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Hall & Associates v. Environmental Protection Agency

March 7, 2012


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge


Plaintiff Hall & Associates ("Hall") brings this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, et seq., as amended, appealing the defendant Environmental Protection Agency's ("EPA"): (1) assessment of charges following Hall's FOIA appeal determination; (2) withholding of documents responsive to Hall's FOIA request; and (3) alleged failure to provide Hall with a full and complete FOIA response. Before the Court is EPA's Motion [10] for summary judgment and Hall's Cross-Motion [11] for summary judgment and Motion for in camera review. Upon consideration of EPA's Motion [10] for summary judgment; Hall's Cross-Motion [11] for summary judgment, Motion for in camera review, and opposition to EPA's motion; EPA's reply [14] in support of its motion and opposition to Hall's cross-motion for summary judgment and motion for in camera review; Hall's reply [17] in support of its motion for in camera review; Hall's reply [18] in support of its cross-motion for summary judgment; the applicable law; and the entire record in this case; the Court will GRANT IN PART and DENY IN PART EPA's Motion for summary judgment, GRANT IN PART and DENY IN PART Hall's Cross-Motion for summary judgment, and DENY Hall's Motion for in camera review. The Court will explain its reasoning in the analysis that follows.


In a letter dated February 19, 2010, Hall submitted a FOIA request to EPA seeking documents delineating EPA's current and historical position on whether states with approved National Pollutant Discharge Elimination System ("NPDES") programs under section 402(b) of the Clean Water Act ("CWA"), 33 U.S.C. § 1342(b), may authorize bacteria mixing zones in freshwater lakes and rivers.*fn1 Hall's request sought "all records developed by EPA indicating that a state cannot and/or should not approve mixing zones for point sources when applying the bacteria body contact recreation standard." Compl. Ex. 1 ("FOIA Request"). EPA's National FOIA Office assigned a processing number (HQ-FOI-00748-10) and categorized the request as "commercial" pursuant to EPA regulations because the request letter was made by a commercial entity and did not seek a fee waiver. Def.'s Mot. for Summ. J. [10] Ex. 1 ("Washington Decl."), ¶ 17-- 18; see also 5 U.S.C. § 552(a)(4)(A)(ii)(I); 40 C.F.R. § 2.107(c). EPA's National FOIA Office assigned response duties to the Office of Science and Technology. Washington Decl. ¶ 18. On March 4, 2010, the Office of Science and Technology identified all offices within EPA that could reasonably be expected to have responsive documents and conducted a search related to mixing zones and bacteria. Id. ¶¶ 19--21. In a series of phone and e-mail discussions with Hall, EPA sought and obtained from Hall a brief extension to respond to the FOIA request. Id. ¶ 19. EPA then created a collections database to house the records.

EPA identified responsive documents for release, subject to an assurance of payment from Hall for search, duplication, and review costs. Id. ¶ 20. Hall provided written assurance of payment for the amount of $372.30 on March 23, 2010. Id. On April 5, 2010, EPA released approximately thirty documents to Hall and withheld approximately 300 others under FOIA Exemption 5, the deliberative process privilege. Id. ¶ 21. The withheld documents consisted largely of e-mail communications and drafts circulated among EPA staff in both headquarters and regional offices. Id. At that time, EPA provided Hall with the metadata (subject, date, author, and recipients) for each document being withheld. Id. On April 28, 2010, Hall appealed EPA's decision to withhold documents under Exemption 5. Compl. Ex. 4. Hall also cited EPA's failure to provide a categorical summary of its response to Hall's FOIA request-that is, EPA's failure to indicate which documents were responsive to which portions of the request-as a failure to fully respond in a manner that allowed Hall to evaluate the adequacy of EPA's response to each subrequest. Id.

In a letter dated May 25, 2010, the Office of General Counsel, who reviewed Hall's administrative appeal, granted the appeal in part and remanded to the Office of Science and Technology for a review of whether any releasable information might be reasonably segregable from information exempted from disclosure under FOIA. Compl. Ex. 5. The letter stated that the letter itself "constitute[d] EPA's final determination on this appeal," and did not include a statement regarding the need for further payment from Hall for EPA to properly respond to the FOIA request. Id.

Upon receipt of the Office of General Counsel's appeal determination, EPA assessed the cost of reviewing and redacting segregable material as ordered by the hearing officer. Washington Decl. ¶ 24. On June 17 and June 25, 2010, EPA requested further written assurance of payment of $3,280 from Hall, the amount that EPA claimed it would cost to proceed with the necessary review of withheld documents for reasonably segregable material. Compl. Exs. 6, 7. Additionally, EPA agreed to provide Hall with a categorical summary of its response and calculated the cost of doing so to be an additional $615. Compl. Ex. 7.

