United States District Court, District of Columbia
A. HOWELL Chief Judge
plaintiff, the Center for Biological Diversity
(“CBD”), initiated this action, pursuant to the
Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, and the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 701-706, against
the defendant, the U.S. Environmental Protection Agency
(“EPA”), seeking an order requiring both an
adequate search and disclosure of all responsive records
withheld in response to CBD's two FOIA requests.
Pl.'s Mem. Supp. Cross-Mot. Summ. J. & Opp'n
Def.'s Mot. Summ. J. (“Pl.'s Mem.”) at
13, ECF No. 18. CBD also asks the Court “to find EPA
in violation of the FOIA's requirement to provide
estimated dates of completion to requesters, ” and to
enjoin the agency from failing to do so in response to future
FOIA requests. Id. at 3.
particular, CBD alleges in nine claims that EPA: (1) failed
to provide an estimated completion date and comply with
FOIA's deadline mandates (Counts I and III); (2) engaged
in a pattern, practice, and policy of violating FOIA's
estimated completion date requirement and response and
determination deadlines (Counts II and IV); (3) failed to
conduct an adequate search (Count V); (4) unlawfully withheld
records responsive to CBD's requests (Count VI); (5)
failed to provide reasonably segregable portions of any
lawfully exempt records (Count VII); and (6) engaged in FOIA
violations constituting agency action unlawful under the
Administrative Procedure Act (“APA”) (Counts VIII
before the Court are the parties' cross motions for
summary judgment. Def.'s Mot. Summ. J. (“Def.'s
MSJ”), ECF No. 16; Pl.'s Cross-Mot. Summ. J.
(“Pl.'s XMSJ), ECF No. 17. Defendant's motion
is granted with respect to Counts I through IV and VIII
through IX; denied with respect to Count V; granted in part
and denied in part, without prejudice, with respect to Count
VI; and denied, without prejudice, with respect to Count VII.
Plaintiff's motion is granted with respect to Count V and
denied otherwise. For the following reasons, EPA must conduct
a supplemental search, disclose any non-exempt materials,
and, if it continues to withhold any materials, submit a
supplemental declaration and Vaughn Index that
sufficiently justifies these withholdings in accordance with,
and in the format prescribed in, this Memorandum Opinion.
FOIA requests in this case concern EPA's determination
that a new pesticide product, Enlist Duo, manufactured by Dow
AgriSciences (“Dow”), would have “no
effect” on species protected under the Endangered
Species Act of 1973 (“ESA”), 16 U.S.C.
§§ 1531-44 et seq. Enlist Duo is an
herbicide “developed for use on corn and soybean crops
that are genetically engineered (‘GE') to be
resistant to the active ingredients in Enlist Duo: glyphosate
(also known as ‘Round Up') and 2,
4-dichlorophenoxyacetic acid choline salt (‘2,
4-D').” Def.'s MSJ, Attach. 2, Declaration of
Earl G. Ingram, Jr., Chief, Public Information and Records
Integrity Branch, Information Technology and Resources
Management Division, Office of Pesticide Programs, EPA
(“EPA Decl.”) ¶ 4, ECF No. 16-2. “Both
2, 4-D and glyphosate are chemicals that have been registered
for use in the United States since the mid-1940s and 1974,
respectively, ” but not previously registered for use
“registers” pesticides under the Federal
Insecticide, Fungicide and Rodenticide Act
(“FIFRA”), 7 U.S.C. §§ 136 et
seq., if EPA determines a pesticide “will not
generally cause unreasonable adverse effects on the
environment, ” id. § 136a(c)(5)(D),
“taking into account the economic, social, and
environmental costs and benefits of the use of [a] pesticide,
” id. § 136(bb). Separate from this
cost-benefit analysis, under § 7(a)(2) of the ESA, 16
U.S.C. § 1536(a)(2), EPA is directed to
“insure” that any pesticide “is not likely
to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or
adverse modification of habitat of such species.” To
comply with this section of the ESA, the statute directs
agencies to “use the best scientific and commercial
data available.” Id. Section 7(a)(2) and its
implementing regulations, 50 C.F.R. §§ 402 et
seq., require EPA to consult, formally or informally,
with the U.S. Fish and Wildlife Service (“FWS”)
for effects on terrestrial species, and with the National
Marine Fisheries Service (“NMFS”) for effects on
marine species, if EPA determines a pesticide “may
affect” any endangered or threatened species or their
critical habitat. 50 C.F.R. § 402.14(a) (“Each
Federal agency shall review its actions at the earliest
possible time to determine whether [they] may affect listed
species or critical habitat”). If EPA determines that a
given pesticide will have “no effect” on any
endangered or threatened species or their critical habitat,
however, then no consultation is required. Nat'l
Parks Conservation Ass'n v. Jewell, 62 F.Supp.3d 7,
12 (D.D.C. 2014) (“[A]n agency avoids the consultation
requirement for a proposed discretionary action only if it
determines that its action will have ‘no effect' on
threatened or ‘endangered' species or critical
habitat”). “The ‘may affect' threshold
for triggering the consultation duty under 7(a)(2) is
The ESA Effects Determination and Addenda
January 2013, EPA conducted an “Environmental Risk
Assessment, ” which assessed the risks of Enlist Duo.
