Democracy Forward Found. v. U.S. Dep't of Com., No. 18-0246, 2020 WL 4219610 (D.D.C. July 22, 2020) (Friedrich, J.)

Democracy Forward Found. v. U.S. Dep't of Com., No. 18-0246, 2020 WL 4219610 (D.D.C. July 22, 2020) (Friedrich, J.)

Re:  Request for communications made or received in connection with government business using any nongovernmental email account

Disposition:  Denying defendant's motion for summary judgment; granting plaintiff's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  The court holds that "Commerce's search was not 'reasonably calculated' to uncover all relevant documents."  The court relates that "[g]overnment officials are 'presumed to have properly discharged the duty to forward official business communications from a personal email account to an official email account.'"  However, the court notes that "Commerce acknowledges that the Secretary did not comply with 44 U.S.C. § 2911(a), the federal recordkeeping law, but the parties dispute how often this occurred . . . ."  "Both parties agree that the presumption of compliance does not apply . . . because even evidence of a single agency record 'on a personal account is sufficient to raise a question of compliance with recordkeeping obligations, rendering the presumption of compliance inapplicable' . . . ."  "Even so, Commerce argues that it need not search the Secretary's personal email accounts because any such search would yield duplicative records."  "But both declarants' descriptions of the Secretary's personal email practices are based solely on the content of those emails Commerce produced as a result of its searches of official email accounts."  "And when describing the Secretary's email practices, the declarants focus almost exclusively on those emails the Secretary sent."  "Missing from these declarations is any representation that the Secretary routinely copied or forwarded all Commerce-related emails that he sent or received through his personal email accounts, such that a search of his personal email account would be duplicative of the official email searches Commerce previously conducted."  "And indeed, the record suggests otherwise."  The court holds that, "[w]here, as here, a government official has used a personal email account for official business, and has not proven – either through a sworn declaration or other evidence – that the official timely and consistently copied or forwarded those emails to the official's government email account, courts have found it reasonable to probe whether the personal email account contains agency records responsive to a FOIA request."