Ecological Rights Found. v. U.S. Envtl. Prot. Agency

Decision Date13 February 2021
Docket NumberCivil Action No. 19-980 (BAH)
PartiesECOLOGICAL RIGHTS FOUNDATION, Plaintiff, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant.
CourtU.S. District Court — District of Columbia

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

Plaintiff Ecological Rights Foundation, "a non-profit, public benefit corporation . . . devoted to furthering the rights of all people to a clean, healthful, and biologically diverse environment," Am. Compl. ¶ 16, ECF No. 7, challenges the response of defendant, the U.S. Environmental Protection Agency ("EPA"), to a ten-part request submitted pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for records related to the agency's transparency, personnel, and accountability policies, see Compl., Ex. 1, Pl.'s FOIA Request ("FOIA Request"), ECF No. 1-1. Specifically, plaintiff alleges in two claims that EPA unlawfully withheld records responsive to plaintiff's FOIA Request (Count II), Am. Compl. ¶¶ 60-62 and failed to conduct an adequate search for responsive records (Count III), id. ¶¶ 63-65.1

Pending before the Court are the parties' cross-motions for summary judgment. Def.'s Mot. Summ. J. ("Def.'s Mot."), ECF No. 19; Pl.'s Cross-Mot. Summ. J. ("Pl.'s Mot."), ECF No. 20. For the reasons set forth below, both parties' cross-motions are granted in part and denied in part.

I. BACKGROUND

Plaintiff's FOIA Request is briefly described below, followed by review of EPA's responses both before and after initiation of this lawsuit.

A. The FOIA Request

On August 30, 2018, plaintiff submitted its FOIA Request to EPA. FOIA Request at 1; Def.'s Statement of Material Facts Not in Genuine Dispute ("Def.'s SMF") ¶ 1, ECF No. 19-2; Pl.'s Statement of Material Facts ("Pl.'s SMF") ¶ 1, ECF No. 20-3. Broadly speaking, the ten-part Request sought records concerning EPA's policies, practices, and procedures related to transparency, personnel, and expenses since the departure of former EPA Administrator Scott Pruitt on July 5, 2018; investigations of former Administrator Pruitt by EPA's Office of Investigator General ("OIG"); then-Administrator Andrew Wheeler's calendar entries and calendar attachments since July 5, 2018; EPA's policies, practices, and procedures for processing FOIA requests; EPA's processing of a separate FOIA request submitted in February 2017 by plaintiff ("2017 Request") that is currently the subject of litigation in the Northern District of California; and EPA's procedures for engaging with the media. FOIA Request at 1-4; Def.'s SMF ¶ 1; Pl.'s SMF ¶ 2; Decl. of Elizabeth White ("White Decl.") ¶ 3, ECF No. 19-3; Decl. of Stuart Wilcox ("Wilcox Decl.") ¶ 3, ECF No. 20-4.

Three features of the FOIA Request underlie the dispute in this litigation. First, the opening sentence of the FOIA Request frames the request as calling for "all documents constituting, memorializing, explaining or commenting upon" the specific topics enumerated ineach of its ten parts. FOIA Request at 1. Second, with the exception of documents responsive to its request, in Part 10, for records related to plaintiff's earlier 2017 Request, the FOIA Request sought only documents created by EPA "since July 5, 2018," the date on which Administrator Wheeler took office, id. at 1; see also id. at 1-3, and, in Part 6, specified that plaintiff sought "[a]ll documents created by EPA constituting or memorializing Acting Administrator Andrew Wheeler's full calendar, meeting schedule, and notes from meetings from July 5, 2018 to the present," id. at 3 (emphasis added). Third, the Request, in Part 8, sought "[a]ll documents created by EPA since July 5, 2018 constituting or memorializing any instructions, directive, plan, policy, practice, or memorandum to EPA staff concerning how to review and/or respond to Freedom of Information Act ('FOIA') requests." Id. at 3 (emphasis added).

B. Processing of the Request and Procedural History

On August 30, 2018, the same day plaintiff submitted its request, EPA's National FOIA Office assigned the FOIA Request to the Office of Executive Secretariat ("OEX"), Office of the Administrator for processing. White Decl. ¶ 4. Part 7 of the FOIA Request, seeking "[a]ll documents created by EPA since July 5, 2018 constituting, memorializing, describing, or commenting upon the EPA Inspector General's Office's investigation of former Administrator Pruitt," FOIA Request at 3, was assigned to OIG, which "conducts its own FOIA search efforts," White Decl. ¶ 15. Nearly three months later, an OEX attorney emailed plaintiff's counsel, indicating that EPA was "working on fulfilling [plaintiff's] request," but "ha[d] received a very high volume of FOIA's, and consequently, we are doing our best to respond to each as quickly as possible." Wilcox Decl., Ex. 2, Email from Christopher Yarbrough, Att'y-Advisor, OEX, EPA, to Heather Kryczka, Env'tl Advocs. (Dec. 11, 2018, 10:46 AM), ECF No. 20-6; see also Pl.'s SMF ¶ 5; Def.'s SMF ¶ 2; Def.'s Resp. Pl.'s Statement of Material Facts as to Which There Is No Genuine Issue ("Def.'s Resp. SMF") ¶ 5, ECF No. 23-1; White Decl. ¶ 5.

