Protect the Public's Trust v. U.S. Department of Homeland Security

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PROTECT THE PUBLIC’S TRUST,

Plaintiff, v. Civil Action No. 22-138 (JEB)

UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

Defendant.

MEMORANDUM OPINION

Plaintiff Protect the Public’s Trust seeks records from several offices within Defendant

Department of Homeland Security in this Freedom of Information Act case. The ultimate

dispute here relates to whether DHS’s Privacy Office formally “received” Plaintiff’s FOIA

request such that it was obligated to conduct a search for responsive materials. Although the

request was addressed to the Privacy Office and although another DHS component — the Office

of Civil Rights and Civil Liberties — also transferred the request there, DHS somehow maintains

that actual receipt never occurred. This position precipitated PPT’s lawsuit and, now, the

parties’ Cross-Motions for Summary Judgment. Believing that DHS’s stance is overly technical,

the Court sides with PPT.

I. Background

Protect the Public’s Trust, a self-proclaimed “association . . . dedicated to restoring public

trust in government by promoting the fair and equal application of the rules and standards of

ethical conduct to all public servants,” seeks documents from DHS relating to certain political

appointees. See ECF No. 1 (Compl.), ¶¶ 4,6. Specifically, PPT wishes to obtain materials that it

1 believes “will help contribute to the public understanding of the role DHS officials played in the

controversy over deploying federal resources, including law enforcement resources, to

investigate parents and citizens upset over local school board policies.” Id., ¶ 7. It accordingly

submitted a FOIA request to DHS on October 7, 2021, seeking four categories of records relating

to the National School Boards Association and the use of federal resources to investigate threats

against local school boards and officials. See ECF No. 10-1 (Pl. Statement of Material Facts),

¶ 4; see also ECF No. 1-1 (FOIA Request).

That request listed as recipients the Privacy Office, the Office of Civil Rights and Civil

Liberties, and the United States Secret Service — all components of DHS. See FOIA Request at

1. CRCL confirmed receipt of the request and assigned it a tracking number on the day of

submission, but there is no evidence that the other two offices did so then. See Pl. SMF, ¶ 7;

Compl., ¶ 8. Two months later, CRCL informed Plaintiff that it had identified responsive

materials that originated in other DHS offices and had “referred [those] to the DHS Privacy

Office (PRIV) for processing and direct response to you.” Pl. SMF, ¶ 8; see also ECF No. 1-2

(Dec. 15, 2021, CRCL Letter) at 1. The Privacy Office confirmed receipt of the referral,

informing Plaintiff that “your request and 23 pages of responsive records were referred to this

office for processing and direct response to you. Your request was received in this office on

December 15, 2021.” Pl. SMF, ¶ 9; see also ECF No. 1-3 (Jan. 5, 2022, Privacy Office Letter) at

1. That letter, which quoted from PPT’s FOIA request, also assigned to that request a Privacy

Office reference number. See Pl. SMF, ¶¶ 10–11; Jan. 5 Letter at 2.

In January 2022, having received no records from any DHS office, Plaintiff filed this

lawsuit to compel the Department to provide non-exempt documents responsive to its request.

See Compl. CRCL made its first production with redactions several months later, in May, which

2 included the documents it had referred to the Privacy Office, and it then withdrew some

redactions in June. See Pl. SMF, ¶¶ 14,15. The Privacy Office, on the other hand, has not

conducted an independent search for records. Id., ¶ 17. Indeed, DHS has made clear that the

Office will not initiate any search unless and until Plaintiff submits a new FOIA request to it

directly. Id. The parties agree that the Privacy Office’s response (or lack thereof) is the only

remaining issue in this case. Id., ¶ 19; see also ECF No. 12 (Def. Opp./Cross-MSJ) at 2.

PPT now moves for summary judgment, contending that it is entitled to victory because

the Privacy Office received its FOIA request but took no action. See ECF No. 10-2 (Pl. MSJ).

Defendant counters with its own Cross-Motion, asserting that the Privacy Office never received a

proper FOIA request from Plaintiff and thus is not obligated to conduct any search. See Def.

