Am. Oversight v. U.S. Gen. Servs. Admin., Civil Action No. 17–1267 (BAH)

Citation311 F.Supp.3d 327
Decision Date03 May 2018
Docket NumberCivil Action No. 17–1267 (BAH)
Parties AMERICAN OVERSIGHT, Plaintiff, v. U.S. GENERAL SERVICES ADMINISTRATION, Defendant.
CourtU.S. District Court — District of Columbia

Cerissa Cafasso, American Oversight, Washington, DC, for Plaintiff.

Alexander Daniel Shoaibi, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiff, American Oversight ("AO"), a "nonpartisan organization committed to the promotion of transparency in government," Compl. ¶ 5, ECF No. 1, challenges the response of the General Services Administration ("GSA"), to a request for, inter alia , records reflecting communications between GSA and any member of the presidential transition team ("PTT") for then-president-elect Donald Trump, id. ¶ 19, which request was submitted pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The parties have now cross-moved for summary judgment. Def.'s Mot. Summ. J. ("Def.'s Mot."), ECF No. 12; Pl.'s Cross–Mot. Summ. J. & Opp'n Def.'s Mot. ("Pl.'s Cross–Mot."), ECF No. 14. For the reasons set forth below, summary judgment is granted to the plaintiff with respect to GSA's failure to produce non-exempt attachments to responsive emails, GSA's withholding, under Exemption 5, of information shared with the PTT or other non-federal agency entities, and GSA's withholdings under FOIA's Exemption 6, and the parties' cross-motions for summary judgment are denied, without prejudice, with respect to the sufficiency of GSA's search and GSA's withholdings under FOIA's Exemption 5.

I. BACKGROUND

In 2013, GSA entered into a contract with the Trump Organization to develop and lease the Old Post Office building in Washington, D.C., as Trump International Hotel. Compl. ¶¶ 7–8. The lease stipulated that "[n]o ... elected official of the Government of the United States ... shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom," id. ¶ 9, which provision raised concerns from "[e]thics experts and members of Congress ... regarding the propriety of President Trump's continued financial interest in the Trump International Hotel," id. ¶ 10. Prompted by these concerns, the plaintiff, filed several FOIA requests for records related to GSA's lease of the Old Post Office building and contacts between GSA and the PTT, id. ¶¶ 15, 19, 23, including the FOIA request, dated April 5, 2017, at issue in this case for "[a]ll records reflecting communications (including emails, telephone call logs, calendar entries, meeting agendas, or any other records reflecting communications) between GSA and any member of the Trump transition team" from November 8, 2016 through January 20, 2017, that is, from the 2016 election through President Trump's inauguration, id. ¶ 19.1 GSA's "initial search ... returned over 61,000 documents," Def.'s Statement of Material Facts As To Which There Is No Genuine Issue ("Def.'s SMF") ¶ 5, ECF No. 12 at 3–6 (citing Suppl. Decl. of Travis Lewis, GSA's Director of the FOIA and Records Manager Division ("Lewis Decl.") ¶ 9, ECF No. 13, replacing earlier version of declaration, id. at 1 n.1), or "over 100,000 emails," Def.'s Mot., Ex. D at 6, Email from GSA's Duane Smith to AO's Cerissa Cafasso (July 24, 2017), ECF No. 12–5.

In light of the significant number of potentially responsive documents, the parties conferred about the scope of the FOIA request, and on July 26, 2017, nearly one month after the plaintiff initiated the instant case, the plaintiff narrowed the scope by providing GSA with search terms and locations to be searched and specifying the names of individuals who potentially had responsive records. Def.'s SMF ¶ 5 (citing Lewis Decl. ¶ 9); Pl.'s Statement of Material Facts as to Which There is No Genuine Issue ("Pl.'s SMF") at 2 ¶ 5, ECF No. 14–4. Specifically, the plaintiff described as "correct" GSA's search scope as covering "all records reflecting communications," including "emails, telephone call logs, calendar entries, meeting agendas, or any other records reflecting communications between GSA and Casey Coleman, Charles James, Robert Mackichan, Richard Milone, George Nesterczuk, Kurt Stout, Robert Tompkins, Donald Williams (the GSA landing team for the Trump Administration)."2 Def.'s Mot., Ex. D at 1, Email from AO's Cerissa Cafasso to GSA's Duane Smith (July 26, 2017). GSA acknowledged that these eight named individuals were "listed on the greatagain.gov [s]ite" of the PTT, and "are those who were the members of the Agency Transition team in its entirety." Id. , Email from GSA's Duane Smith to AO's Cerissa Cafasso (July 26, 2017). In addition, GSA agreed to search for "all records reflecting communications (including emails, telephone call logs, calendar entries, meeting agendas, or any other records reflecting communications) between any member of the Trump transition team and" an enumerated list of twenty-two GSA employees "that contain any of the following [nine] terms: OPO, Post Office, Hotel, Trump International, THI, Ivanka, 1100 Penn, 1100 Pennsylvania, or Lease." Id. Ultimately, however, GSA apparently searched for only seven terms, combining "Post Office" and "Hotel" into "Post Office Hotel," and did not search for "Ivanka" at all. Lewis Decl. ¶ 10.3

