Zemansky v. U.S. E.P.A.

• Decision Date: 29 July 1985
• Docket Number: No. 84-4089,84-4089
• Citation: 767 F.2d 569
• Parties: G.M. ZEMANSKY, Plaintiff-Appellant, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 569

767 F.2d 569

G.M. ZEMANSKY, Plaintiff-Appellant, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee.

No. 84-4089.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 3, 1985.

Decided July 29, 1985.

Charles E. Ehlert, Smith, Brucker, Winn & Ehlert, Seattle, Wash., for plaintiff-appellant.

Barbara J. Lither, Asst. Regional Counsel, Seattle, Wash., Marie Creson, Asst. U.S. Atty., Tacoma, Wash., for defendant-appellee.

Appeal from the United States District Court For the Western District of Washington.

Before HUG, FARRIS, and BOOCHEVER, Circuit Judges.

HUG, Circuit Judge:

Appellant Zemansky filed suit against the United States Environmental Protection Agency ("EPA") alleging nine instances of EPA noncompliance with the Freedom of Information Act, 5 U.S.C. Sec. 552 (1982). On EPA's motion for summary judgment, the court dismissed the complaint finding that EPA had provided Zemansky all pertinent documents in its possession. Zemansky appeals, arguing that EPA failed to perform an adequate search for documents relating to two of the instances. The district court also granted EPA summary judgment on the latter's counterclaim, which sought a declaration of EPA's obligation to respond to Zemansky's requests for nondocumentary material. Zemansky also appeals this ruling. We affirm except with respect to portions of the district court order placing special requirements on Zemansky's future Freedom of Information Act ("FOIA") requests.

I BACKGROUND

Zemansky is a doctor of civil engineering interested in the enforcement of environmental regulations in the construction of the Trans-Alaskan Pipeline System ("TAPS"). He has made regular and frequent use of the FOIA. ¹ Nearly all requests involved activities of EPA's Alaska Operations office, a sub-office of the Seattle Regional Office.

The EPA complains that it often found Zemansky's requests difficult to comprehend "in that they contained questions, commentary, narrative, and requests for 'information' as well as requests for 'appropriate reports.' " Zemansky sometimes also asked that EPA justify various policies and actions. The EPA nevertheless seems to have responded adequately to the vast majority of requests. Zemansky was dissatisfied, however, with EPA responses to nine particular requests that he made during 1981 and 1982. These requests for documents and information concerned various matters, including water quality testing and TAPS construction.

In May, 1983, Zemansky sued EPA to obtain appropriate responses to these nine requests. While the litigation was pending, EPA provided Zemansky hundreds of pages of documents pursuant to requests three through nine. EPA then moved for summary judgment, submitting six affidavits, four of which addressed either claim one, claim two, or both. These described the efforts made to find documents pertinent to either of the first two claims, and the inability to locate any such documents. The district court granted the summary judgment motion as to all nine claims. On appeal, Zemansky only disputes the dismissal of the first two claims.

The EPA also moved for summary judgment on its counterclaim, which sought a declaration of EPA's obligations under FOIA to generate documents explaining its policies and actions. The district court also granted this motion, holding that "EPA has Zemansky contends that the affidavits are inadequate because the searches described therein were deficient. He argues that the district court's entry of summary judgment in EPA's favor on EPA's counterclaim was improper because there was no "case or controversy" since both parties agreed that the FOIA does not mandate that EPA generate information, or supply information other than that contained in documents properly the subject of FOIA requests. Alternatively, Zemansky argues that the restrictions placed on his use of FOIA lack a legal basis. The EPA counters that the issue is moot on appeal since there no longer is a dispute over the issue.

                no duty under the FOIA to answer questions unrelated to a request for documents, and it has no duty to create documents."    The court also placed several conditions on Zemansky's future use of the FOIA:  Each request must be "in a separate document which is clearly identified as an FOIA request and which identifies with as much specificity as possible the documents requested."    Further, "FOIA requests are not to be intertwined with non-FOIA matters."
                

