Landmark Legal Foundation v. Environmental Protection Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
LANDMARK LEGAL FOUNDATION, )
)
Plaintiff, )
)
v. ) Civil Case No. 12-1726
)
ENVIRONMENTAL PROTECTION )
AGENCY, )
)
Defendant. )
)

MEMORANDUM OPINION

The Environmental Protection Agency (“EPA”) has moved for summary judgment as to

the Landmark Legal Foundation’s (“Landmark”) Freedom of Information Act (“FOIA”) claim.

See Def.’s Mot., ECF No. 30. Landmark opposes the motion and seeks limited discovery

regarding the adequacy of EPA’s search for documents responsive to its FOIA request. The

Court will deny EPA’s motion, and will grant Landmark’s request for limited discovery.

I. BACKGROUND 1

A. Landmark’s FOIA Request

“On August 17, 2012, Landmark, a ‘national public interest law firm,’ submitted a FOIA

request to the EPA requesting records regarding any EPA rule or regulation for which public

notice has not been made, but which was contemplated or under consideration for public notice

between January 1, 2012 and August 17, 2012.” Landmark Legal Found. v. EPA, 910 F. Supp.

2d 270, 272 (D.D.C. 2012) (citations omitted). Specifically, Landmark asked EPA to disclose

1
Additional background for this case is provided in this Court’s previous opinion, Landmark Legal Found. v. EPA,
910 F. Supp. 2d 270, 272-74 (D.D.C. 2012).
 1. Any and all records identifying the names of individual, groups and/or
organizations outside the EPA with which the EPA, EPA employees, EPA
contractors and/or EPA consultants have had communications of any kind
relating to all proposed rules or regulations that have not been finalized by the
EPA between January 1, 2012 and August 17, 2012. . . .

2. Any and all records indicating an order, direction or suggestion that the
issuance of regulations, the announcements of regulations and/or public
comment of regulations should be slowed or delayed until after November
2012 or the presidential elections of 2012.

Letter from Mark R. Levin, President, Landmark Legal Found., to Nat’l Freedom of Info.

Officer, U.S. Envtl. Prot. Agency 2 [hereinafter “Pl.’s FOIA Request”], Aug. 17, 2012, Def.’s

Ex. A, ECF No. 30-2. “The genesis of the FOIA request was Landmark’s suspicion, based on

news reports, that the EPA may have intentionally delayed a ‘controversial’ regulation until after

the November 2012 presidential election.” Landmark Legal Found., 910 F. Supp. 2d at 272–73.

This concern appears on the face of Landmark’s FOIA request, which asserts the possibility that

“the Obama Administration is improperly politicizing EPA activities, EPA officials are

attempting to shield their true policy goals from the public, and/or EPA officials themselves are

putting partisan interests above the public welfare.” Pl.’s FOIA Request 1.

B. Landmark’s Agreement To Narrow the Scope of the Request

Following some discussion between the parties, 2 the EPA’s Office of the Executive

Secretariat 3 sent an email to Landmark’s Assistant General Counsel which included the

following query: “In order to make this request more manageable, would you consider narrowing

2
Landmark’s Assistant General Counsel, Matthew Forys, states that, prior to the e-mail exchange detailed in the text
above, he “received a telephone call from . . . Jonathan V. Newton . . . from the EPA’s Office of the Executive
Secretariat” who “wanted to discuss [the] FOIA request because the EPA believed it was overly broad.” Decl.
Matthew Forys ¶ 3, ECF No. 31-1. During the conversation, Mr. Forys states that he told Mr. Newton that
“generally Landmark was interested in outside pressure on the EPA from the White House or other agency to delay
regulations.” Id. Mr. Forys also details an additional phone conversation that preceded the e-mail exchange. Id. ¶
4. Eric E. Wachter, director of the EPA’s Office of the Executive Secretariat confirms that at least one such
conversation occurred. Wachter Decl. ¶¶ 8-9.
3
The Office of the Executive Secretariat processes FOIA requests for the Office of the Administrator and
coordinates many requests for the entire agency. Wachter Decl. ¶¶ 2-3.

