Brennan Center for Justice et al v. U.S. Department of Justice et al, No. 1:2017cv06335 - Document 99 (S.D.N.Y. 2019)
Court Description: OPINION AND ORDER GRANTING PARTIAL SUMMARY JUDGMENT re: 79 CROSS MOTION for Partial Summary Judgment filed by U.S. Department of Homeland Security, U.S. Social Security Administration, U.S. Department of Justice, U.S. General Services Administration, Office of Management and Budget, 75 MOTION to Compel Defendants to Produce Documents filed by Brennan Center for Justice, The Protect Democracy Project, Inc. Plaintiffs' motion for partial summa ry judgment is granted, and Defendants' motion is denied. The parties shall meet and agree to a reasonable timeline for Defendants' production and, failing agreement, report to the Court by joint letter their items of disagreement. The Clerk is instructed to terminate the motions (ECF 75, 79). SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 4/30/2019) (ne)
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Brennan Center for Justice et al v. U.S. Department of Justice et al Doc. 99 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------- X BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW; THE PRO TECT DEMOCRACY PROJECT, INC. -against- OPINION AND ORDER GRANTING PARTIAL SUMMARY JUD GME NT Plaintiffs, 17 Civ. 6335 (AKH) U.S. DEPARTMENT OF JUSTICE; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. GENERAL SERVICES ADMINISTRATION; OFFICE OF MANAGEMENT AND BUDGET; U.S. SOCIAL SECURITY ADMINISTRATION, ,- j USDCSDNY r DOCUMENT ELECTRONICALLY FILED 11:$0 /( 'i DOC #: DATE FILED: 1 Defendants. I t -------------------------------------------------------------- X ALVIN K. HELLERSTEIN, U.S.D.J.: I write to resolve two disputes in this Freedom oflnf orma tion Act ("FOIA") case. The matter arises in the context of an investigation of allege d voter fraud, commissioned and then aborted by the President and, plaintiffs allege, conti nued in other ways by other agencies. On May 11,20 17, President Donald J. Trump established the Presidential Advisory Commission on Election Integrity ("Commissi on") to study and report on voter fraud: "vulnerabilities in voting systems and practices used for Federal elections that could lead to improper voter registrations and improper voting, including fraudulent voter registrations and fraudulent voting." Exec. Order No. 13,799, 82 Fed. Reg. 22,389 (May 11, 2017). 1 On 1 Vice President Mike Pence chaired a fifteen-member Comm ission. Its vice chair was Kansas Secretary of State Kris Kobach. The Commission included Indiana Secretary of State Connie Lawson, New Hampshire Secretary of State William Gardner, Maine Secretary of State Matthew Dunlap, former Ohio Secretary of State J. Kenneth Dockets.Justia.com Janu ary 3, 2018 , just seve n mon ths later, Pres iden t Trum p disb ande d the com miss ion. Exec. Order No. 13,820, 83 Fed. Reg. 13,820 (Jan uary 3, 2018). In a state men t issue d that day, the Press Secr etary anno unce d that Pres iden t Trum p chos e to dissolve the Com miss ion "[r]a ther than engage in endless legal battles at taxp ayer expe nse." The Whi te House, Office of the Press Secretary, Statement on the Presidential Advisory Commission on Election Integrity (Jan. 3, 2018), https ://ww w.w hiteh ouse .gov /brie fings -stat emen ts/st atem ent-p ress- secre tary- pres iden tial- advisory-commission-election-integrity. Acco rdin g to the statement, Pres iden t Trum p "ask ed the Dep artm ent of Hom elan d Security to revie w its initial findings and determine next courses of actio n." Id Plaintiffs Bren nan Cent er for Justice at New York University Scho ol of Law and the Prot ect Dem ocra cy Project, Inc. (collectively, "Pla intif fs") mad e dem and unde r the Free dom ofln form ation Act ("FO IA") , 5 U.S.C. § 552, for the docu men ts of the Com miss ion's work, filed this suit, and subs eque ntly mov ed for an orde r to com pel the U.S Dep artm ent of Justi ce ("DO J"), U.S. Dep artm ent of Hom elan d Security ("DH S"), U.S. General Services Adm inist ratio n ("GS A"), U.S. Office of Man agem ent and Bud get ("OM B"), and U.S. Social Security Adm inist ratio n ("SS A") (collectively "Def enda nts" or "Go vern men t") to prod uce the docu men ts responsive to Plain tiffs ' FOIA requ ests.2 Two issues rema in for my determination: 1) Blackwell, and Election Assistance Commission Commissioner Christy McCormick. The White House, Office of the Press Secretary, President Announces Form ation ofBipartisan Presidential Commission on Election Integrity (May 11, 2017), https://www.whitehouse.gov/br iefings-statements/president-announces-formation -bipartisanpresidential-commission-election-integrity/; Wedo ffDec l., ECF 77-2, at 2. 