Civil Action No. 16-1020 (RDM)
U.S. DEPARTMENT OF THE ARMY,
Defendant.
MEMORANDUM OPINION AND ORDER
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.
1Although “FOIA’s definition of ‘agency’ . . . literally includes ‘any . . . establishment in the
executive branch of Government (including the Executive Office of the President),’ 5 U.S.C. §
552(f),” it “does not include EOP units,” like the White House Office, “whose sole functions are
to advise and assist the President.” Armstrong v. Exec. Office of the President, 90 F.3d 553, 567
(D.C. Cir. 1996).
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
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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
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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
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(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
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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. ANALYSIS
In the course of briefing, the parties have narrowed their dispute to two areas: First,
whether the FOIA request sought emails sent from the CONUS email account and, if so, whether
those emails are properly considered “agency records” such that this Court may order the Army
to produce them pursuant to 5 U.S.C. § 552(a)(4)(B). Second, whether the Army’s redactions of
employees’ names and other personally identifying information pursuant to FOIA Exemption 6,
id. § 552(b)(6), were proper. The Court addresses each issue in turn.
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A. The CONUS Email Account
At the time the case came to the Court, the parties’ dispute regarding the CONUS email
account centered on the question whether Plaintiff’s FOIA request called for the records
contained in that account. That request sought records of communications concerning telephone
and video conferences “hosted and/or arranged by the military.” Dkt. 1-2 at 2. In the Army’s
view, Army personnel played no role in hosting or arranging the conferences; rather, the process
of hosting and arranging telephone and video conferences was handled exclusively by EOP staff.
Dkt. 25-3 at 3–4 (DeAgostino Decl. ¶ 11–12). The Army merely provided the software and
housed the server that the EOP staff use to host and arrange the conferences. Dkt. 29 at 8.
Plaintiff, on the other hand, posited that the scheduling emails sent from the CONUS email
account were precisely what it sought, Dkt. 30 at 8, and any doubt about that was put to rest by
its administrative appeal, which included a sample email sent from the CONUS email account,
Dkt. 1-5 at 2, 18.
1. The Army’s Motion for Summary Judgment Regarding the CONUS Email
The Court is skeptical of the Army’s reading of the FOIA request, especially in light of
the agency’s “duty to construe a FOIA request liberally.” People for the Ethical Treatment of
Animals v. Nat’l Insts. of Health, 745 F.3d 535, 540 (D.C. Cir. 2014) (citation omitted). To be
sure, if the request merely asked for records of communications concerning conferences that the
military arranged, the Army’s reading of the request might make sense. The very next sentence
of the request, however, explains that Plaintiff was seeking “any e-mail requesting that a
conference line be opened, as well as any subsequent confirmation e-mail or related
correspondence.” Dkt. 1-2 at 2 (emphasis added). That clarification is best understood to bring
the emails at issue within the scope of the FOIA request. The CONUS emails were
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communications with EOP employees that confirmed telephone and/or video conferences.
Indeed, the subject line of each email indicated that the email was a “Confirmation Notice –
Audio Conference,” and the body of each email listed the conference leader, the conference
requester, the start date and time, and end date and time, and the number of participants. Dkt. 1
at 3 (Compl. ¶ 5).
In reaching a contrary conclusion, the Army places dispositive weight on the preceding
sentence of the request, which asks about telephone and video conferences “hosted and/or
arranged by the military.” Dkt. 1-2 at 2. In the Army’s view, the records at issue had nothing to
do with conferences hosted or arranged by the military because EOP staff submitted requests for
the conferences and the software that the Army provided automatically generated the CONUS
emails without any involvement of Army personnel. Dkt. 25-1 at 14. But that is too cramped a
reading of the request; it assumes, without basis, that the request excluded the automated
“arrange[ment]” of calls. Id. Given the clarity of the follow-on sentence, it is difficult to
construe the request to exclude confirmatory emails generated using software “housed on an
Army server.” Dkt. 25-3 at 3 (DeAgostino Decl. ¶ 11); see also LaCedra v. Exec. Office for U.S.
Att’ys, 317 F. 3d 345, 348 (D.C. Cir. 2003) (rejecting agency interpretation of request that
rendered portions of the request surplusage where the result is an “improbable” construction).
