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Ctr. for Biological Diversity v. Bureau of Land Mgmt., No. 17-1208, 2021 WL 918204 (D.D.C. Mar. 9, 2021) (Howell, J.)


Ctr. for Biological Diversity v. Bureau of Land Mgmt., No. 17-1208, 2021 WL 918204 (D.D.C. Mar. 9, 2021) (Howell, J.)

Re:  Six-part request for records concerning order issued by Secretary of the Interior concerning Federal Coal Program

Disposition:  Denying plaintiff's motion for summary judgment; denying defendants' motion for summary judgment

  • Litigation Considerations, Adequacy of Search:  The court holds that "[g]enuine issues exist as to the adequacy of DOI's search for responsive records that preclude summary judgment for either party."  "On remand, DOI must either supplement its declarations or undertake additional searches for responsive records."  First, the court finds that, "[a]s to the missing drafts of Secretarial Order No. 3348, plaintiff points to the fact that the Order was signed by Secretary Zinke on March 29, 2017, which fact alone gives ample cause to believe that at the time of DOI's initial search later that year, at least one draft should have been among the agency's records."  "Plaintiff correctly notes that DOI is required, under the Federal Records Act ('FRA'), 44 U.S.C. §§ 3101–3107, and its implementing regulations, to '[d]ocument the formulation and execution of basic policies and decisions and the taking of necessary actions, including all substantive decisions and commitments reached orally (person-to-person, by telecommunications, or in conference) or electronically' . . . ."  "Thus, affording DOI the 'presumption of regularity' to which it claims to be entitled, . . . that agency employees comply with applicable law, plaintiff has met its burden to show that drafts or, at a minimum, notes or other documents reflecting the formulation of, Secretarial Order No. 3348 must have existed at the time of the search."  "Even without the backdrop of the FRA, plaintiff's belief that drafts of the Order may exist carries more than just speculative weight."  "To accept the premise that no such documents exist would lead to the conclusion that Secretarial Order No. 3348, a Cabinet-level directive directly responsive to Executive Order 13783, signed by Secretary Zinke the day after Executive Order 13783 was issued, was somehow developed in the intervening twenty-four-hour period without any prior planning, revisions, review, or discussions within DOI or between DOI and the White House."  "That conclusion defies credulity."  "Similarly incredible, especially in the absence of drafts of Secretarial Order No. 3348, is the suggestion, raised by the lack of what plaintiff characterizes as 'meaningful' Secretary-level communications located by the agency, . . . that Secretary Zinke himself neither reviewed even one draft of, nor engaged in any substantive communications about, the order he was poised to sign."  "Plaintiff's position that this deeply troubling conclusion is likely incorrect, and that records reflecting both drafts of the Order and communications with Secretary Zinke about the Order therefore likely exist, is not speculative, in light of DOI's obligations under the FRA, to preserve records, and under the Administrative Procedure Act, to refrain from adopting policies that are 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' or enacted 'without observance of procedure required by law' . . . ."  "In order to fulfill these duties, DOI would necessarily have had to engage in some deliberative, recorded process before adopting Secretarial Order No. 3348."  "Of course, 'the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.'"  "Here, however, the combination of the missing drafts and Secretary-level communications with notable gaps in DOI’s declarations to explain those holes in the record 'give[s] rise to "material doubt" about the adequacy of the agency's affidavits.'"

    Additionally, the court finds that defendant "does not describe how those custodians undertook the search within their files."  "In addition, the agency provides no information as to which files individual custodians were directed to search and, as plaintiff observes, does not indicate whether the definition of 'files' provided to custodians included the 'text messages, memoranda, meeting minutes, visitor logs, [and] voicemails' specifically sought by the FOIA Request."  "As to search terms, DOI states that custodians were instructed to 'base their search on the subject matter of Secretarial Order No. 3338,' . . . but this vague statement does not provide sufficient information as to the exact search terms used by custodians in carrying out the search, an omission that is of particular concern with respect to custodians’ search of electronic records."  "Nor does the declaration provide a clear idea of how custodians went about retrieving and searching their electronic files."