2 Plaintiffs have not sought records directly from Commission members or the Commission, which Plaintiffs concede is not an "agency" subject to FOIA. 5 U.S.C. § 552(f)(l); Kissinger v. Reporters Com m.for Freedom of the Press, 445 U.S. 136, 156 (1980); Citizens for Responsibility & Ethics in Washington v. Office of Admi n., 566 F.3d 219, 222 (D.C. Cir. 2009); see Tr., ECF 92, at 22. 2 whe ther sear ch terms ado pted by DH S and 0M B, narrower than thos e ado pted by the DOJ, SSA, and GSA,3 are reasonable and appropriate or too narr ow to carry out a reasonable and responsive search; and 2) whe ther Defendants should be required to search the private email acco unts of Act ing Assistant Atto rney General Joh n Gore ("G ore" ) and DO J attorney Maureen Rio rdan ("Riordan"), and if "po tent ially resp onsi ve agency records [exist] outside of a Dep artm ent records system, such as in a personal ema il account." Gore and Riordan, although not Com mis sion members, received emails from Com mis sion members, concerning Com mis sion business, in thei r pers ona l email accounts . Gore also sent emails con cern ing Com mis sion business to a Com mis sion mem ber at her personal email address. Bot h sides mov e for sum mar y judg men t. I rule for Plaintiffs on both issues. Factual Background 1. The Presidential Advisory Com mis sion on Election Integrity Plaintiffs allege that the Commission, esta blished by President Tru mp to "pro mot e fair and hon est Federal election s" by detecting vote r fraud, was really inte nded to erect legal barriers to voting by eligible citizens. Exec. Ord er No. 13,799, 82 Fed. Reg. 22,3 89 (May 11, 2017). Plaintiffs believe that the prod ucti on of rele vant documents may enable them to substantiate thei r claims. On June 28, 201 7, Kris Kobach, Vic e Chair of the Commis sion, sent letters to state election officials seek ing publicly-available voter roll data, includin g names, Plaintiffs represent in its reply brief that they are discontinuing their earlier challenge to the DOJ-OIP, DOJ-OLC, GSA, and SSA search terms based on the Government's subsequent disclosures. Repl y at 9. At oral argument, Plaintiffs further represented that, based on additional disclosures, it was withdrawing its requests for supplemental search terms for DOJ-CRT. 3 3 addresses, political party affiliation, partial social security numbers, voter history, active/inactive status, felony status, registration status in another ·state, milita ry status, and overseas citizen information. Supp. Compl. ,r 17. The effect of these inqui res and other Commission activity, Plaintiffs allege, was to chill registrations of voters and to increase cancellations of voter registrations. Allegedly, nearly 4,000 registrations were cancelled in Colorado and 1,715 in Florida, more than double the cancellations in prior years . Supp. Compl. 19. President Trump formally dissolved the Commission in January 2018. However, Plaintiffs allege, DHS has continued its work. Plaintiffs allege that Immigration and Customs Enforcement ("ICE"), an agency of DHS, continued the work of the Commission, evidenced by a subpoena issued by the U.S. Attorney of the Eastern Distr ict of North Carolina on August 31, 2018 to the State Board of Elections and Ethics Enforcem ent and forty-four counties in North Carolina, seeking voter records and ballots. Pl. Br. at 5-6. As of March 2019, an investigation of election fraud remained active in North Carolina. 2. Plaintiffs' FOIA Requests In May 2017 and July 2017, Plaintiffs sent eight FOIA reque sts to the U.S. General Services Administration ("GSA"), Department of Homeland Security ("DHS"), Office of Management and Budget ("OMB"), and several sectio ns of the Department of Justice ("DO J")-i ts Office oflnf orma tion Policy ("OIP"), Civil Rights Division ("CRT"), and Office of Legal Counsel ("OL C")-- seeki ng documents and comm unications relate d to the Commission's formation, goals, and activities. See ECF 77-2 to 77-9. After filing this suit, Plaintiffs filed three additional FOIA requests on October 18 and 19, 2017, to DOJ-OIP, SSA, and DHS. See ECF 77-10 to 77-12 (seeking information on the Commission's use of SSA resources in carrying out its activities, DOJ emails excha nged between the Heritage Foundation 4 and Commission members, and documents from DHS relate d to the Com missi on's termination and transfer of operations to DHS). Each agency identified the methods and terms for its searc hes. See, e.g., Vanessa R. Brinkmann Deel., ECF 82. DOJ-OIP searched: "Election Integrity," "vote r fraud," "voting system," the names of members of the Commission, "citiz enship status," "voter registration list," "voter file data," "voter roll data," ("detail" AND "commissi on"), ("assignment" AND "commission"); other agencies used these or similar terms . 