Surgey v. Envtl. Prot. Agency
| Decision Date | 03 December 2021 |
| Docket Number | Civil Action 18-654 (TJK) |
| Parties | NICHOLAS SURGEY, Plaintiff, v. ENVIRONMENTAL PROTECTION AGENCY, Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Nicholas Surgey sued the Environmental Protection Agency under the Freedom of Information Act, or FOIA. He seeks documents related to a trip taken by the EPA's former Administrator to attend the 2018 Rose Bowl college football game. The parties have cross-moved for summary judgment. For the reasons explained below, the Court will deny both parties' motions without prejudice as to (1) the adequacy of the EPA's search, (2) the withholding of the former Administrator's Protective Service Detail's logistical coordination and travel details, and (3) seg-regability. But the Court will grant the EPA's motion, and deny Surgey's, in all other respects including the applicability of FOIA's Exemption 6 to additional details of the former Administrator's family vacation.
At the end of 2017, then-Administrator of the EPA Scott Pruitt left with his family for a holiday vacation. ECF No. 13-2 ¶ 7. The Pruitt family attended the 2018 Rose Bowl college football game in Pasadena, California, on New Year's Day, where the University of Oklahoma Sooners lost to the University of Georgia Bulldogs. ECF No. 13-1 ¶ 9. They then spent the next couple of days at Disneyland in Anaheim, California, ECF No. 16-1 ¶ 4, appearing to stay at least one night at the Disneyland Hotel, see ECF No. 21-5 at 55-56.
Plaintiff Nicholas Surgey is an investigative journalist and co-director of an organization that researches corporate influence over public policy. In January 2018, Surgey submitted a FOIA request to the EPA, seeking “[r]ecords associated with EPA Administrator Scott Pruitt's travel to and attendance at the 2018 Rose Bowl college football game, which took place on January 1, 2018 at the Rose Bowl stadium in Pasadena, California.” ECF No. 13-4 at 3. The request specified that the “[r]ecords should include but should not be limited to any emails, notes, or expense reports that describe the trip to Pasadena, the Rose Bowl game, and any associated meetings or events that took place on the same trip.” Id. Surgey further instructed that the response should include “[d]etails of who paid for travel, Rose Bowl tickets, and any other associated costs incurred on this trip.” Id. Finally, according to the request, the “records should concern travel by Scott Pruitt, as well as any other EPA staff (including security staff) that traveled to Pasadena as part of the same trip or attended the game with the Administrator.” Id. Surgey received no response to his request and so he sued in March 2018.
A couple of months after Surgery sued, the EPA searched for responsive records. The EPA searched Microsoft Outlook accounts, its travel system, as well as the non-Microsoft Outlook records of the former Administrator and other custodians. ECF No. 13-2 ¶¶ 8-18. Because Surgey's request spoke only of the former Administrator's trip to the Rose Bowl game, the agency focused its search on the same, using the terms “football, ” “rose bowl, ” “Pasadena, ” “Huntington Beach, ” “sooner*, ” or “bulldog*.”[1] Id. ¶ 9.
As a result of its search, the EPA produced nearly 400 pages of responsive records.[2] Id. ¶¶ 19-21. The EPA first withheld about 99 records in part and 54 records in full. Id. ¶ 21. The records withheld in full included the contact information of individual law enforcement officers, a Joint Special Threat Assessment for the 2018 Rose Bowl game, Protective Service Detail weekly scheduling documents, and Protective Service Detail travel itineraries or vouchers. Id.
After its production, the EPA moved for summary judgment. See ECF No. 13. Surgey then cross-moved for summary judgment. See ECF No. 16. A couple of weeks after Surgey filed his cross-motion, the EPA conducted another review of the records at issue. According to the EPA, it “reconsidered its exemption analysis and removed redactions from some previously produced records.” ECF No. 21 at 2. The EPA then made a supplemental production of records to Surgey, which “included previously redacted information concerning the former Administrator's schedule during his personal vacation.” Id. According to Surgey though, the EPA's original search was not adequate, and the supplemental production still includes “disputed redactions that EPA cannot justify.” ECF No. 23 at 1.
