Cause of Action Inst. v. Nat'l Oceanic & Atmospheric Admin.

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CAUSE OF ACTION INSTITUTE, Plaintiff, v. NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, Defendant.

Civil Action No. 19-1927 (TSC)

United States District Court, District of Columbia

May 24, 2023

MEMORANDUM OPINION

TANYA S. CHUTKAN, UNITED STATES DISTRICT JUDGE

Plaintiff Cause of Action Institute has sued Defendant National Oceanic and Atmospheric Administration (“NOAA”) under the Freedom of Information Act (“FOIA”), challenging the adequacy of NOAA's search for documents responsive to Plaintiff's FOIA request. The parties have cross-moved for summary judgment. For the reasons that follow, the court will GRANT Plaintiff's Motion for Summary Judgment, ECF No. 30, and DENY Defendant's Motion for Summary Judgment ECF No. 29. The court will also DENY as moot Plaintiff's Motion for Oral Hearing on the pending cross-motions, ECF No 40.

I. BACKGROUND

A. Agency structure and procedures

The Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq., authorizes the Secretary of Commerce to manage domestic marine fisheries. In turn, the Secretary has delegated that authority to the National Marine Fisheries Service (the “Service”), an office within NOAA. 16 U.S.C. §§ 1852, 1853. The Service supervises the work of eight Regional Fishery Management Councils (“Councils”), id. § 1852(a)(1), whose primary duty is to develop management plans for fisheries within their geographic area, id. §§ 1852(h)(1), 1853(c), which the Service reviews and-with the Secretary's approval-promulgates, id. § 1852(b).

Each Council comprises voting members, nonvoting members, and administrative employees. See 16 U.S.C. § 1852(b), (c), (f). Voting members include each constituent state's head of fishery management, the Service's regional director, and individuals appointed because of their knowledge or experience in fishery management. Id. § 1852(b). Appointed voting members “who are not employed by the Federal Government or any State or local government” receive monetary compensation for time “engaged in the actual performance of duties for [their] Council.” Id. § 1852(d). Non-voting members include the regional or area director of the U.S. Fish and Wildlife Service, the Commander of the Coast Guard for the relevant geographical area, the Executive Director of the Marine Fisheries Commission for the relevant geographical area, and a representative from the Department of State. Id. § 1852(c)(1). Both voting and non-voting members are entitled to reimbursement “for actual expenses incurred” in performing their official duties. Id. § 1852(d). Administrative employees are staff, including an executive director, who are appointed as necessary to assist the Council in performing its functions. Id. § 1852(f).

This case involves the New England Fishery Management Council (“NE Council”), which has jurisdiction over the Atlantic Ocean seaward of the coastal waters of Maine, New Hampshire, Massachusetts, Connecticut, and Rhode Island. 16 U.S.C. § 1852(a)(1)(A). NE Council members periodically convene official, public meetings to deliberate and propose fishery management plans or amendments. Id. § 1852(i). They also use email and other forms of electronic communication to discuss substantive matters related to that official business. Def.'s Reply to Pl.'s SUMF ¶ 31, ECF No. 33-1; see E. Goethel Decl. ¶¶ 10-12, ECF No. 30 (“My colleagues and I used our personal email accounts . . . to conduct substantive work.”); D. Goethel Decl. ¶¶ 9-10, ECF No. 30-6 (“Council members used email extensively for official business.”). The NE Council provides official email accounts to its administrative employees, but not to its council members (whether voting or non-voting). Def.'s Reply to Pl.'s SUMF ¶ 30.

B. Plaintiff's FOIA request

The subject matter of Plaintiff's FOIA request is the New England Industry-Funded Monitoring Omnibus Amendment (“Omnibus Amendment”). In short, the Omnibus amendment “establishe[d] a process to standardize future industry-funded monitoring programs . . . and establishe[d] industry-funded monitoring in the Atlantic herring fishery.” See Compl. Ex. 1 at 1, ECF No. 1-1. The NE Council, in coordination with the Service, sought approval for the Omnibus Amendment in September 2018. Def.'s Reply to Pl.'s SUMF ¶¶ 33-34; see Mulvey Decl. ¶¶ 26-30, ECF No. 30-4. On December 18, 2018, NOAA Regional Administrator Michael Pentony advised the NE Council by letter that the Secretary of Commerce had approved the Omnibus Amendment. Compl. Ex. 1.