2
the search to senior officials in EPA HQ (ie., Program Administrators, Deputy Administrators

and Chiefs of Staff)?” Email from Jonathan Newton (EPA) to Matthew C. Forys (Landmark),

Oct. 5, 2012, Pl.’s Ex. A, ECF No. 31-1. Landmark’s response stated that it “will agree to limit

the scope of the search to senior officials in EPA HQ with the understanding that Landmark does

not waive the right to expand the scope to the original request if warranted by responsive

records.” Email from Matthew C. Forys (Landmark) to Jonathan Newton (EPA), Oct. 5, 2012,

Pl.’s Ex. A, ECF No. 31-1.

EPA appears to be inconsistent as to whether it understood the term “senior officials” in

this narrowing agreement to exclude the Administrator and/or other top leaders in the agency

from the scope of the FOIA request. EPA’s opening brief asserts that both parties “agreed to

narrow the scope of the request to ‘senior officials’ in each of the EPA’s headquarters offices,

with ‘senior officials’ being identified as Program Administrators, Deputy Administrators and

Chiefs of Staff in EPA’s headquarters offices as well as the Associate Administrator and Deputy

Associate Administrator in EPA’s Office of Policy.” Def.’s Mem. 4–5. This statement seems to

suggest that the EPA interpreted the FOIA request as excluding the Administrator. The initial

declaration of Eric Wachter, the director of the EPA’s Office of the Executive Secretariat, seems

to confirm this interpretation. Wachter Decl. ¶¶ 9 & 11, ECF No. 30-1 (“This request was

narrowed by agreement . . . to assistant administrators, deputy assistant administrators, and chiefs

of staff in EPA headquarters offices, as well as to the associate administrator and deputy

associate administrator in EPA’s Office of Policy.”). But in subsequent filings, EPA states that it

“does not assert that Landmark agreed to limit the scope of the FOIA request to assistant

administrators, deputy assistant administrators, and chiefs of staff in EPA headquarters offices as

well as to the associate administrator and deputy associate administrator in EPA’s Office of

3
Policy,” Def.’s Reply to Pl.’s Statement of Material Facts ¶ 1, ECF No. 35, and that it “has

always interpreted the narrowed scope of the request to include the Administrator, Deputy

Administrator, and Chief of Staff in the Office of the Administrator.” Def.’s Reply 4. A parallel

adjustment is also found in Mr. Wachter’s supplemental declaration, which states that his office

“interpreted the narrowed scope of this FOIA request to include the Administrator, Deputy

Administrator, and Chief of Staff in the Office of the Administrator,” who were “included under

the definition of ‘program administrators, deputy administrators, and Chiefs of Staff.’” Wachter

Supp. Decl. ¶ 9, ECF No. 35-7.

C. EPA’s Initial and “Final” Disclosures

Between February and April of 2013, EPA conducted a search for responsive documents

and made disclosures to Landmark, culminating in a “final” disclosure on April 12, 2013. Def.’s

Statement of Material Facts ¶ 15, ECF No. 30. This final disclosure included 1,134 pages in 123

documents released in full, 1,678 pages in 196 documents with redactions, and an index of

documents withheld under FOIA exemptions. Id. ¶ 15.

Again, EPA appears to be inconsistent as to when and how the FOIA request was

communicated to the Office of the Administrator, and provides limited details of what was

actually communicated. In his initial declaration, Mr. Wachter explains that his “office initiated

a search for records, as narrowed by agreement . . . by electronic mail” and that this “initial

search request went to the Office of the Administrator” on October 23, 2012. Wachter Decl. ¶

11; see also Def.’s Mem. 5. Mr. Wachter’s initial declaration states that this initial request for

records was sent to the designated FOIA coordinators for “each of the EPA’s headquarters

offices,” including the Office of the Administrator. Id. at 12. The email included the following:

“Note: This request has been modified. The search only applies to assistant administrators,

4
deputy assistant administrators and chiefs of staff in EPA headquarters.” Id. (emphases in

original). This instruction appears to indicate that the Administrator and Deputy Administrator

were outside of the scope of the request.

