United States District Court, District of Columbia
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.
Coalition for the Environment routinely submits requests
under the Freedom of Information Act for records relating to
a Clean Water Act permit program run by the Army Corps of
Engineers. It uses those records to comment on permit
applications and keep track of permits issued in Missouri.
This case is about how the Corps has responded to Missouri
Coalition's FOIA requests for records relating to pending
permit applications. Under those circumstances, the Corps has
withheld all otherwise responsive records, claiming that they
were exempt from disclosure because they were
“pre-decisional” and part of the agency's
Coalition challenged those responses, arguing that the Corps
was withholding non-agency records-such as those submitted by
the permit applicant-to which the claimed exemption did not
apply. And in two instances, Missouri Coalition brought a
FOIA case seeking the withheld records, and the Corps
eventually released them. But the Corps continued to withhold
non-agency records in response to Missouri Coalition's
requests, and so it brought this action. Missouri Coalition
alleges that the Corps employs a “policy or
practice” that violates FOIA, and it seeks both
declaratory judgment and an injunction to prevent the Corps
from relying on that purported policy or practice in response
to future requests. The Corps, for its part, does not dispute
that the prior withholdings identified by Missouri Coalition
were unlawful, but it denies that it ever employed a policy
or practice as alleged. Rather, it insists that its
withholdings were caused by the isolated mistakes of
individual employees that it has since rectified. For that
reason, it maintains that Missouri Coalition is not entitled
to the equitable relief sought.
parties have cross-moved for summary judgment. For the
reasons explained below, Missouri Coalition's motion will
be granted, and the Corps' motion will be
Coalition for the Environment (MCE) is an environmental
organization based in St. Louis, Missouri. Navarro Decl.
¶ 2. The group advocates for the preservation of
Missouri's wetlands and waterbodies, among other
environmental causes. Id. ¶ 3. That effort
often involves commenting on pending applications under the
Section 404 Clean Water Act permit program run by the United
States Army Corps of Engineers (“the Corps”).
Id. ¶ 4; Levins Decl. ¶ 3 n. 1. Under the
Section 404 program, the Corps “issue[s] permits, after
notice and opportunity for public hearings[, ] for the
discharge of dredged or fill material into the navigable
waters at specified disposal sites.” 33 U.S.C. §
1344(a). Within each state, the Corps is divided into
districts, and each district handles the permitting program
for sites within its jurisdiction. See Levins Decl. ¶ 3
n.1. Missouri is comprised of five Corps districts, two of
which, the Little Rock District and the St. Louis District,
are relevant here. See Def.'s MSJ at 9.
district receives a permit application, it issues a
“public notice, ” which includes a general
description of the proposed activity, a site plan and
elevation map, and other details about the project. See 33
C.F.R. § 325.3(a). To better prepare its comments on
those pending applications, however, MCE often submits
requests to the Corps under the Freedom of Information Act
(FOIA), 5 U.S.C. § 552, seeking documents in the
application files not released with the public notices. See
Navarro Decl. ¶ 4. The Corps' responses to several
of those requests, described below, are the basis for this
MCE's FOIA Requests
FOIA Request 1
March 2013, MCE submitted a request to the St. Louis District
seeking records relating to sixteen permit applications filed
in that district, three of which were still pending. See
Pl.'s Ex. A at 1-4; Def.'s Facts Stmt. ¶ 10;
Pl.'s Facts Stmt. ¶ 41. The Corps withheld the
application files for those three permits, citing FOIA
Exemption 5, see Pl.'s Facts Stmt. ¶ 41, which
exempts from disclosure “inter-agency [and]
intra-agency memorandums or letters” that fall within
the scope of the deliberative-process privilege, 5 U.S.C.
§ 552(b)(5); see also Dep't of the Interior v.
Klamath Water Users Protective Ass'n, 532 U.S. 1, 8
(2001). MCE filed an administrative appeal of that decision
with the Corps in November 2013, arguing that the Corps
improperly applied Exemption 5. Pl.'s Facts Stmt. ¶
42. Over a year later, and after hearing no response from the
Corps, MCE sued for the responsive records in December 2014.
