Energy Policy Advocates v. United States Department of the Interior

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ENERGY POLICY ADVOCATES,
Plaintiff,
v. Civil Action No. 21-1247 (JEB)
U.S. DEPARTMENT OF THE
INTERIOR,
Defendant.
MEMORANDUM OPINION
Plaintiff Energy Policy Advocates submitted a Freedom of Information Act request last
spring to Defendant Department of the Interior seeking records about Elizabeth Klein, Senior
Counselor to the Secretary. EPA also sought expedited processing of the request. Although
Interior has since completed its search for potentially responsive records and disclosed nearly
500 pages to Plaintiff, it denied expedited processing. Dissatisfied with that decision, EPA
brought this suit. Because Plaintiff has not carried its burden of establishing that expedited
processing is justified, the Court will deny its Motion for Summary Judgment and grant
Defendant’s Cross-Motion.
I. Background
On May 3, 2021, EPA submitted a FOIA request to Defendant, seeking “[a]ll memoranda
or documents produced by or received by employees within the Departmental Ethics Office
pertaining or relating to Elizabeth Klein.” ECF No. 11-2 (Administrative Record) at 3, 16, 19.
Plaintiff also requested expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E). Id. at 20. The
request to expedite consisted of just two paragraphs, which stated the following:
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Given the urgency of the specific facts involved here as described
on pages 1-3, supra, including, in the event of conflicts and
failure(s) to recuse, the implications thereof, and the importance of
the public’s need to know whether their officials are operating
consistent with their ethical obligations, EPA requests expedited
processing. To facilitate this request, we request that the FOIA
office use the email Enterprise Records and Document Management
System (eERDMS) to search and process this request.
For the reasons stated, there is a “compelling need” under 43 CFR
§ 2.20 because of this “There is an urgency to inform the public
about an actual or alleged Federal Government activity and the
request is made by a person primarily engaged in disseminating
information”, and EPA’s status as an entity primarily engaged in
disseminating information and recognized status for these purposes
as a media requester. [Sic]
Id. (footnotes omitted). The facts referenced on pages 1–3 of the request describe Klein’s prior
employment, her government appointment, and speculation about her possible conflicts of
interest. Id. at 16–18.
On May 5, Defendant denied EPA’s request for expedited processing, though without
providing an explanation for its decision. Id. at 3, 12. Plaintiff filed this lawsuit the next day,
asserting that Interior had violated FOIA by its denial. See ECF No. 1 (Compl.), ¶¶ 26–33. The
parties have now cross-moved for summary judgment. See ECF Nos. 13-2 (Pl. MSJ); 15-1 (Def.
MSJ).
The Court held a hearing on September 8 to determine which records Interior had already
disclosed to EPA. See Hearing Transcript of Sept. 8, 2021. Interior there explained that it had
completed its records search, which turned up approximately 3,800 pages of potentially
responsive records. Id. at 2–3. The agency reported that it had released 424 pages to Plaintiff
and, pursuant to court order, anticipated making monthly disclosures until production was
complete in five months. Id. Despite the disclosures and reasonably near projected completion
date, EPA insisted that the Court decide these Motions. Id. at 5–6.
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II. Legal Standard
Summary judgment must 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 can affect 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.” Liberty Lobby, 477 U.S. at 248; see also Scott v. Harris, 550 U.S.
372, 380 (2007); 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. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). An agency’s
decision to deny a request for expedited processing is subject to de novo judicial review “based
on the record before the agency at the time of the determination.” 5 U.S.C. § 552(a)(6)(E)(iii);
see Al-Fayed v. CIA, 254 F.3d 300, 304–07 (D.C. Cir. 2001). The party seeking expedited
processing bears the burden of showing that expedition is appropriate. Wadelton v. Dep’t of
State, 941 F. Supp. 2d 120, 122 (D.D.C. 2013) (citing Al-Fayed, 254 F.3d at 305 n.4).
