Cause of Action Institute v. National Oceanic and Atmospheric Administration

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CAUSE OF ACTION INSTITUTE,
Plaintiff,
v.
Civil Action No. 19-1927 (TSC)
NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION,
Defendant.
MEMORANDUM OPINION
Plaintiff Cause of Action Institute has sued Defendant National Oceanic and Atmospheric
Administration (“NOAA”) under the Freedom of Information Act (“FOIA”), challenging the
adequacy of NOAA’s search for documents responsive to Plaintiff’s FOIA request. The parties
have cross-moved for summary judgment. For the reasons that follow, the court will GRANT
Plaintiff’s Motion for Summary Judgment, ECF No. 30, and DENY Defendant’s Motion for
Summary Judgment, ECF No. 29. The court will also DENY as moot Plaintiff’s Motion for Oral
Hearing on the pending cross-motions, ECF No. 40.
I. BACKGROUND
A. Agency structure and procedures
The Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. § 1801 et
seq., authorizes the Secretary of Commerce to manage domestic marine fisheries. In turn, the
Secretary has delegated that authority to the National Marine Fisheries Service (the “Service”),
an office within NOAA. 16 U.S.C. §§ 1852, 1853. The Service supervises the work of eight
Regional Fishery Management Councils (“Councils”), id. § 1852(a)(1), whose primary duty is to
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develop management plans for fisheries within their geographic area, id. §§ 1852(h)(1), 1853(c),
which the Service reviews and—with the Secretary’s approval—promulgates, id. § 1852(b).
Each Council comprises voting members, nonvoting members, and administrative
employees. See 16 U.S.C. § 1852(b), (c), (f). Voting members include each constituent state’s
head of fishery management, the Service’s regional director, and individuals appointed because
of their knowledge or experience in fishery management. Id. § 1852(b). Appointed voting
members “who are not employed by the Federal Government or any State or local government”
receive monetary compensation for time “engaged in the actual performance of duties for [their]
Council.” Id. § 1852(d). Non-voting members include the regional or area director of the U.S.
Fish and Wildlife Service, the Commander of the Coast Guard for the relevant geographical area,
the Executive Director of the Marine Fisheries Commission for the relevant geographical area,
and a representative from the Department of State. Id. § 1852(c)(1). Both voting and non-voting
members are entitled to reimbursement “for actual expenses incurred” in performing their
official duties. Id. § 1852(d). Administrative employees are staff, including an executive
director, who are appointed as necessary to assist the Council in performing its functions. Id.
§ 1852(f).
This case involves the New England Fishery Management Council (“NE Council”),
which has jurisdiction over the Atlantic Ocean seaward of the coastal waters of Maine, New
Hampshire, Massachusetts, Connecticut, and Rhode Island. 16 U.S.C. § 1852(a)(1)(A). NE
Council members periodically convene official, public meetings to deliberate and propose
fishery management plans or amendments. Id. § 1852(i). They also use email and other forms
of electronic communication to discuss substantive matters related to that official business.
Def.’s Reply to Pl.’s SUMF ¶ 31, ECF No. 33-1; see E. Goethel Decl. ¶¶ 10–12, ECF No. 30-5
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(“My colleagues and I used our personal email accounts . . . to conduct substantive work.”); D.
Goethel Decl. ¶¶ 9–10, ECF No. 30-6 (“Council members used email extensively for official
business.”). The NE Council provides official email accounts to its administrative employees,
but not to its council members (whether voting or non-voting). Def.’s Reply to Pl.’s SUMF ¶ 30.
B. Plaintiff’s FOIA request
The subject matter of Plaintiff’s FOIA request is the New England Industry-Funded
Monitoring Omnibus Amendment (“Omnibus Amendment”). In short, the Omnibus amendment
“establishe[d] a process to standardize future industry-funded monitoring programs . . . and
establishe[d] industry-funded monitoring in the Atlantic herring fishery.” See Compl. Ex. 1 at 1,
ECF No. 1-1. The NE Council, in coordination with the Service, sought approval for the
Omnibus Amendment in September 2018. Def.’s Reply to Pl.’s SUMF ¶¶ 33–34; see Mulvey
Decl. ¶¶ 26–30, ECF No. 30-4. On December 18, 2018, NOAA Regional Administrator Michael
Pentony advised the NE Council by letter that the Secretary of Commerce had approved the
Omnibus Amendment. Compl. Ex. 1.
