Conservation Force v. Ashe

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________
)
CONSERVATION FORCE, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-CV-1428 (KBJ)
)
DANIEL M. ASHE, Director of the )
U.S. Fish and Wildlife Service, )
in his official capacity, et al., )
)
Defendants. )
)
_________________________________)
MEMORANDUM OPINION
Plaintiff Conservation Force brought this action when Defendants U.S. Fish and
Wildlife Service (“the Service” or “FWS”) and its Director, Daniel M. Ashe, failed to
respond to a document request that Plaintiff made under the Freedom of Information
Act (“FOIA”), 5 U.S.C. § 552 (2012). (Complaint (“Compl.”), ECF No. 1.) After
Plaintiff filed the complaint in this case, the Service produced a number of responsive
documents. (Defs.’ Statement Of Material Facts As To Which There Is No Genuine
Dispute (“Defs.’ Facts”), ECF No. 11, ¶ 5.) Consequently, the only issue at present is
whether the Service conducted an adequate search when it gathered documents
responsive to Plaintiff’s request. Defendants have filed a motion to dismiss the
complaint, or in the alternative for summary judgment (“Defs.’ Mot.”) (ECF No. 11), in
which they argue that they have produced all of the responsive documents that were
found as a result of an adequate search and thus the case is moot. Plaintiff has filed a
cross-motion for summary judgment (“Pl.’s Mot.”) (ECF No. 14), which maintains, to
1
the contrary, that the Service’s search was inadequate and that the case is not moot
because Plaintiff is still waiting to receive all of the documents that are responsive to
the FOIA request.
Upon consideration of the motions and the record herein, the Court concludes
that the Service has not conducted an adequate search for responsive records, and
therefore, that the agency’s documents production does not render this case moot.
Accordingly, Defendants’ motion to dismiss, or alternatively for summary judgment, is
DENIED, and Plaintiff’s cross-motion for summary judgment is GRANTED. A
separate order consistent with this opinion will follow.
I. BACKGROUND
A. The Endangered Species Act
This case arises out of a FOIA request for documents pertaining to the Service’s
consideration of a petition brought under the Endangered Species Act (“ESA”), 16
U.S.C. §§ 1531-1544 (2006). Pursuant to regulations promulgated at 50 C.F.R. §§ 17.1-
17.108 (2012), the Service “determine[s] whether any species is an endangered species
or a threatened species.” 16 U.S.C. § 1533(a)(1). 1 The Service announces the status of
a species by listing it as “endangered” or “threatened” in the Federal Register. Id.§ 1533(c). 2
1
A species is “endangered” if it is “in danger of extinction throughout all or a significant portion of its
range.” 16 U.S.C. § 1532(6). A species is “threatened” if it “is likely to become an endangered species
within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20). A
species’s “range” refers to the geographic region it occupies. See 90-Day Finding on Straight-horned
Markhor Downlist Petition, 64 Fed. Reg. 51,499, 51,500 (Sept. 23, 1999).
2
Endangered or threatened species enjoy special protections under the ESA and promulgated
regulations. See 16 U.S.C. § 1538(a); 50 C.F.R. §§ 17.21, 17.31 (2012). For example, the hunting and
the importation of sport-hunted trophies are prohibited for most endangered or threatened animals. 50
C.F.R. §§ 17.21, 17.31 (2012).
2
The ESA allows individuals to submit petitions to downlist or delist a species—
i.e., to remove a species from the list of endangered or threatened animals. Id.§ 1533(b)(3). The ESA mandates that within ninety days of receiving a downlist
petition, the Service “shall” publish in the Federal Register a finding as to “whether the
petition presents substantial scientific or commercial information indicating that the
petitioned action may be warranted.” 16 U.S.C. § 1533(b)(3)(A) (“90-day finding”). If
the Service concludes that the requested downlist may be warranted, then the statute
requires it to publish an additional finding within twelve months, stating that (a) the
petition is warranted, or (b) the petition is not warranted, or (c) the petition is warranted
but other pending proposals preclude it. Id. § 1533(b)(3)(B) (“12-month finding”). If
the Service concludes that the downlist is warranted as stated in the 12-month finding,
then a general notice and a proposed regulation downlisting the species must promptly
follow. Id. § 1533(b)(3)(B)(ii). Thus, the ESA requires the Service to follow a two-step
process for making findings related to downlist petitions: first, the Service must make
and publish a 90-day finding; then, if the 90-day finding is that the downlist petition
has merit, the Service must proceed to make and publish a 12-month finding regarding
whether the downlist petition is warranted.