Any doubt about what records Plaintiff sought, moreover, was resolved by its administrative
appeal, which attached a sample email. Dkt. 1-5 at 2. The Army, accordingly, had a sample of
exactly what Plaintiff sought before the Army conducted any search for responsive records.
Congress amended FOIA in 1974 to replace the phrase “request for identifiable records”
with the more forgiving phrase “request for records which . . . reasonably describes such record.”
Truitt v. Dep’t of State, 897 F.2d 540, 544 (D.C. Cir. 1990). It did so to “‘make[] explicit the
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liberal standard for identification’” of the records sought, and to prevent agencies from using
“‘identification requirements as an excuse for withholding documents.’” Id. at 544–45 (citation
omitted). Applying that liberal standard here, the Army could have—and should have—
construed Plaintiff’s request to include emails sent from the COUNUS account confirming
telephone and video conferences. The Court, accordingly, is unconvinced that the Army is
entitled to summary judgment with respect to the CONUS emails on the sole ground it asserted
in its motion for summary judgment.
2. Plaintiff’s Cross-Motion for Summary Judgment Regarding the CONUS Email
The Court is also unconvinced, however, that Plaintiff is entitled to prevail on its cross-
motion for summary judgment. In opposing that motion, the Army raised for the first time an
alternative, and more persuasive, defense. It now argues that the records at issue are not—and
never were—“agency records” of the Army. Dkt. 29 at 11–15. Rather, in the Army’s view, the
records belonged to, and were controlled by, the EOP, and, as a result, it had no obligation or
right to release them. Plaintiff takes issue with that contention on both procedural and
substantive grounds. It first argues that the Army has failed to offer admissible and sufficient
evidence in support of its contention and that, at minimum, it should be allowed to take
discovery on the issue. And, it argues that the Army’s theory, in any event, proves too much; it
would mean, in Plaintiff’s view, that records relating to conference calls involving White House
Office Staff could never be obtained under FOIA. For the reasons discussed below, the Court is
persuaded by the Army’s legal argument but agrees with Plaintiff that the evidence the Army has
offered to date is insufficient to meet the Army’s burden. That does not mean, however, that
Plaintiff is entitled to summary judgment. Rather, further factual development is required before
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the Court can definitively resolve the question whether the CONUS emails are “agency records”
of the Army.
The D.C. Circuit’s decision in Judicial Watch, Inc. v. U.S. Secret Service, 726 F.3d 208(D.C. Cir. 2013), guides the Court’s inquiry here. See also ACLU v. CIA, 823 F.3d 655 (D.C.
Cir. 2016). There, Judicial Watch requested records from the Secret Service documenting every
visitor to the White House Complex over a period of seven months. Judicial Watch I, 726 F.3d
at 211. Because all visitors to the White House must be cleared by the Secret Service, the Secret
Service maintained records of each visitor, the White House passholder who requested that
visitor’s entrance, and the name and details of the visit. Id. at 212. This data was “enter[ed] into
a computer” by the passholder and then automatically forwarded to the Secret Service “for
processing.” Id. The White House and the Secret Service entered into a memorandum of
understanding, which limited the Secret Service’s ability to use the records for purposes other
than clearing visitors and required the ultimate return of the records to the White House. Id. at
213. The Secret Service withheld these records from Judicial Watch on the grounds that they
were not “agency records” for purposes of FOIA. Id. at 214.
In general, “a document is not an ‘agency record’ unless [the] agency both (1) ‘create[d]
or obtain[ed]’ it, and (2) ‘controls’ it at the time of the FOIA request.” Id. at 217 (quoting U.S.
Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144–45 (1989)). Because the D.C. Circuit easily
concluded that the Secret Service had “obtained” the records at issue, the court’s analysis
focused on the more difficult question “whether [the] agency ha[d] sufficient ‘control’ over a
document to make it an ‘agency record.’” Id. at 218 (quoting Tax Analysts v. U.S. Dep’t of
Justice, 845 F.2d 1060, 1069 (D.C. Cir. 1988)). “In the usual case,” courts look to the following
four factors to answer that question: “(1) the intent of the document’s creator to retain or
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relinquish control over the records; (2) the ability of the agency to use and dispose of the record
as it sees fit; (3) the extent to which agency personnel have read or relied upon the document;
and (4) the degree to which the document was integrated into the agency’s record system or
files.” Id. (quoting Tax Analysts, 845 F.2d at 1069). The D.C. Circuit applied these factors and
concluded that they “point[ed] in different directions, with different intensities.” Id. at 220.
