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Missouri Coalition for Environment v. United States Army Corps of Engineers

United States District Court, District of Columbia

March 28, 2019

MISSOURI COALITION FOR THE ENVIRONMENT, Plaintiff,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, Defendant.

          MEMORANDUM OPINION

          TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.

         Missouri 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 “deliberative process.”

         Missouri 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.

         The 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 denied.[1]

         I. Factual Background

         Missouri Coalition for the Environment (MCE) is an environmental organization based in St. Louis, Missouri.[2] 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.

         When a 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 action.

         A. MCE's FOIA Requests

         1. FOIA Request 1

         In 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.

         2. FOIA Request 2

         In 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.

         3. FOIA Request 3

         In 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.

         4. FOIA Request 4

         In 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. ¶ 23.

         5. FOIA Request 5

         In 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 ...


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