Competitive Enter. Inst. v. OSTP, No. 14-765, 2017 WL 978971 (D.D.C. Mar. 13, 2017) (Kessler, J.)

Competitive Enter. Inst. v. OSTP, No. 14-765, 2017 WL 978971 (D.D.C. Mar. 13, 2017) (Kessler, J.)

Re: Request for certain emails sent to or from nonofficial email account maintained by director of OSTP

Disposition: Granting defendant's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records: "The Court finds that the Government need not produce [the director's] work-related Woods Hole emails because its search was reasonably calculated to uncover duplicates of all of the records located in the Woods Hole account." First, the court notes that "[t]he Court of Appeals explicitly did not reach the question of whether 'no document found among the [nonofficial] email falls within the definition of "agency records."'" "However, [the] Court [finds that it] need not determine if the Woods Hole emails are agency records because the Government's arguments regarding duplicate records and its reasonable search are determinative." Second, the court agrees with "[t]he Government['s] conten[tion] that it need not produce [the director's] OSTP-related Woods Hole emails because they are duplicates of emails that exist on OSTP servers." The court finds that "[t]he Government has established, and [plaintiff] has failed to convincingly challenge, that [the director] complied with agency policy requiring him to forward all work-related emails from his private email account to his OSTP email account." The court relates that "[t]he presumption that [the director] complied with OSTP policy is further strengthened by evidence submitted by the Government showing that [the director] complied with the policy[.]" The court finds that "'a FOIA plaintiff [must] rebut agency affidavits with something more than pure speculation,' and [plaintiff] has failed to do so." The court then concludes by finding that "FOIA does not require agencies to produce duplicate records." Third, the court finds that "[p]laintiff's challenge to the sufficiency of the Government's search is limited to its complaint that the Government did not search [the director's] Wood Hole account." "However, as described above, this Court has no reason to doubt that [the director] complied with OSTP's policy of forwarding all work-related emails from his private Woods Hole email account to his OSTP account." "Thus, 'agency records responsive to a FOIA request would unlikely be located solely in [the director's] personal email account[ ], rendering a search of th[at] account [ ] unnecessary.'"