    Regarding plaintiff's request that defendant search personal communication methods, the court finds that "DOI in fact searched former Secretary Zinke's personal email account, noting that he was known to use his personal email to conduct agency business."  "As to the other types of Secretary Zinke's personal communications that plaintiff contends should be searched[, specifically "'texts, and other forms of record communications'"], plaintiff does not point to any specific facts in the record or countervailing evidence indicating that Secretary Zinke used these personal platforms to carry out agency business."

    Regarding the search of government phones, the court relates that, "of Zinke's three government cell phones, DOI represents that the International Phone was not searched because the data is allegedly irretrievably lost; makes no statement as to whether the Replacement Phone data was searched for responsive records but nonetheless declares that the Replacement Phone did not contain any text messages at all from the month during which Secretary Zinke used it; and claims that the agency has no means of accessing the Original Phone data – data stored on an agency-owned device – without a passcode."  "DOI's declarations are silent as to whether the agency attempted to search the phone data, or any other related records, held by OIG and what efforts, if any, it made to retrieve the data from the Original Phone in the absence of a passcode, including whether it attempted to confirm the passcode with Secretary Zinke."  Therefore, the court finds that "the agency's description of its search of Secretary Zinke's government devices gives rise to 'positive indications of overlooked materials' . . . ."  "In cases involving electronic records that the government claims have been destroyed or otherwise rendered inaccessible, the D.C. Circuit has required that agencies 'inform the court and plaintiffs whether backup tapes of any potential relevance exist' and 'whether there is any practical obstacle to searching them.'"  "This requirement is satisfied by 'an affidavit from an information-technology professional . . . that describes the . . . backup system potentially containing' responsive records and 'describes any practical obstacles to searching that system.'"  "DOI's declarations fail to provide this information . . . ."

    Regarding search of transition team records, the court relates that "[a]s DOI correctly notes, and plaintiff concedes, . . . [t]he law in this Circuit is well-settled that FOIA does not extend to documents created or held by a President's Transition Team,' . . . as a completely separate entity from any government agency, except to the extent that such documents independently satisfy the requirements to qualify as an 'agency record' . . . ."  "[P]laintiff points to the Trump Transition's practice of forming and deploying agency 'landing teams,' groups tasked with 'gather[ing] information about their assigned agency between the election and the inauguration to inform the incoming administration and help them prioritize the issues where attention is most needed.'"  "Separate from the landing teams, after President Trump's inauguration, his Administration followed the practice, common to new administrations, of appointing individuals 'into temporary agency positions under special hiring authorities to assist the Transition Team.'"  "Individuals hired under these authorities 'are federal agency employees' serving as temporary political appointees in the early days of a new administration."  "The Trump Transition Team appointed 536 such individuals, known as the 'beachhead team,' to take up positions at various agencies 'as of Day One' of the Trump Administration."  The court finds that "[t]hough certain individuals may serve both as landing team members and temporary political appointees for a new administration, the two groups are distinct."  "Landing team members who are not designated as temporary political appointees remain part of the Transition Team and do not become agency employees."  "Likewise, temporary political appointees installed by a new administration at a particular agency are agency employees during their tenure, but are not necessarily part of the landing team."  "Taking as true these third-party characterizations of the landing team and the beachhead team, the records of the beachhead team's temporary political appointees, who serve as agency employees, are of course subject to FOIA, but the records of the landing team, whose members are affiliated with the Transition Team but are not agency employees, are not 'agency records' unless they are 'created' or 'obtained' by the agency."  "This logic is supported by the Transition Act, which specifies that employees of a presidential Transition Team 'shall not be held or considered to be employees of the Federal Government.'"  "The agency must, however, either clarify in its declarations the extent to which its searches to date encompassed and identified records consisting of correspondence between DOI employees and the Trump Transition Team or expand its search to include these records."
Court Decision Topic(s)
District Court opinions
Litigation Considerations, Adequacy of Search
Updated March 31, 2021