The three-shell game, in which a “mark” guesses which of three shells hides a pea, has long been used as a street hustle.  There’s a Freedom of Information Act (“FOIA”) version of the game.  When a presidential transition team engages in communications over systems provided by the General Services Administration (“GSA”), which preserves those records and provides them to the FBI, are the records the transition team’s, GSA’s, or the FBI’s?  The question is critical because presidential transition teams are not subject to FOIA and agencies subject to FOIA, like GSA and the FBI, are required to turn over only their own records.  In Democracy Forward Foundation v. U.S. General Services Administration, 2019 WL 2775621 (D.D.C. July 2, 2019), the FOIA requester was bested in the three-shell game —the communication records in question were solely those of the transition team.

Democracy Forward Foundation: Factual Background

The Presidential Transition Act of 1963, Pub. L. 88-277, 78 Stat. 153, authorizes GSA to provide the President-Elect services needed to prepare to take office.[1]  The available services include office equipment and “[c]ommunications services.” Id. §§ 3(a)(1), (5).  GSA maintains networking infrastructure and network communication services, such as email, for transition teams.  Democracy Forward, at *1.

GSA keeps transition team networks “distinct from [its] internal network infrastructure” and does not use them to conduct “agency business.”  Id.  GSA officials do not access or review presidential transition team members’ emails, except for network security purposes.  Id.

On August 1, 2016, candidate Trump signed an MOU with GSA for telecommunication and internet technology services for the pre- and post-election transition period.  Under the MOU, the transition team agreed to return all equipment at the end of any transition, and GSA promised to delete all data from those devices. Id. at *2. GSA also provides cloud-based communications services, but the MOU did not address disposition of cloud-based email.  Id.

In the 2008 and 2012 election cycles, GSA had destroyed the transition teams’ electronic communications.  Id.  GSA decided to seek guidance regarding whether to preserve the Trump Transition Team’s communications, given the criminal and national security investigations involving some transition team members.  Id.  GSA consulted the Department of Justice (“DOJ”), which requested that GSA preserve all transition team records.  Id.

Ultimately, in August 2017, GSA agreed to turn over the transition team’s records to the FBI. Id. at *3.  GSA turned over the devices used by the transition team, with the understanding that the FBI would access them only with proper legal authority.  Id.  GSA copied and transferred cloud-based emails sent and received by certain senior transition officials the FBI identified.

Democracy Forward Foundation requested all email communications and attachments of the Vice-President-Elect and approximately 20 formal or informal advisors to the President.[2]  GSA denied the request, and a District Court had to resolve the controversy.

Democracy Forward Foundation: The Decision

In its decision, the Court quickly focused on the central question, whether the transition team communications were GSA records.  In U.S. Department of Justice v. Tax Analysts, 492 U.S. 136 (1989), the Supreme Court stated that a document qualified as an agency record only if that agency: (a) “either create[d] or obtain[ed]” it and (b) “control[led]” it as of the date of  the FOIA request.  Id. at 144-45.  In Democracy Forward, the parties disputed only the control element.  Democracy Forward, at *4.  The D.C. Circuit’s well-established four-factor test, first outlined in Burka v. Dep’t of Health & Human Services., 87 F.3d 508 (D.C. Cir. 1996), for determining whether an agency has sufficient “control” over documents in its possession, requires a court to consider:

(1) the intent of the document’s creator to retain or relinquish control over the records; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency’s record system or files.

Id. at 515.  The Court noted however, that the D.C. Circuit has indicated that the full Burka test “does not apply to documents that an agency has either obtained from, or prepared in response to a request from, a governmental entity not covered by FOIA.”  Democracy Forward, at *4.  In such circumstances, the first two Burka factors take precedence and are “effectively dispositive.”  Id.[3]  Moreover, in a case involving a legislative commission’s records archived by the National Archives & Records Administration (“NARA”), Cause of Action v. National Archives and Records Administration, 753 F.3d 210 (D.C. Cir. 2014), the Circuit had even eschewed the two-factor test.  The Cause of Action Court had observed that NARA’s main function was preservation of documents from all three branches of government, and thus that NARA does not use archived documents in any operational way.  Id.at 216.  Any “control” over such documents consisted solely in “cataloguing, storing, and preserving” them, not unlike a “warehouse.”  Id.

