American Oversight v. U.S. General Services Administration ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN OVERSIGHT,
Plaintiff,
Civil Action No. 17-1267 (BAH)
v.
Chief Judge Beryl A. Howell
U.S. GENERAL SERVICES
ADMINISTRATION,
Defendant.
MEMORANDUM OPINION
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.
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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.
1
The complaint originally challenged GSA’s response to two additional FOIA requests submitted by the
plaintiff, but the parties have resolved any dispute regarding those requests. See Third Joint Status Report ¶¶ 1–3,
ECF No. 10. In addition, after summary judgment briefing had commenced, GSA produced to the plaintiff an
unredacted copy of a Memorandum of Understanding provided by the PTT to GSA, thereby resolving that part of
the parties’ dispute. See Def.’s Reply Supp. Def.’s Mot. & Opp’n Pl.’s Cross-Mot (“Def.’s Opp’n”) at 8, ECF No.
24.
2
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
2
GSA searched only for the full names of these PTT members, without including any name variation, Lewis
Decl. ¶ 10, but the plaintiff raises no issue with the search terms, see Pl.’s Mem Supp. Pl.’s Cross-Mot & Opp’n
Def.’s Mot. (“Pl.’s Opp’n”), ECF No. 14-1; Pl.’s Reply Supp. Pl.’s Cross-Mot. (“Pl.’s Reply”), ECF No. 28.
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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.
3
Again, the plaintiff raises no issue about the modification of the nine agreed-upon search terms. See Pl.’s
Opp’n; Pl.’s Reply.
4
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 non-
federal 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
4
Any future Vaughn Index submitted by GSA in this case is required to provide more clarity on the extent
and precise page of any redacted material to explain fully and clearly any withholding.
5
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.
Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)) (alteration adopted); see also Students
Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (“[A]n agency is
entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each
document that falls within the class requested either has been produced or is wholly exempt from
the Act’s inspection requirements.’” (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)
(alteration adopted))). Indeed, the D.C. Circuit has observed that “the vast majority of FOIA
cases can be resolved on summary judgment.” Brayton v. Office of the U.S. Trade Rep., 641
F.3d 521, 527 (D.C. Cir. 2011).
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The FOIA was enacted “to promote the ‘broad disclosure of Government records’ by
generally requiring federal agencies to make their records available to the public on request.”
DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (quoting U.S. Dep’t of Justice v.
Julian, 486 U.S. 1, 8 (1988)). Reflecting the necessary balance between the public’s interest in
governmental transparency and “legitimate governmental and private interests that could be
harmed by release of certain types of information,” United Techs. Corp. v. U.S. Dep’t of
Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (quoting Critical Mass Energy Project v. Nuclear
Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc) (alterations omitted)), the
FOIA contains nine exemptions, set forth in 5 U.S.C. § 552(b), which “are explicitly made
exclusive and must be narrowly construed,” Milner v. U.S. Dep’t of Navy, 562 U.S. 562, 565
(2011) (internal quotation marks and citations omitted); see also Murphy v. Exec. Office for U.S.
Attys., 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S.
Dep’t of Justice (“CREW”), 746 F.3d 1082, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of
Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). “[T]hese limited exemptions do not
obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.”
Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).
The FOIA authorizes federal courts to “enjoin the agency from withholding agency
records and to order the production of any agency records improperly withheld from the
complainant.” 5 U.S.C. § 552(a)(4)(B). District courts must “determine de novo whether non-
disclosure was permissible.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777 F.3d
518, 522 (D.C. Cir. 2015). When the sufficiency of “the release of information under the FOIA”
is challenged, “‘the agency has the burden of showing that requested information comes within a
FOIA exemption.’” Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898,
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904 (D.C. Cir. 1999) (quoting Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d
16, 18 (D.C. Cir. 1999)); see also U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 171 (1993)
(noting that “[t]he Government bears the burden of establishing that the exemption applies”);
Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979) (finding that
the agency invoking an exemption bears the burden “to establish that the requested information
is exempt”); Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014). This
burden does not shift even when the requester files a cross-motion for summary judgment
because “the Government ‘ultimately [has] the onus of proving that the [documents] are exempt
from disclosure,’” while the “burden upon the requester is merely ‘to establish the absence of
material factual issues before a summary disposition of the case could permissibly occur.’” Pub.
Citizen Health Research Grp., 185 F.3d at 904–05 (quoting Nat’l Ass’n of Gov’t Emps. v.
Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)) (alterations in original).
An agency may carry its burden of showing an exemption was properly invoked by
submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld
documents, or both, to demonstrate that the government has analyzed carefully any material
withheld and provided sufficient information as to the applicability of an exemption to enable the
adversary system to operate. See Judicial Watch, Inc., 726 F.3d at 215 (“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.’” (quoting
Consumer Fed’n of Am., 455 F.3d at 287) (alteration adopted)); CREW, 746 F.3d at 1088 (noting
that an agency’s burden is sustained by submitting an affidavit that “describe[s] the justifications
for nondisclosure with reasonably specific detail, demonstrate[s] that the information withheld
8
logically falls within the claimed exemption, and [is] not controverted by either contrary
evidence in the record nor by evidence of agency bad faith” (quoting Larson v. U.S. Dep’t of
State, 565 F.3d 857, 862 (D.C. Cir. 2009))); Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176
(D.C. Cir. 1996) (instructing that an agency’s description “should reveal as much detail as
possible as to the nature of the document, without actually disclosing information that deserves
protection[,] . . . [which] serves the purpose of providing the requestor with a realistic
opportunity to challenge the agency’s decision.” (internal citation omitted)). While “an agency’s
task is not herculean” it must “‘describe the justifications for nondisclosure with reasonably
specific detail’ and ‘demonstrate that the information withheld logically falls within the claimed
exemption.’” Murphy, 789 F.3d at 209 (quoting Larson, 565 F.3d at 862). “Ultimately, an
agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or
‘plausible.’” Judicial Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013)
(quoting ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)); Larson, 565 F.3d at
862 (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)).
