Competitive Enterprise Institute v. Office of Science and Technology Policy
82 F. Supp. 3d 228
D.D.C.2015Background
- CEI submitted a FOIA request seeking OSTP-related emails sent to or from jholdren@whrc.org, an email account maintained by the Woods Hole Research Center and used by OSTP Director John Holdren.
- OSTP refused to search the jholdren@whrc.org account, stating the account was controlled by a private entity and beyond FOIA's reach; CEI administratively appealed and then sued.
- CEI alleged violations of FOIA (injunctive and declaratory relief), the APA (failure to act), and multiple counts under the Federal Records Act (FRA) including claims to require preservation, prevent destruction, and compel notification to the Archivist/Attorney General.
- The core factual dispute: whether OSTP "possessed or controlled" emails on Holdren’s private account (affecting FOIA duties) and whether records were unlawfully "removed" from OSTP under the FRA.
- The Court treated CEI’s factual allegations as true for Rule 12(b)(6) purposes but found CEI’s own allegations inconsistent with control/possession of the private account and concluded CEI failed to plead unlawful removal or any actionable FRA or APA claim.
- The Court granted OSTP’s motion to dismiss all counts for failure to state a claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OSTP is "withholding" requested emails under FOIA | CEI: OSTP must search and disclose work-related emails on Holdren’s private account | OSTP: It does not possess or control the private account, so no FOIA withholding duty | Held: Dismissed — no withholding because OSTP lacks possession/control (Kissinger standard) |
| Whether FOIA or APA provides remedy for OSTP’s alleged failure to act | CEI: APA review is appropriate for agency inaction | OSTP: FOIA supplies the remedy; APA unavailable where FOIA provides relief | Held: Dismissed — APA claim not available where FOIA remedies apply |
| Whether CEI may bring FRA claims challenging OSTP’s records practices and seek preservation/injunction | CEI: OSTP failed to preserve work-related emails on private accounts; policy/practice inadequate | OSTP: FRA limits private suits to challenges to record-keeping guidelines or failures to notify Archivist/AG; CEI’s compliance claims barred and policies facially adequate | Held: Dismissed — CEI’s compliance/policy claims barred or inadequately pleaded |
| Whether CEI plausibly alleged unlawful removal requiring Archivist/AG notification under FRA | CEI: OSTP’s refusal to search implies uncopied agency records on private account | OSTP: No plausible factual allegation that records were not copied to official systems; mere refusal to search is not such proof | Held: Dismissed — CEI failed to plausibly allege unlawful removal necessary to compel notification or enforcement |
Key Cases Cited
- Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (defining FOIA "withholding" as contingent on agency possession or control)
- Armstrong v. Bush, 924 F.2d 282 (D.C. Cir.) (limits private suits under FRA; describes circumstances when private plaintiffs may seek Archivist/AG action)
- Pub. Citizen v. Carlin, 184 F.3d 900 (D.C. Cir.) (overview of FRA duties and record definitions)
- Judicial Watch, Inc. v. Dep't of Energy, 412 F.3d 125 (D.C. Cir.) (agency-employee relationship and when records are "agency records")
- Morley v. CIA, 508 F.3d 1108 (D.C. Cir.) (agency must conduct a search reasonably calculated to uncover responsive records under FOIA)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard: conclusory allegations insufficient)
- Bureau of Nat'l Affairs, Inc. v. Dep't of Justice, 742 F.2d 1484 (D.C. Cir.) (personal calendars and materials can fall outside FOIA when created for personal convenience)