Cause of Action Inst. v. Dep't of the Army, No. 16-1020, 2019 U.S. Dist. LEXIS 167506 (D.D.C. Sept. 29, 2019) (Moss, J.)

Cause of Action Inst. v. Dep't of the Army, No. 16-1020, 2019 U.S. Dist. LEXIS 167506 (D.D.C. Sept. 29, 2019) (Moss, J.)

Re:  Request for "'all records of communications with any employee of the Executive Office of the President . . ., including but not limited to the Office of the White House Counsel . . ., concerning telephone and/or video conferences hosted and/or arranged by the military'"

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Procedural Requirements, Searching for Agency Records:  The court finds that "the Army could have – and should have – construed Plaintiff's request to include emails sent from the [at issue email] account confirming telephone and video conferences."  The court relates that "Plaintiff was seeking 'any e-mail requesting that a conference line be opened, as well as any subsequent confirmation e-mail or related correspondence.'"  The court finds that "[t]hat clarification is best understood to bring the emails at issue within the scope of the FOIA request."  "The . . . emails were communications with EOP employees that confirmed telephone and/or video conferences."  "Indeed, the subject line of each email indicated that the email was a 'Confirmation Notice – Audio Conference,' and the body of each email listed the conference leader, the conference requester, the start date and time, and end date and time, and the number of participants."
   
• Procedural Requirements, Agency Records:  "[T]he 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."  Regarding three of the agency records control factors, the court finds that:  "there is 'some uncertainty as to which entity "created"' the records and thus whose intent matters for purposes of this inquiry;" defendant's explanation "leaves unanswered the question whether the EOP took any 'action' providing the Army personnel with '[a] username and password,' and . . . the declarant merely asserts that, 'to the best of [her] knowledge,' Army personnel only had access to the 'EOP data . . . during an initial set up period,' without explaining what the declarant did to inform her conclusion;" and, regarding the integration into the agency's records systems, "[m]ore than a sentence is necessary to explain how the server operated."  However, the court does find that "at least as far as the current record reflects, the Army did not use the records in the performance of any of its duties."  Overall, "the Court is persuaded by the Army's legal argument but agrees with Plaintiff that the evidence the Army has offered to date is insufficient to meet the Army's burden."
   
• Exemption 6:  Regarding the foreseeable harm standard, the court finds that "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 'request[s] 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."
  
  Substantively, the court finds that "[l]ow-level Department of Defense and Army personnel involved in EOP scheduling have at least some privacy interest in their names."  "The public interest in the names of the employees at issue is not so easy to discern."  The court explains that "it is far from clear why the public would have any interest in which relatively low-ranking Army and DOD personnel are responsible for setting up [the at issue] teleconferences, nor does Plaintiff make any plausible argument in this regard."  "Because 'something, even a modest privacy interest, outweighs nothing every time,' . . . the Court concludes that the privacy interest of the employees outweighs any public interest in disclosure and consequently awards summary judgment in favor of the Army with respect to its redactions under Exemption 6."