B. The Straight-Horned Markhor and the 1999 Downlist Petition
Plaintiff Conservation Force is a non-profit foundation that describes itself as
promoting wildlife conservation, education, and research. (Compl. ¶ 8.) 3 This litigation
concerns Plaintiff’s interest in the straight-horned markhor, a wild goat found in the
3
Plaintiff maintains “that hunters and anglers are an indispensable and essential force for wildlife
conservation.” Conservation of Wildlife & the Natural World, Conservation Force,
http://www.conservationforce.org (last visited Oct. 10, 2013).
3
Torghar Hills region of Pakistan. (Id. ¶¶ 1, 8.) Overhunting, habitat loss, and
competition from livestock have greatly diminished the markhor population. (See 90-
Day Finding on Straight-horned Markhor Downlist Petition, 64 Fed. Reg. 51,499 (Sept.
23, 1999), Ex. 1 to Pl.’s Mot., ECF No. 14-1, at 2.) As a result, in 1975, the Service
classified the straight-horned markhor as “endangered” under the ESA. (Id.)
In 1999, an individual named Naseer Tareen submitted a petition to downlist the
straight-horned markhor (“the 1999 downlist petition”) on behalf of the Society for
Torghar’s Environmental Protection (“STEP”). (Compl. ¶ 13.) The Service reviewed
Tareen’s petition and made a 90-day finding that the 1999 downlist petition had merit,
but it subsequently failed to make the required 12-month finding. (Id.) Nine years after
the deadline for the 12-month finding, Plaintiff initiated a lawsuit to compel the Service
to make that finding, but that action was dismissed as statutorily time-barred. See
Conservation Force v. Salazar, 811 F. Supp. 2d 18, 28 (D.D.C. 2011). 4
Trying a different tack with respect to the 1999 downlist petition, Plaintiff
submitted the instant FOIA request to the Service in October of 2011, seeking the entire
administrative record for that petition. (Compl. ¶ 15.) In relevant part, Plaintiff
requested the following:
4
Plaintiff later appealed the dismissal of the action seeking to compel the Service to make a 12-month
finding regarding Tareen’s 1999 downlist petition. See Conservation Force v. Salazar, No. 09-cv-495,
Notice of Appeal, Nov. 1, 2011, ECF No. 38. Plaintiff also filed its own downlist petition in regard to
the straight-horned markhor, and as a result, the Service has since made a related 12-month finding and
has proposed to downlist the species. See Endangered & Threatened Wildlife & Plants; Reclassifying
the Straight-Horned Markhor With Special Rule, 77 Fed. Reg. 47,011 (Aug. 7, 2012). On August 20,
2013, the D.C. Circuit affirmed the dismissal of Plaintiff’s lawsuit regarding the Tareen downlist
application, holding that “[t]he Service’s publication of a 12-month finding on [the other, similar]
petition renders moot [Plaintiff’s] challenges to the Service’s failure to publish such a finding with
respect to Tareen’s 1999 petition.” Conservation Force v. Jewell, No. 11-5316, -- F.3d --, 2013 WL
4417452, at *3 (D.C. Cir. Aug. 20, 2013).
4
[T]he entire Administrative Record for the petition to downlist the
markhor filed by Naseer Tareen and STEP in 1999. (64 F.R. 51499,
“90-day Finding on Petition to Reclassify the Straight-horned
Markhor Population of the Torghar Region of Balochistan, Pakistan
from Endangered to Threatened and Initiation of Status Review for
Markhor.”)
(Ex. 1 to Defs.’ Mot., ECF No. 11-2, at 3.) Although the Service promptly
acknowledged by letter that it had received Plaintiff’s FOIA request and that it would
“advise [Plaintiff] of the status of our response within 20 workdays[,]” neither an
update nor any responsive production followed. (Compl. ¶¶ 17, 20.) Plaintiff’s counsel
sent a follow-up letter to the Service inquiring about the status of the production the
following month, but again there was no response. (Id. ¶¶ 18-19.) After ten months
elapsed without any word from the Service, Plaintiff filed the instant FOIA lawsuit.
(Id. ¶¶ 20-22.)
The Service responded to Plaintiff’s FOIA request three months after the
complaint in this case was filed. 5 The Service purportedly found a total of 59
documents, which it released to Plaintiff along with a cover letter that stated that the
Service was “providing all pertinent responsive documents that we found in our files.”