Faced with this “uncertain result” and the agency’s burden to demonstrate its lack of
control, id. at 220, the court went on to consider whether the “‘special policy considerations’ at
stake” counseled against disclosure, id. at 221–22. In doing so, the court applied a slightly
different test, borrowed from cases considering whether Congress—an entity that, like the White
House Office, is not covered by FOIA based, at least in part, on separation-of-powers
concerns—had control over the records for purposes of FOIA. Id. at 221-22. The central focus
of that test is whether “Congress [or the FOIA-exempt government office] has manifested its
own intent to retain control” because, if it has, “the agency—by definition—cannot lawfully
‘control’ the documents.” Id. at 222 (quoting United We Stand America, Inc. v. IRS, 359 F.3d
595, 600 (D.C. Cir. 2004)). The D.C. Circuit then held that the memorandum of understanding
evidenced the requisite intent by the White House to retain control over the White House visitors
records such that they were not “agency records” under FOIA. Id. at 224. The D.C. Circuit
buttressed this conclusion, moreover, by emphasizing the substantial separation-of-powers
concerns that would arise if Congress could condition the President’s reliance on outside
agencies to perform certain necessary White House functions on the disclosure of information
regarding the specific meetings of the President’s staff. Id. at 224–26.
The Court of Appeals reached a different conclusion, however, with respect to records
involving EOP offices, such as the Office of Management and Budget, whose “‘sole function’ is
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not to ‘advise and assist the President.’” Id. at 232. As the court observed, “[t]hose offices are
‘agencies’ under FOIA, and their records are ‘agency records’ subject to disclosure,” and
disclosure of their records does not raise the same special policy considerations applicable to the
White House Office. Id. Because no special policy considerations weighed against disclosure,
because the “four-part control test” was “indeterminate,” and because “the burden is on the
agency to demonstrate, not the requester to disprove, that the materials sought are not ‘agency
records,’” the court held that this set of records was subject to disclosure in response to Judicial
Watch’s FOIA request. Id. (citation omitted).
The issues presented here are similar to those addressed in Judicial Watch I, and thus the
Court must follow the trail blazed in that case. That trail, however, is fact-intensive, and, as
explained below, the Court concludes that it cannot definitively resolve the question whether the
CONUS emails are Army, EOP, or both Army and EOP records on the current record. Most
notably, the Army premises its argument in large part on the provisions of a Memorandum of
Understanding (“MOU”) between the EOP and the Army that is similar to the one between the
White House and the Secret Service at issue in Judicial Watch I. But, as Plaintiff correctly
observes, the MOU that the Army filed with its opposition brief covers only fiscal year 2011—
and that is not the year at issue in this case. Plaintiff also questions the basis for various
assertions contained in the declaration that the Army has offered in support of its defense. The
declarant, Dr. Sherry Sarratt, Chief of the Systems Engineering & Enterprise Services Division
of the Army Material Command, attests, for example, that “to the best of [her] knowledge, the
only time that [Army Material Command] personnel ever accessed EOP data was in assisting
EOP personnel during an initial set up period.” Dkt. 29-2 at 2 (Sarratt Decl. ¶ 7). That is an
important premise of the Army’s argument, yet Sarratt does not indicate whether she has
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personal knowledge about any such access or what, if anything, she did to investigate. As
explained below, these factual questions are potentially dispositive and preclude the Court from
resolving the status of the CONUS email account on the present record. See Fed. R. Civ. P. 56.
The first factor under the four-part control test looks to “the intent of the document’s
creator to retain or relinquish control over the records.” Judicial Watch I, 726 F.3d at 218
(quoting Tax Analysts, 845 F.2d at 1069). But, here, as in Judicial Watch I, there is “some
uncertainty as to which entity ‘created’” the records and thus whose intent matters for purposes
of this inquiry. Id. at 217. In Judicial Watch I, that uncertainty was resolved by the
“unequivocal” terms of the memorandum of understanding, which specified that “the White
House at all times asserts, and the Secret Service disclaims, all legal control over any and all
[White House Access Control System] records.” Id. (citation omitted). Here, the Army points to
the 2011 version of the MOU between the EOP and the Army, which provided that “[t]itle to and
ownership of any data placed in the AMC QuickBase system by the EOP . . . will belong to the
EOP at all times.” Dkt. 29 at 14 (quoting Dkt. 29-1 at 4). Assuming that the version of the
MOU operative in fiscal year 2015 contained the same language, this factor would likely weigh
in favor of the Army. Although the Army suggests that the the provision was in effect in fiscal
year 2015, the existing records does not definitively resolve that question.
