Chelmowski v. United States

JAMES CHELMOWSKI, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.

Civil Action No. 17-1394 (JEB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 21, 2021

MEMORANDUM OPINION

Pro se Plaintiff James Chelmowski originally brought this suit under the Federal Tort Claims Act against the United States of America and several government agencies. After multiple revisions to his Complaint, Chelmowski currently alleges that the Environmental Protection Agency, the Federal Communication Commission, and the National Archives and Records Administration have failed to comply with sixteen of his Freedom of Information Act requests. Believing that it has upheld its obligations under FOIA, EPA now separately moves for partial summary judgment. Agreeing that judgment is warranted, the Court will grant the Motion.

I. Background

A. FOIA Requests

Chelmowski has made a total of sixteen FOIA requests in this case. The Court, however, need only deal here with the four that relate to the EPA, as the other twelve involve NARA and the FCC, which have filed their own joint Motion for Summary Judgment. See ECF No. 68 (FCC & NARA MSJ). The four requests are: Request EPA-HQ-2017-008255 (8255), Request EPA-HQ-2017-008256 (8256), Request EPA-HQ-2018-007041 (7041), and Request EPA-HQ-007088 (7088). See ECF No. 69-1 (Def. MSJ) at 2.

1. Request 8255

Chelmowski filed Request 8255 on June 9, 2017, seeking "communication records including internal and external emails, phone & meeting logs, notes, correspondence, etc." related to him from May 1, 2016, to June 9, 2017, as well as records related to: 1) two of his prior FOIA requests; 2) a federal case listed within the request as "Chelmowski v. FCC, No. 16 cv 5587 (N.D. Ill[.])"; and 3) "emails, notes, logs & correspondence" from certain EPA staff. See ECF No. 69-5 (Exhs. 1-10), Exh. 1 (Chelmowski Undated Email to EPA). On July 6, the EPA began its search, looking for any information to satisfy Chelmowski's inquiry. See ECF No. 69-2 (Def. Statement of Material Facts), ¶ 3.

On January 23, 2018, the agency released 21 documents in full and 20 in part, and it withheld one. See Def. Exh. 8 (1/23/18 Ltr. from Larry F. Gottesman to Chelmowski); ECF No. 69-3 (Declaration of Timothy R. Epp), ¶ 20. Later, after further review, 19 of those 20 partially redacted documents were released in full. See Epp Decl., ¶ 21. The one remaining partially redacted document contains a single private phone number that was withheld under Exemption 6 (privacy). Id. As for the sole document initially withheld in full, Chelmowski does not challenge the EPA's justification that it lacked custody of the document. Id., ¶ 20 n.3. The Court thus need not consider whether it was properly withheld.

2. Request 8256

Like Request 8255, Chelmowski filed Request 8256 on June 9, 2017. See SMF, ¶ 9. This time he sought all records from the EPA and other government agencies dated between September 1, 2015, and June 9, 2017, "related to [Chelmowski] the requester." Def. Exh. 9(Chelmowski Undated Email to EPA). On July 25, 2017, the EPA gave Chelmowski four pages of unredacted documents, see Epp Decl., ¶¶ 27-28, and informed him that it could not provide records for other agencies. See ECF No. 69-6 (Exhs. 11-20), Exh. 14 (7/25/17 Ltr. from Gottesman to Chelmowski).

Chelmowski filed an administrative appeal of this decision through FOIAonline, challenging the EPA's search and its decision not to process his request for FCC and NARA records. See Def. Exh. 15 (8/9/17 Appeal Submission Notification). That appeal was denied on May 8, 2018, as the EPA explained that it had conducted a reasonable search for Chelmowski's requested documents and, additionally, did not have access to the others. See Def. Exh. 17 (5/8/18 Ltr. from Kevin M. Miller to Chelmowski).

