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Lipton v. United States Environmental Protection Agency

United States District Court, District of Columbia

July 10, 2018

ERIC LIPTON, et al., Plaintiffs,



         The world moves fast, but government bureaucracy does not. Officials meet daily with individuals and groups that attempt to sway their thinking on the issues of the moment. But while the buttering-up and sausage-making takes place in real time, citizens may only discover what their officials are up to if they ask-and then sue. The Freedom of Information Act (FOIA) requires disclosure of records, such as calendar entries, upon request. Yet agencies may take months to respond, and an incomplete or delayed answer can mean months longer in court. Requesters therefore fear that by the time they can wrest the desired information from an agency's hands, it will be too late for that information to be useful.

         The New York Times and one of its reporters, Eric Lipton, believe they have found a way to cut this Gordian knot. One section of FOIA, known as the “reading-room provision, ” requires agencies proactively to publish certain materials on their websites. Among other things, agencies must make publicly available any previously-released records that either already have been sought at least three times or are likely to be the subject of further requests. See 5 U.S.C. § 552(a)(2)(D). Lipton and the Times (hereinafter “plaintiffs”) wish to use this provision to obtain from the Environmental Protection Agency (EPA), on a rolling basis, the detailed daily calendar of former Administrator Scott Pruitt's activities. EPA counters that the reading-room provision cannot guarantee plaintiffs access to calendar entries that have not yet been, and may never be, created. As the government has the better of this statutory interpretation debate, partial summary judgment will be entered for EPA on Claim One of plaintiffs' complaint.

         BACKGROUND [1]

         FOIA consists of both proactive and reactive provisions. The reactive provision of FOIA mandates that agencies disclose most records upon request. See 5 U.S.C. § 552(a)(3). Section 552(a)(3) is “the [A]ct's most familiar provision, ” Citizens for Responsibility & Ethics in Wash. (CREW) v. DOJ, 846 F.3d 1235, 1240 (D.C. Cir. 2017), under which most FOIA litigation takes place. But the Act also requires agencies affirmatively to publish certain information about themselves, as well as all their substantive rules and all final opinions or orders resolving agency adjudications. See Pub. L. No. 89-554, § 552(b)-(c), 89th Cong. (1966), 80 Stat. 378, 383 (codified as amended at 5 U.S.C. § 552(a)(1)-(2)). This proactive section is often referred to as FOIA's “reading-room provision.” See CREW, 846 F.3d at 1240.

         In 1996 and 2016, Congress amended FOIA to bring it up to date with the digital age. See Electronic Freedom of Information Act Amendments of 1996 (“1996 Amendments”), Pub. L. No. 104-231, 104th Cong., 110 Stat. 3048; FOIA Improvement Act of 2016 (“2016 Amendments”), Pub. L. No. 114-185, 114th Cong., 130 Stat. 538. The 1996 Amendments added to the reading-room provision a requirement that agencies publish electronically copies of any records that already have been released under the reactive provision of FOIA and that have attracted or likely will attract more such requests. See 1996 Amendments, § 4, 110 Stat. at 3049 (codified as amended at 5 U.S.C. § 552(a)(2)(D)). The 2016 Amendments rewrote the provision so that it also applies to records that previously have been released and that have been requested at least three times. See 2016 Amendments, § 2, 130 Stat. at 538 (codified at 5 U.S.C. § 552(a)(2)(D)).

         Plaintiff Eric Lipton is an investigative reporter at the New York Times. Lipton Decl. [ECF No. 20-7] ¶ 1. He has published a number of articles reporting on conflicts of interest involving former EPA Administrator Scott Pruitt and other EPA officials, and relies on FOIA requests for his ongoing reporting on the topic. Id. ¶¶ 3, 6-7. On July 12, 2017, Lipton and the Times filed a FOIA request with EPA, seeking Pruitt's daily schedule, with full details of his meetings, from April 1, 2017 through the date of the request. See July 12, 2017 FOIA Request Confirmation [ECF No. 20-4, Ex. A]. On October 19, 2017, plaintiffs updated their request, asking not only for Pruitt's detailed calendar through the date of EPA's search but also “that Administrator Pruitt's daily schedule . . . be made available for public inspection in an electronic format” and “that the record be regularly updated throughout [his] time as a federal employee.” Langford Decl. [ECF No. 20-3] ¶ 6; see Oct. 19, 2017 FOIA Request [ECF No. 20-4, Ex. C] at 1.

