Case Detail

FOIA Project Annotation: Attempting to resolve an agency records issue stemming from a FOIA request submitted by Cause of Action Institute concerning Defense Department emails pertaining to its scheduling of audio and video teleconferences for the Executive Office of the President, Judge Randolph Moss has found that the D.C. Circuit's ruling in Judicial Watch v. U.S. Secret Service, 726 F.3d 208 (D.C. Cir. 2013), concluding that, even though the Secret Service compiled and used the records to keep track of visitors to the White House or the Vice President's residence, the fact that the information on visitors came from staff at the White House or Vice President' s residence meant they were presidential records subject to the Presidential Records Act and not agency records subject to FOIA, may be dispositive in resolving the access issue in COA Institute's case. But because the U.S. Army has not yet provided enough evidence to convince Moss of the status of the records, he sent the case to the parties to further develop the argument. Cause of Action Institute submitted a FOIA request to the White House Military Office, which is part of the Department of Defense and operated by the Army, for records of communications with the Executive Office of the President concerning telephone and/or video conferences hosted and/or arranged by the military. The Army first responded by telling COA Institute that it had no responsive records. In its administrative appeal, COA Institute attached an email from the address system.manager@conus.army.mil, arguing that the email account should have been searched. The Army ultimately disclosed 250 pages with redactions under Exemption 6 (invasion of privacy) for personnel at or below the rank of Colonel, as well as civilian employees at or below GS-15. The agency also concluded that although the CONUS emails were generated by software housed on an Army server, they were only created in response to requests from EOP employees and not responsive to the request because the calls were not hosted or arranged by the military. After COA Institute filed suit, the Army claimed for the first time that since the records could well reveal EOP initiatives and policies they were not agency records. Moss first found that the Army's interpretation of COA Institute's FOIA request was too narrow. He noted that "if the request merely asked for records of communications concerning conferences that the military arranged, the Army's reading of the request might make sense. The very next sentence of the request, however, explains that Plaintiff was seeking 'any email requesting that a conference line be open, as well as any subsequent confirmation email or related correspondence.' That clarification is best understood to bring the emails at issue within the scope of the FOIA request. The CONUS emails were communications with EOP employees that confirmed telephone and/or video conferences." Moss added that "any doubt about what records Plaintiff sought, moreover, was resolved by its administrative appeal, which attached a sample email. The Army, accordingly, had a sample of exactly what Plaintiff sought before the Army conducted any search for responsive records." Having found that COA Institute's request included the CONUS emails, Moss next addressed whether or not those emails were agency records. Moss pointed out that the Army had so far failed to justify its contention that the emails dealt solely with EOP. He noted that "the issues presented here are similar to those addressed in Judicial Watch v. U.S. Secret Service and, thus, the Court must follow the trail blazed in that case. That trail, however, is fact-intensive and the Court concludes that it cannot definitively resolve the question whether the CONUS emails are Army, EOP, or both Army and EOP records on the current record." The Army argued that it did not keep a copy of the confirmation emails. Moss indicated that "of course, if the Army never possessed the records that Plaintiff sought, that may well resolve matters; the Army could not release records that it did not have." Further, he observed, "if the Army could establish that the CONUS email account automatically generated responses to meeting requests, without maintaining a copy of the incoming or outgoing email for even a brief time â€" on a backup system or otherwise â€" that fact would weigh substantially in the Army's favor. But once again, the present record does not provide sufficient detail for the Court to resolve that important question." COA Institute challenged the agency's redactions under Exemption 6, arguing that the agency was required to assess the foreseeable harm in disclosure. Moss explained that "but both parties assume those amendments apply to Plaintiff's FOIA request, even though the FOIA Improvement Act of 2016 was signed into law over a year after Plaintiff submitted its FOIA request to the Army, and it explicitly applies only to 'requests for records. . .made after the date of enactment.' The Court, as a result, has no occasion to address the effect of those amendments on the standards for withholding under FOIA." Instead, Moss balanced the privacy interest in non-disclosure against the public interest in disclosure, concluding that the privacy interests outweighed any public interest.