So the Democracy Forward Court started with first principles, positing that “‘FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.’”  Democracy Forward, at *5 (quoting U.S. Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 774 (1989) (italics in original).  Accordingly, a “document that could not reveal anything about agency decisionmaking is not an ‘agency record.’”  Id.  Because GSA did not create, review, search, consult or in any way use the Trump Transition Team’s email communications, the documents could not shed any light upon GSA’s operations or decision-making. Id.  The Court cited Wolfe v. Department of Health & Human Services, 711 F.2d 1077, 1078 (D.C. Cir. 1983), the only D.C. Circuit precedent regarding transition team records, in support.[4]

The Court, for the sake of completeness, applied the four-factor Burka test, offering interesting comments along the way.  The Court concluded that the Trump Transition Team did not intend to relinquish control over its email to GSA.  Indeed, “[t]he Trump transition team . . . would have had no reason to expect that by merely hosting its communications, GSA would come to ‘control’ them.”  Id. at *6.  But, plaintiff argued, “[o]nce it became clear that GSA would not be disposing of the records per [its] historical practice,” the transition team’s “decision to permit GSA to continue retaining them counsels against the conclusion that the [transition team] intended to retain control of the records.”  Id. at *7 (quoting Memorandum in Support of Plaintiff’s Motion for Partial Summary Judgment. and Opposition to Defendant’s Motion for Summary Judgment). In response, the Court asserted its doubt that “the transition team had any right or ability to ‘take control of the records’ once it became known that there was a law-enforcement interest in them.”  Id.

With respect to the second factor, plaintiff argued that GSA had exhibited its power to use and dispose of the transition teams’ records “as it saw fit” by unilaterally deciding to preserve those records, voluntarily disclosing them to law enforcement agencies, and restricting the transition team’s access to them. Id.  But, the Court explained, “GSA did not use or dispose of the records ‘as it s[aw] fit,’ but only preserved and transmitted them at the request of law enforcement.”  Id.

With respect to the third and fourth Burka factors, the Court concluded that GSA’s simple act of copying records in its possession and turning them over as the FBI requested did not constitute sufficient reliance on the documents or integration into the agency’s records system. Id.

The Court noted that plaintiff was seeking from GSA records that it almost certainly could not obtain “in full” directly from DOJ — the third shell in our three-shell game.  DOJ could invoke Exemptions 3 (grand jury material) and 7 (law enforcement records)—to avoid disclosure.  Id. at *8.  Allowing plaintiff to obtain the documents, without regard to the law enforcement exemptions, “would be the odd result . . . if the court were to embrace Plaintiff’s position.” Id.

Analysis

Let us briefly analyze value of transparency and the applicability of FOIA with respect to each of the three entities related to the case: presidential transition teams, GSA, and the FBI.

The Transition Team

The records in question are clearly those of the presidential transition team.  The members of the transition team create and use the documents.  Indeed, the requested materials provide a record of the transition team members’ communications and no doubt can provide valuable insight into the origins of many initiatives the President ultimately embraces upon taking office.  For example, were there discussions regarding including a citizenship question on the short form of the 2020 census during the presidential transition; was the origin of the idea in the transition?  FOIA’s transparency goals might well appear to be served by disclosure of transition materials.

However, most transition team members are not yet federal officials and some never will be.  Moreover, there are strong reasons to prevent current agencies from having access to communications of an incoming administration.  After all, those policies may be hostile to those of the incumbent administration—this was the case, with a vengeance, in the last change in administrations.

But presumably, even if transition team records were covered by FOIA, the great majority would be covered by Exemption 5’s deliberative process privilege.  Virtually all of the records would be pre-decisional; the transition team members have no decision-making authority and are presumably largely providing personnel and policy recommendations.  And many are probably “deliberative,” expressing opinions and recommendations rather than providing factual information.  And indeed, since many of those recommendation are directed to the President, the presidential communications privilege might well be extended to this context (even though the President-Elect has not yet taken office).

But should the records of the transition team for the candidate who ultimately assumes the presidency be considered presidential records for purposes of the Presidential Records Act of 1978, Pub. L. 95–591, 92 Stat. 2523 (codified as amended at 44 U.S.C. §§2201-2209) ((“the PRA”)?  The PRA makes presidential documents property of the United States, 42 U.S.C. §2202, but allows former presidents to retain significant control over their release, see, 42 U.S.C. §2202.

