Exxon Mobil Corporation v. Department of Commerce , 828 F. Supp. 2d 97 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________________
EXXONMOBIL CORPORATION, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-250 (RCL)
)
DEPARTMENT OF COMMERCE, et al., )
)
Defendant. )
_____________________________________ )
MEMORANDUM OPINION
Plaintiff ExxonMobil Corporation brings this action against defendants Department of
Commerce and Environmental Protection Agency under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, as amended, and the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 791 et seq., challenging defendants’ responses to multiple FOIA requests that plaintiff
submitted. Plaintiff also seeks a writ of mandamus pursuant to 28 U.S.C. § 1361 and a
declaratory judgment pursuant to 28 U.S.C. §§ 2201–2202. Before the Court is defendants’
Motion [13] for Summary Judgment and plaintiff’s Cross-Motion [16] for Summary Judgment.
Upon consideration of both Motions, plaintiff’s opposition [16] to defendants’ motion,
defendants’ reply [21] in support of their motion and opposition to plaintiff’s cross-motion,
plaintiff’s reply [22], the entire record in this case, and the applicable law, the Court will
GRANT defendants’ Motion for Summary Judgment and DENY plaintiff’s Cross-Motion for
Summary Judgment.
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I. BACKGROUND
A. Exxon Valdez Oil Spill Trustee Council
On March 24, 1989, the oil tanker T/V Exxon Valdez spilled approximately 11 million
gallons of crude oil owned by Exxon Corporation into Prince William Sound, Alaska. Compl.
Ex. C (“Agreement”). In 1991, plaintiff ExxonMobil (“Exxon”) entered into an Agreement and
Consent Decree with the United States and the State of Alaska under which Exxon paid the two
Governments $900 million in settlement of the Governments’ claims against Exxon arising out
of the oil spill. Agreement ¶¶ 8, 10; see United States v. Exxon Corp., et al., Nos. 3:91-0082 &
3:91-0083 (D. Alaska). The Agreement provided for the $900 million to be disbursed over a ten-
year period, providing compensation for all existing and future natural resource damages,
assessment costs, and restoration costs stemming from the spill.
The Exxon Valdez Oil Spill Trustee Council (“Trustee Council”) was created in 1992 to
oversee the use of these settlement funds for restoration efforts. Defs.’ Mot. for Summ. J. Ex. 2
(“Hagen Decl.”), ¶ 7; Defs.’ Mot for Summ. J. Ex. 3 (“O’Connor Decl.”), ¶ 6. The Trustee
Council is composed of three State of Alaska trustees and three Federal trustees. Compl. Ex. G.
The three Federal trustees are the National Oceanic and Atmospheric Administration (“NOAA”),
a component of the Department of Commerce; the Department of the Interior; and the
Department of Agriculture. Id. Each Trustee agency designates its own representative to serve
on the Trustee Council. Id. The National Marine Fisheries Services (“NMFS”) Alaska Regional
Administrator represents NOAA on the Trustee Council and oversees the NMFS Office of
Exxon Valdez Oil Spill Damage Assessment and Restoration, which administers projects carried
out by NMFS researchers and outside contractors, and facilitates research planning and
coordination between EVOS projects and other programs. Hagen Decl. ¶ 8. The Trustee
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Council operates by unanimous consent among its trustees and establishes its own policies and
procedures consistent with the Agreement to make all decisions related to injury assessment,
restoration activities, or other use of the natural resource damage recoveries obtained by the
Governments. Id. An Executive Director administers the Trustee Council office and oversees
the creation of an annual workplan using a competitive process to solicit project proposals. Id.;
O’Connor Decl. ¶ 7.
