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Competitive Enterprise Institute v. United States Environmental Protection Agency

United States District Court, District of Columbia

February 8, 2017



          ROSEMARY M. COLLYER United States District Judge

         On August 24, 2015, the Environmental Protection Agency filed a motion for summary judgment urging the Court to dismiss this Freedom of Information Act complaint filed by the Competitive Enterprise Institute for failure to exhaust administrative remedies. On March 4, 2016, the Court denied summary judgment and requested further briefing from the parties to determine the timeliness of the suit. After a thorough review of the parties' supplemental briefs, the Court will find that administrative remedies have been exhausted. The motion for summary judgment will nevertheless be granted for the reasons below.

         I. FACTS

         A. Background

         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. The Institute has previously filed at least seven requests under the Freedom of Information Act, 5 U.S.C. § 522 (FOIA), and four lawsuits seeking records from the Environmental Protection Agency (EPA) relating to the use of text-messaging by EPA Administrator Gina McCarthy. At issue here is the Institute's request on May 13, 2014:

“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.”

Id. ¶ 25. EPA assigned the request identification number HQ-FOI-2014-006434. Id. ¶ 26. Following four productions that occurred between June 30, 2014 and December 9, 2014, EPA produced a total of 1702 pages of responsive material, withheld 380 documents in full, and 384 in part under Exemptions 5 and 6 of FOIA, 5 U.S.C. §§ 522(b)(5) & (6). See Statement of Undisputed Material Facts [Dkt. 8-2] (Facts) ¶ 5-6. On December 9, 2014, along with the final set of responsive documents, EPA provided the Institute with a list of records withheld in full and a final response letter explaining that the Institute could “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” Facts at ¶ 7; Compl. at ¶ 29. EPA also produced a Vaughn index[1] listing the records withheld in full or part by category. See Vaughn Index [Dkt. 8-8]. The Institute challenges the EPA's reliance on Exemption 5 and the use of categories instead of individual record-by-record entries.

         On Thursday, January 8, 2015, the Institute filed an administrative appeal, sent by electronic mail to See Compl. at ¶ 30. According to EPA, the agency received the appeal on Monday, January 12, 2015 and on that same day, sent an email to the Institute acknowledging receipt. See Mot. for Summ. J. [Dkt. 8] (MSJ) at 5. On February 10, 2015, EPA notified the Institute that it required an extension of time to process the administrative appeal. On the following day, February 11, 2015, the Institute filed the current Complaint challenging EPA's handling of, and response to, its request.

         B. Agency's Search for Responsive Records

         Upon receipt of the Institute's May 13, 2014 request, Kevin M. Miller, Assistant General Counsel for Information and head of the Information Law Practice Group within the Office of General Counsel (OGC) of EPA, assigned an attorney on his staff to respond to it. See Miller Decl. [Dkt. 8-3] ¶ 1, 5. EPA searched “any emails to or from OGC staff that contained a reference to Gina McCarthy and text messaging during the time period July 1, 2012 to the date the request was processed (which was June 9, 2014).” Id. ¶ 7. On the staff attorney's recommendation, EPA specifically searched “the files of any OGC attorney who worked on matters relating to this subject area during the time frame.” Id. ¶ 8. Seven attorneys were identified and their files searched using the following terms: “(McCarthy AND text) OR (McCarthy AND SMS) OR (Gina AND text) OR (Gina AND SMS).” Id. ¶ 9. The term “text” located documents containing variations of the word, such as “texting” and “texts.”

         The staff attorney then reviewed the search results for responsive documents, excluding documents using the term “text” in a manner unrelated to text messaging. Documents withheld in part were redacted line by line. Id. ¶ 12, 15. Mr. Miller “reviewed all proposed redactions and either made changes [himself] to the documents, or provided changes to the attorney.” Id. ¶ 16. EPA did not locate any responsive text messages. Only three of the seven attorneys whose files were searched had agency-issued cellphones and none of them had responsive text messages. Id. ¶ 11.

