Competitive Enterprise Institute v. Office of Science and Technology Policy

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 14, 2016 Decided July 5, 2016

No. 15-5128

COMPETITIVE ENTERPRISE INSTITUTE,
APPELLANT

v.

OFFICE OF SCIENCE AND TECHNOLOGY POLICY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00765)

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

KatieLynn Townsend argued the cause for amici curiae.
With her on the brief were Bruce D. Brown, Peter Scheer,
Jonathan D. Hart, David McCraw, Barbara L. Camens, James
Cregan, Charles D. Tobin, 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.
 2

Before: SRINIVASAN, Circuit Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge
SENTELLE.

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
 3

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
 4

U.S. 136, 147 (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.
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 (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
 5

(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 (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). 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. The
documents in question had been donated to the Library of
 6

Congress, which was not a party to the action. Id. at 154-55.
The Supreme Court unsurprisingly ruled that the Department did
not have to produce what it did not have. See id. at 158. 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 4 (quoting Kissinger, 445 U.S. at 155)
(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 Adviser of the Department of
State denied the request on two grounds. First, he found
that the notes were not agency records. Second, the deposit
of the notes with the Library of Congress prior to the
request terminated the Department’s custody and control.
The denial was affirmed on administrative appeal.
The third FOIA request was filed on January 13, 1977,
by the Reporters Committee for Freedom of the Press
 7

(RCFP), the American Historical Association, the American
Political Science Association, and a number of other
journalists (collectively referred to as the RCFP requesters).
This request also sought production of the telephone notes
made by Kissinger both while he was National Security
Adviser and Secretary of State. The request was denied for
the same reasons given to the MAP requesters.

Kissinger, 445 U.S. at 143-44 (emphasis added).

There is no assertion by the agency before us that it has
ceded the relevant records to the Director. Indeed, if it is
ultimately determined that there are agency records in the
requested data, it seems unlikely that the agency could legally
cede the records under the Federal Records Act and the Records
Disposal Act. However, we need not on the present record
determine whether there are agency records among the data
sought, nor the legality of ceding such records. It is sufficient
to conclude, as our colleague agrees, that Kissinger does not
control the case before us.

More nearly on point is Burka v. U.S. Department of Health
and Human Services, 87 F.3d 508 (D.C. Cir. 1996). In Burka,
a requestor sought disclosure from the Department of Health and
Human Services of data tapes and questionnaires regarding
smoking habits and attitudes conducted by an agency within the
Department. 87 F.3d at 510-13. As relevant here, we held in
Burka, that the agency must search and disclose records that
were not on its premises but were under its “constructive
control.” Id. at 515. This comes closer to the question before
us.
 8

More helpful still is Ryan v. Department of Justice, 617
F.2d 781 (D.C. Cir. 1980), in which a requestor sought
documents from the Department of Justice which were within
the exclusive control of the Attorney General. Id. at 786. The
Department asserted that the documents were not within the
agency since they were under the exclusive control of its head.
In rejecting that argument, we concluded that there is no basis
in the FOIA “to view the Attorney General as distinct from his
department for FOIA purposes.” Id. at 787. In other words, an
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.

This seems to us to be the only resolution that makes sense.
If the agency head controls what would otherwise be an agency
record, then it is still an agency record and still must be searched
or produced. The agency’s claim before us simply makes little
sense. That argument relies on the proposition that the emails
in question are under the control of a private entity, not the
government. That private entity is Woods Hole Research
Center, apparently the owner of the “whrc.org” domain where
Director Holdren of the OSTP maintains the account
jholdren@whrc.org. While this specific fact is not addressed in
the record, it is not apparent to us that the domain where an
email account is maintained controls the emails therein to the
exclusion of the user, in this case Director Holdren, who
maintains the account. When one receives an email from John
Doe at, for example, gmail.com, and replies thereto, the replier
would be likely to think that message is going to John Doe, not
gmail.com. Even so here.
 9

Further, appellee’s argument is inconsistent with the
purpose of FOIA. The Supreme Court has described the
function of FOIA as serving “the citizens’ right to be informed
about what their government is up to.” U.S. Dep’t of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773
(1989) (internal quotation marks and citation omitted). 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, that purpose is hardly served. It would make as much
sense to say that the department head could deprive requestors
of hard-copy documents by leaving them in a file at his
daughter’s house and then claiming that they are under her
control.

