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Case TitleDEMOCRATIC NATIONAL COMMITTEE v. UNITED STATES DEPARTMENT OF JUSTICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2007cv00712
Date Filed2007-04-19
Date Closed2008-03-28
JudgeJudge Ellen S. Huvelle
PlaintiffDEMOCRATIC NATIONAL COMMITTEE
Case DescriptionThe Democratic National Committee submitted a FOIA request to the Department of Justice for records concerning communications between the Attorney General and the Republican National Committee. After hearing nothing further from the agency, the Democratic National Committee filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantUNITED STATES DEPARTMENT OF JUSTICE
Documents
Docket
Complaint
Complaint attachment 1
Opinion/Order [16]
FOIA Project Annotation: As agencies create and retain more electronic records, issues unique to such records have begun to appear in litigation more frequently. Two recent cases from district court judges in Washington, D.C. illustrate some of the issues with which courts must now grapple when all or most of the records are either in electronic form or were created electronically. In one case, Judge Emmet Sullivan has ruled in favor of the Department of Agriculture on the matter of its search for appointment calendars kept on Microsoft Outlook even though the agency destroyed the calendar without regard to the fact that it was the subject of FOIA litigation. The other case involves the issue of whether email records created by White House staffers using Republican National Committee email accounts can be protected under Exemption 5 (deliberative process privilege). When Sullivan originally ruled in a case brought by the Consumer Federation of America for appointment calendars of several officials at the Food Safety and Inspection Service concerning meetings they held with industry officials while promulgating an interim rule regulating public exposure to Listeria, he found the records were personal and not subject to FOIA, a finding that was overturned by the D.C. Circuit. However, on remand it became apparent that the agency had destroyed the Outlook calendar entries. CFA argued that, although it requested the records in August 2004, the agency in December 2004 failed to identify or preserve the electronic records of departing FSIS Under Secretary Dr. Elsa Murano; failed to search electronic locations until November 2006 and to conduct a comprehensive search of electronic locations until March 2007; and made a conscious decision not to place a litigation hold on emergency email system backup tapes, allowing them to be overwritten, rather than waiting for a court decision. The agency responded that its physical and electronic searches, although on the late side, were thorough and adequate. Sullivan noted that "it is clear that defendant's initial searches were inadequate. Indeed, counsel for the defendant acknowledged during oral argument that the documents in this case were 'not handled in the way they should have been.' However, the affidavits submitted with defendant's motion for summary judgment regarding the agency's electronic searches in late 2006 and 2007 provide a fairly detailed description of the comprehensive array of electronic locations searched, who undertook the searches, the extent of those searches, and what documents were uncovered. In addition, plaintiff concedes that it is unlikely that further responsive documents will be found, and therefore plaintiff is not asking the Court to order a further search. The defendant has conducted " albeit belatedly " a 'search reasonably calculated to uncover all relevant documents,' and the Court will grant summary judgment to defendant." With very few remedies available in such a case, CFA asked Sullivan to refer the agency for sanctions to either the Agriculture Department's Inspector General or to the Office of Special Counsel. CFA argued that "sanctions are warranted, both to hold defendant accountable for its actions in this case and to deter future misconduct, particularly important, according to plaintiff, because the agency is a 'repeat player' where FOIA is concerned." Declining to go that far, Sullivan noted that "in view of the defendant's acknowledgment during oral argument that its search was not handled as well as it might have been, and in order to ensure that defendant carries out future FOIA searches responsibly from the outset, the Court directs defendant to file a supplemental declaration detailing: (1) the specific steps the agency will take when responding to a FOIA request, particularly one including electronic documents; and (2) the steps, if any, the agency has taken to correct the problems that led to the loss of responsive documents in this case." The other case was brought by the Democratic National Committee for emails concerning the firing of U.S. Attorneys. In March 2007, the DNC submitted a FOIA request to the Office of the Attorney General, Deputy Attorney General, and Associate Attorney General pertaining to the appointment, performance and dismissal of U.S. Attorneys. The Office of Information and Privacy identified 5,337 pages of emails and the dispute ultimately narrowed to 68 pages of emails. The remaining disputed emails were sent between officials at the White House and Justice and were sent to or from an email address with the domain name "GWB43.com." All the emails were withheld under Exemption 5. The DNC argued that Exemption 5 was inapplicable because all the emails were sent to or from an address owned by the Republican National Committee, not the government. The RNC emails were supposedly provided to White House officials for use in sending political