Competitive Enterprise Institute v. Office of Science and Technology Policy ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Competitive Enterprise
Institute,
Plaintiff,
v.
Office of Science and Civil Action No. 14-765 (GK)
Technology Policy
Defendant.
MEMORANDUM OPINION
Plaintiff Competitive Enterprise Institute ("Plaintiff" or
"CEI") brings this action against the Office of Science and
Technology Policy ("Defendant," "OSTP," or "the Government"), a
component of the Executive Office of the President of the United
States. Plaintiff alleges violations of the Freedom of
Information Act ("FOIA"), 5 U.S.C. § 552, (Counts I & II), the
Administrative Procedure Act ("APA"), 5 U.S.C. § 704, et seq.,
(Count III), and the Federal Records Act ("FRA"), 44 U.S.C. §§
2101-18, 2901-09, 3101-07, 3301-14, (Counts IV-VII).
This matter is presently before the Court on the
Governmen.t' s Motion to Dismiss, [Dkt. No. 7]. Upon consideration
of the Motion, Opposition, [Dkt. No. 8], Reply, [Dkt. No. 10],
and the entire record herein, and for the reasons stated below,
Defendant's Motion is granted, and Plaintiff's Complaint shall
be dismissed.
I. BACKGROUND
A. Statutory Framework
1. Freedom of Information Act
FOIA, 5 U.S. C. § 552, allows individuals to request the
disclosure of records from government agencies. Id. § 552 (a) ( 3) .
When an agency receives a request that "reasonably describes"
the records sought, id. § 552 (a) ( 3) (A) , ·it must "conduct [] a
search reasonably calculated to uncover all relevant documents."
Morely v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (internal
quotation marks omitted). The agency must then disclose any
responsive agency records it locates, except to the extent that
any such records are protected from disclosure by one of FOIA's
nine statutory exemptions. See 5 U.S.C. § 552(b).
If an agency withholds responsive records not covered by
one of FOIA' s exemptions, after exhausting administrative
remedies, the requester may file a lawsuit in district court to
challenge the agency's decision to withhold. See id.
§ 552(a) (4) (B). As the Supreme Court has held, in order to state
a claim under FOIA, a requester must allege that the agency has
(1) improperly; (2) withheld; (3) agency records. Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150
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(1980). "Judicial authority to devise remedies and enjoin
agencies can only be invoked . if the agency has contravened
all three components of this obligation." Id.
2. Federal Records Act
The FRA is "a collection of statutes governing the
creation, management, and disposal of records by federal
agencies." Pub. Citizen v. Carlin, 184 F.3d 900, 902 (D.C. Cir.
1999); accord 44 U.S.C. §§ 2101-18, 2901-09, 3101-07, 3301-14.
Under the FRA, agency heads are required to "make and preserve
records containing adequate and proper documentation of the
organization, functions, policies, decisions, procedures, and
essential transactions of the agency [.]" 44 U.S. C. § 3101. Not
all documents in an agency's possession qualify as "records"
under the FRA. Instead, "records" includes any "recorded
information" "made or received by a Federal agency under Federal
law or in connection with the transaction of public business and
preserved or appropriate for preservation by that agency
as evidence of the organization, functions, policies, decisions,
procedures, operations, or other activities of the Government or
because of the informational value in them." Id.
§ 330l(a)(l)(A).
Agencies may only dispose of records on terms approved by
the Archivist of the United States, who is head of the National
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Archives and Records Administration ("NARA"). 44 U.S.C. § 3303;
36 C.F.R. § 1225.10. In order to efficiently manage the
disposition process, agencies may create records schedules,
which must be approved by the NARA, to govern recurring types of
records. 44 U.S.C. § 3303(3); 36 C.F.R. §§ 1225.10-1225.26.
Records may be deemed temporary or permanent, the former
designation leading to destruction after a set period and the
latter, to preservation and eventually, transfer to the NARA. 36
C.F.R. §§ 1225.14, 1225.16.
If an agency head learns of "any actual, impending, or
threatened unlawful removal, defacing, alteration, corruption,
deletion, erasure, or other destruction of records in the
custody of the agency," he or she must notify the Archivist. 44
U.S.C. § 3106. If the agency head "knows or has reason to
believe [that records] have been unlawfully removed from [his or
her] agency," then the agency head "with the assistance of the
Archivist shall initiate action through the Attorney General for
the recovery of records [.]" Id. If the agency head "does not
initiate an action for such recovery or other redress within a
reasonable period of time," then the Archivist "shall request
the Attorney Generai to initiate such an action, and shall
notify the Congress when such a request has been made." Id.
