Democracy Forward Found. v. GSA, No. 18-01037, 2019 WL 2775621 (D.D.C. July 2, 2019) (Mehta, J.)

Democracy Forward Found. v. GSA, No. 18-01037, 2019 WL 2775621 (D.D.C. July 2, 2019) (Mehta, J.)

Re:  Request for certain Trump transition team electronic communications

Disposition:  granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Procedural Requirements, "Agency Records":  Analyzing the issue under the general principles of FOIA, the court holds that it is "evident that the Trump transition team's email communications are not 'agency records.'"  "The GSA did not create the records."  "Nor did it review, search or consult them."  "It did not use them in any way."  "At most, GSA 'might' have been exposed to the content of communications but only incident to its monitoring of the transition team's networks to ensure their operation and security."  "In short, there is nothing about the documents' contents that would shed any light about GSA's operations or decision-making."  "Therefore, the transition team's emails are not 'agency records' subject to disclosure under FOIA."  "Although the court has found the Burka factors to be a poor fit in this case, the court nevertheless considers them in the interest of completeness."  "Here, each factor weighs against a finding of agency control over the transition team records."  "Looking at the first factor, [the court finds that] the facts do not establish that the Trump transition team intended to relinquish control over its email to GSA."  Regarding the second factor, the court finds that "GSA did not use or dispose of the records 'as it s[aw] fit,' but only preserved and transmitted them at the request of law enforcement."  Regarding the third and fourth factors, the court finds that "[t]here is no evidence that GSA 'managed' the records on the FBI's behalf."  "GSA simply copied the records in its possession and turned them over as requested by the FBI."  "Nothing more."