Landmark Legal Found. v. Dep't of Justice

• Decision Date: 30 September 2016
• Docket Number: Civil Action No. 15-cv-1698 (TSC)
• Citation: 211 F.Supp.3d 311
• Court: U.S. District Court — District of Columbia
• Parties: LANDMARK LEGAL FOUNDATION, Plaintiff, v. DEPARTMENT OF JUSTICE, Defendant.

211 F.Supp.3d 311

LANDMARK LEGAL FOUNDATION, Plaintiff,

v.DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 15-cv-1698 (TSC)

United States District Court, District of Columbia.

Filed September 30, 2016

Michael J. O'Neill, Landmark Legal Foundation, Leesburg, VA, for Plaintiff.

Kevin Matthew Snell, United States Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

Judge Tanya Chutkan

Plaintiff Landmark Legal Foundation ("Landmark") is a non-profit law firm whose mission includes dissemination of information obtained through public records requests about governmental agencies' and public officials' activities. In this Freedom of Information Act ("FOIA") action, Landmark seeks documents related to public officials' use of private or alias email accounts to conduct government business from two divisions of the Department of Justice ("DOJ"): the Office of Information Policy ("OIP") and the Civil Rights Division. Defendant has filed a partial motion to dismiss Count I of the complaint, seeking personal email records, as to both OIP and Civil Rights, and Count II of the complaint, seeking alias email records, as to Civil Rights. Because Plaintiff failed to adequately describe the records sought under Count I, and failed to administratively exhaust the alias email request as to the Civil Rights division under Count II, the court will GRANT Defendant's motion and dismiss Count I against both divisions and Count II against Civil Rights.

I. BACKGROUND

On July 24, 2013 Plaintiff submitted two FOIA requests, the "Personal Email FOIA Request" and the "Alias Email FOIA Request," to the Department of Justice. (Compl. ¶ 6, ECF No. 1). The "Personal Email FOIA Request," addressed to both the OIP's Chief of Staff and the Civil Rights Division's Chief of the FOIA/PA Branch, requested:

Records evincing the use of any private or personal email account, text messaging service, instant messaging service, or any other private electronic communication, included but not limited to those sent via any social media service such as Facebook, Google Plus or other private platform, for the conduct of Department business from January 20, 2009 to July 15, 2013 [.]

(Compl. Ex. 1 (emphasis in original)). Plaintiff indicated that its request was limited to the records of political appointees, individuals serving in the Senior Executive Service, individuals in the Office of the Attorney General and Office of the Deputy Attorney General, and in the Civil Rights Division. (Id. ). The "Alias Email FOIA Request," similarly addressed to both OIP Chief of Staff and the Civil Rights FOIA/PA Branch, requested records from January 1, 2009, to July 1, 2013,

relating to ... records evincing the establishment and maintenance of any and all email addresses for all political appointees[,] ... officials designated Senior Executive Service[,] ... officials who currently serve or have served in the Office of the Attorney General [,] ... officials who currently serve or have served in the Office of the Deputy Attorney General [, and] ... officials who currently serve or have served in the Civil Rights Division ...

6 ... records including spreadsheets, memoranda, or other records providing a list, chart or other compilation of email addresses created for or by, assigned to and/or used by any political appointee or SES employee at the Department ...

7 ... records evincing that Department employees have provided counsel, advice or instruction to any person that Department employees not use their own names for their official Department email addresses.

(Compl. Ex. 2 (emphasis in original)).

a. The Personal Email Request

The Personal Email Request received three different case numbers, one for each office from which Plaintiff sought records—the Office of the Attorney General, the Office of the Deputy Attorney General, and Civil Rights. OIP, on behalf of the Attorney General and Deputy Attorney General, discussed the request over the phone with Plaintiff, who agreed to narrow the scope of its request. (Compl. ¶ 16); (Def. Partial Mot. to Dismiss 4, ECF No. 6). OIP sent a follow-up letter on February 27, 2014, confirming that Plaintiff "wished to receive records in which personal e-mail accounts were exclusively used to conduct Department of Justice business with other offices or agencies in the government," but did not wish to "receiv[e] e-mails that had been forwarded by an OAG or ODAG official between their Department of Justice account and their personal e-mail account, or ... e-mails to or from a personal e-mail account when the Department of Justice account is copied, or ‘cc'd.’ " (Def. Partial Mot. to Dismiss Ex. 3). Given that request, the OIP wrote, "we are unable to conduct a search ... for the records you are seeking. Any search ... would locate only e-mails that were forwarded or copied to/from a Department e-mail account, and you have indicated that you are not interested in such material." (Id. ).

