Case Detail
| Case Title | COMPETITIVE ENTERPRISE INSTITUTE v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2015cv00215 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2015-02-11 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2017-02-09 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Judge Rosemary M. Collyer | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | COMPETITIVE ENTERPRISE INSTITUTE | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Description | The Competitive Enterprise Institute submitted a FOIA request to EPA for copies of emails or text messages to or from anyone in the Office of General Counsel that mention EPA Administrator Gina McCarthy and texting. The agency disclosed some emails, but denied access to hundreds of emails primarily under Exemption 5 (privileges) as well as Exemption 6 (invasion of privacy). CEI appealed the EPA's decision, but after hearing nothing further from the agency, CEI filed suit. Complaint issues: Failure to respond within statutory time limit, Exemption 5 - Privileges, Segregability, Litigation - Attorney's fees | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | UNITED STATES ENVIRONMENTAL PROTECTION AGENCY | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Complaint attachment 2 Complaint attachment 3 Complaint attachment 4 Complaint attachment 5 Opinion/Order [11] FOIA Project Annotation: Judge Rosemary Collyer has asked the EPA to provide more information about its FOIA-related IT technology to help settle a dispute between the agency and the Competitive Enterprise Institute over when CEI's emailed appeal was actually received by the agency. CEI requested emails or text messages sent by the Office of General Counsel concerning EPA Administrator Gina McCarthy's use of text messages. EPA eventually disclosed 1,702 documents, but withheld records under Exemption 5 (privileges). The agency told CEI that it could appeal and provided address information, including an email address at hq.foia@epa.gov. CEI sent its appeal to the email address on Thursday, January 8, 2015. EPA's FOIA Online tracking software issued an acknowledgement letter to CEI's counsel on Monday, January 12, 2015 informing him that the appeal had been received on that date. CEI filed suit on February 6, 2015 after the 20 working days deadline had expired by its calculation. On February 10, 2015, EPA notified CEI that it was taking a ten-day extension to process the appeal because of unusual circumstances. CEI then argued that EPA had missed the deadline for notifying CEI and that its request for an extension was invalid. EPA claimed CEI's suit was premature because the 20-day time limit had not yet expired. Collyer noted that while FOIA's exhaustion requirement was jurisprudential rather than jurisdictional, "the detailed structure of FOIA supports application of this jurisprudential doctrine, making prior exhaustion required before suit." CEI argued that the agency's claim that it took four days to receive an email was implausible and that the agency identified two different dates in its affidavits, suggesting the possibility of bad faith on the part of the agency. Adding to the agency's problem was that it misidentified the time limit for completing an appeal, relying instead on the 10-day time limit that requires an agency to respond to a request within ten days of its receipt. Collyer pointed out that the agency was confusing the time limits for responding to a request with those for responding to an appeal, which are not the same. She noted that "appeals are governed by clause (ii), not by clause (i). The date that EPA's 'appropriate component' received the appeal�"which it argues was January 12, 2015�"is immaterial for present purposes. What matters is the date that the Agency received the appeal." Collyer noted that "EPA directs FOIA appellants to send their appeals to an email address from which they are sorted and delivered internally. Notably, because EPA's argument does not distinguish between FOIA requests and FOIA appeals�"or explain whether an email to its FOIA website is maintained by EPA or an outside vendor�"the argument does not say when the Institute's appeal was received by EPA and, thus, whether the Institute's present lawsuit is premature." She indicated that the timeliness issue was not resolved by EPA's request for an extension because of unusual circumstances. She pointed out that Oglesby v. Dept of Army "concerned an agency's tardy response to a FOIA request, not a tardy response to an appeal." Oglesby, instead, stands for the proposition that once an agency has responded to a request before the plaintiff has filed suit, the requester is required to go through the appeals process before he or she can file suit. But the Oglesby decision specifically indicated that such a requester would then be eligible to file suit if the agency failed to respond to his or her appeal within the 20-day time limit. Collyer observed that "certainly, Oglesby did not erase an agency's ability to claim more time to handle an appeal due to unusual circumstances. Here, however, EPA may have notified the Institute too late. If so, under Oglesby the Institute's suit would not be premature." Sending the case back to EPA for further explanation, Collyer pointed out that "EPA does not explain the communications technology at work here, whereby a message emailed to a public address on a Thursday was somehow not delivered under the following Monday. Since there are possible explanations (outside contractors, technical limitations, etc.) for this seeming discrepancy but none is provided, the Court cannot determine on this record when the Institute's email was actually received by EPA. The threshold question of timeliness is therefore impossible to answer."
Opinion/Order [18]Issues: Administrative appeal - 20-day response time FOIA Project Annotation: Judge Rosemary Collyer has ruled that the EPA conducted an adequate search for records concerning emails or text messages sent to or from the Office of the General Counsel that was either to or from former EPA administrator Gina McCarthy and referred to text messaging. She also found the agency had properly invoked Exemption 5 (privileges) and Exemption 6 (invasion of privacy) to withhold 380 pages in full and 384 pages in part out of a total of 1702 pages. Although CEI had filed an administrative appeal, EPA had rejected the appeal because it arrived late. CEI argued that it had filed its appeal by email on Thursday, January 8, 2015, within the time for appealing, and that the agency had received it at that time. However, the EPA's records indicated that the appeal was not logged into its system until Monday, January 12, 2015, several days after the deadline. EPA explained to Collyer that CEI's appeal was sent through FOIAonline on Thursday evening and because the staff member who would normally have logged the appeal on Friday was on medical leave, the appeal was not logged into the agency's system until Monday morning. EPA argued that receipt of the appeal occurred when the agency actually opened the email for the first time and logged CEI's request into the agency's system, while CEI contended receipt meant when the appeal arrived at the agency. Collyer noted that she had previously "distinguished the law governing FOIA requests versus FOIA appeals, explaining that in the context of an appeal the relevant question is 'when the Institute's appeal was received by EPA.' FOIA requests, on the other hand, may be appealed within twenty days of receipt by 'the appropriate component of the agency.' EPA clearly received the Institute's appeal on January 8 and thus failed to respond in a timely basis." Finding the search was adequate, she observed that the agency's affidavit "describes a search reasonably calculated to uncover responsive documents and the Institute provides nothing to challenge the presumption of good faith afforded the declaration." CEI questioned whether emails shared with a contractor and two non-lawyers qualified for the attorney-client privilege. She found the contractor had been acting within the scope of the contract on matters related to CEI's litigation. As to emails involving the two non-attorneys, she pointed out that "the challenged emails between [the two non-attorneys] were exchanged at the request of attorneys and to provide information to attorneys for the purpose of obtaining legal advice." Collyer also found that emails discussing a media strategy qualified for protection under the deliberative process privilege. She indicated that "emails 'generated as part of a continuous process of agency decision-making regarding how to respond to' a press inquiry are protected by the deliberative process privilege. The documents in Categories B and C were clearly generated as part of a media strategy in response to FOIA litigation."
Issues: Adequacy - Search, Litigation - Jurisdiction - Failure to Exhaust, Exemption 5 - Privileges | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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