MEMORANDUM OPINION
BERYL
A. HOWELL, Chief Judge
On
March 9, 2017, Scott Pruitt, the Administrator of the
Environmental Protection Agency (“EPA”), appeared
on the CNBC program “Squawk Box” and stated,
regarding carbon dioxide created by human activity, that
“I would not agree that it's a primary contributor
to the global warming that we see, ” and
“there's a tremendous disagreement about of [sic]
the impact” of “human activity on the
climate.” Compl., ¶ 18-19, ECF No. 1. Noting that
these public statements by the EPA Administrator “stand
in contrast to published research and conclusions of the EPA,
” id. ¶ 20, the plaintiff, Public
Employees for Environmental Responsibility
(“PEER”), a “non-profit organization
dedicated to research and public education concerning the
activities and operation of [the] federal . . . government[],
” id. ¶ 2, submitted a request to EPA,
pursuant to the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, for agency records
“relied upon by Administrator Pruitt in making these
statements and any EPA documents that support the conclusions
that human activity is not the largest factor driving global
climate change, ” Compl. ¶ 21. EPA has performed
no search for and produced no records in response to the
plaintiff's FOIA request. See generally,
Def.'s Mot. Summ. J. (“Def.'s MSJ”), Ex.
C, Decl. of Brian Hope, Deputy Director, Office of Executive
Secretariat, Office of the EPA Administrator (Nov. 8, 2017)
(“EPA Decl.”), ECF No. 13-5. Nonetheless, on this
record, EPA now seeks summary judgment, Def.'s MSJ, ECF
No. 13, and the plaintiff has cross-moved for summary
judgment, Pl.'s Cross-Mot. Summ. J. & Opp'n
Def.'s MSJ (“Pl.'s Cross-Mot.”), ECF No.
14. For the reasons set forth below, the plaintiff's
cross-motion is granted, and EPA's motion is denied.
I.
BACKGROUND
The day
after Administrator Pruitt made on-air public statements to
the effect that “carbon dioxide created by human
activity is not the primary driver of global climate change,
” Pl.'s Mem. Supp. Pl.'s Cross-Mot. &
Opp'n Def.'s MSJ (“Pl.'s Opp'n”)
at 1, ECF No. 14-3, the plaintiff filed the FOIA request at
issue, Compl. ¶ 21; EPA Decl. ¶ 3. As the plaintiff
points out, in contrast to Administrator Pruitt's
statements on March 9, 2017, EPA states, on its “Causes
of Climate Change” web page, that
“‘[c]arbon dioxide is the primary greenhouse gas
that is contributing to recent climate change' and that
‘[t]he primary human activity affecting the amount and
rate of climate change is greenhouse gas emissions from the
burning of fossil fuels.'” Compl. ¶ 20
(alterations in original).
The
plaintiff's FOIA request sought “(1) [t]he
documents that Administrator Pruitt relied upon in making
these statements; and (2) [a]ny EPA documents that support
the conclusion that human activity is not the largest factor
driving global climate change.” Def.'s MSJ, Attach.
2, Def.'s Statement of Material Facts Not In Genuine
Dispute (“Def.'s SMF”) ¶ 2, ECF No.
13-2. About one month after submission of the request, the
plaintiff filed the instant complaint, which EPA answered in
late July 2017. Def.'s Answer, ECF No. 10. When the
parties failed timely to file a Joint Meet and Confer
statement, as required by the Court's Standing Order,
¶ 3.a, ECF No. 4, the plaintiff was directed to show
cause why the action should not be dismissed for failure to
prosecute, with a deadline of September 12, 2017, to remedy
the failure to file the requisite Joint Meet and Confer
statement. Minute Order (Aug. 30, 2017). That same day, the
parties conferred about narrowing the request, and the
plaintiff modified the request in a manner “intended to
meet EPA's objections.” Jt. Meet & Confer Rpt.
(Sept. 8, 2017), ¶ 3, ECF No. 11. Specifically, the
plaintiff “agreed to modify the request” as
indicated by the following italicized language: “(1)
[t]he agency records that Administrator Pruitt
relied upon to support his statements in his CNBC interview,
” and “(2) [a]ny EPA documents, studies,
reports, or guidance material that support the
conclusion that human activity is not the largest factor
driving global climate change.” Def.'s SMF ¶
6; see Def.'s MSJ, Ex. B, Email from PEER's
Adam Carlesco to Assistant U.S. Attorney Daniel Schaefer
(Aug. 30, 2017), ECF No. 13-4 at 1.