3. Request 7041

On April 25, 2018, Chelmowski made yet another request through FOIAonline for "all records from FOIAonline related to himself and certain, prior FOIA requests and appeals." SMF, ¶ 16; see also Def. Exh. 18 (Chelmowski FOIA Request). Those prior requests and appeals are not at issue here. See SMF, ¶ 16. The EPA otherwise addressed his request and located thirteen relevant records. Id., ¶ 17; see also Def. Exh. 19 (3/6/19 Email from Scott Albright to Chelmowski). Twelve of the thirteen records were released unredacted, and one record was released in part with some portions withheld under Exemption 5 (deliberative-process privilege). See SMF, ¶ 18; 3/6/19 Email from Albright to Chelmowski. After further review, the EPA decided to release the partially redacted document in full. See Epp Decl., ¶ 38.

4. Request 7088

On April 26, 2018, Chelmowski filed his final request at issue here through FOIAonline, Request 7088. See SMF, ¶ 21. In this request, he asked for all "EPA emails including emailbody, heading, metadata, email attachments, etc." that may have any relation to him since January 1, 2014. See ECF No. 69-7 (Exhs. 21-30) at Exh. 21 (4/26/18 FOIA Request Confirmation). The EPA informed Chelmowski that his request was not specific enough and that it needed further clarification. See Def. Exh. 22 (5/8/18 Ltr. from Gottesman to Chelmowski). In response, Chelmowski declined to provide any clarification and, instead, "challeng[ed]" the EPA's "determination that his FOIA request did not reasonably describe the records sought." SMF, ¶¶ 22-25; see also Def. Exh. 23 (5/9/18 Email from Chelmowski to EPA Officials).

Despite Chelmowski's lack of assistance, the EPA conducted a search and released to him 1,287 records in full and 476 records in part while withholding 149 records in full. See SMF, ¶ 32; see also Epp Decl., ¶ 54. All records withheld in full or in part were done so via either Exemption 5 (deliberative-process, attorney-client, and work-product privilege) or Exemption 6 (privacy). See SMF, ¶ 32.

B. Procedural Background

On July 13, 2017, Chelmowski filed a Complaint for damages under the FTCA against the FCC for "omissions, negligence, violations of law, regulations[,] . . . tortuous [sic] action[,] and the FCC's active or fraudulent concealment of its role in . . . injury and financial damages" against him. See ECF No. 1 (Compl.), ¶ 1. On September 21, he amended that Complaint to add the EPA and NARA as Defendants and to better flesh out his FOIA claims, hints of which were in his original Complaint. See ECF No. 6 (Amended Compl.), ¶ 1; see also Compl., ¶¶ 36-38, 44-45, 47-49, 52-57, 60-68, 75.

The Government then moved to dismiss the Amended Complaint on December 29. See ECF No. 12 (Mot. to Dismiss). Chelmowski responded by requesting leave to file a SecondAmended Complaint on February 27, 2018. See ECF No. 18-1 (2d Amended Compl.). The Court denied without prejudice that effort to once again amend his pleading and provided him "an opportunity to present a streamlined new Complaint that clearly sets forth his causes of action." ECF No. 24 (5/15/18 Order) at 1. Several months later, Chelmowski filed his latest Complaint. See ECF No. 35 (Renewed 2d Amended Compl.). The third time's the charm, and this Court, after generously interpreting his pleading, allowed Chelmowski to proceed with his FOIA and Privacy Act claims only. See ECF No. 36 (9/13/18 Mem. Op. & Order) at 4.

The Government now moves for summary judgment to resolve Plaintiff's FOIA claims involving the EPA only. It separately seeks summary judgment as to the FCC and NARA, which the Court will address in an accompanying Opinion. Chelmowski both opposes EPA's Motion and also seeks limited discovery under Federal Rule of Civil Procedure 56(d). See ECF No. 91 (Pl. Response). The Court will consider both positions.

II. Legal Standard

Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is "material" if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion" by "citing to particular parts of materials in the record" or "showing that the materials cited do not establish the absence or presence of a genuine dispute,or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Off. of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they "describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted). Such affidavits or declarations "are accorded a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). "Unlike the review of other agency action that must be upheld if supported by substantial...