United States District Court, District of Columbia
ROSEMARY M. COLLYER United States District Judge
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
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 firstname.lastname@example.org.” Facts at ¶ 7;
Compl. at ¶ 29. EPA also produced a Vaughn
index 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
Thursday, January 8, 2015, the Institute filed an
administrative appeal, sent by electronic mail to
email@example.com. 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
Agency's Search for Responsive Records
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
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.
First Motion for Summary Judgment
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.
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.
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,
firstname.lastname@example.org, 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.
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.
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.
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.