However, in a subsequent filing, the EPA states that this October 23 email was “not sent

to the office of the Administrator,” Def.’s Reply 6 (emphasis added); see also Wachter Supp.

Decl. ¶ 15, explaining that “the individual . . . who was responsible for sending the email was

also the designated FOIA Coordinator for the Office of the Administrator and is responsible for

coordinating searches for responsive records from [that office].” Def.’s Reply 6. As Mr.

Wachter explains in his supplemental declaration, this individual, Mr. Newton, “communicated

with staff in the Office of the Administrator regarding this FOIA request through a separate

email communication.” Wachter Supp. Decl. ¶ 15 (emphasis added); see also Def.’s Reply 6–7.

On November 14, several weeks after Mr. Newton sent the initial email to the FOIA coordinators

in other offices, he “sent an email to Aaron Dickerson and Nena Shaw in the Office of the

Administrator, forwarding the instructions that were sent to the FOIA coordinators for the other

program offices on October 23, 2012 . . . .” Wachter Supp. Decl. ¶ 17; see also Def.’s Reply 7.

Mr. Wachter also states that the email instructed the recipients to “search for records responsive

to the request from the email accounts of the Administrator and Deputy Administrator,

respectively . . . .” Wachter Supp. Decl. ¶ 17. EPA does not provide this email, and does not

provide any further details regarding the content of the November 14 message.

D. EPA’s Supplemental Search and Disclosures

Shortly after making this “final” disclosure, EPA apparently “determined that an

additional search for documents from the former Administrator, Deputy Administrator, and

Chief of Staff in the Office of the Administrator would be necessary to ensure a complete and

5
adequate production to Plaintiff.” Def.’s Statement ¶ 16. EPA explains this determination in

vague terms: “In the course of finalizing the materials for the Motion for Summary Judgment, it

was determined that the search for documents from the former Administrator, the Deputy

Administrator, and the Chief of Staff in the Office of the Administrator may have been

insufficient.” Def.’s Mem. 7. Mr. Wachter’s declaration explains the reversal in similarly vague

terms: “In the course of finalizing the materials for [the summary judgment motion] my office

determined that the search for documents from the former Administrator, the Deputy

Administrator, and the Chief of Staff in the Office of the Administrator may have been

insufficient.” Wachter Decl. ¶ 19 (emphasis added).

As a result of this additional search, on May 15, 2013, EPA disclosed 800 additional

pages in 101 additional documents in full, and roughly 1,400 additional pages in 181 additional

documents with redactions. Def.’s Statement ¶¶ 16–17. As Landmark notes, these newly

disclosed records “essentially doubled the number of records responsive to [the FOIA] request.”

Pl.’s Opp’n 7.

E. Non-Search of EPA Leaders’ Personal Email Accounts

Disclosed documents include emails sent between EPA accounts, including both the

primary and secondary accounts of the former Administrator, 4 as well as emails between EPA

4
EPA explains the use of “primary” and “secondary” email accounts:
Because the widespread use of email has become commonplace, EPA Administrators have been
assigned two email accounts: a primary account and a secondary account. The email address for
Administrator Jackson’s primary account was posted on EPA’s website and was used by hundreds
of thousands of Americans to send messages to the Administrator. This account was maintained
and monitored by staff, and the emails were processed as official correspondence as appropriate.
The secondary account was an everyday, working email account of the Administrator to
communicate with staff and other government officials. This secondary email account was used
for practical purposes. Given the large volume of emails sent to the primary account—more than
1.5 million in fiscal year 2012, for instance—the secondary email account was necessary for
effective management and communication between the Administrator and colleagues.

6
accounts and outside accounts, but not emails between the personal accounts of EPA leaders and

non-EPA accounts. See Def.’s Reply 9–12.

II. LEGAL STANDARD

A. Summary Judgment

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be

granted when “there is no genuine issue as to any material fact and . . . the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247 (1986).

