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Landmark Legal Foundation v. EPA

ELR Citation: 43 ELR 20199
Nos. 12-1726, (D.D.C., 08/14/2013) (Lamberth, J.)

A district court held that a nonprofit law firm may conduct limited discovery in connection with its FOIA request for records regarding any EPA rule or regulation for which public notice has not been made, but which was contemplated or under consideration for public notice, between January 1, 2012, and August 17, 2012. The genesis of the FOIA request was the firm's suspicion, based on news reports, that EPA may have intentionally delayed a "controversial" regulation until after the November 2012 presidential election. In response to the request, EPA disclosed thousands of documents, including emails sent between EPA accounts, including both the primary and secondary accounts of the former Administrator, as well as emails between EPA accounts and outside accounts, but not emails between the personal accounts of EPA leaders and non-EPA accounts. EPA then sought summary judgment as to the FOIA request. But genuine issues of material fact regarding the adequacy of EPA's search preclude summary judgment. The possibility that unsearched personal email accounts may have been used for official business raises the possibility that leaders in EPA may have purposefully attempted to skirt disclosure under FOIA. The possibility that the Agency purposefully excluded the top leaders of EPA from the search, at least initially, suggests an unreasonable and bad faith reading of the firm's FOIA request and subsequent agreement to narrow its scope. Moreover, EPA's briefing and affidavits on the facts and circumstances surrounding the second point contain numerous inconsistencies and reversals that undermine confidence in their truthfulness. The court therefore denied EPA's motion and ruled that limited discovery is warranted.