Since the settlement in 1991, hundreds of research, monitoring, and general restoration
projects have been funded to restore the ecosystem of Prince William Sound and the Gulf of
Alaska to its condition prior to the spill. Hagen Decl. ¶ 7; O’Connor Decl. ¶ 6. The Trustee
Council does not have independent fiscal authority, so it operates through its Trustee agencies
acting on behalf of the Trustee Council to enter into contractual agreements with third parties to
implement these projects. Hagen Decl. ¶ 10; O’Connor Decl. ¶ 9. The Trustee council is
responsible for soliciting project proposals and administering the proposal process, including the
issuance of contract bids for restoration proposals. Hagen Decl. ¶¶ 9–10; O’Connor Decl. ¶¶ 8–
9. The bid announcement specifies the restoration actions that are sought and the terms under
which the project proposals will be awarded, and the proposals are evaluated by Trustee Council
staff, which obtain funding recommendations and develop workplans based on the
recommendations. Hagen Decl. ¶¶ 9–10; O’Connor Decl. ¶¶ 8–9.
As one of the implementing agencies of the Trustee Council, NOAA issues a Broad
Agency Announcement (“BAA”) concurrent with the Trustee Council invitation for proposals.
Hagen Decl. ¶ 10; O’Connor Decl. ¶ 9. Interested parties are asked to submit a copy of their
proposal to NOAA at the same time that it is submitted to the Trustee Council, but the review,
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evaluation, and selection of the proposals are done solely by the Trustee Council. Hagen Decl. ¶
10; O’Connor Decl. ¶ 9.
Once the Trustee Council unanimously approves a workplan, the U.S. Department of
Justice and the State of Alaska Department of Law initiate the process of withdrawing funds
from the settlement account and transferring them to the Federal or State agency administering
the particular project for distribution to the entity implementing the project. Hagen Decl. ¶ 11;
O’Connor Decl. ¶ 10. Funds for projects that are submitted under the BAA are routed to NMFS
Alaska Regional office, which works with the NMFS procurement office to obligate those funds
and enter into contracts with the third-party entities using the Trustee Council-approved project
proposal as the contract statement of work. Hagen Decl. ¶ 11; O’Connor Decl. ¶ 10. To fund
these projects, the Trustee Council transfers money from the $900 million settlement account to
the implementing agency, such as NOAA. Hagen Decl. ¶ 11; O’Connor Decl. ¶ 10. The work
performed by contract awardees is not funded by trustee agency appropriations. Hagen Decl. ¶
11; O’Connor Decl. ¶ 10.
B. Restoration Projects 070801 (Michel Study) and 070836 (Boufadel Study)
A provision entitled “Reopener for Unknown Injury” in the 1991 Agreement between
ExxonMobil and the Governments allows the governments to seek additional funds from Exxon
under specific circumstances enumerated in the Agreement. See Agreement ¶¶ 17–19. On May
31, 2006, the Governments submitted a claim to Exxon under the Reopener to develop and
implement a restoration plan to accelerate the removal of lingering subsurface oil. Compl. Exs.
D, E. The goals of the Reopener Claim are: (1) to determine the locations, approximate amounts,
and chemical states of all significant residual deposits of oil from the 1989 spill; and (2) to
accelerate the natural processes of degradation and dispersal of the lingering oil through active
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remediation. Compl. Ex. E, at 2. The day after the Reopener Claim was submitted, on June 1,
2006, the Trustee Council issued an Invitation for Proposals for fiscal year 2007 for a project that
would “map distribution and assess patterns of lingering oil remaining in [Prince William
Sound]” and a project that would “investigate the physical and chemical processes that influence
the lingering oil in [Prince William Sound].” Compl. Ex. H, at 8–9.
On February 16, 2007, the Trustee Council approved Restoration Project 070801, entitled
“Assessment of the Areal Distribution and Amount of Lingering Oil in Prince William Sound
and the Gulf of Alaska” (“Michel Study”). Compl. Ex. I. The proposal was submitted by Dr.