Def.'s Facts Stmt. ¶ 12; Pl.'s Ex. A at 5-11.
The case was dismissed in March 2015 after the Corps allowed
MCE to review the three application files. Def.'s Facts
Stmt. ¶ 13; Pl.'s Ex. A at 12-14.
FOIA Request 2
August 2014, MCE submitted a request to the Little Rock
District seeking documents relating to a pending permit
application. Pl.'s Facts Stmt. ¶ 45; Pl.'s Ex. B
at 1-3. Less than two weeks later, MCE received an email from
a paralegal with the Little Rock District, stating that the
requested information could not be released because it was
“pre-decisional and a work product.” Pl.'s
Ex. B at 8. MCE sent a letter to the Little Rock District
disputing that decision, arguing that at least some of the
documents must have been generated by entities other than the
agency, including those submitted by the permit applicant
itself, and that those documents could not be withheld under
Exemption 5. See Id. at 11-14. In October 2014, MCE
received a response from a Corps supervisor informing it that
the documents that the Little Rock District would not release
were being withheld under Exemption 5 because they were
“intra- and inter-agency documents” and
“contain[ed] information that [was] part of the
internal process” of the Corps. Id. at 15-17.
MCE administratively appealed that decision in November of
that year. See Id. at 18-19. About five months
later, after receiving no response from the Corps, MCE sued.
See Id. at 20-25. The parties again reached a
settlement in which the Corps agreed to release the requested
documents, and the case was dismissed in July 2015.
Def.'s Facts Stmt. ¶ 17; Pl.'s Ex. B at 26-28.
FOIA Request 3
December 2015, MCE submitted another request to the Little
Rock District seeking records related to a pending permit
application. See Pl.'s Ex. C at 1-3. About three months
later, MCE received an email from a second paralegal with the
Little Rock District, providing some records but withholding
several others under Exemption 5. See Id. at 5. MCE
replied to the email and asked whether the withheld documents
were created by the applicant rather than the Corps, in which
case, MCE argued, they would not be subject to Exemption 5.
See Id. At 4. Although she acknowledged receiving
the email, the paralegal never followed up to clarify. See
Id. In April 2016, MCE filed an administrative
appeal disputing the withholding of those documents under
Exemption 5. See Id. at 6-8. Two years later, and
after MCE brought this case, the Corps released the withheld
documents to MCE. See Id. at 10-11.
FOIA Request 4
March 2017, MCE sent a request to the St. Louis District
seeking documents relating to a pending permit application.
See Pl.'s Ex. E at 1-3. Less than two weeks later, MCE
received a response from William Levins, District Counsel for
the St. Louis District, releasing a “cover letter from
the Corps to the applicant, attaching the public notice, a
list of parties to whom the notice was being sent, and the
public notice itself.” Pl.'s Facts Stmt. ¶ 63;
see Pl.'s Ex. E at 4-5. Levins stated that the Corps was
withholding the rest of the documents in the application file
“pursuant to Exemption 5 . . ., [d]eliberative process,
[p]re-decisional.” Pl.'s Ex. E at 4. MCE did not
file an administrative appeal. See Pl.'s Facts Stmt.
FOIA Request 5
October 2017, MCE sent a request to the St. Louis District
seeking documents relating to a different pending permit
application. See Pl.'s Ex. F at 1-3. Less than a month
later, MCE received a “no records response”
letter from Levins. See Id. at 4-5. MCE emailed a
third paralegal with the St. Louis District, who had
forwarded the letter from Levins, asking her to clarify
whether Levins's letter meant that the Corps found no
responsive documents or that it was withholding responsive
documents under one of FOIA's exemptions. See
Id. at 6. In December of that year, MCE received
another letter from Levins clarifying that the Corps was
withholding records under Exemption 5. See Id. at
10-11. He explained ...