Pl.'s Cross-Mot Summ. J. (“Pl.'s XMSJ”),
Attach. 6, Memorandum from Meghan Radtke and Faruque Khan to
Michael Walsh, et al., (Jan. 15, 2013)
(“Environmental Risk Assessment”), Ex. B, ECF No.
17-6. This assessment recommends that Enlist Duo be labeled
as “toxic to birds, mammals, fish, and aquatic
invertebrates, ” id. at 4, but nevertheless
found “insufficient information” to determine
whether use of the pesticide would have “direct
effects” on any endangered or threatened species,
id. at 11. To address the toxicity risks of Enlist
Duo, the assessment determined that a 202 foot spray-drift
buffer-an area of unsprayed land surrounding sprayed
fields-would “reduce risk quotients for birds (acute),
mammals (acute and chronic), and terrestrial plants below
[EPA's] levels of concern.” Id. at 2.
six months later, in June 2013, EPA issued an Addendum to the
Environmental Risk Assessment for Enlist Duo, which
“re-evaluated the spray drift buffers.”
Id., Attach. 7, Memorandum from Meghan Radtke and
Faruque Khan to Michael Walsh, et al. (June 13,
2013) (“First Addendum”), Ex. C, at 1, ECF No.
17-7. In the First Addendum, EPA reduced the spray-drift
buffers needed from 202 feet to “from < 25 ft to 30
ft.” Id. at 2.
months later, in February 2014, EPA issued another Addendum
that “refined” its risk assessment of Enlist Duo
to endangered species, studying the effects on 53 endangered
or threatened species in six states for which EPA proposed
registering the use of the pesticide: Illinois, Indiana,
Iowa, Ohio, South Dakota, and Wisconsin. Id.,
Attach. 8, Addendum to 2, 4-D Choline Salt Section 3 Risk
Assessment: Refined Endangered Species Assessment for
Proposed New Uses on Herbicide-Tolerant Corn and Soybean
(Docket #: EPA-HQ-OPP-2014-0195-0009) (“Six State
Addendum”), Ex. D, at 2-3, ECF No. 17-8. This second
addendum, called the “Six State Addendum” by the
parties, again addressed the toxicity of Enlist Duo on plants
and animals, concluding that “[p]otential direct risk
concerns could not be excluded for mammals (acute and
chronic); birds, reptiles, and terrestrial-phase amphibians
(acute); and terrestrial plants, ” id. at 1-2,
but nonetheless that the herbicide would have “no
effect” on any endangered or threatened species in the
six states. Id. at 2, 3-5, 13, 17-40. Although EPA
recognized that 53 endangered or threatened species
“were identified as potentially at risk (direct or
indirect effects) in the six states, ” id. at
3, EPA concluded that 49 of the 53 species could be given a
“no effect” determination with use of a spray
drift buffer as those species were unlikely to occur on
treated fields. Id. Four species were recognized as
“reasonably expected to occur on treated corn and
soybean fields, ” but EPA concluded, based on
species-specific data, that Enlist Duo would have “no
effect” on these species. Id. at 3-13. As EPA
determined Enlist Duo would have “no effect” on
endangered or threatened species, no consultation with NMFS
or FWS, informally or formally, was required by regulation.
See Nat'l Parks Conservation Ass'n v.
