Electronic Discovery Law

Citizens for Responsibility and Ethics in Washington v. Office of Admin., 566 F.3d 219 (D.C. Cir. 2009)

Citizens for Responsibility and Ethics in Washington (“CREW”) alleged that “entities in the Office of Administration (OA) discovered in October 2005 that entities in the Executive Office of the President (EOP) had lost millions of White House emails.”  In April 2007, CREW filed a Freedom of Information Act (“FOIA”) request seeking OA’s production of “records related to the EOP’s email management system, reports analyzing problems with the system, records of retained e-mails and possibly missing ones, documents discussing plans to fine the missing e-mails, and proposals to instate a new e-mail records system.”  The OA initially agreed to produce the records but asked for an extended deadline to do so.  Upon missing the extended deadline, OA argued for the first time that it was not covered by FOIA “because it provides administrative support and services directly to the President and the staff in the EOP, putting it outside of FOIA’s definition of ‘agency.’”  Despite its resistance, the OA produced some records as a matter of “administrative discretion.”

In August 2007, CREW took the issue before the district court and was granted permission to conduct limited discovery “to explore ‘the authority delegated to [OA] in its charter documents and any functions that OA in fact carries out.’”  Such a determination was important in light of FOIA’s applicability only to government agencies.  Following such discovery, the district court concluded that OA “’lacks the type of substantial independent authority’ this court ‘has found indicative of agency status for other EOP components’” and granted OA’s motion to dismiss.  CREW appealed.

On appeal, the appellate court upheld the ruling of the district court holding that “OA need not comply with CREW’s requests because it is not an agency under FOIA.”  Accordingly, OA was relieved of any obligation to produce the requested documents.

For more information about this case, click here to read a recent article published in the Washington Post.