Indiana v. Biden, No. 22-00430, 2023 WL 348230 (S.D. Ind. Jan. 20, 2023) (Magnus-Stinson, J.)

Indiana v. Biden, No. 22-00430, 2023 WL 348230 (S.D. Ind. Jan. 20, 2023) (Magnus-Stinson, J.)

Re:  Request from several states for records concerning or underlying Memorandum issued by Attorney General Garland dated October 4, 2021, regarding alleged threats made to school board members throughout United States

Disposition:  Granting defendants’ motion to dismiss

• Procedural Requirements, Entities Subject to the FOIA:  First, the court holds that “President Biden, Attorney General Garland, and Secretary Cardona are entitled to dismissal of the FOIA claims against them.”  “[The] Court is persuaded, based on FOIA’s clear language limiting its reach to agencies and the myriad case law cited by the Defendants holding that a FOIA cause of action does not exist against an individual, whether named in an official capacity or not, that the Plaintiffs’ Complaint fails to state a claim against the individual defendants on which relief may be granted under FOIA.”  The court relates that “Plaintiff States assert instead that dismissal of the individual defendants is ‘premature’ because their FOIA request was broad enough to ‘apply to individuals . . . within the White House not exempt from FOIA.’”  The court finds that “[t]hat assertion is a non-response; directing a FOIA request to an individual or entity that is not an agency subject to FOIA cannot create a viable claim against an individual under FOIA.”  “[I]t has long been established that (1) only agencies are subject to FOIA and (2) with respect to the Executive branch, the President’s staff and advisors are not FOIA agencies, including groups or units ‘whose sole function is to advise and assist the President.’”  The court relates that “Plaintiff States also assert that FOIA imposes record keeping requirements and thus the individual defendants are properly named with respect to any relief based on FOIA’s record keeping requirements.”  “The Plaintiffs do not, however, cite to any provision within FOIA that imposes any record keeping requirements, let alone cite any FOIA provision that imposes any such obligation on or creates relief against an individual.”  The court finds that “an agency’s possession or control of a record is a ‘prerequisite to triggering any duties under the FOIA,’ . . . and FOIA ‘does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.’”
  
  Second, “[t]he Court is satisfied, based on the Defendants’ showing and the lack of contrary information from the Plaintiff States, that the Domestic Policy Council is part of the ‘Office of the President,’ does not possess substantial independent authority vis-à-vis the President, and is therefore not an agency under FOIA.”  The court relates that “Defendants contend that the Domestic Policy Council is not a FOIA agency because ‘it is a component within the White House Office that advises on and coordinates the President’s domestic policy agenda,’ citing to various statements from government websites describing the Council as one made up of policy staff within the White House Office.”  “They also rely on the contents of the Executive Order which created the Domestic Policy Council in 1993, . . . information routinely accepted as particularly persuasive about an entity’s status as a FOIA agency or not.”
  
  Third, the court finds that “[w]ith respect to the EOP as a whole, the Court concludes that it is not a FOIA agency from which records are property requested and thus not subject to suit.”  The court relates that “[a]part from naming the Domestic Policy Council as an entity from which records were being sought, the Plaintiff States’ FOIA request does not seek records from any other specific EOP entity or group.”  The court finds that “[t]he definition of ‘agency’ in FOIA is reasonably read to require a request for records to be made specifically to an entity, group, or unit within the EOP – and not to the EOP as some broad entity that includes all myriad groups and units within its entire realm.”  “A FOIA agency is not simply the entire executive branch itself or the EOP itself.”  “Moreover, even if one did not find the statutory language clear that only a particular department or other establishment within the broader executive branch including the EOP can be an agency, applicable regulations are clear that only a particular unit within the EOP is a proper entity to which a FOIA request for its documents can be made.”  “[T]he inability – or decision not – to direct one’s FOIA request to an executive agency or group(s) from which records are sought is not an excuse from compliance grounded in any statute, regulation, case law, or any other authority.”  “EOP is therefore entitled to dismissal under Rule 12(b)(6) because the Plaintiff States have not stated a claim upon which relief under FOIA may be granted against it.”
   
• Litigation Considerations, Standing:  The court holds that “Plaintiffs’ response/objection to the motion is signed by only a deputy attorney general for the State of Indiana, who states in a footnote that ‘Indiana, by its counsel, is submitting a combined response on behalf of all Plaintiff States.’”  “But Indiana’s counsel has not entered an appearance for any of the other States, and no counsel who has appeared for any of the other States signed the response.”  “Because, as addressed below, the Court finds that the Defendants’ arguments are well taken and the motion to dismiss should be granted, the Court chooses not to summarily grant the motion against the Plaintiff States other than Indiana.”  “Instead, it dismisses their claims on the merits for the same reasons it dismisses Indiana’s claims against the EOP and the individual defendants.”
  
  “The Court also notes here that while the Complaint seeks relief by the Plaintiff States to enforce a FOIA request described in the October 26, 2021 letter, . . . that letter is not signed or submitted by some of the Plaintiffs, namely, the States of Louisiana, Ohio, Oklahoma, and Utah.  (Three States whose respective attorney general signed the October 26 letter are not Plaintiffs:  Alabama, Alaska, and South Dakota.)”  “It is not clear to the Court why the States that are not signatories to the October 26 letter are Plaintiffs – perhaps there was an addendum to the October 26 letter that is not in the record or the Court has otherwise overlooked an explanation in the record – but the Defendants have not raised the issue.”  “Because this case is proceeding against the DOJ and the DOE and because the Court has an obligation to inquire about, and assure that it has, subject matter jurisdiction (here, whether any Plaintiff may lack standing because it never made the FOIA request upon which the lawsuit rests), the Court requires the States of Louisiana, Ohio, Oklahoma, and Utah to each show cause within 14 days as to why they should not be dismissed for lack of standing to seek relief under FOIA given there is no evidence they made the FOIA request that is the basis of this lawsuit.”