United States District Court, D. Columbia.
COMPETITIVE ENTERPRISE INSTITUTE, Plaintiff: Hans Frank
Bader, LEAD ATTORNEY, COMPETITIVE ENTERPRISE INSTITUTE,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant:
Alice Shih LaCour, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE,
BERMAN JACKSON, United States District Judge.
the Competitive Enterprise Institute (" CEI" ),
filed this case against the United States Environmental
Protection Agency (" EPA" ) to challenge the
agency's schedule for producing records under the Freedom
of Information Act, 5 U.S.C. § 552 (" FOIA" ).
Since during the pendency of the action, the parties agreed
upon a mutually acceptable timetable for a rolling
production, and that production is complete, the lawsuit is
now moot, and there are no grounds that would support
retaining jurisdiction over the matter.
case arises out of plaintiff's 2012 request for "
emails sent to or from a false-identity email account created
for certain official correspondence for then-EPA
Administrator Lisa Jackson in the name of 'Richard
Windsor.'" Compl. [Dkt. # 1] ¶ 1. It called for
" copies of any and all email sent to or from an EPA
employee in the Office of the Administrator (OA) from or to
an email account in the name of, or email alias, 'Richard
Windsor,' from December 15, 2008 to the date you process
this request . . . ." Compl. ¶ 21. The request
called for " all" emails over several years, and it
was not limited to any particular subject matter. Compl.
¶ 21. In response to the request, EPA identified
approximately 120,000 responsive records, which it announced
it would produce at a rate of 100 records per month " to
fairly manage [its] limited resources so as to equitably
respond to other Americans who have submitted FOIA requests .
. . ." Compl. ¶ 28.
gravamen of plaintiff's complaint was that this extremely
slow pace of production was tantamount to a failure to
produce the records at all in violation of FOIA. The first
sentence of the first paragraph of the complaint announces:
" [t]his is an action under [FOIA] to compel production
under a FOIA request . . . ." Compl.¶ 1. The
pleading chides the agency for its " glacial and wholly
improper rate of production," Compl. ¶ 7, and it
alleges that " EPA's actions constitute improper
means of delaying or otherwise denying plaintiff access to
public records." Compl. ¶ 14. The claim for relief
summarizes CEI's position:
Plaintiff has sought and been denied production of responsive
records reflecting the conduct of official business.
Plaintiff has a statutory right to the information it seeks
and defendant has unlawfully withheld, and failed to provide,
Compl. ¶ 46.
to plaintiff, by insisting upon the 100 records per month
schedule, which would take 100 years, " EPA improperly
refuse[d] to provide a proper determination as provided by 5
U.S.C. § 552(a)," and it " improperly
refuse[d] to provide a proper production as provided by 5
U.S.C. § 552(a)." Compl. ¶ ¶ 47, 48.
Plaintiff CEI also alleged that EPA was " holding
several other CEI FOIA requests hostage until it completes
processing this request . . . ." Compl. ¶ 8; s
ee also Compl. ¶ 16 (" EPA continues to
refuse to process this request in line with its custom and
practice (in addition to refusing to act on CEI's other
requests) . . . ." ); Compl. ¶ 30 (referencing an
EPA email " informing plaintiff that it would process
other CEI requests, as well as a request submitted by [its
counsel] for a non-CEI entity, after it completed processing
[the November 12, 2012 request]." ).
on these allegations, plaintiff sought both a declaratory
judgment and an injunction. Count I asked the Court to enter
a judgment declaring that:
Plaintiff CEI is entitled to a reasonable volume of
production for its FOIA request . . . but EPA failed to do
Plaintiff CEI is entitled to a response and production under
FOIA free from consideration of or prejudice grounded in its
identity, but did not receive such treatment;
EPA's response to plaintiff's FOIA request . . . is
not in accordance with the law, and does not satisfy
EPA's obligations under FOIA;
EPA must process plaintiff's requests . . . with
productions at a reasonable rate; [and]
EPA must process CEI's requests without adversely
considering CEI's identity or discriminating against
Compl. ¶ 52.
II sought " injunctive relief compelling EPA to produce
responsive records at a reasonable rate, free from
consideration of or prejudice grounded in [CEI's]
identity, subject to legitimate withholdings." Compl.
¶ 54. Specifically, plaintiff asked the Court to order
1) To produce all of the requested documents within ten days
of the entry of the ...