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Case TitleDEMOCRACY FORWARD FOUNDATION v. U.S. GENERAL SERVICES ADMINISTRATION
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2018cv01037
Date Filed2018-05-02
Date ClosedOpen
JudgeJudge Amit P. Mehta
PlaintiffDEMOCRACY FORWARD FOUNDATION
Case DescriptionDemocracy Forward Foundation submitted a FOIA request to the General Services Administration for records concerning emails to or from the domain name "ptt.gov" to a number of individuals in and outside the Trump administration. DFF also requested a fee waiver. The agency acknowledged receipt of the request. The agency told DFF that it found no responsive records. DFF filed an administrative appeal. In response to DFF's appeal, GSA admitted that it had "ptt.gov" records but claimed that presidential transit records were not agency records subject to FOIA. DFF then filed suit.
Complaint issues: Litigation - Vaughn index, Adequacy - Search, Agency Record - Control, Litigation - Attorney's fees

DefendantGENERAL SERVICES ADMINISTRATION
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Complaint attachment 7
Opinion/Order [20]
FOIA Project Annotation: Judge Amit Mehta has ruled that emails of the Trump transition team held by the General Services Administration and scheduled to be destroyed by statute, did not become agency records once they were retained and copied for use by the FBI during the investigation of Russian interference into the 2016 presidential election. After GSA retained the emails because portions were relevant to the Mueller investigation, Democracy Forward Foundation submitted a FOIA request for those transition team records that were made available to the investigation. GSA told DFF that the records were not agency records and, thus, were not subject to FOIA. After GSA denied DFF's administrative appeal, DFF filed suit, arguing that the records became agency records when they were preserved for use by the Special Counsel. DFF also argued that the four-factor test from Burka v. Dept of Health and Human Services, 87 F.3d 508 (D.C. Cir. 1996) " the extent to which the agency intended to retain or relinquish control of the records, the ability of the agency to use or dispose of the records, the extent to which agency personnel read or relied on the records, and the degree to which the records were integrated into the agency's records system " applied. Mehta pointed out that the circumstances here were quite similar to those in Cause of Action v. NARA, 753 F. 3d 210 (D.C. Cir. 2014), in which the D.C. Circuit found that a non-FOIA congressional report on the financial crisis did not become subject to FOIA solely because it had been deposited with the National Archives and Records Administration. He observed that "indeed, like the National Archives, GSA here functioned mainly as a 'warehouse' for the transition team's electronic communications. It supplied a network to host and store records, but never intended to use and did use the records in any way." Mehta instead looked to first principles and after reviewing the creation and maintenance of the disputed records, noted that "there is nothing about the documents' content that would shed any light about GSA's operations or decision-making." Mehta cited Wolfe v. Dept of Health and Human Services, 711 F.2d 1077 (D.C. Cir. 1983), the only D.C. Circuit decision involving transition records " a report by the Reagan transition team about HHS which, after being disseminated, was never used further " as support for his conclusion here. He noted that "like the report, the emails were never integrated into GSA's records systems. Nor did GSA personnel read or rely on the records, except perhaps incidentally to carry out its network security function. Thus, GSA did not sufficiently 'control' the emails to qualify as 'agency records.'" Having satisfied himself that the records were not agency records, Mehta reviewed the applicability of the Burka factors anyway. DFF argued that GSA's decision to retain the records during the investigation showed an intent to control them. But Mehta observed that "it is a dubious proposition that the transition team had any right or ability to 'tale control of the records' once it became known that there was a law enforcement interest in them." DFF argued that GSA's decision to voluntarily retain the records implied an ability to use or dispose of them. Mehta disagreed, noting that "it cannot be that the decision to comply with a request by law enforcement to preserve records converts a record not otherwise subject to FOIA into one that is."
