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Center for Biological Diversity, Inc. v. U.S. Environmental Protection Agency

United States District Court, District of Columbia

September 28, 2017



          BERYL A. HOWELL Chief Judge

         The 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.[1] 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.

         In 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 and IX).

         Pending 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.

         I. BACKGROUND

         The 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 together. Id.

         EPA “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 low.” Id..

         A. The ESA Effects Determination and Addenda

          In 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.

         About 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.

         Eight 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 No. 17-10.

         On 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.

         B. The FOIA Requests

         CBD 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.

         Specifically, 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.

         CBD 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 following:

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, TN.”

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.

         C. Processing of the Requests and Production

         EPA's 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.

         EPA 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. ¶¶ 16-19.

         EPA 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.[2] 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.” Id.

         EPA 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. ¶ 23.[3] 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.[4] 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.

         A year 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.

         The 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. ¶¶ 24-26.

         CBD 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.

         On 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.

         D. EPA's Vaughn Indices

         Accompanying 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.[5] 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.[6] 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 privacy).


         Federal 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. Cir. 2011).

         The 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)).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In litigation challenging the sufficiency of &ldquo;the release of information under the FOIA, &lsquo;the agency has the burden of showing that requested information comes within a FOIA exemption.&#39;&rdquo; 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&#39;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 &ldquo;to establish that the requested information is exempt&rdquo;); U.S. Dep&#39;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&#39;t of Justice (&ldquo;EFF&rdquo;), 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 ...

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