Case Detail

FOIA Project Annotation: Judge Gladys Kessler has ruled that the White House Office of Science and Technology Policy is not required to search OSTP Director John Holdren's email account maintained by his former employer Woods Hole Research Center for any OSTP-related emails because the agency does not have custody or control of the account. The Competitive Enterprise Institute requested any emails sent to Holdren's Woods Hole account that dealt with OSTP-related issues. OSTP told CEI that it did not have access to that account and could not search it. CEI appealed and the agency reaffirmed its position. CEI then sued under FOIA, the APA, and the Federal Records Act. Rejecting CEI's FOIA claims, Kessler noted that "the law is clear, however, that agencies do not�"merely by way of the employer/employee relationship�"gain 'control' over their employees' personal email accounts. That is precisely why agencies admonish their employees to use their official accounts for government business." She added that "CEI fails to cite any authority supporting the proposition that simply because Dr. Holdren heads the OSTP, his unofficial email account falls under the agency's control." Kessler pointed out that the Federal Records Act and the Federal Records Disposal Act provided administrative remedies for wrongful removal of records. However, the remedy under the FRA requires the Archivist to ask the Attorney General to investigate the improper removal of records and does not provide a private cause of action, except to the extent that a plaintiff can ask the Archivist to investigate a claim. But Kessler indicated that "the Complaint never directly alleges that Dr. Holdren failed to place copies of agency records on his official account." She observed that "CEI would have the Court interpret OSTP's refusal to search Dr. Holdren's unofficial account to be an admission that uncopied agency records reside there. That does not suffice to state a claim."
Issues: Agency Record - Possession

FOIA Project Annotation: Judge Gladys Kessler has resolved the remaining issue of whether the Office of Science and Technology Policy failed to disclose work-related emails from director John Holdren's personal email account, ruling that since the agency was not required to disclose duplicate records under the Federal Records Act and since the Competitive Enterprise Institute had failed to undermine Holdren's claim that he always copied work-related emails from his personal account to his official agency account for preservation purposes, the agency had conducted an adequate search by disclosing more than 600 pages of email from Holdren's agency account. After Kessler ruled previously that the agency was not required to search Holdren's account from his Woods Hole account because the agency did not have access to the account, CEI appealed to the D.C. Circuit, which ruled that work-related emails created by agency employees were subject to FOIA regardless of where they resided physically. On remand, Kessler first looked at the Federal Records Act issue, noting that "the Government has established, and CEI has failed to convincingly challenge, that Dr. Holdren complied with agency policy requiring him to forward all work-related emails from his private email account to his OSTP email account." Accepting statements from Holdren and the agency's General Counsel attesting that Holdren had consistently followed the practice of forwarding work-related emails received on his private email account to his official email account, Kessler pointed out that "the presumption that Dr. Holdren complied with OSTP policy is further strengthened by evidence submitted by the Government showing that Dr. Holdren complied with the policy on approximately 4,500 occasions." She added that "the fact that Dr. Holdren forwarded work-related emails from the Woods Hole account to his OSTP account on 4,500 occasions makes it more likely than not that he forwarded any particular work-related Woods Hole email to his OSTP account." CEI argued that while Holdren may have customarily complied with this policy, that presumption did not support a conclusion that he always complied. But Kessler observed that Holdren's affidavit explained that he tried to follow that practice at all times. She noted that "plaintiff's creative exercise in semantics is insufficient to overcome the presumption of credibility to which Dr. Holdren's declaration is entitled." She noted that "any work-related emails in Dr. Holdren's Woods Hole account are duplicates of emails located in his OSTP account." She added that "FOIA does not require agencies to produce duplicate records." Having found that Holdren consistently copied emails from his private account to his official account, Kessler concluded the agency's search of his official email account was sufficient. She pointed out that "Dr. Holdren admittedly used his private email account for work-related emails. However, plaintiff has presented absolutely no concrete evidence that he failed to forward any work-related Woods Hole email to his OSTP account. . .The Court finds that the Government need not produce Dr. Holdren's work-related Woods Hole emails because its search was reasonably calculated to uncover duplicates of all of the records located in the Wood Holes account."