A month
later, EPA advised the Court that, in response to the first
part of the FOIA request regarding agency records relied upon
by Administrator Pruitt for his public statement on March 9,
2017, “the EPA is prepared to search for any briefing
materials that were prepared by Administrator Pruitt or
certain members of his staff, in the days leading up to the
interview, ” and, to this end, was “preparing a
proposal with specific search parameters to assist PEER in
clarifying its request.” Second Jt. Meet and Confer
Report (Oct. 10, 2017) (“2d Jt. Rpt.”) at 1, ECF
No. 12. EPA noted that “[i]f the parties can negotiate
acceptable search parameters, EPA intends to process the
first portion of the request in accordance with those
parameters.” Id. at 2. At the same time, EPA
dismissed the second part of the FOIA request, regarding
agency records supporting the conclusion publicly stated by
Administrator Pruitt on March 9, 2017, as “not a proper
request under FOIA, ” id., a characterization
disputed by the plaintiff, id. at 3. The plaintiff
declined to make additional changes to either part of the
FOIA request and sought a briefing schedule to resolve the
parties' “impasse.” Id.; see
also Pl.'s Opp'n at 5 (noting that plaintiff
“had already sufficiently clarified the request and
that EPA was unreasonably stalling its response”). In
contrast, EPA sought “to defer setting a summary
judgment schedule until after EPA finishes processing any
responsive records as to part one of the request, so that any
and all remaining disputed issues can be dealt with
together.” 2d Jt. Rpt. at 2.
Although
more than one year has elapsed since the plaintiff submitted
the FOIA request, EPA has conducted no search for any
responsive records, nor produced any records to the
plaintiff. See Def.'s Reply Supp. Def.'s MSJ
& Opp'n Pl.'s Cross-Mot. (“Def.'s
Reply”), Attach. 1, Def.'s Resp. Pl.'s
Statement of Material Facts Not In Genuine Dispute ¶ 6,
ECF No. 19-1 (“EPA does not dispute that it had not
conducted a search for responsive documents.”);
id. ¶ 8 (“It is undisputed that EPA did
not conduct the proposed search for the briefing
materials.”).
II.
LEGAL STANDARD
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). “In FOIA cases, ‘summary judgment may be
granted on the basis of agency affidavits if they contain
reasonable specificity of detail rather than merely
conclusory statements, and if they are not called into
question by contradictory evidence in the record or by
evidence of agency bad faith.'” Judicial Watch,
Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir.
2013) (quoting Consumer Fed'n of Am. v. U.S.
Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006))
(alteration adopted). The D.C. Circuit has observed that
“the vast majority of FOIA cases can be resolved on
summary judgment.” Brayton v. Office of the U.S.
Trade Representative, 641 F.3d 521, 527 (D.C. Cir.
2011).
FOIA
provides “a means for citizens to know ‘what
their Government is up to, '” Nat'l
Archives & Records Admin. v. Favish, 541 U.S. 157,
171 (2004) (quoting U.S. Dep't of Justice v.
Reporters Comm. for Freedom of Press, 489 U.S. 749, 773
(1989)), and 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) (quoting U.S. Dep't of
Justice v. Julian, 486 U.S. 1, 8 (1988)); see also
Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)
(noting “the basic policy that disclosure, not secrecy,
is the dominant objective of the Act”). To this end,
the FOIA commands that federal agencies make “promptly
available to any person” records that are not otherwise
exempt in response to “any request for records which
(i) reasonably describes such records and (ii) is
made in accordance with published rules stating the time,
place, fees (if any), and procedures to be followed . . .
.” 5 U.S.C. § 552(a)(3)(A) (emphasis supplied).
The
D.C. Circuit has long cautioned that federal agencies may not
use the “reasonably describes” requirement to
deny the public access to responsive records, explaining
that, “[b]efore 1967, the Administrative Procedure Act
contained a Public Information section ‘full of
loopholes which allowed agencies to deny legitimate
information to the public.'” Bristol-Myers Co.
v. FTC, 424 F.2d 935, 938 (D.C. Cir. 1970) (quoting S.
