Case Detail

FOIA Project Annotation: Judge Henry Kennedy has ruled that the EPA properly withheld information about the methyl bromide stockpiles held by various companies under Exemption 4 (confidential business information). Aside from the Exemption 4 claim, EPA also indicated that two companies had filed reverse-FOIA suits to block disclosure and, as to those two companies, the agency has forbidden to disclose information because of a court order. The Natural Resources Defense Council argued that, even if the information was confidential business information, because it qualified as emissions data it was required to be made publicly available. But Kennedy rejected NRDC's broad interpretation of emissions, noting instead that "'emissions data' is defined narrowly to focus on information obtained from a source of emissions, not a producer of materials that will later contribute to emissions. Nor is there any reason to believe that the stockpiles of methyl bromide held by five companies are 'necessary to determine' the 'amount, frequency, concentration, or other characteristics' of methyl bromide emissions." Kennedy added that "the company-specific methyl bromide information is not 'emissions data' and therefore may be deemed 'confidential business information' and withheld from production." As to aggregate information, Kennedy pointed out that EPA was not claiming confidentiality but instead took the position that the two reverse-FOIA cases filed to block disclosure prevented the agency from releasing them at this point. Kennedy observed that "notwithstanding NRDC's protestations to the contrary, the court sees no inequity in affording companies an opportunity to protect what they believe to be confidential information." NRDC argued that the Supreme Court's decision in GTE Sylvania v. Consumers Union, 445 U.S. 375 (1980), in which the court ruled that one district court was prohibited from disclosing records under FOIA where a second district court had issued an injunction preventing their disclosure, supported its claim, but Kennedy indicated that the case actually supported the agency's position. He pointed out that "in the case at bar EPA has properly withheld production, despite its conclusion that the documents did not fall within Exemption 4, because it is complying with agency regulations that instruct EPA to await adjudication of the pending 'reverse FOIA' actions. The danger targeted by FOIA â€" namely the 'unjustified suppression of information' â€" is not implicated because the agency has not chosen to withhold information, but instead has been instructed to do so."
Issues: Exemption 4 - Competitive harm

Date Filed	Doc #	Docket Text
2004-08-02	1	COMPLAINT against MICHAEL LEAVITT, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Filing fee $ 150.) filed by NATURAL RESOURCES DEFENSE COUNCIL.(jf, ) (Entered: 08/09/2004)
2004-08-02		SUMMONS (4) Issued as to MICHAEL LEAVITT ; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 08/09/2004)
2004-08-02	2	LCvR 7.1 - CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by NATURAL RESOURCES DEFENSE COUNCIL (jf, ) (Entered: 08/09/2004)
2004-08-24	3	ATTORNEY APPEARANCE. (Johnson, Wyneva) (Entered: 08/24/2004)
2004-09-09	4	MOTION for Extension of Time to answer or respond to plaintiff's complaint by MICHAEL LEAVITT, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order)(Johnson, Wyneva) (Entered: 09/09/2004)
2004-09-13	5	RESPONSE to Defendant's Motion for Enlargement of Time 4 filed by NATURAL RESOURCES DEFENSE COUNCIL. (Attachments: # 1 Text of Proposed Order)(Colangelo, Aaron) Modified on 9/16/2004 (lc, ). (Entered: 09/13/2004)
2004-09-17		MINUTE ORDER granting in part and denying in part 4 Motion for Extension of Time to answer or respond to plaintiff's complaint. Defendants are granted until September 24, 2004, to answer or respond to plaintiff's complaint. (Kennedy, Henry) (Entered: 09/17/2004)
2004-09-20		Set Deadlines: Answer due by 9/24/2004. (rew, ) (Entered: 09/20/2004)
2004-09-24	6	MOTION to Dismiss, MOTION for Summary Judgment by MICHAEL LEAVITT, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Affidavit Declaration of Byron R. Brown w/ attachments# 2 Exhibit A- Ameribrom v. Leavitt and Hendrix and Dail, Inc. v. Leavitt Complaints# 3 Text of Proposed Order)(Johnson, Wyneva) (Entered: 09/24/2004)
2004-10-05	7	Cross MOTION for Summary Judgment by NATURAL RESOURCES DEFENSE COUNCIL. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Text of Proposed Order)(Colangelo, Aaron) (Entered: 10/05/2004)
