United States District Court, District of Columbia
D. BATES UNITED STATES DISTRICT JUDGE
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.
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.
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.
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)).
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]
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].
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.
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
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.
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 ...