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B. Factual Background1
On October 15, 2013, Plaintiff sent OSTP a FOIA request
seeking "copies of all policy /OSTP-related emails sent to or
from jholdren@whrc.org (including as cc: or· bee:)." CEI FOIA
Request at 2. [Dkt. 7-1]; see also compl. ']['][ 2-3, 26-28. The
jholdren@whrc.org email account, provided to OSTP Director John
Holdren ("Dr. Holdren" or "Director Holdren") is maintained by
his former employer, a private entity called the Woods Hole
Research Center. Compl. '][ 2, 23. The request alleged that "John
Holdren maintained this account after joining the White House,
and that he used this address/account for OSTP-related
correspondence." CEI FOIA Request at 2.
CEI clearly stated that its request would "entail[]
searching jholdren@whrc.org." Id. According to CEI's request,
while "[i]t [would] make [] sense for OSTP to search Mr.
Holdren's OSTP account(s) [,] this request [was] for
responsive records on the cited account[,]" id.' i.e.,
jholdren@whrc.org, not his OSTP account(s).
1
For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat'l Rifle Ass'n of Am., 606 F.2d 1251, 1253
(D.C. Cir. 197 9) ~ Therefore, unless otherwise noted, the facts
set forth herein are taken from Plaintiff's Complaint.
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On February 4, 2014, Defendant responded to CEI' s request
stating that "OSTP [would be] unable to search the
'jholdren@whrc.org' account because that account [was]
under the control of the Woods Hole Research Center, a private
organization. Compl. ~ 29 (quoting OSTP' s Response to FOIA
11
Request [Dkt. 7-2]). OSTP stated that it "underst[ood] the
records [CEI] requested to be beyond the reach of FOIA, 11
and
therefore, "consider [ed] [the] request unperfected. 11
Id.
On February 18, 2014, CEI replied to OSTP's letter.
Plaintiff requested administrative appellate review of the
agency's initial determination that the records sought were
outside of FOIA's ambit. Compl. ~ 30.
On March 7, 2014, 2 OSTP responded to CEI's letter of
February 18. Compl. ~ 32. In OSTP's view, CEI's letter did not
serve as an appeal; instead, it merely "clarif [ied] that [CEI
was] requesting a search of Dr. Holdren's OSTP email account for
records to and from jholdren@whrc.org. 11
Id.
On April 18, 2014, CEI responded, calling OSTP's reading a
mischaracterization and reiterating its desire for the agency to
2
Plaintiff's Co~plaint ~ 32 states that OSTP did not respond to
CEI's February letter until March 31, 2014, but that appears to
be a mistake. A copy of the letter with the text quoted in the
Complaint bears the date March 7, 2014. [Dkt. No. 7-4]. CEI
attached to its Opposition another letter from OSTP dated March
31, 2014, [Dkt. No. 8-1], but the March 31 letter also
references the March 7 letter.
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search for all OSTP-related emails sent to or from
j holdren@whrc. org. Compl. ':II 33; CEI' s April Response [ Dkt. No.
7-5]. CEI noted that, in its view, the agency had failed to
respond to CEI's appeal and that CEI would pursue judicial
review unless OSTP provided a substantive response by May 1,
2014. Compl. ':II 33.
On May 5, 2014, CEI filed its Complaint; on July 11, 2014,
OSTP filed its Motion to Dismiss; on July 28, 2014, CEI filed
its Opposition; and on August 21, 2014 OSTP filed its Reply.
II. STANDARD OF REVIEW
In order to survive a motion to dismiss under Rule
12 (b) (6), a plaintiff need only plead "enough facts to state a
claim to relief that is plausible on its face" and to "nudge[
[his or her] claims across the line from conceivable to
plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). "[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint." Id. at 563.
Under the Twombly standard, a "court deciding a motion to
dismiss must not make any judgment about the probability of the
plaintiffs' success . [,] must assume all the allegations in
the complaint are true (even if doubtful in fact) [, and]
must give the plaintiff the benefit of all reasonable inferences
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derived from the facts alleged." Aktieselskabet AF 21. November
2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008)
(internal quotation marks and citations omitted). A complaint
will not suffice, however, if it "tenders 'naked assertion [ s] '
devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556
u.s. 662, 678 (2009) (quoting Twombly, 550 u.s. at 557)
(alteration in Iqbal) .
