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Case TitleSURGEY v. ENVIRONMENTAL PROTECTION AGENCY
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2018cv00654
Date Filed2018-03-22
Date Closed2022-02-25
JudgeJudge Timothy J. Kelly
PlaintiffNICHOLAS SURGEY
Case DescriptionNicholas Surgey, an investigative reporter, submitted a FOIA request to the EPA for records concerning EPA Administrator Scott Pruitt's travel to and attendance at the 2018 Rose Bowl game. Surgey also requested a fee waiver. The agency acknowledged receipt of the request and told Surgey that responding would not incur any fees. After hearing nothing further from the agency, Surgey filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantENVIRONMENTAL PROTECTION AGENCY
DefendantENVIRONMENTAL PROTECTION AGENCY
1200 Pennsylvania Ave. NW
Washington, DC 20460
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [26]
FOIA Project Annotation: Judge Timothy Kelly has ruled that the EPA properly responded to investigative journalist Nicholas Surgey's FOIA request for records concerning former EPA administrator Scott Pruitt's family vacation trip to the 2018 Rose Bowl game. The agency's search located 400 pages of responsive records. The agency withheld 99 records in part and 54 records in full, including contact information of individual law enforcement officers, a Joint Special Threat Assessment for the 2018 Rose Bowl game, Protective Service Detail weekly scheduling documents, and Protective Service Detail travel itineraries or vouchers. Surgey contended that the agency had failed to conduct an adequate search and failed to justify its exemption claims. The EPA used keywords designed to focus on uncovering records related to Pruitt's trip, including the use of Sooners and Bulldogs, which were the mascot names of the University of Oklahoma and the University of Georgia. Surgey argued that the agency should have searched for records that related to what the Pruitt family did on its vacation. Kelly disagreed, noting that "'in complying with a FOIA request, an agency is not required to search for records which are beyond the scope of the original request.' And the EPA properly construed Surgey's request as limited to records related to the former Administrator's trip and attendance at the Rose Bowl game." Kelly pointed out that "the former Administrator and his family may have taken other tourist trips during their vacation, but [Surgey's] language [in his request] 'is very specific as to time, place, and event for which information is sought.' Indeed, the ask is only for records 'associated with' former Administrator Pruitt's 'travel to and attendance at' the Rose Bowl game. The repeated use of the word 'associated' in the explanatory sentences that follow " instructing the EPA to include records about 'any associated meetings or events' and 'any other associated costs' " continues to tie the information requested to the former Administrator's trip to Pasadena to attend the Rose Bowl game." Kelly explained that "put simply, Surgey's 'request was not broadly drawn; it made a specific inquiry about specific actions. The agency was bound to read it as drafted, not as either agency officials or [Surgey] might wish it was drafted.'" However, Kelly noted that "the EPA 'has failed to invoke the magic words concerning the adequacy of the search " namely, the assertion that [the EPA] searched all locations likely to contain responsive documents.'" He explained that "the Court will therefore reserve judgment on the adequacy of the EPA's search. Assuming the agency can provide a supplemental declaration showing that it searched all locations likely to contain responsive material, the Court will grant it summary judgment on the adequacy of the search." Surgey challenged the agency's broad use of Exemption 6 to withhold details about the Pruitt's family trip beyond their trip to the Rose Bowl game and Disneyland. While Kelly agreed that there was a substantial public interest in disclosure of the information, he found that further disclosure was unwarranted. He pointed out that "the information disclosed includes key locations where the family would be present on each day " in particular, the Rose Bowl or Disneyland " and the hotels at which they were staying. This should give Surgey all he needs to determine 'how agency resources were expended to cover travel expenses for the [Private Security Detail] on Mr. Pruitt's trip to California.' Any added value provided by knowing further details of where the former Administrator's family otherwise 'dined, stayed, or spent time' would be marginal at best." Kelly agreed with the EPA that it could properly withhold information concerning security staffing under Exemption 7(E) (investigative methods or techniques) or Exemption 7(F) (harm to any person). However, he indicated that "the record suggests that at times the EPA may be applying Exemption 7(E) and 7(F) to neither staffing nor logistical coordination information, like where the Protective Service Detail went or stayed during the family's trip. And the Court is inclined to agree with Surgey that such information would not create a reasonable risk of circumvention or endangerment, thereby preventing the application of Exemption 7(E) or 7(F. But on this record, the Court cannot say for sure that the agency is applying Exemption 7(E) or 7(F) to such information." Kelly ordered the EPA to supplement its affidavits to provide a better explanation of its exemption claims. He also agreed with Surgey that the agency's segregability obligations might well be affected by its ability to justify its exemption claims.