(Ex. 2 to Defs.’ Mot., FWS Letter of Oct. 24, 2012, ECF No. 11-3.) The Service also
took care to note that it was not withholding or redacting any of the responsive
documents it found during the search. (Id. (“No information has been withheld in our
response.”).) The Service then filed a motion to dismiss or, in the alternative, a motion
5
According to the declaration of Helen Speights, Chief of the Branch of Endangered Species Act
Litigation Support for the Service (“FWS Litigation Support”), the Service’s “Branch of Foreign
Species [had] searched its electronic and hard copy records for any document responsive to [Plaintiff’s]
FOIA request” in December of 2011, shortly after receiving the FOIA request. (Decl. of Helen
Speights, Nov. 29, 2012 (“Speights Decl. I”), ECF No. 11-1, ¶ 8.) FWS Litigation Support received
internal notification that responsive records had been located, but“[d]ue to administrative oversight[,]”
the Service did not communicate that information to Plaintiff until after this lawsuit was filed. (Id. ¶¶
9, 13, 15).
5
for summary judgment in this action, arguing that the litigation was moot because the
Service had provided all responsive documents to Plaintiff. (Defs.’ Mot. at 1.)
In its combined opposition and cross-motion for summary judgment, Plaintiff
continues to challenge the Service’s response to its FOIA request. Plaintiff asserts that
the FOIA request expressly sought “the entire Administrative Record,” and that the
Service admittedly has not searched for any documents that were generated after the 90-
day finding, i.e., documents from the period in which the Service considered, but did
not make, the required 12-month finding with respect to the Tareen petition. In
Plaintiff’s view, records from the period after the published 90-day finding are part of
the administrative record, and the Service has improperly failed even to search for any
such records, much less to produce them, based on the “mistaken assertion that they
have made a complete release of responsive documents’ for the [FOIA] request
underlying this suit.” (Pl.’s Mot. at 1.) Therefore, Plaintiff argues, not only is the case
not moot, but summary judgment should be granted in Plaintiff’s favor. (Id.)
The question for this Court is whether, by limiting its FOIA search to records
that were generated or considered prior to the 90-day finding, the Service conducted an
adequate search in response to Plaintiff’s request for “the entire Administrative Record”
such that the Service’s release of the documents it found during its limited investigation
moots this case.
II. LEGAL STANDARDS
A. Motion to Dismiss for Mootness
A case is moot when “the issues presented are no longer ‘live’ or the parties lack
a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S.
6
625, 631 (1979) (citation omitted). “[A] defendant’s voluntary cessation of a
challenged practice does not deprive a federal court of its power to determine the
legality of the practice.” Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528 U.S.
167, 189 (2000) (citation omitted). Instead, to prevail on a mootness claim arising from
a defendant’s voluntary conduct, a movant must show that “there is no reasonable
expectation . . . that the alleged violation will recur, and . . . interim relief or events
have completely and irrevocably eradicated the effects of the alleged violation[.]”
Davis, 440 U.S. at 631 (internal citations and quotation marks omitted); see also
McKinley v. FDIC (“McKinley I”), 756 F. Supp. 2d 105, 110 (D.D.C. 2010) (same).
In the FOIA context, “once all requested records are surrendered,” the
controversy disappears and “federal courts have no further statutory function to
perform.” McKinley I, 756 F. Supp. 2d at 110 (quoting Perry v. Block, 684 F.2d 121,
125 (D.C. Cir. 1982)). However, a court maintains jurisdiction even after an agency
releases documents when other related issues, such as the proper scope of the agency’s
search, remain unresolved. See, e.g., Northwestern Univ. v. USDA, 403 F. Supp. 2d 83,
85-86 (D.D.C. 2005) (refusing to dismiss action as moot despite belated release of
documents because plaintiff challenged adequacy of defendant’s document production);
Looney v. Walters-Tucker, 98 F. Supp. 2d 1, 2-3 (D.D.C. 2000) (refusing to dismiss
action as moot even after production of requested documents because “[i]n a FOIA
case, courts always have jurisdiction to determine the adequacy of a search”).
B. Cross Motions for Summary Judgment in FOIA Cases
The Service has moved for summary judgment as an alternative to its motion to
dismiss, on the grounds that there is no genuine issue of material fact regarding whether
7
they have provided all responsive documents. (Defs.’ Mot. at 1.) As noted above,
Plaintiff has filed a motion for summary judgment of its own, arguing that the Service
failed to conduct an adequate search in response to Plaintiff’s FOIA request. (Pl.’s
Mot. at 10.)
