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Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency

United States District Court, District of Columbia

April 19, 2019

NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS, UNITED STATES DISTRICT JUDGE

         The Natural Resources Defense Council, Inc. (“NRDC”) brings this action against the Environmental Protection Agency (“EPA”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et. seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et. seq. The NRDC's amended complaint asserts three causes of action: The first alleges that the EPA violated FOIA by failing to respond to the NRDC's FOIA request seeking (1) records about the EPA's website-retention policies and (2) records instructing EPA staff to remove specific material from the EPA website. The second and third causes of action, in contrast, challenge the EPA's policy or practice of threatening to treat a FOIA request as “voluntarily withdrawn” if the EPA concludes that the request does not reasonably describe the records sought and the requester does not respond to an email from the EPA within ten days. See Dkt. 11 at 1-2 (Am. Compl. ¶¶ 1, 4-5). The second cause of action raises that challenge under FOIA itself, and the third raises the challenge under the APA. The EPA has now released records responsive to the FOIA request to the NRDC's satisfaction, Dkt. 28 at 2, leaving only the second and third causes of action for resolution.

         The parties' cross-motions for summary judgment are currently before the Court. Dkt. 15; Dkt. 20. For the reasons explained below, the Court first concludes that the NRDC has Article III standing to bring its policy or practice claim. Neither party, however, has addressed whether the NRDC's alleged injury is sufficient to sustain this Court's statutory jurisdiction under FOIA to grant injunctive relief and, if so, whether the alleged injury is sufficient to support entry of the injunction that the NRDC seeks. The Court will, accordingly, deny the EPA's motion for summary judgment with respect to the NRDC's Article III standing, and will deny both the EPA's motion to dismiss for failure to state a claim and the NRDC's cross-motion for summary judgment on the merits without prejudice.

         I. BACKGROUND

         A. Factual and Procedural History

          The NRDC alleges that, shortly after President Trump took office, numerous agencies- including the EPA-“began purging information about important public health and environmental issues from their websites.” Dkt. 11 at 1 (Am. Compl. ¶ 2). To obtain information about this activity, the NRDC submitted a FOIA request to the EPA seeking:

1. All records setting forth general policy or guidance for EPA staff to apply when determining whether to remove information, documents, or webpages from an EPA website.
2. All records from January 20, 2017 through the present instructing EPA staff within the Office of Public Affairs to remove specific information, documents, or webpages from any EPA website.

Dkt. 20-4 at 18 (“Website Request”). The EPA did not respond to the request for nearly three months. Dkt. 11 at 2 (Am. Compl. ¶¶ 3-4). Finally, on June 14, 2017, the EPA sent the NRDC an email stating that the request was “not a proper FOIA request” because it did not “reasonably describe the records sought as required by both the FOIA statute and the [EPA's] regulations.” Dkt. 20-4 at 31. The email further explained that, “[i]n order for [the EPA] to process your request, you should ‘include specific information about each record sought, such as the date, title or name, author, recipient, subject matter, ” and that, “[i]f known, you should include any file designations or descriptions for the records that you want.” Id.

         The email then observed that, “following the 2017 Presidential inauguration, the agency received numerous FOIA requests regarding historic versions of the EPA website” and that, “[t]o respond to these requests for information, [the] EPA ha[d] reposted a snapshot of the EPA website as it existed on January 19, 2017.” Id. In the passage at the core of the present dispute, the EPA added:

The information provided in the January 19, 2017 Web Snapshot may provide the information you seek. If it does not, please reply back to me within 10 days of the date of this correspondence so that we may assist in clarifying [the Website Request] as a proper request. If we do not hear back from you by that date, we will consider your request voluntarily withdrawn.

Id. (emphasis added).