Jacqueline Michel, of Research Planning, Inc.; Dr. Jeffrey Short, a scientist of Auke Bay
Laboratory, a unit of the NMFS Alaska office; and Dr. Gail Irvine, of the United States
Geological Survey. See id. On March 9, 2007, the Trustee Council also approved Restoration
project 070836, entitled “Factors Responsible for Limiting the Degradation Rate of Exxon
Valdez Oil in Prince William Sound” (“Boufadel Study”). Compl. Ex. J. The proposal was
submitted by Dr. Michel Boufadel, of Temple University; Dr. Albert Venosa, of the EPA; and
Brian Wrenn of Washington University. See id.NOAA was the implementing agency for both the Michel and the Boufadel Studies. See
Hagen Decl. ¶ 3. The Program Manager for the Exxon Valdez Oil Spill Office within the NMFS
Alaska Regional Office servied as the Contracting Officer’s Technical Representative (“COTR”)
for both studies. Id. ¶¶ 14, 27. Consistent with the Trustee Council’s directives, the COTR
monitored the performance and progress of the contractors with respect to the statement of work
and recommended payment of invoices to the Contracting Officer. See id. However, the COTR
did not have any supervisory function over the researchers or any substantive involvement in
their projects; rather, the COTR’s role was limited to the administrative function of monitoring
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the progress of the projects for purposes of reimbursing the researchers. Id. Under the terms of
the contract awards for both projects, quarterly, annual, and final reports are provided directly to
the Trustee Council, and the only documents required to be provided to NMFS during the course
of the project are cost and progress reports. See id. ¶¶ 15, 28.
C. Plaintiff’s FOIA Requests to NOAA
By letters dated October 29, 2007, January 16, 2008, April 2, 2008, October 17, 2008,
and October 20, 2008, ExxonMobil submitted FOIA requests to NOAA’s headquarters in Silver
Spring, Maryland, seeking records related to the Michel Study and the Boufadel Study. See
Compl. ¶¶ 21–31. Due to the subject matter of the requests, NOAA’s FOIA office assigned the
requests to the NMFS FOIA headquarters and to NOS. Defs.’ Mot. for Summ. J. Ex. 5, ¶ 5. The
NMFS FOIA Officer further assigned the requests to the NMFS Alaska Regional office. Id. ¶ 5–
6. In response to each of the FOIA requests at issue, NMFS searched its Exxon Valdez Oil Spill
records, all of which are located at either the Auke Bay Laboratory or the Exxon Valdez Oil Spill
Office. Id. ¶ 8.
In its first letter (Request No. 2008-0046), Exxon requested all records related to the field
work conducted for the Michel Study. In response to this request, NMFS’s search located eight
responsive records, which were released in their entirety to Exxon. Compl. Ex. M. Exxon
subsequently appealed this response, which the Department of Commerce denied for timeliness
reasons pursuant to agency regulations requiring that an appeal be received within 30 calendar
days of the date of the written denial. See Compl. Ex. HH; 15 C.F.R. § 4.10(a).
In its second letter (Request No. 2008-00179), Exxon requested all data and documents
related to the probability model developed for the Michel Study. A search of NOAA facilities
revealed that there were no records responsive to this FOIA request. Compl. Ex. R. Exxon
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subsequently appealed this response, which the Department of Commerce denied on the ground
that the records sought by Exxon were not “agency records.” See Compl. Ex. HH.
In its third letter (Request No. 2008-0331), Exxon requested all data and documents
related to the field work and analyses conducted through the Boufadel Study. NMFS located
five responsive records, which it released in their entirety to Exxon, accompanied by an index.
Compl. Ex. V. Exxon subsequently appealed this response, which the Department of Commerce
denied for timeliness reasons pursuant to agency regulations requiring that an appeal be received
within 30 calendar days of the date of the written denial. See Compl. Ex. HH; 15 C.F.R. §
4.10(a).
In its fourth letter (Request No. 2009-00039), Exxon again requested all records related
to the field work and analyses conducted pursuant to the Boufadel Study. NOAA responded that
it had no records responsive to the request. Compl. Ex. Y. The Department of Commerce
denied Exxon’s appeal on the ground that the records sought by Exxon were not “agency
records.” See Compl. Ex. FF.