The PRA defines presidential records quite broadly, to include any document “created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President,” 44 U.S.C. §2201(2)(A).[5]  But it excludes “personal records.”  Id., §2201(2)(B)(ii).  The National Archives and Records Administration considers “[r]ecords created by the President-elect and his transition team” to be “personal records.”  National Archives and Records Administration, Guidance on Presidential Records 5 (2016).  Such records fall within the PRA (or other government records laws) only “to the extent that these records are received and used after the inauguration by the incoming Presidential Administration.”  Id.  Traditionally, former presidents have donated these personal transition records to the National Archives and Records Administration for deposit in their presidential libraries. Id.  Nevertheless, given that transition documents might well be important parts of an administration’s historical record, perhaps the donation of such records should not be left to presidential discretion.

GSA

The Democracy Forward Court is clearly correct that presidential transition team communications should not be considered GSA records.  Its reasoning is entirely sound.  In addition, as noted above, there can be a conflict of interest between agencies under the control of the incumbent administration and the incoming President-Elect’s team.  Recognizing GSA control over transition team documents, and presumably some right to review and use those documents, would undermine the usefulness of the assistance provided the President-Elect. Indeed, it would encourage the President-Elect to establish his or her own independent communications system for transition officials.

In any event, the analogy with Cause of Action v. National Archives and Records Administration, is strong.  GSA is merely serving as a repository of documents, much as NARA serves as a repository for congressional documents (or, for that matter, documents archived by executive branch agencies).

The FBI

Could a FOIA requester obtain the transition team communications records from the FBI?  Surely the FBI has sufficient control over the documents turned over to them for the documents to qualify as the FBI’s “agency records.”  As the Court suggested, the availability of the documents under FOIA would largely turn on the application of FOIA Exemption 7 — FOIA’s law enforcement exemption.[6]

Whether the transition team communications were “compiled for law enforcement purposes,” as required by Exemption 7, might have posed a difficult question.  One could easily interpret Exemption 7 to require that to qualify as records “compiled for law enforcement purposes,” the records had to be originally assembled for such purposes.  See, John Doe Corp. v. John Doe Agency, 850 F.2d 105, 108-09 (2d. Cir. 1988); John Doe Corp. v. John Doe Agency, 493 U.S. 146, 160-164 (Scalia, J., dissenting).  The transition team records were certainly not gathered or composed for law enforcement purposes.  And while GSA might be viewed as compiling, i.e., preserving and transferring, the records in case they were needed by criminal and national security investigators, it seems odd that the actions of an agency that never “controlled” the records (at least for FOIA purposes) should matter. As for the FBI, receiving documents preserved by GSA hardly seems to fit the ordinary meaning of the word “compiled.”[7]

But the Supreme Court’s broad definition of “compiled for law enforcement purposes,” an interpretation explicitly designed to ensure that FOIA reflected a workable balance between transparency and competing government interests, makes the question easy.  In John Doe Corp. v. John Doe Agency, 493 U.S. 146 (1989), the Court held that the documents did not have to be originally assembled for law enforcement purposes, they merely need to have been acquired by a law enforcement agency for investigative purposes by the time the FOIA request was made.[8]  John Doe involved correspondence between a defense contractor and the Defense Contract Audit Agency (DCAA) regarding proper accounting treatment of certain costs.  The FBI acquired the documents seven years later, as a part of a U.S. Attorney’s Office investigation into possible fraudulent practices by the Corporation.  The Court held that the FBI had compiled the documents for law enforcement purposes.

However, a holding that the transition team communications are law enforcement records provides much less of an obstacle to their release than a holding that they are not agency records (either of GSA or the FBI) at all.  Law enforcement records cannot be withheld under FOIA Exemption 7 unless they also fit under one of six sub-categories of exemptions provided in Exemption 7.  The last three exemptions, exemptions 7(D), 7(E), and 7(F), will likely be irrelevant with regard to transition records acquired by the FBI.   Those exemption safeguard confidential informants’ identities, investigative techniques and procedures, and information whose release would endanger physical safety.  The exemptions for “law enforcement records or information [that] (A) could reasonably be expected to interfere with enforcement proceedings, [or] (B) would deprive a person of a right to a fair trial or an impartial adjudication,” might well apply but are temporally limited.  Once enforcement proceedings conclude, such records can no longer be withheld.[9]

The privacy exemption 7(C) might be applicable.  Identifying people who will be key presidential staffers, Cabinet members, sub-cabinet members, and other appointees in the new administration occupies much of presidential transition teams’ time and attention.  While those ultimately appointed to high level positions have a diminished privacy interest, many potential nominees considered for such posts will never be selected.  Thus, disclosure of transition team communications might raise significant privacy issues.