Rep. No. 813, 89th Cong., 1st Sess. 3 (1965)) (alteration
adopted). The FOIA was enacted “to close those
loopholes, ” and “to avoid creating new
ones.” Id.; see also Milner v. Dep't
of the Navy, 562 U.S. 562, 565 (2011) (observing that
FOIA was enacted “to permit access to official
information long shielded unnecessarily from public
view” due to “the public-disclosure section of
the Administrative Procedure Act” being “plagued
with vague phrases and gradually bec[oming] more a
withholding statute than a disclosure statute”);
Yagman v. Pompeo, 868 F.3d 1075, 1081 (9th Cir.
2017) (noting that “courts have been wary to prohibit
this requirement from becoming a loophole through which
federal agencies can deny the public access to legitimate
information” (quoting Marks v. U.S. Dep't of
Justice, 578 F.2d 261, 263 (9th Cir. 1978))). Thus, the
statutory requirement that a record request “reasonably
describes such records, ” 5 U.S.C. § 552(a)(3)(A),
like its predecessor “requirement that a request for
disclosure specify ‘identifiable records[, ]' calls
for ‘a reasonable description enabling the Government
employee to locate the requested records, ' but it is
‘not to be used as a method of withholding records,
'” Bristol-Myers Co., 424 F.2d at 938
(quoting S. Rep. No. 813 at 8); see also H.R. Rep.
No. 93-876 93d Cong., 2d Sess., at 6 (1974), as reprinted
in 1974 U.S.C.C.A.N. 6267, 6271 (noting that a
description would “be sufficient if it enabled a
professional employee of the agency who was familiar with the
subject area of the request to locate the record with a
reasonable amount of effort”).
The
“FOIA's prodisclosure purpose, ”
Nat'l Archives & Records Admin., 541 U.S. at
174, and legislative history reflect an intent to avoid
creating loopholes for denial of access and reinforces the
duty of federal agencies “to construe a FOIA request
liberally, ” People for the Ethical Treatment of
Animals v. Nat'l Insts. of Health, Dep't of Health
& Human Servs., 745 F.3d 535, 540 (D.C. Cir. 2014)
(quoting Nation Magazine, Washington Bureau v. U.S.
Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)).
“A request reasonably describes records if ‘the
agency is able to determine precisely what records are being
requested.'” Tax Analysts v. IRS, 117 F.3d
607, 610 (D.C. Cir. 1997) (quoting Kowalczyk v. U.S.
Dep't of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996)
(quoting Yeager v. Drug Enforcement Admin., 678 F.2d
315, 326 (D.C. Cir. 1982))). Consequently, once an
“agency becomes reasonably clear as to the materials
desired, FOIA's text and legislative history make plain
the agency's obligation to bring them forth, ”
Truitt v. U.S. Dep't of State, 897 F.2d 540, 544
(D.C. Cir. 1990), and “disclose all reasonably
segregable, nonexempt portions of the requested record(s),
” Assassination Archives & Research Ctr. v.
CIA, 334 F.3d 55, 58 (D.C. Cir. 2003).
Likewise,
“if an agency has reason to know that certain places
may contain responsive documents, it is obligated under FOIA
to search barring an undue burden.” Valencia-Lucena
v. U.S. Coast Guard, 180 F.3d 321, 327 (D.C. Cir. 1999);
see also Reporters Comm. for Freedom of Press v. Fed.
Bureau of Investigation, 877 F.3d 399, 407 (D.C. Cir.
2017) (same). The law is well settled that “[a]n agency
need not honor a request that requires ‘an unreasonably
burdensome search.'” Am. Fed'n of Gov't
Emps., Local 2782 v. U.S. Dep't of Commerce, 907
F.2d 203, 209 (D.C. Cir. 1990) (quoting Goland, 607
F.2d at 353); see also Judicial Watch, Inc. v. U.S.
Dep't of State, 681 Fed.Appx. 2, 4 (D.C. Cir. 2017)
(noting that agencies “need not respond to overly broad
and unreasonably burdensome requests”); Schrecker
v. U.S. Dep't of Justice, 349 F.3d 657, 664 (D.C.
Cir. 2003) (“We have held that there are limits to the
lengths to which an agency must go in responding to a FOIA
request.”). An agency claiming that a search would be
unreasonably burdensome is required, however, to
“provide sufficient explanation as to why such a search
would be unreasonably burdensome” in a “detailed
affidavit[].” Nation Magazine, 71 F.3d at 892;
see also Schrecker v. U.S. Dep't of Justice, 254
F.3d 162, 165 (D.C. Cir. 2001) (reversing grant of summary
judgment to agency, which had “point[ed] to nothing in
the record to suggest that the search actually required will
be unduly burdensome”).
III.
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