In its fifth letter (Request No. 2009-00040), Exxon again requested all data and
documents related to the field work, analyses, and modeling developed for the Michel Study. In
response, the Department of Commerce released five records found at Auke Bay Laboratory
(four documents and a CD) in their entirety plus an index, determined to be responsive to
Exxon’s request. See Compl. Ex. T. The Department of Commerce denied Exxon’s appeal of
this response on the ground that the records sought by Exxon were not “agency records.” See
Compl. Ex. II.
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D. Plaintiff’s FOIA Requests to EPA
By letter dated October 29, 2007 (Request No. HQ-RIN-00168-08), Exxon submitted a
FOIA request to EPA seeking all records related to the Boufadel Study. In response, EPA
released two draft reports and 26 e-mails responsive to this request and withheld a number of e-
mails pursuant to the deliberative process privilege as incorporated in Exemption 5 of the FOIA,
5 U.S.C. 552(b)(5). Compl. Ex. Z, ¶ 6. Exxon appealed EPA’s statement that it did not possess
the Boufadel data, but did not appeal EPA’s decision to withhold documents under Exemption 5.
Id. ¶ 7. EPA denied the appeal, stating that “EPA does not possess and has never possessed the
field work data.” Compl. Ex. GG.
In another letter sent to EPA dated October 17, 2008 (Request No. HQ-RIN-00138-09),
Exxon requested under FOIA all records related to a project being conducted by Dr. Venosa
entitled “A Microcosm Study on the Biodegradability of Lingering Oil in Prince William Sound
19 Years After the Exxon Valdez Oil Spill” (“Venosa Project”). Compl. ¶ 55. EPA forwarded
this request on to Dr. Venosa. In June 2010, EPA released responsive, non-exempt records that
Dr. Venosa had located, withholding a number of records pursuant to the deliberative process
privilege in Exemption 5 of FOIA. Defs.’ Mot. for Summ. J. Ex. 6, ¶ 13. At the time that Exxon
filed this Complaint against defendants, Exxon had not appealed EPA’s response to its request
for documents relating to the Venosa Project.
II. LEGAL STANDARDS
A. Summary Judgment
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when the
moving party demonstrates that “there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In determining
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whether a genuine issue of material fact exists, the trier of fact must view all facts, and all
reasonable inferences drawn therefrom, in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). In order to defeat
summary judgment, a factual dispute must be capable of affecting the substantive outcome of the
case and be supported by sufficiently admissible evidence that a reasonable trier of fact could
find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986);
Laningham v. U.S. Navy, 813 F.2d 1236, 1242–43 (D.C. Cir. 1987). “[A] complete failure of
proof concerning an essential element of the non-moving party’s case necessarily renders all
other facts immaterial[, and t]he moving party is entitled to judgment as a matter of law.”
Celotext Corp. v. Catrett, 477 U.S. 317, 322 (1986).
B. FOIA
FOIA requires agencies of the federal government, upon request, to release records to the
public. 5 U.S.C. § 552(a). The term “record,” as defined in FOIA, includes “any information
that would be an agency record subject to the requirements of [FOIA] when maintained by an
agency in any format, including an electronic format,” including any such information “that is
maintained for an agency by an entity under Government contract, for the purposes of records
management.” 5 U.S.C. § 552(f)(2). A FOIA requester may appeal an agency’s failure to
disclose requested records. 5 U.S.C. § 552(a)(6). If the agency denies the request on appeal, the
requester is deemed to have fully exhausted his administrative remedies and may bring suit in
federal district court. 5 U.S.C. § 552(a)(6)(C)(i). A district court has jurisdiction to enjoin a
federal agency from withholding information and order the production of any records that have
been improperly denied to the requester. 5 U.S.C. § 552(a)(4)(B).
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III. ANALYSIS
A. Exhaustion of Administrative Remedies
Exhaustion of administrative remedies is a prerequisite to a lawsuit under FOIA “so that
the agency has an opportunity to exercise its discretion and expertise on the matter and to make a
factual record to support its decision.” See Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61 (D.C.