0MB , in contrast, searched only "PACE!," or "election commission" or "election integrity commission." Heather Walsh Deel. ECF 78, at 6. DHS used even narrower terms: "President ial Advisory Commission on Election Integrity" or "Election Commission" or "Commission" and "Voter Fraud." James Holzer Deel., ECF 88, at 6. Another issue relates to private email accounts of agency personnel. One agency, DOJ-OLC, asked custodians to report if"po tentia lly respo nsive agency records outside of a Department records system, such as in a personal email accou nt," existed; the agency responded in the negative. ECF 83 ,r 18. GSA reported that Assistant General Counsel Duane Smith had "contacted the GSA employees who were involved in provi ding administrative support services and they confirmed that they had not used any private email s to conduct GSA business." Lewis Deel., ECF 85 ,r 11. In contrast, SSA made no such inqui ry; it argues that, since SSA policy requires the use of agency accounts to conduct agency busin ess, there was no point to ask if private email accounts were used. Chyn Deel., ECF 86 ,r 11. Similarly, the DOJ-CRT information officer reported that although personal email accounts were used, the emails were forwarded to the official DOJ account and, therefore, there was no need to search personal email accounts." Cooper Deel., ECF 84 ,r 14. 5 Plaintiffs cite use by at least two non-C ommi ssion agenc y emplo yees of perso nal email accounts to send and receiv e emails relating to Comm ission matters, and argue that other records must exist outside the official record s system. Actin g Assis tant Attorn ey General John Gore, for exam ple, used his perso nal Gmail accou nt to corres pond about allegations of illegal voting with Chris Cleveland, a partis an political activi st on voter fraud issues. Wedo ff Decl., ECF 77-22, 77-23; Pl. Br., ECF 76, at 13. Gore later forwarded variations of his email thread with Cleve land to Comm ission memb er Chris ty McCo rmick , also via her perso nal AOL address, on July 5, 2017 and Septe mber 5, 2017. Wedo ff Decl., ECF 77-22, 77-23. Eighty-four days after his first privat e email, on Septe mber 27, 2017, Gore forwa rded both email s to his official DOJ account. Id In a secon d instance, Comm ission memb er J. Chris tian Adam s sent at least two emails on voting integrity to DOJ attorney Maur een Riord an's perso nal Comc ast address. Wedo ff Decl., ECF 77-24, 77-25. Withi n a day ofrec eiving the emails, Riord an forwarded them to her official DOJ account. Id. Legal Standards A court may "supe rvise the agenc y's ongoi ng progress, ensur ing that the agenc y contin ues to exercise due diligence in proce ssing the request. Citizens for Responsibility & Ethics in Washington v. Fed Election Comm 'n, 711 F.3d 180, 189 (D.C. Cir. 2013); see also § 552(a)(6)(C). "FOIA impos es no limits on courts ' equitable powe rs in enforc ing its terms ." Payne Enterprises, Inc. v. United States, 837 F.2d 486,4 94 (D.C. Cir. 1988); see also Clemente v. Fed Burea u of Investigation, 71 F. Supp. 3d 262,2 63,26 9 (D.D.C. 2014); Nat. Res. Def Council v. Dep 't of Energy, 191 F. Supp. 2d 41, 42 (D.D.C. 2002) . 6 "Summary judgm ent is the usual mechanism for resolving a FOIA disput e." Doyle v. US Dep't ofHom eland Sec., 331 F. Supp. 3d 27, 43 (S.D.N .Y. 2018). "[O]n a motion for summary judgm ent in a FOIA case, the defending agency has the burden of showing that its search was adequate." Carney v. US. Dep 't ofJustice, l 9 F.3d 807, 812 (2d Cir. 1994). "[T]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search." Liberation Newspaper v. US. Dep 't ofState, 80 F. Supp. 3d 137, 144 (D.D.C. 2015) (quoting Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)). The "searc h for records does not have to be perfect, only reasonable, and the failure to return all respon sive documents is not necessarily inconsistent therewith: an agency is not expected to take extraordinary measures to find the requested records, but only to conduct a search reasonably design ed to identify and locate responsive documents." Amnesty Int'! USA v. CIA, 728 F. Supp. 2d 479,4 97 (S.D.N.Y. 2010) (internal quotation marks removed). "Affidavits or declarations supplying facts indicating that the agency has conducted a thorough search ... are sufficient to sustain the agenc y's burden. Carney v. U.S. Dep't ofJustice, 19 F.3d 807,8 12 (2d Cir. 1994). "Thes e declarations are 'accorded a presumption of good faith which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents."' Landm ark Legal Found v. E.P.A., 959 F. Supp. 2d 175, 181 (D.D.C. 2013). Discussion Defendants