B. The FOIA

The FOIA, 5 U.S.C. § 552, requires federal agencies to make certain records publicly

available. The FOIA also provides exemptions from the disclosure requirement which are to be

“narrowly construed.” FBI v. Abramson, 456 U.S. 615, 630 (1982). FOIA actions are typically

and appropriately resolved on summary judgment. See Brayton v. Office of the U.S. Trade

Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

C. Adequacy of Search Under the FOIA

To prevail on summary judgment in a FOIA action, a defending agency “must show

beyond material doubt that it has conducted a search reasonably calculated to uncover all

relevant documents.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007). “The question is

not whether there might exist any other documents possibly responsive to the request, but rather

. . . [T]he EPA searched this secondary account and provided responsive records from this
secondary account. [The Office of the Executive Secretariat] is aware of no other secondary EPA
email accounts of senior officials within the Agency during the time period of Plaintiff’s request.
Def.’s Reply 11. There was initially some dispute regarding the redaction of the secondary email address, but this
dispute was resolved when the EPA removed the redactions as part of their April 12, 2013 production. Def.’s Mem.
15. EPA explains that “Administrator Jackson’s departure from the Agency obviated the need to withhold the name
on her secondary email account.” Id.
The “secondary” email accounts issue is distinct from Landmark’s allegations regarding the use of private email
accounts.

7
whether the search for those documents was adequate.” Steinberg v. Dep’t of Justice, 23 F.3d

548, 551 (D.C. Cir. 1994) (internal quotations and citations omitted). “The court applies a

reasonableness test to determine the adequacy of a search methodology, consistent with

congressional intent tilting the scale in favor of disclosure.” Morley, 508 F.3d at 1114 (internal

quotations and citations omitted). This “reasonableness” inquiry is necessarily “dependent upon

the circumstances of the case.” Davis v. Dep’t of Justice, 460 F.3d 92, 103 (D.C. Cir. 2006)

(internal quotations and citations omitted).

The agency has the initial burden to demonstrate the adequacy of its search, which it may

meet by providing declarations or affidavits that are “relatively detailed[,] . . . nonconclusory and

submitted in good faith.” Weisberg v. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)

(internal quotations and citations omitted). These declarations are “accorded a presumption of

good faith which cannot be rebutted by purely speculative claims about the existence and

discoverability of other documents.” Negley v. FBI, 169 F. App’x 591, 594 (D.C. Cir. 2006)

(quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)). Summary

judgment is improper where “agency affidavits . . . do not provide information specific enough to

enable [the requester] to challenge the procedures utilized.” Weisberg, 627 F.2d at 371.

III. ANALYSIS

A. Genuine Issues of Material Fact Regarding the Adequacy of EPA’s Search
Preclude Summary Judgment

Landmark argues that there are numerous outstanding issues of material fact precluding

summary judgment as to the adequacy of EPA’s search for records responsive to its FOIA

request. The Court finds that two issues require factual development before it could find an

adequate search has been conducted.

8
 1. Exclusion of Possibly Relevant Personal Emails

EPA did not search the personal email accounts of the Administrator, the Deputy

Administrator, or the Chief of Staff. Landmark points to one disclosed record—an email

originating from the personal email account of then-Deputy Administrator Robert Perciasepe—

as evidence that upper-level EPA officials conducted official business from their personal email

accounts. 5 Pl.’s Opp’n 17. Landmark also points to several press reports and a Congressional

Investigation into whether EPA officials “regularly use private communication accounts to

conduct official government business” “reportedly in part to avoid FOIA obligations.” Pl.’s

Opp’n 18.

Landmark raised this issue with EPA in a meeting on March 21, 2013, Pl.’s Opp’n 17–

18, emphasized it again in their opposition brief, id., and again in the Surreply, Pl.’s Surreply 4,

ECF No. 36-1. EPA never addresses Landmark’s allegation that official business was being

conducted from the personal email accounts. Instead, it states only that it “searched for and

produced responsive documents from outside parties and accounts that were in its possession

and control.” See Def.’s Reply 13.