Issues: Adequacy - Search, Exemption 7 - Law enforcement records, Segregability
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-03-221COMPLAINT against ENVIRONMENTAL PROTECTION AGENCY ( Filing fee $ 400 receipt number 0090-5383892) filed by NICHOLAS SURGEY. (Attachments: # 1 Civil Cover Sheet, # 2 Summons to EPA, # 3 Summons to U.S. Attorney, # 4 Summons to Attorney General)(Llewellyn, Patrick) (Attachment 1 replaced on 3/26/2018) (jd) (Entered: 03/22/2018)
2018-03-22Case Assigned to Judge Timothy J. Kelly. (jd) (Entered: 03/26/2018)
2018-03-262SUMMONS (3) Issued Electronically as to ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General. (Attachment: # 1 Notice and Consent)(jd) (Entered: 03/26/2018)
2018-03-273RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/27/2018. Answer due for ALL FEDERAL DEFENDANTS by 4/26/2018. (Llewellyn, Patrick) (Entered: 03/27/2018)
2018-04-024NOTICE of Appearance by Michael T. Kirkpatrick on behalf of NICHOLAS SURGEY (Kirkpatrick, Michael) (Entered: 04/02/2018)
2018-04-055NOTICE of Appearance by Rhonda Lisa Campbell on behalf of ENVIRONMENTAL PROTECTION AGENCY (Campbell, Rhonda) (Entered: 04/05/2018)
2018-04-106NOTICE OF WITHDRAWAL OF APPEARANCE as to ENVIRONMENTAL PROTECTION AGENCY. Attorney Rhonda Lisa Campbell terminated. (Campbell, Rhonda) (Entered: 04/10/2018)
2018-04-257NOTICE OF SUBSTITUTION OF COUNSEL by Scott Leeson Sroka on behalf of All Defendants Substituting for attorney Rhonda Campbell (Sroka, Scott) (Entered: 04/25/2018)
2018-04-268ANSWER to Complaint by ENVIRONMENTAL PROTECTION AGENCY.(Sroka, Scott) (Entered: 04/26/2018)
2018-04-26MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall meet, confer, and file a joint proposed schedule for briefing or disclosure by May 10, 2018. Signed by Judge Timothy J. Kelly on 4/26/2018. (lctjk1) (Entered: 04/26/2018)
2018-04-27Set/Reset Deadlines: Proposed Briefing Schedule or disclosure due by 5/10/2018. (kh) (Entered: 04/27/2018)
2018-05-109Joint STATUS REPORT by ENVIRONMENTAL PROTECTION AGENCY. (Sroka, Scott) (Entered: 05/10/2018)
2018-05-10MINUTE ORDER: In light of the parties' 9 Joint Status Report, it is hereby ORDERED that the parties shall file a further Joint Status Report by June 29, 2018. Signed by Judge Timothy J. Kelly on 5/10/2018. (lctjk1) (Entered: 05/10/2018)
2018-05-11Set/Reset Deadlines: Joint Status Report due by 6/29/2018. (kh) (Entered: 05/11/2018)
2018-06-2810Joint STATUS REPORT by ENVIRONMENTAL PROTECTION AGENCY. (Sroka, Scott) (Entered: 06/28/2018)
2018-07-03MINUTE ORDER: In light of the parties' 10 Joint Status Report, it is hereby ORDERED that the parties shall file a further Joint Status Report by July 27, 2018. Signed by Judge Timothy J. Kelly on 7/3/2018. (lctjk1) (Entered: 07/03/2018)
2018-07-2711Joint STATUS REPORT by NICHOLAS SURGEY. (Attachments: # 1 Text of Proposed Order)(Llewellyn, Patrick) (Entered: 07/27/2018)
2018-07-30MINUTE ORDER: In light of the parties' 11 Joint Status Report, it is hereby ORDERED that the following schedule will govern further proceedings: (1) Defendant shall file its motion for summary judgment and Vaughn index by August 27, 2018; (2) Plaintiff shall file his opposition to Defendant's motion and cross-motion by September 24, 2018; (3) Defendant shall file its opposition to Plaintiff's cross-motion and reply in support of its motion by October 15, 2018; and (4) Plaintiff shall file his reply in support of his cross-motion by November 5, 2018. Signed by Judge Timothy J. Kelly on 7/30/2018. (lctjk1) (Entered: 07/30/2018)
2018-08-2412Consent MOTION for Extension of Time to File Motion for Summary Judgment by ENVIRONMENTAL PROTECTION AGENCY (Sroka, Scott). Added MOTION to Modify on 8/27/2018 (tth). (Entered: 08/24/2018)
