Case 1:17-cv-06335-AKH Document 111 Filed 06/28/19 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHER N DISTRICT OF NEW YORK
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BRENNAN CENTER FOR JUSTICE AT NEW
YORK UNIVERS ITY SCHOOL OF LAW; THE
PROTECT DEMOCR ACY PROJECT, INC.
Plaintiffs,

OPINION AND ORDER
DENYING RECONSIDERATION
17 Civ. 6335 (AKH)

-againstU.S. DEPARTM ENT OF JUSTICE; U.S.
DEPARTM ENT OF HOMELA ND SECURITY ;
U.S. GENERAL SERVICES
ADMINIST RATION; OFFICE OF
MANAGE MENT AND BUDGET; U.S. SOCIAL
SECURITY ADMINIST RATION,
Defendants.

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:______,_ __
DATE FILED: l'o{i-~/U)t°J

-------------------------------------------------------------- X

ALVIN K. HELLERS TEIN, U.S.D.J.:
This Freedom of Information Act ("FOIA") case arises in the context' of an
investigation of alleged voter fraud. Plaintiffs Brennan Center for Justice at New York
University School of Law and the Protect Democracy Project, Inc. (collectively, "plaintiffs")
made demand under the Freedom oflnformat ion Act ("FOIA"), 5 U.S.C. § 552, for the
documents of the Presidential Advisory Commissio n on Election Integrity's ("Commiss ion")
work and filed suit against the U.S Departmen t of Justice ("DOJ"), U.S. Departmen t of
Homeland Security ("DHS"), U.S. General Services Administra tion ("GSA"), U.S. Office of
Manageme nt and Budget ("OMB"), and U.S. Social Security Administra tion ("SSA")
(collectively "defendant s" or "Governme nt").

 Case 1:17-cv-06335-AKH Document 111 Filed 06/28/19 Page 2 of 4

Defendants move for partial reconsideration on the second of two issues in my
April 30, 2019 Opinion and Order ("Opinion") granting partial summary judgment to plaintiffs.
The Opinion requires defendants first, to adopt additional search terms, and second, to conduct
searches of Principal Deputy Assistant Attorney General John Gore ("Gore") and DOJ Attorney
Maureen Riordan's ("Riordan") personal email accounts, and to poll relevant agency employees
regarding the presence of agency records on private email accounts. ECF 99. For the reasons set
forth below, defendants' motion is denied.

Background
The relevant facts are contained in the April 30, 2019 Opinion. I previously
denied defendants' request to file with this instant motion additional declarations from Gore and
Riordan, not previously filed and purporting to show that the forwarded emails, and other emails
on the account, were personal, not official, communications. ECF 103.

Discussion
A court may grant reconsideration pursuant to Local Rule 6.3 where the party
moving for reconsideration demonstrates an "intervening change in controlling law, the
availability of new evidence, or the need to correct a clear error or prevent manifest injustice."
Schoolcraft v. City of New York, 298 F.R.D. 134, 136 (S.D.N.Y. 2014). "Local Rule 6.3 must be
'narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have
been considered fully by the court."' Liberty Media Corp. v. Vivendi Universal, S.A., 861 F.
Supp. 2d 262,265 (S.D.N.Y. 2012) (quoting United States v. Treacy, No. 08 Cr. 0366, 2009 WL
47496, at* 1 (S.D.N.Y. Jan. 8, 2009)).
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 Case 1:17-cv-06335-AKH Document 111 Filed 06/28/19 Page 3 of 4

"Indisputably, the FOIA extends only to materials qualifying as 'agency
records."' Wright v. Admin.for Children & Families, No. CV 15-218, 2016 WL 5922293, at *7
(D.D.C. Oct. 11, 2016) (citing 5 U.S.C. § 552(a)(4)(B)). This inquiry first involves a
consideration "whether, when an employee creates a document, that creation can be attributed to
the agency under FOIA." Bureau of Nat. Affairs, Inc. v. US. Dep't ofJustice, 742 F.2d 1484,
1492 (D.C. Cir. 1984). Second, the inquiry considers "whether an agency has sufficient 'control'
over a document to make it an 'agency record."' Judicial Watch, Inc. v. US. Secret Serv., 726
F.3d 208, 218 (D.C. Cir. 2013). The determination whether a document constitutes an agency
record turns on whether a document was created, obtained, or came "into the agency's
possession in the legitimate conduct of its official duties." US. Dep 't ofJustice v. Tax Analysts,
492 U.S. 136, 145 (1989).
Defendants argue that reconsideration is warranted based on my determination
that Gore and Riordan's emails were agency records, relating to and used to conduct official
agency business. I considered, and rejected, the Government's position. At oral argument, the
Government emphasized that the FOIA does not require agencies to produce "personal papers
that may 'relate to' an employee's work-suc h as a personal diary containing an individual's
private reflections .... " Bureau ofNat. Affairs, 742 F.2d at 1493. I addressed this argument
and concluded that "[w]e are not talking about private musings or private thinking. We are
talking about communications." Transcript ("Tr."), ECF 92, at 18:22-23. The emails, which
concern voting integrity, and which were received and created by CRT employees who enforce
voting law, "reflect substance related to, and therefore shed[] light on" the conduct of their
official duties. Hyatt v. US. Patent & Trademark Office, 346 F. Supp. 3d 141, 148-49 (D.D.C.
2018).
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Defendant s' remaining arguments rely on the premise that the emails were not
agency records. Defendant s' position is without merit and contradicts the record in this case.

Conclusion
Defendants ' motion for reconsideration is denied. The clerk is instructed to
terminate the motion (ECF 104).

SO ORDERED .
Dated:

JuneJ/1, 2019
New York, New York

ALVIN K. HELLERS TEIN
United States District Judge

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