                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
DEMOCRACY FORWARD                         )
FOUNDATION,                               )
                                          )
      Plaintiff,                          )
                                          )
              v.                          )                 Case No. 18-cv-01037 (APM)
                                          )
U.S. GENERAL SERVICES                     )
ADMINISTRATION,                           )
                                          )
      Defendant.                          )
_________________________________________ )

                                 MEMORANDUM OPINION

I.     INTRODUCTION

       Defendant U.S. General Services Administration (“GSA”) is authorized by statute to

supply email hosting services for a President-elect’s transition team, and it did so for President-

elect Trump after the 2016 election. GSA was to have destroyed the Trump transition team’s

electronic communications after the transition period ended, but due to law enforcement interest

in those records, GSA instead duplicated them, maintained a copy, and turned a copy over to the

Department of Justice. GSA still maintains actual possession of the Trump transition team’s

electronic communications.

       Plaintiff Democracy Forward Foundation asked GSA to disclose certain of these records

under the Freedom of Information Act (“FOIA”), but GSA refused. GSA maintained that,

notwithstanding its actual possession of the requested material, the Trump transition team’s emails

did not qualify as “agency records” subject to FOIA. Plaintiff then brought this action to compel

production of the requested records.
        For the reasons outlined below, the court agrees with GSA that the Trump transition team’s

electronic communications are not “agency records” for purposes of FOIA and, therefore, are not

subject to disclosure. Accordingly, the court grants Defendant’s Motion for Summary Judgment

and denies Plaintiff’s Cross-Motion for Summary Judgment.

II.     BACKGROUND

        A.       Factual Background

                 1.       GSA’s Hosting of Network Services for Presidential Transition Teams

        The Presidential Transition Act of 1963 (“Act”), Pub. L. 88-277, 78 Stat. 153, 3 U.S.C.

§ 102 (note), authorizes GSA to offer “necessary services” to “each President-elect and each Vice

President-elect, for use in connection with his preparations for the assumption of official duties as

President or Vice President.” Act § 3(a). The “necessary services” include “office machines and

equipment” and “[c]ommunications services found necessary by the President-elect or Vice

President-elect.” Id. §§ 3(a)(1), (5); Mem. in Support of Def.’s Mot. for Summ. J. ECF No. 11

[hereinafter Def.’s Mem.], at 3. GSA has provided telecommunications and internet technology

services to presidential transition teams since 2000. Def.’s Mem., ECF No. 11-1, Erik Simmons

Decl. [hereinafter “Simmons Decl”], ¶ 2; Def.’s Stmt. of Facts, ECF No. 11-3 [hereinafter Def.’s

Facts], ¶ 1. Such services include maintaining the necessary networking infrastructure, including

network security, and network communication services, such as email. See Simmons Decl. ¶ 2;

Def.’s Facts ¶ 9.1

        As one might expect, GSA takes care to keep separate the transition team’s network from

its own. The transition team’s “networks are distinct from GSA’s internal network infrastructure



1
  Starting in 2010, GSA also has supplied similar services for the “pre-election” transition of major candidates.
See Pre-Election Presidential Transition Act of 2010, Pub. L. 111-283, 124 Stat. 3045. For the 2016 presidential
campaign, GSA provided services to both major party candidates in advance of the election. See Def.’s Facts ¶ 8.

                                                       2
and are not used to conduct GSA’s day-to-day agency business.” Def.’s Facts ¶ 1. Furthermore,

the transition team’s communications are sent from accounts with the domain “@ptt.gov,” as

opposed to the “@gsa.gov” domain used by GSA officials. Id.; Simmons Decl. ¶ 2. Although

GSA monitors transition team networks to “keep them operational and secure,” “GSA officials do

not access or review the emails of members of the presidential transition in order to conduct the

agency’s day-to-day business . . .” Def.’s Facts ¶ 2.