Plaintiff appealed the response, arguing that the February 27 letter "misapprehended the scope of records to which the Request was directed," and that Defendant had "wrongfully refused to instruct covered employees to search private repositories for responsive records." (Compl. ¶ 25). OIP denied the appeal with respect to both the Attorney General and Deputy Attorney General, explaining that it was affirming the initial finding that Plaintiff "did not seek agency records that can be located within a records system of the agency." (Def. Partial Mot. to Dismiss Exs. 10, 11). OIP based its reasoning on the fact that there was no specific reason to believe that agency staff were using personal email to conduct Department business, as well as the fact that personal email records not referenced in the Department email system do not constitute agency records that could be located by a Department search. (Id. ).

Civil Rights responded separately to the Personal Email Request. It determined that the records sought were not "agency records" under FOIA and therefore the request was not a valid FOIA request. (Def. Partial Mot. to Dismiss Ex. 2). Plaintiff appealed, arguing that "the Department failed to conduct a search reasonably calculated to uncover all responsive records." (Def. Partial Mot. to Dismiss Ex. 4, at 2). Plaintiff contended that Defendant should direct Civil Rights personnel covered by its FOIA request to search their personal emails and text messages for agency records. (Id. at 2–3). First, Plaintiff argued, Defendant's refusal to search at all was "based on a disingenuous and improper reading of" Supreme Court precedent defining "agency records." (Id. at 6). Plaintiff noted that "DOJ has not provided any details regarding the search it performed for records evincing the use of personal emails" and "also failed to provide the search terms that it utilized in determining that no records exist." (Id . at 7). Plaintiff concluded that a proper FOIA search by DOJ would involve asking the covered personnel whether they used personal email to conduct official business, and then, for those who responded affirmatively, requiring them to search their personal accounts for any responsive records. (Id .).

OIP responded by remanding the request to Civil Rights. (Def. Partial Mot. to Dismiss Ex. 5). On remand, Civil Rights indicated that "[a]ny search conducted by this office could possibly locate only emails that were forwarded or copied to/from a Department email account, and you have indicated that you are not interested in such material." (Def. Partial Mot. to Dismiss Ex. 6, at 2). It noted, however, that it had a collection of then-Assistant Attorney General Thomas Perez's emails for a six-month period between January and May 2013; Perez had volunteered to collect those emails in relation to a different inquiry. (Id. ). Civil Rights provided Plaintiff with 64 pages of documents from Perez's email, with information it considered to be attorney work product and pre-decisional deliberative material and information that would constitute an unwarranted invasion of personal privacy redacted. (Id .). Plaintiff appealed again, arguing that "DOJ wrongfully refused to instruct covered employees to search private repositories for responsive records, despite acknowledging their use," and that "DOJ misunderstood or otherwise mischaracterized the scope of records to which this FOIA request is directed." (Def. Partial Mot. to Dismiss Ex. 7). OIP again affirmed, finding that Civil Rights had performed an "adequate, reasonable" search, that Civil Rights had properly searched Perez's personal emails after becoming aware that he had used personal emails, and that "[t]o the extent" the request was that "the Civil Rights Division ... search any and all email accounts of Civil Rights Division personnel for any evidence that any employee used personal email to conduct agency business," such a search would be unreasonably burdensome. (Def. Partial Mot. to Dismiss Ex. 8). OIP noted that in order to comply with such a request, Civil Rights would have to search every email account of every employee, and "would be unable even to limit its search by topic." (Id. ). It invited Plaintiff to "make a more specific request." (Id. ).

b. The Alias Email Request

The Alias Email Request was also assigned three different case numbers for the Attorney General, the Deputy Attorney General, and Civil Rights. Civil Rights responded with a document showing the creation of new email accounts. (Def. Partial Mot. to Dismiss Ex. 13). It also enclosed an email regarding changing Perez's email address from thomas.e.perez@usdoj.gov to thomas.perez@usdoj.gov. (Id. ). It redacted portions of the documents for privacy reasons pursuant to 5 U.S.C. § 552(b)(6), and informed Plaintiff that it had "no other records responsive to your request for alternative, secret, fictitious, alias or any other kind of email account." (Def. Partial Mot. to Dismiss Ex. 13). Plaintiff did not appeal this response to the alias email request....