“FOIA cases typically and appropriately are decided on motions for summary
judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87
(D.D.C. 2009) (citing Bigwood v. U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73
(D.D.C. 2007)). Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment must be granted when the pleadings, the discovery and disclosure materials on
file, and any affidavits, “show that there is no genuine issue as to any material fact and
that the movant is entitled to a judgment as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); see also Fed. R. Civ. P. 56. In the FOIA
context, a district court reviewing a motion for summary judgment conducts a de novo
review of the record, and the responding federal agency bears the burden of proving
that it has complied with its obligations under the FOIA. 5 U.S.C. § 552(a)(4)(B); see
also In Defense of Animals v. Nat’l Insts. of Health, 543 F. Supp. 2d 83, 92 (D.D.C.
2008) (same). The court must analyze all underlying facts and inferences in the light
most favorable to the FOIA requester. See Wills v. Dep’t of Justice, 581 F. Supp. 2d
57, 65 (D.D.C. 2008). As such, summary judgment for an agency is only appropriate
after the agency proves that it has “fully discharged its [FOIA] obligations[.]” Moore v.
Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Miller v. U.S. Dep’t of State, 779 F.2d
1378, 1382 (8th Cir. 1985)).
8
To evaluate the adequacy of an agency’s search, a court must first review the
record de novo to ensure that the agency properly ascertained the scope of the FOIA
request. 5 U.S.C. § 552(a)(4)(B); Physicians for Human Rights v. U.S. Dep’t of Def.,
675 F. Supp. 2d 149, 156 (D.D.C. 2009) (noting that, in the FOIA context, “a district
court reviewing a motion for summary judgment conducts a de novo review of the
record”); see also Mead Data Central, Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242,
252 (D.C. Cir. 1977) (same). Although a requestor must “reasonably describe[]” the
records sought, 5 U.S.C. § 552(a)(3)(A)(i), an agency’s record keepers must “construe a
FOIA request liberally.” Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71
F.3d 885, 889-90 (D.C. Cir. 1995) (citing Truitt v. Dep’t of State, 897 F.2d 540, 544-45
(D.C. Cir. 1990)).
In addition to having determined the scope of the request properly, the agency
also must have conducted a search that itself was “reasonably calculated to uncover all
relevant documents.” Truitt, 897 F.2d at 542 (quoting Weisberg v. Dep’t of Justice
(“Weisberg II”), 745 F.2d 1476, 1485 (D.C. Cir. 1984)); Thomas v. Dep’t of Health &
Human Servs., FDA, 642 F. Supp. 2d 5, 8 (D.D.C. 2009) (same). The court’s
assessment in this regard is “guided by principles of reasonableness.” Thomas, 642 F.
Supp. 2d at 8 (citation omitted). The agency must show that it made a good faith effort
to search for responsive documents “using methods which can be reasonably expected
to produce the information requested.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57,
68 (D.C. Cir. 1990) (citations omitted). Thus, “the adequacy of a FOIA search is
generally determined not by the fruits of the search, but by the appropriateness of the
9
methods used to carry out the search.” Iturralde v. Comptroller of Currency, 315 F.3d
311, 315 (D.C. Cir. 2003) (citation omitted).
“On a motion for summary judgment, an agency may discharge its burden of
establishing the reasonableness of its search by submitting a ‘reasonably detailed
affidavit’ describing the search performed and averring that all files likely to contain
responsive documents were searched.” Schoenman v. FBI, 764 F. Supp. 2d 40, 45
(D.D.C. 2011) (quoting Oglesby, 920 F.2d at 68). If the agency can make that showing,
then the burden shifts to the plaintiff to provide evidence sufficient to raise “substantial
doubt” about the adequacy of the agency’s search. Iturralde, 315 F.3d at 314 (quoting
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)).
Accordingly, for an agency to prevail on summary judgment, it must prove that
its search was reasonable. See Thomas, 642 F. Supp. 2d at 8. Alternatively, for a
plaintiff to prevail, there must be no genuine issue regarding the fact that the agency
defaulted in its search obligations. See Steinberg v. Dep’t of Justice, 23 F.3d 548, 551
(D.C. Cir. 1994). However, “if the sufficiency of the agency’s [search] is genuinely in
issue, summary judgment [for either party] is not in order.” Weisberg v. U.S. Dep’t of
Justice (“Weisberg I”), 627 F.2d 365, 370 (D.C. Cir. 1980).
III. ANALYSIS
There is no dispute that the FOIA request in this case asks for “the entire
Administrative Record” for the 1999 straight-horned markhor downlist petition.