2018-08-27MINUTE ORDER granting Defendant's 12 Consent Motion for Enlargement of Time and Modification of Briefing Schedule. It is hereby ORDERED that the following schedule will govern further proceedings: (1) Defendant shall file its motion for summary judgment and Vaughn index by September 10, 2018; (2) Plaintiff shall file his opposition to Defendant's motion and cross-motion by October 8, 2018; (3) Defendant shall file its opposition to Plaintiff's cross-motion and reply in support of its motion by October 29, 2018; and (4) Plaintiff shall file his reply in support of his cross-motion by November 19, 2018. Signed by Judge Timothy J. Kelly on 8/27/2018. (lctjk1) (Entered: 08/27/2018)
2018-08-27Set/Reset Deadlines: Summary Judgment Motion and Vaughn Index due by 9/10/2018. Response to Motion for Summary Judgment due by 10/8/2018. Reply to Motion for Summary Judgment due by 10/29/2018. (kh) (Entered: 08/27/2018)
2018-09-1013MOTION for Summary Judgment and Supporting Memorandum by ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Statement of Facts and Order, # 2 Declaration of Elizabeth White, # 3 Declaration of Thomas Seaton, # 4 Exhibit, # 5 Exhibit Vaughn Index)(Sroka, Scott) (Entered: 09/10/2018)
2018-10-0414Unopposed MOTION to Stay Summary Judgment Briefing by NICHOLAS SURGEY (Attachments: # 1 Text of Proposed Order)(Llewellyn, Patrick) (Entered: 10/04/2018)
2018-10-10MINUTE ORDER granting Plaintiff's 14 Unopposed Motion to Stay Summary Judgment Briefing. It is hereby ORDERED, for good cause shown and nunc pro tunc to October 4, 2018, that this case is STAYED until further order of the Court. Pursuant to the parties' request, they shall file a joint status report on October 19, 2018. Signed by Judge Timothy J. Kelly on 10/10/2018. (lctjk1) (Entered: 10/10/2018)
2018-10-1915Joint STATUS REPORT by NICHOLAS SURGEY. (Attachments: # 1 Text of Proposed Order)(Llewellyn, Patrick) (Entered: 10/19/2018)
2018-10-19MINUTE ORDER. In light of the parties 15 Joint Status Report, it is hereby ORDERED that the stay is LIFTED and that the following schedule will govern further proceedings: Plaintiff shall file his combined cross-motion for summary judgment and opposition to Defendant's motion for summary judgment by November 9, 2018; Defendant shall file its combined reply in support of its motion for summary judgment and opposition to Plaintiff's cross-motion by November 30, 2018; and Plaintiff shall file his reply in support of his cross-motion by December 21, 2018. Signed by Judge Timothy J. Kelly on 10/19/2018. (lctjk1) (Entered: 10/19/2018)
2018-10-22Set/Reset Deadlines: Defendant's opposition to Plaintiff's cross-motion due by 11/30/2018. (kh) (Entered: 10/22/2018)
2018-11-0916Cross MOTION for Summary Judgment by NICHOLAS SURGEY (Attachments: # 1 Declaration of Nicholas Surgey, # 2 Declaration of Patrick D. Llewellyn, # 3 Text of Proposed Order)(Llewellyn, Patrick) (Entered: 11/09/2018)
2018-11-0917Memorandum in opposition to re 13 MOTION for Summary Judgment and Supporting Memorandum filed by NICHOLAS SURGEY. (Attachments: # 1 Declaration of Nicholas Surgey, # 2 Declaration of Patrick D. Llewellyn, # 3 Text of Proposed Order)(Llewellyn, Patrick) (Entered: 11/09/2018)
2018-11-3018MOTION for Extension of Time to File Response/Reply as to 16 Cross MOTION for Summary Judgment by ENVIRONMENTAL PROTECTION AGENCY (Sroka, Scott) (Entered: 11/30/2018)
2018-11-3019Memorandum in opposition to re 18 MOTION for Extension of Time to File Response/Reply as to 16 Cross MOTION for Summary Judgment filed by NICHOLAS SURGEY. (Attachments: # 1 Text of Proposed Order)(Llewellyn, Patrick) (Entered: 11/30/2018)