Opp./Cross-MSJ. The Court takes up both Motions now.

II. Legal Standard

Summary judgment must be granted if “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, 477 U.S. 242, 247–48 (1986); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the

substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at

895. A dispute is “genuine” if the “evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Liberty Lobby, 477 U.S. at 248; see also Scott v. Harris, 550 U.S.

372, 380 (2007); Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is

genuinely disputed must support the assertion” by “citing to particular parts of materials in the

record” or “showing that the materials cited do not establish the absence or presence of a genuine

3 dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.

R. Civ. P. 56(c)(1).

When a motion for summary judgment is under consideration, “[t]he evidence of the

nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor.”

Liberty Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006);

Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a

motion for summary judgment, the Court must “eschew making credibility determinations or

weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).

When both parties move for summary judgment, the court shifts the beneficiary of the

factual inferences. Once it “determines that one party is not entitled to summary judgment, it

changes tack on the cross motion and gives the unsuccessful movant all of the favorable factual

inferences that it has just given to the movant’s opponent.” Clark v. Vilsack, No. 19-394, 2021

WL 2156500, at *2 (D.D.C. May 27, 2021) (internal quotation marks omitted). It is of course

“possible for a court to deny summary judgment to both sides.” Id.

FOIA cases typically and appropriately are decided on motions for summary judgment.

See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). In a

FOIA case, a court may grant summary judgment based solely on information provided in an

agency’s affidavits or declarations when they “describe the justifications for nondisclosure with

reasonably specific detail, demonstrate that the information withheld logically falls within the

claimed exemption, and are not controverted by either contrary evidence in the record nor by

evidence of agency bad faith.” Larson v. Department of State, 565 F.3d 857, 862 (D.C. Cir.

2009) (citation omitted). Such affidavits or declarations “are accorded a presumption of good

faith.” SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). “Unlike the

4 review of other agency action that must be upheld if supported by substantial evidence and not

arbitrary or capricious,” FOIA “expressly places the burden ‘on the agency to sustain its action’

and directs the district courts to ‘determine the matter de novo.’” U.S. Department of Justice v.

Reporters Committee for Freedom of Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C.

§ 552(a)(4)(B)).

III. Analysis

The FOIA statute provides that “each agency, upon any request for records which (i)

reasonably describes such records and (ii) is made in accordance with published rules . . . shall

make the records promptly available.” 5 U.S.C. § 552(a)(3)(A). An agency has 20 business

days “after the receipt of any such request” to notify the requester of how it will handle its

application for records. Id. § 552(a)(6)(A)(i). Consistent with this statutory mandate, federal

courts have jurisdiction to order the production of records that an agency improperly withholds.

Id. § 552(a)(4)(B); Reporters Committee for Freedom of Press, 489 U.S. at 754–55. “At all

times courts must bear in mind that FOIA mandates ‘a strong presumption in favor of

disclosure.’” National Association of Home Builders v. Norton, 309 F. 3d 2, 32 (D.C. Cir. 2002)

(quoting Department of State v. Ray, 502 U.S. 164, 173 (1991)).

PPT moves for summary judgment on the ground that the Privacy Office’s failure to

search for and produce records responsive to its FOIA request violates the agency’s obligations

under that statute. See Pl. MSJ at 2–6. According to Plaintiff, the Office was bound to at least

conduct a search because PPT addressed its request to the Office, the Office actually received the

request, and, in any event, CRCL was required to redirect the request to the Privacy Office if it

was not properly addressed in the first place. Id. Defendant rejoins that it is the party entitled to

summary judgment because, while the Privacy Office received the request as part of a referral

5 from CRCL, it never received a proper FOIA request from Plaintiff and thus had no

responsibility to conduct a search of its own records. See Def. Opp./Cross-MSJ at 4–5. Since

the critical facts — namely, that the request was addressed to the Privacy Office and that the

Privacy Office did receive some version of the request — are uncontroverted, resolution of these

Cross-Motions turns on a purely legal question regarding “receipt.”