Consequently, an evaluation of the adequacy of the Service’s search requires an
assessment of the scope of the “administrative record.” The Service argues that, by
locating and producing the documents that the Service “relied upon in making its 90-
10
day finding,” it conducted a reasonable search for records in response to Plaintiff’s
request and has therefore discharged its duty under the FOIA. (Defs.’ Resp. to Pl.’s
Mot. (“Defs.’ Resp.”), ECF No. 16, at 2.) The Service maintains that the entire
administrative record with respect to the 90-day finding includes only documents
generated or considered in the period prior to the 90-day finding, and in any event, the
parenthetical reference in Plaintiff’s FOIA request expressly limits the request to
documents relied upon to make that 90-day finding. (Id. at 3.) Plaintiff counters that
the Service’s search was unreasonable and inadequate because the FOIA request plainly
seeks “all records arising from the 1999 petition, not just those up to the 90-day
finding.” (Pl.’s Mot. at 2, 8.) 6
For the reasons that follow, the Court agrees with Plaintiff.
A. The Proper Scope of the Administrative Record
An administrative record “includes all materials compiled by the agency . . . that
were before the agency at the time [a] decision was made.” James Madison Ltd. v.
Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) (internal quotation marks and citation
omitted). “The ‘whole’ administrative record . . . consists of all documents and
materials directly or indirectly considered by agency decision-makers and includes
evidence contrary to the agency’s position.” Stainback v. Sec’y of the Navy, 520 F.
Supp. 2d 181, 185 (D.D.C. 2007) (citation omitted). There is a “well-established
presumption that an agency has properly designated the administrative record.” Nat’l
Ass’n of Chain Drug Stores v. U.S. Dep’t of Health & Human Servs., 631 F. Supp. 2d
6Plaintiff also makes an alternative argument challenging the adequacy of the Service’s declarations.
(See Pl.’s Mot. at 6-7.) Because the Court concludes that the Service’s search for records was
inadequate, see infra, it declines to consider this argument.
11
23, 27 (D.D.C. 2009). However, “clear evidence to the contrary” rebuts this
presumption. Id.Significantly for present purposes, the Service’s director has issued an informal
policy directive to assist agency employees when they are compiling an administrative
record. (See Ex. 2 to Pl.’s Mot., FWS Division of Policy and Directives Management,
282 FW 5, Compiling a Decision File and an Administrative Record, ECF No. 14-1, at
33.) These guidelines define the administrative record as “the paper trail that
documents the Service’s decisionmaking process and the basis for any final Service
decision.” (Id. at 34 (emphasis added).)
With these guidelines in mind, the Service in the instant case argues that there
was no final “decision” related to the 1999 downlist petition after the 90-day finding,
and thus there can be no subsequent administrative record. (Defs.’ Resp. at 3.) In
support of this argument, the Service cites Ad Hoc Metals Coalition v. Whitman, 227 F.
Supp. 2d 134, 139 (D.D.C. 2002), which it says stands for the proposition that the
administrative record is what the agency relied on before a final rule was issued.
(Defs.’ Resp. at 3 (quoting Ad Hoc Metals as stating that “a complete record must
include any materials that were ‘referred to, considered by, or used by [the agency]
before it issued its final rule’” (emphasis and alterations in Defs.’ Resp.)).) In other
words, the Service contends that, because it never made a 12-month finding (despite its
statutory obligation to do so), “the 90-day finding was the only decision or agency
action that [was] made with respect to [the] 1999 petition”; consequently, there is no
administrative record beyond the 90-day finding. (Decl. of Helen Speights, Jan. 15,
2013 (“Speights Decl. II”), ECF No. 16-1, ¶¶ 7-8.)
12
The Court is not persuaded by these arguments. The Service found that the 1999
downlist petition had merit at the 90-day stage; therefore, the agency had a mandatory
statutory duty to make a 12-month finding. See 16 U.S.C. § 1533(b)(3)(B)(ii). This the
agency did not do, but that by no means establishes that the Service did not take final
action (i.e., that it did not make a “decision”) with respect to the 1999 downlist petition.
It is well established that an agency’s failure to act is itself a final agency action for the
purpose of administrative procedure. See Sierra Club v. Thomas, 828 F.2d 783, 793
(D.C. Cir. 1987); Citizens for a Better Env’t v. Costle, 617 F.2d 851, 853 n.5 (D.C. Cir.
1980). What is more, courts in this district have found that the type of inaction at issue
here—an agency’s failure to make a 12-month finding—constitutes final agency action
for the purposes of review under the Administrative Procedures Act, see, e.g.,
Biodiversity Legal Found. v. Norton, 180 F. Supp. 2d 7, 11 (D.D.C. 2001), and there is
no reason why such inaction should be treated differently for the purpose of the
agency’s duty to produce record documents under the FOIA. Indeed, the statutory
subchapter into which the FOIA falls specifically defines “agency action” as “the whole
or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial
thereof, or failure to act.” 5 U.S.C. § 551(13) (2012) (emphasis added); see also
Sanders v. Obama, 729 F. Supp. 2d 148, 151 n.1 (D.D.C. 2010) (“FOIA . . . provides
for a cause of action based on the actions/inactions of agencies[.]” (emphasis added)
(citing Martinez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006))).