III. DISCUSSION
The plaintiff challenges three aspects of GSA’s response to the FOIA request at issue: (1)
the adequacy of GSA’s search, Pl.’s Opp’n at 6; Pl.’s Reply at 1–3, ECF No. 28; (2) GSA’s
failure to produce “attachments to emails exchanged between GSA and the” PTT, Pl.’s Reply at
3; Pl.’s Opp’n at 8–9; and (3) the sufficiency of GSA’s explanations for redactions under
Exemption 5 and Exemption 6, Pl.’s Opp’n at 17–29; Pl.’s Reply at 6–14. These issues are
addressed seriatim.
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A. GSA’S SEARCH WAS INADEQUATE
GSA conferred with the plaintiff and advised via email on July 26, 2017, that the agency
would search for “all records reflecting communications (including emails, telephone call logs,
calendar entries, meeting agendas, or any other records reflecting communications)” between
GSA and eight identified PTT members as well as for certain search terms. Def.’s Mot., Ex. D at
1, Email from GSA’s Duane Smith to AO’s Cerissa Cafasso (July 26, 2017). Contrary to GSA’s
assurance, however, the plaintiff contends that GSA failed to search “telephone call logs,
calendar entries, stand-alone electronic records (i.e., records that were created electronically but
never emailed), or paper records,” and further that “GSA has systems of records that potentially
contain responsive records, and yet the agency has entered no evidence that it searched those
systems or an adequate alternative.” Pl.’s Reply at 2. GSA does not dispute that no search was
conducted of call logs, meeting agendas, or paper records, but apparently contends that a search
for these forms of records “goes far beyond what is required by the FOIA,” Def.’s Opp’n at 3,
and that the search performed was “reasonably tailored” to the request “based on its knowledge
of its [own] practices,” id. at 4.
At the outset, GSA provides conflicting information regarding whether calendar entries
were searched. The agency affidavit states that, in searches of the type performed in this case,
“calendar logs” are searched. Lewis Decl. ¶ 11; see also Def.’s Mem. Supp. Def.’s Mot. (“Def.’s
Mem.”) at 5, ECF No. 12 at 7 (“When conducting a search for documents responsive to a FOIA
request, the OCIO searches each employee’s emails, calendar logs, and shared drive files for
responsive records.”). Nevertheless, while records of emailed calendar invitations were
produced, no actual calendar entries or logs were reflected in GSA’s production. Thus, based on
this record, the plaintiff raises the reasonable suspicion “that the agency almost certainly did not
actually search calendars.” Pl.’s Opp’n at 7. GSA has been silent in explaining the presence of
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calendar invitation emails in its production, without concomitant calendar entries or logs, despite
the agency’s promise to search for and produce responsive, non-exempt calendar logs. See
Def.’s Opp’n at 4. In light of the “well defined requests and positive indications of overlooked
materials,” Aguiar v. DEA, 865 F.3d 730, 739 (D.C. Cir. 2017) (quoting DiBacco v. U.S. Army,
795 F.3d 178, 188 (D.C. Cir. 2015) (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d
321, 326 (D.C. Cir. 1999))), the GSA’s silence about the lack of calendar logs fails to assure the
Court on summary judgment that the search was reasonable. GSA is directed either to search
calendar entries or, if such a search was already performed, to clarify the method and scope of
such a search, as well as any withholdings of calendar entries.
With respect to the other forms of records sought by the plaintiff, “[a]gencies have ‘a
duty to construe a FOIA request liberally.’” People for the Ethical Treatment of Animals v. Nat’l
Institutes of Health, Dep’t of Health & Human Servs. (“PETA”), 745 F.3d 535, 540 (D.C. Cir.
2014) (quoting Nation Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 890
(D.C. Cir. 1995)). At the same time, agencies “are not required to . . . perform searches which
are not compatible with their own document retrieval systems,” Assassination Archives &
Research Ctr., Inc. v. CIA, 720 F. Supp. 217, 219 (D.D.C. 1989), aff’d, No. 89-5414, 1990 U.S.
App. LEXIS 27799 (D.C. Cir. Aug. 13, 1990), and they “need not respond to overly broad and
unreasonably burdensome requests,” Judicial Watch, Inc. v. U.S. Dep’t of State, 681 F. App’x 2,
4 (D.C. Cir. 2017) (citing Am. Fed’n of Gov’t Emps. v. U.S. Dep’t of Commerce, 907 F.2d 203,
208–09 (D.C. Cir. 1990)); see also Anderson v. U.S. Dep’t of State, 661 F. Supp. 2d 6, 12 n.3
(D.D.C. 2009) (an agency does not have to “honor a FOIA request that requires it to conduct an
unduly burdensome search” (quoting Pub. Citizen, Inc. v. U.S. Dep’t of Ed., 292 F.Supp.2d 1, 6
(D.D.C. 2003))). When confronted with a challenge to the adequacy of a search, “an ‘agency
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must show that it made a good faith effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the information requested,’ which it can
do by submitting ‘[a] reasonably detailed affidavit, setting forth the search terms and the type of
search performed, and averring that all files likely to contain responsive materials (if such
records exist) were searched.’” Reporters Comm. for Freedom of Press v. FBI, 877 F.3d 399,
402 (D.C. Cir. 2017) (quoting Oglesby, 920 F.2d at 68) (alteration in original).
GSA’s description of the search performed falls short of meeting the applicable standard
for justifying the scope and method of the search. See id. GSA explains that, when processing a
FOIA “request which includes the word ‘communication(s)’ /or any derivative thereof,” the
GSA’s FOIA Office directs the OCIO to search for responsive records in “each employee’s
emails, calendar logs and shared drive files.” Lewis Decl. ¶ 11. GSA further explains that “[i]t
is GSA policy via its record retention policy that all agency employee communications and
documents are stored via email /or on the shared drive,” id., as a justification for limiting the
search conducted for records reflecting communications to those two locations (i.e., email and
shared drive). In other words, when a request seeks “communications,” the GSA reads no
further and searches “emails, calendar logs and shared drive files” as a default, Lewis Decl. ¶ 11,
irrespective of the specifics of a request. In this case, the plaintiff expressly sought “telephone
call logs,” Def.’s SMF ¶ 1, and “all records reflecting communications,” id., which includes
“stand-alone electronic records,” and “paper records,” Pl.’s Reply at 2, but GSA has not
explained whether or how such records were searched for the requested communications. The
agency affidavit notes as an afterthought that “our search for responsive records included
calendar dates and paper records as well,” Lewis Decl. ¶ 28, but is silent as to how that search
12
was conducted, and whether any responsive records were found, and GSA’s briefs do not even
mention that point.