Issues: Agency Record, Adequacy - Search

Date Filed	Doc #	Docket Text
2016-05-31	1	COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-4548242) filed by CAUSE OF ACTION INSTITUTE. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Civil Cover Sheet, # 9 Summons Department of the Army, # 10 Summons U.S. Attorney General, # 11 Summons Civil Process Clerk)(Smith, Julie) (Entered: 05/31/2016)
2016-05-31	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CAUSE OF ACTION INSTITUTE (Smith, Julie) (Entered: 05/31/2016)
2016-05-31	3	NOTICE of Appearance by Ryan Patrick Mulvey on behalf of CAUSE OF ACTION INSTITUTE (Mulvey, Ryan) (Entered: 05/31/2016)
2016-06-01		Case Assigned to Judge Randolph D. Moss. (dr) (Entered: 06/01/2016)
2016-06-01	4	SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF THE ARMY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Consent Form)(sb) (Entered: 06/01/2016)
2016-06-01	5	NOTICE of Appearance by Lee A. Steven on behalf of CAUSE OF ACTION INSTITUTE (Steven, Lee) (Entered: 06/01/2016)
2016-06-08	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF THE ARMY served on 6/7/2016 (Mulvey, Ryan) (Entered: 06/08/2016)
2016-06-08	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 6/6/2016. (Mulvey, Ryan) (Entered: 06/08/2016)
2016-06-08	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/8/2016. Answer due for ALL FEDERAL DEFENDANTS by 7/8/2016. (Mulvey, Ryan) (Entered: 06/08/2016)
2016-06-22	9	NOTICE of Appearance by Derrick Wayne Grace on behalf of UNITED STATES DEPARTMENT OF THE ARMY (Grace, Derrick) (Entered: 06/22/2016)
2016-06-22		MINUTE ORDER: The parties shall appear for a status conference on July 5, 2016 at 10:30 a.m. in Courtroom 21. Signed by Judge Randolph D. Moss on 6/22/2016. (lcrdm1, ) (Entered: 06/22/2016)
2016-06-22		Set/Reset Hearings: A Status Conference is set for 7/5/2016, at 10:30 AM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 06/22/2016)
2016-06-24	10	Consent MOTION for Extension of Time to File Answer and Joint Motion to Continue Status Conference by UNITED STATES DEPARTMENT OF THE ARMY (Grace, Derrick) (Entered: 06/24/2016)
2016-06-24		MINUTE ORDER: Upon consideration of the Consent Motion for Extension of Time 10 , it is hereby ORDERED that the motion is GRANTED. Defendant shall answer or otherwise respond to the complaint on or before July 29, 2016. The status conference previously scheduled for July 5, 2015, is hereby continued to August 2, 2016, at 10 a.m. in Courtroom 21. Signed by Judge Randolph D. Moss on 6/24/2016. (lcrdm1, ) (Entered: 06/24/2016)
2016-06-27		Set/Reset Deadlines/Hearings: Defendant shall answer or otherwise respond to the complaint on or before 7/29/2016. The Status Conference set for 7/5/2016 is VACATED and RESCHEDULED for 8/2/2016, at 10:00 AM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 06/27/2016)
2016-07-19	11	NOTICE of Appearance by Michael Leon Drezner on behalf of UNITED STATES DEPARTMENT OF THE ARMY (Drezner, Michael) (Entered: 07/19/2016)
2016-07-25	12	Consent MOTION for Extension of Time to File Answer and Joint Motion to Continue Status Conference by UNITED STATES DEPARTMENT OF THE ARMY (Drezner, Michael) (Entered: 07/25/2016)
2016-07-25		MINUTE ORDER: Upon consideration of the Consent Motion for Extension of Time 12 , it is hereby ORDERED that the motion is GRANTED. Defendant shall answer or otherwise respond to the complaint on or before September 9, 2016. Plaintiff shall have 21 days to respond to any motion to dismiss filed by Defendant under Fed. R. Civ. P. 12. The status conference previously scheduled for August 2, 2016 is hereby continued to September 13, 2016 at 10 a.m. in Courtroom 21. Signed by Judge Randolph D. Moss on 7/25/2016. (lcrdm1, ) (Entered: 07/25/2016)
2016-07-25		Set/Reset Deadlines/Hearings: Defendant shall answer or otherwise respond to the complaint on or before 9/9/2016. The Status Conference set for 8/2/2016 is VACATED and RESCHEDULED for 9/13/2016, at 10:00 AM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 07/25/2016)
