Case Detail

FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that the National Highway Traffic Safety Administration and the EPA conducted adequate searches in responsive to a 12-part FOIA request from the California Air Resources Board for the proposed rulemaking for the Safer Affordable Fuel-Efficient Vehicles Act and that two EPA email threads and two draft reports from the NHTSA were properly withheld under Exemption 5 (privileges). Several subparts of CARB's FOIA request pertained to battery costs. NHTSA referred CARB to the Argonne National Laboratory (ANL) to obtain a copy of the battery model used. Neither the NHTSA nor the EPA had responsive records for some portions of the request, but both agencies withheld some records under Exemption 5. CARB filed suit, challenging the adequacy of the agencies searches and their exemption claims. As a preliminary defense, the agencies claimed that CARB's request was not a proper FOIA request but rather a request for answers to various questions. Kollar-Kotelly disagreed with the agencies' characterization, noting that "defendants are correct that part 8 [of the request] went on to contain a narrative description of the alleged shortcomings of Defendants' statistical model. However, construing Plaintiff's request liberally, that narrative portions does not negate Plaintiff's initial request for data. And the Court finds that such a request for data reasonably included documents containing such data." But Kollar-Kotelly rejected CARB's accusation that such a characterization constituted bad faith. Kollar-Kotelly rejected CARB's claims that the searches were inadequate, in part, since the agencies had failed to locate records that should exist. But Kollar-Kotelly pointed out that "plaintiff's bare speculation that other documents must exist is not sufficient to show that Defendant NHTSA's search was inadequate. Here, Defendant NHTSA's declarant indicates 'which files were searched, by whom those files were searched, and a systematic approach to document location.' The agency custodians indicated that no other locations were reasonably likely to contain responsive records." Kollar-Kotelly then found that the agencies' claim that withheld records were protected by the deliberative process privilege Exemption 5 were appropriate. She rejected CARB's claim that the issuance of a final rule meant that information was no longer pre-decisional. She observed that "the issuance of the final rule does not obviate the harm from disclosure. Disclosure would still risk confusion as to the Rule because the emails reflect EPA staff's initial opinions, not the final agency decision."
Issues: Adequacy - Search, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional

Date Filed	Doc #	Docket Text
2019-04-05	1	COMPLAINT against NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ( Filing fee $ 400 receipt number 0090-6043290) filed by CALIFORNIA AIR RESOURCES BOARD. (Attachments: # 1 Civil Cover Sheet Civil Cover Sheet, # 2 Summons Summons to U.S. Environmental Protection Agency, # 3 Summons Summons to National Highway Traffic Safety Administration, # 4 Summons Summons to U.S. Attorney General, # 5 Summons Summons to U.S. Attorney for the District of Columbia)(Hoffman, Ryan) (Entered: 04/05/2019)
2019-04-08		Case Assigned to Judge Colleen Kollar-Kotelly. (zef, ) (Entered: 04/08/2019)
2019-04-08	2	SUMMONS (4) Issued Electronically as to NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Notice and Consent)(zef, ) (Entered: 04/08/2019)
2019-04-12	3	ORDER ESTABLISHING PROCEDURES FOR CASES ASSIGNED TO JUDGE COLLEEN KOLLAR-KOTELLY. Signed by Judge Colleen Kollar-Kotelly on 4/12/19. (DM) (Entered: 04/12/2019)
2019-04-17	4	NOTICE of Appearance by Margaret Elaine Meckenstock on behalf of CALIFORNIA AIR RESOURCES BOARD (Meckenstock, Margaret) (Entered: 04/17/2019)
2019-05-14	5	Unopposed MOTION for Extension of Time to File Answer re 1 Complaint,, by NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Seabrook, April) (Entered: 05/14/2019)
2019-05-14		MINUTE ORDER. The Court is in receipt of Defendants' 5 Unopposed Motion for Extension of Time to File Answer, and Memorandum in Support Thereof. Currently, Defendants' Answer is due May 17, 2019. Defense counsel requests an extension of thirty days due to the complex nature of the subject matter of the FOIA request, the need to confer with agency-Defendants, and other litigation commitments. Defendants' Motion is GRANTED. Defendants are ORDERED to submit their Answer by JUNE 18, 2019. Signed by Judge Colleen Kollar-Kotelly on 5/14/2019. (lcckk3) (Entered: 05/14/2019)