In other words, GSA performed a search using its default methodology for requests
seeking “communications,” but fails to take account of the specific aspects of the plaintiff’s
request that may warrant a broader search. Consequently, the agency does not adequately
demonstrate “that all files likely to contain responsive materials (if such records exist) were
searched,” Reporters Comm. for Freedom of Press, 877 F.3d at 402 (quoting Oglesby, 920 F.2d
at 68), or that a search other than its default practice would be “unreasonably burdensome,”
Judicial Watch, Inc., 681 F. App’x at 4; see also, e.g., Leopold v. U.S. Dep’t of Justice, No. CV
16-1827, 2018 WL 1384124, at *7 (D.D.C. Mar. 19, 2018) (upholding the sufficiency of the
FBI’s search where the FBI explained the plaintiff’s “request for non-investigative records is so
broad and non-specific that it is beyond the FBI’s ‘technical capability’”), or “not compatible
with [its] document retrieval systems,” Assassination Archives & Research Ctr., 720 F. Supp. at
219.
Accordingly, the parties’ cross-motions for summary judgment as to the sufficiency of
GSA’s search are denied, and GSA is directed either to conduct a search for responsive records,
including telephone and calendar logs and paper records, consistent with the request, or explain
why the scope of the search performed by the agency was reasonably designed and “calculated to
uncover all relevant documents.” Aguiar v. DEA, 865 F.3d at 738 (quoting Morley v. CIA, 508
F.3d 1108, 1114 (D.C. Cir. 2007)).
B. GSA IMPROPERLY WITHHELD EMAIL ATTACHMENTS
GSA’s production of responsive emails “failed to include or claim any exemptions with
respect to multiple attachments to email communications identified as responsive” to the
plaintiff’s FOIA request that expressly demanded “[a]ll records reflecting communications
13
(including emails . . . or any other records reflecting communications).” Pl.’s Opp’n at 7–8.
GSA concedes that “attachments . . . to other responsive documents” were not produced and
justifies the withholding of these attachments due to the agency’s interpretation of the plaintiff’s
request as “not seek[ing] attachments.” Def.’s Opp’n at 5. GSA is just wrong.
While the FOIA request does not explicitly refer to attachments, the scope of the request
for “all records reflecting communications” plainly covered parts of email communications that
were in the form of an attachment. GSA’s blinkered literalism, distinguishing emails from email
attachments, is at odds with the agency’s “duty to construe a FOIA request liberally.” PETA,
745 F.3d at 540 (quoting Nation Magazine, 71 F.3d at 890).
Moreover, GSA’s precise reasoning for excluding email attachments from the scope of its
search and production, citing the lack of express request for email attachments, has been
expressly rejected by this Court. See, e.g., Coffey v. Bureau of Land Mgmt., 277 F. Supp. 3d 1,
7–9 (D.D.C. 2017) (holding that a request for “all emails” reasonably encompassed attachments
to responsive emails, particularly where the emails make specific reference to the attachments);
Bagwell v. U.S. Dep’t of Justice, No. 15-CV-0531, 2018 WL 1440177, at *1–2 (D.D.C. Mar. 22,
2018) (describing that agency’s search for “any and all [responsive] records” as naturally
encompassing both “emails (and attachments)”); Leopold v. Nat’l Sec. Agency, 196 F. Supp. 3d
67, 70, 76 (D.D.C. 2016) (requiring the Department of Justice’s Office of Legal Counsel to “to
search the email files of departed OLC attorneys, as well as any attachments to those emails” as
part of a search for “any and all [responsive] memoranda and legal opinions” (alteration
adopted)); accord Energy Future Coal. v. OMB, 200 F. Supp. 3d 154, 163 (D.D.C. 2016)
(approving production schedule in response to FOIA request that “exclude[d] attachments to
emails from the search for responsive documents, without prejudice to Plaintiffs’ right to receive
14
within 60 days the responsive attachments, subject to applicable FOIA exemptions”); cf. Gilman
v. U.S. Dep’t of Homeland Security, 32 F. Supp. 3d 1, 21–24 (D.D.C. 2017) (holding that
production of email attachments in response to FOIA request was not required where parties had
agreed to limit production of emails to the same production the agency had made in previous
litigation, which production had not included email attachments).
Indeed, as in Coffey, emails produced to the plaintiff refer to attachments. See Pl.’s
Reply at 5 (listing seven emails that described or referred to attachments). Thus, even without “a
per se rule that an email and its attachment must be treated as a single record,” Coffey, 277 F.
Supp. 3d at 8, the attachments to already-produced emails appear manifestly part of the
“communications” between GSA and the PTT and, absent any agency explanation why not,
“belong together,” Parker v. U.S. Dep’t of Justice, Office of Prof’l Responsibility, 278 F. Supp.
3d 446, 452 (D.D.C. 2017).5 Even if the emails did not refer to attachments, however, the
plaintiff is correct that the “attachments themselves are independently responsive to [AO’s]
request because they were communicated between GSA and” the PTT. Pl.’s Opp’n at 9 n.1.
Accordingly, the plaintiff is entitled to summary judgment regarding GSA’s failure to
produce attachments to responsive emails. GSA is directed to produce promptly to the plaintiff
any attachments to the already-produced emails, unless the agency provides a detailed
justification explaining why the attachment, in full or part, is exempt.
C. GSA’S WITHHOLDINGS ARE NOT ADEQUATELY SUPPORTED
GSA withheld information under FOIA Exemptions 5 and 6, but for the reasons set out
below, fails to provide adequate support for these withholdings.
