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Public Employees for Environmental Responsibility v. U.S. Environmental Protection Agency

United States District Court, District of Columbia

June 1, 2018

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, Plaintiff,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant.

          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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