II ANALYSIS

A. Summary Judgment on the Complaint.

On appeal, Zemansky disputes only that portion of the dismissal of his complaint relating to the first and second instances of alleged EPA noncompliance with the FOIA. The district court found that affidavits EPA submitted with its summary judgment motion depicted an adequate search for the documents requested in both instances. In reviewing this decision, the facts must be viewed in the light most favorable to the requestor. See Weisberg v. United States Dept. of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984). The agency must:

demonstrate that it has conducted a "search reasonably calculated to uncover all relevant documents." Further, the issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate. The adequacy of the search, in turn, is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case. In demonstrating the adequacy of the search, the agency may rely upon reasonably detailed, nonconclusory affidavits submitted in good faith.

Id. (Citations omitted.) (Emphasis in original.) The district court reached its decision in favor of EPA by applying a substantively identical test. See Weisberg v. United States Dept. of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983).

1. Instance One

The basis of the first instance of alleged noncompliance with FOIA was a letter to EPA's Region 10 office dated September 29, 1981 requesting, as later characterized by Zemansky, documents relating to (1) "EPA water quality surveys in Alaska" and (2) "interactions" between EPA and the TAPS builder, Alyeska. Zemansky complains on appeal that "EPA's response overlooked the second group entirely.... EPA has produced no affidavit or specific explanation of any search for records of the second group requested." ² (Emphasis The affidavits portray an adequate search for documents related to "interactions" between EPA and Alyeska. Micheline Ward, the FOIA coordinator for the Region 10 Water Division since June, 1982, was assigned to review Zemansky's requests and search for, or initiate searches for, relevant documents. In her affidavit, Ward describes her search for certain documents requested in the letter of September 29, 1981 "generally regarding the trans-Alaska pipeline system," thus clearly addressing herself to the "second group." Ward reports finding an October 22, 1981 letter to Zemansky from James Sweeney, the then-Director of the Alaska Operations Office ("AOO"), stating that none of the requested material could be found at the AOO. The files also showed that Ward's supervisor had contacted Sweeney's successor, who also reported finding no relevant documents.

                is Zemansky's.)    The EPA maintains that its affidavits were sufficient
                

Ward also contacted Sweeney, who told her that he had "no knowledge of any existing AOO documents" other than some that had been sent to the Seattle regional office for EPA attorney Cheryl Koshuta to review as part of her work in another Zemansky-EPA suit. At Ward's request, Koshuta reviewed the documents that had been sent to her (consisting of one large box of files) and found nothing "generally regarding the Trans-Alaska-Pipeline." Based on her "personal knowledge of the contents of the files," Koshuta concluded that the "files in my custody do not contain documents which are in response to the FOIA request" of September 29, 1981.

Ward's supervisor, Robert Burd, submitted an affidavit explaining that the AOO files had been shipped to the Seattle office for Koshuta's use. Burd also reports checking with Sweeney's successor at AOO, who reported finding nothing responsive to the request.

Contrary to Zemansky's assertions, the affidavits do not ignore the second group of documents requested in the September 29, 1984 letter, that is, those relating to "inter-actions" between EPA and the TAPS builder Alyeska. The affidavits all report searches for documents responsive to this letter and generally related to TAPS.

2. Instance Two

Zemansky's second claim stemmed from his November 27, 1981 letter to EPA requesting documents "regarding planning of State of Alaska-EPA roles for the 1982 placer mining season and a meeting held November 2, 1981 to discuss EPA's role." Zemansky contends that the affidavits did not sufficiently address attempts made "to locate records of this meeting." The affidavit of Ward notes that the letter was not treated as an FOIA request because "it appeared to be a personal letter to the Regional Administrator." Ward also said in her affidavit that if such records existed (pertaining to inter-agency roles), they most likely would be maintained by the State-EPA Agreement ("SEA") Coordinator, Julie Hagensen. In her affidavit, Hagensen reports that she was "unable to locate any specific document responsive" to the request for documents "pertaining to the planning of interagency roles for the 1982 placer mining season." Hagensen examined "the Alaska FY '81 and FY '82 SEA files as well as the general SEA files for FY '81-82" while searching for responsive documents.

Zemansky argues that EPA's affidavits are inadequate because neither of the two EPA employees attending the November 2, 1981 meeting was "ever asked to locate records of this meeting," even though one of them, Diane Soderlund, did produce an affidavit and records concerning another Zemansky recognizes that "[a]...