5
GSA relies on a single case, Am. Chemistry Council, Inc. v. U.S. Dep’t of Health & Human Servs., 922 F.
Supp. 2d 56, 62 (D.D.C. 2013), to justify withholding of email attachments, Def.’s Opp’n at 5, but this reliance is
wholly misplaced since the issue of whether email attachments should be included within the scope of a FOIA
request seeking “all records reflecting communications” is simply not addressed in this case.
15
1. GSA’s Explanation For Invocation of Exemption 5 Is Insufficient
GSA indicates that nearly 2,000 pages contain redactions under Exemption 5 as protected
by attorney-client privilege. Revised Vaughn Index at 1, 4–6. The plaintiff argues that GSA has
provided insufficient, and in some cases no, justification for these Exemption 5 redactions. Pl.’s
Reply at 10–11.6 As support, the plaintiff points to “a review of the newly produced records
which GSA had previously withheld under Exemption 5” as “creating serious doubts about
whether GSA has been applying the appropriate standard for its Exemption 5 assertions more
generally.” Id. at 14. GSA counters Exemption 5 has been properly invoked “based on the
attorney-client privilege” to withhold “internal GSA communications exchanged between GSA
staff and GSA attorneys.” Def.’s Opp’n at 9.
FOIA’s Exemption 5 applies to “inter-agency or intra-agency memorandums or letters
that would not be available by law to a party other than an agency in litigation with the agency.”
5 U.S.C. § 552(b)(5). Two conditions must be met for a record to qualify for withholding under
this exemption: “[1] its source must be a Government agency, and [2] it must fall within the
ambit of a privilege against discovery under judicial standards that would govern litigation
against the agency that holds it.” U.S. Dep’t of Interior v. Klamath Water Users Protective
Ass’n, 532 U.S. 1, 8 (2001); see also Nat’l Inst. of Military Justice v. U.S. Dep’t of Def., 512 F.3d
677, 680 & n.4 (D.C. Cir. 2008). The attorney-client privilege is a proper basis for an agency to
invoke Exemption 5. Nat’l Ass’n of Criminal Def. Lawyers v. U.S. Dep’t of Justice Exec. Office
6
The plaintiff’s suggested remedy of in camera review of the documents at issue, Pl.’s Reply at 14, is
rejected at this juncture. The D.C. Circuit has explained that “in camera review is generally disfavored. It is ‘not a
substitute for the government’s obligation to justify its withholding in publicly available and debatable documents.’”
PHE, Inc. v. U.S. Dep’t of Justice, 983 F.2d 248, 253 (D.C. Cir. 1993) (quoting Schiller v. NLRB, 964 F.2d 1205,
1209 (D.C. Cir. 1992)).
16
for U.S. Attys. & U.S. Dep’t of Justice, 844 F.3d 246, 249 (D.C. Cir. 2016) (citing Coastal States
Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980)).
The attorney-client privilege applies to a “confidential communication between attorney
and client if that communication was made for the purpose of obtaining or providing legal advice
to the client.” In re Kellogg Brown & Root, Inc., 756 F.3d 754, 757 (D.C. Cir. 2014); see also In
re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998). For the attorney-client privilege to apply, the
communications must have occurred “for the purpose of securing primarily either (i) an opinion
on law or (ii) legal services or (iii) assistance in some legal proceeding.” In re Grand Jury, 475
F.3d 1299, 1304 (D.C. Cir. 2007) (emphasis added) (internal quotation marks omitted). Thus, in
the FOIA context, information withheld by the agency based on attorney-client privilege must be
“information . . . [that] was communicated to or by an attorney as part of a professional
relationship” where the agency can “demonstrate[] that the information is confidential. If the
information has been or is later shared with third parties, the privilege does not apply.” Mead
Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 253 (D.C. Cir. 1977) (footnote
omitted); see also Coastal States, 617 F.2d at 863 (stating that an agency must “demonstrate a
fundamental prerequisite to assertion of the privilege: confidentiality both at the time of the
communication and maintained since”).
At the outset, GSA concedes that, based on Justice Department guidance, “transition
teams are considered nonagencies for purposes of the FOIA,” Second Lewis Decl. ¶ 4, meaning
that Exemption 5 cannot apply to any communications between GSA and the PTT, see Klamath,
532 U.S. at 9, 12 (“[T]he first condition of Exemption 5 is no less important than the second; the
communication must be ‘inter-agency or intra-agency’ . . . [and] [t]here is . . . no textual
justification for draining the first condition of independent vitality” (quoting 5 U.S.C. §
17552(b)(5))). Thus, to the extent that GSA relied on under Exemption 5 to withhold any
communications between GSA and the PTT—and the plaintiff notes at least three examples,
Pl.’s Cross-Mot, Attach. 3, Decl. of Cerissa Cafasso, Attorney, AO (Dec. 22, 2017) (“Cafasso
Decl.”) ¶ 15, ECF No. 14-3, though those three pages have since been produced without
Exemption 5 redactions, Second Cafasso Decl. ¶¶ 6–8—it must produce the withheld material to
the plaintiff.
In its Revised Vaughn Index, GSA clarified that “[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,” were withheld. Revised Vaughn at 1,
4–6. Plainly, as the plaintiff correctly observes, the attorney-client privilege “does not protect a
communication simply because an attorney was involved.” Pl.’s Opp’n at 27. More is necessary
for this privilege to attach, including that the communication was and remains confidential, see
Coastal States, 617 F.2d at 863, and that the communication had a primary purpose of obtaining
or providing legal advice, see In re Kellogg Brown & Root, Inc., 756 F.3d at 757. GSA fails
adequately to show these prerequisites for the attorney-client privilege.
GSA does not assert or “demonstrate” that the communications were, and remain,
confidential. See Coastal States, 617 F.2d at 863. While GSA’s description of the withheld
material as “internal communications” suggests confidentiality, GSA has not met its burden of
“demonstrat[ing] . . . confidentiality both at the time of the communication and maintained
since.” Id. Moreover, GSA has also failed to establish that the “advice given [was]
predominantly legal . . . in nature.” Boca Investerings P’ship v. United States, 31 F. Supp. 2d 9,
11–12 (D.D.C. 1998) (quoting North Am. Mortgage Investors v. First Wisconsin Nat’l Bank, 69
F.R.D. 9, 11 (E.D. Wis. 1975)).