Nearly seven months after submitting the FOIA Request, in March 2019, plaintiff, still having received no determination, estimated completion date, or responsive records, emailed the OEX attorney again and stated that plaintiff "plan[ned] to file a lawsuit . . . in one week unless [the parties] can quickly resolve this dispute." Wilcox Decl., Ex. 3, Email from Stuart Wilcox, Env'tl Advocs., to Christopher Yarbrough, Att'y-Advisor, OEX, EPA (Mar. 13, 2019, 4:11 PM), ECF No. 20-7; see also Pl.'s SMF ¶ 6; Def.'s Resp. SMF ¶ 6. Two days later, the OEX attorney provided plaintiff with an initial production of records, which consisted of former Administrator Wheeler's calendars from July 5, 2018 to August 31, 2018, with redacted material withheld as exempt from disclosure under 5 U.S.C. §§ 552(b)(5), (b)(6), (b)(7)(C), and (b)(7)(F). Def.'s SMF ¶ 3; Pl.'s SMF ¶ 7; Def.'s Resp. SMF ¶ 7; White Decl. ¶ 6; Wilcox Decl. ¶ 8. The attorney also requested that the parties confer as to the status and scope of the FOIA Request. Pl.'s SMF ¶ 7; Def.'s Resp. SMF ¶ 7; Wilcox Decl., Ex. 4, Email from Christopher Yarbrough, Att'y-Advisor, OEX, EPA, to Stuart Wilcox, Env'tl Advocs. (Mar. 15, 2019, 10:02 AM), ECF No. 20-8; White Decl. ¶ 6. Plaintiff responded on the same day, "requesting that EPA be ready to discuss the scope of the FOIA request substantively, to agree to a production schedule, to provide an estimated completion date, and to provide support for the redactions it had made thus far." Pl.'s SMF ¶ 8; see also Def.'s Resp. SMF ¶ 8; Wilcox Decl., Ex. 5, Email from Stuart Wilcox, Env'tl Advocs., to Christopher Yarbrough, Att'y-Advisor, OEX, EPA (Mar. 15, 2019, 5:15 PM), ECF No. 20-9. Around this time, the Director of OEX "began reaching out to subject matter experts in some of the relevant program offices to begin searching for potentially responsive non-calendar records." White Decl. ¶ 6.

Shortly thereafter, the OEX attorney provided plaintiff with a detailed status update as to each of the ten parts of the FOIA Request and responded to some but not all of the issues raisedby plaintiff in its March 2019 email. White Decl., Ex. E, Email from Christopher Yarbrough, Att'y-Advisor, OEX, EPA, to Stuart Wilcox, Env'tl Advocs. (Mar. 21, 2019, 7:16 PM), ECF No. 19-9; Wilcox Decl., Ex. 9, Email from Christopher Yarbrough, Att'y-Advisor, OEX, EPA, to Stuart Wilcox, Env'tl Advocs. (Mar. 21, 2019, 5:16 PM), ECF No. 20-13; Def.'s SMF ¶ 4; Pl.'s SMF ¶ 9; Def.'s Resp. SMF ¶ 9; White Decl. ¶ 8; Wilcox Decl. ¶ 12. The parties continued to confer by email and phone, resulting in the production of three additional calendar records, with redactions, under 5 U.S.C. §§ 552(b)(5), (b)(6), (b)(7)(C), and (b)(7)(F), and two non-calendar records. Pl.'s SMF ¶ 10; Def.'s Resp. SMF ¶ 10; Def.'s SMF ¶¶ 5-6; Wilcox Decl. ¶¶ 13-20; White Decl. ¶¶ 8-12.

Throughout this exchange, plaintiff continued to express concerns about the status of EPA's processing of the FOIA Request, EPA's withholdings, and the lack of a firm production schedule. Pl.'s SMF ¶¶ 11-12; Def.'s Resp. SMF ¶¶ 11-12; White Decl. ¶ 11; Wilcox Decl. ¶¶ 13-20. Consequently, plaintiff informed EPA that it did not believe further informal negotiations would be helpful "without the backstop of court supervision," but would be willing "to continue negotiating with [EPA] in the context of a filed case." Wilcox Decl., Ex. 16, Email from Stuart Wilcox, Env'tl Advocs., to Christopher Yarbrough, Att'y-Advisor, OEX, EPA (Apr. 5, 2019, 10:21 AM), ECF No. 20-20; see also Pl.'s SMF ¶ 13; Def.'s Resp. SMF ¶ 13. Three days later, on April 8, 2019, plaintiff initiated the instant suit. Compl. Two months later, the Court directed EPA to "produce to Plaintiff an interim production of non-exempt, responsive records" by July 15, 2019, and the parties to "propos[e] a schedule . . . for a final determination, production schedule, and dispositive motions" the same day. Min. Order (June 7, 2019) (internal quotation marks omitted).

Two weeks before the court-ordered deadline to make an interim production, on June 26, 2019, EPA's Office of General Counsel ("OGC") undertook its first search, based on Boolean search terms, for records responsive to all parts of the FOIA Request except Parts 7 and 8, which had been assigned to OIG and OEX, respectively. White Decl. ¶ 14. As reflected in the parties' Joint Status Report, see Joint Status Report (July 15, 2019) ¶ 3, ECF No. 12, EPA notified plaintiff that OGC had completed its search and identified more than 212,000 potentially responsive records. Def.'s SMF ¶ 8; Pl.'s SMF ¶ 16; Def.'s Resp. SMF ¶ 16; White Decl. ¶ 17; Wilcox Decl. ¶ 25. In addition, EPA indicated that the agency had capacity to process approximately 500 records per month, meaning that processing of the FOIA Request would be completed in thirty-six months. Def.'s SMF ¶¶ 8-9; Pl.'s SMF ¶ 16; Def.'s Resp. SMF ¶ 16; W...

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