Jewell, 62 F.Supp.3d at 12. Two months later, on April
30, 2014, EPA proposed to register Enlist Duo in the six
states. See Id., Attach. 9, Proposed Registration of
Enlist DUOTM Herbicide (Apr. 30, 2014), Ex. E, ECF
No. 17-9. On October 15, 2014, EPA issued its final
registration authorizing the use of Enlist Duo in the six
states. Id., Attach. 10, Final Registration of
Enlist DUOTM Herbicide (Oct. 15, 2014), Ex. F, ECF
September 26, 2014, EPA issued an additional “refined
endangered species assessment” of Enlist Duo for ten
states: Arkansas, Kansas, Louisiana, Minnesota, Mississippi,
Missouri, Nebraska, North Dakota, Oklahoma, and Tennessee.
Id., Attach. 11, Addendum to 2, 4-D Choline Salt
Section 3 Risk assessment: Refined Endangered Species
Assessment for Proposed New Uses on Herbicide-Tolerant Corn
and Soybean for AR, KS, LA, MN, MS, MO, NE, ND, OK, TN
(Docket #: EPA-HQ-OPP-2014-0195-2419) (“Ten State
Addendum”), Ex. G, ECF No. 17-11. This “Ten State
Addendum” assessed the effects of Enlist Duo on 168
endangered and threatened species, and concluded that the
herbicide would have “no effect” on all 168
species. Id. at 3. As EPA determined that the
herbicide would have “no effect, ” EPA did not
consult, formally or informally, with NMFS or FWS, and on
March 31, 2015, issued its decision registering Enlist Duo
for use in nine of these ten states. Id., Attach.
13, Decision to Amend Enlist DuoTM Herbicide Label
to Include Additional States: Arkansas, Kansas, Louisiana,
Minnesota, Missouri, Mississippi, Nebraska, Oklahoma, and
North Dakota (Mar. 31, 2015), Ex. I, ECF No. 17-13.
The FOIA Requests
submitted the first of its two FOIA requests at issue in this
matter to the EPA on June 26, 2014 (“First
Request”), about two months after EPA proposed to
register Enlist Duo in the six states, see Id.,
Attach. 14, Freedom of Information Act Request for Records
Related to the Environmental Protection Agency's
Evaluation of 2, 4-D Choline Salt Herbicide on Endangered
Species (“First FOIA Request”), Ex. J, at 1, ECF
No. 17-14, seeking information on what led EPA to conclude
that Enlist Duo would have “no effect” on
endangered or threatened species, “even as EPA
simultaneously determined that Enlist Duo may harm many
non-target animals, ” id., Attach. 2,
Declaration of Brett Hartl, CBD's former Endangered
Species Policy Director and current Government Affairs
Director (“CBD Decl.”) ¶ 3, ECF No. 17-2;
EPA Decl. ¶ 6.
CBD sought the following:
All documents and correspondence related to the Environmental
Protection Agency's “Addendum to 2, 4-D Choline
Salt Section 3 Risk Assessment: Refined Endangered Species
Assessment for Proposed New Uses on Herbicide-Tolerant Corn
and Soybean, ” (Docket #: EPA-HQ-OPP-2014-0195-0009)
for the new Enlist DuoTM product.
First FOIA Request at 1. “All documents” is
defined as including, but not limited to, “all
memoranda, maps, studies, reports, data, correspondence,
comments, conversation records, files, electronic mail
records, phone notes, or other documents.” Id.
submitted a second, similar FOIA request on October 20, 2014
(“Second Request”), shortly after EPA had issued
the registration for use of the pesticide in the six states
and had proposed registering the pesticide's use in an
additional ten states. The second FOIA request sought the
All records and correspondence related to the Environmental
Protection Agency's “Addendum to 2, 4-D Choline
Salt Section 3 Risk assessment: Refined Endangered Species
Assessment for Proposed New Uses on Herbicide-Tolerant Corn
and Soybean for AR, KS, LA, MN, MS, MO, NE, ND, OK,
Pl.'s XMSJ, Attach. 16, FOIA Request Letter from Brett
Hartl, Center for Biological Diversity, to EPA (Oct. 20,
2014), Ex. L at 1, ECF No. 17-16. Like the first request,
“all records” is defined as including, but not
limited to, “any and all memoranda, maps, studies,
reports, data, correspondence, comments, conversation
records, files, electronic mail records, phone notes, meeting
notes and all other documents.” Id.