18
The plaintiff provides two compelling examples raising significant questions about
GSA’s reliance on the attorney-client privilege for withholdings. In the first example, an
employee of the World War I Centennial Commission, named “Chris,” asked Tom Hodnett, a
GSA employee, via email, for “help get[ting] in direct contact with the GSA Transition Team,”
since other efforts to contact PTT had been unsuccessful, including an effort by GSA’s Neil
Skidmore to “pass [the Commission’s] request to whoever it is with whom he is talking on the
transition team . . . .” Cafasso Decl., Ex. 2, Email to GSA’s Tom Hodnett (Jan. 4, 2017), ECF
No. 14-3 at 49. Hodnett forwarded that request to Seth Greenfeld, a GSA Senior Assistant
General Counsel, whose response was then forwarded to Neil Skidmore, with the explicit
statement that “[Greenfeld] gave me some information that I passed along to Chris.” Id. at 48,
Email from GSA’s Tom Hodnett to GSA’s Neil Skidmore (Jan. 4, 2017). GSA has withheld the
GSA attorney’s response as privileged, despite the fact that this email chain indicates that the
attorney’s “information” was relayed to a third party. In this context, the plaintiff rightly asks:
“How was Mr. Hodnett’s first inquiry considered a solicitation of legal advice? What is
confidential about a GSA employee relaying an inquiry from the PTT? If Mr. Hodnett passed on
to a third party the information Mr. Greenfeld gave him, how is it still protected by privilege?”
Pl.’s Reply at 13. GSA provides no answers to these obvious questions about whether the
attorney-client privilege was properly invoked by GSA.
In a second example, Neil Skidmore, a non-lawyer GSA employee, forwarded to two
GSA attorneys an email from a PTT member asking whether GSA had a centralized list of all
Executive Orders directed to GSA, and Greenfeld’s response to the forwarded email is redacted
under Exemption 5. Cafasso Decl., Ex. 2 at 18, Email from GSA’s Seth Greenfeld to GSA’s
Neil Skidmore and GSA’s Lennard Loewentritt (Jan. 5, 2017). Skidmore’s email asking for a
19
list of Executive Orders does not appear aimed at “securing primarily either (i) an opinion on law
or (ii) legal services or (iii) assistance in some legal proceeding.” In re Grand Jury, 475 F.3d at
1304 (internal quotation marks omitted). While the PTT request simply inquires about the
availability of a convenient resource in the form of a list of relevant Executive Orders, according
to GSA’s Revised Vaughn Index, Greenfeld’s response email “provid[ed] legal opinions and
guidance” and contained “legal guidance.” Revised Vaughn at 1. Information about the
availability of a resource list, even if provided by an attorney, falls far afield of the provision of
legal advice necessary for the attorney-client privilege to attach. Boca Investerings, 31 F. Supp.
2d at 11 (noting that an attorney “must not only be functioning as an advisor, but the advice
given must be predominately legal” for the attorney-client privilege to apply (quoting North Am.
Mortgage Investors, 69 F.R.D. at 11)). Moreover, given the context, to the extent that the GSA
attorney’s response regarding the availability of any list of pertinent Executive Orders was then
shared with the requesting PTT member, no privilege would apply.
These examples undermine confidence that GSA has properly invoked the attorney-client
privilege to withhold material under Exemption 5. Indeed, more broadly, GSA has not
“describe[d] with sufficient particularity the nature of the legal issue or issues for which advice
was sought.” Ctr. for Biological Diversity v. U.S. Envtl. Prot. Agency, 279 F. Supp. 3d 121, 152
(D.D.C. 2017) (citing Coastal States, 617 F.2d at 862–63). Thus, its “brief justifications fail[] to
provide the Court with much of the information required to substantiate an attorney-client
privilege claim.” Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice,
955 F.Supp.2d 4, 21 (D.D.C. 2013).
Accordingly, the parties’ cross-motions for summary judgment with respect to the GSA’s
withholdings under Exemption 5 are denied. GSA may either produce the material withheld
20
under Exemption 5 or submit a fulsome explanation with sufficient information to assess
whether each redaction under Exemption 5 is properly withheld under the attorney-client
privilege.7
2. GSA Improperly Withheld Publicly Available Transition Team Members’
Names Under Exemption 6
The plaintiff contends that the GSA improperly redacted the names of known PTT
members from the production because, in weighing those members’ privacy interest against “the
public’s interest in understanding the relationship between the PTT and the agency responsible
for both coordinating the transition and overseeing the Trump Organization’s leas[e] of the Old
Post Office building, the balance clearly favors disclosure.” Pl.’s Reply at 6.8 GSA insists that
its redactions under Exemption 6 are proper because the PTT members are not federal
employees, and that “the mere identity of these private individuals will not show what the
government is up to.” Def.’s Opp’n at 13. For the reasons explained below, GSA is, again,
wrong.
At the outset, GSA misapprehends the standard for Exemption 6. In GSA’s view, even
though the names of the PTT members were made public—and, in fact, easily accessible on a
website—the members’ status as non-federal employees, standing alone, is sufficient to withhold
their names under Exemption 6. Second Lewis Decl. ¶ 4 (citing U.S. Dep’t of Justice, IX FOIA
Update, no. 4 (1988), for the proposition that PTT members are not federal employees for FOIA
purposes); see also Lewis Decl. ¶ 26 (stating that GSA used Exemption 6 because the PTT
7
As noted above, at least twenty-nine redactions under Exemption 5 do not correspond to any entries on the
Revised Vaughn Index, see Second Cafasso Decl. ¶¶ 16–17, a deficiency GSA must correct if the material continues
to be withheld.