Landmark’s allegations regarding the “existence and discoverability of other documents”

are not “purely speculative,” and are therefore sufficient to rebut the presumption of good faith

that attaches to the agency’s declarations. See Negley, 169 F. App’x at 594 (quoting SafeCard,

926 F.2d at1200). The allegations are supported by one concrete example of a personal email

being used for official purposes, and made against the background of several similar allegations

raised in the media and by Congress. In response, EPA’s silence speaks volumes; its failure to

deny the allegations that personal accounts were being used to conduct official business leaves

5
The email was sent from Mr. Perciasepe’s personal email account to an official EPA account.

9
open the possibility that they were. Because any search in response to Landmark’s request that

left out these possibly key sources would not be “reasonably calculated to uncover all relevant

documents,” Morley, 508 F.3d at 1114, the Court finds that there is an outstanding issue of

material fact precluding summary judgment as to the adequacy of the EPA’s search.

2. Possible Deliberate Exclusion of the Administrator

The factual record before the Court also admits the possibility that the agency initially

sought to exclude the Administrator and/or others from the FOIA request. The record before the

Court provides a murky picture of how and when the FOIA request was communicated to the

Office of the Administrator. On the eve of filing a summary judgment motion, weeks after

issuing its purportedly “final” disclosures in this matter, EPA apparently determined that these

disclosures were inadequate, and subsequently disclosed additional records from the

Administrator, her deputy, and her chief of staff, which had not previously been searched, and

which roughly doubled the volume of total disclosures. Def.’s Statement ¶ 16. EPA provides no

explanation for this error, how it was caught, or by whom, much less any description of what led

to the error in the first instance.

One explanation, suggested by Landmark, is that the EPA initially interpreted

Landmark’s FOIA request as excluding the Administrator and possibly also the Deputy

Administrator and/or the Chief of Staff. Between its opening brief and its reply in this motion,

EPA appears to have changed its story both as to whether it initially interpreted Landmark’s

request in this fashion, compare Def.’s Mem. 4–5, and Wachter Decl. ¶¶ 9 & 11, with Def.’s

Reply to Pl.’s Statement of Material Facts ¶ 1, Def.’s Reply 4, and Wachter Supp. Decl. ¶ 9, as

well as to the nature and timing of its initial communication of the FOIA request to the

Administrator’s staff, Compare Def.’s Mem. 5, and Wachter Decl. ¶ 11, with Def.’s Reply 6, and

10
Wachter Supp. Decl. ¶ 15. Even in its revised account, EPA states that the later communication

of the FOIA request to the Administrator’s staff included the “instructions that were sent to the

FOIA coordinators for the other program offices on October 23, 2012 . . . ” Wachter Supp. Decl.

¶ 17, which the EPA has separately explained included instructions excluding the Administrator

and the Deputy Administrator. See Wachter Decl. ¶ 12 (quoting the following restrictive

language from the email: “The search only applies to assistant administrators, deputy assistant

administrators and chiefs of staff in EPA headquarters.”).

The record leaves open the possibility that, one way or another, the agency engaged in

bad faith conduct by excluding the top politically appointed leaders of the EPA from Landmark’s

FOIA request at least initially. Landmark’s Assistant General Counsel agreed to narrow the

search to “senior officials in EPA HQ” in response to EPA’s email which included the following

parenthetical after that term “(ie., Program Administrators, Deputy Administrators and Chiefs of

Staff).” See Emails between Jonathan Newton (EPA) and Matthew C. Forys (Landmark)

(emphasis added). Even if there were some textual ambiguity in this exchange as to whether

Landmark was thereby agreeing to exclude the Administrator from its FOIA request, the context

of Landmark’s FOIA request easily precludes such a reading. On the face of its FOIA request,

