325 F. Supp. 3d 638
W.D. Pa.2018Background
- The Project on Predatory Lending (Harvard) submitted a FOIA request to the DOJ seeking EDMC discovery materials produced in a qui tam False Claims Act case against Education Management Corporation (EDMC). DOJ withheld all requested materials and the Project sued under FOIA.
- EDMC produced voluminous electronic discovery on multiple hard drives (the “EDMC Hard Drives”) and a separately produced CD of Art Institute of Dallas materials (the “AI Dallas CD”); most Hard Drive data was uploaded by Relators’ counsel (McKool Smith) to their review platform and DOJ returned the drives to storage.
- Two protective orders governed EDMC discovery: a Confidentiality Protective Order (covers designated confidential business/personal information and provides a mechanism for third-party disclosure) and a FERPA Protective Order (protects personally identifiable student education records and contemplates redaction or sealing of FERPA material).
- DOJ argued the Hard Drives were not FOIA “agency records,” that searching them would be unduly burdensome (9+ terabytes, ~145 million pages), and that protective orders barred disclosure; Project argued DOJ must search and produce non-exempt records.
- The Court conducted a de novo FOIA review: it held the EDMC Hard Drive materials were not agency records (and alternatively that searching them would be unduly burdensome), found DOJ’s search of its own files adequate, sustained work-product protection for six handwritten-note documents, rejected work-product withholding for four emailed copies, and held the protective orders do not categorically prohibit production (FERPA material must be redacted).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EDMC Hard Drive materials are FOIA "agency records" | Hard Drives were in DOJ possession and obtained in course of DOJ litigation, so they are agency records subject to FOIA | DOJ: although it obtained the drives, it did not read/use/integrate the materials; it acted as a conduit/warehouse, so DOJ lacked "control" required for agency records | Held: Hard Drive materials are not agency records because DOJ did not use, read, or integrate them into its files at time of FOIA request; no FOIA jurisdiction to compel production |
| Whether compelling DOJ to search Hard Drives is unduly burdensome | Project: DOJ could narrow search using metadata, search terms, predictive coding, production cover letters; burden manageable | DOJ: 9+ TB (~20 million docs / 145 million pages); lacks platform, staff, and resources; search/redaction would be prohibitively time-consuming and costly | Held (alternative): even if agency records, search would be unduly burdensome; DOJ met its burden with specific affidavits |
| Adequacy of DOJ's search of its own files (hard file, electronic case file, email archives) | Project: DOJ search was too narrow (limited dates, limited custodians, no search terms disclosed) | DOJ: searched locations and custodians reasonably likely to hold responsive records, limited email search to attachments, relevant domains, and case timeframe | Held: DOJ's search was reasonably detailed and adequate; Project's objections were speculative |
| Withholding/privilege and effect of protective orders on production | Project: DOJ must produce non-exempt responsive documents (including copies found in DOJ files) subject to redaction; protective orders do not bar disclosure without court-ordered injunction | DOJ: withheld materials as work product or because protective orders/FERPA/confidentiality preclude disclosure | Held: Six hard-file documents with attorneys' handwritten notes are protected as work product; four emailed copies withheld solely because emailed among counsel are not protected and must be produced (subject to protective orders/FERPA redaction). Protective orders do not categorically prohibit disclosure; FERPA-protected data must be redacted and Confidentiality Order contains a third-party disclosure procedure |
Key Cases Cited
- Milner v. Dep't of the Navy, 562 U.S. 562 (Sup. Ct.) (FOIA requires disclosure subject to statutory exemptions)
- U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136 (Sup. Ct.) (two-part test for "agency records": agency must create/obtain and control materials)
- Kissinger v. Reporters Committee for Freedom of Press, 445 U.S. 136 (Sup. Ct.) (agency control and withholding framework)
- Judicial Watch, Inc. v. Fed. Hous. Fin. Agency, 646 F.3d 924 (D.C. Cir.) (possession alone insufficient—agency must have used or referenced documents in official duties to establish control)
- GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375 (Sup. Ct.) (agency compliance with court injunction or equivalent order may excuse non-disclosure under FOIA)
- Morgan v. U.S. Dep't of Justice, 923 F.2d 195 (D.C. Cir.) (procedures for assessing whether a court seal/order functionally prohibits agency disclosure)