If by some means Woods Hole Research Center has
lawfully acquired exclusive possession and control of agency
records that were formerly in the possession of John Holdren,
the government has not demonstrated this. We therefore reverse
the district court’s grant of dismissal in favor of the appellee,
and remand the case for further proceedings consistent with this
opinion.

We make clear that we are not ordering the specific
disclosure of any document. It may be that OSTP has valid
exemption claims, or even that no document found among the
jholdren@whrc.org email falls within the definition of “agency
records.” However, those questions are for litigation in the
district court in the first instance.
 10

CONCLUSION

For the reasons set forth above, we reverse the judgment of
dismissal entered by the district court and remand this case for
further proceedings consistent with this opinion.

So ordered.
 SRINIVASAN, Circuit Judge, concurring in the judgment:
I agree with my colleagues that the judgment of dismissal
entered by the district court should be reversed and the case
remanded for further proceedings. The district court
concluded that the agency cannot be considered to have
“withheld” any emails in Holdren’s private email account
because that account lies outside the agency’s possession or
control. The court relied on the Supreme Court’s decision in
Kissinger v. Reporters Committee for Freedom of the Press,
445 U.S. 136 (1980). Kissinger held that an agency did not
“withhold” certain records that had been taken from the
agency’s premises by the agency head, because, at the time
the FOIA requests were filed, the records lay beyond the
agency’s possession or control.

This case resembles Kissinger in certain respects in that
both cases concern documents held by a current agency
official in a location outside the agency’s ordinary domain.
But while Kissinger held that the FOIA requests in that case
could not proceed, I, like my colleagues, do not read
Kissinger to require a dismissal of the FOIA request in this
case, at least at this point in the proceedings. I write
separately to set out my understanding of the reasons
Kissinger does not control, and because I approach the issue
here in a somewhat different fashion than do my colleagues.

In assessing whether OSTP can be considered to have
“withheld” emails located in Holdren’s private email account,
we begin with an important—and as-yet untested—
assumption: that the email account, although a non-
governmental account, contains “agency records” within the
meaning of FOIA. 5 U.S.C. § 552(a)(4)(B). The district
court did not address whether Holdren’s private account
contains agency records. See 82 F.3d 228, 232 n.4 (D.D.C.
2015). The court instead assumed that Holdren possesses
agency records in his private account, but held that,
regardless, the agency is not withholding those records. In
 2
Kissinger, the Supreme Court likewise assumed that the
requested documents qualified as “agency records,” see 445
U.S. at 147, but concluded that the State Department had not
“withheld” those records.

Kissinger arose in a posture resembling this case in
another notable respect: there, as here, the (assumed) agency
records were being held by a current agency official. The
FOIA requests in Kissinger “were filed while Kissinger was
Secretary of State.” 445 U.S. at 142. Neither Kissinger nor
this case therefore involves records held by someone having
no present affiliation with the agency at the time of the FOIA
request (which, according to Kissinger, is generally the
relevant time for assessing whether an agency “withholds”
records, see id. at 155 n.9). And the Kissinger Court treated
the Secretary as holding the requested records at the time of
the FOIA requests even though, by then, he had donated the
documents to the Library of Congress. Because Secretary
Kissinger continued to “retain[] unrestricted access to the
collection,” id. at 141, the Court considered him (along with
the “Library of Congress as his donee”) to be “holding the
documents.” Id. at 155.

Both here and in Kissinger, then, at the time of the FOIA
requests, a current agency official held (assumed) agency
records in a location outside the agency’s ordinary domain.
The question we confront is, in those circumstances, when is
the agency itself appropriately considered to hold the records
for purposes of its disclosure obligations under FOIA?

