Public Employees for Environmental Responsibility v. United States International Boundary & Water Commission

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________________
)
PUBLIC EMPLOYEES FOR )
ENVIRONMENTAL RESPONSIBILITY, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-19 (RCL)
)
UNITED STATES INTERNATIONAL )
BOUNDARY AND WATER )
COMMISSION, )
)
Defendant. )
________________________________________ )
MEMORANDUM OPINION
I. INTRODUCTION
This case concerns whether the United States International Boundary and Water
Commission (“Commission”) followed its statutory responsibilities in responding to a Freedom
of Information Act request. Before the Court are defendant’s Renewed Motion [15] for
Summary Judgment and plaintiff’s Renewed Motion [16] for Summary Judgment. Upon
consideration of the motions, oppositions, replies, the entire record in this case, and the
applicable law, the Court will grant plaintiff’s Renewed Motion [16] for Summary Judgment and
deny defendant’s Renewed Motion [15] for Summary Judgment.
II. BACKGROUND
This case has its origins in the Commission’s removal of its former General Counsel,
Robert McCarthy, from his position in July 2009. McCarthy Decl. [16-1] ¶2–4, July 28, 2011.
After the Commission removed him, McCarthy appealed the Commission’s decision to the Merit
Systems Protection Board. Id. at ¶6. To represent it in that litigation, the Commission hired the
law firm of Jackson Lewis. Id. at ¶7.
The plaintiff in this case—Public Employees for Environmental Responsibility
(“PEER”), a non-profit organization 1—somehow learned about Mr. McCarthy’s case and the
Commission’s hiring of Jackson Lewis, and became concerned that the Commission’s payments
to that law firm might constitute misuse of government funds. Compl. [1] ¶2, Jan. 6, 2010.
Accordingly, in October 2009, PEER filed a request with the Commission under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552 et seq., seeking:
(1) A copy of the retainer agreement between [the Commission] and the law firm
of Jackson Lewis in the matter concerning McCarthy v. IBWC, Docket # DA-
1221-09-0725-S-1 and
(2) All documents that evidence the source of the funds used to pay for
representation by Jackson Lewis in the matter concerning McCarthy v.
USIBWC.
Pl.’s SMF [16] 1 ¶1, July 29, 2011.
The Commission received PEER’s FOIA request and responded sometime in November
2009, although the parties disagree about exactly when. Compare Pl.’s SMF [16] 2 ¶2 & n.1
with Def.’s Mem. Opp’n [21] 2–3, Aug. 22, 2011. In its response to PEER, the Commission
refused to produce its retainer agreement with Jackson Lewis, asserting the attorney–client
privilege and claiming that release of the agreement could harm Jackson Lewis’s interests vis à
vis its competitors. Def.’s SMF [15] 1 ¶2, July 1, 2011. As to PEER’s second request (i.e., for
“all documents” evidencing the source of the funds used to pay Jackson Lewis), the Commission
conducted no search and produced no documents, but referred PEER to a website showing the
Commission’s 2009 Congressional appropriation, since (the Commission claimed) “Congress’s
general appropriation for the agency for that year was the source of the funds . . . .” Id. 2 ¶3.
Unhappy with the Commission’s response to its FOIA request, PEER filed an administrative
1
PEER describes itself as a group “dedicated to research and public education concerning the activities and
operations of the federal government.” Compl. [1] ¶4.
2
appeal with the Commission in December 2009, which the Commission denied. Pl.’s SMF [16]
2 ¶3.
In January 2010, PEER filed suit in this Court 2 to compel the Commission to disclose the
requested records. PEER’s Complaint brought two counts, the first for violation of FOIA, and
the second for violation of the Administrative Procedure Act (“APA”). 3 Compl. [1] ¶24–27.
PEER sought an order declaring that the Commission was wrongfully withholding the requested
records, an injunction directing it to disclose these records, and an award of attorney’s fees and
costs pursuant to 5 U.S.C. § 552(a)(4)(E). Id. at 7.
The next month, PEER filed a motion for summary judgment, arguing that the
Commission had improperly invoked FOIA exemptions 4, 5 U.S.C. § 552(b)(4), and 5, id. §
552(b)(5), had failed to segregate non-exempt portions of material pursuant to § 522(b), and had
provided non-responsive documents. Pl.’s Mot. Summ. J. [2-2] 4–10, Feb. 9, 2010. The
Commission filed its own motion for summary judgment in March 2010. Def.’s Mot. Summ. J.
