Gawker Media, LLC v. Dep't of State, No. 15-0363, 2017 WL 3049401 (D.D.C. July 17, 2017) (Jackson, J.)

Gawker Media, LLC v. Dep't of State, No. 15-0363, 2017 WL 3049401 (D.D.C. July 17, 2017) (Jackson, J.)

Re:  Request for e-mail communications between former Deputy Assistant Secretary of State and list of 34 media outlets

Disposition:  Denying plaintiffs' cross-motion for discovery

• Procedural Requirements, Searching for Responsive Records:  "[The] Court rejects Plaintiffs' contention that the Court cannot adequately assess the extent to which State successfully discharged its FOIA search obligations . . . without further details regarding the nature of [the former Deputy Assistant Secretary of State's] threshold search of his personal files."  "To the contrary, the Court concludes that the FOIA imposes no obligation on an agency to solicit or produce documents held solely by a former agency official, at least in the absence of evidence indicating that the agency or its former employee maintained the documents outside the agency's custody in an attempt to thwart FOIA obligations."  Here, the court finds that "[plaintiff's] have also been unable to identify anything in the record here that even remotely suggests bad faith – i.e., that State was attempting to thwart its FOIA obligations by encouraging its employees to use personal email accounts, or that [the former Deputy Assistant Secretary of State] was engaged in a deliberate effort to prevent the requested documents from being produced."
   
• Litigation Considerations, Discovery:  "Even assuming, arguendo, that State had an obligation under the FOIA to retrieve and search records outside of its custody and control in order to fulfill its duty to respond to Plaintiffs' document request, [the] Court finds that Plaintiffs' request for information about the nature and scope of [the former Deputy Assistant Secretary of State's] record search would still be far out of bounds."  The court explains that "an agency's threshold determination regarding which records to retain in its files is entirely distinct from the agency's subsequent search of maintained records pursuant to the FOIA – and these two duties should not be conflated."  "It is clear to [the] Court that when [the former Deputy Assistant Secretary of State] searched his private email account for federal records, he was operating in the realm of making the same type of initial retention decisions that are, as a matter of State Department policy, always delegated to individual employees and rarely, if ever, detailed in a FOIA affidavit."  "Plaintiffs may reasonably be concerned that [the former Deputy Assistant Secretary of State] should have undertaken his retention responsibilities prior to his departure from State, but the fact that he failed to search his private email account for federal records before leaving the government does not change the fundamental nature of his task, nor does it alter the reality that State employees are not ordinarily required to provide an account of their retention decisions in a FOIA affidavit."