2004-10-05	8	Memorandum in opposition to motion re 6 Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment, filed by NATURAL RESOURCES DEFENSE COUNCIL. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Text of Proposed Order)(Colangelo, Aaron) (Entered: 10/05/2004)
2004-10-12	9	NOTICE by NATURAL RESOURCES DEFENSE COUNCIL of Recent Events (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5)(Colangelo, Aaron) (Entered: 10/12/2004)
2004-10-19	10	MOTION for Extension of Time to File Response/Reply as to 7 Cross MOTION for Summary Judgment, 8 Memorandum in Opposition, by MICHAEL LEAVITT, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order)(Johnson, Wyneva) (Entered: 10/19/2004)
2004-10-20		Minute order granting 10 defendants' motion for enlargement of time. Defendants have up to and including October 22, 2004, to file an opposition to plaintiff's cross-motion for summary judgment and reply to plaintiff's opposition to defendants' motion to dismiss, or in the alternative, for summary judgment. Signed by Judge Henry H. Kennedy, Jr., on October 20, 2004. Official paperless order (FL, ) (Entered: 10/20/2004)
2004-10-21		Set/Reset Deadlines: Defendant's Opposition to Motion for Summary Judgment due by 10/22/2004. (rew, ) (Entered: 10/21/2004)
2004-10-22	11	Supplemental MOTION for Summary Judgment by MICHAEL LEAVITT, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Affidavit Declaration of Drusilla Hufford# 2 Text of Proposed Order)(Johnson, Wyneva) (Entered: 10/22/2004)
2004-10-22	12	Memorandum in opposition to motion re 7 Defendants' Opposition to Plaintiff's Cross-motion for Summary Judgment and Reply to Plaintiff's Opposition to Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment filed by MICHAEL LEAVITT, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Affidavit Declaration of Drusilla Hufford# 2 Text of Proposed Order)(Johnson, Wyneva) (Entered: 10/22/2004)
2004-10-22	13	REPLY to opposition to motion re 6 Defendants' Opposition to Plaintiff's Cross-motion for Summary Judgment and Reply to Plaintiff's Opposition to Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment filed by MICHAEL LEAVITT, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order Declaration of Drusilla Hufford# 2 Text of Proposed Order)(Johnson, Wyneva) (Entered: 10/22/2004)
2004-10-29	14	REPLY to opposition to motion re 7 Cross-Motion for Summary Judgment and Opposition to Defendants' Supplemental motion for Summary Judgment filed by NATURAL RESOURCES DEFENSE COUNCIL. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Colangelo, Aaron) (Entered: 10/29/2004)
2004-10-29	15	Memorandum in opposition to motion re 11 Reply to Defendants' Opposition to Plaintiff's Cross-Motion for Summary Judgment and Opposition to Defendants' Supplemental Motion for Summary Judgment filed by NATURAL RESOURCES DEFENSE COUNCIL. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Colangelo, Aaron) Modified on 11/4/2004 (ks, ). (Entered: 10/29/2004)
2004-11-10	16	REPLY to opposition to motion re 11 Defendants' Reply to Plaintiff's Opposition to Defendants' Supplementary Motion for Summary Judgment filed by MICHAEL LEAVITT, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Johnson, Wyneva) (Entered: 11/10/2004)
2004-11-15	17	NOTICE of Recent Events by NATURAL RESOURCES DEFENSE COUNCIL (Attachments: # 1 Exhibit 1)(Colangelo, Aaron) (Entered: 11/15/2004)
2005-01-11	18	NOTICE of Recent Events by NATURAL RESOURCES DEFENSE COUNCIL (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Colangelo, Aaron) (Entered: 01/11/2005)
2005-02-10	19	NOTICE of Recent Events by NATURAL RESOURCES DEFENSE COUNCIL (Attachments: # 1 Exhibit)(Colangelo, Aaron) (Entered: 02/10/2005)
2006-03-14	20	Memorandum Opinion and Order. Signed by Judge Henry H. Kennedy, Jr., on March 14, 2006. (FL, ) (Entered: 03/14/2006)
2006-03-22	21	NOTICE of Filing by MICHAEL LEAVITT, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY re 20 Memorandum & Opinion (Johnson, Wyneva) (Entered: 03/22/2006)
2008-01-22	22	MEMORANDUM OPINION granting 11 EPA's supplemental motion for summary judgment. Signed by Judge Henry H. Kennedy, Jr. on January 22, 2008. (NP) (Entered: 01/22/2008)
2008-01-22	23	JUDGMENT entered in favor of defendants. Signed by Judge Henry H. Kennedy, Jr. on January 22, 2008. (NP) (Entered: 01/22/2008)
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