[6] Mar. 19, 2010. In that motion, the Commission announced that it would produce a redacted
version of the retainer agreement to PEER. Id. at 3. It also conceded that its response to PEER’s
request for all records concerning the source of the funds used to pay Jackson Lewis was
inadequate, and stated that it would release to PEER records relating to that issue which were
obtained from the Commission’s “Acquisitions Department.” Id. at 3, 4. In the Commission’s
view, PEER’s arguments and motion for summary judgment were now moot because it was, at
that point, fully in compliance with FOIA. Id. at 4.
2
The case was reassigned by consent from the Honorable Emmet G. Sullivan to this Court in October 2011.
Reassignment [25] 1, Oct. 11, 2011.
3
Neither party has addressed Count 2 of PEER’s complaint, which brings a standalone claim for violation of the
APA. See Compl. [1] ¶26–27. The Court has found nothing in the docket indicating whether this is still a live
claim. However, in any event, the Court will dismiss the claim sua sponte since it arises from the Commission’s
response to the FOIA request and seeks the same relief as can be obtained through the FOIA claim itself. Muttitt v.
U.S. Cent. Command, No. 10-00202, 2011 WL 4478320, at *4 (D.D.C. Sept. 28, 2011).
3
However, in December 2010, Judge Sullivan denied both parties’ motions without
prejudice. Order [10] 1, Dec. 8, 2010. Judge Sullivan determined that he could not responsibly
address PEER’s FOIA claim absent additional action from the Commission. Id. at 3. First, he
ordered the Commission to submit an unredacted copy of the retainer agreement for in camera
inspection, in order to determine whether the Commission’s invocation of the attorney–client
privilege exemption was proper. Id. Second, Judge Sullivan found that the Commission’s
declaration in support of its motion was inadequate to support its contention that it had
performed an adequate search, and he provided the Commission with an opportunity to submit a
supplemental declaration correcting this deficiency. Id. at 4. Following his review of the
unredacted retainer agreement, Judge Sullivan ruled, in a minute order dated January 4, 2011,
that the Commission’s redactions were proper. Therefore, the only remaining issue on the table
was whether the Commission’s search was adequate under FOIA. A new round of summary-
judgment briefing was ordered, the parties filed these cross-motions, and they are now ripe for
decision in this Court.
III. LEGAL STANDARD
Summary judgment should be granted when the “materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations,
. . . admissions, interrogatory answers, or other materials” show “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)–(c). This standard requires more than the mere existence of some factual dispute between
the parties; “the requirement is that there be no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). “A fact is ‘material’ if a dispute over it might
affect the outcome of a suit under the governing law.” Holcomb v. Powell, 433 F.3d 889, 895
(D.C. Cir. 2006). “An issue is ‘genuine’ if the evidence is such that a reasonable jury could
4
return a verdict for the non-moving party.” Doe v. IRS, 706 F. Supp. 2d 1, 5 (D.D.C. 2009)
(citing Anderson, 477 U.S. at 248).
This Court reviews a motion for summary judgment arising from an agency’s decision to
withhold or disclose documents under FOIA de novo. Mead Data Ctr., Inc. v. Dep’t of Air
Force, 566 F.2d 242, 251 (D.C. Cir. 1977). In responding to a FOIA request, an agency must
conduct a reasonable search for responsive records. Oglesby v. U.S. Dep’t of Army, 920 F.2d 57,
68 (D.C. Cir. 1990); Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1352 (D.C. Cir. 1983).
An agency is not required to search every record system, but need only search those systems in
which it believes responsive records are likely located. Oglesby, 920 F.2d at 68. “An agency
fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was
‘reasonably calculated to uncover all relevant documents.’” Valencia-Lucena v. U.S. Coast
Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. U.S. Dep’t of State, 897 F.2d 540,
542 (D.C. Cir. 1990)). The agency carries the burden of demonstrating that it “made a good faith
effort to conduct a search for the requested records, using methods which can be reasonably
expected to produce the information requested.” Oglesby, 920 F.2d at 68. To meet this burden,
the agency may submit nonconclusory affidavits or declarations that explain in reasonable detail
the scope and method of the agency’s search. Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548,
551 (D.C. Cir. 1994). Such affidavits or declarations “are accorded a presumption of good faith,
which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of
other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting
Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). Failure to locate
specific documents does not render the agency’s search inadequate or demonstrate that the
search was conducted in bad faith. See Twist v. Gonzales, 171 F. Appx. 855, 855 (D.C. Cir.