Issues: Adequacy - Search

Date Filed	Doc #	Docket Text
2014-05-05	1	COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-3705420) filed by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Civil Cover Sheet, # 2 Summons for U.S. Attorney, # 3 Summons for the agency, OSTP, # 4 Summons for the Attorney General)(Bader, Hans) (Entered: 05/05/2014)
2014-05-05		Case Assigned to Judge Gladys Kessler. (kb) (Entered: 05/05/2014)
2014-05-05	2	SUMMONS (3) Issued Electronically as to OFFICE OF SCIENCE AND TECHNOLOGY POLICY, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Consent Form, # 2 Notice of Consent)(kb) (Entered: 05/05/2014)
2014-05-19	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/12/2014. ( Answer due for ALL FEDERAL DEFENDANTS by 6/11/2014.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. OFFICE OF SCIENCE AND TECHNOLOGY POLICY served on 5/12/2014, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 05/12/2014. (Bader, Hans) (Entered: 05/19/2014)
2014-06-05	4	NOTICE of Appearance by Daniel Schwei on behalf of All Defendants (Schwei, Daniel) (Entered: 06/05/2014)
2014-06-05	5	Consent MOTION for Extension of Time to File Answer re 1 Complaint, by OFFICE OF SCIENCE AND TECHNOLOGY POLICY (Attachments: # 1 Text of Proposed Order)(Schwei, Daniel) (Entered: 06/05/2014)
2014-06-06	6	ORDER granting 5 Defendant's Consent Motion for Extension of Time; Defendant shall have up to and including July 11, 2014, in which to answer or otherwise respond to Plaintiff's Complaint. Signed by Judge Gladys Kessler on 6/6/14. (CL, ) (Entered: 06/06/2014)
2014-06-06		Set/Reset Deadlines: Answer due by 7/11/2014 (CL, ). (Entered: 06/06/2014)
2014-07-11	7	MOTION to Dismiss by OFFICE OF SCIENCE AND TECHNOLOGY POLICY (Attachments: # 1 Exhibit 1 - CEI's FOIA Request, # 2 Exhibit 2 - OSTP's Response to FOIA Request, # 3 Exhibit 3 - CEI's Letter of Feb. 18, 2014, # 4 Exhibit 4 - OSTP's Letter of Mar. 7, 2014, # 5 Exhibit 5 - CEI's Letter of Apr. 18, 2014, # 6 Exhibit 6 - Holdren Memo, # 7 Exhibit 7 - Holdren E-mail from EPA Production, # 8 Memorandum in Support, # 9 Text of Proposed Order)(Schwei, Daniel) (Entered: 07/11/2014)
2014-07-28	8	Memorandum in opposition to re 7 MOTION to Dismiss filed by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order)(Bader, Hans) (Entered: 07/28/2014)
2014-07-30	9	Consent MOTION for Extension of Time to File Response/Reply as to 7 MOTION to Dismiss by OFFICE OF SCIENCE AND TECHNOLOGY POLICY (Attachments: # 1 Text of Proposed Order)(Schwei, Daniel) (Entered: 07/30/2014)
2014-07-31		MINUTE ORDER granting 9 Defendant's Consent Motion for Extension of Time; Defendant shall have up to and including August 21, 2014, in which to file its Reply in support of its Motion to Dismiss. Signed by Judge Gladys Kessler on 7/31/14. (CL, ) (Entered: 07/31/2014)
2014-07-31		Set/Reset Deadlines: Replies due by 8/21/2014. (CL, ) (Entered: 07/31/2014)
2014-08-21	10	REPLY to opposition to motion re 7 MOTION to Dismiss filed by OFFICE OF SCIENCE AND TECHNOLOGY POLICY. (Attachments: # 1 Exhibit 1 - Declaration of Eric Wachter, # 2 Exhibit 2 - E-Mail from Schwei to Bader & Kazman)(Schwei, Daniel) (Entered: 08/21/2014)
2015-03-03	11	ORDER granting 7 Defendant's Motion to Dismiss; Plaintiff's Complaint is hereby dismissed. This is a final, appealable Order. Signed by Judge Gladys Kessler on 3/3/15. (CL, ) (Entered: 03/03/2015)
2015-03-03	12	MEMORANDUM OPINION to the Order granting Defendant's Motion to Dismiss. Signed by Judge Gladys Kessler on 3/3/15. (CL, ) (Entered: 03/03/2015)
2015-04-22	13	NOTICE OF APPEAL TO DC CIRCUIT COURT as to 11 Order on Motion to Dismiss by COMPETITIVE ENTERPRISE INSTITUTE. Filing fee $ 505, receipt number 0090-4065752. Fee Status: Fee Paid. Parties have been notified. (Bader, Hans) (Entered: 04/22/2015)