“Congress enacted the FOIA in order to ‘pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.'” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)) (internal quotation marks omitted). “FOIA ‘mandates that an agency disclose records on request, unless they fall within one of nine exemptions.'” Elec. Privacy Info. Ctr. v. Dep't of Homeland Sec. (“EPIC”), 777 F.3d 518, 522 (D.C. Cir. 2015) (quoting Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011)).
The “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 appropriately granted when, viewing the evidence in the light most favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.-Islamic Rels. Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016). “The evidence presented must show ‘that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Id. (quoting Fed.R.Civ.P. 56(a)). “In the FOIA context, a district court reviewing a motion for summary judgment conducts a de novo review of the record, and the responding federal agency bears the burden of proving that it has complied with its obligations under the FOIA.” MacLeod v. Dep't of Homeland Sec., No. 15-cv-1792 (KBJ), 2017 WL 4220398, at *6 (D.D.C. Sept. 21, 2017) (citing 5 U.S.C. § 552(a)(4)(B)).
The parties first disagree over the adequacy of the EPA's search. The D.C. Circuit “applies a reasonableness standard to determine whether an agency performed an adequate search.” Mobley v. CIA, 806 F.3d 568, 580 (D.C. Cir. 2015). This inquiry focuses not on “the fruits of the [agency's] search, but by the appropriateness of the methods used to carry out the search.” Itur-ralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). “To prevail on summary judgment, ” the agency need only “show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested”-a showing that is met “by submitting a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.” Reps. Comm. for Freedom of Press v. FBI, 877 F.3d 399, 402 (D.C. Cir. 2017) (cleaned up) (quoting Oglesby v. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)).
The EPA has largely carried its burden. As explained above, the EPA searched several areas likely to have records responsive to Surgey's request. It searched the Microsoft Outlook accounts of the Administrator, the Administrator's Director of Scheduling and Advance, the Deputy White House Liaison and Personal Aide to the Administrator, the Senior Advisor to the Administrator for Public Affairs, and individuals who were part of or supported the Administrator's Protective Service Detail. ECF No. 13-2 ¶ 8. This search was for records dated from December 1, 2017, through January 8, 2018, that included the terms “football, ” “rose bowl, ” “Pasadena, ” “Huntington Beach, ” “sooner*, ” or “bulldog*.” Id. ¶ 8-9. The EPA explained in an affidavit that these “search terms would locate responsive records” because “football, ” “rose bowl, ” “sooner*, ” or “bulldog*” would capture records about the Rose Bowl trip, as the University of Oklahoma Soon-ers played the University of Georgia Bulldogs in the 2018 Rose Bowl game. Id. ¶ 10. Meanwhile, “Pasadena” and “Huntington Beach” would “capture records that refer to the location of the trip but that do not specifically mention the football game.”[3] Id. The EPA also searched its travel system for travel for former Administrator Pruitt from December 14, 2017, through January 14, 2018, and for records from the same time frame for any travel to California by members of the Protective Service Detail. Id. ¶¶ 13, 15. And the agency further searched former Administrator Pruitt's, and other custodians', non-Microsoft Outlook records, looking through “local or shared drives, SharePoint sites, OneDrive, mobile devices, text messages, external drives, and hard copy files.” Id. ¶¶ 16-17. The individuals sifting through these non-Microsoft Outlook records were given the language of Surgey's request to aid in their search. Id. ¶ 17. Overall, the agency's search efforts yielded nearly 400 pages of responsive records. Id. ¶¶ 20-21.
The EPA was not required, as Surgery argues, to expand its search to capture “all records concerning all parts of” the Pruitt family's vacation in California regardless of their relation to the Rose Bowl game. ECF No. 16 at 6; see ECF No. 23 at 2-4. “In complying with a FOIA request, an agency is not required to search for records which are beyond the scope of the original request.” Negley v. FBI, 766 F.Supp.2d 190, 195 (D.D.C. 2011). And the EPA properly construed Surgey's request as limited to records related to the former...
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