1 ibk2breA 1 2 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x BRENNAN CENTER FOR JUSTICE, et al., 4 Plaintiffs, New York, N.Y. 5 v. 17 Civ. 6335(AKH) 6 7 U.S. DEPARTMENT OF JUSTICE, et al., 8 9 Defendants. ------------------------------x Argument November 20, 2018 11:15 a.m. 10 11 Before: 12 HON. ALVIN K. HELLERSTEIN, 13 District Judge 14 15 APPEARANCES 16 17 18 19 JENNER & BLOCK, LLP Attorneys for Plaintiffs BY: CARL N. WEDOFF DAVID W. SUSSMAN KATHERINE ROSOFF 20 21 22 GEOFFREY S. BERMAN United States Attorney for the Southern District of New York CASEY KYUNG-SE LEE Assistant United States Attorney 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 ibk2breA 1 THE COURT: For the Brennan Center, we have cARL 2 Wedoff, David Sussman, and Katherine Rosoff. 3 all. 4 COUNSEL: 5 THE COURT: 6 MR. LEE: 7 THE COURT: 8 MR. LEE: 9 THE COURT: 10 Good morning, Good morning. For the government, we have Mr. Lee. Yes, your Honor. Do you feel lonely? No, I am fine. Thank you. Both of you have made motions for summary judgment, so I will hear the plaintiff first. 11 MR. WEDOFF: 12 THE COURT: 13 MR. WEDOFF: Good morning, your Honor. Take the podium, please. Your Honor, we styled the motion as a 14 motion to compel production of documents, but we think what 15 really matters is that you answer three questions. 16 THE COURT: 17 MR. WEDOFF: That what? We think the style of the motion is 18 secondary and that you need to answer three questions. 19 questions are: one, whether the government can take two years 20 to respond to a targeted FOIA request; two, whether the 21 government can use three generic search terms to respond and 22 conduct a search for over a dozen targeted requests -- 23 THE COURT: What kind of search terms? 24 MR. WEDOFF: They searched for -- 25 THE COURT: What word did you use? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 The 3 ibk2breA 1 MR. WEDOFF: They basically used the name of the 2 commission or they used "voting fraud" and the word 3 "commission." 4 members, which were one of the requests that we made to both 5 OMB and DHS. 6 They did not use the names of the commission The third question we need answered is whether the 7 government can avoid searching a private e-mail account when we 8 know that the private e-mail account, and the evidence shows 9 the private e-mail account, contains responsive records. 10 THE COURT: 11 MR. WEDOFF: 12 THE COURT: 13 Let's take the second question first. Sure. You made a demand of Homeland Security. Anybody else? 14 MR. WEDOFF: 15 THE COURT: 16 MR. WEDOFF: 17 THE COURT: 18 MR. WEDOFF: Yes, your Honor. OMB. Yes, your Honor. Anybody else? Your Honor, after we received for the 19 first time declarations specifying the search terms used by the 20 other agencies and components, we have withdrawn our request to 21 expanding the search terms, so that would be the DOJ components 22 and it would also be GSA. 23 prior to receiving the opposition -- 24 THE COURT: 25 MR. WEDOFF: We did not have that information What did you withdraw? So we withdrew our request to modify the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 ibk2breA 1 search terms for DOJ CRT, DOJ -- 2 THE COURT: 3 MR. WEDOFF: 4 What is CRT? Civil Rights Division. I don't know where the "T" comes from. 5 THE COURT: DOJ CRT, OMB. 6 MR. WEDOFF: OMB we are withdrawing our request. It 7 is the three DOJ components, so DOJ CRT, the DOJ Office of 8 Information Policy, and the DOJ Office of Legal Counsel. 9 in addition, we are withdrawing our request with respect to the 10 General Services Administration. 11 12 And, THE COURT: So it is the Department of Justice, Department of Homeland Security, and the Civil Rights -- 13 MR. WEDOFF: 14 THE COURT: -- which is also part of the DOJ, isn't MR. WEDOFF: Civil Rights Division is part of DOJ. 15 16 So what's left, your Honor -- it? 17 What's left is DHS and OMB. 18 limited their search to -- 19 THE COURT: 20 MR. WEDOFF: 21 THE COURT: Those are the two defendants who DHS and OMB is what's left. That's what's left, correct, your Honor. Okay. So normally you make a broad 22 request for documents and the government produces or doesn't 23 produce documents. 24 the word. 25 What it doesn't produce on a -- I forgot MR. WEDOFF: Vaughn. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 ibk2breA 1 THE COURT: A Vaughn declaration. 2 You think the search has been too narrow. 3 MR. WEDOFF: We do, your Honor. At a minimum, the 4 failure to search the names of commission members, we believe, 5 is not reasonably designed to capture relevant and responsive 6 records. 7 8 For example -THE COURT: These commission members were appointed only to do work of this commission. 9 MR. WEDOFF: 10 THE COURT: Is that -- That's correct, your Honor. So if you put in their names and limit it 11 in a certain fashion, you would get relevant documents. 12 your argument. 13 MR. WEDOFF: That's Our argument, for example, if Kris Kobach 14 e-mailed an employee at OMB or an employee at OMB was talking 15 about Kris Kobach's work with the commission but didn't spell 16 out Presidential Advisory Commission on Election Integrity, we 17 think that document -- 18 THE COURT: I have the point, but you can't have a 19 request that is so broad just as to have a name. 20 be some limitation on it. 21 MR. WEDOFF: Correct. There has to We asked for communications 22 with commission members. And just to be clear, the other 23 agencies and components did search those names, and we don't 24 think it is unreasonable to request than OMB and DHS do the 25 same. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 ibk2breA 1 2 3 THE COURT: the podium. What's the justification, Mr. Lee? Take Take the other podium. MR. LEE: Your Honor, the justification that is 4 provided in the declarations that the government provided was 5 that both DHS and OMB, as with the other agencies, separately 6 looked into what responsive terms would be, where likely 7 responsive records would be found, and they determined that the 8 search terms that they used were either commonly used by the 9 agency internally to refer to the Commission On Election 10 11 12 13 Integrity or -THE COURT: What's the harm in having a search based on names? MR. LEE: Your Honor, it is not a matter of harm. 14 question is whether or not there is a basis to say that it 15 should be rerun right now. 16 the search is reasonably designed to turn up or obtain 17 responsive records, then a FOIA requester is not allowed to 18 either second guess or come back and dictate search terms. 