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Hall & Associates v. U.S. Environmental Protection Agency

United States District Court, District of Columbia

September 27, 2016



          TANYA S. CHUTKAN United States District Judge

         This is an ongoing Freedom of Information Act ("FOIA") case brought by Plaintiff Hall & Associates ("Hall") against the U.S. Environmental Protection Agency ("EPA"). Before the court are Hall's motion for reconsideration (ECF No. 47) and motion for an award of attorney fees (ECF No. 42). For the reasons stated herein, Hall's motion for reconsideration is DENIED and Hall's motion for attorney fees is also DENIED.

         I. BACKGROUND

         In late 2012, Hall submitted nine FOIA requests to the EPA on behalf of the Great Bay Municipal Coalition, a coalition of municipalities in New Hampshire that discharge into the Great Bay Estuary or its tributaries. Hall filed its first request on October 4, 2012 (Compl. Ex. 3), and eight additional requests on October 22, 2012 (Compl. Exs. 5-11). In each of these eight additional requests, Hall provided a statement contained in a May 4, 2012 letter to the EPA, and requested that the EPA "provide us with all records or factual analysis that show this statement is incorrect.”[1] On November 30, 2012, the EPA provided five responsive documents to Hall's October 4 request, and objected to the 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.” (Compl. Ex. 21). Hall filed an agency appeal on December 20, 2012, explaining that:

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.

(Compl. Ex. 22 at 3). The EPA issued its final determination on February 15, 2013, denying Hall's appeal because the requests were still “articulated in the form of an interrogatory-like question [and] . . . [s]uch a formulation is not a proper FOIA request.” (Compl. Ex. 26 at 2). In that determination, the EPA noted that if Hall “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 re-open these request(s).” (Id.).

         Rather than submit any additional clarification or modification at that time, Hall commenced this lawsuit in June 2013, and the parties filed cross-motions for summary judgment. On March 16, 2015, this court issued its ruling. See 83 F.Supp.3d 92 (D.D.C. 2015). Before the court were two main issues: (1) “whether EPA's search and production of documents was adequate for the October 4, 2012, FOIA request, ” and (2) whether “EPA was justified in refusing to respond to the seven similarly-styled October 22, 2012, FOIA requests.” Id. at 98. On the first issue, the court found that the EPA's search and production for Hall's October 4 request was adequate. Id. at 100. On the second, the court found that “Hall's October 22 Requests, as originally formulated, were not proper requests.” Id. at 101. However, in light of the EPA's own regulations requiring the agency to give requesters “an opportunity to discuss and modify [their] requests to meet the requirements” of the agency's regulations, the court ordered the EPA to “process the October 22 Requests as modified by Hall's December 20, 2012 letter (Compl. Ex. 22) and either disclose any responsive records or claim an exemption. If EPA believes the requests as amended are still not sufficiently clear, it must allow Hall to further clarify or modify the requests in accordance with 40 C.F.R. § 2.102(c).” Id. at 102-04. The court made no ruling as to the sufficiency of the December 20, 2012 language, only that if the December 20 modification was still unclear then Hall should be afforded the opportunity to clarify its request.

         On April 30, 2015, the EPA sent Hall a letter stating that pursuant to the court's Order, it re-examined the December 20, 2012 language and found that “the requests are still unclear. The language in your December 20, 2012 letter is a general rephrasing of the original seven FOIA requests that requires EPA to answer questions to potentially search for records and therefore does not reasonably describe the records sought.” (ECF No. 25-1). In response, on May 15, 2015, Hall requested a briefing schedule in this court, stating that “[w]hile EPA offered H&A the opportunity to further clarify the requests, H&A is not interested in doing so.” (ECF No. 25 at 2). EPA opposed Hall's motion on June 2, 2015, citing the fact that the court's opinion had expressly granted it permission to seek clarification, which it had done. (ECF No. 27 at 2).

         A status conference was held on June 3, 2015 to resolve the ongoing dispute. The court noted that it did not “make any ruling on the subsequent [December 20, 2012] modification” and asked Hall's counsel numerous times why Hall could not modify its request. (Tr. of June 3, 2015 Status Conf. (ECF No. 32) at 3). The court noted that Hall appeared to simply be “digging in your heels, ” and agreed with the EPA's counsel that the December 20 modification was not styled similarly to Hall's earlier clarification for FOIA requests to EPA Region I, to which Region I had responded. (Id. at 3, 5). After the status conference, Hall continued to refuse to offer any further modification of its initial request. (See Status Reports (ECF Nos. 29, 30)).

         On July 16, 2015, the court held another status conference, at which it took the unusual step of proposing modified language for the FOIA request, modeled on Hall's clarification of its Region I requests years earlier. The parties consented to this new language, and the court formalized the new request language by Minute Order that day. The new language read: “The specific documents that EPA may have already gathered during EPA Headquarters' investigation into the Coalition's allegations of science misconduct on specific issues identified in each of the individual FOIA requests.” In an August 13, 2015 joint status report, the parties agreed that the EPA would process this modified FOIA request. (ECF No. 33). The next day, the court issued a Minute Order requiring EPA to provide Hall with “any and all non-exempt records responsive to the language of the court's July 16, 2015 Order.”

         On September 30, 2015, the EPA provided Hall with approximately 40 responsive documents, a number of which contained redacted content. (Oct. 9, 2015 Status Report (ECF No. 35)). On October 5, 2015, the EPA produced a 24-page Vaughn Index that explained its justification for withholding responsive documents, or portions thereof. (Id.). Subsequently, Hall objected that the EPA “did not specify which of the seven issues each of the identified records were deemed responsive.” (Id. at 2). At a status conference on November 4, 2015, the court determined that the EPA was not required to identify which records corresponded to which requests. On December 7, 2015, over two months after Hall received the documents from the EPA, the parties filed a joint stipulation stating:

1) H&A has reviewed EPA's September 30, 2015 and October 5, 2015 response and exemption claims and stipulates that there is no objective basis to dispute the adequacy of EPA's search and/or FOIA exemptions asserted and, therefore, further litigation of EPA's response is unnecessary; and
(2) The Parties stipulate that the only unresolved issue in this matter is H&A's eligibility and entitlement to a fee award, if any, and the extent of such an award. Defendant, EPA, reserves its right to assert any ...

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