One possible answer would be that, because an agency
acts only through individuals, an agency holds documents
whenever an official holds the documents. Kissinger,
however, forecloses that understanding. There, even though
the Court considered Secretary Kissinger to be “holding the
 3
documents,” the Court held that the “State Department cannot
be said to have had possession or control of the documents at
the time the requests were received.” Id. The Court thus
drew a divide between an agency and its official, at least in
circumstances in which the agency—as opposed to its
official—lacks “possession or control” over requested
documents, a “prerequisite to FOIA disclosure duties.” Id. at
152.

But does Kissinger mean that, any time an agency official
possesses an agency record outside the agency’s physical (or,
in the case of email, virtual) domain, the agency itself lacks
the requisite possession or control to trigger FOIA disclosure
obligations? I do not think so. As a general matter, it seems
appropriate to start from a premise that an agency possesses
and controls its own records. That premise may yield if files
have been lost or deleted, or if they are held by a person
unaffiliated with the agency at the time of the request. But
when a current official holds agency records, we ordinarily
would expect the agency to control the documents for
purposes of responding to a FOIA request.

Consider, for instance, a circumstance in which an
official takes the sole available copy of an agency record
home one evening to review and inadvertently leaves it there
the next day. If a FOIA request were received while the
document happened to remain in the official’s residence, the
agency presumably could not simply bury its head in the sand
and disclaim any obligation to disclose the document on the
rationale that the official possesses it in a location beyond the
agency’s control. Rather, we assume the official would
voluntarily retrieve the document to facilitate its inclusion in
the agency’s FOIA disclosure.
 4
Kissinger differed from that sort of situation because,
there, 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.” Id. at 155 (emphasis
added). Secretary Kissinger had obtained an opinion from the
State Department’s Legal Adviser that the records in question
were his personal papers. He then removed the records from
his office and deeded them to the Library of Congress. In
addition, he later refused the Government Archivist’s request
for a return of the papers. See id. at 144, 155. Those facts,
the Court concluded, made “it apparent” that Secretary
Kissinger held the documents “under a claim of right”—i.e.,
an assertion of possession and control over the documents
inconsistent with the assumption of agency control. Id. at
155. “Under these circumstances,” the Court held, “the State
Department cannot be said to have had possession or control
of the documents.” Id.

The holding in Kissinger presumably would also apply in
a situation in which an official wrongfully removes
documents from an agency, stores them in his house, and
refuses to return them on the grounds that they are his
personal papers. See ante at 9. The agency might choose to
take disciplinary action against the official or pursue an
administrative remedy under the Federal Records Act, 44
U.S.C. § 2901, and Records Disposal Act, 44 U.S.C. § 3312.
But the agency’s failure to search those documents would not
constitute a “withholding” under FOIA, because the agency
could not be said to retain control over the documents while
the official holds them in his house under a claim of right.

In this case, there is no comparable indication (at least at
this stage) that Holdren holds any agency records in his
private email account under a claim of right. To be sure, he
retains possession over the contents of the account. But there
 5
is no indication he has asserted control over agency records in
the account in a manner inconsistent with agency control. As
far as we know, Holdren has not refused an agency request for
access to the account, transferred custody over records in the
account to a third party, or otherwise taken action affirming
that its contents belong solely to him in his personal capacity,
to the exclusion of agency control. It’s true that he forwarded
a number of messages from his private account to his
government account, in accordance with a previous agency
rule calling for employees to transfer any work-related
messages from private email accounts to official accounts.
(In fact, the agency produced over 110 pages of such records
from Holdren’s government account in response to the FOIA
request. See J.A. 112, 151-52.) But that action by Holdren
did not connote a claim of right over any undisclosed agency
records that may remain in his private account. As a result, I
see no basis for concluding that Holdren holds any agency
records in his private email account under a claim of right,
such that the agency would lack the requisite control over the
records for a withholding.

On remand, the agency is free to argue that the requested
documents are not “agency records” or that they fall within
certain exemptions. See ante at 9. But the agency should also
be free to present additional facts that would make it apparent
that Holdren is holding the emails in his private account under
a claim of right. I would conclude here only that a current
official’s mere possession of assumed agency records in a
(physical or virtual) location beyond the agency’s ordinary
domain, in and of itself, does not mean that the agency lacks
the control necessary for a withholding.