19 20 THE COURT: MR. LEE: 22 THE COURT: 24 25 And under case FOIA case law, if But you don't reach in your search terms anything on a private computer. 21 23 The That would be a separate issue. And you don't reach in your search terms any correspondence from various commission members. MR. LEE: That's not necessarily true, your Honor, because if there is an e-mail that comes in and refers to one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 ibk2breA 1 of the terms that counsel labels as generic, we would say that 2 they are broad, and broader search terms are going to come up 3 with more search results and search hits, not less. 4 THE COURT: 5 MR. LEE: 6 Give me an example. So, for example, OMB determined that the acronym PACEI, P-A-C-E-I, was frequently used within OMB -- 7 THE COURT: 8 MR. LEE: 9 THE COURT: Give me that again. Sorry, P-A-C-E-I. 10 MR. LEE: 11 THE COURT: 12 MR. LEE: 13 THE COURT: 14 MR. LEE: PACER? PACEI, P-A-C-E-I. P-A-C-E-I. Yes. What is the significance of that? It is the acronym for the full name of the 15 commission, the Presidential Advisory Commission on Election 16 Integrity, and OMB inquired internally and determined that that 17 was a widely used acronym within the agency. 18 19 20 THE COURT: It may be widely used, but not necessarily in substantive letters. MR. LEE: Sure, which is why they also used broader 21 terms, "election commission" or "election integrity 22 commission," in case -- to try and capture responses -- or 23 documents, I should say, that do not use the acronym. 24 25 So what OMB did is, it said, look, here is what -here is how it -SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 ibk2breA 1 THE COURT: The problem with your approach, Mr. Lee, 2 is that people often write on substantive matters without using 3 the official names. 4 would use the names, and subsequent pieces of correspondence 5 might not use the names. 6 terms, although I'm not saying it is not in good faith, can be 7 improved. 8 Mr. Wedoff suggests. 9 Maybe the initial piece of correspondence It seems to me that your search They can be improved by the kind of approach that MR. LEE: Our response to that, your Honor, is, first, 10 we understand that point that not every piece of correspondence 11 or document is going to use the official name. 12 precisely why OMB used broad terms in addition to the acronym 13 to try and capture responsive records. 14 15 THE COURT: That's Broader terms are "election commission" "election integrity commission"? 16 MR. LEE: Correct, your Honor. 17 THE COURT: 18 MR. LEE: 19 THE COURT: It's not enough. But, your Honor -There is no reason for correspondence 20 among members of the commission except for the purpose of their 21 appointment. 22 MR. LEE: I'm sorry, your Honor? 23 THE COURT: There is no reason for correspondence 24 among the members of the commission except for business of the 25 commission. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 ibk2breA 1 MR. LEE: It wouldn't necessarily leave those out, 2 your Honor, because if you have broad search terms referring to 3 the commission, it is going to capture those pieces of 4 documents or correspondence no matter who they are from. 5 And, separately, on the point of whether or not a 6 search can be improved, that's not the test. 7 whether or not this search was reasonably designed to capture 8 all records, not whether or not it actually captured all 9 records. 10 THE COURT: I don't believe it is. The question is I think any search 11 term that doesn't deal with the people who actually are 12 involved is inadequate. 13 necessarily have a subject matter. 14 implied or understood, and none of your search terms on these 15 three search terms will capture that business. 16 plaintiff is entitled to it. 17 MR. LEE: People write on business and don't The subject matter may be I think the Well, respectfully, your Honor, what 18 agencies do and what they are allowed to do is to inquire 19 internally to see whether terms would reasonably capture those 20 documents or not. 21 have the discretion to say, well, look, let's use the names 22 here. 23 found that it would not necessarily be likely to turn up 24 additional records. 25 THE COURT: In the case of certain agencies, they can In other instances, such as in OMB and DHS's cases, they I hold that the search terms are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 ibk2breA 1 inadequate, that basic search terms on a commission that's ad 2 hoc will necessarily include the individual names of the search 3 terms and the government has to expand, enlarge its use of 4 these search terms. 5 MR. LEE: Your Honor, I respectfully request some 6 clarification here. 7 would have to do is add the names of the members of the 8 commission? 9 THE COURT: 10 MR. WEDOFF: 11 THE COURT: 13 MR. WEDOFF: 14 THE COURT: 15 MR. LEE: It will be acceptable? Yes. The answer is yes. but thanks the court -THE COURT: 18 MR. LEE: clarification. Say it again, Mr. Lee? The government thanks the court for that Of course we will consult with OMB -- 20 THE COURT: 21 commission members. 22 MR. LEE: 23 THE COURT: 24 MR. LEE: 25 Your Honor, that would be acceptable. Well, the government reserves its rights, 17 19 Mr. Wedoff? We -- 12 16 Is the only thing that the government So you will add the names of the If the court orders it, we understand. I so order it. Yes. We understand that's the court's order. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 ibk2breA 1 2 3 THE COURT: Okay. That's issue number one. You have it listed under number two, right? Number two is whether it is appropriate to search the 4 individual computers where each commission member has to search 5 his or her own computer, right? 6 MR. WEDOFF: Slightly different than that, your Honor. 7 The request that we have, we know for at least -- there are two 8 officials at the Civil Rights Division -- John Gore and Maureen 9 Riordan -- who used private e-mails for official agency work. 10 11 THE COURT: But what we see and hear in Washington is that it is common. 12 MR. WEDOFF: 13 practice, as well, your Honor. 14 THE COURT: I heard a story this morning about this Well, we have heard about it in the last 15 several years, not starting with Hillary Clinton, going back. 16 People use individual computers. 17 official and unofficial computer systems often interchange 18 between the two. 19 personal computer. 20 note on that computer, writes a communication on that computer 21 even though it is not an official computer. 