Landmark Legal Foundation v. E.P.A.

• Decision Date: 24 July 2003
• Docket Number: No. CIV.A.00-2338 (RCL).,CIV.A.00-2338 (RCL).
• Citation: 272 F.Supp.2d 59
• Parties: LANDMARK LEGAL FOUNDATION, Plaintiff, v. ENVIRONMENTAL PROTECTION AGENCY, Defendant.
• Court: U.S. District Court — District of Columbia

272 F.Supp.2d 59

LANDMARK LEGAL FOUNDATION, Plaintiff, v. ENVIRONMENTAL PROTECTION AGENCY, Defendant.

No. CIV.A.00-2338 (RCL).

United States District Court, District of Columbia.

July 24, 2003.

COPYRIGHT MATERIAL OMITTED

Mark R. Levin, Landmark Legal Foundation, Herndon, VA, Richard P. Hutchison, Landmark Legal Foundation, Kansas City, MO, Arthur Fergenson, Ballard Spahr Andrews & Ingersoll, LLP, Washington, DC, for plaintiff.

Roscoe C. Howard, Jr., U.S. Attorney, Mark E. Nagle, Peter D. Blumberg, Assistant U.S. Attorneys, Washington, DC, for defendant.

MEMORANDUM OPINION

LAMBERTH, District Judge.

This case comes before the Court on defendant Environmental Protection Agency's motion for summary judgment and for a stay [66] and supplement [78], Landmark's response [77], and EPA's reply [82]. Also before the Court is Landmark's cross-motion for summary judgment [76], EPA's response [83], and Landmark's reply [86] and supplemental memorandum [93]. Upon consideration of the briefing, the law, and the record in this case, EPA's motion for summary judgment will be granted, and Landmark's cross-motion will be denied.

I. Background

This case originated when Plaintiff filed a FOIA request with defendant EPA on September 7, 2000, seeking "[i]dentification of all rules or regulations for which public notice has not been given, but which public notice is planned by the EPA between September 7, 2000 and January 20, 2001, including but not limited to the rules or regulations referenced in the attached news article" and various types of documents relating to those rules and regulations. The news article indicated that EPA was attempting to push through certain regulations before the administration change. Dissatisfied with EPA's response, Plaintiff filed the instant suit on September 29, 2000. While the suit was pending and Landmark was awaiting EPA's response to its FOIA request, Landmark requested this Court to enter a preliminary injunction to ensure that all material potentially responsive to its FOIA request would be preserved during the administration change. The Court issued the injunction on January 19, 2001. As explained in detail in the Court's opinion and order on Landmark's motion for contempt issued this day, that injunction was not obeyed and potentially responsive material contained on hard drives and email backup tapes was destroyed. Upon discovering this massive noncompliance, EPA took action to rectify the situation by initiating an investigation by the Inspector General that included efforts to recover material from the reformatted hard drives-efforts that bore some fruit. The Court has held EPA in contempt and ordered it to pay Landmark's costs and fees caused by EPA's contumacious conduct. Having conducted a search of all records now in its possession, EPA has moved for summary judgment in this case.

II. EPA's Motion for Summary Judgment

A. Summary Judgment Standard

Reasonableness is the "guiding principle" for a court faced with a FOIA summary judgment motion. Weisberg v. U.S. Department of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984). The D.C. Circuit succinctly therein described the summary judgment standard for FOIA cases: to be entitled to summary judgment, an agency must show that it "conducted a `search' `reasonably calculated to uncover all relevant documents.'" Id. at 1485 (citation omitted). It is not the result of the search that is the court's focus, but its adequacy. Id. Adequacy "is judged by a standard of reasonableness and depends, not surprisingly, on the facts of each case." Id. An agency may demonstrate the adequacy of its search by submitting "reasonably detailed, nonconclusory affidavits submitted in good faith." Id.

Landmark raises several arguments in opposing EPA's summary judgment that are simply irrelevant to this standard. First, it argues that EPA did not comply with the timelines provided in the FOIA for expedited processing, nor the timelines agreed upon by the parties for the completion of EPA's search. However, a lack of timeliness does not preclude summary judgment for an agency in a FOIA case. The only question for summary judgment is whether the agency finally conducted a reasonable search, and whether its withholdings are justified. When exactly a reasonable search was conducted is irrelevant. See, e.g., Atkins v. Dep't of Justice, 1991 WL 185084 (D.C.Cir. Sept.18, 1991) (unpub.) ("The question whether DEA complied with the Freedom of Information Act's (FOIA) time limitations in responding to Aaron Atkins' request is moot because DEA has now responded to this motion."); Tijerina v. Walters, 821 F.2d 789, 799 (D.C.Cir.1987) ("`[H]owever fitful or delayed the release of information under the FOIA may be ... if we are convinced appellees have, however belatedly, released all nonexempt material we have no further judicial function to perform under the FOIA.'") (quoting Perry v. Block, 684 F.2d 121, 125 (D.C.Cir. 1982)).