However, transitions are significant in terms of the course of the policies the incoming administration will implement.  And at least emails regarding policy debates will probably not reveal intimate personal or familial details either of the correspondents or any person referenced in the correspondence.  Thus, the balancing between privacy and the public interest in disclosure is likely to come out in favor of the latter in many instances.

But a more subtle analysis of the public interest may be required.  A court may insist that the relevant public interest in disclosure be facilitating scrutiny of the law enforcement agency, not the transition team.  By so restricting the conception of the public interest in disclosure, a court could preserve the protections for transition team consultations, which stem both from the fact that the transition teams are not FOIA agencies and from the deliberative process privilege that would protect the type of deliberations in which transition teams engage even if FOIA applied.  FOIA requesters could not avoid such limitations on seeking disclosure directly from transition teams by submitting requests to law enforcement agencies that hold the communications.

Next contestant for the three-shell game, step right up!

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[1] The Pre-Election Presidential Transition Act of 2010, Pub. L. 111-283, 124 Stat. 3046, extends those services to candidates even before they win election.

[2] In particular, Democracy Forward sought:

Any and all correspondence, including attachments, to or from “ptt.gov” email addresses associated with Rick Dearborn, Mike Pence, Michael Flynn, Rudy Giuliani, Chris Christie, Jeff Sessions, Ben Carson, K.T. McFarland, Pam Bondi, Jared Kushner, Rebekah Mercer, Steven Mnuchin, Devin Nunes, Anthony Scaramucci, Peter Thiel, Reince Priebus, Steve Bannon, Donald Trump Jr., Eric Trump, Ivanka Trump, and Omarosa Manigault on any server controlled by the General Services Administration.

Only two were federal officials at the time of the transition, Senator Jeff Sessions and Representative Devin Nunes. Several never assumed federal positions, including Guiliani, Christie, Bondi (Attorney General for the State of Florida), Mercer, Donald Trump, Jr., and Eric Trump.  But several were appointed and confirmed as cabinet members, and others appointed as White House advisors.

[3] The Court cited Judicial Watch v. U.S. Secret Service (“Judicial Watch II”), 726 F.3d 208 (D.C. Cir. 2013)(White House visitor logs not “agency records” of the Secret Service); United We Stand America, Inc. v. IRS, 359 F.3d 595 (D.C. Cir. 2004)(document created in response to congressional inquiry), and Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978)(transcript of congressional hearing).

[4] In Wolfe, the plaintiffs sought a report compiled by President-Elect Reagan’s transition team regarding the Department of Health and Human Services (“HHS”).  The transition team had distributed copies HHS Secretary-designate and an aide, David Newhall, who would become his Chief of Staff. Newhall brought copies of the transition report with him and placed them in a locked bookcase in his HHS office, but neither Newhall nor any other HHS employee ever used or consulted the report, except in connection with the FOIA litigation over its release.

[5] It includes such documents only when they are created or received “in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.”  Id.

[6] Exemption 7 exempts:

“records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual.”

[7] Surely if a regular agency’s communications were preserved for a potential criminal investigation, the records would not become immune from disclosure as a result.  But the fact that the FBI could withhold a record would preclude recognizing an obligation of the originating agency to supply the documents.

[8] John Doe Agency v. John Doe Corp., 493 U.S. 146, 153 (1989); see also, Electronic Privacy Information Center v. DHS, 777 F.3d 518, 522 (D.C. Cir. 2015); Lion Raisins v. USDA, 354 F.3d 1072, 1082 (9th Cir. 2004); KTVY-TV v. United States, 919 F.2d 1465, 1469 (10th Cir. 1990) (per curiam).

[9] NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 230 (1978); see, Solar Sources, Inc. v. United States, 142 F.3d 1033, 1037 (7th Cir. 1998) (Exemption 7(A));  Wash. Post Co. v. DOJ, 863 F.2d 96, 101-02 (D.C. Cir. 1988)(Exemption 7(B)).