Moreover, the Service’s failure to issue a 12-month finding in the instant case
had the same legal effect as a formal decision to deny the 1999 downlist petition would
have had: the Service did not take the petitioned-for course, and the straight-horned
13
markhor remained on the endangered species list. In this circuit, an agency can be said
to have ‘acted’ when the agency’s decision making process has “consummate[ed]” and
“legal consequences . . . flow.” Harris v. FAA, 353 F.3d 1006, 1010 (D.C. Cir. 2004)
(internal quotation marks and citation omitted). And it is clear beyond cavil that, “at
some point, an agency’s failure to act becomes, in effect, a final decision.” Citizens for
a Better Env’t, 617 F.2d at 853 n.5; see also Sierra Club, 828 F.2d at 793 (“[A]gency
inaction may represent effectively final agency action that the agency has not frankly
acknowledged[.]”). This Court has little doubt that the “final decision” point was
reached in the instant case when 12 months elapsed and no finding as to the status of
the straight-horned markhor was made. In other words, the Court concludes that the
Service’s failure to publish a 12-month finding, in violation of its statutory duty to do
so, constitutes a final agency decision in this case such that documents that the Service
generated or considered in regard to the 1999 downlist petition after the 90-day finding
was made (including but not limited to documents that were part of the mandatory
notice and comment period for the 12-month finding) are part of the “entire
Administrative Record” for purposes of Plaintiff’s FOIA request. See Harris, 353 F.3d
at 1010; see also Ad Hoc Metals, 227 F. Supp. 2d at 139 (the administrative record
includes documents generated or produced leading up to the final agency decision).
Were it otherwise, an agency could almost always circumvent its FOIA duty to produce
record documents with respect to rejected petitions simply by running out the clock on
the formal decision making period. 7
7
The Court recognizes that its conclusion that the administrative record in this case includes documents
generated after the Service’s 90-day finding raises the secondary question of how far the post-finding
record extends. Although no Court in this Circuit has dealt squarely with this issue, common sense
14
B. The Service’s Interpretation of Plaintiff’s FOIA Request
The Service’s second argument—that the parenthetical in Plaintiff’s FOIA
request limits the request by its own terms—fares no better. “In determining the proper
scope of a FOIA request, ‘[t]he linchpin inquiry is whether the agency is able to
determine ‘precisely what records (are) being requested.’” McKinley v. FDIC
(“McKinley II”), 807 F. Supp. 2d 1, 5 (D.D.C. 2011) (alterations in original) (quoting
Yeager v. DEA, 678 F.2d 315, 326 (D.C. Cir. 1982)); see also American Chemistry
Council, Inc. v. U.S. Dep’t of Health & Human Servs., 922 F. Supp. 2d 56, 62 (D.D.C.
2013) (“Agencies . . . need not expand their searches beyond ‘the four corners of the
request,’ nor are they ‘required to divine a requester’s intent.’” (quoting Landmark
Legal Found. v. EPA, 272 F. Supp. 2d 59, 64 (D.D.C. 2003))). The Service contends
that Plaintiff’s FOIA request only asks for the small set of documents that the Service
actually produced because the parenthetical that follows the request for “the entire
Administrative Record” specifically identifies the 90-day finding. (Defs.’ Resp. at 2.)
But, for the reasons explained below, it is clear to the Court that the parenthetical is
best read as “an additional attempt to clarify wh[ich] petition the request concerned”
(Pl.’s Mot. at 8), rather than as a limitation on the set of documents requested.
First, it is indisputable that “a FOIA request might reasonably seek all of a
certain set of documents while nonetheless evincing a heightened interest in a specific
dictates that the Service’s failure to make the requisite follow-up finding within the allotted statutory
timeframe should mark the end of the relevant “record” for FOIA purposes. Cf. Dayton Newspaper,
Inc. v. Dep’t of Veterans Affairs, 510 F. Supp. 2d 441, 447 (S.D. Oh. 2007) (“[T]here has to be a
temporal deadline for documents that satisfy [a FOIA] request. This deadline is often referred to as the
cut-off date . . . . [A] reasonable cut-off date is the date of the [agency’s] final decision.” (internal
quotation marks and citations omitted)); see also Ad Hoc Metals, 227 F. Supp. 2d at 139.