communications so that they would not violate the Hatch Act, which limits the extent to which certain executive branch employees may conduct political activity at work. The DNC argued that, since the RNC email addresses were for political communications only, the court should assume that they were political in nature and not privileged because they did not relate to "official government matters." The DNC also argued that the emails were not privileged because the White House officials using RNC accounts "were not acting in a governmentally conferred capacity." Judge Ellen Segal Huvelle rejected the argument, noting that "plaintiff's argument, however, crumbles because it is based on a fallacious foundation." She pointed out that "while plaintiff is correct that RNC email accounts were originally 'supposed' to be used exclusively for political communications, it is clear from plaintiff's own exhibits that, in fact, this supposition did not become reality. A report prepared for the United States House of Representatives Committee on Oversight and Government Reform indicates that it was common for many of the 88 White House officials who received RNC e-mail accounts to use them for official government business. . .It is therefore clear that RNC e-mail accounts were used (rightly or wrongly) both for official and RNC business, and thus the nature of the server is not necessarily informative as to whether the document contained official or political communications." The DNC expressed the frustration of many critics of the use of the RNC email accounts when it argued that "it is 'manifestly inappropriate to extend the presidential communication privilege to political emails' under FOIA in view of the White House's failure to preserve these records as required by the Presidential Records Act." Huvelle explained that "given this apparently flagrant violation of the Presidential Records Act, plaintiff contends the Court should not treat the requested e-mails as official presidential communications to which the presidential communications privilege applies under FOIA." But she then added that "however, the administration's violation of the Presidential Records Act is, as plaintiff acknowledges, not before this Court, and it cannot serve as a basis for determining whether the government has properly invoked Exemption5. Moreover, plaintiff fails to point to any case law that would indicate that the server where an e-mail is housed is relevant to its treatment under FOIA. Rather, under D.C. Circuit precedent, it is the content, not the form, of the communication that determines whether it is properly exempt under Exemption 5. Therefore, because the form of the document does not factor into the analysis under FOIA, the Court cannot adopt a per se rule that any-e-mails sent on the RNC servers are not covered by FOIA." In a footnote, she observed that "to adopt plaintiff's approach would presumably mean that any e-mail sent or received from a personal account would no longer be 'official' or 'inter-agency' and therefore would not be covered by FOIA." Huvelle pointed out that "in the absence of such a per se rule, the remainder of plaintiff's argument collapses. Plaintiff appears to accept the government's declaration that the e-mails were exchanged between officials in the White House and DOJ. Moreover, plaintiff does not contest [the agency's] characterization of the content of the e-mails, nor does it argue that these documents could not properly be withheld had they been sent through official government e-mail accounts. The government has therefore demonstrated the requirements of Exemption 5 have been met and its motion for summary judgment must be granted."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Waiver of privilege
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2007-04-191COMPLAINT against UNITED STATES DEPARTMENT OF JUSTICE ( Filing fee $ 350, receipt number 4616003719) filed by DEMOCRATIC NATIONAL COMMITTEE. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 04/23/2007)
2007-04-19SUMMONS (3) Issued as to UNITED STATES DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 04/23/2007)
2007-04-192LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by DEMOCRATIC NATIONAL COMMITTEE (jf, ). (Entered: 04/23/2007)
2007-05-303ANSWER to Complaint by UNITED STATES DEPARTMENT OF JUSTICE. Related document: 1 Complaint filed by DEMOCRATIC NATIONAL COMMITTEE. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Oldham, Nicholas) (Entered: 05/30/2007)
2007-06-274MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order)(Oldham, Nicholas) (Entered: 06/27/2007)
2007-06-27MINUTE ORDER: The defendant shall complete its initial processing of plaintiff's FOIA request on or before July 31, 2007, and shall provide plaintiff with interim responses on or before July 31, 2007, and on or before August 31, 2007. The parties shall submit a proposed schedule for the briefing of dispositive motions on or before August 31, 2007. Signed by Judge Ellen S. Huvelle on 6/27/2007. (KF) (Entered: 06/27/2007)
2007-07-23Set/Reset Deadlines: Briefing of Dispositive motion due by 8/31/2007. Plaintiff's FOIA request 7/31/200. Interim responses on for before 7/31/2007 and on or before 8/31/07. (gdf) (Entered: 07/23/2007)
2007-08-315MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order)(Oldham, Nicholas) (Entered: 08/31/2007)
2007-08-31MINUTE ORDER setting briefing schedule. Defendant shall complete its processing of plaintiff's FOIA request on or before October 31, 2007. Defendant shall provide plaintiff with a draft Vaughn index on or before October 31, 2007. Defendant shall file its dispositive motion on or before December 7, 2007. Plaintiff shall file its opposition to defendant's dispositive motion on or before December 21, 2007. Defendant shall file its reply on or before January 11, 2008. Signed by Judge Ellen S. Huvelle on 8/31/2007. (KF) (Entered: 08/31/2007)