Landmark explains that it is interested in learning whether “the Obama Administration is

improperly politicizing EPA activities, EPA officials are attempting to shield their true policy

goals from the public, and/or EPA officials themselves are putting partisan interests above the

public welfare.” Pl.’s FOIA Request 1. Landmark also apparently raised similar points—

regarding its interest in uncovering possible political manipulation of the agency in an election

year—in a phone conversation with EPA that preceded and led to this email exchange. See

Forys Decl. ¶¶ 3–4; see also Wachter Decl. ¶¶ 8–9. In this context, no reasonable interpreter

11
could read Landmark’s email agreeing to narrow its request to “senior officials at EPA HQ” as

an agreement to exclude the Administrator—the top political appointee in the agency. 6 The

possibility that EPA engaged in such an apparently bad faith interpretation, raised by

Landmark’s allegations and supported by EPA’s inconsistent filings, precludes this Court from

entering summary judgment in their favor as to the adequacy of the search. Because the

agency’s briefings and affidavits “do not provide information specific enough to enable [the

requester] to challenge the procedures utilized,” summary judgment as to the adequacy of the

search is not justified. Weisberg, 627 F.2d at 371.

B. Limited Discovery is Warranted

Having found outstanding issues of material fact preventing summary judgment, the

Court must now determine the proper resolution. Landmark asks the Court to “order EPA to

submit to discovery in order to afford [it] the opportunity to determine the circumstances

surrounding EPA’s improper limitation of the scope of its search for responsive records—

including whether EPA employees have acted in bad faith; and to determine the actual scope of

EPA’s search for responsive records.” Pl.’s Opp’n 22; see also id. at 3 (“Landmark ought to be

allowed discovery in order to determine the scope of EPA’s record systems and the adequacy of

EPA’s fulfillment of its obligation to comply with its search obligations.”).

“Discovery is the exception, not the rule, in FOIA cases.” U.S. Dep’t of Justice, Guide to

the Freedom of Information Act 810 (2009 Ed.); see also Thomas v. FDA, 587 F. Supp. 2d 114,

115 (D.D.C. 2008) (Huvelle, J.) (noting that “discovery is an extraordinary procedure in a FOIA

action”). “Discovery in FOIA is rare and should be denied where an agency’s declarations are

reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute

remains.” Baker & Hostetler LLP v. Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006)
6
EPA all but concedes this point by apparently backing away from the argument.

12
(parenthetically quoting Schrecker v. Dep’t of Justice, 217 F. Supp. 2d 29, 35 (D.D.C. 2002)).

Where an agency’s declarations are insufficient to support a finding that its search was adequate,

courts “generally will request that an agency supplement its supporting declarations rather than

order discovery.” Wolf v. CIA, 569 F. Supp. 2d 1, 10 (D.D.C. 2008) (Leon, J.) (internal citations

and quotations omitted); see e.g., COMPTEL v. FCC, 910 F. Supp. 2d 100, 114 (D.D.C. 2012)

(Lamberth, C.J.) (finding agency declarations insufficient to demonstrate adequacy of the search,

and requiring it to submit a “revised declaration which more fully describes its search”).

“The major exception to this limited scope of discovery is when the plaintiff raises a

sufficient question as to the agency’s good faith in processing documents; in such instances,

discovery has been permitted.” U.S. Dep’t of Justice, Guide to the Freedom of Information Act

812 (2009 Ed.) (collecting cases); see, e.g., Citizens for Responsibility & Ethics in Washington v.

Dep’t of Justice, 05-cv-2078, 2006 WL 1518964 (D.D.C. June 1, 2006) (Sullivan, J.) (finding

discovery warranted in a FOIA action where the government had engaged in extreme delay); but

see Safecard, 926 F.2d at 1200 (noting that affidavits submitted by an agency are “accorded a

presumption of good faith, which cannot be rebutted by purely speculative claims”). For

instance, “when there is evidence of some wrongdoing such as . . . a material conflict in agency

affidavits, limited discovery has been allowed.” Citizens For Responsibility & Ethics in

Washington v. Nat’l Indian Gaming Comm’n, 467 F. Supp. 2d 40, 56 (D.D.C. 2006) (Collyer, J.)

