Competitive Enterprise Institute v. Office of Science and Technology Policy

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Competitive Enterprise
Institute,

Plaintiff,

v.

Office of Science and Civil Action No. 14-765 (GK)
Technology Policy

Defendant.

MEMORANDUM OPINION

Plaintiff Competitive Enterprise Institute ("Plaintiff" or

"CEI") brings this action against the Office of Science and

Technology Policy ("Defendant," "OSTP," or "the Government"), a

component of the Executive Office of the President of the United

States. Plaintiff alleges violations of the Freedom of

Information Act ("FOIA"), 5 U.S.C. § 552, (Counts I & II), the

Administrative Procedure Act ("APA"), 5 U.S.C. § 704, et seq.,

(Count III), and the Federal Records Act ("FRA"), 44 U.S.C. §§

2101-18, 2901-09, 3101-07, 3301-14, (Counts IV-VII).

This matter is presently before the Court on the

Governmen.t' s Motion to Dismiss, [Dkt. No. 7]. Upon consideration

of the Motion, Opposition, [Dkt. No. 8], Reply, [Dkt. No. 10],

and the entire record herein, and for the reasons stated below,
Defendant's Motion is granted, and Plaintiff's Complaint shall

be dismissed.

I. BACKGROUND

A. Statutory Framework

1. Freedom of Information Act

FOIA, 5 U.S. C. § 552, allows individuals to request the

disclosure of records from government agencies. Id. § 552 (a) ( 3) .

When an agency receives a request that "reasonably describes"

the records sought, id. § 552 (a) ( 3) (A) , ·it must "conduct [] a

search reasonably calculated to uncover all relevant documents."

Morely v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (internal

quotation marks omitted). The agency must then disclose any

responsive agency records it locates, except to the extent that

any such records are protected from disclosure by one of FOIA's

nine statutory exemptions. See 5 U.S.C. § 552(b).

If an agency withholds responsive records not covered by

one of FOIA' s exemptions, after exhausting administrative

remedies, the requester may file a lawsuit in district court to

challenge the agency's decision to withhold. See id.

§ 552(a) (4) (B). As the Supreme Court has held, in order to state

a claim under FOIA, a requester must allege that the agency has

(1) improperly; (2) withheld; (3) agency records. Kissinger v.

Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150
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 (1980). "Judicial authority to devise remedies and enjoin

agencies can only be invoked . if the agency has contravened

all three components of this obligation." Id.

2. Federal Records Act

The FRA is "a collection of statutes governing the

creation, management, and disposal of records by federal

agencies." Pub. Citizen v. Carlin, 184 F.3d 900, 902 (D.C. Cir.

1999); accord 44 U.S.C. §§ 2101-18, 2901-09, 3101-07, 3301-14.

Under the FRA, agency heads are required to "make and preserve

records containing adequate and proper documentation of the

organization, functions, policies, decisions, procedures, and

essential transactions of the agency [.]" 44 U.S. C. § 3101. Not

all documents in an agency's possession qualify as "records"

under the FRA. Instead, "records" includes any "recorded

information" "made or received by a Federal agency under Federal

law or in connection with the transaction of public business and

preserved or appropriate for preservation by that agency

as evidence of the organization, functions, policies, decisions,

procedures, operations, or other activities of the Government or

because of the informational value in them." Id.

§ 330l(a)(l)(A).

Agencies may only dispose of records on terms approved by

the Archivist of the United States, who is head of the National
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Archives and Records Administration ("NARA"). 44 U.S.C. § 3303;

36 C.F.R. § 1225.10. In order to efficiently manage the

disposition process, agencies may create records schedules,

which must be approved by the NARA, to govern recurring types of

records. 44 U.S.C. § 3303(3); 36 C.F.R. §§ 1225.10-1225.26.

Records may be deemed temporary or permanent, the former

designation leading to destruction after a set period and the

latter, to preservation and eventually, transfer to the NARA. 36

C.F.R. §§ 1225.14, 1225.16.

If an agency head learns of "any actual, impending, or

threatened unlawful removal, defacing, alteration, corruption,

deletion, erasure, or other destruction of records in the

custody of the agency," he or she must notify the Archivist. 44

U.S.C. § 3106. If the agency head "knows or has reason to

believe [that records] have been unlawfully removed from [his or

her] agency," then the agency head "with the assistance of the

Archivist shall initiate action through the Attorney General for

the recovery of records [.]" Id. If the agency head "does not

initiate an action for such recovery or other redress within a

reasonable period of time," then the Archivist "shall request

the Attorney Generai to initiate such an action, and shall

notify the Congress when such a request has been made." Id.