2016-09-09	13	ANSWER to Complaint by UNITED STATES DEPARTMENT OF THE ARMY.(Drezner, Michael) (Entered: 09/09/2016)
2016-09-13		Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 9/13/2016. Order forthcoming. (Court Reporter: Jeff Hook). (kt) (Entered: 09/13/2016)
2016-09-13		MINUTE ORDER: The parties are hereby ORDERED to file a joint status report on or before October 13, 2016. The joint status report is to include a proposal for a document processing schedule. Signed by Judge Randolph D. Moss on 9/13/2016. (lcrdm1, ) (Entered: 09/13/2016)
2016-09-13		Set/Reset Deadlines: Joint Status Report due on or before 10/13/2016. (kt) (Entered: 09/13/2016)
2016-10-13	14	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF THE ARMY. (Drezner, Michael) (Entered: 10/13/2016)
2016-10-14	15	ORDER: See attached document for details. Signed by Judge Randolph D. Moss on 10/14/2016. (lcrdm1, ) (Entered: 10/14/2016)
2016-10-14		Set/Reset Deadlines: Joint Status Report due by 1/13/2017. (dot) (Entered: 10/14/2016)
2016-10-21	16	TRANSCRIPT OF PROCEEDINGS before Judge Randolph D. Moss held on September 13, 2016; Page Numbers: 1 - 10. Date of Issuance: October 21, 2016. Court Reporter: Jeff Hook. Contact information: 202-354-3373; jeff_hook@dcd.uscourts.gov. 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 purcha sed from the court 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 11/11/2016. Redacted Transcript Deadline set for 11/21/2016. Release of Transcript Restriction set for 1/19/2017.(Hook, Jeff) (Entered: 10/21/2016)
2017-01-13	17	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF THE ARMY. (Drezner, Michael) (Entered: 01/13/2017)
2017-01-13		MINUTE ORDER: Upon consideration of the Joint Status Report 17 , the parties are hereby ORDERED to file a further joint status report on or before April 13, 2017. Signed by Judge Randolph D. Moss on 1/13/2017. (lcrdm1, ) (Entered: 01/13/2017)
2017-01-13		Set/Reset Deadlines: The parties are to file a further joint status report on or before 4/13/2017. (kt) (Entered: 01/13/2017)
2017-04-13	18	Joint STATUS REPORT by CAUSE OF ACTION INSTITUTE. (Mulvey, Ryan) (Entered: 04/13/2017)
2017-04-13		MINUTE ORDER: Upon consideration of the Joint Status Report 18 , the parties are hereby ORDERED to file a further joint status report on or before July 12, 2017. Signed by Judge Randolph D. Moss on 4/13/2017. (lcrdm1, ) (Entered: 04/13/2017)
2017-04-13		Set/Reset Deadlines: The parties are to file a further Joint Status Report on or before 7/12/2017. (kt) (Entered: 04/13/2017)
2017-07-12	19	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF THE ARMY. (Drezner, Michael) (Entered: 07/12/2017)
2017-07-12		MINUTE ORDER: Upon consideration of the Joint Status Report 19 , the parties are hereby ORDERED to file a further joint status report on or before October 10, 2017. Signed by Judge Randolph D. Moss on 7/12/2017. (lcrdm1, ) (Entered: 07/12/2017)
2017-07-12		Set/Reset Deadlines: Joint Status Report due by 10/10/2017. (kt) (Entered: 07/12/2017)
2017-10-10	20	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF THE ARMY. (Drezner, Michael) (Entered: 10/10/2017)
2017-10-11		MINUTE ORDER: Upon consideration of the Joint Status Report 20 , the parties are hereby ORDERED to file a further joint status report on or before January 8, 2018. Signed by Judge Randolph D. Moss on 10/11/2017. (lcrdm1, ) (Entered: 10/11/2017)
2017-10-11		Set/Reset Deadlines: Joint Status Report due by 1/8/2018. (dot) (Entered: 10/11/2017)
2018-01-08	21	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF THE ARMY. (Drezner, Michael) (Entered: 01/08/2018)
2018-01-12		MINUTE ORDER: Upon consideration of the Joint Status Report 21 , the parties are hereby ORDERED to file a further joint status report on or before February 16, 2018, updating the Court as to what further action, if any, is necessary. Signed by Judge Randolph D. Moss on 1/12/2018. (lcrdm1, ) (Entered: 01/12/2018)
2018-01-12		Set/Reset Deadlines: Joint Status Report due by 2/16/2018. (kt) (Entered: 01/12/2018)
