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Competitive Enterprise Institute v. United States Environmental Protection Agency

United States District Court, District of Columbia

March 4, 2016



ROSEMARY M. COLLYER United States District Judge

Even experts sometimes make mistakes. The Environmental Protection Agency urges the Court to dismiss the Freedom of Information Act complaint by the Competitive Enterprise Institute because it jumped the gun and sued before exhausting its administrative remedies. Although the Court disagrees with EPA’s reading of certain FOIA provisions, EPA has thus far been diligent in processing the Institute’s request. The motion for summary judgment must be denied without prejudice, however, pending a more thorough explanation of the information technology involved; that is the only way to resolve the parties’ competing arguments about the timeliness of this suit.


The Competitive Enterprise Institute (the Institute) “is a public policy research and education institute in Washington, D.C., dedicated to advancing responsible regulation and in particular economically sustainable environmental policy.” Compl. [Dkt 1] ¶ 11. It engages in research, investigative journalism and publication, and seeks “public records relating to environmental policy and how policymakers use public resources.” Id. The Institute has previously filed no fewer than seven requests under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA) and four lawsuits seeking records relating to the use of text messaging by EPA Administrator Gina McCarthy. See generally Mot. Summ. J. [Dkt 8-1] (Mot.) at 2-3.

On May 13, 2014, the Institute submitted a FOIA request to EPA that sought:

Copies of all email or text messages sent to or from anyone in EPA Headquarters Office of General Counsel that both 1) is either to or from Gina McCarthy or cites or refers to Gina McCarthy, and 2) cites, mentions, or refers to the words text messaging or text messages (which also includes reference to such terms as, e.g., “texts”, “texting”, “SMS”). That is, all OGC emails and/or texts that are from, to, cite or refer to Ms. McCarthy, and reference texting as described.

Compl. ¶ 25 (emphases in original). EPA assigned identification number HQ-FOI-2014-006434.

Inasmuch as the request targeted emails or texts involving persons within the Office of the General Counsel after four FOIA suits by the Institute involving Ms. McCarthy’s text messages, it comes as no surprise that EPA withheld some records, in whole or in part, under Exemption 5 of FOIA, 5 U.S.C. § 552(b)(5) (exempting records that are covered by the attorney-client privilege, attorney work-product privilege, and/or deliberative process privilege). After a rolling production of 1, 702 documents, EPA advised the Institute in a Final Response Letter dated December 9, 2014 that EPA was relying on Exemption 5 for most redactions or withholdings and on Exemption 6 for redacting personal information of EPA employees. Compl. ¶ 28. The Institute does not challenge the application of Exemption 6. Id.

The Final Response Letter advised: “You may appeal this response to the National Freedom of Information Officer, U.S. EPA, FOIA and Privacy Branch, 1200 Pennsylvania Avenue, N.W. (2822T), Washington, DC 20460 (U.S. Postal Service only), FAX: (202) 566-2147, E-mail” Id. ¶ 29. Along with the final set of responsive documents, EPA provided the Institute with a list of documents withheld in full, identifying each email’s sender, subject line, time, date, attachment count (if any) and file size. Of the 380 documents withheld in full, EPA relied on the attorney-client privilege for 376; attorney work product privilege for 368; and deliberative process privilege for 364. See Statement of Material Facts [Dkt. 8-2] (Facts) ¶ 8.[1]

EPA produced a Vaughn index[2] putting the records that were withheld in whole or in part into categories. See Facts ¶¶ 10-15. The Institute challenges the use of categories instead of individual record-by-record entries.

The Institute sent an administrative appeal dated Thursday, January 8, 2015 to According to EPA, its FOIA Online tracking software issued an acknowledgement email to the Institute’s counsel on Monday, January 12, 2015, informing him that the appeal had been received on that date. Facts ¶ 16. The Institute hotly disputes this fact, questioning the plausibility of the four-day delay, pointing out that the e-mail in question is not attached to Mr. Miller’s Declaration, and suggesting that perhaps the appeal simply was not logged until January 12. Statement of Genuine Issues of Material Fact in Dispute [Dkt. 9-1] (Disputes) at 17-19. In its reply, EPA attaches a complete (and more legible) copy of the Institute’s FOIA Online Appeal file. See Reply, Ex. 1 [Dkt. 10-1] (Appeal File). That document shows an appeal “received date” of Monday, January 12, 2015 and an “acknowledgement sent date” of January 14, 2015. Id. at 1. It also shows, under “Correspondence to Requestor, ” a message to Christopher C. Homer (counsel to the Institute) on January 12, 2015. That message also reflects a “date submitted” (in reference to the Institute’s appeal) of January 12, 2015. Id.

On February 10, 2015, EPA notified Institute counsel by email that EPA needed a brief extension of time to process the appeal because of unusual circumstances. The Institute does not challenge EPA’s need for an extension and therefore waives the point. See 5 U.S.C. 552(a)(6)(B)(iii) (defining “unusual circumstances”). Rather, the Institute argues that EPA was too late when it purported to grant itself a 10-day extension.. See 5 U.S.C. § 552(a)(6)(B)(ii) (requiring that an “unusual circumstances” extension be requested within the original deadline prescribed by § 552(a)(6)(A)(i)-in this case, 20 days). EPA argues that because its system logged the Institute’s appeal on January 12, 2015, its February 10 request was timely and it had until February 25, 2015 to respond to the appeal. Facts ¶ 17 (citing 5 U.S.C. § 552(a)(6)(B)(i)). If EPA is right, then the Institute’s lawsuit (filed on February 11, 2015) was premature. See Compl. [Dkt. 1].


FOIA cases are typically and appropriately decided on motions for summary judgment. Brayton v. U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011); Moore v. Bush, 601 F.Supp.2d 6, 12 (D.D.C. 2009). Federal Rule of Civil Procedure 56 provides that summary judgment must be granted when “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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who “after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the ...

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