argue, first, that their responses to Plaintiffs' search reques ts were adequate, and that the selection of search terms is the responsibility of the agencies, not the Plaintiff; and, second, that custodians enjoy a presumption of compliance with recordkeeping 7 regulations, without requiring them to search private email accounts to comply with a FOIA request. Plaintiffs argue that the search terms used by the two resisting agencies, DHS and 0MB, plainly were inadequate and inconsistently narrower than the terms used by other agencies, and that custodians cannot tum a blind eye when private email accounts are used. A. The Appropriateness of the Search Terms Plaintiffs challenge as inadequate the search terms adopted by 0MB, which searched only "P ACEI," or "election commission" or "election integri ty commission," and by DHS, which searched "Presidential Advisory Commission on Electio n Integri Commission" or "Commission" and "Voter Fraud "-sear ches that were example, DOJ-OIP, which searched "Election Integrity," "voter fraud," ty" or "Election much narrower than, for "voting system," the names of members of the Commission, "citizenship status," "voter registr ation list," "voter file data," ''voter roll data," ("detail" AND "commission"), ("assignment " AND "commission"). James Holzer Deel., ECF 88, at 6; Heather Walsh Deel. ECF 87, at 6; Vanessa R. Brinkmann Deel., ECF 82, at 10-11 . Generally, agencies need show only that the search terms are reasonable and adequate to respond to a FOIA request. See Long v. Office of Pers. Mgmt. , 692 F.3d 185, 190 (2d Cir. 2012). Adequacy requires that "the search was reasonably calcul ated to discover the requested documents, not [that] it actually uncovered every document extant." Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473,4 89 (2d Cir. 1999) (quoting SafeC ard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1201 (D.C. Cir. 1991)). Federal agencies have discretion to craft the search terms that they believ e to be reasonably tailored to uncover documents responsive to a FOIA reques t. Bigwo od v. United States Dep 't of Def, 132 F. Supp. 3d 124, 140 (D.D.C. 2015). FOIA petitioners cannot dictate 8 the search terms to be used. "Wher e the search terms are reasona bly calcula ted to lead to responsive documents, the Court should not 'micro manag e' the agency 's search. " Liberation Newspaper v. US Dep't a/State , 80 F. Supp. 3d 137, 146 (D.D.C. 2015). Howev er, an agency 's choice of search terms is not conclusive. Where challenged, agencie s have to explain why certain search terms, clearly relevant, were not used. Immigrant Defens e Project v. United States Immigration and Customs Enforcement, 208 F. Supp. 3d 520, 528 (S.D.N .Y. 2016). The contrast betwee n the overly narrow search terms used by DHS and 0MB, and those employ ed by the other agencies responding to essentially the same request s, is marked, and make clear the unreasonableness ofDHS ' and OMB's approach. DHS and 0MB fail to explain why terms as obvious as those employ ed by sister agencies were not used. With blinkers on, the world can't fully be seen. I order defendants 0MB and DHS to conduct their searches using the search terms employ ed by DOJ-O IP, that is, "Electi on Integrity," "voter fraud," "voting system," the names of membe rs of the Commission, "citizenship status," "voter registra tion list," "voter file data," "voter roll data," ("detai l" AND "comm ission" ), ("assig nment" AND "commission"). B. Private Email Accounts Plaintiffs ask that Defendants search the private email accounts of two agency employees, John Gore and Maureen Riordan, and ask relevant agency employ ees to report if they have potentially responsive records outside of an official records system, such as in a private email account. Defendants argue that they need search only agency records , and that there is no evidence that private email accounts contained agency records that were not also included in an official govern ment repository. "[E]mp loyees' communications on non-ag ency accounts may constitute 'agency records ' subject to the FOIA." Wright v. Admin. for Children & Families, No. 15-cv-218, 2016 9 WL 5922293, at *7-*8 (D.D.C. Oct. 11, 2016); see also Competitive Enter. Inst. v. Office o/Sci. & Tech. Policy, 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 or because he is the head of the agency."). "[A]n 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 .... " Competitive Enter. Inst., 827 F.3d at 146. To preserve records within the scope of FOIA, statutes and regulations require agency employees to store records within official systems. 