2019-05-14		Set/Reset Deadlines: Answer due by 6/18/2019. (dot) (Entered: 05/20/2019)
2019-06-18	6	ANSWER to Complaint by NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.(Seabrook, April) (Entered: 06/18/2019)
2019-06-19	7	SCHEDULING ORDER. Signed by Judge Colleen Kollar-Kotelly on 6/19/2019. (lcckk3) (Entered: 06/19/2019)
2019-06-19		Set/Reset Deadlines: Meet & Confer Statement due by 7/16/2019. (dot) (Entered: 06/24/2019)
2019-07-16	8	Joint STATUS REPORT by CALIFORNIA AIR RESOURCES BOARD. (Meckenstock, Margaret) (Entered: 07/16/2019)
2019-07-29		MINUTE ORDER. The Court is in receipt of the parties' 8 Joint Status Report. Defendant EPA reports that it anticipates issuing its final response to part 12 of Plaintiff's FOIA request no later than August 7, 2019 and its final response to parts 1-11 no later than August 16, 2019. Defendant NHTSA has already issued its final response. The parties disagree on the next steps moving forward. Plaintiff requests that the Court grant partial summary judgment briefing on NHTSA's assertion of Exemption 5 with respect to records responsive to part 8 of Plaintiff's FOIA request. Plaintiff states that immediate action is required due to an impending deadline for submitting comments to a regulatory proposal issued by EPA and NHTSA. The Court will not allow partial summary judgment briefing at this time. Conducting summary judgment briefing on NHTSA's claimed exemption before EPA has completed its response is not an efficient use of the parties' or the Court's resources. Plaintiff's request for more immediate access to NHTSA's withheld information does not outweigh the inefficiency that bifurcating Plaintiff's FOIA request and conducting two rounds of summary judgment would cause. Instead, the Court ORDERS the parties to file a further Joint Status Report on AUGUST 16, 2019, advising the Court on the status of the matter and recommending steps for moving forward. Signed by Judge Colleen Kollar-Kotelly on 7-29-2019. (lcckk3) (Entered: 07/29/2019)
2019-07-29		Set/Reset Deadlines: Joint Status Report due by 8/16/2019, advising the Court on the status of the matter and recommending steps for moving forward. (dot) (Entered: 07/30/2019)
2019-08-16	9	Joint STATUS REPORT by CALIFORNIA AIR RESOURCES BOARD. (Hoffman, Ryan) (Entered: 08/16/2019)
2019-08-19		MINUTE ORDER. The Court is in receipt of the parties' 9 Joint Status Report. The parties report that Defendants have finished responding to Plaintiff's FOIA requests and that summary judgment briefing is required to resolve the remaining issues. Plaintiff's Motion for Summary Judgment is due OCTOBER 4, 2019; Defendants' Opposition and Cross-Motion is due NOVEMBER 1, 2019; Plaintiff's Opposition and Reply is due NOVEMBER 29, 2019; Defendants' Reply is due DECEMBER 27, 2019. Signed by Judge Colleen Kollar-Kotelly on 8-19-2019. (lcckk3) (Entered: 08/19/2019)
2019-08-19		Set/Reset Deadlines: Plaintiff's Motion for Summary Judgment is due 10/4/2019; Defendants' Opposition and Cross-Motion is due 11/1/2019; Plaintiff's Opposition and Reply is due 11/29/2019; Defendants' Reply is due 12/27/2019. (kt) (Entered: 08/19/2019)
2019-10-07	10	MOTION for Summary Judgment by CALIFORNIA AIR RESOURCES BOARD (Attachments: # 1 Declaration Meckenstock Exhs 1-10, # 2 Declaration Hart Exhs 11-16, # 3 Declaration McCarthy Exh 17, # 4 Text of Proposed Order)(Meckenstock, Margaret) (Entered: 10/07/2019)
2019-10-07	11	ENTERED IN ERROR.....NOTICE regarding date of MSJ filing by CALIFORNIA AIR RESOURCES BOARD (Attachments: # 1 Exhibit)(Meckenstock, Margaret) Modified on 10/9/2019 (znmw). (Entered: 10/07/2019)
2019-10-08		NOTICE OF ERROR re 11 Notice (Other); emailed to Elaine.Meckenstock@doj.ca.gov, cc'd 4 associated attorneys -- The PDF file you docketed contained errors: 1. Please refile document, 2. See LcvR 5.1(a) and 5.1(d) (ztd, ) (Entered: 10/08/2019)
2019-10-08	12	NOTICE re timing of MSJ filing by CALIFORNIA AIR RESOURCES BOARD (Meckenstock, Margaret) (Entered: 10/08/2019)
2019-10-29	13	Unopposed MOTION to Amend/Correct Set/Reset Deadlines, by NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Seabrook, April) (Entered: 10/29/2019)
