Energy Pol'y Advocs. v. U.S. Dep't of the Interior, No. 21-1247, 2021 WL 4306079 (D.D.C. Sept. 22, 2021) (Boasberg, J.)

Energy Pol'y Advocs. v. U.S. Dep't of the Interior, No. 21-1247, 2021 WL 4306079 (D.D.C. Sept. 22, 2021) (Boasberg, J.)

Re:  Request for records concerning Senior Counselor to the Secretary

Disposition:  Denying plaintiff's motion for summary judgment; granting defendant's cross-motion for summary judgment

• Procedural Requirements, Expedited Processing:  The court holds that "Plaintiff has not carried its burden of establishing that expedited processing is justified."  The court relates that "[plaintiff] contends that it satisfies the standard laid out in the second definition, ["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,"] which is mirrored in Interior's regulation."  First, the court finds that "the section of [plaintiff's] request titled 'Expedited Processing' does not establish that the organization is primarily engaged in disseminating information."  "Recall that the pertinent excerpt of that section states merely that [plaintiff] has 'status as an entity primarily engaged in disseminating information and recognized status for these purposes as a media requester.'"  "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 [plaintiff] has previously been considered an entity primarily engaged in disseminating information."  "Such conclusory assertions tell the Court nothing specific about [plaintiff'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."  "Courts have looked to that section in making their disseminating-information assessment . . . and here the section complicates how best to characterize [plaintiff]."  "For instance, [plaintiff] there states that it 'is dedicated to obtaining and disseminating information relating to energy and environmental public policy.'"  "More specifically, the section also explains that [plaintiff] 'publishes its findings regularly through the organization's website,' that its 'work is frequently cited in newspapers and trade and political publications,' and that [plaintiff] '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.'"  The court finds that "[w]hile the Fee Waiver section thus provides some evidence that [plaintiff] 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."
  
  Regarding urgency, the court finds that "[i]n 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.'"  "Elsewhere in the request, [plaintiff] raised questions about 'the massive potential scope of [the Senior Counselor to the Secretary'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.'"  "The request also points to '[r]ecent news articles' from April 2021 'discussing [the Counselor's] reassignment [within Interior] and her role with her former employer.'"  "It also suggests that 'it is reasonable to expect that [the Counselor] has already played a key role in numerous deliberations, decisions and actions taken since January 21, 2020.'"  The court holds that "[t]hose broad assertions do not establish that [plaintiff'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."  "While the request 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."  "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."  The court relates that "[plaintiff] counters that its request deserves priority because '[the Counselor's] potential conflicts are currently the subject of on-going media and public interest, as made clear in Plaintiff's pleadings and the subsequent public record.'"  "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."  "And while EPA has pointed to limited news coverage relating to [the Counselor], 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."
  
  Additionally, the court finds that "[e]ven if it comes up short on the merits, [plaintiff] maintains that it is nonetheless entitled to summary judgment because Interior provided no substantive explanation for denying the request to expedite."  "Although [plaintiff] 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.'"