Processing of the Requests and Production
FOIA office assigned the FOIA requests to the Office of
Program Management of the Office of Chemical Safety and
Pollution Prevention, which delegated the requests to the
Office of Pesticide Programs (“OPP”), since OPP
is responsible for regulating pesticides under FIFRA. EPA
Decl. ¶¶ 10-11, 14. OPP identified the
Environmental Fate and Effects Division (“EFED”)
within OPP as the division responsible for the FOIA request.
EPA Decl. ¶ 14.
sent CBD an email on December 4, 2014, stating that the First
Request was a duplicate of the Second Request and that EPA
would therefore close the First Request. Def.'s Statement
of Material Facts Not in Genuine Dispute (“Def.'s
SMF”) ¶ 5, ECF No. 16; EPA Decl. ¶ 12. After
further discussion with CBD, however, EPA agreed that both
requests would remain open, and EPA would search for records
responsive to both requests, which concerned different states
and different listed species. Def.'s SMF ¶ 5; EPA
Decl. ¶ 12. On December 17, 2014, the parties discussed
a timeline for estimated completion and search parameters,
which EPA understood to include records dated through
September 26, 2014, the date when the Ten State Addendum was
issued. EPA Decl. ¶ 13; see Ten State Addendum.
CBD denies agreeing to this cut-off date. CBD Decl.
conducted three searches for responsive documents. The first
search took place sometime before this litigation began, the
second search occurred on February 9, 2016, and the third
search took place a year later, if the date provided by EPA
is correct, on February 9, 2017. EPA Decl. ¶¶
14-15, 24; Def.'s Opp'n Pl.'s Cross-Mot. Summ. J.
& Reply Supp. Def.'s Mot. Summ. J. (“Def.'s
Reply”), Attach. 1, Supplemental Declaration of Earl G.
Ingram, Jr., Chief, Public Information and Records Integrity
Branch, Information Technology and Resources Management
Division, Office of Pesticide Programs, EPA (“EPA Supp.
Decl.”) ¶¶ 15-17, ECF No. 22-1. In the first
search, EPA's FOIA staff “emailed three
individuals” at EFED “to help coordinate the
search.” EPA Decl. ¶ 14. “As the requests
were related to specific documents authored by EFED, ”
EPA explains that this “division was identified as the
office likely to have documents responsive to the FOIA
requests and the members of that division were considered
subject matter experts (SMEs).” Id. EPA
“asked that employees of EFED and other OPP employees
likely to have documents each search” for
“potentially responsive documents” and
“deposit them to a shared network drive.”
Id. FOIA staff “also emailed other OPP
employees and coordinated the collection of potentially
responsive documents.” Id. In total, EPA
identified seven custodians whose records were
searched. According to EPA, “[a]ny paper
records that were provided were scanned and placed with the
collection.” Id. The SMEs in EFED then
searched for records using the terms “2, 4-D” and
“Enlist.” EPA Decl. ¶ 15. The SMEs also
“subsequently confirmed” with EPA's FOIA
staff that “no [instant messages (“IMs”)],
text messages, social media posts, Facebook or Twitter
messages, or any other kind of chats were used by OPP staff
to communicate on the drafting and review of documents
related to the Endangered Species Assessment.”
conducted the second search on February 9, 2016, after the
filing of this lawsuit. EPA Supp. Decl. ¶ 16. EPA
identified six additional custodians, including four Office
of General Counsel (“OGC”) attorneys, “who
had advised and consulted on the underlying draft documents,
” as well as “two additional potential custodians
from OPP's Registration Division.” EPA Supp. Decl.
¶ 15; see also EPA Decl. ¶
For both the original seven custodians and the additional six
custodians, EPA then conducted an electronic search of emails
“using the Agency's centralized eDiscovery search
service in the Office of Environmental Information (OEI),
” EPA Decl. ¶ 24; EPA Supp. Decl. ¶ 16, for
emails and attachments dated from February 15, 2013 to
October 20, 2014, EPA Decl. ¶ 24. The system was
searched using the following terms: (“risk
assessment” OR “assessment” OR
“RA”) AND (“Enlist” OR
“Choline” OR “2, 4-D”) AND
(“ESA” or “endangered species”). EPA
Decl. ¶ 24.
later, on “February 9, 2017, ” EPA apparently
conducted a third search, “instruct[ing]” the six
additional custodians-the four OGC attorneys and two OPP
Registration Division employees-“to conduct a
supplemental search of paper and non-electronic records to
locate any additional responsive records that would not have
been captured by the electronic search.” EPA Supp.