       Before 2012, GSA hosted transition team email communications on physical servers

located at GSA. Def.’s Facts ¶ 3. That changed in 2012, when GSA switched to a cloud-based

email service provided by Google. Id.; Simmons Decl. ¶ 5. With respect to both the 2008 and

2012 election cycles, GSA destroyed the transition teams’ electronic communications, whether

hosted on physical servers or as cloud data. Def.’s Facts ¶¶ 5, 7.

       On August 1, 2016, then-candidate Trump reached an agreement with GSA for

telecommunication and internet technology services for both the pre- and post-election transition

period. Id. ¶ 10. The parties memorialized the agreement in a Memorandum of Understanding

(“MOU”). Id.; see also Decl. of Michael J. Gerardi [hereinafter Gerardi Decl.], ECF No. 11-2,

Ex. A, Mem. of Understanding Between the GSA and Donald J. Trump, [hereinafter MOU]. GSA

used Google’s cloud-based email service to host the Trump transition team’s electronic

communications, Simmons Decl. ¶¶ 4, 7, and it supplied laptops and smartphone devices for the

transition, Def.’s Facts ¶ 12. Under the MOU, the transition team agreed to return all equipment

by February 19, 2017, and GSA promised to delete all data from those devices. MOU at 10. The

MOU, however, did not expressly address whether GSA would dispose of cloud-based email after

the transition period concluded. See generally MOU; Mem. in Support of Pl.’s Mot. for Partial

Summ. J. and Opp’n to Def.’s Mot. for Summ. J., ECF No. 13-1 [hereinafter Pl.’s Mem.], at 3.



                                                 3
         In January 2017, the Trump transition team and GSA agreed to extend GSA’s services.

See MOU at 25.2 The extension agreement required return of government-issued equipment by

March 31, 2017. Id.

                  2.       GSA Turns Over Transition Team Records

         In February 2017, GSA staff responsible for managing the Trump transition team’s

communication system approached GSA’s general counsel to inquire about preserving transition

team records. Decl. of Seth Greenfield, ECF No. 17-1 [hereinafter Greenfield Decl.], ¶ 3. “In

light of publicly reported investigations of a criminal and national security nature surrounding

members of the transition team who were using GSA-supported transition communication

services, GSA concluded that it should seek guidance before taking any further action.” Id. GSA’s

Inspector General then consulted with the Department of Justice and the Federal Bureau of

Investigation. Id. ¶ 4. Law enforcement instructed GSA to preserve the records. In an email dated

February 15, 2017, GSA’s Office of General Counsel stated: “At the request of the Department

of Justice, via our Office of Inspector General, please preserve all records of the Presidential

Transition Team. Electronic equipment including cell phones, laptops, and tablets returned to

GSA should be preserved and no information should be wiped from their memories.” Id., Ex. A,

at 6 (CM-ECF pagination). GSA complied with the request. Simmons Decl. ¶ 8. GSA later

received requests from other sources, including the transition team itself, to preserve the records.

Greenfeld Decl. ¶ 5.3


2
  The court uses CM-ECF pagination for this document.
3
  Plaintiff asserts that GSA’s decision to preserve the records was voluntary, citing a June 8, 2017, email from a GSA
senior attorney to Lennard Loewentritt, GSA’s Deputy General Counsel, stating that “normally GSA would destroy
the records and wipe the machines, but given the news cycles, GSA decided it was prudent to inquire about
preservation during the machine wiping process.” Pl.’s Stmt. of Material Facts as to Which There Is No Genuine
Dispute and Stmt. of Disputed Facts ECF No. 13-2 [hereinafter Pl.’s Facts], ¶¶ 2–3. The Greenfeld Declaration and
its attached exhibits, however, make clear that, while GSA sought direction from law enforcement about the transition
team records, the Department of Justice directed GSA to preserve the records. Thus, its preservation decision was not
“voluntary” in the sense that Plaintiff suggests.