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III. Analysis
Unlike many multifaceted FOIA disputes, the issue here is straightforward: did Interior
lawfully deny Plaintiff’s request for expedited processing? FOIA explains that expedited
processing is appropriate “in cases in which the person requesting the records demonstrates a
compelling need.” 5 U.S.C. § 552(a)(6)(E)(i)(I). “Compelling need” is defined, in turn, to
mean:
(I) that a failure to obtain requested records on an expedited basis . . .
could reasonably be expected to pose an imminent threat to the life
or physical safety of an individual; or
(II) with respect to a request made by a person primarily engaged in
disseminating information, urgency to inform the public concerning
actual or alleged Federal Government activity.
Id. § 552(a)(6)(E)(v). EPA contends that it satisfies the standard laid out in the second
definition, which is mirrored in Interior’s regulation. See Pl. MSJ at 2; see also 43 C.F.R.
§ 2.20(a) (Compelling need is established when “[t]here is an urgency to inform the public about
an actual or alleged Federal Government activity and the request is made by a person primarily
engaged in disseminating information.”).
Defendant, for its part, raises two primary arguments for why it is entitled to summary
judgment: (1) Plaintiff has not established that it is a “person primarily engaged in disseminating
information,” and (2) it has failed to demonstrate urgency. See Def. MSJ at 8–13. The Court
looks at each.
A. Compelling Need
1. Disseminating Information
In Al-Fayed, the D.C. Circuit cited the legislative history of the 1996 amendments
providing for expedited processing of FOIA requests and explained, “The specified categories
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for compelling need are intended to be narrowly applied.” 254 F.3d at 310 (quoting H.R. Rep.
No. 104-795, at 26 (1996)). Courts in this district have subsequently referenced the same
language to emphasize that they “must be cautious in deeming non-media organizations as
persons primarily engaged in information dissemination.” Landmark Legal Found. v. Envtl.
Prot. Agency, 910 F. Supp. 2d 270, 275–76 (D.D.C. 2012). “Although courts in this Circuit and
elsewhere have routinely held that media organizations and newspapers qualify under this
category, in light of the pertinent legislative history, other types of organizations have been held
to not qualify, unless information dissemination is also their main activity, and not merely
incidental to other activities that are their actual, core purpose.” Progress v. Consumer Fin. Prot.
Bureau, No. 17-686, 2017 WL 1750263, at *4 (D.D.C. May 4, 2017) (collecting cases).
Similarly, the relevant Interior regulation states, “In most situations, a person primarily engaged
in disseminating information will be a representative of the news media.” 43 C.F.R.
§ 2.20(a)(2)(i).
Relying on this cabined definition, Interior contends that Plaintiff has not carried its
burden of demonstrating that it is primarily engaged in disseminating information. See Def. MSJ
at 8–10. The Court preliminarily notes that its “determination of whether Plaintiff qualifies as a
person primarily engaged in information dissemination is based solely on the record before the
[agency] at the time it denied Plaintiff’s request for expedited processing.” Progress, 2017 WL
1750263, at *4. As in other expedited-processing cases, the relevant portion of “[t]hat record
consists solely of the FOIA Requests themselves.” Id.Here, the section of EPA’s request titled “Expedited Processing” does not establish that
the organization is primarily engaged in disseminating information. See Administrative Record
at 20. Recall that the pertinent excerpt of that section states merely that EPA has “status as an
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entity primarily engaged in disseminating information and recognized status for these purposes
as a media requester.” Id. (footnote omitted). The request also cites two prior FOIA requests
that purportedly support that statement — though neither of those requests is provided, and the
Administrative Record contains no proof that EPA has previously been considered an entity
primarily engaged in disseminating information. Id. at 20 n.5. Such conclusory assertions tell
the Court nothing specific about EPA’s primary function and are not enough to satisfy its burden
with respect to the first element of the “compelling need” inquiry.
Plaintiff finds surer footing, however, in the “Fee Waiver” section of its FOIA request.