8
The plaintiff does not dispute certain Exemption 6 redactions, namely: (1) “the redaction of the signatures
of Trump PTT members so long as the identity of the individual is otherwise clear from the face of the document or
is specifically disclosed in an accompanying Vaughn index”; (2) “individual, non-government email addresses”
where “the names of the individuals were either still identifiable on the face of the email or provided separately in an
accompanying Vaughn index”; or (3) “personal phone numbers.” Pl.’s Opp’n at 17 n.6.
21
members “are not federal government employees”).9 Contrary to GSA’s construction of FOIA’s
Exemption 6, neither the text nor relevant case law, permits, let alone requires, the automatic
withholding of non-federal employees’ names.10
FOIA’s Exemption 6 exempts from disclosure “personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6). “‘Similar files’ include ‘detailed Government records on an
individual which can be identified as applying to that individual,’” Prison Legal News v.
Samuels, 787 F.3d 1142, 1146–47 (DC Cir. 2015) (quoting Judicial Watch, Inc. v. U.S. Dep’t of
Justice, 365 F.3d 1108, 1124 (D.C. Cir. 2004) (quoting U.S. Dep’t of State v. Wash. Post Co.,
456 U.S. 595, 602 (1982))), and encompass “not just files, but also bits of personal information,
such as names and addresses, the release of which would ‘create[] a palpable threat to privacy,’”
id. at 1147 (quoting Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 152 (D.C. Cir.
2006) (alteration in original) (quoting Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 391
(D.C. Cir. 1987))).
The D.C. Circuit has explained that courts “follow a two-step process when considering
withholdings or redactions under Exemption 6.” Am. Immigration Lawyers Ass’n v. Exec. Office
for Immigration Review, 830 F.3d 667, 673 (D.C. Cir. 2016). Once the records at issue are
determined to be “similar files,” 5 U.S.C. § 552(b)(6), courts must take a second step “by
9
The Revised Vaughn Index indicates that “GSA performed a balancing test and determined 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, but this reasoning is absent from the agency affidavit, which, as indicated in
the text, states only that Exemption 6 was invoked because the PTT members “are not federal government
employees,” Lewis Decl. ¶ 26.
10
The GSA does not even apply its incorrect interpretation of Exemption 6 with any consistency, despite its
affiant’s claim that his office follows that “practice for all other publicly known members of the public that are not
federal employees.” Second Lewis Decl. ¶ 4. The plaintiff notes that one email contains a list of PTT members “at
a number of agencies . . . but GSA has only redacted the names of those Trump PTT members at GSA.” Cafasso
Decl. ¶ 19; see also id. ¶ 20 (“The Communications Production contains emails where, in the span of a single email,
GSA has disclosed the names of some Trump PTT members and withheld others.”).
22
considering the significance of the privacy interest at stake,” U.S. Dep’t of State v. Ray, 502 U.S.
164, 175 (1991). This, in turn, requires “another two-step process” to determine first whether
“‘disclosure would compromise a substantial, as opposed to a de minimis, privacy interest,’” Am.
Immigration Lawyers Ass’n, 830 F.3d at 673–74 (D.C. Cir. 2016) (quoting Nat’l Ass’n of Home
Builders v. Norton, 309 F.3d 26, 33 (D.C. Cir. 2002)). “If no significant privacy interest is
implicated . . . FOIA demands disclosure.” Nat’l Ass’n of Retired Fed. Employees v. Horner,
879 F.2d 873, 874 (D.C. Cir. 1989). If a substantial privacy interest does exist, such finding
“does not conclude the inquiry; it only moves it along to the point where we can ‘address the
question whether the public interest in disclosure outweighs the individual privacy concerns.’”
Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1230 (D.C. Cir. 2008) (quoting Norton,
309 F.3d at 35); Am. Immigration Lawyers Ass’n, 830 F.3d at 674 (explaining that the second
step is to “weigh the privacy interest at stake ‘against the public interest in the release of the
records’” (quoting Norton, 309 F.3d at 33)).
The “‘basic purpose of [FOIA] . . . focuses on the citizens’ right to be informed about
what their government is up to,’” and so “information that ‘sheds light on an agency’s
performance of its statutory duties’ is in the public interest.” Multi Ag Media, 515 F.3d at 1231(quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773
(1989)) (alterations in original). Indeed, “FOIA’s strong presumption in favor of disclosure is at
its zenith in this Exemption 6 analysis.” Jurewicz v. U.S. Dep’t of Agric., 741 F.3d 1326, 1332
(D.C. Cir. 2014) (internal citations and quotation marks omitted); see also Nat’l Archives and
Records Admin. v. Favish, 541 U.S. 157, 165–66 (2004) (noting the phrase “clearly
unwarranted” in Exemption 6 creates a higher bar for withholding responsive material than
Exemption 7(C)). Thus, the Exemption 6 analysis ultimately requires balancing the public and
23
privacy interests, and “unless the invasion of privacy is ‘clearly unwarranted,’ the public interest
in disclosure must prevail.” Ray, 502 U.S. at 177 (quoting 5 U.S.C. § 552(b)(6)); see also
Morley, 508 F.3d at 1127 (“Exemption 6’s requirement that disclosure be ‘clearly unwarranted’
instructs us to ‘tilt the balance (of disclosure interests against privacy interest) in favor of
disclosure.’” (quoting Wash. Post Co. v. U.S. Dep’t of Health and Human Servs., 690 F.2d 252,
261 (D.C. Cir. 1982))).
Set against this binding guidance on the proper application of FOIA’s Exemption 6, GSA
stumbled in its application of Exemption 6 by automatically redacting the already-public names
of PTT members when the law requires far more to warrant withholding. Certainly, an
individual’s name constitutes “information that applies to a particular individual,” Lepelletier v.
FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999), and therefore may be subject to protection under
Exemption 6, see Judicial Watch, Inc., 449 F.3d at 152 (“We have also read the [FOIA] statute to
exempt not just files, but also bits of personal information, such as names.”). The D.C. Circuit
has made clear, however, that Exemption 6 “does not categorically exempt individuals’ identities
because the privacy interest at stake may vary depending on the context in which it is asserted.”