On January 7, 2019, Plaintiff submitted a FOIA request to NOAA seeking various
documents pertaining to the Omnibus Amendment “for the time period of September 19, 2018 to
the present.” Compl. Ex. 2 at 1, ECF No. 1-2. That request included “[a]ll correspondence
(including e-mail, text/instant messages, etc.) between and amongst members and/or staff of the
New England Fishery Management Council concerning the final approval of the Omnibus
Amendment and/or the December 18, 2018 letter from Administrator Pentony.” Id. at 2.
On February 4, 2019, NE Council Executive Director Tom Nies wrote to the Council’s
members and staff, apprising them of the FOIA request and asking them to reply “with a
response that either provides relevant documents or states that you do not have any.” Mulvey
Decl. Ex. 7 at 1, ECF No. 30-4 (emphasis omitted). Nies emphasized that “Council members
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should note the request for emails and/or texts that may have been sent between Council
members.” Id. He also referred members to the “attached policy directive,” which would
“explain[] when such documents are federal records and must be provided.” Id. Specifically, he
quoted a passage from the directive stating that “[a] document written or received by an
individual Council member also reflects Council business if it relates to a matter within the
Council’s jurisdiction and the document is specifically discussed or disseminated at a Council
meeting.” Id.
The “policy directive” attached to Nies’s email was the “NMFS POLICY DIRECTIVE
ANNEX, PDS 30-125-ANNEX-A” issued by the Service on February 19, 2013. Mulvey Decl.
Ex. 1 at 1, ECF No. 30-4 (“Annex”). That Annex is intended to “identif[y] what Regional
Fishery Management Council (Council) member documents are considered agency records and
describe[] their handling.” Id. It cites the Federal Records Act for the requirement that agencies
“preserve records containing adequate and proper documentation of the organization, functions,
policies, decisions, procedures, and essential transactions of the agency.” Id. (quoting 44 U.S.C.
§ 3101). Accordingly, “[d]ocuments written or received by Council members are agency records
that are subject to the Federal Records Act if they reflect official Council business”—that is,
“business of the Council as a full body”:
For example, a comment or views letter signed by the Council chair on behalf of
the entire Council reflects Council business. Similarly, a letter submitted to the
chair as the principal representative of the Council reflects Council business. . . .
A document written or received by an individual Council member also reflects
Council business if it relates to a matter within the Council’s jurisdiction and the
document is specifically discussed or disseminated at a Council meeting
(including committee meetings, planning meetings, etc.).
Id. Official Council business, however, “does not include documents that reflect personal or
private business matters of members, or matters related to their other employment.” Id.Page 4 of 14
Documents reflecting official Council business “must be collected by the Council staff and
maintained in the Council’s record-keeping system.” Id.Based on its initial search for documents, Defendant made two interim releases of
responsive records, in March and June 2019. Def.’s Reply to Pl.’s SUMF ¶ 38; Mulvey Decl. ¶¶
37–38. Plaintiff filed this suit in June 2019. Def.’s Reply to Pl.’s SUMF ¶ 39 (citing Compl.) In
July 2019, Defendant provided its final release with some additional responsive records. Id.
