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Competitive Enterprise Institute v. United States Environmental Protection Agency

United States District Court, District Circuit

January 29, 2014



JAMES E. BOASBERG, District Judge.

This Freedom of Information Act case began in controversy and ends in minutia. Alarmed by revelations that Environmental Protection Agency officials had been using secret email addresses to conduct government business, Plaintiff Competitive Enterprise Institute, a think tank dedicated to regulatory and environmental policy, filed a FOIA request seeking information related to former EPA Administrator Lisa Jackson's use of a secondary email account. EPA produced over 10, 000 records in response to this request, provided two sample Vaughn indices to justify its decision to withhold some materials, and has now moved for summary judgment.

CEI opposes that Motion on multiple grounds; these run the gamut from broad claims of bureaucratic conspiracy to nitpicking over EPA's refusal to disclose the spelling of its staff's personal email addresses. It asks the Court to deny EPA summary judgment, to order the agency to reprocess all of the documents it withheld, and to require it to provide full (rather than sample) Vaughn indices. For the most part, however, CEI speaks loudly and carries a small stick. Despite the group's bold claims, the law and the record show that EPA has almost entirely complied with its obligations under FOIA and that it is entitled to summary judgment on nearly every count. Still, CEI scores a few stray hits, and the Court will require EPA to polish off these last details before it terminates the case.

I. Background

This dispute arose from the news that former EPA Administrator Lisa Jackson had used a secondary email account under the alias "Richard Windsor" to conduct official government business. See Senate Environment and Public Works Comm., Minority Report, A Call for Sunshine: EPA's FOIA and Federal Records Failures Uncovered (Sept. 9, 2013) at 9, available at It turns out that Administrator Jackson was not the only EPA official who used an alternative email address, which has raised questions about the agency's compliance with federal record-keeping laws as well as the completeness of its responses to certain FOIA requests. See id. at 8-12.

Appropriately concerned about these disclosures, CEI filed three separate FOIA requests on May 8, 2012, seeking information related to Jackson's secondary e-mail account. See Compl., ¶¶ 25-31. Only one of those three requests is at issue in this case.[1] That request asked EPA to provide the following information:

[A]ll emails sent from or to (including as "cc:' [ sic ] or "bcc:") the secondary email account(s) assigned to Administrator Lisa Jackson during the period January 20, 2009 to the date EPA processes this Request, which include the words "climate", "endanger" (which includes in e.g., "endangerment"), "coal", or "MACT" in the body, "Subject", "To", "From", "cc:"[, ] or "bcc:" fields.

Compl., Exh. 1 (FOIA Request) at 1; Wachter Decl., ¶ 6. In response, EPA produced 11, 782 responsive documents, of which 5, 084 were produced in full, 4, 983 were produced in part and withheld in part, and 1, 715 were withheld in full. See ECF No. 17 (Order Permitting Sample Vaughn Index) at 1.

Ordinarily, EPA would have to justify each of its withholdings by providing CEI "with a Vaughn index [that]... describe[s] each withheld document, state[s] which [FOIA] exemption the agency claims for each withheld document, and explain[s] the exemption's relevance." Johnson v. Exec. Office for U.S. Att'ys , 310 F.3d 771, 774 (D.C. Cir. 2002); see also Vaughn v. Rosen , 484 F.2d 820 (D.C. Cir. 1973). Rather than force EPA to defend each of the thousands of withholdings at issue in this case, however, the Court ordered that the agency should sample "10% of the fully withheld documents and 1% of the partially withheld ones - i.e., 172 fully withheld documents and 50 partially withheld documents" - and then produce a Vaughn index focused on this smaller, representative collection of withholdings. See Order Permitting Sample Vaughn Index at 1-2; see also Bonner v. Dep't of State , 928 F.2d 1148, 1151 (D.C. Cir. 1991) (approving sampling of approximately 5% of withheld documents); Meeropol v. Meese , 790 F.2d 942, 948, 956-57 (D.C. Cir. 1986) (approving sampling of approximately 1% of withheld documents).