(citing Long v. U.S. Dep’t of Justice, 10 F. Supp. 2d 205 (N.D.N.Y. 1998)).

In light of these principles, the Court finds that limited discovery is appropriate here. The

two outstanding issues of fact precluding summary judgment both point to issues that may

indicate bad faith on the part of the agency. The possibility that unsearched personal email

accounts may have been used for official business raises the possibility that leaders in the EPA

13
may have purposefully attempted to skirt disclosure under the FOIA. 7 The possibility that the

agency purposefully excluded the top leaders of the EPA from the search, at least initially,

suggests an unreasonable and bad faith reading of Landmark’s FOIA request and subsequent

agreement to narrow its scope. Moreover, as reviewed above, the EPA’s briefing and affidavits

on the facts and circumstances surrounding the second point contain numerous inconsistencies

and reversals which undermine confidence in their truthfulness.

Accordingly, Landmark shall conduct discovery which shall be limited to the following

issues:

1) Whether and to what extent the EPA Administrator, Deputy Administrator,
and/or Chief of Staff utilized personal email accounts to conduct official
business during the relevant time period.

2) Whether the EPA initially excluded the Administrator, Deputy Administrator,
and/or Chief of Staff from Landmark’s FOIA request. 8
7
The Court takes note of the further possibility, raised by Landmark, of “the potential spoliation of records that
should have been searched prior to [the former Administrator’s] departure, particularly those records that may have
been found on her personal electronic devices,” which may or may not be out of EPA’s reach now. Pl.’s Opp’n 16.
The possibility of spoliation is not without precedent. The EPA itself was previously found in contempt of this
Court for destruction of a previous Administrator’s computer hard drive in violation of an order. Landmark Legal
Found. v. EPA, 272 F. Supp. 2d 70 (D.D.C. 2003). Although the administrator was not personally liable, since no
one had told her about the order, the agency was. Id.
8
Landmark also argues that discovery is warranted to determine “whether sanctions pursuant to 5 U.S.C.
552(a)(4)(F) ought to be applied against any EPA employee.” Id.
Subsection 552(a)(4)(F) of the FOIA creates an internal agency disciplinary system, triggered by the issuance of a
“written finding” by courts, for agency personnel who act “arbitrarily or capriciously” in responding to a FOIA
request. The subsection provides:
Whenever the court orders the production of any agency records improperly withheld from the
complainant and assesses against the United States reasonable attorney fees and other litigation
costs, and issues a written finding that the circumstances surrounding the withholding raise
questions whether agency personnel acted arbitrarily or capriciously with respect to the
withholding, the Special Counsel shall promptly initiate a proceeding to determine whether
disciplinary action is warranted against the officer or employee who was primarily responsible for
the withholding. The Special Counsel, after investigation and consideration of the evidence
submitted, shall submit his findings and recommendations to the administrative authority of the
agency concerned and shall send copies of the findings and recommendations to the officer or
employee or his representative. The administrative authority shall take the corrective action that
the Special Counsel recommends.
5 U.S.C. 552(a)(4)(F). As the provision makes clear, such “written findings” may only be issued after a court has
both ordered the production of improperly withheld records and imposed attorneys’ fees against the United States.
Attorneys’ fees may be awarded in FOIA actions where the complainant has “substantially prevailed” by obtaining

14
 IV. CONCLUSION

EPA’s motion for summary judgment is DENIED. An Order shall issue with this

opinion.

Signed by Royce C. Lamberth, U.S. District Judge, on August 14, 2013.

relief through either “a judicial order, or an enforceable written agreement or consent decree” or “a voluntary or
unilateral change in position by the agency, if the complainant’s claim is not insubstantial.” 552(a)(4)(E).
Because the Court finds that discovery is warranted to address the adequacy of the search along the two fronts listed
above, it need not address whether discovery is separately warranted to pursue the possibility that an EPA agent
acted “arbitrarily or capriciously” under 552(a)(4)(F). It leaves the question of whether to issue “written findings”
pursuant to this section for another day when the factual record is more fully developed.

15