377 F. Supp. 3d 428
S.D. Ill.2019Background
- In May 2017 President Trump created the Presidential Advisory Commission on Election Integrity (the Commission); he dissolved it in January 2018 and said DHS would review initial findings.
- Plaintiffs (Brennan Center and Protect Democracy) submitted FOIA requests to multiple agencies seeking Commission-related records and sued after incomplete agency responses.
- Agencies used different search terms; DOJ-OIP used broad, multi-term searches while OMB and DHS used much narrower terms (e.g., OMB: “PACEI”/“election commission”; DHS: limited formulations including "Commission" and "Voter Fraud").
- Evidence showed two DOJ employees (Acting AAG John Gore and attorney Maureen Riordan) used personal email accounts for Commission-related communications, with Gore forwarding messages to his official account only after a long delay.
- Plaintiffs sought an order requiring DHS and OMB to use broader search terms and requiring agencies to search specified employees’ private email accounts and to instruct custodians to identify potentially responsive personal-account records.
- The court granted Plaintiffs’ partial summary judgment: ordered DHS and OMB to adopt DOJ-OIP search terms and required agencies to inquire about and collect responsive personal-account records for the two identified employees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of search terms used by DHS and OMB | DHS and OMB used unreasonably narrow terms that would miss responsive records; they should use broader terms used by other agencies | Agencies may choose reasonable search terms; courts should not micromanage term selection | Court: DHS and OMB search terms were unreasonably narrow; ordered them to use DOJ-OIP's broader terms (e.g., "Election Integrity," "voter fraud," names of Commission members, etc.) |
| Search of private email accounts of agency employees (Gore, Riordan) | Personal-account communications about Commission business likely exist and must be searched; custodians must ask and produce responsive private-account records | Agencies need search only official records systems; presumption that custodians complied with recordkeeping rules absolves broader inquiry | Court: Evidence of personal-account use (and delayed forwarding) rebuts presumption; agencies must ask custodians and collect responsive personal-account records for the two employees |
Key Cases Cited
- Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm'n, 711 F.3d 180 (D.C. Cir. 2013) (courts may supervise agencies' ongoing FOIA processing)
- Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) (FOIA empowers equitable relief enforcing its terms)
- Carney v. U.S. Dep't of Justice, 19 F.3d 807 (2d Cir. 1994) (agency bears burden to show FOIA search adequacy; declarations can satisfy burden)
- Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473 (2d Cir. 1999) (adequacy requires a search reasonably calculated to locate responsive documents)
- SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197 (D.C. Cir. 1991) (same standard for reasonableness of search)
- Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145 (D.C. Cir. 2016) (agency records on private accounts retain agency character; agencies cannot evade FOIA by using non-official accounts)
- Long v. Office of Pers. Mgmt., 692 F.3d 185 (2d Cir. 2012) (adequacy of search terms assessed by reasonableness)
- Judicial Watch, Inc. v. Dep't of Justice, 319 F.Supp.3d 431 (D.D.C. 2018) (evidence of personal-account records can rebut presumption of custodial compliance)