American Oversight v. U.S. General Services Administration

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN OVERSIGHT, Plaintiff, Civil Action No. 17-1267 (BAH) v. Chief Judge Beryl A. Howell U.S. GENERAL SERVICES ADMINISTRATION, Defendant. MEMORANDUM OPINION The plaintiff, American Oversight (“AO”), a “nonpartisan organization committed to the promotion of transparency in government,” Compl. ¶ 5, ECF No. 1, challenges the response of the General Services Administration (“GSA”), to a request for, inter alia, records reflecting communications between GSA and any member of the presidential transition team (“PTT”) for then-president-elect Donald Trump, id. ¶ 19, which request was submitted pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. The parties have now cross-moved for summary judgment. Def.’s Mot. Summ. J. (“Def.’s Mot.”), ECF No. 12; Pl.’s Cross-Mot. Summ. J. & Opp’n Def.’s Mot. (“Pl.’s Cross-Mot.”), ECF No. 14. For the reasons set forth below, summary judgment is granted to the plaintiff with respect to GSA’s failure to produce non-exempt attachments to responsive emails, GSA’s withholding, under Exemption 5, of information shared with the PTT or other non-federal agency entities, and GSA’s withholdings under FOIA’s Exemption 6, and the parties’ cross-motions for summary judgment are denied, without prejudice, with respect to the sufficiency of GSA’s search and GSA’s withholdings under FOIA’s Exemption 5. 1 I. BACKGROUND In 2013, GSA entered into a contract with the Trump Organization to develop and lease the Old Post Office building in Washington, D.C., as Trump International Hotel. Compl. ¶¶ 7–8. The lease stipulated that “[n]o . . . elected official of the Government of the United States . . . shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom,” id. ¶ 9, which provision raised concerns from “[e]thics experts and members of Congress … regarding the propriety of President Trump’s continued financial interest in the Trump International Hotel,” id. ¶ 10. Prompted by these concerns, the plaintiff, filed several FOIA requests for records related to GSA’s lease of the Old Post Office building and contacts between GSA and the PTT, id. ¶¶ 15, 19, 23, including the FOIA request, dated April 5, 2017, at issue in this case for “[a]ll records reflecting communications (including emails, telephone call logs, calendar entries, meeting agendas, or any other records reflecting communications) between GSA and any member of the Trump transition team” from November 8, 2016 through January 20, 2017, that is, from the 2016 election through President Trump’s inauguration, id. ¶ 19.1 GSA’s “initial search . . . returned over 61,000 documents,” Def.’s Statement of Material Facts As To Which There Is No Genuine Issue (“Def.’s SMF”) ¶ 5, ECF No. 12 at 3–6 (citing Suppl. Decl. of Travis Lewis, GSA’s Director of the FOIA and Records Manager Division (“Lewis Decl.”) ¶ 9, ECF No. 13, replacing earlier version of declaration, id. at 1 n.1), or “over 100,000 emails,” Def.’s Mot., Ex. D at 6, Email from GSA’s Duane Smith to AO’s Cerissa Cafasso (July 24, 2017), ECF No. 12-5. 1 The ...

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