The opinion of the court was delivered by: Emmet G. Sullivan, United States District Judge.
Plaintiff Northwest Coalition for Alternatives to Pesticides ("NCAP") sues the Environmental Protection Agency ("EPA") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff seeks production of documents responsive to an April 18, 1997 request for copies of substantiation comments submitted by five companies. Plaintiff claims that EPA's failure to fully respond to its FOIA request, and its delay in responding, is a violation of FOIA. Plaintiff also contends that the EPA regulation, pursuant to which the agency withheld a substantiation letter responsive to NCAP's April 18, 1997 request, violates FOIA and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706.
Pending before the Court are the parties' cross motions for summary judgment. Defendant argues that NCAP's claim that it did not produce documents responsive to the April 18, 1997 request is moot. In the alternative, defendant maintains that it has fully complied with FOIA in responding to NCAP's April 18, 1997 request. With respect to NCAP's APA challenge to the agency's regulation, 40 C.F.R. § 2.208(c), defendant contends that the regulation does not conflict with FOIA and is justified by a need to "insure the efficient and effective operation of a government program." Def.'s Mot. at 2.
Plaintiff contends that EPA has never fully responded to its April 18, 1997 request, that any dispute regarding the agency's response to that FOIA request is not moot, and that the EPA violated the APA by failing to respond to NCAP's administrative appeal within the time required by FOIA. Plaintiff maintains that 40 C.F.R. § 2.208(c) violates FOIA by creating a blanket exception for information otherwise subject to disclosure under FOIA. For the foregoing reasons, the Court enters summary judgment for plaintiff and against defendant.
A. Statutory and Regulatory Framework
FOIA requires federal agencies to disclose records to any person upon request, unless those records fall within certain statutory exemptions. 5 U.S.C. § 552(a)(3). If a document contains exempt information, the agency is obligated to release "any reasonably segregable portion" after deletion of the nondisclosable portions. Id. § 552(b).
Exemption 4 permits federal agencies to withhold from disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). The exemption protects "two categories of information in agency records: (1) trade secrets; and (2) confidential commercial information." Northwest Coalition for Alternatives to Pesticides v. Browner, 941 F. Supp. 197, 201 (D.D.C. 1996).
In 1985, the EPA enacted regulations concerning the treatment of comments submitted by business. The regulation at issue in the instant litigation, 40 C.F.R. § 2.205(c), provides:
Confidential treatment of comments from business.
If information submitted to EPA by a business as
part of its comments under this section pertains to
the business's claim, is not otherwise processed by
EPA, and is marked when received in accordance with
§ 2.203(b), it will be regarded by EPA as
entitled to confidential treatment and will not be
disclosed by EPA without the business's consent,
unless its disclosure is duly ordered by a Federal
court, notwithstanding others provisions of the
subpart to the contrary.
B. Procedural History
NCAP is a nonprofit educational and research organization with approximately 2000 members. NCAP disseminates information about the risks associated with pesticide use and suggesting alternatives to pesticides. The organization's staff regularly participates in the administrative process and requests withheld records.
On November 8, 1996, NCAP submitted a FOIA request to the EPA seeking confidential statements of formula ("CSF's") for six herbicides manufactured by Uniroyal Chemical Company ("Uniroyal"). See Pl.'s Mot., Ex. A. On February 13, 1997, the EPA provided a partial response to NCAP's request. Prior to responding to NCAP's request, the EPA notified Uniroyal of NCAP's request pursuant to 40 C.F.R. § 2.204(d)(1)(i). The purpose of this notification was to provide Uniroyal with an opportunity to claim that the requested information was confidential.
The EPA's response to NCAP's request included a list of only those pesticide ingredients not claimed to be confidential by Uniroyal. The EPA did not disclose any of the requested CSFs. In denying plaintiff's request, the EPA relied upon a "substantiation" letter that Uniroyal had submitted, in which the company claimed that the requested CSFs contained confidential information. See Pl.'s Mot., Ex. B.
On April 18, 1997, NCAP submitted a second FOIA request to the EPA. See Pl.'s Mot., Ex. C. This request sought copies of all correspondence with Uniroyal regarding the requirement that Uniroyal substantiate its claims of confidentiality under 40 C.F.R. § 2.208. Specifically, the request asked for "the substantiation comments submitted by five companies in response to [the EPA's] request for confidential statements of formula." On May 2, 1997, Linda Travers, Director of Information Resources and Services Division of the Office of Pesticide Programs, responded to the NCAP FOIA request. This letter was received by NCAP on May 14, 1997. See Pl.'s Mot., Ex. D. Ms. Travers' letter indicated that the EPA refused to release the CSF's in their entirety. The EPA claimed that Uniroyal's "substantiation letter" satisfied the criteria set forth in 40 C.F.R. § 2.208, and was therefore "exempt from disclosure" under FOIA's Exemption 4.
Ms. Travers' letter stated that the EPA had determined that Uniroyal's correspondence was confidential because it was submitted in response to an EPA inquiry about a FOIA request, the correspondence was claimed to be confidential in its entirety, was marked confidential and was not previously possessed by EPA. The letter also provided that, if NCAP wished to appeal the agency's decision, it must file an appeal with the EPA's FOIA officer within thirty days.
On May 4, 1992, Douglas D. Campt, Director of the Office of Pesticide Program at the EPA, responded to NCAP's April 18, 1997 FOIA request. Mr. Campt provided several "substantiation comments" that were not claimed to be confidential under 40 C.F.R. § 2.205(c). See Pl.s' Mot., Ex. G.
On June 9, 1997, an attorney for NCAP filed an appeal with the EPA's FOIA officer. See Pl.'s Mot., Ex. E. On September 30, 1998, an attorney for NCAP sent the FOIA officer a letter of intent to sue. The letter stated that over a year had passed in which the EPA had failed to respond to NCAP's administrative appeal. The letter indicated that NCAP would file a civil action in this Court if the EPA did not respond to NCAP's appeal within two weeks. On February 23, 1999, NCAP filed a complaint in this Court. The complaint alleges that the EPA violated FOIA and the APA by refusing to disclose non-exempt records and by failing to respond to an appeal within 20 days. Compl. ¶¶ 1-2. The complaint also alleges that 40 C.F.R. § 2.205(c) improperly exempts a class of records from FOIA that are not legally entitled to exemption under FOIA. Id. ¶ 3.
On June 23, 1999, Richard D. Weiss, counsel for Uniroyal, sent a copy of a February 7, 1997 letter to Carrie Stilwell, attorney for NCAP. See Pl.'s Mot., Ex. H. The letter, from a Uniroyal attorney to an EPA employee, was written in connection with NCAP's first FOIA request. The copy provided to Ms. Stillwell had been redacted. Mr. Weiss explained that the redactions were made in order "to preserve the ...