22 Some people prefer it. 23 going through government filters is swifter. 24 reason, people use their own individual e-mail accounts. 25 Those of us who use our Notes can be made while a person is on his Something occurs to him, and he makes a It is frequent. The interchange of information not For whatever I don't see why the search should not be expanded to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 ibk2breA 1 go into these e-mail accounts with an appropriate set of 2 limitations. 3 MR. LEE: Your Honor, we respectfully disagree with 4 both plaintiffs' request for relief and their characterization 5 of the e-mails that were produced by the agency, namely, the 6 Civil Rights Division. 7 As a start, what they have asked for in their motion 8 for relief is a search of private e-mails for all seven 9 agencies and components that are defendants in this case, and 10 there is no basis for that. 11 THE COURT: 12 MR. LEE: 13 14 There is basis for it. Your Honor, we respectfully disagree. And as stated -THE COURT: There is basis for it because of the 15 proclivity of people to use individual e-mail accounts to 16 conduct government business and because of the rule that 17 government business found on an individual account is 18 government paper. 19 MR. LEE: Your Honor, that would be contrary to FOIA 20 case law which states that agency employees are assumed to 21 maintain and fulfill their responsibilities; and, as the 22 declarations state, each of these employees were under agency 23 policy to conduct government's business on official government 24 e-mails, and -- 25 THE COURT: The presumption is a presumption. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 But 13 ibk2breA 1 knowing the proclivity of people to use personal e-mail 2 accounts to conduct official business, it is overridden. 3 MR. LEE: Your Honor, we respect -- 4 THE COURT: The cases that you cite, there is a 5 different kind of record to assure that there is nothing on 6 their personal computer. 7 MR. LEE: 8 THE COURT: 9 There isn't that in this case. Your Honor -Now, I would say this, that if there are appropriate words of limitation in the search that are keyed to 10 only capture that which is the business of the commission, it 11 seems to me it is allowable. 12 negotiate appropriate limitations, and that will capture only 13 that on the personal computer which is government business. 14 15 MR. LEE: this point. So it is up to the two of you to Your Honor, I request that I be heard on First of all -- 16 THE COURT: 17 MR. LEE: I am listening. First of all, the presumption is that agency 18 employees have fulfilled their agency responsibilities and 19 complied with policy. 20 evidence to overcome, and we submit that a general proclivity 21 cannot fulfill this burden. 22 seven -- all of them address the point. 23 no evidence to suggest that private e-mails have been used to 24 conduct official agency business that would be responsive to 25 plaintiffs' FOIA request, and they state that expressly. It requires strong evidence or clear And the agencies, six of the Six of the seven found SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 As 14 ibk2breA 1 far as the seventh one, so we are only dealing with one agency 2 here than found evidence that might suggest -- 3 THE COURT: 4 MR. LEE: 5 THE COURT: 6 Others used the personal names. Sorry? Others searched the personal accounts, did they not? 7 MR. LEE: What they do is they inquire, where they 8 look into the production to see whether or not anyone -- 9 whether there was any indication that somebody had used private 10 e-mails. 11 THE COURT: 12 MR. LEE: 13 So it is limited to DHS and OMB. No, just CRT, the Civil Rights Division, your Honor. 14 THE COURT: 15 MR. LEE: The Civil Rights Division. And if I may address the Civil Rights 16 Division here, first off, plaintiffs claim that defendants 17 admit that high-ranking agency personnel used private e-mail to 18 conduct core agency business relating to commission. 19 page 10 on plaintiffs' reply. 20 and there is no basis to claim that. 21 contents of the e-mails themselves, which plaintiffs attached 22 to Mr. Wedoff's declaration, that that's not the case. 23 24 25 That's And, no, we never admitted that, And one can view from the First of all, with respect to Ms. Maureen Riordan, the DOJ policy required -THE COURT: One moment. Can I see the declaration, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 ibk2breA 1 please? 2 (Pause) 3 THE COURT: 4 MR. WEDOFF: 5 MR. LEE: 7 (Pause) 8 THE COURT: 10 11 12 13 Ms. Riordan's e-mails Exhibits 24 and 25, your Honor. 6 9 Where is it in your declaration? Yes, Docket No. 77-24 and 77-25. The record should show that off the record there have been discussions between my law clerk and Mr. Lee as to where top find the particular document. So what's been given to me? So what in this is relevant? MR. LEE: So, in particular, with respect to 14 Ms. Riordan, these e-mails in fact demonstrate that she did 15 comply with agency requirements. 16 policy required that any e-mails where official business was 17 conducted be forwarded to the official account within 20 days. 18 We don't concede that these are necessarily official agency 19 business e-mails, but even if they were, what they show is that 20 Ms. Riordan forwarded those e-mails from her private account to 21 her official DOJ CRT account well within the 20-day limit. 22 these e-mails, which are pure, raw forwards of a news article 23 and of a brief that was filed, those show that she is complying 24 with DOJ requirements and that there is no basis to say that 25 she was flouting those requirements by conducting CRT business Both the FRA and the DOJ SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 So 16 ibk2breA 1 on her private Comcast e-mail account. 2 THE COURT: 3 MR. WEDOFF: 4 THE COURT: 5 MR. WEDOFF: Mr. Wedoff. Your Honor, what FOIA requires is -What about this piece of evidence? Oh, this piece of evidence I think is 6 squarely within the request, it is clearly responsive, and 7 clearly this e-mail account -- 8 9 THE COURT: You received it, haven't you? It's been produced to you. 10 MR. WEDOFF: We have, but what this shows is that her 11 e-mail, her private e-mail account is a repository of records, 12 and if she is receiving these e-mails from a commission member 13 talking about what you need for national voting standards -- 14 THE COURT: Your argument is that the indication of 15 one piece of correspondence that's been forwarded suggests that 16 there are likely to be others that may or may not be forwarded. 