¶ 40. In January 2020, Defendant informed Plaintiff that it had searched “for what NOAA
considers to be agency records,” “[i]n accordance with” the Annex. Id. ¶¶ 41–42 (citing Mulvey
Decl. Ex. 6, ECF No. 30-4). Defendant also provided Plaintiff with a copy of the Nies email
regarding the search. Mulvey Decl. ¶ 43. Plaintiff responded that it believed the search had been
inadequate. See Def.’s Reply to Pl.’s SUMF ¶ 45. Defendant agreed to conduct a supplemental
search, including a date range and certain keywords, which ultimately produced several
additional disclosures. Id. ¶¶ 45–48. But Defendant continued to limit its search in accordance
with the definition of agency records in the Annex—that is, it did not search for internal
correspondence in NE Council members’ personal accounts unless that correspondence was
“specifically discussed or disseminated at a Council meeting” or otherwise “reflect[ed] official
Council business.” Id. ¶ 47; Mulvey Decl. Ex. 1 at 1. The sole question for the court is whether
that choice rendered Defendant’s search for responsive records inadequate. Def.’s Reply to Pl.’s
SUMF ¶ 49; see Proposed Briefing Schedule, ECF No. 28.
II. LEGAL STANDARD
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quotation omitted). The district
court conducts a de novo review of the government’s decision to withhold requested documents
under any of FOIA’s specific statutory exemptions. 5 U.S.C. § 552(a)(4)(B). In cases
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concerning the adequacy of an agency’s search efforts, summary judgment may be based solely
on information provided in the agency’s supporting declarations. See, e.g., ACLU v. U.S. Dep’t
of Def., 628 F.3d 612, 619 (D.C. Cir. 2011); Students Against Genocide v. Dep’t of State, 257
F.3d 828, 838 (D.C. Cir. 2001).
An agency will be granted summary judgment on the adequacy of its search if it “show[s]
beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all
relevant documents.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007). “The question is
not whether there might exist any other documents possibly responsive to the request, but rather
whether the search for those documents was adequate.” Steinberg v. U.S. Dep’t of Just., 23 F.3d
548, 551 (D.C. Cir. 1994). Furthermore, the “adequacy of the search . . . is judged by a standard
of reasonableness and depends, not surprisingly, upon the facts of each case.” Weisberg v. U.S.
Dep’t of Just., 745 F.2d 1476, 1485 (D.C. Cir. 1984). Courts are mindful, however, that
“congressional intent tilt[s] the scale in favor of disclosure.” Morley, 508 F.3d at 1114 (internal
citation omitted).
III. ANALYSIS
The parties agree that the adequacy of Defendant’s search depends on whether an
“agency record” for purposes of FOIA includes “correspondence (including e-mail, text/instant
messages, etc.) between and amongst members and/or staff of the [NE Council] concerning the
final approval of the Omnibus Amendment and/or the December 18, 2018 letter from
Administrator Pentony,” Compl. Ex. 2 at 2, even when that correspondence does not meet the
definition of agency records in the Annex—i.e., it has not been “submitted to the chair” or
“specifically discussed or disseminated at a Council meeting,” Annex at 1.
The Supreme Court has set forth two criteria for requested materials to qualify as agency
records under FOIA. “First, an agency must either create or obtain the requested materials.”
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U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 144 (1989) (quotation omitted). “Second, the
agency must be in control of the requested materials at the time the FOIA request is made.” Id.
at 145. “The burden is on the agency to demonstrate, not the requester to disprove, that the
materials sought are not ‘agency records.’” Id. at 142 n.3.
Notably, the definitions of “agency records” in the Federal Records Act and Defendant’s
Annex cannot displace FOIA’s definition of that term. The Supreme Court and D.C. Circuit
have “reject[ed] . . . the invitation to hold that the treatment of documents for disposal and
retention purposes under the various federal records management statutes determines their status
under FOIA.” Bureau of Nat’l Affs., Inc. v. U.S. Dep’t of Just., 742 F.2d 1484, 1493 (D.C. Cir.
1984) (citing Forsham v. Harris, 445 U.S. 169, 183–84 (1980) (other statutory definitions of
agency records “are not dispositive of the proper interpretation of congressional use of the
word[s] in the FOIA”)). Likewise, whether “defendants did not understand [requested materials]
to be agency records is immaterial”—what matters is the materials’ objective legal status, “not
the agency’s subjective understanding of [that] status.” Forest Cnty. Potawatomi Cmty. v. Zinke,
278 F. Supp. 3d 181, 196 (D.D.C. 2017) (citing Burka v. U.S. Dep’t of Health & Hum. Servs., 87
F.3d 508, 515 (D.C. Cir. 1996)); see also Bureau of Nat’l Affs., Inc.,, 742 F.2d at 1495 (“In the
context of these cases, however, the question is whether the employee’s creation of the
documents can be attributed to the agency for the purposes of FOIA, regardless of whether the
agency requires employees to retain the documents.”).
