Energy Pol’y Advocs. v. U.S. Dep’t of the Interior, No. 21-1411, 2023 WL 2585761 (D.D.C. Mar. 21, 2023) (Bates, J.)

Energy Pol’y Advocs. v. U.S. Dep’t of the Interior, No. 21-1411, 2023 WL 2585761 (D.D.C. Mar. 21, 2023) (Bates, J.)

Re:  Requests for certain calendar entries and email communication

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment

• Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records:  Regarding plaintiff’s request for certain Outlook documents, the court relates that “Interior ‘searched [the custodian’s] Microsoft Outlook and Calendar for all calendar and Microsoft Teams invitations.’”  The court finds that “[t]his search ‘would return any and all calendar requests or Microsoft Teams meeting invitations.’”  “Thus, the Court will grant summary judgment to FOIA on the adequacy of this search.”  Regarding the second request, which sought certain electronic communications, the court relates that “[plaintiff] takes issue with Interior’s decision not to search Teams and Zoom chats as part of its Correspondence Request search.”  “On March 3, 2023, the Court ordered Interior to file a notice informing the Court whether it had searched Microsoft Teams chats in response to the Correspondence Request.”  “Interior responded on March 10, stating that it was not sure whether Teams chats had been included in the initial search, but that it had searched Teams chats following the Court’s March 3 Order and found no responsive records.”  Regarding the Zoom chats, the court relates that “Interior argues that Zoom chats are not ‘agency records’ – and thus not covered by FOIA . . . .”  “Interior notes that it ‘does not retain control or possession of Zoom files . . . and as such has no ability to search for potential records stored in those systems.’”  The court recognizes “a commonsense understanding of the Zoom platform – chats are not saved by the sender or user in the same way as is true for other platforms, like text messages or Teams.”  The court relates that “[plaintiff] accordingly argues that if Interior indeed ‘[n]ever captured the records,’ then, by failing to retain them, it created an impermissible ‘loophole to FOIA’ by keeping those records away from the public.”  “But [the court finds that plaintiff] cites no authority for the proposition that Interior was obligated to retain custody over these specific communications.”  “Instead, the weight of authority counsels that the government is under no obligation to capture and obtain control over every written communication by its employees.”  “Courts – including the Supreme Court – have frequently held that documents that arguably could be captured and stored, but were not, are not ‘agency records’ for FOIA purposes.”  “Interior did not control chats sent over the Zoom platform at the time of the FOIA request.”  “There is no genuine dispute as to that.”  “Because Interior had no FOIA obligation to obtain and store such chats, declining to search for and produce them was not improper.”
   
• Exemption 6:  The court relates that “Interior withheld (1) ‘the personal e-mail address of Department of Interior employees where they had also included their Department of the Interior e-mail address on the same email chain or meeting invitation,’ . . . (2) ‘the government email addresses for White House and Executive Office of the President employees, Department of Defense employees, and Department of Homeland Security employees,’ . . . and (3) [one] cell phone number . . . .”  “For email redactions, if after the redaction the reader could not tell who the redacted email address corresponded to, Interior ‘overlaid the redaction with the name of the individual.’”  “Thus, the records show who was involved but do not show contact information for everyone.”  “Because any public interest in publishing the relevant email addresses and phone numbers – assuming such an interest even exists – does not outweigh the privacy interest in preventing unwanted attention and harassment, the Court will grant Interior summary judgment on its Exemption 6 withholdings.”  The court finds that “[p]hone numbers, email addresses, and other contact information may qualify as ‘personnel . . . files’ implicating personal privacy interests.”  “EPA first argues that disclosure of the phone numbers would ‘allow the public to learn if senior government appointees are using, e.g., a communications app such as “Signal” . . . in lieu of their agency-provided cell phone.’”  “The only challenged redacted phone number appears to be [the one] cell phone number.”  “EPA does not explain how knowing [this] cell phone number would give the public any information about anyone’s use of Signal or other messenger apps.”  “And [the individual with whom the phone number is associated] certainly has an interest in ‘preventing at least some unsolicited, unwanted calls from reaching [him] at [his] home’ – a foreseeable effect of publicizing his cell phone number.”  “As for personal email addresses, EPA suggests that knowing whether government employees use their personal email may inform the public whether they ‘copy [their] office as legally required[,] and the public/congressional oversight/targets of SEC actions may pursue that.’”  “Whether an official uses his or her personal email in that manner may be a matter of public interest – but revealing the personal email address itself does not shed light on that practice.”  “The redacted documents are more than sufficient to determine whether an employee copies their personal email address – such a practice is indicated by Interior’s redaction [containing an indicating label] over an Interior employee’s email.”  “Knowing what the personal email address is adds no relevant information.”  “And on the other side of the scale, there is a strong privacy interest in keeping federal employees’ personal email addresses private.”  “Interior also withheld other agencies’ employees’ work emails.”  “Some courts have recognized that employees may have some privacy interest in their work contact information.”  “And even if that interest is somewhat small, ‘something, even a modest privacy interest, outweighs nothing every time.’”  “EPA does not offer a plausible public interest served by disclosure of White House and other agency employees’ work emails – it merely states that they are ‘inherently work-related’ without explaining why they pertain to a matter of public interest.”
   
• Exemption 5, Deliberative Process Privilege:  The court holds that “Interior has not met this burden for any withheld record.”  “Interior gives the same conclusory explanation in the Vaughn index for each record withheld pursuant to Exemption 5 . . . .”  The court finds that “[t]he repeated generic explanations in its Vaughn index (which are not improved by Interior’s declaration) are insufficient to demonstrate the ‘character of the decision, the deliberative process involved, and the role played by the documents in the course of that process.’”
   
• Exemption 5, Other Privileges:  The court relates that “[e]ach record withheld pursuant to the deliberative process privilege discussed above was also withheld pursuant to the presidential communications privilege.”  “Interior’s justification for its withholdings pursuant to the presidential communications privilege suffers from the same flaw as its justification for invoking the deliberative process privilege – the Vaughn index lists the same boilerplate explanation for each entry . . . .”  “[The] generic explanation entirely fails to explain why the withheld documents fall under the presidential communications privilege.”  “Interior identifies a list of individuals it asserts are ‘an immediate White House advisor’s staff’ but neither demonstrates whether they ‘have broad and significant responsibility for investigating and formulating the advice to be given the President’ nor explains how the withheld documents relate to any such specific responsibility.”  “Most concerningly, there are documents that are not even connected to one of the White House staffers that Interior identifies, which is plainly insufficient.”