Between June and August 2010, Hall communicated with EPA regarding the Agency's price assurance request. Based on these communications, EPA agreed to lower the price of providing the results of the administrative appeal mandated segregability review to $1,025. Def.'s Mot. for Summ. J.

[10] Ex. 14. EPA also reduced its demanded payment to provide Hall with a categorical summary of responsive documents to $205, which Hall agreed to pay. Compl. Ex. 7. On August 20, 2010, EPA provided Hall with the requested categorical summary of previously released and withheld documents, even though this categorization is not routinely provided in processing FOIA requests. Washington Decl. ¶ 28.

Following receipt of EPA's categorical summary, Hall reiterated to EPA its requests that EPA:

(1) conduct the review of the withheld documents to identify whether there was segregable information, as instructed by the appeal determination; (2) retract EPA's payment request; (3) provide Hall all withheld documents; and (4) reevaluate whether EPA had properly categorized the produced documents under the appropriate subcategories. Compl. Exs. 9, 10. EPA twice extended the deadline for Hall to provide payment assurance for review of the remaining documents, yet Hall continued to refuse to provide a payment assurance for EPA's second review of the requested documents. In a letter dated September 8, 2010, EPA informed Hall that it was closing the FOIA request due to lack of written assurance of payment. Def.'s Mot. for Summ. J. Ex. 17. On September 10, 2010, Hall responded by indicting that it might file a complaint in this Court challenging EPA's compliance with its FOIA responsibilities. Washington Decl. ¶ 30. Through a series of letters and phone conferences between the parties, EPA indicated that it would continue to review and release records once it received payment assurance, while Hall continued to demand records without paying the requested fees. Id. ¶¶ 32--35. On October 21, 2010, EPA released an additional thirty documents that it has previously withheld, but reiterated that it would not produce the results of its segregability review unless and until Hall provided a payment assurance.

On November 16, 2010, Hall filed the complaint in the present case. Contemporaneous with its answer to the complaint, EPA notified Hall that EPA would release the results of its segregability review if it received a price assurance of $840, a reduction from the initial demand of $3,280. Def.'s Mot. for Summ. J. [10] Ex. 23.


FOIA requires agencies of the federal government, upon request, to release records to the public. 5 U.S.C. § 552(a). The term "record," as defined in FOIA, includes "any information that would be an agency record subject to the requirements of [FOIA] when maintained by an agency in any format, including an electronic format," including any such information "that is maintained for an agency by an entity under Government contract, for the purposes of records management." 5 U.S.C. § 552(f)(2). A FOIA requester may appeal an agency's failure to disclose requested records. 5 U.S.C. § 552(a)(6). If the agency denies the request on appeal, the requester is deemed to have fully exhausted his administrative remedies and may bring suit in federal district court. 5 U.S.C. § 552(a)(6)(C)(i). A district court has jurisdiction to enjoin a federal agency from withholding information and order the production of any records that have been improperly denied to the requester. 5 U.S.C. § 552(a)(4)(B).


Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when the moving party demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the trier of fact must view all facts, and all reasonable inferences drawn therefrom, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). In order to defeat summary judgment, a factual dispute must be capable of affecting the substantive outcome of the case and be supported by sufficiently admissible evidence that a reasonable trier of fact could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986); Laningham v. U.S. Navy, 813 F.2d 1236, 1242--43 (D.C. Cir. 1987). "[A] complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial[, and t]he moving party is entitled to judgment as a matter of law." Celotext Corp. v. Catrett, 477 U.S. 317, 322 (1986).

FOIA cases are typically and appropriately decided on motions for summary judgment. Citizens for Responsibility & Ethics in Washington v. Dep't of Labor, 478 F. Supp. 2d 77, 80 (D.D.C. 2007); Wheeler v. DOJ, 403 F. Supp. 2d 1, 5--8 (D.D.C. 2005). An agency may be entitled to summary judgment in a FOIA case if it demonstrates that no material facts are in dispute, it has conducted an adequate search for responsive records, and each responsive record that it has located either has been produced to the plaintiff or is exempt from disclosure. See Weisberg v. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). To meet its burden, a defendant may rely on reasonably detailed and nonconclusory declarations. See McGehee v. CIA, 697 F.2d 1095, 1102 (D.C. Cir. 1983); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert denied, 415 U.S. 977 (1974); Wheeler, 403 F. Supp. 2d at 6.

The Court may award summary judgment solely on the basis of information provided by the department or agency in declarations when the declarations describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor ...

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