United States District Court, D. Columbia.
For HALL AND ASSOCIATES, Plaintiff: Philip D. Rosenman, HALL & ASSOCIATES, Washington, DC.
For UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant: Alexander Daniel Shoaibi, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
TANYA S. CHUTKAN, United States District Judge.
This is a Freedom of Information Act case brought by Plaintiff Hall & Associates (" Hall" ) against the U.S. Environmental Protection Agency (" EPA" ). Hall represents parties who oppose an EPA decision limiting nitrogen discharge into the Great Bay Estuary. Hall submitted numerous FOIA requests related to this decision, and challenges EPA's response to those requests. The parties have filed cross-motions for summary judgment. Based on the motions, the oppositions and the replies thereto, the entire record, and for the following reasons, EPA's motion is granted in part and denied in part, and Hall's motion is granted in part and denied in part.
Hall submitted FOIA requests on behalf of the Great Bay Municipal Coalition (" Coalition" ). The Coalition's members are municipalities in New Hampshire that discharge into the Great Bay Estuary or its tributaries. The Coalition's underlying concern is EPA's decision to promulgate more stringent total nitrogen requirements for the Great Bay Estuary. That decision was made by EPA's Region I office (" Region I" ), which administers the National Pollutant Discharge Elimination System for New Hampshire. The Coalition believes that the decision to impose more stringent regulations is based on faulty science conducted by Region I. On May 4, 2012, Hall (on behalf of the Coalition) submitted a letter to the EPA Administrator alleging that Region I had engaged in science misconduct (the " May 4 Letter" ). (Pl. Mot. Ex. 1). On September 27, 2012, the EPA responded, denying the allegations. (Compl. Ex. 2).
After receiving EPA's denial, Hall submitted nine FOIA requests to the EPA. Hall submitted its first FOIA request on October 4, 2012, seeking records relied upon by the EPA's Office of Water and the Interim Science Integrity Official to support EPA's assertion that Region I had not engaged in science misconduct (the " October 4 Request" ). (Compl. Ex. 3). Hall then submitted seven additional FOIA requests on October 22, 2012; in each of these requests, Hall quoted a portion of the May 4 Letter and asked EPA to " [p]lease provide us with all records or factual analyses that show this statement is incorrect" (the " October 22 Requests" ). (Compl. Exs. 5-11) (emphasis in original). In another letter dated October 22, 2012, Hall submitted a ninth and final FOIA request to EPA (the " Ninth Request" ). (Compl. Ex. 19).
At the same time Hall was submitting FOIA requests to EPA, it was also submitting requests directly to Region I. EPA originally considered consolidating the requests, but Hall argued that " [t]he HQ foias were distinct from the regional requests. The documents are necessarily separate and not a combined response." (Nagle Decl. Ex. C). EPA responded that it " underst[ood] the distinction you're drawing between the HQ and Region 1 FOIAs. Our focus will be on the requests specifically directed to HQ. Nevertheless, since the two sets of FOIA requests both seek information about aspects of the same issue, we are coordinating with Region 1 to ensure that the Agency is applying a consistent approach to release of responsive documents." ( Id.).
By letter dated November 30, 2012, EPA responded to all nine FOIA requests. (Compl. Ex. 21). EPA provided five responsive documents to the October 4 Request, and objected to the eight other requests because " they do not reasonably describe the records being sought, as required by 40 CFR 2.102(c), and improperly request that the Agency conduct analysis and research and formulate opinions. We note that similar requests were made of EPA Region 1 and were similarly objected to." ( Id at 1). EPA did not ask for clarification of the requests, and advised Hall of its right to appeal.
On December 20, 2012, Hall appealed EPA's decision that its eight requests did not reasonably describe the records sought. (Compl. Ex. 22). Hall explained: " The Coalition was not asking for the Agency to develop any further analysis or opinions. Rather, the Coalition sought all pre-existing records which contained analysis or opinions in conflict with the allegations at issue. In order for the Agency to claim that the Region had not engaged in science misconduct, EPA would have had to have conducted some type of analysis to determine whether the allegations made by the Coalition were true. It was those records that the Coalition was seeking." ( Id at 3).
In an interim response to Hall's appeal, EPA notified Hall that it would consolidate Hall's EPA and Region I appeals into a single appeal. (Compl. Ex. 24). Hall objected to the consolidation because " [d]ue to the significantly different nature of each of the Headquarters and Region 1 FOIA appeals, it would be improper for EPA to consolidate the appeals." (Compl. Ex. 25 at 2). Once again, EPA complied with Hall's request and processed the appeals separately.
By letter dated February 15, 2013, EPA issued its final determination regarding the nine requests. EPA denied Plaintiffs appeal of its determination regarding the October 22 Requests because they were " articulated in the form of an interrogatory-like question . . . Such a formulation is not a proper FOIA request." (Compl. Ex. 26 at 2). EPA advised Hall that " [i]f you would like to clarify or modify those seven requests in a non-question form by providing specific information, such as a subject matter as to the records you are seeking, please re-submit this information to the EPA's FOIA office, who will either open new request(s) for you or reopen these request(s). See 40 C.F.R. 2.102(c)." ( Id ). Hall then filed the instant suit.
II. LEGAL STANDARD
a. Motion for Summary Judgment
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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895, 369 U.S.App.D.C. 122 (D.C. Cir. 2006). Summary judgment may be rendered on a " claim or defense . . . or [a] part of each claim or defense." Fed.R.Civ.P. 56(a). " A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record." Fed.R.Civ.P. 56(c)(1)(A). " A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb, 433 F.3d at 895 (quoting Liberty Lobby , 477 U.S. at 248). An issue is " genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See id. The party seeking summary judgment " bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified." Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297, 260 U.S.App.D.C. 334 (D.C. Cir. 1987).
In considering a motion for summary judgment, " the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Liberty Lobby, 477 U.S. at 255; see also Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850, 371 U.S.App.D.C. 68 (D.C. Cir. 2006). The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials, and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmovant is ...