Decl. ¶ 17. According to EPA, “[n]o responsive
documents were located as a result of” this third
supplemental search. Id.
parties' declarations do not make clear how many
documents were actually released. EPA states thirty
“studies” were produced on March 12, 2015, and
that a total of 48 records, of an unspecified number of
pages, were released between March 12, 2015 and May 1, 2015.
EPA Decl. ¶¶ 18-21. EPA sent CBD a final response
to both FOIA requests on October 8, 2015, indicating that
approximately 150 emails and other documents were withheld
under FOIA Exemption 5, as containing information protected
by the deliberative process privilege and/or attorney-client
privilege. EPA Decl. at ¶ 21. According to CBD, these
150 documents totaled approximately 500 pages. CBD Decl.
¶ 30. Following the initiation of litigation, however,
EPA conducted its supplemental search and released an
unspecified number of additional documents. EPA Decl.
describes a different account of the disclosures, stating
that on November 19, 2014, EPA provided six records, which
consisted of five emails between Dow and EPA in April and May
of 2013, and an “email attachment without any context
as to whom it was sent or received by.” CBD Decl.
¶ 22. Based on CBD's declarations, EPA continued to
release documents over the course of the next few months,
including at least 138 documents of unspecified length. CBD
Decl. ¶¶ 22-28 (describing disclosures made from
November 19, 2014 to May 1, 2015). Then, on October 8, 2015,
EPA sent final determination letters. EPA Decl. ¶ 21.
November 6, 2015, CBD appealed EPA's closure of the
requests and withholdings. EPA Decl. ¶ 22; Pl.'s
Compl. ¶ 11. EPA did not acknowledge CBD's appeals
until CBD sent a letter “notifying the EPA of the
violation and offering to assist, ” but as of the
filing of this suit, EPA had not responded to CBD's
appeals, and as such, CBD claims the Agency is in violation
of the twenty-day response time required by the FOIA.
Pl.'s Compl. ¶ 11; Pl.'s Mem. at 12.
EPA maintains, however, that the agency sent an
acknowledgement letter to CBD on November 10, 2015, EPA Decl.
¶ 22, but concedes that the agency had “not
responded to [CBD's] appeals as of the filing date of the
Complaint.” Def.'s Answer ¶ 11.
EPA's Vaughn Indices
the release of documents, EPA produced two indices, pursuant
to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973),
on November 23, 2016, and February 23, 2017, describing the
documents withheld, either in full or in part. EPA Decl., Ex.
A, at 15-53 (“Vaughn Index”), ECF No.
16-1; EPA Supp. Decl., Ex. 1 (“Supp. Vaughn
Index”), ECF No. 22-1. As summarized by EPA, the indices
include three categories of documents: “(1) draft
versions of Six State and Ten State Addenda and related draft
documents; (2) emails transmitting these drafts and including
comments, opinions, and proposals for revisions by EPA
employees and managers; and (3) presentations and talking
points in preparation for meetings with Dow Chemical, the
manufacturer of Enlist Duo, and for internal meetings with
EPA management.” EPA Supp. Decl. ¶ 7. In its
initial declaration, EPA claimed that “approximately 95
documents were withheld in full or in part under the
deliberative process privilege.” EPA Decl. ¶ 29.
Upon further review, however, EPA claims that “a number
of duplicates of documents that had been withheld in full
were not accounted for” in the initial Vaughn
Index, “which resulted in an undercounting.” EPA
Supp. Decl. ¶ 7. “When those duplicates are
included, ” EPA explains that it “withheld 108
documents in full and 35 documents in part under FOIA's
Exemption 5's deliberative process privilege.”
Id. Five of those documents are also being
withheld under the attorney-client privilege. See
Supp. Vaughn Index, at 4, 6, 8-9 (entries labeled as
follows: “PRD 517, ” “Attachment to PRD 630
and 631, ” “Attachment to PRD 632, ”
“Attachment to PRD 633, ” and “WHF
#3”). EPA also withheld the personal phone number on
one document under Exemption 6, the personal privacy
exemption to FOIA. See Vaughn Index at 22 (entry
labeled “PRD 706”); see 5 U.S.C. §
552(b)(6) (exempting from FOIA “personnel and medical
files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal
Rule of Civil Procedure 56 provides that summary judgment
shall be granted “if 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). The moving party bears the burden of demonstrating the
“absence of a genuine issue of material fact” in
dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986), while the nonmoving party must present specific facts
supported by materials in the record that would be admissible
at trial and that could enable a reasonable jury to find in
its favor, see Anderson v. Liberty Lobby, Inc.