Cir. 1990). This means that a requester under FOIA must file an administrative appeal within the
time limit specified in an agency’s FOIA regulations or face dismissal of any lawsuit
complaining about the agency’s response. See id. at 65 n.9. The Department of Commerce’s
FOIA regulations require that an administrative appeal of an initial denial of a request for records
be received within 30 days of the date of the written denial. 15 C.F.R. § 4.10(a).
Failure to exhaust available administrative remedies is a jurisprudential, not a
jurisdictional, bar to judicial review. Hidalgo v. FBI, 344 F.3d 1256, 1259 (D.C. Cir. 2003).
The exhaustion requirement thus precludes judicial review if the “‘purposes of exhaustion’ and
the ‘particular administrative scheme’ support such a bar.” Id. at 1258–59 (quoting Oglesby, 920
F.2d at 61). However, FOIA’s administrative scheme “favors treating failure to exhaust as a bar
to judicial review.” Hidalgo, 344 F.3d at 1259. Therefore, where a FOIA plaintiff has not
exhausted the available administrative remedies before filing suit in district court, dismissal of
the complaint is warranted.
By letter dated September 5, 2008, Exxon submitted an appeal of the partial denial letters
from the Department of Commerce dated December 18, 2007 (in response to Request No. 2008-
0046) and July 18, 2008 (in response to Request No. 2008-0331). The Department of Commerce
properly denied these appeals on timeliness grounds, as Exxon appealed these denials after the
30 day limit for appeals established by the agency regulations. See 15 C.F.R. § 4.10(a). Exxon
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therefore failed to exhaust its administrative remedies with regard to these two claims before it
filed suit in this Court. 1 Furthermore, at the time that Exxon filed its Complaint on February 18,
2010, it had not exhausted its administrative remedies with regard to FOIA Request No. HQ-
RIN-00138-09. Exxon did not even file an administrative appeal of EPA’s response to its FOIA
request for documents relating to the Venosa Project until March 16, 2010, almost one month
after filing its Complaint in this Court. As the Court finds that Exxon failed to exhaust its
administrative remedies with regard to FOIA Request Nos. 2008-0046, 2008-0331, and HQ-
RIN-00138-09, the Court will not reach the merits of Exxon’s arguments regarding these FOIA
requests.
B. FOIA
The Court now turns to Exxon’s appeals of the agency determinations regarding its
remaining FOIA requests: 2008-00179, 2009-00039, 2009-00040, and HQ-RIN-00168-08.
“[T]he elements of a FOIA claim are (1) improperly (2) withheld (3) agency records.” Antonelli
v. U.S. Parole Comm’n, 619 F. Supp. 2d 1, 3 (D.D.C. 2009). To qualify as “agency records”
within the meaning of FOIA, requested materials must meet two criteria: (1) “an agency must
either create or obtain the requested materials as a prerequisite to its becoming an agency record
within the meaning of FOIA”; and (2) “the agency must be in control of the requested materials
at the time the FOIA request is made.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144–
45 (1989).
1
Exxon argues that the failure to exhaust can be remedied where the plaintiff’s first FOIA request was excused by
subsequent requests for the same materials. Under Exxon’s theory, because it made subsequent requests that
encompassed the records initially sought under Request Nos. 2008-0046 and 2008-0031, it is irrelevant whether its
initial requests were timely appealed. Exxon supports its theory by citing a case out of the District of Nevada in
which the court declined to accept the theory that “the failure to appeal the first FOIA request should bar subsequent
requests for the same material.” Nevada v. U.S. Dep’t of Energy, 517 F. Supp. 2d 1245, 1257 (D. Nev. 2007).
However, that authority is inapposite here and offers no support for Exxon’s argument that administrative appeals
can be aggregated to defeat the exhaustion requirement.
