Pulliam v. U.S. Envtl. Prot. Agency, Civil Action No. 15–1405 (ABJ)

• Decision Date: 16 February 2017
• Docket Number: Civil Action No. 15–1405 (ABJ)
• Citation: 235 F.Supp.3d 179
• Parties: Raymond C. PULLIAM, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

235 F.Supp.3d 179

Raymond C. PULLIAM, Plaintiff,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

Civil Action No. 15–1405 (ABJ)

United States District Court, District of Columbia.

Filed February 16, 2017

Peter Sorenson, Sorenson Law Office, Eugene, OR, Daniel J. Stotter, Stotter & Associates LLC, Corvallis, OR, for Plaintiff.

Rhonda Lisa Campbell, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiff Raymond Pulliam sent Freedom of Information Act ("FOIA") requests to defendants Environmental Protection Agency ("EPA"), United States Department of Defense ("DOD"), and United States Department of Justice ("DOJ") seeking records related to an investigation into toxic contamination occurring at former Army base Fort McClellan. Compl. ¶¶ 13, 27, 40 [Dkt. # 1]. Plaintiff's requests to DOJ and EPA were identical, while plaintiff's request to DOD sought different information.

EPA and DOD did not respond to plaintiff's FOIA requests within the statutorily-required twenty-day period, Compl. ¶¶ 26, 39; see 5 U.S.C. § 552(a)(6)(A), and DOJ failed to make a final determination on plaintiff's FOIA administrative appeal within the time required. Compl. ¶¶ 42–45; see 5 U.S.C. §§ 552(a)(6)(A)(ii), (a)(6)(C)(i). Plaintiff filed this lawsuit on August 28, 2015 after exhausting the administrative process. See Compl. All defendants responded to the suit. Answer [Dkt. # 6]. EPA and DOJ maintained that they had performed adequate searches for responsive materials and that no records were located. See Defs.' Status Reports [Dkt. ## 8–9]. However, DOD determined that its search was not adequate, see Defs.' Status Report [Dkt. # 8], and it conducted another search that resulted in the production of fifty-seven pages to plaintiff. See Defs.' Statement of Undisputed Material Facts [Dkt. # 11–2] ("Defs.' SOF") ¶ 10; Decl. of Mark H. Herrington [Dkt. # 11–3] ("Herrington Decl.") ¶ 6; see Pl.'s Statement of Material Facts to Which There is No Genuine Issue, & Resp. to Defs.' SOF [Dkt. # 15–1] ("Pl.'s SOF") ¶ 7.

On May 12, 2016, defendants jointly filed a motion for summary judgment contending that each agency's search was adequate, and that DOD's redactions under Exemption (b)(6) were proper. Defs.' Mot. for Summ. J. [Dkt. # 11] ("Defs.' Mot."); Mem. of P. & A. in Supp. of Defs.' Mot. [Dkt. # 11–1] ("Defs.' Mem.") at 5–14. Plaintiff filed a cross-motion for summary judgment on June 13, 2016, in which he also opposed defendants' motion, arguing that each agency's search was inadequate. Pl.'s Cross–Mot. for Summ. J. [Dkt. # 15] ("Pl.'s Cross–Mot."); Mem. in Opp. to Defs.' Mot. and in Supp. of Pl.'s Mot. [Dkt. # 16] ("Pl.'s Cross–Mem.") at 6–13. Defendants filed a reply in support of their motion for summary judgment, and in opposition to plaintiff's cross-motion for summary judgment, on July 11, 2016. Defs.' Reply in Supp. of Defs.' Mot. & in Opp. to Pl.'s Cross–Mot. [Dkt. # 17] ("Defs.' Cross–Opp."). Then, on August 3, 2016, plaintiff filed his reply in support of his cross-motion for summary judgment. Pl.'s Reply in Supp. of Pl.'s Mot. [Dkt. # 20] ("Pl.'s Cross–Reply").

Because the Court finds that each agency has failed to establish that it conducted an adequate search for records under FOIA, it will deny defendants' motion in part, remand the matter to the agencies, and deny plaintiff's motion as moot. However, because the redaction of information from the pages produced by DOD was justified under a FOIA exemption, and DOD produced all segregable information, the Court will grant defendants' motion in part.

BACKGROUND

I. The DOD Request

On December 13, 2014, plaintiff submitted a FOIA request to the DOD Office of the Secretary of Defense/Joint Staff FOIA Office. Defs.' SOF ¶ 1; Pl.'s SOF ¶ 7; Decl. of Raymond Pulliam [Dkt. # 15–2] ("Pulliam Decl.") ¶ 6. Plaintiff requested the following information:

All correspondence whether in electronic or handwritten format, including but not limited to electronic mail (email), memorandums, or other documents related to H.R. 411 (Fort McClellan Health Registry Act), H.R. 2052 (For McClellan Health Registry Act), Fort McClellan exposures, Fort McClellan toxic contamination, H.R. 4816 (Toxic Exposure Research and Military Family Support Act of 2014), and / or H.R. 5680 (Veterans' Toxic Wounds

Research Act of 2014).