Applying the applicable FOIA test, the court concludes that the materials requested—NE
Council members’ internal correspondence “concerning the final approval of the Omnibus
Amendment and/or the December 18, 2018 letter from Administrator Pentony,” Compl. Ex. 2 at
2—qualify as agency records. Therefore, Defendant’s search was inadequate.
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A. Agency creation or obtainment of the requested materials
The first criterion for agency records is that they must either be “create[d]” or
“obtain[ed]” by the agency. Tax Analysts, 492 U.S. at 144. An agency may create or obtain
records not only through the actions of its own employees, but also through external entities who
have “acted on behalf of [the agency].” Burka, 87 F.3d at 515. Whether an entity acts on behalf
of an agency may be manifest by “extensive supervision and control exercised by the agency”
over the entity’s creation or obtainment of the materials. Id.; see also id. at 510–11 (agency
commissioned and designed the survey firm’s collection and analysis of the data requested);
Forest Cnty. Potawatomi Cmty., 278 F. Supp. 3d at 196 (agency supervised project management
firm acting on its behalf). But see Forsham, 445 U.S. at 177 (the records of “private
organizations receiving federal financial assistance grants are not” agency records).
Under that standard, Defendant created the requested materials at issue here. It is
undisputed that the NE Council is an “agency” housed within Defendant for purposes of FOIA.
Def.’s Reply to Pl.’s SUMF ¶ 22; 16 U.S.C. § 1852. Plaintiff seeks correspondence drafted by
and to NE Council members and staff who have been appointed as officials of that agency and
who are to some degree compensated for their work. And the correspondence was drafted to
discuss “the final approval of the Omnibus Amendment and/or the December 18, 2018 letter
from Administrator Pentony,” Compl. Ex. 2 at 2, in the course of carrying out their agency’s
statutory duty to “prepare and submit to the Secretary [of Commerce] . . . amendments to [the
fishery management] plan that are necessary from time to time,” 16 U.S.C. § 1852(h)(1); see id.§ 1853(c). Defendants do not meaningfully dispute that Council members have relied upon such
correspondence “frequently” in the past. Def.’s Reply to Pl.’s SUMF ¶ 31; E. Goethel Decl.
¶¶ 10–12 (NE Council members use their personal email accounts to discuss “fishery
management plan amendments,” “planned motions,” expected votes, and other “issues that might
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come up at the next business meeting”). Therefore, even if the NE Council’s voting members
are not full-time employees, they were acting “on behalf of” the agency in drafting any such
correspondence. Burka, 87 F.3d at 515. That is enough to attribute the requested materials’
creation to Defendant.
Defendant’s counterarguments are unpersuasive. Initially, its sole—and circular—
argument on this score was that “NOAA has neither created nor obtained” the requested
materials “because . . . these records are not agency records.” Def.’s MSJ Memo at 9, ECF No.
29-1. In subsequent briefing, Defendant added that NE Council members are not “employees”
because they use personal email accounts and are generally not financially compensated for the
type of correspondence plaintiff has requested. Def.’s Opp. to Pl.’s MSJ at 6, ECF No. 34. But
if that were the law, agencies could easily evade their FOIA obligations by removing
government email accounts or manipulating compensation schemes, resulting in an end run
around the statute’s “basic purpose . . . to ensure an informed citizenry, vital to the functioning of
a democratic society, needed to check against corruption and to hold the governors accountable
to the governed.” N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). In any
event, neither the use of personal email accounts nor limited compensation of NE Council
members alters the conclusion that the members were acting “on behalf of” Defendant in
creating the correspondence Plaintiff has requested. See Hyatt v. U.S. Pat. & Trademark Off.,
346 F. Supp. 3d 141, 149 (D.D.C. 2018) (“[T]he fact that the creation . . . of [a record] may have
been outside the scope of . . . employment with the agency is not dispositive as to whether [it] is
an agency record.”).