2019-10-29		MINUTE ORDER. The Court is in receipt of the Defendants' 13 Unopposed Motion to Amend Briefing Schedule, and Memorandum in Support Thereof. Defendants' Opposition and Cross-Motion for Summary Judgment is currently due November 1, 2019. Defendants request an extension because the parties are still negotiating the scope of Plaintiff's challenges to the EPA's FOIA response. An extension would allow the EPA to tailor its briefing and declaration to the disputed issues. Defendants' Motion is GRANTED. Defendants' Opposition and Cross-Motion is due DECEMBER 2, 2019; Plaintiff's Opposition and Reply is due JANUARY 2, 2020; Defendants' Reply is due FEBRUARY 2, 2020. Signed by Judge Colleen Kollar-Kotelly on 10-29-2019. (lcckk3) (Entered: 10/29/2019)
2019-10-29		Set/Reset Deadlines: Defendants' Cross Motion due by 12/2/2019. Response to Cross Motion due by 1/2/2020. Reply to Cross Motion due by 2/2/2020. Defendants' Response to Motion for Summary Judgment due by 12/2/2019. Reply to Motion for Summary Judgment due by 1/2/2020. (dot) (Entered: 10/30/2019)
2019-11-05	14	Unopposed MOTION to Amend/Correct Set/Reset Deadlines by CALIFORNIA AIR RESOURCES BOARD (Hoffman, Ryan) (Entered: 11/05/2019)
2019-11-07		MINUTE ORDER. The Court is in receipt of the Plaintiff's 14 Unopposed Motion to Amend Briefing Schedule, and Memorandum in Support Thereof. Currently, Plaintiff's Opposition and Reply is due January 2, 2020 and Defendants' Reply is due February 2, 2020. Counsel reports that a deadline of January 2, 2020 is not workable due to long-standing holiday travel plans. The Court notes that the deadline of January 2, 2020 was previously proposed by the parties. See ECF No. 13. The Court GRANTS Plaintiff's Motion. Plaintiff's Opposition and Reply is due JANUARY 22, 2020; Defendants' Reply is due FEBRUARY 24, 2020. No further extensions will be granted. Signed by Judge Colleen Kollar-Kotelly on 11-6-2019. (lcckk3) (Entered: 11/07/2019)
2019-11-07		Set/Reset Deadlines: Plaintiff's Response to Cross Motion due by 1/22/2020. Defendants' Reply to Cross Motion due by 2/24/2020. Plaintiff's Reply to 10 Motion for Summary Judgment due by 1/22/2020. (dot) (Entered: 11/12/2019)
2019-11-21	15	NOTICE , Joint, of Agreement to Partially Defer Summary Judgment Briefing by CALIFORNIA AIR RESOURCES BOARD (Hoffman, Ryan) (Entered: 11/21/2019)
2019-12-02	16	Unopposed MOTION to Amend/Correct Set/Reset Deadlines by NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Seabrook, April) (Entered: 12/02/2019)
2019-12-03		MINUTE ORDER. The Court is in receipt of the Defendants' 16 Unopposed Motion to Amend Briefing Schedule, and Memorandum in Support Thereof. Defendants' Opposition and Cross-Motion was due December 2, 2019. This is Defendants' second request for an extension. Defendants request an extension due to the unexpected illness of Defense counsel as well as an unexpected death in Defense counsel's family. Defendants' Motion is GRANTED nunc pro tunc. Defendants' Opposition and Cross-Motion is due DECEMBER 17, 2019; Plaintiff's Opposition and Reply is due FEBRUARY 6, 2020; and Defendants' reply is due MARCH 9, 2020. The Court recognizes that in its November 7, 2019 Minute Order it stated that no further extensions would be granted. However, the Court recognizes that the illness and death necessitating this extension were outside counsel's control. This briefing schedule is the final schedule. Signed by Judge Colleen Kollar-Kotelly on 12-3-2019. (lcckk3) (Entered: 12/03/2019)
2019-12-03		Set/Reset Deadlines: Defendants' Cross Motion for Summary Judgment due by 12/17/2019. Response to Cross Motion due by 2/6/2020. Reply to Cross Motion due by 3/9/2020. Defendants' Response to Motion for Summary Judgment due by 12/17/2019. Reply to Motion for Summary Judgment due by 2/6/2020. (dot) (Entered: 12/03/2019)
2019-12-17	17	Memorandum in opposition to re 10 MOTION for Summary Judgment filed by NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Exhibit List, # 2 Statement of Facts - Responsive, # 3 Statement of Facts, # 4 Text of Proposed Order, # 5 Exhibit 1 - DiMarsico Decl., # 6 Exhibit 2 - Schade Decl., # 7 Exhibit 3 - Charmley Decl., # 8 Exhibit 4 - Email of 8/15/2019, # 9 Exhibit 5 - Emails of 07/2019)(Seabrook, April) (Entered: 12/17/2019)
