Husch Blackwell LLP v. U.S. Envtl. Prot. Agency

442 F.Supp.3d 114

HUSCH BLACKWELL LLP, Plaintiff,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant.

Case No. 18-cv-01213 (APM)

United States District Court, District of Columbia.

Signed February 12, 2020

Matthew Diehr, Catherine M. Dickenson, Pro Hac Vice, Husch Blackwell, LLP, St. Louis, MO, Natalie R. Holden, Husch Blackwell, LLP, Kansas City, MO, Kyle J. Gilster, Husch Blackwell, LLP, Washington, DC, for Plaintiff.

Paul Cirino, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Judge

This case centers on two dozen Freedom of Information Act ("FOIA") requests made by Plaintiff Husch Blackwell LLP to Defendant United States Environment Protection Agency ("EPA") for communications between certain EPA officials and certain individuals associated with either the International Agency for Research on Cancer ("IARC") or California's Office of Environmental Health Hazard Assessment ("OEHHA"). The sought-after communications concern (1) IARC's conclusion that the herbicide glyphosate was a probable carcinogen and (2) OEHHA's decision to list glyphosate under state Proposition 65 as a chemical known to cause cancer. Plaintiff challenges the adequacy of the EPA's search and its withholding of certain responsive records pursuant to two statutory exceptions. Both parties move for summary judgment.

I.

In October 2017, the EPA received twenty-seven separate but related FOIA requests from Plaintiff. Pl.'s Responses to Def.'s Statement of Undisp. Mat. Facts, ECF No. 29 [hereinafter Pl.'s Resp. to Facts], ¶ 1; see also Decl. of Earl Ingram, Jr., ECF No. 22-3 [hereinafter Ingram Decl.], ¶¶ 4–6. The requests fell into three categories. In the first category, consisting of twelve requests, each demand was titled "Certain Agency records re: Communications with [named person] related to [California's] Proposition 65 Listing of Glyphosate." Pl.'s Resp. to Facts ¶ 5; Ingram Decl. ¶ 4. Each request identified a different individual: Allan Hirsch, Carol J. Monahan Cummings, Dana Vogel, David Siegel, Jack Housenger, Jess Rowland, Kurt Straif, Michael Goodis, Neil Anderson, Richard Keigwin, Sam Delson, Susan Villa. See Pl.'s Resp. to Facts ¶¶ 5, 8. Six of those individuals—Jess Rowland, Richard Keigwin, Dana Vogel, Neil Anderson, Michael Goodis, and Jack Housenger—were identified as EPA personnel. Id. ¶ 12; see also Def.'s Mot., Ex. 2, ECF No. 22-5, at 3–6. The twelve requests in the first category were identical insofar as each asked for (1) all email correspondence to or from the named individual containing specified search terms, and (2) "all email, text, or IM correspondence" that contained search terms similar to those specified for the email search. Pl.'s Resp. to Facts ¶¶ 3–5. The defined time frame for the first category of records was from January 1, 2013, through October 31, 2015. Id. ¶ 5. The second category of requests, also twelve in number, was identical to the first, except it sought communications from January 1, 2015, through the present. Id. ¶¶ 6–8. The third category contained three requests for communications with an additional individual. Id. ¶ 9. The three requests in the final category are not at issue in this litigation. Id.

About a month after Plaintiffs made the requests, the parties began negotiating search parameters. See Def.'s Mot. for Summ. J., ECF No. 22, Ex. 3, ECF No. 22-6 [hereinafter Ex. 3]. Plaintiff proposed two condensed searches. Id. at 10. The EPA felt that two searches would "pick up the same emails twice," and suggested combining them into a single search. Id. at 8–9. After some additional back and forth, Plaintiff seemingly agreed to the proposed single search. In November 2017, the EPA identified the final search string that it would run, and it also advised that the "individuals that [Plaintiff] identified that are EPA personnel were submitted as Custodians and outside individuals were submitted" as part of the search string. Id. at 4. Plaintiff responded, "Thank you for getting this together" and said that it did not have any questions "at the moment." Id. at 3.

In December 2017, Defendant began reviewing the documents generated by the search. Ingram Decl. ¶ 20. The agency released some records in full, withheld some altogether, redacted others, and deemed some nonresponsive. Id. In March 2018, Plaintiff followed up on the status of its requested documents, and Defendant indicated that additional documents would be released in the next month. Id. ¶ 21. That same day, Plaintiff submitted a FOIA appeal. Id. ¶ 22. The appeal was granted, Def.'s Mot. for Summ. J., Ex. 5, ECF No. 22-8, and the EPA uploaded additional documents in May 2018, Ingram Decl. ¶¶ 23–24. The documents inadvertently were not released, however, and it was not until July 2018 that Plaintiff received access to the records. Id. ¶¶ 24–26. In April 2019, the agency made one last release of materials. Id. ¶ 28.