Analysis of the next factor—“the ability of the agency to use and dispose of the record as
it sees fit”—similarly weighs in the Army’s favor, at least based on the facts that the Army asked
the Court to assume. Judicial Watch I, 726 F.3d at 218. The version of the MOU between the
EOP and the Army before the Court contains a provision that mirrors one in Judicial Watch I.
That provision precludes the Army from disposing of records “as it sees fit,” id., barring it from
“deleting or modifying” or “disclosing . . . to any party for any reason” any of the data “without
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express, written direction from [the] EOP.” Dkt. 29-1 at 2. In Judicial Watch I, the D.C. Circuit
held that, in light of the memorandum of understanding’s limitations on use and the standard
practice of the Secret Service of returning the files to the White House, the second factor
weighed in favor of the agency. Judicial Watch I, 726 F.3d at 218–19. The Court cannot
definitively resolve the question whether the same conclusion applies here, however, both
because the Court has seen only the fiscal year 2011 MOU and because the Army’s declarant
merely asserts that, “absent EOP action,” Army personnel “did not have [the] credentials that
would enable them to access” this data, Dkt. 28-2 at 2 (Sarratt Decl. ¶ 7). This leaves
unanswered the question whether the EOP took any “action” providing the Army personnel with
“[a] username and password,” and, as noted above, the declarant merely asserts that, “to the best
of [her] knowledge,” Army personnel only had access to the “EOP data . . . during an initial set
up period,” without explaining what the declarant did to inform her conclusion. Id.
The third factor of the control test requires the Court to consider whether agency
personnel have “read or relied upon the documents.” Judicial Watch I, 726 F.3d at 219. This
factor weighed against the Secret Service in Judicial Watch I because Secret Service personnel
“read and rel[ied] upon the documents . . . for the limited purposes the records serve[d]: to enable
the [Secret] Service to perform background checks and verify admissibility at the time of a
visitor’s entrance.” Id. Here, in contrast, it appears that the CONUS email account, by design,
did not require any Army personnel to read or to rely on any documents generated by the system.
To be sure, there is a certain awkwardness to applying this factor to government software that
automatically generates records, particularly in a world in which important government actions
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may, over time, become increasingly automated. 2 Insofar as this factor does carry any weight in
this context, it points—unlike in Judicial Watch I—modestly in favor of the government,
because, at least as far as the current record reflects, the Army did not use the records in the
performance of any of its duties.
The fourth and final factor—the “degree to which the document was integrated into the
agency’s record system or files,” id.—once again requires further factual development. The
Sarratt declaration attests that “[a]t no time was EOP data integrated into any other Army records
or files, as the data remained partitioned off exclusively for EOP use,” Dkt. 29-2 at 3 (Sarratt
Decl. ¶ 8), and that “a copy of the emails themselves were not retained on an Army server at any
point,” id. (Sarratt Decl. ¶ 10). Of course, if this means that the Army never possessed the
records that Plaintiff sought, that may well resolve matters; the Army could not release records it
did not have. 3 See Kissinger, 445 U.S. at 154–55. Moreover, even putting that practicality
aside, if the Army could establish that the CONUS email account automatically generated
responses to meeting requests, without maintaining a copy of the incoming or outgoing email for
even a brief time—on a backup system or otherwise—that fact would weigh substantially in the
Army’s favor. But, once again, the present record does not provide sufficient detail for the Court
2
For instance, the question of agency “use” would be more difficult if the automated records
reflected government decisions, such as whether to grant or deny benefits.
3
Elsewhere in the declaration, Sarratt attests that, after the FOIA request was submitted, the
Army stopped providing the QuickBase software to EOP and therefore asked EOP to “remove its
data from the [Army’s] server by . . . 2016.” Dkt. 29-2 at 4 (Sarratt Decl. ¶ 13). Because the
Court concludes that there is a material dispute of fact as to whether these records were “agency
records” at the time the request was made, it need not address the separate Kissinger question
regarding the scope of the agency’s obligation to produce records that are no longer in its
possession. See Kissinger, 445 U.S. at 154–55.