17 MR. WEDOFF: Right. And we think the presumption is a 18 lot stronger with Mr. Gore, but we think it is supported here 19 as well. 20 And the whole purpose of a FOIA search, if you look at 21 Landmark Legal, 959 F.Supp.2d 175, if you look at that case, it 22 says you have to look at the repositories of information, and a 23 single concrete example is enough to demonstrate that this is a 24 repository of responsive records. 25 enough that she forwarded this in compliance with CRT So we don't think it is good SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 ibk2breA 1 2 guidelines. We would also note that, with Mr. Gore, he did not 3 comply with the FRA. 4 e-mails where, unlike Ms. Riordan, who is simply taking 5 communication in, he was actually engaging in a back-and-forth. 6 It was months before he forwarded that information to his 7 government account. 8 needs to be searched. 9 MR. LEE: He took months to forward his private So at a minimum, Mr. Gore's e-mail account Your Honor, we would completely disagree 10 with the characterization of Mr. Gore's e-mails, but I'm going 11 to finish discussing Ms. Riordan's e-mails, which is that if 12 there is an agency policy and the statute says forward 13 documents concerning official agency business within 20 days 14 and she does it, then the presumption holds and that is not 15 evidence. 16 evidence thwarting a presumption here. 17 Compliance with policy and statute can't be strong And we don't agree that these are agency records. At 18 a minimum, for it to qualify as an agency record under FOIA, it 19 would have had to have been something in the conduct of 20 official government business, and there is nothing about two 21 raw forwards of an article and of a brief that was previously 22 filed to suggest that this was involved in any respect 23 whatsoever with her official duties at the Civil Rights 24 Division. 25 And the D.C. Circuit has previously held that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 ibk2breA 1 documents that just relate to particular FOIA requests does not 2 turn them into agency records. 3 Bureau of National Affairs, that's 724 F.2d 1484, pin cite at 4 1493, FOIA -- and that's my part, but now the quote starts -- 5 "cannot be extended to sweep into FOIA's reach personal papers 6 that may relate to an employee's work -- such as, a personal 7 diary containing an individual's private reflections on his or 8 her work -- but which the individual does not rely upon to 9 perform his or her duties." 10 THE COURT: 11 MR. LEE: 12 FOIA -- that's my insertion, and I am starting the 13 quote right now -- "cannot be extended to sweep into FOIA's 14 reach personal papers that may 'relate to' an employee's 15 work -- such, as a personal diary containing an individual's 16 private reflections on his or her work -- but which the 17 individual does not rely upon to perform his or her duties." To quote the D.C. Circuit in So the evidence that -- Would you read that quote to me again? Sure. 18 At most, what plaintiffs can draw from these -- 19 THE COURT: 20 talking about communications. 21 MR. LEE: 22 THE COURT: 23 24 25 We are Right, and we are talking -- or private thinking. MR. LEE: We are not talking about that. We are not talking about private musings We are talking about communications. Right, and communications that maybe relate to the commission here. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 ibk2breA 1 THE COURT: And if we get the appropriate words of 2 limitation, we can make sure that there is nothing of the 3 nature you are raising that will be produced or even sought. 4 MR. LEE: Well, an initial point, your Honor, is that 5 this issue of private e-mails is being raised regarding whether 6 or not the government performed an adequate search in response 7 to plaintiffs' FOIA requests, and a principle of FOIA that 8 applies across the board is that an agency only needs to search 9 those repositories of information where it believes responsive 10 records are likely to be found. 11 THE COURT: 12 MR. LEE: 13 THE COURT: And I think they are likely. Well, we don't -We are repeating ourselves. I have your 14 arguments. 15 private e-mail accounts need to be covered in this FOIA search. 16 Decision is reserved on the issue of whether MR. LEE: Your Honor, if I may have both your leave 17 and indulgence just to address the Mr. Gore e-mails that 18 plaintiff mentioned earlier because we did talk a lot of 19 Ms. Riordan's e-mails. 20 THE COURT: 21 MR. LEE: Go ahead. So Mr. Wedoff is correct that Mr. Gore in 22 this instance forwarded his e-mails months after the original 23 e-mail correspondence happened. 24 is between around July of 2017 to September 2017. 25 this comes back to the point of whether or not these were I believe that the difference SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 But, again, 20 ibk2breA 1 e-mails in the conduct of official agency duties and whether or 2 not this related to him performing his work as an officer and 3 as an employee -- or as an employee of the Civil Rights 4 Division. 5 6 And so I think, for starters, both Ms. Riordan and Mr. Gore -- 7 THE COURT: What's the importance of that decision? 8 If something fits both headings, why is it exempt from 9 production? 10 MR. LEE: It goes to the question of whether or not 11 this is an agency record, because FOIA only applies to agency 12 records. 13 e-mail -- 14 If it is a private e-mail and it doesn't count as an THE COURT: I don't think we are getting into the 15 question of who owns the records in terms of the government. 16 If someone in the Civil Rights Division is employed as an ad 17 hoc member of an ad hoc commission and engages in the 18 commission business while he is conducting business in the 19 Civil Rights Division, it is still under the sweep of the FOIA 20 request focused on the ad hoc commission, on the election 21 commission. 22 MR. LEE: Well, for starters -- 23 THE COURT: And the point that is being made, and on 24 which I reserved, is whether private e-mail accounts have to be 25 searched. I think I have heard enough argument, and I will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 ibk2breA 1 2 consider that and issue a decision. MR. LEE: Your Honor, just one point on that is that 3 Mr. Gore does state in his e-mail, on page 3, "I don't have any 4 relationship with the task force; but if you would like to send 5 me a write-up, I will see if I can get it to someone who does." 6 Ms. Riordan and Mr. Gore both stand ready to provide 7 declarations regarding what in the manner -- 8 9 THE COURT: commission. 