Consequently, an adequate search for the entire administrative record in this case would involve a
search for documents that the Service generated or considered up to and including the date by which the
Service should have made the required12-month finding: March 3, 2000.
15
subset thereof.” LaCedra v. Executive Office for U.S. Attorneys, 317 F.3d 345, 348
(D.C. Cir. 2003); see also Elec. Frontier Found. v. Dep’t of Commerce, No. C12-3683,
2013 WL 3730096, at *10 (N.D. Cal. July 12, 2013) (“The fact that [plaintiff] specified
two categories of information in which it had a particular interest does not relieve
[defendant] of its obligation to conduct a search for the presumably broader set of
records falling within [plaintiff’s] general request.” (citing LaCedra, 317 F.3d at 348)).
This means that there was nothing unusual or untoward about the fact that the FOIA
request both seeks the “entire” administrative record and references the 90-day finding,
which is a subset of that record. To interpret Plaintiff’s parenthetical somehow to limit
the broader ask when the whole set of records is plainly requested is manifestly
inconsistent with the text and spirit of Plaintiff’s inquiry. See LaCedra, 317 F.3d at
348 (“[I]t [is] improbable . . . that a person who wanted only the subset would draft a
request that, like [Plaintiff’s], first asks for the full set.”).
Second, the Service’s reading of Plaintiff’s FOIA request renders portions of the
request mere surplusage—a result that is anathema to established principles of reasoned
interpretation. Cf. Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1302 (D.C. Cir. 1998)
(observing that, in interpreting a contract, courts “assume that the parties intended for
every part of the agreement to have meaning”); Tax Analysts v. IRS, 217 F. Supp. 2d 23,
28 (D.D.C. 2002) (noting courts prefer to read statutory provisions “so that no word,
clause, sentence, or phase is rendered surplusage, superfluous, meaningless or
nugatory” (citation omitted)). As has now been stated repeatedly, Plaintiff plainly
requested the “entire [a]dministrative [r]ecord” stemming from the 1999 straight-horned
markhor downlist petition. (Ex. 1 to Defs.’ Mot., at 3 (emphasis added).) If the Court
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were to read the parenthetical as restricting Plaintiff’s FOIA request to only those
documents that were generated or considered in the run up to the 90-day finding, then
the word “entire” would be meaningless, or, at worst, contradictory. Thus, as a matter
of straight textual construction, the better reading of Plaintiff’s parenthetical is to
construe it as a clarification of the subject matter of the requested set of records in light
of the fact there was no final published rule, rather than to treat it as an intentional
nullification of a substantial part of the primary request.
Finally, even if the Service’s narrow reading is a reasonable one, an agency “has
a duty to construe a FOIA request liberally.” Nation Magazine, 71 F.3d at 890 (citing
Truitt, 897 F.2d at 544-45). To be sure, Plaintiff’s FOIA request “is not a model of
clarity” insofar as the broad request for the entire administrative record “is in
considerable tension” with the subsequent parenthetical, which specifically refers to the
90-day finding. LaCedra, 317 F.3d at 348. However, a liberal reading is nonetheless
required, and any fair construction of Plaintiff’s FOIA request cannot foreclose the
possibility that Plaintiff wants the whole record, even if the language also mentions a
subset of that category of documents. Indeed, when the request is liberally construed,
the most that can be said about Plaintiff’s FOIA request is that it is ambiguous: it
either directs the Service to the particular type of document sought within the broader
category of the entire administrative record (as the Service argues) or indicates
Plaintiff’s heightened interest in a particular subset of the larger category of materials
that is being specifically requested. See id. And assuming that the FOIA request is
subject to both of these reasonable readings, the Service had a duty under the FOIA to
select the interpretation that would likely yield the greatest number of responsive
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documents. Cf. Nat’l Sec. Counselors v. CIA, 849 F. Supp. 2d 6, 12 (D.D.C. 2012)
(“[A]n agency is not permitted to deny requesters information by narrowing the scope
of its search to exclude relevant information.” (citation omitted)); Hemenway v.
Hughes, 601 F. Supp. 1002, 1005 (D.D.C. 1985) (“[T]he agency must be careful not to
read the request so strictly that the requester is denied information the agency well
knows exists[.]”).