2015-04-23	14	Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 13 Notice of Appeal to DC Circuit Court. (znmw, ) (Entered: 04/23/2015)
2015-04-30		USCA Case Number 15-5128 for 13 Notice of Appeal to DC Circuit Court filed by COMPETITIVE ENTERPRISE INSTITUTE. (md, ) (Entered: 04/30/2015)
2016-08-29	15	MANDATE of USCA as to 13 Notice of Appeal to DC Circuit Court filed by COMPETITIVE ENTERPRISE INSTITUTE. USCA Case Number 15-5128. (Attachments: # 1 judgment filed July 5, 2016)(zrdj) (Entered: 08/29/2016)
2016-08-29		MINUTE ORDER: The Mandate from the Court of Appeals has issued in this case; wherefore, it is hereby Ordered that a Status Conference is scheduled for September 15, 2016, at 11:30 a.m. Signed by Judge Gladys Kessler on 8/29/16. (CL) (Entered: 08/29/2016)
2016-08-29		Set/Reset Hearings: Status Conference set for 9/15/2016 at 11:30 AM in Courtroom 26A before Judge Gladys Kessler. (CL) (Entered: 08/29/2016)
2016-09-02	16	Unopposed MOTION to Continue Status Conference Until Later Date by OFFICE OF SCIENCE AND TECHNOLOGY POLICY (Attachments: # 1 Text of Proposed Order)(Schwei, Daniel) (Entered: 09/02/2016)
2016-09-06	17	ORDER granting 16 Defendant's Unopposed Motion to Continue Status Conference; the Status Conference now set for September 15, 2016, is hereby rescheduled to September 19, 2016, at 11:00 a.m. Signed by Judge Gladys Kessler on 9/6/16. (CL) (Entered: 09/06/2016)
2016-09-06		Set/Reset Hearings: Status Conference set for 9/19/2016 at 11:00 AM in Courtroom 26A before Judge Gladys Kessler. (CL) (Entered: 09/06/2016)
2016-09-19		Minute Entry for proceedings held before Judge Gladys Kessler: Status Conference held on 9/19/2016. Further Status Conference set for 10/4/2016 at 11:00 AM in Courtroom 26A before Judge Gladys Kessler. (Court Reporter: Lisa Moreira) (tth) (Entered: 09/19/2016)
2016-09-19	18	TRANSCRIPT OF STATUS HEARING before Judge Gladys Kessler held on September 19, 2016; Page Numbers: 1-14. Date of Issuance:September 19, 2016. Court Reporter/Transcriber Lisa A. Moreira, RDR, CRR, Telephone number 202-354-3187, Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the co urt reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 10/10/2016. Redacted Transcript Deadline set for 10/20/2016. Release of Transcript Restriction set for 12/18/2016.(Moreira, Lisa) (Entered: 09/19/2016)
2016-09-21		MINUTE ORDER: Because the date of the next Status Conference in this case falls on Rosh Hashana, that Status Conference is hereby rescheduled to October 5, 2016, at 11:00; if this is not a convenient time or date for the parties, they may file a Motion for Continuance. Signed by Judge Gladys Kessler on 9/21/16. (CL) (Entered: 09/21/2016)
2016-09-21		Set/Reset Hearings: Status Conference set for 10/5/2016 at 11:00 AM in Courtroom 26A before Judge Gladys Kessler. (CL) (Entered: 09/21/2016)
2016-10-04	19	Consent MOTION to Continue October 5 status conference to later date, postponing status conference, by COMPETITIVE ENTERPRISE INSTITUTE (Bader, Hans) (Entered: 10/04/2016)
2016-10-04	20	ORDER granting 19 Plaintiff's Motion to Continue; the Status Conference now set for October 5, 2016, is hereby rescheduled to October 11, 2016, at 11:00 a.m. Signed by Judge Gladys Kessler on 10/4/16. (CL) (Entered: 10/04/2016)
2016-10-04		Set/Reset Hearings: Status Conference set for 10/11/2016 at 11:00 AM in Courtroom 26A before Judge Gladys Kessler. (CL) (Entered: 10/04/2016)
2016-10-11		Minute Entry for proceedings held before Judge Gladys Kessler: Status Conference held on 10/11/2016. Order to issue. (Court Reporter Elizabeth Saint Loth.) (zsm) (Entered: 10/11/2016)