                                                          4
       In August 2017, GSA and the FBI agreed to procedures for turning over the transition

team’s records. GSA agreed to give the FBI the devices used by the transition team with the

understanding that the FBI would attempt to access them only with proper legal authority.

Greenfeld Decl., Ex. B at 8 (CM-ECF pagination). With respect to email communications stored

in Google cloud accounts, GSA copied and transferred the data of certain senior transition officials

identified by the FBI. Simmons Decl. ¶ 9; Greenfeld Decl., Ex. C at 10 (CM-ECF pagination).

GSA did not read, search, or review any of the transferred data. Simmons Decl. ¶ 9.

               3.      Plaintiff’s FOIA Request

       On January 5, 2018, Plaintiff Democracy Forward made a demand under FOIA for the

following records:

               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.
FOIA Request, Attachment A to Compl., ECF No. 1-1; Compl. ¶ 10. GSA answered Plaintiff’s

FOIA request on February 8, 2018. It stated: “After a careful review of our files, it has been

determined that GSA has no records of the information that you have requested. Therefore, we

are unable to accommodate your request.” Compl. ¶ 14.

       Not satisfied with this response, Plaintiff sought administrative review. GSA denied the

appeal. See Attachment C to Compl; Compl. ¶ 18. Although GSA acknowledged that it had

“physical custody” of the requested records, GSA explained that “presidential transition team [ ]

emails . . . are not considered agency records . . . . and thus are not subject to the FOIA . . .”

Attachment C at 1–2.

                                                  5
       B.      Procedural Background

       Plaintiff filed this action on May 2, 2018. See Compl. Defendant filed its Motion for

Summary Judgment on September 7, 2018. See Def.’s Mem. Plaintiff filed its Cross-Motion for

Summary Judgment on October 19, 2018. See Pl.’s Mot. for Partial Summ. J. ECF No. 13

[hereinafter Pl.’s Mot.]. The parties’ motions are now ripe for review.

III.   LEGAL STANDARD
       Most FOIA cases are appropriately decided on motions for summary judgment.

See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

A court may award summary judgment in a FOIA case by relying on the information included in

the agency’s affidavits or declarations if they are “relatively detailed and non-conclusory,”

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citations and internal

quotation marks omitted). The agency’s affidavits or declarations must “describe the documents

and the justifications for nondisclosure with reasonably specific detail [and] demonstrate that the

information withheld logically falls within the claimed exemption.” Military Audit Project v.

Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Further, they must not be “controverted by either

contrary evidence in the record [or] by evidence of agency bad faith.” Id.

       It is the government agency’s burden to prove that it has complied with its obligations

under FOIA. U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989). “Unlike the

review of other agency action that must be upheld if supported by substantial evidence and not

arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action’

and directs the district courts to ‘determine the matter de novo.’” DOJ v. Reporters Comm. for

Freedom of Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)). “To successfully

challenge an agency’s showing that it complied with the FOIA, the plaintiff must come forward

with ‘specific facts’ demonstrating that there is a genuine issue with respect to whether the agency

                                                 6
has improperly withheld extant agency records.” Span v. DOJ, 696 F. Supp. 2d 113, 119 (D.D.C.

2010) (quoting Tax Analysts, 492 U.S. at 142).

IV.    ANALYSIS

       The sole question before the court is whether the emails of President Trump’s transition

team are “agency records” subject to disclosure under FOIA. See 5 U.S.C. § 552(a)(4)(B)

(conferring jurisdiction upon federal courts jurisdiction “to order the production of any agency

records improperly withheld from the complainant”) (emphasis added). The parties agree that the

transition team itself is not a government entity covered by FOIA. Instead, their dispute centers

on whether GSA’s possession and management of the records renders them subject to disclosure

under the statute. GSA asserts that neither its actual possession of the communications, nor any

act taken with respect to them, converts them into “agency records.” Plaintiff counters that by

copying, retaining, and producing the emails to law enforcement, as well as by denying access to

devices that might contain electronic communications, GSA exercised the type of “control” over

the transition team’s emails necessary to make them “agency records” disclosable under FOIA.

