Minkovski v. U.S. Dep't of Treasury

384 F. Supp. 3d 244
CourtDistrict Court, E.D. New York
DecidedApril 27, 2019
Docket18-CV-1034 (MKB)
StatusPublished

This text of 384 F. Supp. 3d 244 (Minkovski v. U.S. Dep't of Treasury) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Minkovski v. U.S. Dep't of Treasury, 384 F. Supp. 3d 244 (E.D.N.Y. 2019).

Opinion

MARGO K. BRODIE, United States District Judge

Plaintiffs Alyona Minkovski and Matthew Stoller commenced the above-captioned *247action on February 16, 2018 against Defendant the United States Department of Treasury (the "Treasury"), (Compl., Docket Entry No. 1), seeking records concerning Sheryl Sandberg, former Chief of Staff to then-Secretary of the Treasury Lawrence H. Summers, pursuant to the Freedom of Information Act, 5 U.S.C. § 552(a) ("FOIA"), (Am. Compl., Docket Entry No. 15). Currently before the Court is the Treasury's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Def. Mot. for Summ. J. ("Def. Mot."), Docket Entry No. 23; Mem. in Supp. of Def. Mot. ("Def. Mem."), Docket Entry No. 26.) Plaintiffs oppose the motion. (Pls. Mem. in Opp'n to Def. Mot. ("Pls. Mem."), Docket Entry No. 27.) For the reasons set forth below, the Court grants the Treasury's motion for summary judgment.

I. Background

a. Plaintiffs' FOIA request

On June 13, 2017, Plaintiffs, both of whom are independent journalists, submitted a FOIA request to the Treasury seeking records relating to Sandberg, who served as Chief of Staff to Summers from approximately 1996 to 2000, (the "FOIA Request").1 (Am. Compl. ¶¶ 7, 10; Pls. Letter to the Treasury dated June 13, 2017, annexed to Am. Compl. as Ex. A, Docket Entry No. 15; Def. Statement of Undisputed Facts Pursuant to Local R. 56.1 ("Def. 56.1") ¶ 1, Docket Entry No. 24.) Plaintiffs requested the following records:

I. Topics - All of Ms. Sandberg's records from the period 1996 through 2000 relating to:
A. The Gramm-Leach-Biley Act
B. The Commodities Future Modernization Act
C. China Permanent Normal Trade Relations (or PNTR)
D. Glass-Steagall
E. Brooksley Born, former Chairperson of the Commodities Futures Trading Commission
F. Google Inc.
II. Treasury Correspondence - All of Ms. Sandberg's correspondence during the period 1996 through 2000 with the following individuals:
A. Members of Congress or Congressional staff
B. Members of the News Media [defined as the following organizations: Businessweek, the Financial Times, Barron's, the Washington Post; the New York Times; the Wall Street Journal; CBS News; ABC News; NBC News; MSNBC; CNN; and Fox News].
C. Former Treasury Secretary Robert Rubin
D. Any employees or representatives of Google, including but not limited to Eric Schmidt and Larry Page
E. Any employees or representatives of Kleiner Perkins Caufield
F. Any employees of Citicorp, Travelers Group, JP Morgan, Chase Bank, BankAmerica, Nationsbank, Wells Fargo, Goldman Sachs, Long Term Capital, or Berkshire Hathaway
III. Later Correspondence - All notes of any meetings and all emails between Ms. Sandberg and the following Treasury Secretaries after she left office:
A. Larry Summers
B. Paul O'Neill
C. Kenneth Darn
D. John Snow *248E. Robert Kimmitt
F. Henry Paulson
G. Stuart Levey
H. Timothy Geithner
I. Neal Wolin
J. Jack Lew
K. Adam Szubin
L. Steven Mnuchin

(See FOIA Request 2-3; Def. 56.1 ¶ 2.) By letter dated July 19, 2017, the Treasury acknowledged the FOIA Request and assigned it tracking number 2017-137 (the "Acknowledgment Letter"). (Acknowledgment Letter, annexed to Am. Compl. as Ex. B, Docket Entry No. 15; Am. Compl. ¶ 12; Def. 56.1 ¶ 3.)

b. The Treasury's search for records responsive to the FOIA Request

Treasury personnel worked with the Office of the Executive Secretariat ("OES"), which maintains records for the Office of the Secretary and the Chief of the Staff, and with the Office of the Chief Information Office ("OCIO") to conduct searches for agency records responsive to Plaintiffs' FOIA Request and "identify the most likely sources of potential records." (Def. 56.1 ¶ 4; Decl. of Andrew B. Stein ("Stein Decl.") ¶ 6, Docket Entry No. 25.) After discussions with OES and OCIO, Treasury personnel "determined that the most likely sources of responsive materials would be: (a) Ms. Sandberg's emails during her employment at Treasury (approximately 1996 to 2000); (b) emails of the current and former Secretaries of the Treasury listed in Plaintiffs' June 13, 2017 letter; and (c) electronic records of the Office of the Secretary and Chief of Staff during Ms. Sandberg's employment at Treasury." (Def. 56.1 ¶ 5; Stein Decl. ¶ 6.)

However, in 2000, the Treasury transitioned to a new email system, and, as a result, Treasury personnel were unable to search emails that Sandberg sent or received during her employment at the Treasury because "the majority of legacy emails sent or received prior to that time and Ms. Sandberg's entire email account [we]re no longer maintained by Treasury and [we]re not accessible in any form." (Def. 56.1 ¶ 6; Stein Decl. ¶ 6.) Although unable to search Sandberg's email account, on May 17, 2018, OCIO searched available emails of current and former Secretaries of the Treasury listed in Plaintiffs' FOIA Request for any communications with Sandberg from her last date of employment at Treasury, in 2000, through May 17, 2018. (Def. 56.1 ¶ 7; Stein Decl. ¶ 8.) Treasury personnel searched using the terms "Sandberg," "Sheryl," "Sheryl Sandberg," "@leanin.org," and "@facebook.org." (Def. 56.1 ¶ 7; Stein Decl. ¶ 8.) These searches did not produce any responsive records. (Def. 56.1 ¶ 7; Stein Decl. ¶ 8.)

The Treasury also searched for notes of meetings between Sandberg and current and former Secretaries of the Treasury listed in Plaintiffs' FOIA Request by reviewing records maintained by OES, but the search did not produce any responsive records. (Def. 56.1 ¶ 8; Stein Decl. ¶ 8.)

In addition, the Treasury searched electronic records maintained by the Office of the Secretary "by querying OES electronic databases for all materials authorized by Ms. Sandberg during her employment at Treasury." (Def. 56.1 ¶ 9; Stein Decl. ¶ 9.) The Treasury Office of the General Counsel ("OGC") reviewed the documents that were located, and "determined that one of them was related in part to the subjects enumerated in Plaintiffs' [FOIA Request]," (the "Responsive Document"). (Def. 56.1 ¶ 9; Stein Decl. ¶ 9.)

c.

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384 F. Supp. 3d 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minkovski-v-us-dept-of-treasury-nyed-2019.