III. ANALYSIS
A. Counts I & II: FOIA Claims Seeking an Injunction and a
Declaratory Judgment
Counts I and II of CEI's Complaint arise under FOIA, which
allows private persons to contest an agency's (1) improper
(2) withholding of (3) agency records. Kissinger, 445 U.S. at
150.
Plaintiff has been exceedingly clear about what it wanted
from OSTP: work-related emails residing on Dr. Holdren's
unofficial email account, jholdren@whrc.org, which is maintained
by a private entity, the Woods Hole Research Center. See CEI
FOIA Request at 2 ("This [request] entails searching
jholdren@whrc.org. It makes sense for OSTP to search Mr.
Holdren's OSTP account(s) but this request is for
responsive records on the cited account."); Compl. Kissinger, 445 U.S. at 139, the Government
contends that it is not "withholding" the requested emails
because it neither possesses nor controls them. 4 In Kissinger,
the Supreme Court held that FOIA's "withholding" requirement
demonstrates that an agency's "possession or control is a
prerequisite to FOIA disclosure duties [.]" Id. at 152. Thus,
FOIA did not reach transcriptions of Henry Kissinger's phone
calls once the transcriptions had been removed from the State
Department's possession and placed under the control of Mr.
3
In its brief, CEI maintains that it also wants copies of emails
sent to or from jholdren@whrc. org that reside on Dr. Holdren's
official OSTP email account. Pl.'s Opp' n at 18-22. CEI
acknowledges, ·however, that before litigation commenced, OSTP
had already begun rolling productions of responsive emails on
Dr. Holdren's OSTP account. Id. at 25. CEI claims that there is
something " [ s] uspicious []" about the Government's cessation of
these rolling productions, id., but the Government only stopped
production after CEI filed suit, alleging that OSTP had
"mischaracterized[,]" "distort[ed,] and effectively rewr[itten]"
CEI' s FOIA request. Compl. CJICJI 32, 3 7. In the face of these
allegations and CEI's statement that its "request [was] for
responsive records on [jholdren@whrc.org,]" CEI FOIA Request at
2, the Government's decision to stop production was neither
suspicious nor surprising. CEI's insinuations lack any merit.
4
The Government also contends that the emails are not "agency
records" because OSTP did not create or obtain them. Because
CEI's FOIA claims fail on the "withholding" prong of the
Kissinger analysis, the Court need not cr:-each the question of
whether the emails sought are agency records.
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•·
Kissinger and the Library of Congress. Kissinger, 445 U.S. at
154-55.
Plaintiff's own allegations, which the Court must accept as
true at this stage, belie any argument that OSTP has control
over emails located on the jholdren@whrc.org account. Plaintiff
itself admits repeatedly that emails on the unofficial account
are outside of OSTP' s control. Compl. ']['][ 23, 27, 30, 4 6. The
Complaint specifically alleges that when an agency employee uses
an email account "under the control of, a third party . in
this case, the Woods Hole Research Center," the emails are
"solely under the control of private parties and generally
unknown to and inaccessible by the federal government[.]" Compl.
'][ 23. Plaintiff cannot now disregard its own allegations.
CEI attempts to resuscitate its claim with the argument
that because ( 1) Dr. Holdren maintains control over
j holdren@whrc. org and ( 2) Dr. Holdren is OSTP' s Director, OSTP
controls the unofficial email account. Even putting aside this
argument's fundamental conflict with CEI' s allegations, it has
no legal basis.
The law is clear, however, that agencies do not -- merely
by way of the employer/employee relationship -- gain "control"
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5
over their employees' personal email accounts. Competitive
Enterprise Institute v. National Aeronautics and Space Admin. ,
989 F. Supp. 2d 74, 86 (D.D.C. 2013) (holding that NASA
employee's emails located on university account were not under
the agency's control); see also U.S. Gov't Accountability
Office, GA0-08-742, FEDERAL RECORDS: National Archives and
6
Selected Agencies Need to Strengthen E-Mail Management (2008)
("Agencies are also required to address the use of external
email systems that are not controlled by the agency (such· as
private email accounts on commercial systems such as Gmail,
Hotmail, Mac, etc.)"). 7 That is precisely why agencies admonish
5
Quoting out of context, CEI argues that "employees are not
distinct from their agencies." Pl.'s Opp'n at 4 (quoting
Judicial Watch, Inc. v. Dep't of Energy, 310 F. Supp. 2d 271,
300 (D. D.C. 2004)). The cited language, however, had nothing to
do with agency control of employees' personal accounts, and
instead, dealt only with whether Department of Energy employees
detailed to the Office of the Vice President created FOIA-
accessible records during the detail. Judicial Watch, Inc., 310
F. Supp. 2d at 300. More importantly, the district court was
reversed on this point. See Judicial Watch, Inc. v. Dep' t of
Energy, 412 F.3d 125, 132 (D.C. Cir. 2005) (holding that "the
detailees were as a practical matter employees" of the Office of
the Vice President and that therefore their records were not
"agency records".within the meanin~ of FOIA).