2019-12-17	18	MOTION for Summary Judgment by NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Memorandum in Support, # 2 Exhibit List, # 3 Statement of Facts - Responsive, # 4 Statement of Facts, # 5 Text of Proposed Order, # 6 Exhibit 1 - DiMarisco Decl., # 7 Exhibit 2 - Schade Decl., # 8 Exhibit 3 - Charmley Decl., # 9 Exhibit 4 - Email of 8/15/2019, # 10 Exhibit 5 - Emails of 7/2019)(Seabrook, April) (Entered: 12/17/2019)
2020-02-06	19	Memorandum in opposition to re 18 MOTION for Summary Judgment Cross filed by CALIFORNIA AIR RESOURCES BOARD. (Attachments: # 1 Statement of Facts Responsive, # 2 Text of Proposed Order, # 3 Declaration Supplemental)(Hoffman, Ryan) (Entered: 02/06/2020)
2020-02-06	20	REPLY to opposition to motion re 10 MOTION for Summary Judgment filed by CALIFORNIA AIR RESOURCES BOARD. (Attachments: # 1 Statement of Facts Responsive, # 2 Text of Proposed Order, # 3 Declaration Supplemental)(Hoffman, Ryan) (Entered: 02/06/2020)
2020-03-04	21	MOTION for Leave to File Excess Pages by NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Seabrook, April) (Entered: 03/04/2020)
2020-03-04		MINUTE ORDER. The Court is in receipt of the Defendants' 21 Motion for Leave to Exceed Page Limit. Defendant requests that its Reply brief be allowed to span 37 pages. Plaintiff has taken no position on this Motion. Due to the number of issues that need to be addressed, as well as the need to respond to Plaintiff's allegations of bad faith, Defendants' Motion is GRANTED. Signed by Judge Colleen Kollar-Kotelly on 3-4-2020. (lcckk3) (Entered: 03/04/2020)
2020-03-09	22	REPLY to opposition to motion re 18 MOTION for Summary Judgment filed by NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Exhibit 4 - Second Schade Declaration, # 2 Exhibit 5 - Second Charmley Declaration, # 3 Exhibit 3 - Email of 7.15.2019)(Seabrook, April) (Entered: 03/09/2020)
2020-03-13	23	ERRATA Filing Revised Exhibits by NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 18 MOTION for Summary Judgment filed by NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Exhibit 1 - DiMarisco Decl. and Exhibits, # 2 Exhibit 2 - Schade Decl. and Exhibit)(Seabrook, April) (Entered: 03/13/2020)
2020-03-13	24	ERRATA Filing Revised Exhibits by NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 17 Memorandum in Opposition,, filed by NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Exhibit 1 - DiMarisco Decl. and Exhibits, # 2 Exhibit 2 - Schade Decl. and Exhibit)(Seabrook, April) (Entered: 03/13/2020)
2020-04-09	25	NOTICE of Development by CALIFORNIA AIR RESOURCES BOARD (Meckenstock, Margaret) (Entered: 04/09/2020)
2020-04-09		MINUTE ORDER. The Court is in receipt of Plaintiff's 25 Notice. The Court ORDERS Defendants to file a Response by no later than APRIL 22, 2020.. Signed by Judge Colleen Kollar-Kotelly on 4-9-2020. (lcckk3) (Entered: 04/09/2020)
2020-04-09		Set/Reset Deadlines: Defendants' Response due by 4/22/2020. (dot) (Entered: 04/09/2020)
2020-04-14	26	NOTICE of Appearance by Brian J. Field on behalf of All Defendants (Field, Brian) (Entered: 04/14/2020)
2020-04-15	27	Unopposed MOTION for Extension of Time to File Response to Plaintiff's Notice by NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Field, Brian). Added MOTION for Extension of Time to File Response/Reply on 4/16/2020 (ztd). (Entered: 04/15/2020)
2020-04-16		MINUTE ORDER. The Court is in receipt of Defendants' 27 Unopposed Motion for Extension of Time to File Response to Plaintiff's Notice. Defendant's response is currently due April 22, 2020. Defense counsel requests an extension because he has only recently been assigned to this case and has multiple other litigation deadlines pending. Defendants' Motion is GRANTED. Defendants' Response is due MAY 15, 2020. Signed by Judge Colleen Kollar-Kotelly on 4-16-2020. (lcckk3) (Entered: 04/16/2020)
2020-04-16		Set/Reset Deadlines: Defendants' Response due by 5/15/2020. (dot) (Entered: 04/17/2020)
2020-05-15	28	RESPONSE re 25 Notice (Other) filed by NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Field, Brian) (Entered: 05/15/2020)
2020-06-03	29	ORDER denying 10 Motion for Summary Judgment; granting 18 Motion for Summary Judgment. Signed by Judge Colleen Kollar-Kotelly on 6-3-2020. (lcckk3) (Entered: 06/03/2020)
2020-06-03	30	MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on 6-3-2020. (lcckk3) (Entered: 06/03/2020)
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