Am. Immigration Lawyers Ass’n, 830 F.3d at 675 (quoting Judicial Watch, Inc., 449 F.3d at 153)
(internal quotation marks omitted) (alteration adopted); see also id. at 676 (“Because [the
agency] here sought to justify its withholding of . . . names in purely categorical, across-the-
board terms, it has not carried its burden to justify the Exemption 6 redactions.”). Whether
disclosure of an individual’s name “is a significant or a de minimis threat [to privacy] depends
upon the characteristic(s) revealed by virtue of being on the particular list, and the consequences
likely to ensue.” Horner, 879 F.2d at 877.
24
GSA argues that PTT members “remain private citizens with no guarantee of
Government employment and, thus, enjoy some privacy interests in their identities,” Def.’s
Opp’n at 11, with “more than just a de minimis privacy interest in protecting their names from
disclosure,” Def.’s Mem. at 13. To bolster this argument, GSA offers only the speculation that
“[s]hould these individuals’ names be disclosed, they would be subject to unwarranted contacts
and solicitations about their knowledge about the documents or their participation in the FOIA
transactions.” Id.11 This concern about “unwarranted contacts” appears overblown, given the
public disclosure already made by PTT, which posted online the PTT members’ names, with
their associated employers and liaison role at PTT with GSA. See Cafasso Decl., Ex. 4
(providing list from the Trump PTT website, greatagain.gov, that names the PTT eight members
dedicated to GSA, accompanied by identification of their employers and status as volunteers or
compensated PTT employees), ECF No. 14-3 at 163–65. This publicly available information
could already facilitate the “unwarranted contacts” cited by the GSA, significantly undercutting
the significance of any privacy interest associated with release of the same PTT members’ names
in GSA-produced records. Moreover, further undermining GSA’s claim that these PTT
members’ names should be redacted, GSA attaches to its own summary judgment motion a GSA
email to the plaintiff stating that “the individuals listed on the greatagain.gov [s]ite are those who
were the members of the Agency Transition team in its entirety,” and then listing the eight
names, Def.’s Mot., Ex. D at 1, Email from GSA’s Duane Smith to AO’s Cerissa Cafasso (July
26, 2017), which names GSA acknowledges were publicly available, see Second Lewis Decl. ¶
11
This speculative nature of this assertion is further demonstrated by the alteration of “would” to “could” in
GSA’s moving brief and subsequent opposition brief. Def.’s Opp’n at 12.
25
3.12 Notably, GSA’s argument is not supported in the agency affidavit, which merely notes that
“transition team members . . . are not federal government employees.” Lewis Decl. ¶ 26.
GSA presses its position that the PTT members have a privacy interest in non-disclosure
of their names, citing the fact that courts have “protect[ed] from disclosure names that [an]
Administration considered, but did not appoint, to [a] commission,” Def.’s Opp’n at 12 (citing
Judicial Watch, Inc. v. Comm’n on U.S.-Pac. Trade & Inv. Policy, No. 97-0099, 1999 WL
33944413, at *11 (D.D.C. Sept. 30, 1999)), as well as the “identities of possible candidates for
Supreme Court vacancies,” id. (citing Voinche v. FBI, 940 F. Supp. 323, 330 (D.D.C. 1996)).
Those cases are inapposite, however, both because, as already noted, the PTT members’ names,
plus other identifying information, were made public by the Trump transition team on a publicly
accessible website, and because GSA fails to support the premise that service on a presidential
transition team is necessarily tantamount to applying for a federal job. Thus, any analogy of
transition team members to “unsuccessful [job] applicants,” Def.’s Opp’n at 12, is a stretch too
far.
In short, GSA’s Exemption 6 redactions obscure which of the publicly-named PTT
members were referenced in, or included on, certain emails, even though those names are already
“out of the bag” and are no longer subject to a significant, protectable privacy interest. See Ray,
502 U.S. at 175; see also Lardner v. U.S. Dep’t of Justice, No. 03-180, 2005 U.S. Dist. LEXIS
5465, at *60 (D.D.C. Mar. 31, 2005) (finding Exemption 6 did not bar disclosure of names of
unsuccessful clemency applicants, given that the conviction itself was public, “it cannot be
12
GSA’s affiant acknowledged that the PTT members’ names were public, Second Lewis Decl. ¶ 3, but
nonetheless GSA responded to the plaintiff’s Statement of Material Facts Not In Genuine Dispute, stating that the
agency lacks “sufficient knowledge to admit or deny” whether these PTT members’ names were publicly available
and “[t]o the extent a response is required, Defendant denies the allegation[],” Def.’s Response to Pl.’s SMF ¶ 7,
ECF No. 24-1. GSA is directed to provide the Court with a full explanation of this apparent discrepancy in its
submissions regarding whether PTT members’ names were publicly available.
26
thought that the information that the individual later was denied a pardon application adds much
additional embarrassment beyond the original conviction”). In other words, production of
unredacted emails reflecting PTT members’ names would not “constitute a clearly unwarranted
invasion of personal privacy,” 5 U.S.C. § 552(b)(6), and, consequently, these withholdings are
contrary to the permissible scope of Exemption 6.
This analysis could stop here, but even crediting that PTT members retained some
measurable privacy interest in non-disclosure of their names in response to the plaintiff’s FOIA
request, the applicable legal standard requires an additional showing that GSA cannot meet.
More precisely, the public interest in disclosure militates strongly in favor of disclosure.
Contrary to GSA’s argument that disclosing PTT members’ names “will not show what the
government is up to, and thus are properly withheld under Exemption 6,” Def.’s Opp’n at 13,
presidential transitions are carried out pursuant to the Presidential Transitions Act of 1963, Pub.
L. No. 88-277 (codified as amended at 3 U.S.C. § 102 Note (2018)), and the operation of this
statute is clearly an appropriate focus of public interest and scrutiny. Indeed, GSA’s own
website states:
The transfer of power from one administration to the next marks a significant moment in
U.S. history. The Presidential Transition Acts of 1963 and 2015 give the General
Services Administration (GSA) a prominent role in this process. They authorize the
Administrator of GSA to provide the President-elect and the Vice-President-elect the
services and facilities needed to assume their official duties.