After obtaining the plaintiff's clarified parameters, GSA's Office of the Chief Information Officer ("OCIO") then conducted a search following GSA's "practice" for requests containing "the word ‘communication(s) " by "search[ing] each employee's emails, calendar logs and shared drive files for responsive records by using the key words searches and dates as requested by the requester." Id. ¶ 11. GSA's records retention policy requires "all agency employee communications" to be "stored via email /or on the shared drive." Id.

GSA's searches of "emails, calendar logs and shared drive files," id. , identified 3,925 pages, of which GSA's Director of FOIA and Records Management Division determined only 3,730 pages were actually responsive to the plaintiff's request, Def.'s SMF ¶ 11 (citing Lewis Decl. ¶ 12), with the remaining 195 pages consisting of nonresponsive "news articles and fliers," Lewis Decl. ¶ 12. GSA produced those 3,730 pages to the plaintiff on September 1, 2017, with redactions "pursuant to FOIA Exemptions 4, 5, and 6." Def.'s SMF ¶ 12 (citing Lewis Decl. ¶ 13); see also Def.'s Mot., Ex. F, Letter from GSA's Travis Lewis to AO's Austin Evers (Sept. 1, 2017), ECF No. 12–7. Despite the extensive redactions, which the plaintiff characterizes as appearing on "at least 3,721" of the produced pages, Pl.'s Mem Supp. Pl.'s Cross–Mot & Opp'n Def.'s Mot. ("Pl.'s Opp'n") at 1, ECF No. 14–1, GSA originally provided a two-page Vaughn Index, see Def.'s Mot, Ex. A, Vaughn Index, ECF No. 12–2. After the plaintiff challenged the sufficiency of the original index, GSA provided a lengthier Corrected Revised Vaughn Index ("Revised Vaughn "), ECF No. 27–1.

At this point, the plaintiff has withdrawn any challenge to withholdings under Exemption 4, see Pl.'s Reply Supp. Pl.'s Cross–Mot. ("Pl.'s Reply") at 1 n.1, ECF No. 28, and GSA has "withdrawn all withholdings based on the deliberative process privilege and the attorney work-product doctrine," and "relies exclusively on the attorney-client privilege" under Exemption 5, Def.'s Reply Supp. Def.'s Mot. & Opp'n Pl.'s Cross–Mot ("Def.'s Opp'n") at 9, ECF No. 24. Specifically, GSA relies on the attorney-client privilege and Exemption 5 to withhold material on pages 1–80, 129–70, 171–683, 703–2034—or nearly 2,000 pages of the responsive "[c]ommunications between GSA and the Presidential Transition Team"—explaining that the material reflects "[p]ortions of internal communications sent by GSA attorneys to GSA employees providing legal opinions and guidance based on questions and information provided by GSA employees." Revised Vaughn at 1, 4–6. After GSA's briefing was complete, GSA produced five pages with material previously withheld under Exemption 5. Pl.'s Reply Supp. Pl.'s Cross–Mot., Attach. 1, Second Decl. of Cerissa Cafasso, Attorney, AO (Feb. 20, 2018) ("Second Cafasso Decl.") ¶ 6, ECF No. 28–1. The plaintiff notes, however, that twenty-nine of GSA's Exemption 5 redactions remain without explanation in the Revised Vaughn Index. Id. ¶¶ 16–17.4

GSA has also withheld, under Exemption 6, the "names and contact information for nonfederal employees," based on the agency's "determin[ation] that any public interest in the release of the names of private individuals here was not outweighed by the disclosure of that information." Revised Vaughn at 1–10. In response to the Court's inquiry about this justification for Exemption 6 withholdings, in light of the fact that PTT members' names were made publicly available on a PTT website, see Minute Order (Apr. 9, 2018), GSA submitted a supplemental affidavit clarifying that the PTT members' names were redacted simply because they were not federal employees, Second Decl. of Travis Lewis, GSA's Director of the FOIA and Records Manager Division ("Second Lewis Decl.") (Apr. 11, 2018) ¶ 4, ECF No. 29–1.

After GSA was granted six extensions to complete its briefing, see GSA's motions for time extensions, ECF Nos. 16–23, the parties' cross-motions for summary judgment are now ripe for review.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "In FOIA cases, ‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.’ " Judicial Watch, Inc. v. U.S. Secret Serv. , 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fed'n of Am. v. U.S....

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