2018-12-04MINUTE ORDER granting Defendant's 18 Motion for Extension of Time, nunc pro tunc to November 30, 2018 and for good cause shown. It is hereby ORDERED that the following schedule will govern further proceedings: Defendant shall file its opposition to Plaintiff's cross-motion for summary judgment and reply in support of its motion for summary judgment by December 14, 2018 and Plaintiff shall file his reply in support of his cross-motion for summary judgment by January 4, 2019. Signed by Judge Timothy J. Kelly on 12/4/2018. (lctjk1) (Entered: 12/04/2018)
2018-12-04Set/Reset Deadlines: Defendant's Reply to Motion for Summary Judgment due by 12/14/2018. (kh) (Entered: 12/04/2018)
2018-12-0420MOTION for Extension of Time to File Response/Reply as to 16 Cross MOTION for Summary Judgment by NICHOLAS SURGEY (Attachments: # 1 Text of Proposed Order)(Llewellyn, Patrick) (Entered: 12/04/2018)
2018-12-04MINUTE ORDER granting, for good cause shown, Plaintiff's 20 Motion for Extension of Time. It is hereby ORDERED that Plaintiff shall file his reply in support of his cross-motion for summary judgment by January 11, 2019. Signed by Judge Timothy J. Kelly on 12/4/2018. (lctjk1) (Entered: 12/04/2018)
2018-12-1421Memorandum in opposition to re 16 Cross MOTION for Summary Judgment filed by ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Declaration Elizabeth White (Supp), # 2 Declaration Thomas Seaton (Supp), # 3 Exhibit C - Supplemental Vaughn Index, # 4 Exhibit D - Supplemental Production, # 5 Exhibit E - 11/28 Production)(Sroka, Scott) (Entered: 12/14/2018)
2018-12-1422REPLY to opposition to motion re 13 MOTION for Summary Judgment and Supporting Memorandum filed by ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Declaration of Elizabeth White (Supp), # 2 Declaration of Thomas Seaton (Supp), # 3 Exhibit C - Supplemental Vaughn Index, # 4 Exhibit D - Supplemental Production, # 5 Exhibit E - 11/28 Production)(Sroka, Scott) (Entered: 12/14/2018)
2019-01-1123REPLY to opposition to motion re 16 Cross MOTION for Summary Judgment filed by NICHOLAS SURGEY. (Llewellyn, Patrick) (Entered: 01/11/2019)
2020-02-1924NOTICE OF SUBSTITUTION OF COUNSEL by Jane M. Lyons on behalf of ENVIRONMENTAL PROTECTION AGENCY Substituting for attorney Scott Leeson Sroka (Lyons, Jane) (Entered: 02/19/2020)
2020-04-0225NOTICE OF WITHDRAWAL OF APPEARANCE as to NICHOLAS SURGEY. Attorney Patrick D. Llewellyn terminated. (Llewellyn, Patrick) (Entered: 04/02/2020)
2021-12-0326MEMORANDUM OPINION AND ORDER granting in part and denying without prejudice in part Defendant's 13 Motion for Summary Judgment, and denying in part and denying without prejudice in part Plaintiff's 16 Cross Motion for Summary Judgment. See Opinion and Order for details. Signed by Judge Timothy J. Kelly on 12/3/2021. (lctjk1) (Entered: 12/03/2021)
2022-01-0727Joint STATUS REPORT by ENVIRONMENTAL PROTECTION AGENCY. (Lyons, Jane) (Entered: 01/07/2022)
2022-01-10MINUTE ORDER: Upon consideration of the parties' 27 Joint Status Report, it is hereby ORDERED that the parties shall submit a further joint status report by February 7, 2022, unless a stipulation of dismissal is filed sooner. Signed by Judge Timothy J. Kelly on 1/10/2022. (lctjk1) (Entered: 01/10/2022)
2022-02-0428Joint STATUS REPORT by ENVIRONMENTAL PROTECTION AGENCY. (Lyons, Jane) (Entered: 02/04/2022)
2022-02-07MINUTE ORDER: Upon consideration of the parties' 28 Joint Status Report, it is hereby ORDERED that the parties shall submit a further joint status report by March 9, 2022, unless a stipulation of dismissal is filed sooner. Signed by Judge Timothy J. Kelly on 2/7/2022. (lctjk1) (Entered: 02/07/2022)
2022-02-2529STIPULATION of Dismissal (Joint and Voluntary) by ENVIRONMENTAL PROTECTION AGENCY. (Lyons, Jane) (Entered: 02/25/2022)
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