2005). The inquiry is “whether the search was reasonably calculated to discover the requested
5
documents, not whether it actually uncovered every document extant.” SafeCard, 926 F.2d at
1201.
IV. THE PARTIES’ MOTIONS FOR SUMMARY JUDGMENT
The only question before this Court is whether the Commission has met its burden to
demonstrate that it conducted a search reasonably calculated to uncover “all” relevant
documents. See Weisberg, 705 F.2d at 1351. Sadly, the answer to this question is no. PEER
presented two, very straightforward, FOIA requests to the Commission. However, instead of
receiving that agency’s professional attention, PEER’s requests were either deliberately ignored
for reasons the Court can only speculate about, or (at a minimum) sloppily handled, with the
unfortunate results that a matter that ought to have taken very little time and effort to resolve has
been unnecessarily protracted and PEER’s entitlement to the disclosure of a narrow band of
agency records has been obstructed.
PEER’s FOIA request called for “[a]ll documents that evidence the source of the funds
used to pay for representation by Jackson Lewis in the matter concerning McCarthy v.
USIBWC.” Pl.’s SMF [16] 1 ¶1. In response to this request for documents, the Commission at
first performed no search and produced no documents whatsoever, providing PEER with only a
link to a website that the Commission apparently believed would answer whatever questions it
imagined that PEER had in making its FOIA request. Def.’s SMF [15] 2 ¶3. It was not until
PEER was forced to file suit in this Court that the Commission apparently realized that its
response to PEER’s document request was inadequate. Def.’s Mot. Summ. J. [6] 3, 4. It was at
this moment of realization that the Commission had an opportunity to finally perform an
adequate search. But that did not happen.
The Commission’s support for its argument that it performed an adequate search is
represented by two declarations. The first is from Eric Meza, who serves as the Commission’s
6
FOIA officer. Meza Decl. [24-1 ¶1, Sept. 8, 2011. Mr. Meza’s efforts to respond to PEER’s
FOIA request involved approaching a single employee: Elena Martinez, a “Purchasing Agent”
within the Commission’s “Acquisitions Division.” Id. ¶4. Ms. Martinez was apparently the
person who actually handled the payment of the Commission’s legal bills. Mr. Meza asked her
what documents she had that “explained the source of the funds” used to pay the first legal bill
from Jackson Lewis. Id. At this point Mr. Meza’s declaration refers only to what Ms. Martinez
told him or explained to him concerning her search, with the result that Mr. Meza’s comments
would only be admissible to corroborate Ms. Martinez’s statements, and would otherwise be
inadmissible hearsay. Therefore the Court will turn to Ms. Martinez’s comments on their own.
She states in her declaration that she located two categories of records related to PEER’s FOIA
request: an “Order For Supplies Or Services” and a “Requisition For Supplies Or Services.”
Martinez Decl. [24-2] ¶2, Sept. 8, 2011. She further states that she located documents reflecting
four payments made by the Commission to Jackson Lewis, dated November 30, 2009, February
19, 2010, November 16, 2010, and July 27, 2011. Id. ¶3. Mr. Meza, in his declaration, goes on
to explain 4 that these orders, in combination with another document provided to PEER, reveal
the source of the funds used to pay Jackson Lewis. See Meza Decl. [24-1] 4–8. Apart from this
information, nothing in these declarations provides any information about whether other offices
within the Commission might contain responsive records or why these offices were not searched.
These declarations fail to support the Commission’s contention that it has met its
obligation under FOIA to perform an adequate search for responsive records. First, as PEER
notes, Pl.’s Reply [23] 2, it is clear from Mr. Meza’s declaration and the Commission’s
4
It is not clear from Mr. Meza’s declaration whether he is merely reporting what Ms. Martinez told him—therefore
presenting an obvious hearsay problem—or stating his own personal knowledge concerning what the documents
provided to PEER reflect. However, the Court finds that even if it resolved this evidentiary issue in favor of the
Commission, the declarations would still fail to adequately support its claim that it performed an adequate search in
this case.