2007-08-31Set/Reset Deadlines: Defendant shall complete its processing of plaintiff's FOIA request and draft of Vaughn index to plaintiff due by 10/31/07. Dispositive Motions due by 12/7/2007. Response to Dispositive Motions due by 12/21/2007. Reply to Dispositive Motions due by 1/11/2008. (cp, ) (Entered: 08/31/2007)
2007-10-316MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order)(Oldham, Nicholas) (Entered: 10/31/2007)
2007-11-01MINUTE ORDER: Pursuant to the parties' joint briefing schedule statement, it is hereby ORDERED that defendant shall complete its processing of plaintiff's FOIA request and shall provide plaintiff with a draft Vaughn index on or before November 16, 2007. Defendant shall file its dispositive motion on or before December 7, 2007. Plaintiff shall file its opposition on or before December 21, 2007. Defendant shall file its reply on or before January 11, 2008. Signed by Judge Ellen S. Huvelle on 11/1/2007. (KF) (Entered: 11/01/2007)
2007-11-01Set/Reset Deadlines: Dispositive Motion due by 12/7/2007. Response to Dispositive Motion due by 12/21/2007. Reply to Dispositive Motion due by 1/11/2008. Draft Vaughn Index due by 11/16/2007. (gdf) (Entered: 11/01/2007)
2007-11-167MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order)(Oldham, Nicholas) (Entered: 11/16/2007)
2007-11-19MINUTE ORDER: Upon consideration of the parties' Joint Briefing Schedule Statement, it is hereby ORDERED that (1) defendant shall complete its processing of plaintiff's FOIA request and shall provide plaintiff with a draft Vaughn index on or before November 20, 2007; (2) the current briefing schedule is vacated; and (3) the parties shall file a revised proposed briefing schedule, if necessary, on or before November 26, 2007. Signed by Judge Ellen S. Huvelle on 11/19/2007. (KF) (Entered: 11/19/2007)
2007-11-19Set/Reset Deadlines: Revised proposed briefing schedule due by 11/26/2007. (gdf) (Entered: 11/19/2007)
2007-11-268MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order)(Oldham, Nicholas) (Entered: 11/26/2007)
2007-11-27MINUTE ORDER: Upon consideration of the parties' Joint Briefing Schedule Statement, it is hereby ORDERED that plaintiff shall notify defendant on or before December 21, 2007, whether it will challenge defendant's search for responsive documents and what, if any, withholdings it will challenge. Defendant shall file its dispositive motion on or before January 11, 2008. Plaintiff shall file its opposition to defendant's dispositive motion on or before February 1, 2008. Defendant shall file its reply to plaintiff's opposition on or before February 15, 2008. Signed by Judge Ellen S. Huvelle on 11/27/2007. (KF) (Entered: 11/27/2007)
2007-11-27Set/Reset Deadlines: Dispositive Motions due by 1/11/2008. Response to Dispositive Motions due by 2/1/2008. Reply to Dispositive Motions due by 2/15/2008. (gdf) (Entered: 11/27/2007)
2008-01-119MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order)(Oldham, Nicholas) (Entered: 01/11/2008)
2008-01-11MINUTE ORDER: With consent of the parties, it is hereby ordered that defendant shall file its dispositive motion on or before January 24, 2008; plaintiff shall file its opposition on or before February 14, 2008; and defendant shall file its reply on or before February 28, 2008. Signed by Judge Ellen S. Huvelle on January 11, 2008. (VT) (Entered: 01/11/2008)
2008-01-15Set/Reset Deadlines: Dispositive Motions due by 1/24/2008. Response to Dispositive Motions due by 2/14/2008. Reply to Dispositive Motions due by 2/28/2008. (gdf) (Entered: 01/15/2008)
2008-01-2410STIPULATION by DEMOCRATIC NATIONAL COMMITTEE, UNITED STATES DEPARTMENT OF JUSTICE. (Oldham, Nicholas) (Entered: 01/24/2008)
2008-01-2411MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Exhibit 1 - Pustay Decl., # 2 Exhibit 2 - Stearns Decl., # 3 Exhibit 3 - Holland v. CIA, # 4 Text of Proposed Order)(Oldham, Nicholas) (Entered: 01/24/2008)
2008-02-1412Cross MOTION for Summary Judgment by DEMOCRATIC NATIONAL COMMITTEE (Attachments: # 1 Exhibit to Cross-Motion for Summary Judgment, # 2 Text of Proposed Order)(Sandler, Joseph) (Entered: 02/14/2008)
2008-02-2613Unopposed MOTION for Extension of Time to File Response/Reply as to 12 Cross MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Oldham, Nicholas) (Entered: 02/26/2008)
2008-02-26MINUTE ORDER granting 13 Unopposed Motion for Extension of Time for Defendant to File Reply in Support of Motion for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment. Defendant shall file its reply and opposition on or before March 6, 2008. Signed by Judge Ellen S. Huvelle on 2/26/2008. (VT) (Entered: 02/26/2008)
2008-02-26Set/Reset Deadlines: Response to Cross Motions due by 3/6/2008. Reply to Motion for Summary Judgment due by 3/6/2008. (gdf) (Entered: 02/26/2008)
2008-03-0614REPLY to opposition to motion re 11 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. (Oldham, Nicholas) (Entered: 03/06/2008)
2008-03-2715ORDER granting 11 defendant's Motion for Summary Judgment and denying 12 plaintiff's Cross-Motion for Summary Judgment. Signed by Judge Ellen S. Huvelle on March 27, 2008. (lcesh1) (Entered: 03/27/2008)
2008-03-2716MEMORANDUM OPINION granting 11 defendant's motion for summary judgment and denying 12 plaintiff's cross-motion for summary judgment. Signed by Judge Ellen S. Huvelle on March 27, 2008. (lcesh1) (Entered: 03/27/2008)
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