Stonehill v. NARA, No. 22-3391, 2024 WL 4286105 (D.D.C. Sept. 25, 2024) (Nichols, J.)

Stonehill v. NARA, No. 22-3391, 2024 WL 4286105 (D.D.C. Sept. 25, 2024) (Nichols, J.)

Re:  Request for records that IRS and DOJ transferred to NARA after tax proceedings against original plaintiff concluded

Disposition:  Granting defendant’s motion for summary judgment; granting motion to substitute; denying plaintiff’s motion for summary judgment

• Litigation Considerations, Evidentiary Showing, Adequacy of Search & Procedural Requirements, “Agency Records”:  The court holds that, “[t]o start, NARA required Center employees to search their paper records, electronic files, and email accounts for all records – including SF-135s and OF-11s – related to the four transfers of IRS and DOJ documents identified in [the original plaintiff’s] three FOIA requests.”  “NARA also searched for responsive records in its [Archives and Records Centers Information System (“ARCIS”)] database, which is the ‘primary tool for tracking status and location of records at [the Washington National Records Center].’”  “Finally, in an effort to uncover any pre-2009 SF-135s, NARA additionally searched a ‘separate server maintained for searching and retrieval of scanned SF-135 forms created prior to [ARCIS].’”  “In sum, NARA searched both the physical and electronic file systems of the Washington National Records Center – the ‘only’ place where the records identified in [the original plaintiff’s] request were stored and thus ‘the only place where responsive information [wa]s likely to be located.’”  “That extensive search satisfied its obligation to make a ‘good faith effort’ to find the records identified in [the original plaintiff’s] requests.”
  
  Responding to plaintiff’s objections the court finds that, “[f]irst, [plaintiff] argues that NARA failed to search for shipping labels supposedly posted on boxes containing the IRS’s and DOJ’s . . . records.”  “But an agency need only search for ‘agency records.’”  “NARA has carried its burden of demonstrating that the mailing labels are not agency records.”  “NARA does not argue that it did not ‘create’ any responsive shipping labels, which it apparently affixed to boxes of . . . documents that it returned by mail to the IRS or to DOJ’s Tax Division between 2001 and 2003.”  “But relying on the four Burka factors, NARA argues that it does not exercise sufficient ‘control’ over the shipping labels to make them agency records.”  “The Court agrees.”  “To start, NARA did not ‘inten[d]’ to retain control over the labels, nor did it actually do so.”  “To the contrary, NARA created the labels for the very purpose of transporting boxes – and the labels atop them – out of its custody.”  “The remaining Burka factors point in the same direction.”  “Because NARA does not ordinarily keep (or intend to keep) shipping labels, it is not at liberty to ‘use’ and ‘dispose of’ shipping labels ‘as it sees fit.’”  “Nor, turning to the third and fourth factors, does NARA ‘rely’ on shipping labels to carry out its records-safekeeping mission, such as by ‘integrat[ing]’ them into its system for tracking those records.” “[Plaintiff] asserts that, here, the shipping labels are in fact the ‘only source of [ ] information’ about which agencies accessed the . . . records stored at NARA.”  “Whether a material is the only source of certain information has no bearing on its status as an agency record; instead, that status depends largely on the factors discussed above.”
  
  “Second, [plaintiff] argues that the search did not return various additional records supposedly relevant to the question of which agency officials reviewed the relevant IRS and DOJ documents stored at NARA.”  “But ‘the fact that a particular document was not found does not demonstrate the inadequacy of a search.’”  “That is also true of the fact that a particular document never existed in the first place, or that a document was destroyed as part of the agency’s regular retention schedule.”  “Third, [plaintiff] objects that NARA did not manually search inside the boxes of . . . documents that DOJ’s Criminal Division transferred to the Washington National Records Center.”  The court finds that defendant either already produced any documents that would be located in the boxes or “[i]t is . . . highly unlikely that they would turn up in a search of the Criminal Division boxes conducted today.” “Fourth, [plaintiff] argues that NARA failed to search its College Park records center for records pertaining to a tranche of Criminal Division files that [plaintiff] believes may have been accessioned there.”  “But NARA’s records conclusively reflect that all documents in that tranche were ‘permanently withdrawn [from the Archives] . . . in Oct[ober] of 1999.’”  “Because the documents could not simultaneously be accessioned in College Park and permanently withdrawn, there was no need for NARA to look for them.”
   
• Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court holds that “after [the original plaintiff] died, [the original plaintiff’s] counsel and the representative of [the at issue] estate, moved to substitute [plaintiff], the co-executor of [the] estate, in [the original plaintiff’s] place.”  “Whether [plaintiff] is a ‘proper party for substitution’ depends on whether [the original plaintiff] made the FOIA requests at issue here in her personal capacity or on behalf of [the] estate.”  “If the former is true, [plaintiff] is not a proper party because he is not a ‘legal representative’ of [the original plaintiff] herself.”  “If the latter is true, [plaintiff] is a proper party because he is a ‘legal representative’ of [the] estate.”  “NARA argues that, because [the original plaintiff] did not ‘clearly indicate’ that she was submitting the instant FOIA requests on behalf of [the] estate, the Court should conclude that [the original plaintiff] lodged them in her individual capacity only.”  “To start, the Court is not convinced that the ‘clearly indicates’ standard applies here.”  “It is true that a plaintiff lacks Article III standing to bring a FOIA challenge if the initial FOIA request does not ‘clearly indicate’ that it was made on the plaintiff’s behalf.”  “But [the original plaintiff’s] (or [plaintiff’s]) constitutional standing to sue is not in question.”  “Whether or not the requests at issue were filed in [the original plaintiff’s] personal capacity or her capacity as estate executor, it is undisputed that they were hers.”  “Nor has NARA cited any case suggesting that, when a court adjudicating a substitution motion is attempting to discern which of two possible hats a FOIA requestor was wearing when he made his request, FOIA standing doctrine is the proper body of law to apply.”  “In any event, [the original plaintiff’s] three FOIA requests ‘clearly indicated’ that they were filed in her capacity as executor.”  “Each request (sent in by [the original plaintiff’s counsel]) stated the date of [the original plaintiff’s] death and incorporated a ‘Power of Attorney from Pauline Stonehill, [the original plaintiff’s] wife, beneficiary and Co-Executor and Co-Administrator of the Estate . . . .’”  “All of these representations and statements would have been wholly superfluous had the FOIA requests been lodged solely in [the original plaintiff’s] personal capacity.”  “They therefore offer sufficient clarity that that was not the case, and the Court accordingly concludes that [the original plaintiff] submitted the requests on behalf of [the] estate and that [plaintiff] is properly substituted as plaintiff.”
  
  “But that does not end the matter.”  “NARA contends that, ‘as a matter of law, an individual cannot submit a request on behalf of an estate under FOIA.’”  “FOIA requires agencies in receipt of procedurally-compliant ‘request[s] for records’ to ‘make the records promptly available to any person.’”  “‘“[P]erson” includes an individual, partnership, corporation, association, or public or private organization other than an agency.’”  “NARA argues that the omission of ‘estate’ from this definition means that ‘an individual cannot submit a request on behalf of an estate under the Act.’”  “‘Whether an estate qualifies as a “person” under FOIA is a question of statutory standing.’”  “Here, NARA did not raise the issue of statutory standing at any point prior to filing its opposition to [plaintiff’s] motion to substitute – even though [the original plaintiff’s] filings made clear she was suing on behalf of the estate.” “NARA also argues that, under D.C. law, [the original plaintiff] lacked capacity to sue as the estate’s foreign personal representative.”  “But a challenge ‘to a party’s authority to sue or be sued in a representative capacity’ must be made in a ‘specific denial,’ at the pleading stage.”  “Here, just as with the statutory standing issue, NARA did not raise any challenge to [plaintiff’s] capacity to sue prior to its opposition to the motion to substitute.”