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Landmark Legal Foundation v. Environmental Protection Agency

United States District Court, District Circuit

August 14, 2013

LANDMARK LEGAL FOUNDATION, Plaintiff,
v.
ENVIRONMENTAL PROTECTION AGENCY, Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, District Judge.

The Environmental Protection Agency ("EPA") has moved for summary judgment as to the Landmark Legal Foundation's ("Landmark") Freedom of Information Act ("FOIA") claim. See Def.'s Mot., ECF No. 30. Landmark opposes the motion and seeks limited discovery regarding the adequacy of EPA's search for documents responsive to its FOIA request. The Court will deny EPA's motion, and will grant Landmark's request for limited discovery.

I. BACKGROUND[1]

A. Landmark's FOIA Request

"On August 17, 2012, Landmark, a national public interest law firm, ' submitted a FOIA request to the EPA requesting records regarding any EPA rule or regulation for which public notice has not been made, but which was contemplated or under consideration for public notice between January 1, 2012 and August 17, 2012." Landmark Legal Found. v. EPA, 910 F.Supp.2d 270, 272 (D.D.C. 2012) (citations omitted). Specifically, Landmark asked EPA to disclose

1. Any and all records identifying the names of individual, groups and/or organizations outside the EPA with which the EPA, EPA employees, EPA contractors and/or EPA consultants have had communications of any kind relating to all proposed rules or regulations that have not been finalized by the EPA between January 1, 2012 and August 17, 2012....
2. Any and all records indicating an order, direction or suggestion that the issuance of regulations, the announcements of regulations and/or public comment of regulations should be slowed or delayed until after November 2012 or the presidential elections of 2012.

Letter from Mark R. Levin, President, Landmark Legal Found., to Nat'l Freedom of Info. Officer, U.S. Envtl. Prot. Agency 2 [hereinafter "Pl.'s FOIA Request"], Aug. 17, 2012, Def.'s Ex. A, ECF No. 30-2. "The genesis of the FOIA request was Landmark's suspicion, based on news reports, that the EPA may have intentionally delayed a controversial' regulation until after the November 2012 presidential election." Landmark Legal Found., 910 F.Supp.2d at 272-73. This concern appears on the face of Landmark's FOIA request, which asserts the possibility that "the Obama Administration is improperly politicizing EPA activities, EPA officials are attempting to shield their true policy goals from the public, and/or EPA officials themselves are putting partisan interests above the public welfare." Pl.'s FOIA Request 1.

B. Landmark's Agreement To Narrow the Scope of the Request

Following some discussion between the parties, [2] the EPA's Office of the Executive Secretariat[3] sent an email to Landmark's Assistant General Counsel which included the following query: "In order to make this request more manageable, would you consider narrowing the search to senior officials in EPA HQ (ie., Program Administrators, Deputy Administrators and Chiefs of Staff)?" Email from Jonathan Newton (EPA) to Matthew C. Forys (Landmark), Oct. 5, 2012, Pl.'s Ex. A, ECF No. 31-1. Landmark's response stated that it "will agree to limit the scope of the search to senior officials in EPA HQ with the understanding that Landmark does not waive the right to expand the scope to the original request if warranted by responsive records." Email from Matthew C. Forys (Landmark) to Jonathan Newton (EPA), Oct. 5, 2012, Pl.'s Ex. A, ECF No. 31-1.

EPA appears to be inconsistent as to whether it understood the term "senior officials" in this narrowing agreement to exclude the Administrator and/or other top leaders in the agency from the scope of the FOIA request. EPA's opening brief asserts that both parties "agreed to narrow the scope of the request to senior officials' in each of the EPA's headquarters offices, with senior officials' being identified as Program Administrators, Deputy Administrators and Chiefs of Staff in EPA's headquarters offices as well as the Associate Administrator and Deputy Associate Administrator in EPA's Office of Policy." Def.'s Mem. 4-5. This statement seems to suggest that the EPA interpreted the FOIA request as excluding the Administrator. The initial declaration of Eric Wachter, the director of the EPA's Office of the Executive Secretariat, seems to confirm this interpretation. Wachter Decl. ¶¶ 9 & 11, ECF No. 30-1 ("This request was narrowed by agreement... to assistant administrators, deputy assistant administrators, and chiefs of staff in EPA headquarters offices, as well as to the associate administrator and deputy associate administrator in EPA's Office of Policy."). But in subsequent filings, EPA states that it "does not assert that Landmark agreed to limit the scope of the FOIA request to assistant administrators, deputy assistant administrators, and chiefs of staff in EPA headquarters offices as well as to the associate administrator and deputy associate administrator in EPA's Office of Policy, " Def.'s Reply to Pl.'s Statement of Material Facts ¶ 1, ECF No. 35, and that it "has always interpreted the narrowed scope of the request to include the Administrator, Deputy Administrator, and Chief of Staff in the Office of the Administrator." Def.'s Reply 4. A parallel adjustment is also found in Mr. Wachter's supplemental declaration, which states that his office "interpreted the narrowed scope of this FOIA request to include the Administrator, Deputy Administrator, and Chief of Staff in the Office of the Administrator, " who were "included under the definition of program administrators, deputy administrators, and Chiefs of Staff.'" Wachter Supp. Decl. ¶ 9, ECF No. 35-7.

C. EPA's Initial and "Final" Disclosures

Between February and April of 2013, EPA conducted a search for responsive documents and made disclosures to Landmark, culminating in a "final" disclosure on April 12, 2013. Def.'s Statement of Material Facts ¶ 15, ECF No. 30. This final disclosure included 1, 134 pages in 123 documents released in full, 1, 678 pages in 196 documents with redactions, and an index of documents withheld under FOIA exemptions. Id. ¶ 15.

Again, EPA appears to be inconsistent as to when and how the FOIA request was communicated to the Office of the Administrator, and provides limited details of what was actually communicated. In his initial declaration, Mr. Wachter explains that his "office initiated a search for records, as narrowed by agreement... by electronic mail" and that this "initial search request went to the Office of the Administrator" on October 23, 2012. Wachter Decl. ¶ 11; see also Def.'s Mem. 5. Mr. Wachter's initial declaration states that this initial request for records was sent to the designated FOIA coordinators for "each of the EPA's headquarters offices, " including the Office of the Administrator. Id. at 12. The email included the following: "Note: This request has been modified. The search only applies to assistant administrators, deputy ...


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