Id. at 21–26. Courts have looked to that section in making their disseminating-information
assessment, see Progress, 2017 WL 1750263, at *4, and here the section complicates how best to
characterize EPA. For instance, EPA there states that it “is dedicated to obtaining and
disseminating information relating to energy and environmental public policy.” Administrative
Record at 25. More specifically, the section also explains that EPA “publishes its findings
regularly through the organization’s website,” that its “work is frequently cited in newspapers
and trade and political publications,” and that EPA “intends to publish information from
requested records on its website [and] distribute the records and expert analysis to its followers
through social media channels including Twitter, Facebook, and other similar platforms.” Id.(footnote omitted).
While the Fee Waiver section thus provides some evidence that EPA engages in
disseminating information, it is difficult to conclusively evaluate — based on the administrative
record alone — whether that is the group’s primary function. At the end of the day, the Court
need not resolve the issue because Plaintiff has not carried its burden with respect to urgency.
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2. Urgency
To evaluate whether a requester has established urgency, “courts must consider three
factors: ‘(1) whether the request concerns a matter of current exigency to the American public;
(2) whether the consequences of delaying a response would compromise a significant recognized
interest; and (3) whether the request concerns federal government activity.’” Legal Eagle, LLC
v. Nat’l Sec. Council Recs. Access & Info. Sec. Mgmt. Directorate, No. 20-1732, 2021 WL
1061222, at *5 (D.D.C. Mar. 18, 2021) (quoting Al-Fayed, 254 F.3d at 310). Because Interior
“does not dispute that Plaintiff’s FOIA request concerns actual or alleged Federal government
activity,” Def. MSJ at 8, the Court’s inquiry centers on whether EPA has carried its burden on
the first two considerations. The Court concludes that it has not.
In its FOIA request, Plaintiff alleged that there is an urgent need to expedite record
processing because of “the importance of the public’s need to know whether their officials are
operating consistent with their ethical obligations.” Administrative Record at 20 (footnote
omitted). Elsewhere in the request, EPA raised questions about “the massive potential scope of
Ms. Klein’s conflicts and the wide range of actions brought by the[] states she recently
represented including in particular matters adverse to and otherwise relating to the Department.”
Id. at 18. The request also points to “[r]ecent news articles” from April 2021 “discussing Klein’s
reassignment [within Interior] and her role with her former employer.” Id. It also suggests that
“it is reasonable to expect that Ms. Klein has already played a key role in numerous
deliberations, decisions and actions taken since January 21, 2020.” Id.Those broad assertions do not establish that EPA’s request concerns a matter of current
exigency to the American public and that the consequences of delaying a response would
compromise a significant recognized interest. See Al-Fayed, 254 F.3d at 310. While the request
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may suggest that the requested information is important in some sense, it fails to identify any
specific reason to conclude that obtaining the requested documents is time sensitive. See Def.
MSJ at 11. And while EPA has pointed to limited news coverage relating to Klein, the topic
“bears no resemblance to . . . matters of genuine widespread public concern,” “such as public
debate over the renewal of the USA PATRIOT ACT,” which courts have found warrant
expedited processing. See Wadelton, 941 F. Supp. 2d at 123 (citing ACLU v. Dep’t of Justice,
321 F. Supp. 2d 24, 29 (D.D.C. 2004)). In that regard, this case is much more analogous to
Wadelton, in which the Court explained, “That articles on this topic appear on a specialized blog
dedicated to the Foreign Service and are read by several thousand people does not demonstrate
that the information is a ‘matter of a current exigency to the American public.’” Id. (internal
quotation marks and citations omitted).