This court’s task is to determine whether GSA has carried its burden of showing that the documents

requested are not “agency records.” See Consumer Fed’n of Am. v. Dep’t of Agric., 455 F.3d 283,

287 (D.C. Cir. 2006).

       A.      General Principles

       Although “Congress [under FOIA] limited access to ‘agency records,’ [it] did not provide

any definition of ‘agency records’ in that Act.” Forsham v. Harris, 445 U.S. 169, 178 (1980).

Supreme Court and D.C. Circuit precedent fill this definitional void. In Tax Analysts, the Supreme

Court held that to qualify as an “agency record” the document must satisfy two requirements. First,

the “agency must ‘either create or obtain’ the requested materials.” 492 U.S. at 144 (quoting



                                                 7
Forsham, 445 U.S. at 182). Second, “the agency must be in control of the requested materials at

the time the FOIA request is made.” Id. at 145. By “control,” the Supreme Court meant “that the

materials have come into the agency’s possession in the legitimate conduct of its official duties.”

Id. In this case, the parties only contest the element of “control,” so the court’s analysis focuses

on that factor.

        Since Tax Analysts, the D.C. Circuit has grappled with the question of how much “control”

is enough to render a document an “agency record.” Generally speaking, the Circuit looks at four

factors—referred to as the Burka factors—to make that determination. Those factors are:

                  (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.

Judicial Watch, Inc. v. Fed. Hous. Fin. Agency (“Judicial Watch I”), 646 F.3d 924, 926–27 (D.C.

Cir. 2011) (quoting Burka v. Dep’t of Health & Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996)).

The D.C. Circuit has not said that any one factor is more important than the other.

        The Circuit has not, however, reflexively adhered to the four-factor Burka test.

See Judicial Watch v. U.S. Secret Service (“Judicial Watch II”), 726 F.3d 208, 220 (D.C. Cir.

2013) (“Our past application of the test reveals its considerable indeterminacy.”). In particular,

the “circuit has indicated that the standard, four-factor control 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.” Id. at 221. In such circumstances, the first two factors of the Burka

test—the intent of the document’s creator and the agency’s ability to use or dispose of the

document—are “effectively dispositive.” Id. The Circuit has taken this approach where the

agency created records at the request of Congress, see United We Stand America, Inc. v. IRS, 359



                                                     8
F.3d 595, 599 (D.C. Cir. 2004); Goland v. CIA, 607 F.2d 339, 347 (D.C. Cir. 1978); Judicial Watch

II, 726 F.3d at 221–22 (discussing cases), or the Office of the President, see Judicial Watch II, 726

F.3d at 222–23. In these cases, “special policy considerations” were at stake, prompting the court

to eschew Burka’s four-factor inquiry. Id. at 221 (citation omitted); see also Bureau of Nat’l

Affairs v. Dep’t of Justice, 742 F.2d 1484, 1491–92 (D.C. Cir. 1984) (stating that when “documents

originate within the Congress, the judiciary, and FOIA-exempt executive agencies, sometimes

special policy considerations militate against a rule compelling disclosure of such records merely

because such documents happen to come into the possession of an agency”) (cleaned up).

       In a recent FOIA action, the Circuit found both the Burka and Judicial Watch II tests to be

ill-fitting. In Cause of Action v. National Archives and Records Administration, the plaintiff

sought records from the National Archives that were created by the Financial Crisis Inquiry

Commission, a legislative branch agency not subject to FOIA. 753 F.3d 210, 212 (D.C. Cir. 2014).