Before EPA sampled the withheld documents, the agency's Office of General Counsel reviewed the records and found that several hundred records had been "inadvertently categorized to be withheld in full." Wachter Decl., ¶ 14. The documents were therefore recategorized, and, as a result, 251 were changed from "withheld in full" to "produced in part and withheld in part, " and 48 were changed from "withheld in full" to "produced in full." See id. The agency mailed these 299 newly produced documents to CEI on August 7, 2013 - about two weeks before it filed the instant Motion. See id., ¶ 14; ECF No. 24 (Motion for Summary Judgment) (Aug. 21, 2013). EPA's final response to CEI's FOIA request therefore comprised 5, 132 documents produced in full, 5, 234 documents produced in part and withheld in part, and 1, 416 documents withheld in full. See Wachter Decl., ¶ 15. EPA has also created two sample Vaughn indices describing and explaining the applicable exemptions for 10% of the fully withheld documents and 1% of the partially withheld documents. See Mot., Exhs. 5 & 6 (Vaughn Indices).

The agency now moves for summary judgment. CEI has filed a brief in opposition, which requires a momentary digression. CEI's 44-page Opposition contains no fewer than 114 footnotes, many of which are quite lengthy and substantive. At best, this practice proves highly distracting to the reader. At worst, it appears an effort to circumvent the page limitations of the Local Rules. See LCvR 7(e). The Court trusts that it will not receive its like in the future.

II. Legal Standard

Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986) ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."). In the event of conflicting evidence on a material issue, the Court is to construe the evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons , 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly , 963 F.2d 453, 456 (D.C. Cir. 1992).

"FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. Border Patrol , 623 F.Supp.2d 83, 87 (D.D.C. 2009); Bigwood v. U.S. Agency for Int'l Dev. , 484 F.Supp.2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency bears the ultimate burden of proof. See U.S. Dep't of Justice v. Tax Analysts , 492 U.S. 136, 142 n.3 (1989). The Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they 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 by evidence of agency bad faith." Military Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA , 692 F.2d 770, 771 (D.C. Cir. 1981)).

III. Analysis

Congress enacted FOIA in order "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose , 425 U.S. 352, 361 (1976) (citation omitted). "The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." John Doe Agency v. John Doe Corp. , 493 U.S. 146, 152 (1989) (citation omitted). The statute provides that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules... shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(3); Dep't of Justice v. Reporters Comm. for Freedom of the Press , 489 U.S. 749, 755 (1989).

"Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, " the Freedom of Information Act "expressly places the burden on the agency to sustain its action' and directs the district courts to determine the matter de novo.'" Reporters Comm. , 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). "At all times courts must bear in mind that FOIA mandates a strong presumption in favor of disclosure'...." Nat'l Ass'n of Home Builders v. Norton , 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep't of State v. Ray , 502 U.S. 164, 173 (1991)).

The Court will first address the adequacy of EPA's search for responsive documents, turn next to the exemptions the agency invokes to justify withholding certain documents, and finish by assessing the segregability of those documents. In the end, the Court concludes that summary judgment for EPA is appropriate on almost every issue, although it will require the agency to produce a few last bits of information.

A. Adequacy of EPA's Search for Records

An agency "fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents.'" Valencia-Lucena v. Coast Guard , 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State , 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. Dep't of Justice , 23 F.3d 548, 551 (D.C. Cir. 1994). "[T]he 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." Weisberg v. DOJ , 745 F.2d 1476, 1485 (D.C. Cir. 1984).

The adequacy of an agency's search for documents requested under FOIA "is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case." Id . To meet its burden, the agency may submit affidavits or declarations that explain the scope and method of its search "in reasonable detail." Perry v. Block , 684 F.2d 121, 127 (D.C. Cir. 1982) (per curiam). The affidavits or declarations should "set [ ] forth the search terms and the type of search performed, and aver[ ] that all files likely to contain responsive materials (if such records exist) were searched." Oglesby v. Dep't of Army , 920 F.2d 57, 68 (D.C. Cir. 1990). Absent contrary evidence, such affidavits or declarations are sufficient to show that an agency complied with FOIA. See Perry , 684 F.2d at 127. "If, however, the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper." Truitt , 897 F.2d at 542.