“[I]t is undisputed that ‘receipt’ of a FOIA request triggers an agency’s obligation to

respond.” Eddington v. United States Department of Defense, 35 F. 4th 833, 837 (D.C. Cir.

2022) (citing 5 U.S.C. § 552(a)(6)(A)(i) and collecting cases). Neither FOIA nor the D.C.

Circuit’s caselaw, however, clearly defines what constitutes “receipt.” Courts in this district, for

example, have consistently found that a plaintiff’s demonstration that she sent a FOIA request is

not sufficient without additional evidence to establish that the agency actually received it. See,

e.g., Kayana v. Alcohol, Tobacco, Firearm, & Explosives, 284 F. Supp. 3d 1, 2–3 (D.D.C. 2018)

(granting summary judgment to government where plaintiff established that he had mailed

request but agency submitted declaration attesting to non-receipt). But no court appears to have

addressed the situation here, where the relevant agency office has received the request as part of

a referral. See ECF No. 12-3 (First Declaration of Catrina Pavlik-Keenan), ¶ 13 (asserting that

Privacy Office “only received the FOIA request from CRCL as part of the administrative record

accompanying the 23-page FOIA referral of records from CRCL,” not as a new request).

While the Court will make no attempt to set forth a comprehensive definition of what

constitutes “receipt” in all cases, it believes that the circumstances here suffice. To begin, it is

undisputed that the Privacy Office did receive a copy of the original request as part of the referral

of certain records from CRCL. See Pavlik-Keenan Decl., ¶¶ 11, 13. Indeed, the Office

confirmed receipt of the referral and the request; it even quoted from the request in its letter to

6 Plaintiff and assigned it a reference number. See Jan. 5 Letter at 1. Second, the Office obtained

the request not from some informal submission by Plaintiff, but as a referral from another DHS

component. Third, the request was actually addressed to the Privacy Office in addition to CRCL,

which should have given the Office notice that Plaintiff wanted it, too, to search its records. See

FOIA Request at 1. And if that were not enough to make PPT’s wishes clear, the organization

repeatedly informed DHS that it believed that the Privacy Office was encompassed in its FOIA

request. See ECF No. 7 (May 9, 2022, Status Report). This combination of facts entitles

Plaintiff to a search of the Office’s records.

Defendant’s suggestion that its FOIA obligations were somehow not triggered because of

the manner in which it received the request finds little support in the statute and accompanying

regulations. Although FOIA requires requests to be filed “in accordance with published rules

stating . . . procedures to be followed,” 5 U.S.C. § 552(a)(3)(A), there appears to be no violation

here. As DHS’s declarant states, “To make a request for DHS records, a requester should write

directly to the FOIA office of the component that maintains the records being sought. A request

will receive the quickest possible response if it is addressed to the FOIA office of the component

that maintains the records sought.” Pavlik-Keenan Decl., ¶ 9 (citing 6 C.F.R. § 5.3(a)(1))

(emphasis added). That encourages — but does not require — people to send their request to the

correct office, and it contemplates that some will not do so. Those requesters will get a slower

response, but the regulations do not state that they should receive no response at all.

Another provision of DHS regulations instructs that when the Department’s component

offices determine that they have received a request intended for another office, they “shall route

the request to the FOIA office of the proper component(s).” 6 C.F.R. § 5.4(c). That, too,

suggests that requests may not always come directly from the requester, and it implies that this is

7 no reason to refuse compliance with the request altogether. In the circumstance where CRCL

knew that the Privacy Office was an additional intended addressee, for example, one would

assume that it would have a duty to forward the request on. But see Jimenez v. U.S. Department

of Homeland Security, No. 19-21546, 2022 WL 1642460, at *7 (S.D. Fla. Feb. 24, 2022)

(finding “partial misdirection” outside the scope of 6 C.F.R. § 5.4(c)).

The Court, consequently, concludes that the DHS Privacy Office is obligated under FOIA

to search its records for anything responsive to Plaintiff’s October 7, 2021, FOIA request.

IV. Conclusion

For the foregoing reasons, Plaintiff’s Motion will be granted, and Defendant’s Cross-

Motion will be denied. A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: August 10, 2022