10 MR. LEE: 11 THE COURT: 12 13 14 So Mr. Gore is not a member of the He is not a member of the commission. So he is not involved. The only persons that are sought by Mr. Wedoff are those who are members, right? MR. WEDOFF: No. We are seeking agency records that are communications with members of the commission. 15 THE COURT: 16 MR. WEDOFF: Members of the commission. The notion that they are not responsive 17 is belied by the fact that they were produced in response to 18 our request. 19 THE COURT: 20 MR. WEDOFF: Was Gore a member of the commission? Mr. Gore is not a member of the 21 commission, but he forwards this request to a member of the 22 commission, who responds, "Hopefully between DOJ and the 23 commission, we can clean up the voter rolls." 24 core agency business and if that's not responsive to our 25 request, I don't know what is, your Honor. If that's not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 ibk2breA 1 THE COURT: If Mr. Gore is not a commission member, we 2 are not talking about his private e-mail. 3 have a sweep of everyone who may have communicated to a member 4 of the commission. 5 the commission and their private e-mail accounts. 6 We are not going to So we are only focused on those members of MR. WEDOFF: Your Honor, to be clear, we have not 7 sought any records from commission members directly. 8 commission members are not subject to FOIA. 9 targeted at defendant agencies. 10 These requests are What we have sought and what we have asked for -- 11 12 The THE COURT: If there is agency business on a private computer, the agency controls that business. 13 MR. WEDOFF: Correct, your Honor. And we think that's 14 clear in the case law, and we think that Mr. Gore -- certainly 15 Mr. Gore, but Ms. Riordan, as well, both of them the evidence 16 they have produced rebuts the presumption that they have 17 complied. We think it is a very -- 18 THE COURT: 19 MR. WEDOFF: 20 Are they members of the commission? They are not members of the commission. But this is all we ask your Honor, we ask that -- 21 THE COURT: So I'm not understanding what the dispute 22 is. 23 private e-mail accounts. 24 25 I thought that your focus is on the commission members' MR. WEDOFF: Is that not right? No, it is not right, your Honor. What we are asking for are custodians who have used -- these are agency SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 ibk2breA 1 officials who would be subject to FOIA who have used their own 2 private e-mail accounts for matters relating to the submission 3 that's the subject of our suit. 4 Mr. Kobach. We are not going after We are not going after -- 5 THE COURT: Why is that relevant if it doesn't enter 6 into the commission business? 7 MR. WEDOFF: We think it does enter into commission 8 business, but the FOIA requests don't go after the commission 9 because the commission is not subject to FOIA. That's the 10 bottom line. 11 about cleaning up voter rolls, that's relevant and that's 12 responsive, whether it happens on private e-mail or not. 13 all we ask for, your Honor -- we are not asking for every 14 custodian at every agency to go through their private e-mails. 15 All we are asking for is the agencies to have a more robust 16 confirmation that those private e-mails were not used for 17 agency business. 18 asking the custodians, Have you discussed the commission? 19 you e-mailed with commission members? 20 21 22 So when the DOJ is talking to the commission And I think we can do that by saying -- THE COURT: Everybody? So Have How many individuals would we have? How many people? MR. WEDOFF: I think we just -- you have whoever is in 23 charge of responding to FOIA ask whoever the custodians are, 24 Have you communicated with commission members and have you 25 discussed the commission in private e-mails? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 ibk2breA 1 2 THE COURT: How many people would be involved in the sweep? 3 MR. WEDOFF: I don't have that total number of 4 custodians, but I don't think this is a sweep. 5 communicate via e-mail, you -- 6 THE COURT: 7 MR. WEDOFF: 8 I think you How many -Do you have any responsive e-mails? I think OLC and GSA have come pretty close to doing that. 9 THE COURT: But they have already produced that which 10 is in their files as to the communication and reach of their 11 files. We are now talking about private e-mail accounts. 12 MR. WEDOFF: Correct, your Honor, because we know -- 13 THE COURT: How many private e-mail accounts would be 14 involved? 15 It seems to me scores or hundreds. MR. WEDOFF: That's why we don't think a search of the 16 private e-mails in the first instance is the best way to handle 17 this. 18 inquiry that's a little more robust than -- because what they 19 are saying, they are not saying we inquired and there is no 20 private e-mail use. 21 believe that individuals have used private e-mails. 22 think that's good enough. 23 We think that if the agencies conduct an internal THE COURT: They are just saying, We have no reason to We don't What DOJ OLC did is -- How many private individuals would be 24 involved? I'm not going to give you in this FOIA request a 25 right to endless probing into individuals' files. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 So what is 25 ibk2breA 1 the reasonable limitation? 2 MR. WEDOFF: I think that the limitation is you ask 3 the custodians, did you use private e-mail for any issues 4 responsive to this request? 5 They could say no, and we would be done. 6 THE COURT: 7 MR. WEDOFF: I think it would be one e-mail. Responding to what request? Responsive to commission activity, so, 8 Have you e-mailed with commission members, Have you discussed 9 the commission in private e-mails. 10 11 12 If they say no, we are done. THE COURT: What you want are communications between commission members and other individuals. 13 MR. WEDOFF: Correct. 14 THE COURT: 15 MR. WEDOFF: That's right, your Honor. 16 THE COURT: And you want to search what? 17 MR. WEDOFF: Is that what you want? I don't think we need a search. 18 we can ask them. If they say no, that's good enough. 