         Nine days later, the NRDC replied to the EPA's June 14, 2017 email, making three points. First, it disagreed with the EPA's conclusion that the Website Request failed reasonably to describe the records sought and was thus “‘not a proper FOIA request.'” Id. at 34 (quoting EPA June 14, 2017 email). The NRDC observed that FOIA does not require “that a requester identify the date, title, author, recipient, and subject matter of records requested” and that when, as here, the FOIA requester lacks that information, “it is incumbent upon the agency to determine who within the agency might possess the necessary information to design and to conduct a reasonable search.” Id. (citing S. Rep. No. 93-854, at 162 (1974)). Second, the NRDC explained that the EPA's January 19, 2017 snapshot of its website was not responsive to the NRDC's FOIA request, which sought guidelines and instructions regarding the removal of material posted on the EPA's website. Id. Third, the NRDC declined “to ‘voluntarily withdraw' its request.” Id. The NRDC asserted that “there is no basis under FOIA for [the] EPA to deem a request ‘voluntarily withdrawn' based on non-response to an [email], particularly on an arbitrarily short ten-calendar-day deadline, ” nor can an agency “use FOIA's ‘reasonably describes' requirement ‘to obstruct public access to agency records.'” Id. (quoting S. Rep. No. 93-854, at 162)).

         The NRDC filed the present suit three days later, on June 26, 2017, seeking to compel the EPA to disclose all nonexempt responsive records. Dkt. 1 at 5 (Compl. ¶¶ 23-27). It amended its complaint on August 9, 2017, adding challenges under FOIA and the APA to the EPA's policy or practice of threatening to deem FOIA requests “voluntarily withdrawn” based on a requester's failure to respond to an email within ten days. Dkt. 11 at 10-11 (Am. Compl. ¶¶ 47- 51). Meanwhile, also on August 9, 2017, the EPA sent the NDRC another email, updating it on the EPA's “search for records responsive to its FOIA request.” Dkt. 20-4 at 38. With respect to the NRDC's request for “records setting general policy or guidance for EPA staff to apply when determining whether to remove information, documents, or webpages from an EPA website, ” the EPA directed the NRDC to three online links to the relevant policies. Id. And, with respect to the NRDC's request for “records from January 20, 2017 through the present instructing EPA staff within the Office of Public Affairs to remove specific information, documents, or webpages from any EPA website, ” the EPA “interpreted th[e] request” to seek “any email or other written instruction or communication instructing relevant individuals within the Office of Environmental Information or the Office of Public Affairs to remove” the information at issue. Id. The email further indicated that the agency had identified “10 management level individuals” who might have responsive records, along with relevant search terms, the number of items retrieved, and one possible way to narrow the request. Id.

         On October 4, the NRDC and the EPA filed a joint stipulation setting a schedule for the EPA to produce nonexempt records responsive to the Website Request, see Dkt. 14 (Joint Stip. & Prop. Order), which this Court subsequently approved, see Dkt. 17. The parties then notified the Court on May 23, 2018 that the EPA had released records responsive to the Website Request and that the NRDC did “not intend to challenge the adequacy of [the] EPA's disclosures.” Dkt. 28 at 1. As a result, “[t]he parties . . . agree[d] that further proceedings on the merits of Count [One] are unnecessary.” Id. at 2.

         The NRDC, however, continues to challenge the EPA's policy or practice of threatening to deem FOIA requests as “voluntarily withdrawn” if (1) the agency concludes on an initial review that the request does not “reasonably describe” the records sought and so notifies the requester, and (2) the requester fails to contact the EPA within ten days regarding the asserted deficiency in the request. According to the NRDC, “[c]ounting the Website Request, [the] EPA has levied this threat against at least six NRDC FOIA requests since April 2016, ” and “[n]umerous other individuals and groups have received nearly identical respond-or-else ultimatums from various EPA officials during that time.” Dkt. 20-1 at 12; see also Dkt. 20-2 at 4-8 (Pl.'s Statement Undisputed Material Facts (“PSUMF”) ¶¶ 15-31); Dkt. 20-4 (Knicley Decl. Exs. F, I-W). The NRDC seeks a declaration that the EPA's practice of threatening to treat a FOIA request as “voluntarily withdrawn” unless the requester contacts the agency within ten days violates FOIA, and it seeks an injunction barring the EPA from continuing to engage in that practice. The EPA, for its part, does not dispute that it engages in this practice but contends that the NRDC lacks standing to challenge it and that, even if the NRDC has Article III standing, the practice constitutes a lawful exercise of the EPA's discretion to implement FOIA in a reasonable manner.

         The EPA's motion to dismiss or, in the alternative, for summary judgment and the NRDC's cross-motion for summary judgment are currently before the Court.

         II. ...


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