The question before the court was whether the Commission’s records became subject to FOIA

when turned over to the Archives. See id. The court found that, as applied to the Archives, Burka’s

“four-factor test is divorced from FOIA’s key objective—revealing to the public how federal

agencies operate” and therefore declined to apply it. Id. at 215. The court likewise did not use the

Judicial Watch II test. “Like the four-factor test, the Judicial Watch II test also measures ‘control’

in a way that is foreign to the sui generis nature of the Archives.” Id. Instead, the court focused

on first principles, treating the question as one of “statutory interpretation and congressional

intent.” Id. at 216. The court concluded: “[W]e are confident that Congress did not intend to

expose legislative branch material to FOIA simply because the material has been deposited with

the Archives.” Id.




                                                  9
       B.      Applying First Principles of FOIA

       With this background in mind, the court must first decide what test to apply. Plaintiff

insists that the court use the Burka factors and that no “special policy considerations” warrant

departure from that framework. See Pl.’s Reply in Support of Pl.’s Mot., ECF No. 19, at 4–13.

GSA, on the other hand, primarily argues that “special policy considerations” govern presidential

transition team records, rendering the Burka factors inapt. Alternatively, it argues, even if the

Burka factors are applicable, the transition team’s emails are not “agency records.” See Def.’s

Combined Opp’n to Pl.’s Mot. And Reply in Support of Def.’s Mot., ECF No. 17, at 2–5.

       Whether or not the court treats this case as one involving “special policy considerations”—

the scope of that concept being unclear—the court agrees with GSA that the four criteria of Burka

are ill-suited to the inquiry here. Indeed, like the National Archives, GSA here functioned mainly

as a “warehouse” for the transition team’s electronic communications. Cause of Action, 753 F.3d

at 216. It supplied a network to host and store records, but never intended to use and did not use

the records in any way. Rather, it agreed to destroy the records—although it ultimately preserved

them as the direction of law enforcement. Burka’s four factors are thus “entirely unhelpful” in this

case because they say little about the “nature and use of a document,” which lies at the heart of the

“agency record” inquiry. Id.

        The court therefore looks to first principles to guide its decision. “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.” U.S. Dep’t of Justice v. Reporters Committee For Freedom of Press, 489 U.S. 749,

774 (1989) (italics in original). Therefore, a “document that could not reveal anything about

agency decisionmaking is not an ‘agency record.’” Judicial Watch I, 646 F.3d at 928. Stated



                                                 10
differently, “[t]he public cannot learn anything about agency decisionmaking from a document the

agency neither created nor consulted, and requiring disclosure under these circumstances would

do nothing to further FOIA’s purpose of ‘open[ing] agency action to the light of public scrutiny.’”

Id. (quoting Department of Air Force v. Rose, 425 U.S. 352, 372 (1976)).

       Applying these fundamental precepts here makes evident that the Trump transition team’s

email communications are not “agency records.” The GSA did not create the records. Nor did it

review, search or consult them. It did not use them in any way. Def.’s Stmt. of Facts ¶ 15; Pl.’s

Stmt. Disp. Facts at 5 (not disputing). At most, GSA “might” have been exposed to the content of

communications but only incident to its monitoring of the transition team’s networks to ensure

their operation and security. Def.’s Stmt. of Facts ¶ 2. In short, there is nothing about the

documents’ contents that would shed any light about GSA’s operations or decision-making.

Therefore, the transition team’s emails are not “agency records” subject to disclosure under FOIA.

       The D.C. Circuit’s decision in Wolfe v. Department of Health & Human Services—the only

appellate decision addressing the status of transition documents—confirms this result. In Wolfe,

the plaintiffs sought a report regarding the Department of Health and Human Services (“HHS”)

and corresponding documents that had been compiled by President-elect Reagan’s transition team.

711 F.2d 1077, 1078 (D.C. Cir. 1983). When the transition team completed the report, it

distributed copies to, among others, the HHS Secretary-designate and to one of his aides, David

Newhall, who would become the Secretary’s Chief of Staff. When he moved into his HHS office,

Newhall brought copies of the transition report with him and placed them in a locked bookcase.