         EPA failed to respond to plaintiffs' revised request within FOIA's twenty-day deadline, and on December 4, 2017, plaintiffs filed this suit against EPA. See Compl. [ECF No. 1]. Plaintiffs bring two claims. Claim One alleges that EPA's failure to make the Administrator's calendar available on a regularly updated basis throughout Pruitt's tenure violated § 552(a)(2)(D). Id. ¶¶ 23-24. Claim Two alleges that EPA violated FOIA by failing timely to respond to plaintiffs' request under the reactive provision. Id. ¶¶ 25-26. They seek a declaratory injunction that the detailed calendar they seek is a public record which must be published in an electronic format under § 552(a)(2)(D), an injunction ordering EPA to process and release regular updates of the Administrator's calendar, and orders related to the alleged violation of the reactive provision. See id. Prayer for Relief ¶¶ 1-7. Plaintiffs later requested, and the Court granted, a schedule that split plaintiffs' claims into two rounds of briefing. See Scheduling Order [ECF No. 19]. The parties filed cross-motions for summary judgment on Claim One, regarding the reading-room provision. See Mem. in Supp. of Pls.' Mot. for Partial Summ. J. (“Pls.' Mot.”) [ECF No. 20-1]; Def.'s Cross-Mot. for Partial Summ. J. (“Def.'s Mot.”) [ECF No. 23]. Each party has responded to the other's motion, rendering Claim One ripe for decision. See Mem. in Opp'n to Def.'s Cross-Mot. (“Pls.' Reply”) [ECF No. 27]; Def.'s Reply to Pls.' Opp'n (“Def.'s Reply”) [ECF No. 30].


         “FOIA cases typically and appropriately are decided on motions for summary judgment.” Georgacarakos v. FBI, 908 F.Supp.2d 176, 180 (D.D.C. 2012) (citation omitted). Summary judgment is appropriate “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 party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of “the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” which it believes demonstrate the absence of a genuine dispute of material fact. Fed.R.Civ.P. 56(c)(1)(A); see Celotex, 477 U.S. at 323.


         Plaintiffs assert that EPA's failure to make the Administrator's detailed calendar available in its electronic reading room on an ongoing basis violates FOIA's reading-room provision. See Pls.' Mot. at 9. They urge that the calendar meets all of the prerequisites under § 552(a)(2)(D): EPA has already released certain date ranges of the calendar, the calendar is of significant public interest and is likely to be the subject of future requests, and it has already been the subject of three or more FOIA requests. See id. EPA responds that plaintiffs “have fundamentally misread section 552(a)(2)(D), ” which EPA asserts “cannot, by its terms, apply to future calendar records, or indeed to any categorical type of future records that the agency may or may not produce.” Gov't Mot. at 8-9. As EPA reads the statute, § 552(a)(2)(D)'s requirement that a document be released under the reactive provision before the section is triggered dooms plaintiffs' claim, as one cannot make a proper FOIA request for documents that do not yet exist. See id. To resolve plaintiffs' claim, then, the Court must determine whether the Administrator's detailed calendar-including both existing and future entries-constitutes a single “agency record” which must be continuously published under the reading-room provision.

         Two initial observations. First, for the purposes of this opinion, the Court assumes without deciding that the Administrator's detailed electronic calendar up through the date of plaintiffs' FOIA request is an “agency record” (or “records”). See Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283, 293 (D.C. Cir. 2006) (finding that electronic calendars were records subject to FOIA when they were broadly distributed within the agency and other employees at the agency used and relied on them). Second, as “FOIA's terms apply government-wide, ” the Court will “decline to accord deference to agency interpretations of the statute, as [it] would otherwise do under” the Chevron doctrine. Al-Fayed v. CIA, 254 F.3d 300, 307 (D.C. Cir. 2001).

         Ultimately, however, the Court finds that EPA's proffered interpretation is correct. The reading-room provision does not enable plaintiffs to seek all future entries in the Administrator's detailed calendar on a rolling basis; it only requires an agency to make publicly available documents that have already been created, requested, and released in the past. This “conclusion rests in large part upon the statute's wording, both its individual words and the text taken as a whole.” Lagos v. United States, 138 S.Ct. 1684, 1688 (2018). Statutory and ...

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