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to resolve that important question. More than a sentence is necessary to explain how the server
operated.
In sum, it is possible that all four factors might weigh unambiguously in the Army’s
favor, thus resolving the issue without reaching the separate, special policy considerations test.
If so, that would provide the Army with a defense with respect to all of the CONUS emails.
Alternatively, it is possible that the four-factor test might ultimately yield an uncertain or
indeterminate result, as in Judicial Watch I. See Judicial Watch I, 726 F.3d at 220. If so, the
Court would then need to apply the special policy considerations test, which could result in a
decision, like that in Judicial Watch I, requiring the release of some of the records, but not the
emails scheduling telephone or video conferences for the White House Office. Or, it is possible
that the Army will be unable to meet its burden of demonstrating that the fiscal year 2015
records at issue were subject to an MOU, like the one the Army has provided for fiscal year
2011. Applying the Judicial Watch I framework is fact-intensive, and it requires judicial
sensitivity to the important separation-of-powers considerations that animate the special
considerations test. For present purposes, however, the Court merely holds that there is a
genuine dispute of material fact that precludes the Court from granting Plaintiff’s motion for
summary judgment. See Fed. R. Civ. P. 56(a).
B. Exemption 6 Withholdings
The Army also seeks summary judgment on the ground that its redactions of certain
personally identifying information of its employees was proper under FOIA Exemption 6.
“Exemption 6 protects information about individuals in ‘personnel and medical files and similar
files’ when its disclosure ‘would constitute a clearly unwarranted invasion of personal privacy.’”
Shapiro v. U.S. Dep't of Justice, 153 F. Supp. 3d 253, 257 (D.D.C. 2016) (quoting 5 U.S.C. §
16552(b)(6)). Courts must read “‘similar files’ broadly to include any ‘[g]overnment records on an
individual which can be identified as applying to that individual.’” People for the Am. Way
Found. v. Nat’l Park Serv., 503 F. Supp. 2d 284, 303 (D.D.C. 2007) (quoting U.S. Dep’t of State
v. Wash. Post Co., 456 U.S. 595, 602 (1982)). In this circuit, that means the “exemption can
sweep in ‘bits of personal information, such as names and [email] addresses.’” Edelman v. Sec.
& Exch. Comm’n, 239 F. Supp. 3d 45, 55 (D.D.C. 2017) (quoting Judicial Watch, Inc. v. FDA,
449 F.3d 141, 152 (D.C. Cir. 2006) (“Judicial Watch II”)).
An agency may not withhold or redact a record simply because it contains personally
identifying information. Rather, the information “must be ‘of such a nature that its disclosure
would constitute a clearly unwarranted privacy invasion.’” Id. (quoting Nat’l Ass’n of Home
Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)). The Court must thus “weigh[] ‘the
private interest involved (namely the individual’s right of privacy) against the public interest
(namely, the basic purpose of [FOIA], which is to open agency action to the light of public
scrutiny).’” People for the Am. Way Found., 503 F. Supp. 2d at 304 (quoting Judicial Watch II,
449 F.3d at 153).
1. Foreseeable Harm Requirement
As a threshold matter, Plaintiff contends that the FOIA Improvement Act of 2016
imposed a series of changes that “raise[d] the standard by which an agency must evaluate its
withholdings.” Dkt. 27-2 at 23. As Plaintiff correctly notes, those amendments permit agencies
to withhold information under FOIA “only if the agency reasonably foresees that disclosure
would harm an interest protected by an exemption.” 5 U.S.C. § 552(a)(8)(A)(i)(I). In Plaintiff’s
view, this heightened standard is not satisfied here. In the Army’s view, the amendments merely
clarified existing law, and, in any event, the standard is met here. But both parties merely
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assume that those amendments apply to Plaintiff’s FOIA request, even though the FOIA
Improvement Act of 2016 was signed into law over a year after Plaintiff submitted its FOIA
request to the Army, and it and explicitly applies only to “request[s] for records . . . made after
the date of enactment.” FOIA Improvement Act of 2016, Pub. L. No. 114-185, § 6, 130 Stat.
538. The Court, as a result, has no occasion to address the effect of those amendments on the
standards for withholding under FOIA.