Lastly, Defendant attempts to downplay the degree of “supervision and control” it
exercises over NE Council voting members by noting that they can generally only be removed
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by a two-thirds vote of the other voting members and a decision by the Secretary of Commerce.
Def.’s Opp. to Pl.’s MSJ at 7 (citing Burka, 87 F.3d at 515; 16 U.S.C. § 1852(b)(6)(A)–(B)). In
some respects, the “supervision and control” test from Burka is inapposite here, where the
requested materials were created by government officials, not a third-party nongovernmental
entity like the survey firm hired by the agency in that case. See Burka, 87 F.3d at 515.
Regardless, the removal provisions Defendant cites undermine its position by demonstrating that
Defendant can remove voting members from their positions. Even more important and relevant,
however, is the statutory procedure for carrying out the agency’s duties, which requires each
Council to submit its fishery management plan—and any amendments to it—to Defendant for
approval by the Secretary of Commerce. 16 U.S.C. § 1852(h)(1); see id. § 1853(c). If the
Council fails to fulfill its statutory obligations, the Secretary may prepare or amend plans sua
sponte. 16 U.S.C. § 1854(c)(1)(A)–(B). In other words, Defendant maintains full control over
the plans proposed by each Council through its voting members. NE Council members’ creation
of the requested materials here, which pertain to an amendment to such a plan, may therefore be
attributed to Defendant.
B. Agency control over the requested materials
The second criterion for agency records is that the agency controls them when the FOIA
request is made. Tax Analysts, 492 U.S. at 145. In this Circuit, courts look to several factors to
determine agency control, including:
(1) the intent of the document’s creator to retain or 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.
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Burka, 87 F.3d at 515. “In weighing the Burka factors, [courts] are mindful that the ‘core
purpose of the FOIA’ is to contribute significantly to public understanding of the operations or
activities of the government.” Jud. Watch, Inc. v. Fed. Hous. Fin. Agency, 646 F.3d 924, 928
(D.C. Cir. 2011) (formatting modified) (quoting U.S. Dep’t of Just. v. Reps. Comm. for Freedom
of the Press, 489 U.S. 749, 775 (1989); 5 U.S.C. § 552(a)(4)(A)(iii)). Under the relevant factors,
Defendant fails to meet its burden of showing a lack of control.
The court “first consider[s] the intent of the agencies to retain or relinquish control over
the [requested materials], an inquiry that focuses on the agencies’ policies and actions, not the
subjective intent of the employees who created the document.” Cause of Action Inst. v. Off. of
Mgmt. & Budget, 10 F.4th 849, 855–56 (D.C. Cir. 2021). It is undisputed that Defendant intends
to retain control over at least some of the NE Council members’ emails; otherwise, Nies would
not have directed the members to produce them. See Mulvey Decl. Ex. 7 at 1. As a result, the
Annex cannot demonstrate Defendant’s intent to relinquish control over documents except those
beyond the Annex’s definition of “agency records.” But that definition relies principally and
mistakenly on the meaning of “agency records” for purposes of the Federal Records Act rather
than FOIA, see supra at 7, and is therefore a less reliable guide to the agency’s intent with
respect to its FOIA obligations. As a result, this factor does little to establish Defendant’s lack of
control over the requested materials.
Next, the court considers the agency’s ability to use and dispose of the requested
materials. Defendant’s full-time employees or officials do not have direct access to NE Council
members’ personal emails or text messages, and the Annex suggests that Defendant generally
does not require members to provide them if they do not “reflect official Council business.”