         C. First Motion for Summary Judgment

         On August 24, 2015, EPA filed a Motion for Summary Judgment arguing, inter alia, that the Institute failed to exhaust its administrative remedies by filing the present Complaint before EPA had an opportunity to resolve the appeal. The Institute argued that EPA failed to respond to its appeal within the twenty-day statutory period and that, therefore, exhaustion was complete.

         On March 4, 2016, this Court issued an Opinion explaining that “[w]hat matters is the date that the Agency received the appeal” for purposes of determining exhaustion. Competitive Enter. Inst. v. EPA, 167 F.Supp.3d 74, 79 (D.D.C. 2016) (RMC). The Court requested “a more thorough explanation of the information technology involved” because EPA did “not explain the communication technology at work here, whereby a message emailed to a public address on a Thursday was somehow not delivered until the following Monday.” Id. at 75, 80. Because there were possible explanations for this time delay, such as “outside contractors, technical limitations, etc.” the Court denied EPA's motion for summary judgment pending further information. Id. . at 80.

         In response to the Court's Order, EPA filed a Supplemental Memorandum and Renewed Motion for Summary Judgment attaching the declaration of Larry F. Gottesman, Acting Chief of the FOIA and Privacy Branch of Environmental Information. See Supp. MSJ [Dkt. 15]; Gottesman Decl. [Dkt. 15-1] ¶ 1. Mr. Gottesman explains that the email address used,, is administered by EPA Headquarters Freedom of Information Staff (Staff) as required by EPA regulations, 40 C.F.R. § 2.104(j). See Gottesman Decl. ¶ 3. The Staff includes five individuals, three full-time employees and two who work four-day weeks. See id. The Staff “review incoming U.S. mail and monitor the group email box to process FOIA requests and appeals submitted to the EPA.” Id. The Staff uses FOIAonline, a web-based shared service, to manage all administrative appeals. The Staff's email address is not connected to FOIAonline. Once a Staff member receives an emailed appeal, he or she begins processing the appeal by manually entering relevant information into FOIAonline, including the date on which the Staff member received the emailed appeal. See id. ¶ 4. Once an appeal has been entered into FOIAonline, the system automatically assigns the case to the OGC for processing and “notifies the person to whom the appeal is assigned of the date on which the appeal was entered into the system and the date the appeal determination is due.” Id. ¶ 5.

         On Thursday, January 8, 2015, the Institute's appeal was emailed to the Staff email address at 8:37 p.m., after close of business, and after the scheduled work hours of the Staff member on duty to monitor the email inbox. See id. ¶ 7. Ordinarily, the Staff member on duty the following day would have entered the appeal, however, that person was on leave due to a serious medical condition. As a result, no Staff member monitored the inbox on Friday, January 9, 2015. The Staff member on duty on Monday entered the Institute's appeal into FOIAonline at 8:58 a.m. on that day, Monday, January 12, 2015. FOIAonline immediately notified the Institute that the appeal had been received, indicating the date of receipt as January 12, 2015 and the date on which the EPA's determination was due as February 10, 2015. See id. ¶ 9.

         Based on the above facts, EPA argues that it was only in “receipt” of the Institute's appeal on Monday, January 12, 2015, when the Staff member opened the email and entered the appeal into FOIAonline. See Supp. MSJ at 5. Thus, EPA argues that it timely responded to the appeal on February 10, 2015 when it asked for an extension of time. See Id. The Institute argues that the appropriate inquiry in determining the timeliness of EPA's response is when did the Agency, and not a particular employee, receive the appeal. See Supp. Opp'n [Dkt. 16] at 2. The appeal was received by the Agency on January 8, 2015 and, therefore, the Institute asserts that a response was due by February 6, 2015.


         A. Summary Judgment

         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). Summary judgment is properly granted against a party who, after adequate time for discovery, “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.” Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016) (quoting 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 nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252.

         B. ...

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