Comp. Enter. Inst. v. Office of Sci. & Tech. Policy

Decision Date05 July 2016
Docket NumberNo. 15-5128,15-5128
PartiesCompetitive Enterprise Institute, Appellant v. Office of Science and Technology Policy, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Hans F. Bader, Washington, DC, argued the cause for appellant. With him on the briefs was Sam Kazman, Washington, DC.

KatieLynn Townsend, Los Angeles, CA, argued the cause for amici curiae. With her on the brief were Bruce D. Brown, Peter Scheer, San Francisco, CA, Jonathan D. Hart, Washington, DC, David McCraw, New York, NY, Barbara L. Camens, James Cregan, Charles D. Tobin, Washington, DC, and Michael Kovaka.

Daniel Tenny, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Vincent H. Cohen, Jr., Acting U.S. Attorney at the time the brief was filed, and Matthew M. Collette, Attorney, Washington, DC.

Before: Srinivasan, Circuit Judge, and Edwards and Sentelle, Senior Circuit Judges.

Concurring opinion filed by Circuit Judge Srinivasan

.

Sentelle

, Senior Circuit Judge:

Competitive Enterprise Institute appeals from a judgment of the district court dismissing its Freedom of Information Act (FOIA) action against the Office of Science and Technology Policy (OSTP). Appellant contends that the district court improperly ruled that documents which might otherwise be government records for FOIA purposes need not be searched for or turned over to the requestor because the head of the defendant agency maintained the putative records on a private email account in his name at a site other than the government email site which the agency had searched. Because we agree with plaintiff-appellant that an agency cannot shield its records from search or disclosure under FOIA by the expedient of storing them in a private email account controlled by the agency head, we reverse the dismissal and remand the case for further proceedings.

BACKGROUND

FOIA requires, subject to certain statutory exceptions, that each federal agency upon a proper request for records “shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A)

. The statutory duty of disclosure imposed upon the agencies includes the duty to “search for the records in electronic form or format....” 5 U.S.C. § 552(a)(3)(C). Appellant Competitive Enterprise Institute (CEI), in October of 2013, submitted a FOIA request for “all policy/OSTP-related email sent to or from jholdren@whrc.org (including as cc: or bcc:).” J.A. at 35. The email address set forth in the FOIA request is a nonofficial account maintained by John Holdren, Director of OSTP, at Woods Hole Research Center. CEI had learned from a Vaughn Index in another, earlier FOIA litigation that the address had apparently been used for some work-related correspondence.

In February of 2014, OSTP sent a response refusing to provide records from the address on the basis that such records were “beyond the reach of FOIA because they were in an “account” that “is under the control of the Woods Hole Research Center, a private organization.” J.A. at 11. OSTP did not in its response state that it had made any attempt to search for records in that email account responsive to the FOIA request, nor has it at any time in this litigation asserted any claim to have made such a search. CEI exhausted administrative appeals and brought the present litigation, seeking an injunction mandating production of [w]ork-related emails sent to or from the account.” J.A. at 23. OSTP moved under Fed. R. Civ. P. 12(b)(6)

to dismiss for failure to state a claim. OSTP argued that because the email account at issue was “not under the control of the agency,” its contents were not within the agency documents required to be produced under FOIA, nor was the agency capable of conducting a search. Appellee's Br. at 1. The district court agreed and granted the 12(b)(6) motion. CEI timely appealed.

ANALYSIS

The basic task of a court in adjudicating alleged wrongful withholdings under FOIA is framed under three Acts of Congress. The Federal Records Act of 1950, 44 U.S.C. § 2901 et seq .,

authorizes the establishment of “records management program[s] and provides for the preservation of agency records. Kissinger v. Reporters Comm. for Freedom of the Press , 445 U.S. 136, 147, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). A complementary statute, the Records Disposal Act, 44 U.S.C. § 3314, provides the exclusive means for record disposal. Id. Yet, neither the Federal Records Act nor the Records Disposal Act contemplate a private right of action for access to or recovery of federal records. Id. at 150, 100 S.Ct. 960. The FOIA itself, however, establishes the relevant private right. Jurisdiction under FOIA requires “a showing that an agency has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’ Id. at 150, 100 S.Ct. 960 (quoting 5 U.S.C. § 552(a)(4)(B) ). Our task, then, is to determine whether the pleadings in the present case allege these requirements sufficiently to survive a motion under Rule 12(b)(6). As applied to the present case, our attention, and that of the district court, focuses first at this stage on whether the agency's refusal to undertake a search of the records of the director's private email account amounts to a “withholding,” and specifically, an “improper” one.