2. Balancing the Private and Public Interest
The Court then turns to the core of the dispute between the parties: whether the
redactions were justified under Exemption 6. The Army asserts that the redactions were limited
to Army personnel below the rank of Colonel (O6) and civilian personnel below the GS-15 pay
grade who did not otherwise interact with the press. Dkt. 25-1 at 19–20 (citing Herrington Decl.
¶¶ 23–24). And, the Army justifies these withholdings by asserting that all military personnel
face added threats of harassment since the September 11, 2001 attacks, this “threat is greater than
the threat to most other federal employees,” and the threat is particularly acute here because
“[m]any of [the individuals at issue] serve in sensitive DOD positions, such as in the WHCA and
WHMO, primarily supporting the President and his staff on a daily basis.” Dkt. 25-4 at 6–7
(Herrington Decl. ¶¶ 23–25).
Plaintiff first contends that the Army has insufficiently justified these redactions because
it has not provided a Vaughn index that adequately describes the rank and job duties of the
individuals whose information is being withheld. Dkt. 26-1 at 18–19. But the point of a Vaughn
index is to provide sufficient information about each withholding to enable the requester and the
courts to evaluate the legitimacy of the withholding. See Vaughn, 484 F.2d at 827–28. Thus,
where a blanket justification is given, there is no need for individualized, indexed information to
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back up that withholding—insofar as that blanket justification is valid. To determine whether
redactions under Exemption 6 are permissible, the Court must identify the privacy interest of the
individuals and the public interest in the information being sought, and then weigh those interests
against one another to determine whether the information is “of such a nature that its disclosure
would constitute a clearly unwarranted privacy invasion.” Edelman, 239 F. Supp. 3d at 55
(quoting Norton, 309 F.3d at 32).
Low-level Department of Defense and Army personnel involved in EOP scheduling have
at least some privacy interest in their names. The D.C. Circuit has described “the privacy
interest of an individual in avoiding unlimited disclosure of his or her name and address” as
“significant.” Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989).
Courts have repeatedly recognized that government employees possess some privacy interest
even in just their names. See, e.g., Hunton & Williams LLP v. U.S. EPA, 248 F. Supp. 3d 220,
257 (D.D.C. 2017); Pinson v. U.S. Dep’t of Justice, 177 F. Supp. 3d 56, 84 (D.D.C. 2016). The
Herrington declaration, moreover, attests that DOD employees, like those at issue here, may face
harassment or worse if their identities are made public. Dkt. 25-4 at 6–7 (Herrington Decl. ¶¶
23–25); see also SafeCard Servs. Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C. Cir.
1991) (explaining that agency declarations submitted in FOIA cases are afforded “a presumption
of good faith”). That factual assertion comports with common sense. Accordingly, the Court
finds that the low-level DOD personnel whose names were redacted have a privacy interest in
their names and other identifying information.
The public interest in the names of the employees at issue is not so easy to discern.
Plaintiff asserts that it is seeking to “understand ‘the manner in which agencies, the White
House, and the military (as communications facilitator) conduct audio or visual conferences.’”
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Dkt. 27-2 at 21 (quoting Dkt. 1-2 at 3). And, it asserts that knowing “who is involved in
facilitating” these conferences “is an integral part” of the investigation. Id. (emphasis omitted).
But it is far from clear why the public would have any interest in which relatively low-ranking
Army and DOD personnel are responsible for setting up these teleconferences, nor does Plaintiff
make any plausible argument in this regard. See id. Plaintiff does not assert that these
individuals were participants in the conferences such that the redactions leave the public in the
dark about key aspects of any “agency decisionmaking process.” See Hunton & Williams LLP,
248 F. Supp. 3d at 258. As far as the Court can discern, these individuals were merely
ministerial facilitators of meetings who had no role themselves in any decisionmaking process.
Because “something, even a modest privacy interest, outweighs nothing every time,”
Consumers’ Checkbook, Ctr. for the Study of Servs. v. U.S. Dep’t of Health & Human Servs., 554
F.3d 1046, 1056 (D.C. Cir. 2009) (internal quotation and citation omitted), the Court concludes
that the privacy interest of the employees outweighs any public interest in disclosure and
consequently awards summary judgment in favor of the Army with respect to its redactions
under Exemption 6.
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CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment, Dkt. 25, is
hereby GRANTED in part and DENIED in part without prejudice and Plaintiff’s Cross-Motion
for Summary Judgment, Dkt. 26 is DENIED.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: September 29, 2019
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