7
summary-judgment submissions that the agency only responded to a question that PEER did not
ask—that is, “Where did the funds come from that were used to pay Jackson Lewis?” PEER
didn’t ask the agency that, or any other, question. Rather, PEER made a routine FOIA records
request, calling for “[a]ll documents that evidence the source of the funds used to pay for
representation by Jackson Lewis in the matter concerning McCarthy v. USIBWC.” Pl.’s SMF
[16] 1 ¶1. The Commission’s obligation, under FOIA, was not to construe PEER’s request
narrowly as a call for the agency’s opinion on a question and to produce some records supporting
that unsolicited opinion; the agency’s obligation was to begin a search for “all” the documents it
had on the topic, and to set the stage for a reasonable search by identifying the agency
components and personnel that might have responsive records. This was not, contrary to the
Commission’s view, Def.’s Opp’n [21] 9, Aug. 22, 2011, a “reasonabl[e] interpret[ation]” of
PEER’s request. The most charitable reading of the Commission’s interpretation was that it was
reasonably calculated to provide PEER with as few documents as possible. By impermissibly
interpreting PEER’s records request so narrowly, the Commission could not have conducted an
adequate search.
The second problem in this case is that the Commission has the burden to prove that it
conducted an adequate search, yet its supporting declarations fail to show that such a search was
performed. An adequate search under FOIA must encompass all locations at the Commission
that are reasonably likely to contain records responsive to PEER’s request. See People for the
Amer. Way Found. v. DOJ, 451 F. Supp. 2d 6, 15 (D.D.C. 2006). Yet nowhere in its supporting
declarations does the Commission explain how it keeps its documents; which offices, and which
personnel, might reasonably be expected to have responsive records; and how it arrived at its
decision to search only the records of one employee in one office. See Defenders of Wildlife v.
U.S. Border Patrol, 623 F. Supp. 2d 83, 91 (D.D.C. 2009). Furthermore, PEER has identified a
8
number of other offices within the Commission where records responsive to its FOIA request
could possibly be located. See, e.g., Pl.’s Renewed Mot. Summ. J. [16] 4. Yet nowhere does the
Commission, even outside its supporting declarations, refute or address PEER’s reasonable
contention that responsive records may exist outside of the Acquisitions Division.
The Commission’s failure to adequately support its motion even with declarations of at
least the bare minimum of detail is particularly telling, and inexcusable, given that Judge
Sullivan specifically instructed the Commission, in his order denying without prejudice the
parties’ motions for summary judgment in December 2010, that its declaration was insufficient
to support its claim that it had met its obligations under FOIA. See Order [10] 4. At this point,
after the Commission has been given multiple opportunities to get it right, it is patently obvious
to the Court that the Commission, for reasons unknown, is simply persisting in blowing-off
PEER’s FOIA request. This is a sad state of affairs that this Memorandum Opinion and
accompanying Order will begin to rectify.
There is no genuine dispute here that the Commission has failed to conduct an adequate
search in this case, in violation of FOIA. Therefore, the Court will grant PEER’s motion for
summary judgment and deny the Commission’s. The Court further finds that declaratory relief is
proper in this case, because the Commission’s intransigence regarding PEER’s FOIA request
continues and there exists a cognizable danger that the Commission’s behavior will continue.
See Pub. Employees for Evntl. Responsibility v. U.S. Dep’t of Interior, No. 06-182, 2006 WL
3422484, at *9 (D.D.C. Nov. 28, 2006). Accordingly, the Court will declare that the
Commission is in violation of FOIA by failing to perform an adequate search for records
responsive to PEER’s FOIA request. The Court will remand this matter to the Commission, so
that it can finally perform an adequate search in conformity with this Memorandum Opinion and
accompanying Order. This search shall include a search of other offices at the Commission—
9
such as the Legal Adviser’s Office, the Commissioner’s Office, the Offices of the Chief
Administrative Officer, the Budget Office, the Information Management Division, and the
Records Management Office—or, at a minimum, explain in detail in nonconclusory affidavits
(that do not contain patent hearsay) why a search of those offices would not produce records
responsive to PEER’s FOIA request. In addition, this search shall embrace records created up to
and including the date of the search. Finally, the Court will order the Commission to submit to
PEER and file with this Court, alongside any responsive documents, a detailed Vaughn index
describing documents redacted or withheld and the Commission’s grounds for doing so. This
further search must be performed and the Vaughn index must be filed within sixty (60) days
following the date of this Memorandum Opinion. The adequacy of that Vaughn index will
determine whether in camera inspection of any such documents is ultimately necessary.
V. CONCLUSION
For the reasons stated above, the Court will grant plaintiff’s Renewed Motion [16] for
Summary Judgment and deny defendant’s Renewed Motion [15] for Summary Judgment.
A separate Order consistent with this Memorandum Opinion shall issue this date.
Signed by Royce C. Lamberth, Chief Judge, on February 7, 2012.
10