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 B. Factual Background1

On October 15, 2013, Plaintiff sent OSTP a FOIA request

seeking "copies of all policy /OSTP-related emails sent to or

from jholdren@whrc.org (including as cc: or· bee:)." CEI FOIA

Request at 2. [Dkt. 7-1]; see also compl. ']['][ 2-3, 26-28. The

jholdren@whrc.org email account, provided to OSTP Director John

Holdren ("Dr. Holdren" or "Director Holdren") is maintained by

his former employer, a private entity called the Woods Hole

Research Center. Compl. '][ 2, 23. The request alleged that "John

Holdren maintained this account after joining the White House,

and that he used this address/account for OSTP-related

correspondence." CEI FOIA Request at 2.

CEI clearly stated that its request would "entail[]

searching jholdren@whrc.org." Id. According to CEI's request,

while "[i]t [would] make [] sense for OSTP to search Mr.

Holdren's OSTP account(s) [,] this request [was] for

responsive records on the cited account[,]" id.' i.e.,

jholdren@whrc.org, not his OSTP account(s).

1
For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat'l Rifle Ass'n of Am., 606 F.2d 1251, 1253
(D.C. Cir. 197 9) ~ Therefore, unless otherwise noted, the facts
set forth herein are taken from Plaintiff's Complaint.
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 On February 4, 2014, Defendant responded to CEI' s request

stating that "OSTP [would be] unable to search the

'jholdren@whrc.org' account because that account [was]

under the control of the Woods Hole Research Center, a private

organization. Compl. ~ 29 (quoting OSTP' s Response to FOIA
11

Request [Dkt. 7-2]). OSTP stated that it "underst[ood] the

records [CEI] requested to be beyond the reach of FOIA, 11
and

therefore, "consider [ed] [the] request unperfected. 11
Id.

On February 18, 2014, CEI replied to OSTP's letter.

Plaintiff requested administrative appellate review of the

agency's initial determination that the records sought were

outside of FOIA's ambit. Compl. ~ 30.

On March 7, 2014, 2 OSTP responded to CEI's letter of

February 18. Compl. ~ 32. In OSTP's view, CEI's letter did not

serve as an appeal; instead, it merely "clarif [ied] that [CEI

was] requesting a search of Dr. Holdren's OSTP email account for

records to and from jholdren@whrc.org. 11
Id.

On April 18, 2014, CEI responded, calling OSTP's reading a

mischaracterization and reiterating its desire for the agency to

2
Plaintiff's Co~plaint ~ 32 states that OSTP did not respond to
CEI's February letter until March 31, 2014, but that appears to
be a mistake. A copy of the letter with the text quoted in the
Complaint bears the date March 7, 2014. [Dkt. No. 7-4]. CEI
attached to its Opposition another letter from OSTP dated March
31, 2014, [Dkt. No. 8-1], but the March 31 letter also
references the March 7 letter.
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search for all OSTP-related emails sent to or from

j holdren@whrc. org. Compl. ':II 33; CEI' s April Response [ Dkt. No.

7-5]. CEI noted that, in its view, the agency had failed to

respond to CEI's appeal and that CEI would pursue judicial

review unless OSTP provided a substantive response by May 1,

2014. Compl. ':II 33.

On May 5, 2014, CEI filed its Complaint; on July 11, 2014,

OSTP filed its Motion to Dismiss; on July 28, 2014, CEI filed

its Opposition; and on August 21, 2014 OSTP filed its Reply.

II. STANDARD OF REVIEW

In order to survive a motion to dismiss under Rule

12 (b) (6), a plaintiff need only plead "enough facts to state a

claim to relief that is plausible on its face" and to "nudge[

[his or her] claims across the line from conceivable to

plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007). "[O]nce a claim has been stated adequately, it may be

supported by showing any set of facts consistent with the

allegations in the complaint." Id. at 563.

Under the Twombly standard, a "court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs' success . [,] must assume all the allegations in

the complaint are true (even if doubtful in fact) [, and]

must give the plaintiff the benefit of all reasonable inferences
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derived from the facts alleged." Aktieselskabet AF 21. November

2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008)

(internal quotation marks and citations omitted). A complaint

will not suffice, however, if it "tenders 'naked assertion [ s] '

devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556

u.s. 662, 678 (2009) (quoting Twombly, 550 u.s. at 557)

(alteration in Iqbal) .

III. ANALYSIS

A. Counts I & II: FOIA Claims Seeking an Injunction and a
Declaratory Judgment

Counts I and II of CEI's Complaint arise under FOIA, which

allows private persons to contest an agency's (1) improper

(2) withholding of (3) agency records. Kissinger, 445 U.S. at

150.

Plaintiff has been exceedingly clear about what it wanted

from OSTP: work-related emails residing on Dr. Holdren's

unofficial email account, jholdren@whrc.org, which is maintained

by a private entity, the Woods Hole Research Center. See CEI

FOIA Request at 2 ("This [request] entails searching

jholdren@whrc.org. It makes sense for OSTP to search Mr.

Holdren's OSTP account(s) but this request is for

responsive records on the cited account."); Compl.