On January 7, 2019, Plaintiff submitted a FOIA request to NOAA seeking various documents pertaining to the Omnibus Amendment “for the time period of September 19, 2018 to the present.” Compl. Ex. 2 at 1, ECF No. 1-2. That request included “[a]ll correspondence (including e-mail, text/instant messages, etc.) between and amongst members and/or staff of the New England Fishery Management Council concerning the final approval of the Omnibus Amendment and/or the December 18, 2018 letter from Administrator Pentony.” Id. at 2.

On February 4, 2019, NE Council Executive Director Tom Nies wrote to the Council's members and staff, apprising them of the FOIA request and asking them to reply “with a response that either provides relevant documents or states that you do not have any.” Mulvey Decl. Ex. 7 at 1, ECF No. 30-4 (emphasis omitted). Nies emphasized that “Council members should note the request for emails and/or texts that may have been sent between Council members.” Id. He also referred members to the “attached policy directive,” which would “explain[] when such documents are federal records and must be provided.” Id. Specifically, he quoted a passage from the directive stating that “[a] document written or received by an individual Council member also reflects Council business if it relates to a matter within the Council's jurisdiction and the document is specifically discussed or disseminated at a Council meeting.” Id.

The “policy directive” attached to Nies's email was the “NMFS POLICY DIRECTIVE ANNEX, PDS 30-125-ANNEX-A” issued by the Service on February 19, 2013. Mulvey Decl. Ex. 1 at 1, ECF No. 30-4 (“Annex”). That Annex is intended to “identif[y] what Regional Fishery Management Council (Council) member documents are considered agency records and describe[] their handling.” Id. It cites the Federal Records Act for the requirement that agencies “preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency.” Id. (quoting 44 U.S.C. § 3101). Accordingly, “[d]ocuments written or received by Council members are agency records that are subject to the Federal Records Act if they reflect official Council business”-that is, “business of the Council as a full body”:

For example, a comment or views letter signed by the Council chair on behalf of the entire Council reflects Council business. Similarly, a letter submitted to the chair as the principal representative of the Council reflects Council business.... A document written or received by an individual Council member also reflects Council business if it relates to a matter within the Council's jurisdiction and the document is specifically discussed or disseminated at a Council meeting (including committee meetings, planning meetings, etc.).

Id. Official Council business, however, “does not include documents that reflect personal or private business matters of members, or matters related to their other employment.” Id.

Documents reflecting official Council business “must be collected by the Council staff and maintained in the Council's record-keeping system.” Id.

Based on its initial search for documents, Defendant made two interim releases of responsive records, in March and June 2019. Def.'s Reply to Pl.'s SUMF ¶ 38; Mulvey Decl. ¶¶ 37-38. Plaintiff filed this suit in June 2019. Def.'s Reply to Pl.'s SUMF ¶ 39 (citing Compl.) In July 2019, Defendant provided its final release with some additional responsive records. Id. ¶ 40. In January 2020, Defendant informed Plaintiff that it had searched “for what NOAA considers to be agency records,” “[i]n accordance with” the Annex. Id. ¶¶ 41-42 (citing Mulvey Decl. Ex. 6, ECF No. 30-4). Defendant also provided Plaintiff with a copy of the Nies email regarding the search. Mulvey Decl. ¶ 43. Plaintiff responded that it believed the search had been inadequate. See Def.'s Reply to Pl.'s SUMF ¶ 45. Defendant agreed to conduct a supplemental search, including a date range and certain keywords, which ultimately produced several additional disclosures. Id. ¶¶ 45-48. But Defendant continued to limit its search in accordance with the definition of agency records in the Annex-that is, it did not search for internal correspondence in NE Council members' personal accounts unless that correspondence was “specifically discussed or disseminated at a Council meeting” or otherwise “reflect[ed] official Council business.” Id. ¶ 47; Mulvey Decl. Ex. 1 at 1. The sole question for the court is whether that choice rendered Defendant's search for responsive records inadequate. Def.'s Reply to Pl.'s SUMF ¶ 49; see Proposed Briefing Schedule, ECF No. 28.

II. LEGAL STANDARD

“FOIA cases typically and appropriately are decided on motions for summary judgment.” Georgacarakos v. FBI, 908 F.Supp.2d 176, 180 (D.D.C. 2012) (quotation omitted). The district court conducts a de novo review of the government's decision to withhold requested documents under any of FOIA's specific statutory exemptions. 5 U.S.C. § 552(a)(4)(B). In cases concerning the adequacy of an agency's search efforts, summary judgment may be based solely on information provided in the agency's supporting declarations. See, e.g., ACLU v. U.S. Dep't of Def., ...