Attached to its Motion, EPA has provided the Declaration of Eric E. Wachter, Director of the Office of the Executive Secretariat within EPA's Office of the Administrator. Wachter's Declaration explains the agency's prosecution of its search as follows: CEI's FOIA request was assigned for processing to EPA's Office of the Administrator; the Office's lead FOIA coordinator contacted the EPA Administrator's staff assistants in the Immediate Office of the Administrator; those staff assistants searched Administrator Jackson's secondary e-mail account using the search terms in CEI's request; and the search resulted in the identification of 11, 782 potentially responsive records. See Wachter Decl., ¶¶ 7, 10, 11.

CEI devotes several pages of its Opposition to what is essentially an ad hominem attack on EPA officials and Wachter. See Opp. at 4-12. The group hammers on three points, but it never specifically challenges the actual scope or method of EPA's search for records in this particular case. See Perry , 684 F.2d at 127.

First, CEI argues that EPA officials' use of secondary email accounts raises questions about the agency's compliance with FOIA and other federal record-keeping laws. While such use may well be concerning, this argument has no connection at all to the adequacy of the agency's search here.

Second, CEI invokes the recent FOIA case of Landmark Legal Foundation v. EPA, No. 12-1726, 2013 WL 4083285 (D.D.C. Aug. 14, 2013), where a court in this district denied EPA summary judgment on the adequacy of its search due to the possibility that the agency had "engaged in... bad faith interpretation" of the plaintiff's request. Id. at *6. In this case, however, CEI does not allege that the agency misinterpreted its rather straightforward request for records. The search recounted in the Wachter Declaration appears fully consistent with the group's request, and CEI does not suggest otherwise.

Finally, CEI attacks EPA's recategorization of 299 records from "withheld in full" to either "withheld in part" or "produced in full, " claiming that in the Landmark case, the court denied EPA summary judgment for having engaged in similar conduct. That argument, however, misunderstands the problem identified in Landmark. There, "[o]n the eve of filing a summary judgment motion, weeks after issuing its purportedly final' disclosures on the matter, EPA apparently determined that these disclosures were inadequate, and subsequently disclosed additional records... which had not previously been searched, and which roughly doubled the volume of total disclosures." Id. at *5 (emphasis added). Because EPA provided "no explanation" for this error, the court found it possible that the agency had deliberately misinterpreted the scope of the plaintiff's FOIA request, and so denied EPA summary judgment as to the adequacy of its search. See id. at *5-6. Here, by contrast, EPA merely recategorized records that had already been located in its initial search, rather than producing records newly uncovered. That recategorization had no connection to the adequacy of EPA's search in response to CEI's FOIA request. EPA has also provided an explanation for its miscue in this case, which was apparently caused by a combination of technological error and a belated review of the "withheld in full" records by agency counsel. See Reply, Att. 2 (Supplemental Declaration of Eric E. Wachter), ¶¶ 5-17.

Hazy allegations of administrative malfeasance may sound incriminating, but the Court requires concrete, specific challenges to the sufficiency of EPA's search in order to deny the agency summary judgment on this point. CEI has failed to provide them, and so the Court finds summary judgment proper on the adequacy of the search.

B. Validity of EPA's Sample Vaughn Indices

Another thrust of CEI's Opposition are its attacks on the validity of the sample Vaughn indices that EPA submitted along with its Motion for Summary Judgment.

1. Number of Sampled Documents

To begin, CEI argues that EPA's sampling of 142 fully withheld documents fails to comply with this Court's order that the agency "sample 10% of the fully withheld documents... i.e., 172 fully withheld documents." Order Permitting Sample Vaughn Index at 2 (emphasis added). Merely quoting that Order, however, is enough to undermine CEI's claim. The Court's instruction was for EPA to sample "10% of the fully withheld documents." The "172" figure simply served to illustrate the meaning of the preceding percentage. Because the total number of fully withheld documents fell following the agency's belated recategorization of 299 records, it was appropriate that the total number of sampled ...

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