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1. FOIA Requests to Department of Commerce
First, the Court must determine whether the records Exxon requested from the
Department of Commerce were created or obtained by the agency. See Tax Analysts, 492 U.S. at144–45. The mere fact that a private researcher who created the requested records received
federal funds to finance the research is insufficient to conclude that the data were “created or
obtained” by the agency, but data produced by a private researcher may be considered agency
records if the researcher was acting on behalf of the agency. See Burka v. U.S. Dep’t of Health
and Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996). However, neither the Boufadel Study nor
the Michel Study receives any funding from NOAA appropriations. Defs.’ Mot. for Summ. J.
Ex. 2, ¶ 11; Ex. 3, ¶ 10. Rather, all funding for the Boufadel and Michel Studies is derived from
money transferred to NOAA from the $900 million civil settlement between Exxon and the
Governments. NOAA has a limited, ministerial role in contracting with private organizations
that are responding to proposals generated by and conducting research on behalf of the Trustee
Council, rather than on behalf of one of the Trustee Council’s trustee agencies. The Trustee
Council—not NOAA—is responsible for soliciting project proposals, administering the proposal
process, and developing workplans based on the funding recommendations. Defs.’ Mot. for
Summ. J. Ex. 2, ¶¶ 9–11; Ex. 3 ¶¶ 8–10. And although the COTR monitors the performance and
progress of the contractor with respect to the statement of work and recommends payment of
invoices to the NMFS Contracting Officer, the COTR does not have any substantive involvement
in Trustee Council research projects. See Defs.’ Mot. for Summ. J. Ex. 2, ¶¶ 14, 27. NOAA’s
position as one of the federal trustees on the Trustee Council does not change the fact that the
Boufadel and Michel Studies were conducted by private researchers for the benefit of the Trustee
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Council, and were not funded by nor conducted on behalf of one of the Trustee Council’s trustee
agencies.
Even assuming, arguendo, that the records requested from the Department of Commerce
were “created or obtained” by the agency, NOAA does not meet the second criterion of the
“agency records” analysis requiring that the agency “be in control of the requested materials at
the time the FOIA request is made.” Tax Analysts, 492 U.S. at 144–45. To determine whether
an agency exercises sufficient control over a document to render it an “agency record,” four
factors must be balanced under a totality of the circumstances test: “(1) the intent of the
document’s creator to retain or relinquish control over the records; (2) the ability of the agency to
use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or
relied upon the document; and (4) the degree to which the document was integrated into the
agency’s record system or files.” Burka, 87 F.3d at 515.
First, the Court will look at Dr. Boufadel and Dr. Michel’s intent to retain or relinquish
control over the records that Exxon requested. Under the Trustee Council Data Policy, “[d]ata
acquired under Trustee Council funding is considered public information,” and “[c]opyright to
such data is owned by the State and/or Federal agencies sponsoring the project.” Compl. Ex. K,
at 3. However, one of the stated purposes of the Trustee Council Data Policy is to “protect the
right of investigators who collect data, develop models, or who apply models to generate
significant new insight to be cited whenever the data, models, or insights are used.” Id. at 1.
Even if Burka’s “control” test is constructive rather than actual—that is, even if it hinges on
whether the researchers intend to turn over data to the agency, not on whether the researcher has
already done so—the result is unclear here. Even though, pursuant to the Trustee Council Data
Policy, Dr. Boufadel and Dr. Michel are obligated to relinquish control over their final reports to
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the Trustee Council and copyright to those final reports is owned by NOAA as the project
sponsor, this does not necessarily indicate an intent on the part of the researchers to relinquish
control over their preliminary findings to NOAA. Under the Trustee Council Operating
Procedures, Dr. Boufadel and Dr. Michel are not obligated to turn over to the Trustee Council
the preliminary models and data that Exxon requested; rather, they will merely relinquish control
over their final reports once their projects are complete, at which point the final reports will
become public information. See Compl. Ex. G, at II-4. However, because the language used in
the Data Policy merely refers to “[d]ata acquired under Trustee Council funding” and does not
distinguish between preliminary data and final data for copyright purposes, it is unclear whether
the researchers, by agreeing to abide by the Data Policy, effectively intended to relinquish
control over their preliminary findings to the agency.