Issues: Agency Record - Control
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-05-021COMPLAINT against U.S. GENERAL SERVICES ADMINISTRATION ( Filing fee $ 400 receipt number 0090-5455753) filed by DEMOCRACY FORWARD FOUNDATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet, # 5 Summons, # 6 Summons, # 7 Summons)(Thurston, Robin) (Entered: 05/02/2018)
2018-05-02Case Assigned to Judge Amit P. Mehta. (zmd) (Entered: 05/03/2018)
2018-05-042SUMMONS (3) Issued Electronically as to GENERAL SERVICES ADMINISTRATION, U.S. Attorney and U.S. Attorney General. (tth) (Additional attachment(s) added on 5/4/2018: # 1 Notice and Consent) (zmd). (Entered: 05/04/2018)
2018-05-173RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/7/2018. ( Answer due for ALL FEDERAL DEFENDANTS by 6/6/2018.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5/7/18., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. GENERAL SERVICES ADMINISTRATION served on 5/7/2018 (Attachments: # 1 Declaration)(Thurston, Robin) (Entered: 05/17/2018)
2018-06-064NOTICE of Appearance by Michael Joseph Gerardi on behalf of GENERAL SERVICES ADMINISTRATION (Gerardi, Michael) (Entered: 06/06/2018)
2018-06-065ANSWER to Complaint by GENERAL SERVICES ADMINISTRATION.(Gerardi, Michael) (Entered: 06/06/2018)
2018-06-076ORDER. Both a Complaint and an Answer are now before the court in this FOIA case. It is hereby ordered that the parties shall meet and confer and file a Joint Status Report on or before June 21, 2018. Please see the attached Order for additional details. Signed by Judge Amit P. Mehta on 06/07/2018. (lcapm1) (Entered: 06/07/2018)
2018-06-07Set/Reset Deadlines: Joint Status Report due by 6/21/2018. (zjd) (Entered: 06/08/2018)
2018-06-217Joint MOTION for Extension of Time to File Status Report by GENERAL SERVICES ADMINISTRATION (Gerardi, Michael) (Entered: 06/21/2018)
2018-06-24MINUTE ORDER granting the parties' 7 Joint Motion to Extend Deadline to File Joint Status Report. The parties' Joint Status Report shall now be due on or before June 27, 2018. Signed by Judge Amit P. Mehta on 06/24/2018. (lcapm1) (Entered: 06/24/2018)
2018-06-24Set/Reset Deadlines: Joint Status Report due by 6/27/2018. (zjd) (Entered: 06/25/2018)
2018-06-278Joint STATUS REPORT by GENERAL SERVICES ADMINISTRATION. (Gerardi, Michael) (Entered: 06/27/2018)
2018-06-28MINUTE ORDER. Upon consideration of the parties' 8 Joint Status Report, the parties are directed to file another Joint Status Report, on or before July 13, 2018, that updates the court on their progress and proposes a briefing schedule for summary judgment. Signed by Judge Amit P. Mehta on 06/28/2018. (lcapm1) (Entered: 06/28/2018)
2018-06-28Set/Reset Deadlines: Joint Status Report due by 7/13/2018. (zjd) (Entered: 06/28/2018)
2018-07-139Joint STATUS REPORT (Second) by GENERAL SERVICES ADMINISTRATION. (Gerardi, Michael) (Entered: 07/13/2018)
2018-07-1610ORDER entering the briefing schedule proposed in the parties' 9 Joint Status Report. The schedule for further proceedings in this matter is as follows: (1) Defendant's Motion for Summary Judgment is due on or before September 7, 2018; (2) Plaintiff's Opposition and any Cross-Motion for Summary Judgment is due on or before October 5, 2018; (3) Defendant's Reply and Opposition to any Cross-Motion for Summary Judgment is due on or before November 2, 2018; and (4) Plaintiff's Reply in Support of any Cross-Motion for Summary Judgment is due on or before November 16, 2018. See the attached Order for additional details. Signed by Judge Amit P. Mehta on 07/16/2018. (lcapm1) (Entered: 07/16/2018)
2018-07-16Set/Reset Deadlines: Defendant's Motion for Summary Judgment due by 9/7/2018. Plaintiff's Opposition and Cross-Motion for Summary Judgment due by 10/5/2018. Defendant's Reply and Opposition due by 11/2/2018. Plaintiff's Reply due by 11/16/2018. (zjd) (Entered: 07/16/2018)
2018-09-0711MOTION for Summary Judgment by GENERAL SERVICES ADMINISTRATION (Attachments: # 1 Simmons Declaration, # 2 Gerardi Declaration, # 3 Statement of Facts, # 4 Text of Proposed Order)(Gerardi, Michael) (Entered: 09/07/2018)
