Cause of Action Inst. v. Pompeo

Citation: 319 F. Supp. 3d 230Docket: Case No. 1:16-cv-02145 (TNM)

Court: Court of Appeals for the D.C. Circuit; July 20, 2018; Federal Appellate Court

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Cause of Action Institute is suing the Secretary of State and the Archivist of the United States under the Federal Records Act to compel the recovery of work-related emails from former Secretary of State Colin Powell's AOL account. The court previously denied the Government's motion to dismiss, deeming initial search efforts inadequate and affirming a substantial likelihood of recovering the emails. However, subsequent significant efforts by the Defendants secured assurances from both Secretary Powell and AOL's successor that recovery is technologically impossible. As a result, the court deemed the case moot, stating further referral to the Attorney General would not likely remedy the inability to access the emails through the Freedom of Information Act (FOIA). The court granted the Government's motion to dismiss. Under the Federal Records Act, emails from personal accounts are considered federal records, and the head of a federal agency has a duty to act if records are believed unlawfully removed. The Defendants had not initiated action through the Attorney General, initially relying on AOL's assurances regarding the emails' non-existence. The Government sought dismissal based on lack of redressability, but the court previously denied this motion, allowing the Plaintiff to move for summary judgment while granting the Government additional time to respond for further email recovery efforts.

In February 2018, the State Department requested Secretary Powell to confirm that he had no personal access to certain emails and to authorize obtaining those emails from AOL. Secretary Powell provided a declaration stating, under penalty of perjury, that he did not possess any federal records not preserved by the State Department, had no access to devices used for work-related emails outside of his AOL account, and was unaware of any work-related emails existing outside the Department's records. He also authorized the State Department to retrieve emails from Oath Inc. (formerly AOL). 

In March 2018, the Government contacted Oath for confirmation regarding the recoverability of Powell's emails, seeking an explanation if recovery was not possible. Oath responded, stating that a thorough search revealed no recoverable email content related to Powell's AOL account, as the content had been removed from their databases years prior. Oath's Deputy General Counsel noted that during Powell's tenure, AOL's email storage had automatic deletion settings, which limited retention periods for read and sent emails. 

Based on this information, the Government filed a motion to dismiss the case as moot, or alternatively, sought summary judgment asserting compliance with the Federal Records Act. Conversely, the plaintiff, Cause of Action, argued that it remained entitled to summary judgment.

A case is deemed moot when the issues are no longer relevant or the parties lack a legal interest in the outcome, as established in *Conservation Force, Inc. v. Jewell*. A plaintiff’s case may also become moot if they receive all requested relief, but if defendants deny a plaintiff's request for relief (such as a referral to the Attorney General), the case remains live unless the defendants can prove that the requested action would not yield any results, specifically establishing a "fatal loss" of relevant federal records. While the concept of "fatal loss" is not fully defined, its application in mootness closely aligns with standing requirements, where the absence of standing arises if it is merely speculative that a favorable decision could remedy the plaintiff's injury.

The burden to demonstrate mootness lies with the party asserting it, which must show that it is unlikely (rather than likely) that the Attorney General could recover the missing emails. If a substantial likelihood exists that emails could be retrieved, the case remains active. In this instance, the Government has provided compelling evidence, including Secretary Powell's sworn statement that he has no access to his missing work-related emails and confirmation from Oath Inc. that recovery of the emails is technologically impossible. Oath conducted thorough searches of its databases and determined that it does not possess any emails from Powell's time at the State Department. The lack of access to these emails, coupled with the absence of contestation from the plaintiff regarding these facts, strongly indicates a fatal loss of the records in question.

The Plaintiff argues that the Defendants have not sufficiently justified why forensic searches of AOL's physical servers would not recover missing emails. However, the court likens this search to finding specific grains of sand on a beach without knowing if they exist, emphasizing the lack of evidence supporting the Plaintiff's claim that Secretary Powell's emails could be recovered through such searches. Previous forensic searches in a related case, involving limited personal servers, took months and yielded results when emails were believed deleted, contrasting significantly with the situation here where Oath's law enforcement team has deemed the relevant data inaccessible.

The Plaintiff's additional arguments are also weakened. It critiques an email from Oath's Deputy General Counsel for not linking AOL's default settings to Secretary Powell's account or detailing search methods, despite the email clearly stating that Oath had no emails from Secretary Powell and explaining the network settings. The Plaintiff's contention that the Government's request for Secretary Powell's permission to access his emails casts doubt on their search efforts is dismissed; obtaining permission reinforces their authority, and direct contact with Oath further affirms the adequacy of search efforts.

Ultimately, the Government has demonstrated that Secretary Powell’s missing emails cannot be retrieved from him, his devices, or his service provider, establishing the loss of these records. The suggestion that the Attorney General could initiate a forensic search is deemed speculative and unlikely to succeed, as the emails may not exist and there are questions about the legal basis for such an action. Consequently, the court finds no substantial likelihood that further searches would yield results, declaring the case moot and granting the Government's Motion to Dismiss while denying the Plaintiff's Motion for Summary Judgment. The court does not address the Defendants' alternative argument regarding compliance with the Federal Records Act.