Brennan Ctr. for Justice At N.Y. Univ. Sch. of Law v. U.S. Dep't of Justice
Docket: 17 Civ. 6335 (AKH)
Court: District Court, S.D. Illinois; April 30, 2019; Federal District Court
Judge Alvin K. Hellerstein addresses two disputes in a Freedom of Information Act (FOIA) case related to an investigation into alleged voter fraud initiated by President Donald Trump. On May 11, 2017, Trump established the Presidential Advisory Commission on Election Integrity to examine vulnerabilities in federal voting systems. However, the Commission was disbanded on January 3, 2018, after just seven months, to avoid protracted legal disputes at taxpayer expense. Following the dissolution, Trump directed the Department of Homeland Security (DHS) to review the Commission's findings.
Plaintiffs, including the Brennan Center for Justice and the Protect Democracy Project, filed a FOIA request for the Commission's documents and subsequently sued to compel the U.S. Departments of Justice (DOJ), Homeland Security (DHS), General Services Administration (GSA), Office of Management and Budget (OMB), and Social Security Administration (SSA) to produce responsive documents. The court must determine whether the search terms used by DHS and OMB are appropriate and if the private email accounts of DOJ officials John Gore and Maureen Riordan should be searched for potentially relevant agency records, given that they received and sent Commission-related emails.
The Plaintiffs assert that the Commission's true purpose was to create obstacles for eligible voters, rather than ensure election integrity, and they seek documents to support this claim. They highlight the Commission's requests for extensive voter data, which allegedly led to significant cancellations of voter registrations in states like Colorado and Florida, further asserting that these actions had a chilling effect on voter registrations. The court rules in favor of the Plaintiffs on both issues raised.
President Trump disbanded the Commission in January 2018, but Plaintiffs contend that the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) have continued its operations. This is evidenced by a subpoena issued by the U.S. Attorney for the Eastern District of North Carolina on August 31, 2018, requesting voter records and ballots, alongside an ongoing investigation into election fraud in North Carolina as of March 2019.
Plaintiffs submitted a total of eleven Freedom of Information Act (FOIA) requests in 2017 to various federal agencies, including the U.S. General Services Administration (GSA), DHS, and the Department of Justice (DOJ), seeking documents related to the Commission's activities. Agencies reported their search methodologies, with the DOJ-OIP using terms related to election integrity and voter fraud, while other agencies had varying search terms, with some being significantly narrower.
Concerns were raised regarding the use of private email accounts for official business. The DOJ-Office of Legal Counsel (OLC) inquired about potentially responsive records outside official systems but received negative responses. The GSA confirmed its employees did not use private emails for official business. In contrast, the Social Security Administration (SSA) did not conduct inquiries about personal email usage, citing agency policy. The DOJ-Civil Rights Division acknowledged that personal emails were used but claimed those emails were forwarded to official accounts, negating the need for personal account searches. Plaintiffs highlighted instances of non-Commission agency employees using personal emails for Commission-related matters, including an Assistant Attorney General using a personal Gmail account for communication about voting allegations.
Gore forwarded emails related to voting integrity from his personal AOL account to Commission member Christy McCormick on July 5 and September 5, 2017, later sending these emails to his official DOJ account on September 27, 2017. Similarly, Commission member J. Christian Adams emailed content on voting integrity to DOJ attorney Maureen Riordan's personal Comcast address, which she then forwarded to her official account within a day. The document outlines legal standards under the Freedom of Information Act (FOIA), emphasizing that courts can supervise agency compliance and that agencies bear the burden of proving the adequacy of their search in FOIA disputes. The adequacy of a search is assessed based on the methods employed rather than the outcomes, with a reasonable search required, not a perfect one. Affidavits supporting the search are given a presumption of good faith. Defendants argue that their search responses were sufficient and that agencies are not required to search private email accounts. Plaintiffs counter that the search terms used by the Department of Homeland Security (DHS) and the Office of Management and Budget (OMB) were overly narrow compared to those employed by the DOJ, suggesting the need for broader search parameters.
Agencies are required to demonstrate that their search terms for responding to a FOIA request are reasonable and adequate, meaning the search should be calculated to discover the requested documents rather than guarantee the retrieval of every existing document. Federal agencies have the discretion to determine the search terms as long as they are reasonably tailored, and FOIA requesters cannot dictate these terms. Courts generally refrain from closely overseeing the agencies' search processes unless the chosen terms are challenged; in such cases, agencies must justify the exclusion of relevant search terms. A notable example cited involves the contrasting search strategies of DHS and OMB compared to other agencies, where DHS and OMB failed to use apparent search terms and did not provide adequate explanations for their choices. As a directive, the court ordered OMB and DHS to employ specific search terms related to "Election Integrity" and voter-related topics as used by DOJ-OIP.
Regarding private email accounts, plaintiffs requested searches of the private email accounts of specific agency employees. Defendants contended that they only needed to search official agency records, asserting no evidence existed that private accounts contained relevant records. However, communications on non-agency accounts can be classified as "agency records" under FOIA. The records maintain their agency status regardless of where they are stored. Agencies cannot circumvent FOIA requirements by using private email accounts for official communications. Regulations mandate that agency employees preserve records within official systems, and any official communications sent or received via non-official accounts must be copied or forwarded to the agency’s official recordkeeping system.
Acting Assistant Attorney Gore sent and received emails about voter fraud using private accounts, and DOJ attorney Riordan also engaged in discussions of election integrity through personal email. Gore failed to forward relevant emails from his private account to official accounts within the required twenty-day period, with a significant delay of eighty-four days for one email. The presence of emails on personal accounts raises doubts about compliance with recordkeeping requirements, challenging the presumption of compliance. Official custodians must inquire whether employees used personal accounts for Commission business and ensure relevant documents are produced. The prevalence of personal email for official communications poses risks of evading disclosure laws, undermining the public's right to information as intended by FOIA. The government’s argument that fulfilling the FOIA requests would overburden personal email accounts is unfounded, as the requests are limited to two individuals and require custodians to obtain relevant communications, rendering them reasonable and not subject to the assumed burdens.
Plaintiffs' motion for partial summary judgment has been granted, while Defendants' motion has been denied. The parties are required to establish a reasonable timeline for the Defendants' document production; if they cannot agree, they must inform the Court of their disagreements via a joint letter. The Clerk is directed to terminate the motions referenced as ECF 75 and 79.
The excerpt also references a bipartisan Commission on Election Integrity, chaired by Vice President Pence, which included notable state officials and was announced by the White House on May 11, 2017. Plaintiffs have not requested records from the Commission or its members, acknowledging that the Commission does not qualify as an 'agency' under the Freedom of Information Act (FOIA). Additionally, Plaintiffs have indicated that they are withdrawing their previous challenges concerning search terms related to the DOJ Office of Information Policy (DOJ-OIP), DOJ Office of Legal Counsel (DOJ-OLC), General Services Administration (GSA), and Social Security Administration (SSA) based on new government disclosures. They also indicated at oral argument that they are retracting their requests for supplemental search terms for the DOJ Civil Rights Division (DOJ-CRT).