6
Available at http://www.gao.gov/assets/280/276561.pdf.
7
CEI relies on Landmark Legal Foundation v. EPA, 959 F. Supp. 2d
175, 182 (D.D.C. 2013) for the proposition that, if so directed
by a FOIA request, agencies must search employees' personal
email accounts. The ·factual· context of that case was quite
different. Because of "EPA's silence" about to whether "personal
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their employees to use their official accounts for government
business (and discipline employees who repeatedly fail to do
so). See id.; Armstrong v. Bush, 924 F.2d 282, 296 n.12
(describing options available to agency officials to prevent and
remedy the unlawful removal of agency records by employees); see
also Compl. ~ 42.
Under FOIA, even high ranking agency officials have
personal interests distinct from those of the agencies they
lead. See e.g., Kissinger, 445 U.S. at 157. (rejecting argument
that would render "Kissinger's personal books, speeches, and all
other memorabilia stored in his office agency records
subject to disclosure under [] FOIA."); Bureau of Nat'l Affairs,
Inc. v. Dep't of Justice, 742 F.2d 1484, 1496 (D.C. Cir. 1984)
(holding that appointment calendars for DOJ Assistant Attorney
General were not subject to FOIA because they "were created for
the personal convenience of individual officials so that they
could organize both their personal and business appointments.").
CEI fails to cite any authority supporting the proposition that
simply because Dr. Holdren heads the OSTP, his unofficial email
account falls under the agency's control.
accounts were being used to conduct official business [,]" the
Court did not have the opportunity to address whether EPA
actually had the requisite control of its employees' accounts.
Id.
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Finally, CEI worries that if government employees' personal
email accounts are not subject to FOIA, agency officials will
escape FOIA coverage altogether by conducting government
business with their personal accounts. CEI's reliance on FOIA to
solve this anticipated problem is misplaced: "Congress never
intended when it enacted [] FOIA, to displace the statutory
scheme embodied in the Federal Records Act and the Federal
Records Disposal Act providing for administrative remedies to
safeguard against wrongful removal of agency records as well as
to retrieve wrongfully removed records." Kissinger, 445 U.S. at
154; accord Armstrong, 924 F.2d at 294 (In post-Kissinger
amendments to the FRA "Congress again decided to rely on
administrative enforcement, rather than judicial review at the
behest of private litigants to prevent the destruction or
removal of records."). Accordingly, Counts I & II of Plaintiff's
Complaint shall be dismissed.
B. Count III: APA Claim Seeking Review of Agency's
Failure to Take Action on FOIA Request
Count III of the Complaint seeks relief under the APA for
OSTP's failure to take action with respect to CEI's FOIA
request. The Government contends that the APA permits judicial
review only when "there is no other adequate remedy in a
court[.]" Gov't's Mot. at 24 (quoting 5 U.S.C. § 704). Because
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FOIA provides its own remedial scheme, "[t]his Court and others
have uniformly declined jurisdiction over APA claims that sought
remedies made available by FOIA." Feinman v. F.B.I., 713 F.
Supp. 2d 70, 76 (D.D.C. 2010). For this reason, and because CEI
failed to respond to the Government's arguments in its
Opposition, Count III shall be dismissed.
C. Counts IV and V: FRA Claims Seeking a Declaratory
Judgment and an Injunction Ordering OSTP to Preserve
and Prevent the Destruction of Documents
Count IV seeks a declaratory judgment that, under the RFA,
OSTP has a duty to acquire, preserve, and prevent the
destruction of work-related email sent or received on non-
official accounts, and Count V seeks an injunction to enforce
this duty. Under the FRA, however, private parties may challenge
only (1) the adequacy of an agency's record-keeping guidelines;
or (2) the agency head or Archivist's failure to seek initiation
of an enfor?ement .action by the Attorney General. Armstrong, 924
F.2d at 291-93, 295. Private plaintiffs may not challenge an
agency's compliance with its guidelines. Id. at 294.