Second, the Court will examine NOAA’s ability to use and dispose of the requested
records as it sees fit. As noted above, it is uncertain whether the language in the Data Policy
indicating that copyright to data acquired under Trustee Council funding refers to preliminary
data or final reports. However, it is clear that the information Exxon sought to obtain through its
FOIA requests was preliminary data that had not yet been turned over to the Trustee Council—
or, for that matter, to NOAA. Accordingly, there is no indication from the parties’ submissions
that at the time of Exxon’s FOIA request, NOAA had the ability to use any of the data that
Exxon requested from the agency. Moreover, under the Trustee Council Data Policy, “all
documents (including written, electronic, photographic, and magnetic) or physical evidence
(such as tissue samples) produced or collected as part of any Trustee Council-funded project
must be preserved, unless authorization is given by both the Alaska Department of Law and the
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U.S. Department of Justice.” Compl. Ex. K, at 2. This plainly demonstrates that NOAA has no
ability to dispose of the requested records as it sees fit.
Third, the Court will analyze the extent to which NOAA personnel read or relied upon
the requested documents. Although the Trustee Council obtained a summary of the status of the
Boufadel and Michel Studies, this summary report was disclosed to Exxon, made publicly
available, and posted on the Trustee Council website. See Defs.’ Mot. for Summ. J. Ex. 3, at ¶
17. There is no evidence that the NOAA Trustee read or relied upon the Boufadel and Michel
data or reports, other than this summary report that has already been provided to Exxon. There is
also no evidence that any other NOAA personnel, including any of the personnel at the Auke
Bay Laboratory or the Exxon Valdez Oil Spill Office, read or relied upon the other Boufadel and
Michel data or reports that Exxon seeks. “[W]here an agency has neither created nor referenced
a document in the ‘conduct of its official duties,’ . . . the agency has not exercised the degree of
control required to subject the document to disclosure under FOIA.” Judicial Watch, Inc. v. Fed.
Hous. Fin. Agency, 646 F.3d 924, 928 (D.C. Cir. 2011) (citation omitted).
Fourth, the Court will consider the degree to which the requested documents were
integrated into NOAA’s record system or files. Pursuant to the Trustee Council General
Operating Procedures, a copy of each final project report “shall be placed in the Trustee
Council’s official record and at ARLIS (Alaska Resources Library & Information Services).”
Compl. Ex. G, at II-4. The Trustee Council Data Policy mandates that all data and
documentation acquired by principal investigators and their personnel through projects funded
by the Trustee Council must be archived by the principal investigator in the Trustee Council’s
archive. See Compl. Ex. K, at 1–3. However, the Data Policy only requires principal
investigators to archive their data and documents at the time of the submission of their final
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project report to the Trustee Council office, at which point this information becomes public. Id.
at 3. The requested documents therefore have not been integrated into NOAA’s record system or
files.
Although it is unclear whether Dr. Boufadel and Dr. Michel intended to retain control
over the data request by Exxxon or relinquish control to the agency, when this is balanced with
the other three factors in the “control” test, the totality of the circumstances establishes that
NOAA was not in control of the requested materials at the time Exxon made the FOIA request.
This, coupled with the Court’s determination that NOAA did not create or obtain the requested
materials, leads the Court to find that the requested records are not “agency records” of NOAA
within the meaning of FOIA.
2. FOIA Requests to EPA
The records Exxon requested from EPA were created and maintained by private
researchers funded by and acting on behalf of the Trustee Council, not the agency, and so they
do not meet the first prong of the “agency records” analysis requiring that the agency “create or
obtain” the materials being requested. See Tax Analysts, 492 U.S. at 144–45. Notably, although
Dr. Venosa, (an EPA scientist) was listed on the Boufadel Project proposal, the extent of his
involvement in the project stopped there. As proposed, the project was time-sensitive and
required summer sampling. Defs.’ Mot. for Summ. J. Ex. 7, ¶ 6. The project would have
required the time-consuming drafting of a Category II quality assurance project plan (which
establishes quality assurance requirements for important, highly visible agency projects
involving areas such as supporting the development of environmental regulations or standards).