2018-02-16	22	Joint STATUS REPORT by CAUSE OF ACTION INSTITUTE. (Mulvey, Ryan) (Entered: 02/16/2018)
2018-02-20		MINUTE ORDER: Upon consideration of the Joint Status Report 22 , it is hereby ORDERED that (1) Defendant shall file its motion for summary judgment on or before April 6, 2018; (2) Plaintiff shall file its opposition and cross-motion for summary judgment on or before May 25, 2018; (3) Defendant shall file its reply and opposition to Plaintiff's cross-motion for summary judgment on or before June 25, 2018; and (4) Plaintiff shall file its cross-reply on or before July 25, 2018. Signed by Judge Randolph D. Moss on 2/20/2018. (lcrdm1, ) (Entered: 02/20/2018)
2018-02-20		Set/Reset Deadlines: Defendant's motion for summary judgment due on or before 4/6/2018; Plaintiff's opposition and cross-motion for summary judgment due on or before 5/25/2018; Defendant's reply and opposition to Plaintiff's cross-motion for summary judgment due on or before 6/25/2018; Plaintiff's cross-reply due on or before 7/25/2018. (kt) (Entered: 02/20/2018)
2018-04-02	23	Consent MOTION to Stay Briefing Schedule by UNITED STATES DEPARTMENT OF THE ARMY (Attachments: # 1 Text of Proposed Order)(Drezner, Michael) (Entered: 04/02/2018)
2018-04-02		MINUTE ORDER: Upon consideration of the Consent Motion to Stay Briefing Schedule 23 , it is hereby ORDERED that the motion is GRANTED. The briefing schedule previously entered on February 20, 2018, is hereby VACATED, and it is hereby ORDERED that the parties file a joint status report on or before April 20, 2018. Signed by Judge Randolph D. Moss on 4/2/2018. (lcrdm1, ) (Entered: 04/02/2018)
2018-04-03		Set/Reset Deadlines: Joint Status Report due by 4/20/2018. (kt) (Entered: 04/03/2018)
2018-04-19	24	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF THE ARMY. (Drezner, Michael) (Entered: 04/19/2018)
2018-04-19		MINUTE ORDER: Upon consideration of the Joint Status Report 24 , it is hereby ORDERED that: (1) Defendant make a final production of responsive, nonexempt records on or before May 21, 2018; (2) Defendant shall file its motion for summary judgment on or before June 8, 2018; (3) Plaintiff shall file its opposition and cross-motion for summary judgment on or before July 9, 2018; (4) Defendant shall file its reply and opposition to Plaintiff's cross-motion on or before August 10, 2018; (5) Plaintiff shall file its reply in support of its cross-motion on or before September 10, 2018. Signed by Judge Randolph D. Moss on 4/19/2018. (lcrdm1, ) (Entered: 04/19/2018)
2018-04-19		Set/Reset Deadlines: Defendant make a final production of responsive, nonexempt records on or before 5/21/2018; Defendant shall file its motion for summary judgment on or before 6/8/2018; Plaintiff shall file its opposition and cross-motion for summary judgment on or before 7/9/2018; Defendant shall file its reply and opposition to Plaintiff's cross-motion on or before 8/10/2018; Plaintiff shall file its reply in support of its cross-motion on or before 9/10/2018. (kt) (Entered: 04/19/2018)
2018-06-08	25	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF THE ARMY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration, # 4 Declaration, # 5 Text of Proposed Order)(Drezner, Michael) (Entered: 06/08/2018)
2018-07-09	26	Cross MOTION for Summary Judgment by CAUSE OF ACTION INSTITUTE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Memorandum in Support, # 4 Declaration, # 5 Text of Proposed Order)(Mulvey, Ryan) (Entered: 07/09/2018)
2018-07-09	27	Memorandum in opposition to re 25 MOTION for Summary Judgment filed by CAUSE OF ACTION INSTITUTE. (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Statement of Facts, # 4 Declaration, # 5 Text of Proposed Order)(Mulvey, Ryan) (Entered: 07/09/2018)
2018-08-10	28	REPLY to opposition to motion re 25 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF THE ARMY. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Drezner, Michael) (Entered: 08/10/2018)
2018-08-10	29	RESPONSE re 26 Cross MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF THE ARMY. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Drezner, Michael) (Entered: 08/10/2018)
