Cause of Action Inst. v. NOAA, No. 19-1927, 2023 WL 3619345 (D.D.C. May 24, 2023) (Chutkan, J.)

Cause of Action Inst. v. NOAA, No. 19-1927, 2023 WL 3619345 (D.D.C. May 24, 2023) (Chutkan, J.)

Re:  Request for records concerning the New England Industry-Funded Monitoring Omnibus Amendment which “‘establishe[d] a process to standardize future industry-funded monitoring programs . . . and establishe[d] industry-funded monitoring in the Atlantic herring fishery’” 

Disposition:  Granting plaintiff’s motion for summary judgment; denying defendant’s motion for summary judgment
 

• Procedural Requirements, "Agency Records" & Searching for Responsive Records “[T]he court concludes that the requested materials at issue are agency records for purposes of FOIA and that Defendant’s search [, which did not account for some material which defendant considered to not be agency records,] was therefore inadequate.” 
  
  The court relates that “[t]his case involves the New England Fishery Management Council (‘NE Council’), which has jurisdiction over the Atlantic Ocean seaward of the coastal waters of Maine, New Hampshire, Massachusetts, Connecticut, and Rhode Island.”  “NE Council members periodically convene official, public meetings to deliberate and propose fishery management plans or amendments.”  “They also use email and other forms of electronic communication to discuss substantive matters related to that official business.”  “The NE Council provides official email accounts to its administrative employees, but not to its council members (whether voting or non-voting).”  The NE Council “comprises voting members, nonvoting members, and administrative employees.”  “Voting members include each constituent state’s head of fishery management, the Service’s regional director, and individuals appointed because of their knowledge or experience in fishery management.”  “Appointed voting members ‘who are not employed by the Federal Government or any State or local government’ receive monetary compensation for time ‘engaged in the actual performance of duties for [their] Council.’”  “Non-voting members include the regional or area director of the U.S. Fish and Wildlife Service, the Commander of the Coast Guard for the relevant geographical area, the Executive Director of the Marine Fisheries Commission for the relevant geographical area, and a representative from the Department of State.”  “Both voting and non-voting members are entitled to reimbursement ‘for actual expenses incurred’ in performing their official duties.”  “Administrative employees are staff, including an executive director, who are appointed as necessary to assist the Council in performing its functions.”
  
  The court relates that “Defendant . . . limit[ed] its search in accordance with the definition of agency records in [a policy “[a]nnex . . . intended to ‘identif[y] what Regional Fishery Management Council . . .  member documents are considered agency records and describe[ ] their handling’ [(“the Annex”)]] —that is, it did not search for internal correspondence in NE Council members’ personal accounts unless that correspondence was ‘specifically discussed or disseminated at a Council meeting’ or otherwise ‘reflect[ed] official Council business.’”  “The sole question for the court is whether that choice rendered Defendant’s search for responsive records inadequate.”  “[T]he court concludes that the materials requested – NE Council members’ internal correspondence ‘concerning the final approval of the Omnibus Amendment and/or the December 18, 2018 letter from Administrator Pentony[]’ . . . – qualify as agency records.
  
  First, the court finds that “Defendant created the requested materials at issue here.”  “It is undisputed that the NE Council is an ‘agency’ housed within Defendant for purposes of FOIA.”  “Plaintiff seeks correspondence drafted by and to NE Council members and staff who have been appointed as officials of that agency and who are to some degree compensated for their work.”  “And the correspondence was drafted to discuss ‘the final approval of the Omnibus Amendment and/or the December 18, 2018 letter from Administrator Pentony[]’ . . . in the course of carrying out their agency’s statutory duty to ‘prepare and submit to the Secretary [of Commerce] . . . amendments to [the fishery management] plan that are necessary from time to time[]’ . . . .”  “Defendants do not meaningfully dispute that Council members have relied upon such correspondence ‘frequently’ in the past.”  “Therefore, even if the NE Council’s voting members are not full-time employees, they were acting ‘on behalf of’ the agency in drafting any such correspondence.”  “That is enough to attribute the requested materials’ creation to Defendant.”  Responding to defendant’s argument “that NE Council members are not ‘employees’ because they use personal email accounts and are generally not financially compensated for the type of correspondence plaintiff has requested,” the court finds that “if that were the law, agencies could easily evade their FOIA obligations by removing government email accounts or manipulating compensation schemes, resulting in an end run around the statute’s ‘basic purpose . . . to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.’
  
  Second, the court finds that “Defendant fails to meet its burden of showing a lack of control.”  Considering the first control factor, the court finds that “[i]t is undisputed that Defendant intends to retain control over at least some of the NE Council members’ emails; otherwise, [defendant] would not have directed the members to produce them.”  “As a result, the Annex cannot demonstrate Defendant’s intent to relinquish control over documents except those beyond the Annex’s definition of ‘agency records.’”  “But that definition relies principally and mistakenly on the meaning of ‘agency records’ for purposes of the Federal Records Act rather than FOIA . . . and is therefore a less reliable guide to the agency’s intent with respect to its FOIA obligations.”  “As a result, this factor does little to establish Defendant’s lack of control over the requested materials.”  Regarding the second factor, the court finds that “the fact that Defendant generally ‘has not asserted control over voting member[s’] emails that exist outside of the Council’s record keeping system,’ . . . does not mean Defendant lacks the ability to do so.”  “As already discussed, [defendant’s] email [regarding this search] shows that Defendant requires NE Council members to produce certain kinds of correspondence from their personal email accounts, and nothing prevents Defendant from requiring other kinds of correspondence be kept for future FOIA requests.”  “Despite it not having done so here, therefore, it appears that Defendant retains an ability to assert control over the requested materials.”  Regarding the third factor, the court finds that “Plaintiff requests documents that were actually written, read, and relied upon by the NE Council members.”  “Defendant objects that the agencies themselves, ‘NOAA and NEFMC[,] cannot have read or relied upon emails that lie outside of the Council’s record-keeping system.’”  “But that objection mistakes the legal standard – what matters is ‘the extent to which agency personnel have read or relied upon the document[s].’”  “Defendant’s assertion that ‘what a voting member says through email is of no relevance to the transaction of Council business,’ . . . is flatly contradicted by undisputed testimony that NE Council members regularly discuss, inform, and arrange for the formal decision-making processes at official meetings via private electronic correspondence.”  Regarding the final factor, the court finds that while “[t]he Annex did not require the requested materials to be kept in Defendant’s record keeping system[,]” NE Council members, acting on Defendant’s behalf and in preparation for making decisions, may have created and maintained the kind of correspondence that Plaintiff has requested.”  “And if an agency could ‘deprive the citizens of their right to know what [it] is up to by the simple expedient of maintaining [internal] emails on an account in another domain, that purpose [of FOIA] is hardly served.’”