2016-10-13	21	ORDER that the Government shall file its Motion for Summary Judgment no later than October 17, 2016; Plaintiff shall file its Response no later than October 24, 2016; the Government shall file its Reply in Support no later than October 28, 2016; should the Court rule in favor of the Plaintiff, the Plaintiff shall file whatever Motion it deems appropriate within 10 days of the filing of the Court's Opinion. Signed by Judge Gladys Kessler on 10/13/16. (CL) (Entered: 10/13/2016)
2016-10-13		Set/Reset Deadlines: Summary Judgment Motion due by 10/17/2016. Response to Motion for Summary Judgment due by 10/24/2016. Reply to Motion for Summary Judgment due by 10/28/2016. (CL) (Entered: 10/13/2016)
2016-10-14		MINUTE ORDER: The Court's October 13, 2016 ORDER [Dkt. No. 21] is hereby amended as follows: Plaintiff's Motion on the issue of preservation shall be due by 10/17/2016 at 4:00 p.m.; Response due by 10/24/2016 at 4:00 p.m.; Reply due by 10/28/2016 at 4:00 p.m.. The parties shall submit a proposed Summary Judgment briefing schedule for the Court's consideration by 10/19/2016. Signed by Judge Gladys Kessler on 10/14/2016. (lcgk1, ) (Entered: 10/14/2016)
2016-10-14	22	TRANSCRIPT OF STATUS CONFERENCE before Judge Gladys Kessler held on 10-11-2016; Page Numbers: 1 - 21. Date of Issuance:10-14-2016. Court Reporter/Transcriber Elizabeth SaintLoth, Telephone number 202-354-3242, Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter ref erenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 11/4/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/12/2017.(Saint-Loth, Elizabeth) (Entered: 10/14/2016)
2016-10-17	23	ORDER setting forth the Motion for Summary Judgment briefing schedule, which shall occur AFTER the Court's decision regarding preservation of the papers (see Order for details); the Court apologizes for the confusion about the materials to be submitted. Signed by Judge Gladys Kessler on 10/17/16. (CL) (Entered: 10/17/2016)
2016-10-17	24	MOTION to Compel Preservation of Private Emails by COMPETITIVE ENTERPRISE INSTITUTE (Attachments: # 1 Text of Proposed Order)(Bader, Hans) (Entered: 10/17/2016)
2016-10-21	25	Consent MOTION for Extension of Time to File Response/Reply as to 24 MOTION to Compel Preservation of Private Emails by OFFICE OF SCIENCE AND TECHNOLOGY POLICY (Attachments: # 1 Text of Proposed Order)(Schwei, Daniel) (Entered: 10/21/2016)
2016-10-21		MINUTE ORDER granting 25 Motion for Extension of Time to File Response/Reply re 24 MOTION to Compel Preservation of Private Emails . Responses due by 10/31/2016; Replies due by 11/10/2016. Signed by Judge Gladys Kessler on 10/21/2016. (lcgk1, ) Modified event title on 10/24/2016 (znmw). (Entered: 10/21/2016)
2016-10-31	26	Memorandum in opposition to re 24 MOTION to Compel Preservation of Private Emails filed by OFFICE OF SCIENCE AND TECHNOLOGY POLICY. (Attachments: # 1 Declaration of Dr. John P. Holdren, # 2 Text of Proposed Order)(Schwei, Daniel) (Entered: 10/31/2016)
2016-10-31	27	ANSWER to Complaint by OFFICE OF SCIENCE AND TECHNOLOGY POLICY.(Schwei, Daniel) (Entered: 10/31/2016)
2016-11-10	28	REPLY to opposition to motion re 24 MOTION to Compel Preservation of Private Emails filed by COMPETITIVE ENTERPRISE INSTITUTE. (Bader, Hans) (Entered: 11/10/2016)
2016-11-10	29	REPLY to opposition to motion re 24 MOTION to Compel Preservation of Private Emails AS CORRECTED TO FIX TABLE OF CONTENTS BY ELIMINATING EMPTY PAGES filed by COMPETITIVE ENTERPRISE INSTITUTE. (Bader, Hans) (Entered: 11/10/2016)