19 need to search everybody's private e-mail. 20 Mr. Gore -- 21 THE COURT: 22 MR. WEDOFF: 23 THE COURT: 24 MR. WEDOFF: 25 THE COURT: What do you want? I think We don't I think for A declaration -- Sure, a declaration -Can I finish? Yes, your Honor. You want a declaration from each member of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 ibk2breA 1 2 the commission that -MR. WEDOFF: 3 defendant agencies. 4 THE COURT: 5 MR. WEDOFF: 6 THE COURT: No, your Honor. A declaration from the Mr. Wedoff, was I finished? Yes, your Honor. I am asking if you want a declaration from 7 each member of the commission that he has produced everything 8 that he knows that is relevant to the inquiries. 9 10 MR. WEDOFF: declarations from members of the commission. 11 THE COURT: 12 MR. WEDOFF: 13 defendant agencies. 14 THE COURT: 15 MR. WEDOFF: 16 THE COURT: 18 MR. WEDOFF: 19 THE COURT: 20 MR. WEDOFF: 22 23 24 25 What are you asking for? We are asking for declarations from the That what? That they have inquired from their custodians whether they have used private e-mail. 17 21 Your Honor, we are not asking for any Who has used private e-mail? The custodians at each defendant agency. Who are the custodians. It depends on the agency, your Honor. It is in the declaration. THE COURT: private e-mail. The custodians wouldn't be using the It would be people in the commission. MR. WEDOFF: Your Honor, the DOJ Civil Rights Division e-mails that we have looked at are custodians using private SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 ibk2breA 1 2 3 4 5 e-mail to discuss commission business. THE COURT: The custodians are people responsible for filing and holding papers, right. MR. WEDOFF: It could be any official at the agency. So Mr. Gore, Ms. Riordan, they are custodians. 6 THE COURT: 7 MR. WEDOFF: "Custodian" is a technical term. Oh, I'm sorry. 8 clear about that. 9 swept into the request. 10 "Custodian" is anyone whose documents are THE COURT: 12 MR. WEDOFF: 13 simple inquiry of -- 15 16 That's what I mean by "custodian," your Honor. 11 14 I should have been more THE COURT: I am still not clear what you want. We just want the defendants to make a They are agencies. to make a declaration or an inquiry. MR. WEDOFF: How is an agency going Who? Who is responsible? Well, DOJ OLC I think is a good example, 17 because each of these defendants has submitted declarations in 18 support of Mr. Lee's brief. 19 I imagine, and they would just say that we have conducted a 20 reasonable inquiry from the recordkeepers as to whether they 21 used private e-mail. 22 THE COURT: 23 MR. WEDOFF: 24 25 It would be the same individuals, If the answer is no -Whether who used private e-mails? The people whose records are being swept into this request. THE COURT: What's wrong with that, Mr. Lee? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 ibk2breA 1 2 3 4 5 MR. LEE: Your Honor, I am certainly happy to take it to the agencies to see whether or not they -THE COURT: It is not a voluntary proposition; whether I should order that. MR. LEE: Your Honor, we would say that there is no 6 legal basis, and we would request plaintiff to provide any if 7 they believe that there is a legal basis to say that the 8 defendants' search was not adequate. 9 there is inquiry. That doesn't mean that The declarations provided by the government 10 did not just say we have no reason to believe that private 11 e-mails weren't used here. 12 looked at and made considerations regarding the responsive 13 records that were pulled up and they said, look, we didn't find 14 anything to indicate here that any agency employees were using 15 private e-mails to conduct our official business that would be 16 responsive to the commission. 17 THE COURT: 18 The third issue is what, Mr. Wedoff? 19 They all know the policy, they all Decision is reserved. The time of production. 20 MR. WEDOFF: Yes, your Honor. 21 THE COURT: 22 time of production? 23 dedicated to the search and makes an estimate of how many 24 records there are and then gives that number to the court or to 25 the proponent of the search, and you say a year is needed? So how does the government estimate the It looks at the number of employees SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 ibk2breA 1 2 MR. LEE: Your Honor, we need until -- DHS currently needs until the end of 2019 to complete the search. 3 THE COURT: 4 MR. LEE: 5 THE COURT: 6 MR. LEE: More than a year, a year and two months. Correct, your Honor. How do you come to that number? That is a combination of the DHS's existing 7 responsibilities and obligations for FOIA requests, as well as 8 ongoing litigations, as well as their current staffing. 9 For example, as we state in the declaration, DHS is 10 currently defending 59 FOIA lawsuits and it has to consult an 11 additional 13 involving FOIA requests. 12 court orders requiring processing of over 6400 pages per month 13 in responsive or potentially responsive documents. It is currently under 14 THE COURT: You are going too fast, Mr. Lee. 15 MR. LEE: 16 And it has been able to increase staffing, among other My apologies. 17 things, since last year. 18 with responsibilities. 19 increased significantly. 20 turnover, and it recently did lose one FOIA specialist as well 21 as a senior director, and a few of the litigation analysts are 22 new to the team and still undergoing training. 23 It did hire eight contractors to help So its personnel in the FOIA office has However, it is subject to a lot of So what DHS is doing right now is that it is under 24 significant FOIA burden. 25 practicable. It is producing these as soon as It has accelerated its commitment date of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 ibk2breA 1 2 completion from April 2020 to the end of 2019. And our position is that when you have this much going 3 on, when it isn't as a result of a lack of due diligence, when 4 it is working as hard as it can, and that it is doing it as 5 soon as practicable, that meets FOIA's requirements and that 6 there is no basis to take plaintiffs' request, which we have 7 stated back -- we have stated in our briefing here and we said 8 so back last year that it is a topic of public interest, but it 9 can't take that request and put it ahead of others in the queue 10 for other requests that were granted expedited processing 11 because they were also matters of public interest. 12 For example, DHS currently is dealing with expedited 13 requests for documents, agency records relating to the travel 14 ban, the wall, family separation and zero tolerance, DACA, 15 temporary protected status, and issues regarding border 16 enforcement groups. 