Neither Newhall nor any other HHS employee ever used or consulted the report, except in

connection with the litigation. Id. The court held that the transition team’s report was not an

“agency record.” Id. at 1079–80. In so holding, the court emphasized that mere physical



                                                11
possession of the document is not enough. Rather, there “must be some ‘nexus’ between the

agency and the documents . . .” Id. at 1080. There was no such nexus with respect to the transition

report because it “never entered the Department’s files and/or resources,” id., and “no one in the

agency ever read or relied upon these documents . . .,” id. at 1081. Based on these circumstances,

the court found that the agency never “controlled” the transition records and thus they were not

“agency records” subject to disclosure under FOIA. Id. See also Ill. Instit. for Continuing Legal

Educ. v. U.S. Dep’t of Labor, 545 F. Supp. 1229 (N.D. Ill. 1982) (cited with approval in Wolfe,

and holding that a transition team “briefing book” was not an agency record).

       The Trump transition team’s electronic communications in this case are similar to the

transition team report at issue in Wolfe. Like the report, the emails were never integrated into

GSA’s records systems. Nor did GSA personnel read or rely on the records, except perhaps

incidentally to carry out its network security function. Thus, GSA did not sufficiently “control”

the emails to qualify as “agency records.” For its part, Plaintiff acknowledges Wolfe but makes no

serious effort to distinguish it. See Pl.’s Mem. at 8. Plaintiff contends that Wolfe did not establish

a “per se bar” to treating a transition team record as an “agency record” and that “in appropriate

circumstances transition team documents could become agency records subject to FOIA.” Id. at

8–9. Fair enough. But the factual differences between this case and Wolfe are not material.

If anything, the case against FOIA’s applicability is stronger here, because there is nothing about

the transition team’s emails that is germane to GSA’s mission. At least the report in Wolfe

concerned the agency itself.

       In any event, the court is confident that when Congress authorized GSA to host and support

the electronic communications of presidential transition teams, it did not intend to expose those

records to FOIA—even under the unusual facts presented here.



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          C.     The Burka Factors

          Although the court has found the Burka factors to be a poor fit in this case, the court

nevertheless considers them in the interest of completeness. Recall, those factors are:

                 (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 records 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.

Judicial Watch I, 646 F.3d at 926–27 (D.C. Cir. 2011) (quoting Burka, 87 F.3d at 515). Here, each

factor weighs against a finding of agency control over the transition team records.

          Intent of the Creator. Looking at the first factor, the facts do not establish that the Trump

transition team intended to relinquish control over its email to GSA. First, as GSA points out, it

has long taken the public position that transition documents are not subject to FOIA. Def.’s Mem.

at 15 (citing Ex. E, ECF No. 11-2 [hereinafter Def.’s Ex. E]). The Trump transition team thus

would have had no reason to expect that by merely hosting its communications, GSA would come

to “control” them. Second, the Memorandum of Understanding (“MOU”) between GSA and the

Trump’s transition team provided that software and equipment would be returned to GSA “and all

data on these devices will be deleted.” MOU at 10. The Trump transition team therefore

anticipated that its records would be destroyed. While Plaintiff notes that the MOU does not speak

to cloud-based data, it is doubtful that the transition team would have expected that such

communications would be treated differently than those stored on devices. In fact, GSA has

deleted emails kept in cloud storage in the past. See Def.’s Facts ¶ 7; Simmons Decl. ¶ 6. Nothing

about GSA’s arrangement with the Trump transition team suggests any different treatment for its

emails.