(“Liberty Lobby”), 477 U.S. 242, 248 (1986);
Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015)
(noting that, on summary judgment, appropriate inquiry is
“whether, on the evidence so viewed, ‘a
reasonable jury could return a verdict for the nonmoving
party'” (quoting Liberty Lobby, 477 U.S.
at 248)). “[T]hese general standards under [R]ule 56
apply with equal force in the FOIA context, ” Wash.
Post Co. v. U.S. Dep't of Health & Human Servs.,
865 F.2d 320, 325 (D.C. Cir. 1989). Indeed, the D.C. Circuit
has observed that “the vast majority of FOIA cases can
be resolved on summary judgment.” Brayton v. Office
of U.S. Trade Representative, 641 F.3d 521, 527 (D.C.
FOIA was enacted “to promote the ‘broad
disclosure of Government records' by generally requiring
federal agencies to make their records available to the
public on request.” DiBacco v. U.S. Army, 795
F.3d 178, 183 (D.C. Cir. 2015) (citing U.S. Dep't of
Justice v. Julian, 486 U.S. 1, 8 (1988)). Reflecting the
necessary balance between the public's interest in
governmental transparency and “legitimate governmental
and private interests that could be harmed by release of
certain types of information, ” United Techs. Corp.
v. U.S. Dep't of Def., 601 F.3d 557, 559 (D.C. Cir.
2010) (alteration adopted) (quoting Critical Mass. Energy
Project v. Nuclear Regulatory Comm'n, 975 F.2d 871,
872 (D.C.Cir.1992)), the FOIA contains nine exemptions set
forth in 5 U.S.C. § 552(b), which “are
‘explicitly made exclusive, ' . . . and must be
‘narrowly construed, '” Milner v. U.S.
Dep't of Navy, 562 U.S. 562, 565 (2011) (quoting
EPA v. Mink, 410 U.S. 73, 79 (1973) and FBI v.
Abramson, 456 U.S. 615, 630 (1982)); see also Murphy
v. Exec. Office for U.S. Attorneys, 789 F.3d 204, 206
(D.C. Cir. 2015); Citizens for Responsibility &
Ethics in Wash. v. U.S. Dep't of Justice
(“CREW II”), 746 F.3d 1082, 1088 (D.C.
Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. &
Budget, 598 F.3d 865, 869 (D.C. Cir. 2010).
“[T]hese limited exemptions do not obscure the basic
policy that disclosure, not secrecy, is the dominant
objective of the Act.” Dep't of Interior v.
Klamath Water Users Protective Ass'n, 532 U.S. 1,
7-8 (D.C. Cir. 2001) (quoting Dep't of Air Force v.
Rose, 425 U.S. 352, 361 (1976)).
litigation challenging the sufficiency of “the release
of information under the FOIA, ‘the agency has the
burden of showing that requested information comes within a
FOIA exemption.'” Pub. Citizen Health Research
Grp. v. FDA, 185 F.3d 898, 904 (D.C. Cir. 1999) (quoting
Niagra Mohawk Power Corp. v. U.S. Dep't of
Energy, 169 F.3d 16, 18 (D.C. Cir. 1999)); see also
Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill,
443 U.S. 340, 352 (1979) (agency invoking exemption bears the
burden “to establish that the requested information is
exempt”); U.S. Dep't of Justice v. Reporters
Comm. for Freedom of Press, 489 U.S. 749, 755 (1989);
DiBacco, 795 F.3d at 195; CREW II, 746 F.3d
at 1088; Elec. Frontier Found. v. U.S. Dep't of
Justice (“EFF”), 739 F.3d 1, 7 (D.C. Cir.
2014); Assassination Archives & Research Ctr. v.
CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). This burden does
not shift even when the requester files a cross-motion for
summary judgment because “the Government
‘ultimately [has] the onus of proving that the
[documents] are exempt from disclosure, ” while the
“burden upon the requester is merely ‘to