As CEI' s Complaint acknowledges, OSTP' s records retention
policies are facially adequate. Compl. id. ~ 30
("[T]he Federal Records Act, OSTP policy and the 'Holdren memo'
all mak [e] plain that employees cannot exempt records from the
law by keeping them from the control of others in their
agency.").
Attempting to evade the FRA's preclusion of compliance
claims, CEI argues that its Complaint "describes the Holdren
memo to illustrate what OSTP once admitted its policy should be,
not as evidence of what its policy (and practice) in fact is."
Pl.'s Opp' n at 2 6-27 (emphasis in original) . The allegations in
CEI's Complaint, however, fail to show that OSTP has "repudiated
the Holdren Memo" as CEI now argues. Id. at 27.
Instead the Complaint provides an example of Director
Holdren following what CEI believes to be an acceptable records
retention policy, namely issuance of his memo to all employees.
Compl. ~ 54. On the basis of vague allegations, without citing
any specifics, CEI bases its argument that OSTP' s policy (as
practiced) is inadequate and that it has engaged in a "pattern,
practice, and ongoing policy of failing to acquire, and not
preserving, work-related email sent to or from non-official
email accounts [.] " Compl. ~ 92. However, this allegation is no
more than a "legal conclusion couched as a factual
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allegation[,]" and is accordingly, "not entitled to the
assumption of truth." Ashcroft, 556 U.S. at 678-79. For these
reasons Counts IV and V shall be dismissed.
D. Count VI: Writ of Mandamus
Count VI of the Compliant seeks a writ of mandamus ordering
the Director of OSTP to "prohibit the practice of using non-
official email accounts for work-related correspondence" and "to
preserve and provide" the documents Plaintiff seeks. Compl.
! 110. The "remedy of mandamus is a drastic one, to be invoked
only in extraordinary circumstances. Mandamus is available only
if: (1) the plaintiff has a clear right to relief; ( 2) the
defendant has a clear duty to act; and ( 3) there is no other
adequate remedy available to plaintiff." Power v. Barnhart, 292
F.3d 781, 784 (D.C. Cir. 2002) (internal citations and quotation
marks omitted) .
The Government argues that CEI's request for a writ of
mandamus is duplicative of Plaintiff's FRA claims and that the
request is faulty because: ( 1) the FRA precludes judicial review
of agency compliance with record-retention guidelines, and
therefore Plaintiff has no clear right to relief; ( 2) OSTP has
no clear duty to act because agencies have discretion under the
FRA; and ( 3) to the extent that Plaintiff has any right to
relief, the availability of APA review of an agency's failure to
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notify the National Archivist of unlawful record removals is
enough to preclude mandamus. CEI failed to respond to any of
these arguments in its Opposition, and therefore, Count VI shall
be dismissed.
E. Count VII: FRA Claim Seeking an Injunction Requiring
OSTP's Director to Notify National Archivist of
Removal of Federal Records
Count VII seeks an order directing the head of the OSTP to
"notify the Archivist of the United States, and initiate actions
through the Attorney General regarding the removal of federal
records permitted by the Administrator [sic] and to assist the
Attorney General in initiating an enforcement action to recover
those records." Compl. 92 4 F.2d
at 296 ("[I]f the agency head or Archivist does nothing while an
agency official destroys or removes records in contravention of
agency guidelines and directives, private litigants may bring
suit to require the agency head and Archivist to fulfill their
statutory duty to notify Congress and ask the Attorney General
to initiate legal action.").
In order to state a claim, CEI must plausibly allege that
records have been unlawfully "removed" from OSTP. Id. The
parties do not dispute that although a record may reside on an
unofficial email account, it has not been "removed" for purposes
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of the FRA as long as a copy als"o exists on an official account. 8
Thus, in order to state a claim, CEI must plausibly allege that
Dr. Holdren failed to copy his official account with any agency
records residing on his unofficial account.
The Complaint never directly alleges that Dr. Holdren
failed to place copies of agency records on his official
account. Instead -- quite tellingly -- Plaintiff merely states
that OSTP's response to the FOIA request shows that
j holdren@whrc. org contains records not copied to OSTP' s files.
In Plaintiff's view, "OSTP asserted that plaintiff's request was
not in fact a FOIA request because it sought emails Holdren had
placed under his sole control, in contravention of the Federal
Records Act [.] '" Compl.