36 C.F.R. § 1236.22(b) ("Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system."); see also 44 U.S.C. § 291 l(a) (agency employees and officers "may not create or send a record using a non-official electronic messaging account" without copying or forwarding a copy of the record to the agency). The record is clear that Acting Assistant Attorney Gore sent and received emails relating to voter fraud, and that DOJ attorney Riordan received emails discussing election integrity, on their private email accounts. Moreover, Gore was substantially late in forwarding emails from his private account to official accounts, beyond the twenty-day period required by 44 U.S.C. § 291 l(a), for example, an email of July 5, 2017 that was not forwarded until September 27, 2017, eighty-four days later. Evidence of a record on a personal account is sufficient to raise a question of compliance with recordkeeping obligations, rendering the presumption of compliance inapplicable. Judicial Watch, Inc. v. Department ofJustice, 319 F. Supp. 3d 431,438 (D.D.C. 10 2018) (finding search adequ ate that was not restricted to custo dian's official account); see also Wright, 2016 WL 5922293 at *8 ("This presu mptio n [of discha rge of official duties J may be subject to rebuttal .... "). In this case, the existence of email s on perso nal accounts, and Gore' s failure to forward email s timely, raise a material question wheth er "gove rnmen t email account[s] [are] the only record system likely to conta in agenc y records responsive to [Plain tiffs'] FOIA reque sts." Judicial Watch, Inc., 319 F. Supp. 3d at 438. The official custod ians must ask releva nt emplo yees if they used privat e email accounts relatin g to the Comm ission 's business and, if so, to produ ce the documents. Cf Competitive Enter. Inst. v. Office ofSci. & Tech. Policy, 241 F. Supp. 3d 14, 22 (D.D.C. 2017) (presu mptio n applie s where custod ian files declar ation showi ng 4,500 instances of comp liance with email forwa rding rule); Wright, 2016 WL 5922293 at *8 (presu mptio n applies where agenc y couns el specifically consu lted agenc y personnel). The use of privat e email accounts to condu ct official business has becom e comm onpla ce. Mobi le electr onic devices and comm unica tion platfo rms have proliferated, and the bound aries betwe en home and office, and personal and busin ess travel, have blurred. Reports of public officials using perso nal accounts or device s to condu ct official business and, at times, to evade disclosure regulations have becom e the subjec ts of public discourse. See, e.g., Steve Zansb erg, Cloud -Base d Public Records Pose New Chall enges /or Access, 31 Comm . Law. 12, 12 (2015) (collecting reports); Daniel Pitcal m & Zoe Groto phorst, The State ofInternal Workplace Communication, Gove rnmen t Execu tive (Marc h 5, 2015), https ://www .gove xec.co m/ins ights/ state- intern al-wo rkplac e-com munic ation/ 10673 7I (reporting that 33% of 412 gover nmen t emplo yees surveyed used perso nal email for gover nmen t business). 11 In an environment of widespread use of personal devices for official work, there is danger of an incentive to shunt critical and sensitive communication away from official channels and out of public scrutiny, with decisions to forward the communicatio ns to official record repositories postponable at the whim of the public official. The practic e is inconsistent with "the citizen 's right to be informed about what their government is up to," the very purpose of FOIA. US. Dep 't ofJustice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (internal quotation marks and citation omitted); see also Competitive Enter. Inst., 827 F.3d at 150. ("If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, [the] purpose [ofFOI A] is hardly served."). The presumption argued by the Government is not applicable in this case. The Government argues that the Plaintiffs' FOIA requests would burden hundre ds or thousands of personal email accounts. This is not the case, and is not what Plaintiffs seek. Plaintiffs' requests are limited to two people, plus requests by the records custodi ans to relevant persons in their departments to search for, and forward, responsive private commu nications on matters relating to the Comm ission's business. Plaintiffs' requests are reasona ble and are not barred by presumptions. 12 Conclusion Plaintiffs' motion for partial summary judgm ent is granted, and Defendants' motion is denied. The parties shall meet and agree to a reason able timeline for Defendants' production and, failing agreement, report to the Court by joint letter their items of disagreement. The Clerk is instructed to terminate the motions (ECF 75, 79). SO ORDERED. Dated: Aprf j/l,20 19 New York, New York 13 United States District Judge
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