Am. Oversight v. GSA, No. 17-1267, 2018 WL 2088286 (D.D.C. May 3, 2018) (Howell, C. J.)

Am. Oversight v. GSA, No. 17-1267, 2018 WL 2088286 (D.D.C. May 3, 2018) (Howell, C. J.)

Re:  Request for records concerning communications between GSA and any member of presidential transition team ("PTT") for then-president-elect Donald Trump

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Litigation Considerations, adequacy of Search & Procedural Requirements, Searching for Responsive Records:  First, the court holds that "GSA provides conflicting information regarding whether calendar entries were searched."  The court notes that "while records of emailed calendar invitations were produced, no actual calendar entries or logs were reflected in GSA's production."  The court finds that, "[i]n light of the 'well defined requests and positive indications of overlooked materials,' . . . GSA is directed either to search calendar entries or, if such a search was already performed, to clarify the method and scope of such a search, as well as any withholdings of calendar entries."  Second, the court holds that "GSA is directed either to conduct a search for responsive records, including telephone and calendar logs and paper records, consistent with the request, or explain why the scope of the search performed by the agency was reasonably designed and 'calculated to uncover all relevant documents.'"  "GSA's description of the search performed falls short of meeting the applicable standard for justifying the scope and method of the search."  The court explains that "when a request seeks 'communications,' the GSA reads no further and searches 'emails, calendar logs and shared drive files' as a default . . . irrespective of the specifics of a request."  "In this case, the plaintiff expressly sought 'telephone call logs,' . . . and 'all records reflecting communications,' . . . which includes 'stand-alone electronic records,' and 'paper records,' . . . but GSA has not explained whether or how such records were searched for the requested communications."  "Consequently, the agency does not adequately demonstrate 'that all files likely to contain responsive materials (if such records exist) were searched[.]'"
   
• Procedural Requirements, Searching for Responsive Records:  The court holds that "[w]hile the FOIA request does not explicitly refer to attachments, the scope of the request for 'all records reflecting communications' plainly covered parts of email communications that were in the form of an attachment."  "GSA's blinkered literalism, distinguishing emails from email attachments, is at odds with the agency's 'duty to construe a FOIA request liberally.'"  Additionally, the court finds that "even without 'a per se rule that an email and its attachment must be treated as a single record,' . . . the attachments to already-produced emails appear manifestly part of the 'communications' between GSA and the PTT and, absent any agency explanation why not, 'belong together[.]'"  "Even if the emails did not refer to attachments, however, the plaintiff is correct that the 'attachments themselves are independently responsive to [plaintiff's] request because they were communicated between GSA and' the PTT."
   
• Exemption 5, "Inter-Agency or Intra-Agency" Threshold Requirement:  The court holds that, "to the extent that GSA relied on under Exemption 5 to withhold any communications between GSA and the PTT . . . it must produce the withheld material to the plaintiff."  The court notes that "GSA concedes that, based on Justice Department guidance, 'transition teams are considered nonagencies for purposes of the FOIA,' . . . meaning that Exemption 5 cannot apply to any communications between GSA and the PTT."
   
• Exemption 5, Attorney-Client Privilege:  The court holds that "[defendant's] 'brief justifications fail[ ] to provide the Court with much of the information required to substantiate an attorney-client privilege claim.'"  The court explains that "GSA does not assert or 'demonstrate' that the communications were, and remain, confidential[]" and "has also failed to establish that the 'advice given [was] predominantly legal . . . in nature.'"
   
• Exemption 6:  The court holds that "plaintiff is entitled to summary judgment as to the redactions, under Exemption 6, of PTT members' names[.]"  The court finds that "GSA's Exemption 6 redactions obscure which of the publicly-named PTT members were referenced in, or included on, certain emails, even though those names are already 'out of the bag' and are no longer subject to a significant, protectable privacy interest."  "[P]roduction of unredacted emails reflecting PTT members' names would not 'constitute a clearly unwarranted invasion of personal privacy,' . . . and, consequently, these withholdings are contrary to the permissible scope of Exemption 6."  Additionally, the court finds that "the public interest in disclosure militates strongly in favor of disclosure."  "Contrary to GSA's argument that disclosing PTT members' names 'will not show what the government is up to, and thus are properly withheld under Exemption 6,' . . . presidential transitions are carried out pursuant to the Presidential Transitions Act of 1963, Pub. L. No. 88–277 (codified as amended at 3 U.S.C. § 102 Note (2018) ), and the operation of this statute is clearly an appropriate focus of public interest and scrutiny."  The court also rejects "GSA's view [that], even though the names of the PTT members were made public – and, in fact, easily accessible on a website – the members' status as non-federal employees, standing alone, is sufficient to withhold their names under Exemption 6."