Landmark also argues that some documents were released to it after further searching was conducted, and that this indicates the first search was not reasonable. This is contrary to precedent, which teaches that continuing discovery and release of documents does not prove that the original search was inadequate, but rather shows good faith on the part of the agency that it continues to search for responsive documents. Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C.Cir. 1986).

Landmark continues by arguing that EPA is in violation of the provision of the FOIA which requires agency records to be maintained in such a manner as to be readily reproducible.¹ 5 U.S.C. § 552(a)(3)(B). EPA informed Landmark, in response to a subsequent FOIA request not part of this litigation, that former Administrator Carol Browner's email was not available in an electronic form, and that the paper copies were not maintained in a central location, but were filed according to relevance and could be located in any of the agency's files. Landmark Response [77] at exh. 1. Landmark takes this information to show a violation of the "readily reproducible" requirement. This is an incorrect reading of the statute. First, Landmark has not argued that the paper copies of Browner's emails are not "readily reproducible"; the Court sees no reason why they could not be easily duplicated on a copy machine. Second, Landmark seems to argue that this provision requires the agency to maintain a central electronic file containing Browner's email. Again, Landmark is mistaken. FOIA does not require an agency to reorganize its files in anticipation of or in response to a FOIA request. Solar Sources, Inc. v. United States, 142 F.3d 1033, 1038 (7th Cir.1998). Rather, the agency may keep its files in a manner best designed to suit its internal needs. Id. That there is no central electronic file containing Browner's emails does not violation the "readily reproducible" subsection of the FOIA.

B. Adequacy of Search

1. Scope of Search

Landmark's FOIA request seeks "[i]dentification of all rules or regulations for which public notice has not been given, but which public notice is planned by the EPA between September 7, 2000 and January 20, 2001, including but not limited to the rules or regulations referenced in the attached news article" and various types of documents relating to those rules and regulations. EPA Motion for Summary Judgment [61] exh. 1. As an internal management tool, EPA had created a list of 88 actions subject to statutory, judicial, or other deadlines or subject to being acted upon in the near future. Id. exh. 5. By comparing the list of 88 with the April 2000 Regulatory Agenda, EPA's general method for giving public notice that it is developing regulations, EPA determined that 11 rules met the description in Landmark's FOIA request. Id. exh. 4 at ¶ 5. The terms of EPA's search were crafted with reference these 11 rules.

Landmark challenges the scope of EPA's search, disputing that its request was limited to the 11 rules identified by EPA. Landmark argues that it "conditionally consented" to EPA's list of 11 in exchange for EPA's agreement to complete its search within 30 days of a November 16, 2000 teleconference between the parties. Landmark Response [77] at 22. Landmark chastises EPA for "not mak[ing] any effort to identify additional pending regulations responsive to Landmark's request." Id. A FOIA request must "reasonably describe" the records requested. 5 U.S.C. § 552(a)(3)(A)(i). The agency's obligation to search is limited to the four corners of the request. Kowalczyk v. Dep't of Justice, 73 F.3d 386, 389 (D.C.Cir.1996). Landmark argues that its "FOIA is obviously addressed to records associated with last minute regulations that EPA sought to establish or considered establishing under its authority to implement on an expedited 45-day period." Landmark Response [77] at 23. However, an agency processing a FOIA request is not required to divine a requester's intent. See Kowalczyk, 73 F.3d at 388 (rejecting plaintiff's argument that "staff should have realized" plaintiff wanted records from New York office even though FOIA request did not indicate this); Hudgins v. IRS, 620 F.Supp. 19, 21 (D.D.C.1985) (Hogan, J.) ("[A]n agency is not required to have `clairvoyant capabilities' to discover the requester's need."); see also Thomas v. Office of the U.S. Attorney for E.D.N.Y., 171 F.R.D. 53, 55 (E.D.N.Y.1997) (FOIA requester cannot add to or enlarge underlying FOIA request during pendency of request or litigation).

Landmark's briefing seems to assume that EPA was required to compile a list of regulations meeting the parameters of its FOIA request, and to conduct its search from there. This is not the case. FOIA does not require an agency to create a document in response to a request. Nat'l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 161-62, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); Bureau of Nat'l Affairs v. Dep't of Justice, 742 F.2d 1484, 1490 (D.C.Cir.1984)....