Moreover, if the project had used Trustee funds and the funds came to EPA from the Trustees
through an Interagency Agreement, then EPA would have had to adhere to lengthy government
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contract regulations to get the funds to Temple University. Therefore, because his participation
would have delayed the required summer sampling by at least a year, Dr. Venosa decided to
remove himself and the EPA from the Boufadel Project subsequent to the submission of the
proposal. Id. Instead, the Boufadel Project was funded directly with Temple University and Dr.
Boufadel by the Trustee Council. Id. ¶ 7. Accordingly, EPA had no involvement in the
Boufadel Project after the proposal stage, making clear that EPA did not create or obtain the
requested materials and thus unquestionably fails to satisfy the first criterion of the “agency
records” test. The Court thus sees no need to reach the question of whether EPA was in control
of the requested materials at the time of the FOIA request and therefore holds that the requested
materials are not “agency records” of EPA within the meaning of FOIA. 2
C. APA
Exxon also cited the Administrative Procedure Act, 5 U.S.C. ¶ 701, as a basis for
jurisdiction over its FOIA claims. However, it is well established that the existence of an
adequate remedy under FOIA precludes the availability of a plaintiff’s APA claim. See, e.g.,
Bigwood v. Defense Intelligence Agency, 699 F. Supp. 2d 114, 117–18 (D.D.C. 2010); Feinman
v. F.B.I., 713 F. Supp. 2d 70, 75–78 (D.D.C. 2010); Kenney v. U.S. Dep’t of Justice, 603 F.
Supp. 2d 184, 190 (D.D.C. 2009); People for the American Way Found. v. Nat’l Park Serv., 503
F. Supp. 2d 284, 308–09 (D.D.C. 2007); Edmonds Inst. v. U.S. Dep’t of the Interior, 383 F.
Supp. 2d 105, 111–12 (D.D.C. 2005). Exxon fails to present the Court with any explanation as
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Exxon presents evidence demonstrating that in the past, the Trustee Council required Exxon to submit its FOIA
requests directly to the funding agencies responsible for scientific studies authorized by the Trustee Council.
According to Exxon, the Trustee Council has required FOIA requests to go through the contracting agencies because
the Trustee Council is not an independent entity, and therefore NOAA and EPA should be required to produce the
requested records. However, the fact that Trustee Council representatives gave Exxon this guidance does not
necessarily mean that it was correct, nor does it change the Court’s analysis. As the Court has established, the
requested records are not agency records of either NOAA or EPA within the definition of FOIA, regardless of where
the Trustee Council advised Exxon to direct its FOIA requests.
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to why its claim that the agencies allegedly improperly withheld documents cannot be adequately
remedied under FOIA. Accordingly, Exxon’s APA claims against defendants are dismissed.
D. Mandamus
Exxon further cites the Mandamus Act, 28 U.S.C. § 1361, as a basis for jurisdiction over
its FOIA claims. Although neither plaintiff nor defendants addressed this issue in their summary
judgment motions, the Court will raise it sua sponte. The Mandamus Act states that “the district
courts shall have original jurisdiction of any action in the nature of mandamus to compel an
officer or employee of the United States or any agency thereof to perform a duty owed to the
plaintiff.” 28 U.S.C. § 1361. Mandamus relief is available only if “(1) the plaintiff has a clear
right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy
available to plaintiff.” Fornaro v. James, 416 F.3d 63, 69 (D.C. Cir. 2005). As noted above,
Exxon has an adequate remedy available under FOIA. Exxon’s claims under the Mandamus Act
are therefore dismissed.
IV. CONCLUSION
For the foregoing reasons, the Court finds that no genuine issue of material fact remains.
The Court will therefore GRANT defendants’ Motion for Summary Judgment and DENY
plaintiff’s Cross-Motion for Summary Judgment.
Signed by Royce C. Lamberth, Chief Judge, on December 8, 2011.
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