2018-10-0212Consent MOTION for Extension of Time to File Response/Reply by DEMOCRACY FORWARD FOUNDATION (Attachments: # 1 Text of Proposed Order)(Thurston, Robin) (Entered: 10/02/2018)
2018-10-03MINUTE ORDER granting Plaintiff's 12 Consent Motion for Extension of Time to Respond to Defendant's Motion for Summary Judgment. Plaintiff's Opposition and any Cross-Motion for Summary Judgment shall now be due on or before October 19, 2018; Defendant's Reply and Opposition to any Cross-Motion for Summary Judgment shall be due on or before November 28, 2018; and Plaintiff's Reply in Support of any Cross-Motion for Summary Judgment shall be due on or before December 14, 2018. Signed by Judge Amit P. Mehta on 10/03/2018. (lcapm1) (Entered: 10/03/2018)
2018-10-03Set/Reset Deadlines: Plaintiff's Opposition and any Cross-Motion for Summary Judgment due by 10/19/2018. Defendant's Reply and Opposition due by 11/28/2018. Plaintiff's Reply due by 12/14/2018. (zjd) (Entered: 10/03/2018)
2018-10-1913MOTION for Partial Summary Judgment and Opposition to Defendant's Motion for Summary Judgment by DEMOCRACY FORWARD FOUNDATION (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Affidavit Declaration of Batul Contractor, # 4 Text of Proposed Order)(Thurston, Robin) Modified event title on 10/23/2018 (znmw). (Entered: 10/19/2018)
2018-10-1914Memorandum in opposition to re 11 MOTION for Summary Judgment filed by DEMOCRACY FORWARD FOUNDATION. (See Docket Entry 13 to view document). (znmw) (Entered: 10/23/2018)
2018-11-2615Unopposed MOTION for Extension of Time to File Response/Reply as to 13 MOTION for Partial Summary Judgment, 11 MOTION for Summary Judgment , MOTION to Amend/Correct Briefing Schedule by GENERAL SERVICES ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Gerardi, Michael) (Entered: 11/26/2018)
2018-11-27MINUTE ORDER granting Defendant's 15 Consent Motion to Amend Summary Judgment Briefing Schedule. Defendant's Reply/Response shall now be due on or before December 10, 2018 and and Plaintiff's Reply shall be due on or before January 18, 2019. Signed by Judge Amit P. Mehta on 11/27/2018. (lcapm1) (Entered: 11/27/2018)
2018-11-27Set/Reset Deadlines: Defendant's Reply/Response due by 12/10/2018. Plaintiff's Reply due by 1/18/2019. (zjd) (Entered: 11/28/2018)
2018-12-1016RESPONSE re 13 MOTION for Partial Summary Judgment filed by GENERAL SERVICES ADMINISTRATION. (Attachments: # 1 Greenfeld Declaration, # 2 Response to Plaintiff's Statement of Undisputed Facts)(Gerardi, Michael) (Entered: 12/10/2018)
2018-12-1017REPLY to opposition to motion re 11 MOTION for Summary Judgment filed by GENERAL SERVICES ADMINISTRATION. (Attachments: # 1 Greenfeld Declaration, # 2 Response to Plaintiff's Statement of Undisputed Facts)(Gerardi, Michael) (Entered: 12/10/2018)
2019-01-1518Unopposed MOTION for Extension of Time to File Response/Reply by DEMOCRACY FORWARD FOUNDATION (Attachments: # 1 Text of Proposed Order)(Thurston, Robin) (Entered: 01/15/2019)
2019-01-16MINUTE ORDER granting 18 Plaintiff's Unopposed Motion for Extension of Time to File Reply in Support of Motion for Summary Judgment. Plaintiff's Reply shall now be due on or before January 25, 2019. Signed by Judge Amit P. Mehta on 01/16/2019. (lcapm1) (Entered: 01/16/2019)
2019-01-16Set/Reset Deadlines: Plaintiff's Reply due by 1/25/2019. (zjd) (Entered: 01/16/2019)
2019-01-2519REPLY to opposition to motion re 13 MOTION for Partial Summary Judgment filed by DEMOCRACY FORWARD FOUNDATION. (Thurston, Robin) (Entered: 01/25/2019)
2019-07-0220MEMORANDUM OPINION re: 11 13 the parties' cross Motions for Summary Judgment. Please see the attached Memorandum Opinion for additional details. Signed by Judge Amit P. Mehta on 07/02/2019. (lcapm1) (Entered: 07/02/2019)
2019-07-0221ORDER: For the reasons stated in the 20 Memorandum Opinion, the court grants Defendant's 11 Motion for Summary Judgment and denies 13 Plaintiff's Cross-Motion for Summary Judgment. Please see the attached Order for further details. Signed by Judge Amit P. Mehta on 07/02/2019. (lcapm1) (Entered: 07/02/2019)
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