A federal court in Oregon held that a party to a Freedom of Information Act (FOIA) action was entitled to discovery regarding the record retention/destruction policy of the federal Bureau of Prisons (BOP).
In November 2008, Stephen Raher submitted a FOIA request to the BOP, seeking records related "to the solicitation, evaluation, and award of contracts by BOP to provide, maintain, and operate private detention facilities for foreign nationals serving criminal sentences imposed by the federal courts."
When BOP failed to provide the requested records, Raher brought a FOIA action in federal court under 5 USC § 552, on May 13, 2009.
Raher requested emails of former BOP employees who were evaluation team members. The BOP claimed, however, that no emails existed because it routinely deletes "a former employee's email account . . . within 24 hours of his or her separation from the BOP."
Raher challenged the BOP's response as violating the Federal Records Act (FRA), which governs the creation, management and disposal of federal records. See 44 USC §§ 2101, et seq., 3101 et seq., and 3301 et seq. Under the FRA, emails of federal agencies may be destroyed only when they have been copied to a recordkeeping system.
Raher sought "to discover if the BOP has any policy concerning preservation of records in the context of litigation and, if so, whether it has complied with that policy." The BOP opposed Raher's discovery request, arguing that the FRA does not create a private cause of action.
The court found that "the lack of a private right of action under the FRA misses the point. Raher is not seeking to use the FRA as a basis for this court's jurisdiction. Instead he is seeking to conduct discovery under the FOIA regarding any applicable record retention policies." The court found that "it is relevant to the award of attorney fees whether the BOP has violated the FRA by destroying and, hence, withholding records from production." That violation may also support "a finding of contempt or a referral to the Special Counsel under 5 USC § 552(a)(4)(F)."
"Given that the BOP admits that it has a policy of routinely destroying employee emails immediately upon the employee's departure," the court held that "it is appropriate to ascertain if that policy complies with the FRA and, if it does, whether and when the BOP imposed a litigation hold on potentially responsive documents." See: Raher v. Federal Bureau of Prisons, USDC No. 09-cv-526-ST (D. Or. 2012).
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Related legal case
Raher v. Federal Bureau of Prisons
|USDC No. 09-cv-526-ST (D. Or. 2012)