2016-11-21	30	ORDER that neither the Plaintiff, nor the Government, nor Dr. John P. Holdren, Director of the Office of Science and Technology Policy, shall take any action whatsoever related to the pending Motion to Compel Preservation of Private Emails until the Court issues its Opinion, which the Court will do as soon as possible. Signed by Judge Gladys Kessler on 11/21/16. (CL) (Entered: 11/21/2016)
2016-12-12	31	ORDER granting in part and denying in part 24 Plaintiff's Motion to Compel. Signed by Judge Gladys Kessler on 12/12/16. (CL) (Entered: 12/12/2016)
2016-12-27	32	MOTION for Summary Judgment by OFFICE OF SCIENCE AND TECHNOLOGY POLICY (Attachments: # 1 Memorandum in Support, # 2 Declaration of Rachael Leonard, # 3 Exhibit A to Leonard Declaration (OSTP Response Letter of May 1, 2014), # 4 Statement of Facts As to Which There Is No Genuine Issue, # 5 Text of Proposed Order)(Schwei, Daniel) (Entered: 12/27/2016)
2017-01-10	33	Memorandum in opposition to re 32 MOTION for Summary Judgment filed by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Statement of Facts Genuine Issues of Material Fact, # 2 Declaration of Christopher C. Horner in opposition to defendant's motion for summary judgment, # 3 Text of Proposed Order)(Bader, Hans) (Entered: 01/10/2017)
2017-01-18	34	NOTICE OF SUPPLEMENTAL AUTHORITY by COMPETITIVE ENTERPRISE INSTITUTE (Bader, Hans) (Entered: 01/18/2017)
2017-01-19	35	REPLY to opposition to motion re 32 MOTION for Summary Judgment filed by OFFICE OF SCIENCE AND TECHNOLOGY POLICY. (Schwei, Daniel) (Entered: 01/19/2017)
2017-01-26	36	MOTION for Leave to File Surreply opposing defendant's motion for summary judgment by COMPETITIVE ENTERPRISE INSTITUTE (Attachments: # 1 Exhibit Proposed Surreply, # 2 Text of Proposed Order)(Bader, Hans) (Entered: 01/26/2017)
2017-03-13	37	ORDER granting 32 Defendant's Motion for Summary Judgment; granting 36 Plaintiff's Motion for Leave to File a Surreply; the Government shall continue to produce Dr. Holdren's work-related Woods Hole emails as they exist in Dr. Holdren's OSTP email account (see Memorandum Opinion for more details). Signed by Judge Gladys Kessler on 3/13/17. (CL) (Entered: 03/13/2017)
2017-03-13	38	MEMORANDUM OPINION to the Order granting Defendant's Motion for Summary Judgment and granting Plaintiff's Motion for Leave to File a Surreply. Signed by Judge Gladys Kessler on 3/13/17. (CL) (Entered: 03/13/2017)
2017-03-13	39	SURREPLY to re 32 MOTION for Summary Judgment filed by COMPETITIVE ENTERPRISE INSTITUTE. (znmw) (Entered: 03/15/2017)
2017-03-22	40	Consent MOTION for Extension of Time to File any motion for attorney's fees by COMPETITIVE ENTERPRISE INSTITUTE (Attachments: # 1 Text of Proposed Order)(Bader, Hans) (Entered: 03/22/2017)
2017-03-23	41	ORDER granting 40 Plaintiff's Consent Motion for Extension of Time; the deadline for filing any attorney's fee motion is extended to April 17, 2017. Signed by Judge Gladys Kessler on 3/13/17. (CL) (Entered: 03/23/2017)
2017-03-23		Set/Reset Deadlines: Motion for attorney's fees due by 4/17/2017. (CL) (Entered: 03/23/2017)
2017-04-10	42	Consent MOTION for Extension of Time to file any attorney's fees motion by COMPETITIVE ENTERPRISE INSTITUTE (Attachments: # 1 Text of Proposed Order)(Bader, Hans) (Entered: 04/10/2017)
2017-04-11	43	ORDER granting 42 Plaintiff's Consent Motion for Extension of Time; the deadline for filing any attorney's fees motion is extended to May 8, 2017. Signed by Judge Gladys Kessler on 4/11/17. (CL) (Entered: 04/11/2017)
2017-04-11		Set/Reset Deadlines: Motion for attorney's fees due by 5/8/2017. (CL) (Entered: 04/11/2017)
2017-04-28	44	STIPULATION of Dismissal with Prejudice by COMPETITIVE ENTERPRISE INSTITUTE. (Bader, Hans) (Entered: 04/28/2017)
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