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Public Employees For Environmental Responsibility v. United States International Boundary and Water Commission

February 7, 2012

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, PLAINTIFF,
v.
UNITED STATES INTERNATIONAL BOUNDARY AND WATER COMMISSION, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge,

MEMORANDUM OPINION

I.INTRODUCTION

This case concerns whether the United States International Boundary and Water Commission ("Commission") followed its statutory responsibilities in responding to a Freedom of Information Act request. Before the Court are defendant's Renewed Motion [15] for Summary Judgment and plaintiff's Renewed Motion [16] for Summary Judgment. Upon consideration of the motions, oppositions, replies, the entire record in this case, and the applicable law, the Court will grant plaintiff's Renewed Motion [16] for Summary Judgment and deny defendant's Renewed Motion [15] for Summary Judgment.

II.BACKGROUND

This case has its origins in the Commission's removal of its former General Counsel, Robert McCarthy, from his position in July 2009. McCarthy Decl. [16-1] ¶2--4, July 28, 2011. After the Commission removed him, McCarthy appealed the Commission's decision to the Merit Systems Protection Board. Id. at ¶6. To represent it in that litigation, the Commission hired the law firm of Jackson Lewis. Id. at ¶7.

The plaintiff in this case-Public Employees for Environmental Responsibility ("PEER"), a non-profit organization*fn1 -somehow learned about Mr. McCarthy's case and the Commission's hiring of Jackson Lewis, and became concerned that the Commission's payments to that law firm might constitute misuse of government funds. Compl. [1] ¶2, Jan. 6, 2010. Accordingly, in October 2009, PEER filed a request with the Commission under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., seeking:

(1) A copy of the retainer agreement between [the Commission] and the law firm of Jackson Lewis in the matter concerning McCarthy v. IBWC, Docket # DA-1221-09-0725-S-1 and

(2) All documents that evidence the source of the funds used to pay for representation by Jackson Lewis in the matter concerning McCarthy v. USIBWC. Pl.'s SMF [16] 1 ¶1, July 29, 2011.

The Commission received PEER's FOIA request and responded sometime in November 2009, although the parties disagree about exactly when. Compare Pl.'s SMF [16] 2 ¶2 & n.1 with Def.'s Mem. Opp'n [21] 2--3, Aug. 22, 2011. In its response to PEER, the Commission refused to produce its retainer agreement with Jackson Lewis, asserting the attorney--client privilege and claiming that release of the agreement could harm Jackson Lewis's interests vis a vis its competitors. Def.'s SMF [15] 1 ¶2, July 1, 2011. As to PEER's second request (i.e., for "all documents" evidencing the source of the funds used to pay Jackson Lewis), the Commission conducted no search and produced no documents, but referred PEER to a website showing the Commission's 2009 Congressional appropriation, since (the Commission claimed) "Congress's general appropriation for the agency for that year was the source of the funds . . . ." Id. 2 ¶3. Unhappy with the Commission's response to its FOIA request, PEER filed an administrative appeal with the Commission in December 2009, which the Commission denied. Pl.'s SMF [16] 2 ¶3.

In January 2010, PEER filed suit in this Court*fn2 to compel the Commission to disclose the requested records. PEER's Complaint brought two counts, the first for violation of FOIA, and the second for violation of the Administrative Procedure Act ("APA").*fn3 Compl. [1] ¶24--27. PEER sought an order declaring that the Commission was wrongfully withholding the requested records, an injunction directing it to disclose these records, and an award of attorney's fees and costs pursuant to 5 U.S.C. § 552(a)(4)(E). Id. at 7.

The next month, PEER filed a motion for summary judgment, arguing that the Commission had improperly invoked FOIA exemptions 4, 5 U.S.C. § 552(b)(4), and 5, id. § 552(b)(5), had failed to segregate non-exempt portions of material pursuant to § 522(b), and had provided non-responsive documents. Pl.'s Mot. Summ. J. [2-2] 4--10, Feb. 9, 2010. The Commission filed its own motion for summary judgment in March 2010. Def.'s Mot. Summ. J.

[6] Mar. 19, 2010. In that motion, the Commission announced that it would produce a redacted version of the retainer agreement to PEER. Id. at 3. It also conceded that its response to PEER's request for all records concerning the source of the funds used to pay Jackson Lewis was inadequate, and stated that it would release to PEER records relating to that issue which were obtained from the Commission's "Acquisitions Department." Id. at 3, 4. In the Commission's view, PEER's arguments and motion for summary judgment were now moot because it was, at that point, fully in compliance with FOIA. Id. at 4.

However, in December 2010, Judge Sullivan denied both parties' motions without prejudice. Order [10] 1, Dec. 8, 2010. Judge Sullivan determined that he could not responsibly address PEER's FOIA claim absent additional action from the Commission. Id. at 3. First, he ordered the Commission to submit an unredacted copy of the retainer agreement for in camera inspection, in order to determine whether the Commission's invocation of the attorney--client privilege exemption was proper. Id. Second, Judge Sullivan found that the Commission's declaration in support of its motion was inadequate to support its contention that it had performed an adequate search, and he provided the Commission with an opportunity to submit a supplemental declaration correcting this deficiency. Id. at 4. Following his review of the unredacted retainer agreement, Judge Sullivan ruled, in a minute order dated January 4, 2011, that the Commission's redactions were proper. ...


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