                                                   13
        Plaintiff does not argue that the Trump transition team from the outset intended to hand

over control of its emails to GSA. Instead, it cites later events. Plaintiff points to (1) the transition

team’s apparent failure to “act[ ] to retain control of the cloud-based records following

Inauguration Day” and, further notes that (2) when the transition team “became aware of third-

party preservation requests regarding its records, it delegated preservation work to GSA rather

than seeking to take control of the records on its own.” Pl.’s Mem. at 10. Thus, Plaintiff contends,

“[o]nce it became clear that GSA would not be disposing of the records per 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 10–11.

        But it is a dubious proposition 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.

As GSA explains, in early February 2017, agency personnel approached the GSA’s General

Counsel about whether to preserve the transition records in light of public reports of a criminal

and national security interest in transition team members. See Greenfeld Decl. ¶ 3. On or about

February 15, 2017, less than a month after the Inauguration, the Department of Justice asked GSA

to “preserve all records of the Presidential Transition Team. Electronic equipment . . . returned to

GSA should be preserved and no information should be wiped from their memories.” Id., Ex. A.

Given this request, it is improbable that the Trump transition team could have demanded return of

the records from GSA and insisted that GSA not retain a copy. The first Burka factor weighs

against attributing control of the documents to GSA.

        Ability of Agency to Use and Dispose of Records. With respect to the second factor,

Plaintiff argues that GSA’s control is “demonstrated by its unilateral decision to preserve [the

records], voluntarily disclose them to law enforcement agencies, and restrict [the transition team]’s



                                                   14
access to them.” Pl.’s Mem at 14. According to Plaintiff, “[w]hile GSA may not have had the

authority to use and dispose of the records as it saw fit during the normal course of the Presidential

transition, it necessarily assumed that authority when it independently decided to preserve the

records rather than dispose of them, to limit [the transition team]’s access to them, and to turn them

over to the Special Counsel without the [the transition team]’s consent.” Id. But this argument

ignores that 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. Plaintiff says the decision to preserve was

“voluntary” because it was not compelled by process. Pl.’s Mot. at 13–14. That is technically

true. But it cannot be that the decision to comply with a request by law enforcement to preserve

records converts a record not otherwise subject to FOIA into one that is. The second Burka factor

thus points to the absence of control.

       The Extent to Which Agency Personnel Read or Relied Upon the Document and the Degree

of Integration into the Agency’s Record System or Files. Like Plaintiff, the court addresses the

third and fourth factors together. See Pl.’s Mem. at 14–15. Plaintiff does not challenge GSA’s

representation that its personnel did not read or rely upon any transition team emails, except

incident to its security function, or that the transition team’s records were not integrated into the

agency’s own system. Instead, Plaintiff contends these factors favor a finding of agency control

because, “over time, GSA increasingly treated [the records] as a body of information containing

information potentially relevant to an investigation that it had compiled and was managing on the

FBI’s behalf.” Pl.’s Mem at 15. But this argument finds no support in any case law, and

importantly is divorced from reality. There is no evidence that GSA “managed” the records on

the FBI’s behalf. GSA simply copied the records in its possession and turned them over as




                                                 15
requested by the FBI. Nothing more. That action does not convert the transition team’s records

into “agency records” subject to FOIA.

        Before concluding, it is worth noting that Plaintiff attempts to obtain records from GSA

that it almost certainly could not obtain in full directly from the Department of Justice. Had

Plaintiff sought the same records from the Department of Justice, the Department surely would

have asserted multiple Exemptions—including Exemption 3 (grand jury material) and Exemption

7 (law enforcement records)—to avoid disclosure. It cannot be that FOIA permits a requester to

avoid applicable law enforcement-related exemptions simply by going to the agency that is the

physical repository of that material. That would be the odd result here if the court were to embrace

Plaintiff’s position.

V.      CONCLUSION

        For the reasons discussed in this Memorandum Opinion, the court grants Defendant’s

Motion for Summary Judgment and denies Plaintiff’s Cross-Motion for Summary Judgment. A

separate Order accompanies this Memorandum Opinion.




Dated: July 2, 2019                                  Amit P Mehta
                                                     United States District Court Judge




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