Before the agency's final disclosure, in May 2018, Plaintiff filed suit in this court. Compl., ECF No. 1. After a number of attempts to meet and confer, the parties remained unable to agree on the sufficiency of the production, see ECF Nos. 11, 12, 13, 14, 16, 17, and the court set a summary judgment briefing schedule, see December 27, 2018 Order, ECF No. 19. The parties filed cross-motions for summary judgment. See Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J., ECF No. 22-1 [hereinafter Def.'s Mot.]; P. & A. in Supp. of Pl.'s Cross-Mot. for Summ. J, ECF No. 26-1 [hereinafter Pl.'s Cross-Mot.]. As part of its briefing, the EPA prepared a Vaughn index detailing each withheld record. Def.'s Mot., Ex. 1, ECF No. 22-4 [hereinafter Vaughn Index]. Plaintiff argues that Defendant's search was deficient and that the agency improperly withheld documents pursuant to FOIA Exemptions 5 and 6, while Defendant contends that the search was sufficiently thorough, and all records were properly withheld or redacted.

II.

"[T]he vast majority of FOIA cases can be resolved on summary judgment." Brayton v. Office of the U.S. Trade Representative , 641 F.3d 521, 527 (D.C. Cir. 2011). A defendant agency in a FOIA case is entitled to summary judgment if it demonstrates that no material facts are in dispute, that it has conducted an "adequate search," and that all located responsive records have been produced to the plaintiff or are exempt from disclosure. See Students Against Genocide v. Dep't of State , 257 F.3d 828, 833, 840 (D.C. Cir. 2001). An "adequate search" is one that is "reasonably calculated to uncover all relevant documents." Oglesby v. U.S. Dep't of the Army , 920 F.2d 57, 68 (D.C. Cir. 1990). The agency bears the burden of proving that it performed such a search, and it may rely on sworn affidavits or declarations to do so. See SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991). The court may grant summary judgment to the agency based on this evidence if it is reasonably specific and contradicted by neither record evidence nor evidence of agency bad faith. See Military Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981) ; Beltranena v. Clinton , 770 F. Supp. 2d 175, 181–82 (D.D.C. 2011). A plaintiff can rebut an agency's supporting affidavits and declarations by demonstrating, with "specific facts," that there remains a genuine issue as to whether the agency performed an adequate search for documents responsive to the plaintiff's request. See Span v. U.S. Dep't of Justice , 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (quoting U.S. Dep't of Justice v. Tax Analysts , 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) ).

The agency also bears the burden of showing that it properly withheld materials pursuant to a statutory exemption. Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice , 746 F.3d 1082, 1088 (D.C. Cir. 2014). An agency may meet its burden "by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that the government has analyzed carefully any material withheld and provided sufficient information as to the applicability of an exemption to enable the adversary system to operate." Brennan Ctr. for Justice v. Dep't of State , 296 F. Supp. 3d 73, 80 (D.D.C. 2017).

If the agency's affidavits provide specific information sufficient to place the documents within the exemption category, if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents.

ACLU v. U.S. Dep't of Def. , 628 F.3d 612, 626 (D.C. Cir. 2011) (internal quotation marks omitted).

III.

Plaintiff first challenges the adequacy of the EPA's search. In Plaintiff's view, "[t]he EPA could not have reasonably believed that the search methods it used, including limiting the search to six agency individuals, would produce even a fraction of the requested responsive documents." Pl.'s Cross-Mot. at 9. Plaintiff points to other agency personnel whose inboxes likely contain responsive documents, including individuals identified in the produced documents. Id. Despite "overwhelming evidence demonstrating that EPA's initial search was woefully inadequate," Plaintiff argues, "EPA refused to do anything other than search the inboxes of six employees," and it should be required to do a broader and more thorough search with additional custodians. Id. at 9–10. At minimum, Plaintiff requests a search of "the inboxes of the additional individuals identified in the documents EPA produced." Id. at 10.

The court agrees with Plaintiff that the search was inadequate. As relevant here, Plaintiff made twenty-four related requests for records. Ingram Decl. ¶ 4–5. Each request followed a similar template, asking for "certain agency records re: Communications with" a particular individual relating to defined search terms. Id. In total, Plai...