Mulvey Decl. Ex. 1 at 1. But the fact that Defendant generally “has not asserted control over
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voting member[s’] emails that exist outside of the Council’s record keeping system,” Def.’s Opp.
to Pl.’s MSJ at 9, does not mean Defendant lacks the ability to do so. As already discussed, the
Nies email shows that Defendant requires NE Council members to produce certain kinds of
correspondence from their personal email accounts, and nothing prevents Defendant from
requiring other kinds of correspondence be kept for future FOIA requests. See Bureau of Nat’l
Affs., Inc. v. U.S. Dep’t of Just., 742 F.2d 1484, 1495 (D.C. Cir. 1984) (“Because FOIA does not
require an agency to create or obtain a record, so long as the records disposal regulations permit
destruction of ‘non-record materials’ at the discretion of an agency or agency employee,
documents will be available under FOIA solely based on whether an individual has chosen to
keep those documents.”). Despite it not having done so here, therefore, it appears that Defendant
retains an ability to assert control over the requested materials.
The third Burka factor evaluates “whether the document has some connection to agency
decisionmaking because personnel have read or relied upon it.” Cause of Action Inst., 10 F.4th
at 857. “Actual use is often ‘the decisive factor’ when determining whether a requested
document is an agency record.’” Id. (quoting Jud. Watch, Inc., 646 F.3d at 927. This makes
sense, given “FOIA’s purpose of ‘open[ing] agency action to the light of public scrutiny.’” Jud.
Watch, Inc., 646 F.3d at 927 (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 372 (1976)).
Here, Plaintiff requests documents that were actually written, read, and relied upon by the NE
Council members. Defendant objects that the agencies themselves, “NOAA and NEFMC[,]
cannot have read or relied upon emails that lie outside of the Council’s record-keeping system.”
Def.’s Opp. to Pl.’s MSJ at 9. But that objection mistakes the legal standard—what matters is
“the extent to which agency personnel have read or relied upon the document[s].” Burka, 87
F.3d at 515 (emphasis added). And Defendant’s assertion that “what a voting member says
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through email is of no relevance to the transaction of Council business,” Def.’s Opp. to Pl.’s MSJ
at 10, is flatly contradicted by undisputed testimony that NE Council members regularly discuss,
inform, and arrange for the formal decision-making processes at official meetings via private
electronic correspondence. Def.’s Reply to Pl.’s SUMF ¶ 31; E. Goethel Decl. ¶¶ 10–12; D.
Goethel Decl. ¶¶ 9–10. Accordingly, this factor decisively confirms that the requested materials
at issue are agency records.
The fourth Burka factor is the degree to which the requested materials were integrated
into the agency’s record system or files. This factor, like the third, relates to whether the
requested materials “could . . . reveal anything about agency decisionmaking.” Judicial Watch,
Inc., 646 F.3d at 928. The Annex did not require the requested materials to be kept in
Defendant’s record keeping system. See Mulvey Decl. Ex. 1. But NE Council members, acting
on Defendant’s behalf and in preparation for making decisions, may have created and maintained
the kind of correspondence that Plaintiff has requested. See supra Section III.A; Competitive
Enter. Inst. v. Off. of Sci. & Tech. Pol’y, 827 F.3d 145, 149 (D.C. Cir. 2016) (“[A]n agency
always acts through its employees and officials. If one of them possesses what would otherwise
be agency records, the records do not lose their agency character just because the official who
possesses them takes them out the door.”). And if an agency could “deprive the citizens of their
right to know what [it] is up to by the simple expedient of maintaining [internal] emails on an
account in another domain, that purpose [of FOIA] is hardly served.” Competitive Enter. Inst.,
827 F.3d at 150. Thus, this factor does not disturb the conclusion that the requested materials
here are agency records.
IV. CONCLUSION
For these reasons, the court concludes that the requested materials at issue are agency
records for purposes of FOIA and that Defendant’s search was therefore inadequate.
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Accordingly, the court will GRANT Plaintiff’s Motion for Summary Judgment, ECF No. 30,
DENY Defendant’s Motion for Summary Judgment, ECF No. 29. The court will ORDER
Defendant to search for and produce all responsive records to Plaintiff within 60 days. The court
will also DENY as moot Plaintiff’s Motion for Oral Hearing on the pending cross-motions, ECF
No. 40. A corresponding Order will accompany this Memorandum Opinion.
Date: May 24, 2023
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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