GSA, PRESIDENTIAL TRANSITION (2017), https://www.gsa.gov/governmentwide-initiatives/
presidential-transition. Plainly, “information that ‘sheds light on an agency’s performance of its
statutory duties’ is in the public interest.” Multi Ag Media, 515 F.3d at 1231 (quoting Reporters
Comm. for Freedom of Press, 489 U.S. at 773).
27
The plaintiff highlights the significant public interest in multiple facets of “know[ing]
who participated in transition efforts but also . . . to what extent each Trump PTT member
participated in the transition,” Pl.’s Opp’n at 22 (emphasis in original), including how this
information reveals (1) the manner in which “official representatives of President-Elect Trump
executed ‘the orderly transfer of the executive power’ in light of the ‘national interest’ that such
transitions ‘be accomplished so as to ensure continuity in the faithful execution of the laws and
in the conduct of the affairs of the Federal Government,’” Pl.’s Opp’n at 18–19 (quoting
Presidential Transition Act of 1963, Pub. L. No. 88-277, § 2, 78 Stat. 153, 153 (1964)); (2) “how
the transfer of power to the Trump Administration was undertaken” by GSA, Pl.’s Opp’n at 21;
and (3) “who is shaping federal decisions and policy,” Pl.’s Reply at 10. Additionally, the
plaintiff asserts “a public interest in shedding light on and weighing [President Trump’s]
conflicts of interest” given that his “financial interest in a government-owned property was the
source of significant ethical concern during the transition.” Pl.’s Opp’n at 21–22; see Cafasso
Decl., Exs. 6–11 (collecting news articles discussing ethics concerns raised by the Trump Hotel
lease), ECF No. 14-3 at 190–226.
The Court agrees that “shed[ding] light on,” Multi Ag Media, 515 F.3d at 1231 (quoting
Reporters Comm. for Freedom of Press, 489 U.S. at 773), the actions of GSA and PTT members
working with GSA in carrying out the agency’s statutory duty during the presidential transition is
in the public interest, and that any privacy interest of PTT members in non-disclosure of their
names on communications with GSA is outweighed by that public interest in disclosure, see id.at 1230–33; see also Ray, 502 U.S. at 177 (“[U]nless the invasion of privacy is ‘clearly
unwarranted,’ the public interest in disclosure must prevail.” (quoting 5 U.S.C. § 552(b)(6)));
Am. Immigration Lawyers Ass’n, 830 F.3d at 674 (rejecting an agency’s “across-the-board
28
redaction of all [] names from all responsive documents” even where, “given the information
already disclosed,” there was only “‘incremental value’ served by disclosing” names (quoting
Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003))); Tokar v. U.S. Dep’t of
Justice, Civ. No. 16-2410, 2018 U.S. Dist. LEXIS 52947, at *32–33 (D.D.C. March 29, 2018)
(finding Exemption 6 did not protect from disclosure names of nominees not selected to be
corporate monitors and the names of Department of Justice (“DOJ”) employees or private
attorneys making submissions to DOJ since “the release of even this small amount of
information will serve the public interest, to an extent that outweighs the candidates for these
lucrative positions’ interest in keeping their identities secret”); Gilman, 32 F. Supp. 3d at 18
(concluding Exemption 6 did not authorize withholding of names and addresses of private citizen
landowners in email communications with U.S Customs and Border Protection (“CBP”) about
construction of wall along the U.S.-Mexico border since public interest in “how CBP negotiated
with private citizens regarding the planning and construction of the border wall . . . outweighs
the implicated privacy interest”).
Accordingly, the plaintiff is entitled to summary judgment as to the redactions, under
Exemption 6, of PTT members’ names, and GSA is directed to produce unredacted copies of the
pages at issue.
IV. CONCLUSION
For the foregoing reasons, GSA’s motion for summary judgment is denied and the
plaintiff’s cross-motion for summary judgment is granted in part and denied in part.
Specifically, the plaintiff is granted summary judgment with respect to GSA’s failure to produce
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 of the PTT members’
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names under Exemption 6. The plaintiff’s cross-motion for summary judgment is denied,
without prejudice, with respect to the adequacy of GSA’s search, and to information withheld
under Exemption 5 and the attorney-client privilege.
GSA is directed to: (1) submit, within twenty days of the issuance of the Order
accompanying this Memorandum Opinion, an explanation of the apparent discrepancy between
GSA’s affiant’s acknowledgement that the PTT members’ names were public, Second Lewis
Decl. ¶ 3, and GSA’s response to the plaintiff’s Statement of Material Facts Not In Genuine
Dispute, which response stated that the agency lacks “sufficient knowledge to admit or deny”
whether PTT members’ names were public and “[t]o the extent a response is required, Defendant
denies the allegation[],” Def.’s Response to Pl.’s SMF ¶ 7, ECF No. 24-1; (2) either, as directed
supra in Part III.A, conduct, within thirty days of the issuance of the Order accompanying this
Memorandum Opinion, an appropriate search and produce responsive, non-exempt records on a
monthly rolling basis beginning no more than thirty days after completing its search, or properly
justify its search; and (3) produce to the plaintiff, within forty-five days of the issuance of the
Order accompanying this Memorandum Opinion: (a) non-exempt attachments to responsive
emails; (b) responsive records previously withheld under Exemption 5 that have been shared
with the PTT or other non-federal agency entities; (c) responsive records previously withheld
under Exemption 5 and the attorney-client privilege, or a supplemental Vaughn Index fully
justifying any such withholding; and (d) information previously withheld under Exemption 6
pertaining to PTT members’ names. Within forty-five days of issuance of the Order
accompanying this Memorandum Opinion, the parties shall submit a joint status report advising
the Court whether any disputes remain between the parties and, if so, a proposed schedule to
resolve any remaining issues in this case.
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An appropriate Order accompanies this Memorandum Opinion.
Date: May 3, 2018
__________________________
BERYL A. HOWELL
Chief Judge
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