This conclusion is not unprecedented in this district. The plaintiff in Hemenway
v. Hughes, supra, sought information about the citizenship of individuals who had been
accredited to attend State Department press briefings. Id. at 1003. The specific FOIA
request asked for a “List of Persons Accredited to attend the Department of State press
briefings, their news affiliation and citizenship,” id., and in response, the State
Department provided only a list of correspondents and their news affiliation, with no
reference to citizenship, id. at 1004. The State Department argued that the FOIA
request expressly sought a single “list,” and that the Department “does not maintain”
any list containing the correspondents’ citizenship information. Id. Moreover, because
the citizenship of accredited persons was not contained in any list the agency possessed,
the Department argued that it had no obligation to provide any citizenship information
whatsoever. Id. In evaluating the Department’s response to the FOIA request, the
Hemenway court found that the request “reasonably could be interpreted to ask either
for a single list of accredited persons complete with citizenship information, or—as
plaintiff argues—for a list of accredited persons and any additional information the
agency might have dealing with the particular individual’s citizenship status and news
affiliation.” Id. at 1005 (emphasis in original). But rather than “get involved in a
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semantic debate” about the meaning of the request, the Court concluded that the
agency’s duty to construe the request liberally gave rise to “an obligation to provide
any files containing citizenship information they had[,]” so long as that additional
information “was not covered by an exemption.” Id.So it is here. In this case even more so than in Hemenway, the FOIA request
makes clear that Plaintiff was seeking “the entire Administrative Record” regarding the
1999 straight-horned markhor downlist petition. The semantic question of whether the
parenthetical reference somehow limits “entire” need not be answered definitively
because, regardless, the Service had an obligation to interpret the FOIA request
broadly. See Nation Magazine, 71 F.3d at 889-90; Truitt, 897 F.2d at 544-45.
Consequently, the Service here should have undertaken a search for the “entire”
administrative record to satisfy its FOIA obligation, notwithstanding any more limited
construction that could have been applied to the request.
In sum, the Court concludes that the Plaintiff’s FOIA request for the “entire
Administrative Record” related to the 1999 downlist petition must be read to encompass
relevant records that the Service generated or considered beyond the 90-day finding, up
to and including the point at which the Service failed to make the mandatory 12-month
finding, and it was unreasonable for the Service to conclude otherwise. Moreover,
because it is undisputed that the Service did not search for responsive records that were
generated or considered during the period after the 90-day finding, there is no genuine
issue regarding the fact that Service’s search for records was incomplete, and thus
Plaintiff is entitled to summary judgment.
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This conclusion necessarily means that the instant action is not moot because
Plaintiff still awaits a fully-informed response to its FOIA request. In other words, the
Service cannot yet say that Plaintiff has received all of the responsive documents that
the agency has in its files because it has not yet searched for documents in a manner
that is designed to yield all of the records that Plaintiff plainly seeks. It may well turn
out that no other responsive documents turn up once an adequate search for the entire
administrative record is conducted (such as would be the case if, back in 1999, the
Service entirely neglected its obligation to engage in any decision making processes
regarding the straight-horned markhor after it made the 90-day finding). But the FOIA
obligates the Service to conduct a reasonable search for any and all responsive
documents. And the agency cannot truncate its search arbitrarily based on the
unfounded conclusion that Plaintiff’s FOIA request is not worded broadly enough to
encompass this category of records. 8
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss, or in the alternative
for summary judgment, is DENIED, and Plaintiff’s motion for summary judgment is
GRANTED. Consistent with this opinion and pursuant to its duty under the FOIA, the
Service must conduct a search for the full set of records that comprise the
8
Notably, as additional support for its motion for summary judgment, Plaintiff points to evidence that
suggests that a reasonable search for the entire administrative record likely will reveal additional
responsive documents. (See Pl.’s Mot. at 7 (noting that the Service had “previously declared that it
initiated a ‘status review’ of [a certain] population of straight-horned markhor, following the 90-day
finding”); id. (documents may have been collecting during “the . . . public comment period for the
1999 petition” which ran from the date of the 90-day finding until January 21, 2000”).) Be that as it
may, the potential existence of additional responsive records is not pertinent to today’s FOIA inquiry.
This is because, as stated above, an agency’s initial responsibility under the FOIA is to search for
responsive documents in a reasonable fashion, not necessarily to find them. See Iturralde, 315 F.3d at
315. The Court’s ruling on the pending cross-motions therefore rests entirely on its conclusion that a
reasonable search has not yet occurred with respect to the Plaintiff’s FOIA request.
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administrative record for the requested 1999 downlist petition. The Service will have
until January 3, 2014, to acknowledge the existence of responsive documents, if any,
and to disclose such documents to Plaintiff. Alternatively, the Service may within that
same timeframe establish by way of a motion supported by affidavits that no additional
responsive documents were located or that additional responsive documents are being
withheld due to the applicability of a FOIA exemption. A separate order consistent
with this opinion will follow.
Date: October 10, 2013 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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