Ex. A to Pulliam Decl.; Defs.' SOF ¶ 1; Pl.'s SOF ¶ 7. The date range for the record search was May 1, 2013 through December 12, 2014. Ex. A to Pulliam Decl.; Defs.' SOF ¶ 1; Pl.'s SOF ¶ 7.

On January 12, 2015, after being informed that his request was too broad, plaintiff narrowed his request to "[a]ll correspondence to, from or carbon copied (CC)" to Elizabeth King and Mary McVeigh. Ex. B to Pulliam Decl.; Defs.' SOF ¶¶ 2–3; Pl.'s SOF ¶ 7. Defendants interpret the narrowed request as calling only for the emails of those two individuals, Defs.' SOF ¶ 9, but plaintiff maintains that DOD was still obliged to search for all correspondence "whether in electronic or handwritten format, including but not limited to electronic mail (email), memorandums, or other documents" related to the topics mentioned above. Pl.'s SOF ¶ 2; Ex. B to Pulliam Decl. Ultimately, DOD provided fifty-seven responsive pages to plaintiff, which had been redacted for information related to junior personnel. Defs.' SOF ¶¶ 8, 10–11, 13; Pl.'s SOF ¶ 7.

II. The EPA Request

On February 25, 2015, plaintiff submitted a FOIA request through EPA's online FOIA portal, and the request was assigned to EPA Region 4. Defs.' SOF ¶ 16; Pl.'s SOF ¶ 8; Decl. of Scott Levine [Dkt. # 11–7] ("Levine Decl.") ¶ 4.Plaintiff sought the following information:

All documentation related to investigation/complaint filed by Heather White, General Counsel Environmental Working Group on June 26, 2003; VIA FACSIMILE & FIRST CLASS MAIL and addressed to: Glenn A. Fine, US Department of Justice, Office of the Inspector General and Nikki L. Tinsley, US Environmental Protection Agency Office of the Inspector General regarding allegations against: Christine Todd Whitman, Administrator of the EPA and William A. Weinischke, Department of Justice Senior Counsel.

EPA Ex. A to Defs.' Mot. [Dkt. # 11–8]; Defs.' SOF ¶ 16; Pl.'s SOF ¶ 8. Plaintiff also included the June 26, 2003 letter from Heather White referenced in the request. Defs.' SOF ¶ 17; see EPA Ex. B to Defs.' Mot. [Dkt. # 11–8]. The request was ultimately transferred to the EPA Office of Inspector General ("OIG") on March 18, 2015. Defs.' SOF ¶¶ 18–19. Due to a backlog of FOIA requests, the OIG was only able to provide plaintiff with a status update before plaintiff filed suit. Defs.' SOF ¶¶ 20–21.

III. The DOJ Request

Also on February 25, 2015, plaintiff sent the same FOIA request to the Office of Inspector General at the Department of Justice ("DOJ OIG") that it submitted to EPA.¹ DOJ OIG responded to plaintiff's request by letter dated March 3, 2015 and informed plaintiff that no responsive documents had been located. Defs.' SOF ¶ 35.

STANDARD OF REVIEW

In a FOIA case, the district court reviews the agency's decisions de novo and "the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B) ; Military Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981). "[T]he vast majority of FOIA cases can be resolved on summary judgment." Brayton v. Office of U.S. Trade Representative , 641 F.3d 521, 527 (D.C. Cir. 2011).

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial."Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted).

The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is "material" only if it is capable of affecting the outcome of the litigation. Id. at 248, 106 S.Ct. 2505 ; Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987). In the FOIA context, "the sufficiency of the agency's identification or retrieval procedure" must be "genuinely in issue" in order for summary judgment to be inappropriate. Weisberg v. Dep't of Justice 627 F.2d 365, 371 n.54 (D.C. Cir. 1980), quoting Founding Church of Scientology v. Nat'l Sec. Agency , 610 F.2d 824, 836 (D.C. Cir. 1979) (internal quotation marks omitted). In assessing a party's motion, the court must "view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the summary judgment motion.’ " Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (alterations omitted), quoting United States v. Diebold, Inc. , 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam).

"Summary judgment may be granted on the basis of agency affidavits" in FOIA cases, when those affidavits "contain reasonable specificity of detail rather than merely conclusory statements," and when "they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Judicial Watch, Inc. v. U.S. Secret Serv. , 726 F.3d 208, 215 (D.C. Cir. 2013), quoting Consumer Fed'n of Am. v. Dep't of Agric. , 455 F.3d 283, 287 (...