At each stage of this litigation, appellee has argued that [d]ocuments on a nongovernmental email server are outside the possession or control of federal agencies, and thus beyond the scope of FOIA.” Appellee's Br. at 14. In pursuing that defense, appellee repeatedly refers to the email account as being “under the control” of the Woods Hole Research Center, a private entity. See, e.g. , Appellee's Br. at 6, 8. Appellant has consistently challenged the logic of the proposition that the director of an agency may place his work-related records beyond the reach of FOIA for the simple expedient of using a private email account rather than the official government communications system. Although neither party is able to produce a binding precedent in this court or the Supreme Court addressing precisely the question before us, each has offered cases in some way relevant to our consideration of the issue.

The government first offers Founding Church of Scientology of Washington, D.C., Inc. v. Regan , 670 F.2d 1158 (D.C. Cir. 1981)

, for the fundamental proposition that [t]he Freedom of Information Act empowers federal courts to compel disclosure of agency records improperly withheld, but does not confer authority upon the courts to command agencies to acquire a possession or control of records they do not already have.” Id. at 1163

. While correct, and undoubtedly logical, Founding Church does little to answer the question before us. A brief comparison of the facts of that case with those at bar makes that evident. In that case, the requestor sought documents from the United States National Central Bureau (USNCB) of the International Police Organization (Interpol) previously obtained from foreign police agencies and concerning the plaintiff-organization. Id. at 1159. It appears that there was no dispute that the documents were in the possession of Interpol, not an agency of the United States. It also is unsurprising that we reversed a district court order directing the federal government to obtain records from the international organization. This does nothing to advise us as to whether an agency must turn over email records housed in an email account of the agency head, but at a nongovernmental domain.

This court in Founding Church

, as did the government in its brief, relied on Kissinger v. Reporters Committee for Freedom of the Press , 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). As the government urges in its brief, the Kissinger decision “recognized that the FOIA does not ‘furnish congressional intent to permit private actions to recover records' that are not within the agency's ‘possession or control.’ Appellee's Br. at 15 (quoting Kissinger , 445 U.S. at 137–38, 155, 100 S.Ct. 960 ). Again, the quotation from the Supreme Court in Kissinger obviously states the law, but is not controlling on the facts before us. The records in Kissinger, the Secretary of State's notes concerning official telephone conversations, were no longer in the custody of the Department of State or under the control of Secretary Kissinger. See 445 U.S. at 155, 100 S.Ct. 960. The documents in question had been donated to the Library of Congress, which was not a party to the action. Id. at 154–55, 100 S.Ct. 960. The Supreme Court unsurprisingly ruled that the Department did not have to produce what it did not have. See

id. at 158, 100 S.Ct. 960. Again, that does not speak to the question before us.

Like our separately concurring colleague, we believe that Kissinger

is distinguishable. Indeed, we may believe this more strongly than our colleague. As our colleague rightly observes, in Kissinger, “the Secretary not only was ‘holding the documents ... at the time the requests were received,’ but he was ‘holding the documents under a claim of right .’ Concurring Op. at 152(quoting Kissinger , 445 U.S. at 155, 100 S.Ct. 960 ) (emphasis in concurrence). While this accurately states one difference from the present case, we think it is not the only, or even the most compelling difference.

Not only did the Secretary hold the document under a claim of right, it appears that the Department had effectively ceded the documents to him. As the Supreme Court relates:

The second FOIA request was filed on December 28 and 29, 1976, by the Military Audit Project (MAP) after Kissinger publicly announced the gift of his telephone notes to the United States and their placement in the Library of Congress. The MAP request, filed with the Department of State, sought records of all Kissinger's conversations made while Secretary of State and National Security Adviser. On January 18, 1977, the Legal
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