17 plaintiffs' request is somehow more important or less important 18 than any of these, but if it is more important we can somehow 19 let it jump the queue, what it does and has been allowed to do 20 for a long time, which is -- 21 THE COURT: 22 MR. LEE: 23 THE COURT: 24 MR. LEE: 25 DHS is not in a position to say, well, Maybe more staffing is required. I'm sorry, your Honor? Maybe more staffing is required. And, your Honor, DHS has made diligent efforts to increase its staffing. It certainly hasn't tried to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 ibk2breA 1 siphon away its staffing from the FOIA office to other places. 2 It's increased it from last years numbers, but it is subject to 3 turnover. 4 5 It has -- THE COURT: You speak too fast and therefore the ends of your sentences get dropped and I can't follow you. 6 MR. LEE: 7 DHS hired eight contractors, which it had not had in 8 My apologies, your Honor. I will slow down. place last year. 9 THE COURT: 10 MR. LEE: Maybe it needs to hire 10. But it can't. And hiring is not a quick 11 process where it can automatically just bring somebody on 12 board. 13 vet candidates, they need to hire them, and they need to train 14 them. 15 bodies to this. Obviously with any employment scenario, they need to So it's not a simple matter of saying we can add more 16 THE COURT: 17 MR. LEE: A year and a half is too much. Your Honor, we respectfully disagree. There 18 is no set deadline under FOIA for processing and production of 19 requests. 20 practicable. 21 The requirement is that they do it as soon as THE COURT: The law gives you an obligation to produce 22 documents. Even though you have many other production demands 23 upon you and even though some of them may be court orders, you 24 can't relegate something to a status where it takes a year to 25 produce documents. News is time sensitive. Voting frauds, if SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 ibk2breA 1 there are any, are time sensitive. 2 on, and the public has a right to see and comment on what has 3 been discovered by this commission, if anything, or if the 4 commission has any basis to it, or whatever it is, the public 5 has a right to know. 6 long time. 7 8 MR. LEE: Another election is coming You cannot make the public wait such a Your Honor, with respect, DHS is doing the most that it can and is exercising -- 9 THE COURT: It is not because it can always hire more. 10 They can hire more contractors. 11 request of the agency get to be large, then you have got to 12 staff up for it. 13 MR. LEE: They can staff up more. If a Your Honor, with respect, the idea that a 14 production that would take as long as DHS is saying that this 15 one will, there is no deadline on that, and we have cited cases 16 where it is not dependent upon the particular amount of time, 17 it is not based on a particular time. 18 that. 19 the agency and they need to get it out as soon as practicable. 20 And the agency declaration that we have submitted here shows 21 that DHS is under an enormous FOIA burden. 22 due diligence not only with respect to this request and others, 23 and it has also made enormous efforts to clear its backlog. 24 got rid of almost 20,000 FOIA requests in the past year, 25 totaling about 120,000 pages of records. FOIA doesn't call for What it says is that there needs to be due diligence by It has exercised And under that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 It 33 ibk2breA 1 scenario, we submit there is no basis to say that somehow DHS 2 is flouting its FOIA obligations, which would be the source of 3 any obligations it would have with respect to responding to 4 this request. 5 For example, the cases that we cite in our brief note 6 that expedited processing and getting these out the door as 7 soon as possible, they gave them a timeline of two years. 8 are not asking for that. 9 10 11 We The NDLON decision, it was also based on what the agency could handle right now. So we believe and we think that the declaration shows 12 that DHS has been diligent. 13 did not find any reason to believe that DHS was flouting its 14 duties whatsoever. 15 Judge Forrest found as much and I will also add that if the question is the exigency, 16 plaintiffs can't stand in the shoes of others who might be 17 suffering alleged voter-related issues. 18 on the basis on which they can seek equitable relief here. 19 the only exigency that they have pointed out in their briefing 20 is the election in 2020. 21 receiving documents in response to this request since August of 22 this year, and they will continue to receive documents on a 23 monthly rolling basis, all the way until we are done in 2019. 24 They will have a minimum of ten months to comment on the 25 contents of that production until the election in November It is the harm to them And Now, they have already started SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 ibk2breA 1 2020, and they will also have the additional time that they get 2 from getting the documents on a rolling basis in the time 3 between now and the end of 2019. 4 So if the issue is that there is a harm to plaintiffs, 5 plaintiffs have repeatedly emphasized in their briefing equity, 6 and FOIA does not limit the court's equity, equity powers to 7 enforce its terms. 8 precept of equity is that equity doesn't go any further than to 9 relieve the harm that is at issue. Well, a general precept and important If the harm that is at 10 issue is the production of documents, they are getting those 11 documents on a rolling basis. 12 or something that needs to make the agency move faster, they 13 haven't established that here because they are getting a 14 significant amount of time in order to be able to comment on 15 any records that are produced before 2020. 16 that they will get to comment on records, which would be a 17 small number of -- 18 THE COURT: 19 MR. LEE: 20 THE COURT: 21 MR. LEE: 22 THE COURT: 23 contemplating? 24 comment. 