Indeed, based on the administrative record, it is unclear precisely what “significant
recognized interest” would be compromised by releasing the documents in accordance with a
typical processing timeline, as opposed to on an expedited basis. It is also worth noting that
Interior has already produced a significant number of the requested documents and that it
anticipates producing all remaining ones within the next five months. See Hearing Transcript at
2–3. In light of that reality, EPA has not established that waiting several more months for
production of all responsive records would compromise a significant recognized interest that
“justif[ies] placing its request[] ahead of others.” Legal Eagle, LLC, 2021 WL 1061222, at *6.
In sum, there is no basis for offering Plaintiff special treatment not available to similarly situated
FOIA requesters, most of whom are patiently waiting in line.
EPA counters that its request deserves priority because “Ms. Klein’s potential conflicts
are currently the subject of on-going media and public interest, as made clear in Plaintiff’s
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pleadings and the subsequent public record.” Pl. MSJ at 4. Even assuming that there is some
current public interest, “Congress has made clear that judicial review of agency denials of
requests for expedited processing must be ‘based on the record before the agency at the time of
the determination,’ not on” outside information. See Legal Eagle, LLC, 2021 WL 1061222, at
*6 (quoting 5 U.S.C. § 552(a)(6)(E)(iii)). Indeed, courts routinely affirm agencies’ denials of
requests to expedite because the requester has failed to adequately demonstrate urgency based on
the administrative record. See, e.g., Al-Fayed, 254 F.3d at 311 (“[T]he record does not contain
any news report on the subject . . . other than reports on the press conference plaintiffs held to
announce the filing of their complaint . . . . Such evidence is insufficient to demonstrate that the
request concerns a matter of current exigency.”); Progress, 2017 WL 1750263, at *5 (“[T]he
Court in no way concludes that there is not in reality substantial public interest . . . . Rather, the
Court merely finds that the current record, which it was Plaintiff’s burden to develop, does not
provide any evidence of this public interest.”); Wadelton, 941 F. Supp. 2d at 124 (“Plaintiffs’
submission of one article, a series of posts on a specialized blog, and plaintiff Truthout’s
representation that it ‘intends’ to publish a story do not come close to demonstrating a
comparable level of media interest.”). As EPA’s request — as opposed to its briefing — never
sets forth any convincing basis for urgency, the agency was correct to deny it.
B. Interior’s Denial of Expedited Processing
Even if it comes up short on the merits, EPA maintains that it is nonetheless entitled to
summary judgment because Interior provided no substantive explanation for denying the request
to expedite. See Pl. MSJ at 4–5. Interior stated merely, “Your request for Expedited Processing
for the FOIA request DOI-SOL-2021-003887 has been denied.” Administrative Record at 3.
Plaintiff posits that this explanation ran afoul of 43 C.F.R. § 2.20(g)(l), which states that Interior
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will “[i]nform [a requester] of the basis for the denial, including an explanation of why the
expedited processing request does not meet the Department’s expedited processing criteria.”
Although EPA may be correct that Interior should have provided a reason, that does not
mean that it should obtain summary judgment. At bottom, Plaintiff’s contention ignores the
reality that it “bears the burden of showing that [it] is entitled to expedited processing.” Legal
Eagle, LLC, 2021 WL 1061222, at *5 (citing Al-Fayed, 254 F.3d at 305 n.4). In other words, it
is EPA’s duty to establish, based on the administrative record, (1) that it is primarily engaged in
disseminating information, and (2) urgency. As just explained, Plaintiff has not carried that
burden. “Because the Court conducts a de novo review of the record before the agency, [EPA’s]
argument that the denial[] fail[s] to demonstrate reasoned decisionmaking does not affect the
Court’s conclusion.” Id. at *5 n.6. While suboptimal, Interior’s lack of a thorough explanation
does not undermine EPA’s ability to demonstrate a compelling need for expedited processing
based on its own requests. Put another way, given the applicable standards of review, the
agency’s explanation (or lack thereof) did not cause Plaintiff any prejudice.
IV. Conclusion
For the foregoing reasons, the Court will deny Plaintiff’s Motion for Summary Judgment
and grant Defendant’s Cross-Motion. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: September 22, 2021
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