2018-09-10	30	REPLY to opposition to motion re 26 Cross MOTION for Summary Judgment filed by CAUSE OF ACTION INSTITUTE. (Mulvey, Ryan) (Entered: 09/10/2018)
2018-10-05	31	NOTICE OF SUPPLEMENTAL AUTHORITY by CAUSE OF ACTION INSTITUTE (Attachments: # 1 Rosenberg v. Dept of Def., No. 17-00437 (D.D.C. Sept. 27, 2018))(Mulvey, Ryan) (Entered: 10/05/2018)
2018-10-11	32	RESPONSE re 31 to Plaintiff's Notice of Supplemental Authority filed by UNITED STATES DEPARTMENT OF THE ARMY. (Drezner, Michael) Modified to add link on 10/19/2018 (znmw). (Entered: 10/11/2018)
2019-07-29	33	NOTICE OF SUPPLEMENTAL AUTHORITY by CAUSE OF ACTION INSTITUTE (Attachments: # 1 Exhibit Nat. Res. Def. Council v. Envtl. Prot. Agency, No. 17-5928 (S.D.N.Y. July 25, 2019), # 2 Exhibit Judicial Watch, Inc. v. Dep't of Commerce, No. 17-1283 (D.D.C. Mar. 22, 2019))(Mulvey, Ryan) (Entered: 07/29/2019)
2019-09-29	34	MEMORANDUM OPINION AND ORDER: Upon consideration of Defendant's motion for summary judgment 25 and Plaintiff's cross-motion for summary judgment 26 , it is hereby ORDERED that Defendant's motion is GRANTED in part and DENIED in part and that Plaintiff's motion is DENIED. See document for details. Signed by Judge Randolph D. Moss on 09/29/19. (lcrdm3, ) (Entered: 09/29/2019)
2019-10-08		MINUTE ORDER: In light of the Court's memorandum opinion and order 34 , the parties are hereby ORDERED to file a joint status report proposing next steps for this proceeding on or before October 18, 2019. Signed by Judge Randolph D. Moss on 10/8/19. (lcrdm3) (Entered: 10/08/2019)
2019-10-08		Set/Reset Deadlines: Joint Status Report due by 10/18/2019. (kt) (Entered: 10/08/2019)
2019-10-17	35	Joint STATUS REPORT by CAUSE OF ACTION INSTITUTE. (Mulvey, Ryan) (Entered: 10/17/2019)
2019-10-18		MINUTE ORDER: In light of the parties' joint status report 35 , it is hereby ORDERED that the parties shall submit a further joint status report on or before November 18, 2019. Signed by Judge Randolph D. Moss on 10/18/19. (lcrdm3) (Entered: 10/18/2019)
2019-10-18		Set/Reset Deadlines: Joint Status Report due by 11/18/2019. (dot) (Entered: 10/18/2019)
2019-11-08	36	NOTICE OF WITHDRAWAL OF APPEARANCE as to CAUSE OF ACTION INSTITUTE. Attorney Julie A. Smith terminated. (Smith, Julie) (Entered: 11/08/2019)
2019-11-13	37	NOTICE of Change of Address by Lee A. Steven (Steven, Lee) (Entered: 11/13/2019)
2019-11-14	38	Joint STATUS REPORT by CAUSE OF ACTION INSTITUTE. (Mulvey, Ryan) (Entered: 11/14/2019)
2019-11-19		MINUTE ORDER: In light of the parties' joint status report 38 , it is hereby ORDERED that the parties shall submit a further joint status repot on or before January 6, 2020. Signed by Judge Randolph D. Moss on 11/19/19. (lcrdm3, ) (Entered: 11/19/2019)
2020-01-06	39	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF THE ARMY. (Drezner, Michael) (Entered: 01/06/2020)
2020-01-06		MINUTE ORDER: In light of the parties' joint status report 39 , it is hereby ORDERED that the parties shall file a further joint status report on or before January 31, 2020. Signed by Judge Randolph D. Moss on 1/6/20. (lcrdm3, ) (Entered: 01/06/2020)
2020-01-31	40	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF THE ARMY. (Drezner, Michael) (Entered: 01/31/2020)
2020-02-03		MINUTE ORDER: In light of the parties' joint status report 40 , it is hereby ORDERED that the parties shall file a further joint status report or notice of dismissal on or before February 28, 2020. Signed by Judge Randolph D. Moss on 2/3/20. (lcrdm3, ) (Entered: 02/03/2020)
2020-02-26	41	STIPULATION of Dismissal with Prejudice by CAUSE OF ACTION INSTITUTE. (Mulvey, Ryan) (Entered: 02/26/2020)
2020-02-26		MINUTE ORDER: In light of the parties' stipulation of dismissal 41 , it is hereby ORDERED that the case is DISMISSED with prejudice. The Clerk of Court is directed to terminate the case. Signed by Judge Randolph D. Moss on 2/26/20. (lcrdm3, ) (Entered: 02/26/2020)
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