25 If the question is an exigency The amount of time Who is "they." Plaintiffs, your Honor. Comment where? I'm sorry? What kind of comments are you You said the amount of time defendants have to I don't understand what you mean. MR. LEE: Plaintiffs have stated in this litigation SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 ibk2breA 1 that they contribute to the public debate on certain key public 2 issues, and the one at issue here -- 3 4 5 6 THE COURT: until 2020? MR. LEE: No, that they will have time between the completion of our production -- 7 THE COURT: 8 MR. LEE: 9 What are you saying, that they can wait December 2019. Correct, to November 2020 to be able to analyze the records that they receive in response to their 10 requests, review them, and comment on them, which is what they 11 say they do, and I have no reason to doubt that. 12 THE COURT: 13 MR. LEE: 14 THE COURT: 15 16 What about by-elections that happen? I'm sorry? By-elections that happen between terms also may be susceptible to these arguments. MR. LEE: And I'm not aware of any particular 17 elections of that type that plaintiffs have stated that they 18 need these documents on a more expedited basis for and it would 19 be a burden to show that. 20 THE COURT: Thank you, Mr. Lee. 21 Mr. Wedoff. 22 MR. WEDOFF: 23 simpler than Mr. Lee made it. 24 this is 552(a)(3)(A) -- "an agency shall make the records 25 promptly available to any person." Your Honor, I think this is a little FOIA requires that an agency -- Contrary to what Mr. Lee SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 ibk2breA 1 said, there is actually a deadline in FOIA. 2 Under unusual circumstances, which happen to be usual because 3 agencies claim them in response to virtually every FOIA 4 request, you get 30 days. 5 which DHS has claimed here, the court may, under its 6 supervision, give the agency additional time. 7 asking for is well over an order of magnitude greater than the 8 statutory deadline. 9 is whether our request is more important than a request about And in exceptional circumstances, the wall or a request about DACA. 11 whether this is a timely response. 13 14 So what they are What the court does not need to determine 10 12 It is 20 days. The court needs to determine THE COURT: What do you think would be a reasonable MR. WEDOFF: We put in our brief January 31, 2019. time? I 15 think something earlier than December 2019 would certainly be 16 an improvement. 17 THE COURT: 18 MR. WEDOFF: January 31, 2019? That's correct, your Honor. I would 19 point out Judge Forrest's preliminary injunction order, where 20 we lost, we are not going to hide from that, that was a 21 13-month production deadline, which is almost exactly what we 22 are asking for here. 23 They would be completing production about 13 months later. 24 That order dealt with the July 25 FOIA request. 25 THE COURT: We filed the FOIA request on January 8. How many documents have you received so SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 ibk2breA 1 far? 2 MR. WEDOFF: 3 THE COURT: 4 MR. WEDOFF: 5 THE COURT: 6 MR. WEDOFF: 7 THE COURT: 8 MR. LEE: 9 A few hundred, I believe, your Honor. A few hundred documents. A few hundred documents, yes, your Honor. Pardon? A few hundred documents. A few hundred. Your Honor, if I may clarify for a moment. It was 235 -- 10 THE COURT: 11 MR. LEE: 12 MR. WEDOFF: Let Mr. Wedoff finish. Sure. I would also like to clarify something 13 else about the exigency. Again, we think it is urgent. 14 think it is exigent. 15 limited to the 2020 election though. 16 virtually every day about imaginary voter fraud, people are 17 very concerned about whether their votes are being counted, and 18 this is not a process that just takes place one day every two 19 years or every four years. 20 There are regulations being enacted. 21 itself is issuing sweeping unprecedented subpoenas of voter 22 records in North Carolina right now. 23 through the U.S. Attorney's office for the Western District of 24 North Carolina. 25 charges. That's set forth in the paper. We It's not The president is tweeting There is legislation being passed. And, critically, DHS They are indicting people They are indicting people for voting-related This is completely unprecedented, and we do think it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 ibk2breA 1 ties into our request. We think it is exigent, but we don't 2 think your Honor needs to reach that question. 3 needs to do is determine whether they are making records 4 promptly available. 5 that they are not doing so. 6 THE COURT: 7 Short reply, Mr. Lee. 8 MR. LEE: 9 It is not as simple as Mr. Wedoff says. All your Honor We think on its face the evidence shows I think I have caught it. Sure. The 20-day 10 deadline, as the D.C. Circuit held in CREW, it is an 11 administrative exhaustion requirement. It doesn't mean that -- 12 THE COURT: Will you slow down? 13 MR. LEE: 14 The 20-day deadline that just means that if an agency I'm sorry. My apologies. 15 blows that deadline, now the requester has exhausted 16 administrative remedies and they can go to court. 17 deadline that any FOIA production being completed in 20 days or 18 30 days. 19 CREW case, which was issued in 2013 and that both parties cite 20 in their respective briefs. 21 THE COURT: 22 The D.C. Circuit was very clear about that in the They can go to court and complain that the production is too slow. 23 MR. LEE: 24 THE COURT: 25 It is not a Correct. That there has been a failure on the part of the government to adhere to the statute. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 ibk2breA 1 MR. LEE: 2 THE COURT: 3 4 And that's the point at which, according -Than sounds to me like there is a breach of duty. MR. LEE: Well, no, your Honor. We disagree. Because 5 the court then is able to take the case and see whether or 6 not -- exercise its jurisdiction to see whether or not the 7 agency is exercising its due diligence to make sure that the 8 request is being fulfilled. 9 request that's being granted, such as the one at issue here -- 10 THE COURT: 11 at the limitation of staff? 12 MR. LEE: And in the case of an expedited How do you find due diligence? By looking Not just the limitations of staff, but both 13 its FOIA burden in terms of the ongoing lawsuits that it's 14 handling, as well as the FOIA request that it has been subject 15 to as well as -- 16 THE COURT: 17 MR. LEE: That's an excuse for not doing anything. Your Honor, we don't believe that that's a 18 fair inference at all. 19 backlog of -- a backlog of almost 20,000 FOIA requests in the 20 past year. 21 THE COURT: 22 MR. LEE: 23 THE COURT: 24 25 Especially when DHS has cleared its I focus on this one, Mr. Lee, not others. Yes. Okay. Thanks very much. I will reserve decision. MR. WEDOFF: Thank you, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 ibk2breA 1 2 THE COURT: and issue a decision as soon as I can. 3 MR. LEE: 4 THE COURT: 5 I will reserve decision on all the issues Thank you, your Honor. Thank you. oOo 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300