Request for records regarding any EPA rule or regulation for which public notice had not been made, but which was contemplated or under consideration for public notice between January 1, 2012 and August 17, 2012
Denying defendant's request for summary judgment; granting plaintiff's request for limited discovery
- Searching for Responsive Records: The court "finds that two issues require factual development before it could find an adequate search has been conducted." First, "[defendant] did not search personal email accounts." "[Plaintiff] points to one disclosed record—an email originating from [a] personal email account . . . as evidence that upper-level [defendant] officials conducted official business from their personal email accounts." The court notes that, "[defendant] never addresses [plaintiff's] allegation that official business was being conducted from the personal email accounts." "Instead, [defendant] states only that it 'searched for and produced responsive documents from outside parties and accounts that were in its possession and control.'" The court finds that, "[plaintiff's] allegations regarding the 'existence and discoverability of other documents' are not 'purely speculative,' and are therefore sufficient to rebut the presumption of good faith that attaches to the agency's declarations." Second, the court finds that, "the record leaves open the possibility that, one way or another, [defendant] engaged in bad faith conduct by excluding the top politically appointed leaders . . . from [plaintiff's] FOIA request at least initially." The court finds that "no reasonable interpreter could read [plaintiff's] email agreeing to narrow its request to 'senior officials at [defendant] HQ' as an agreement to exclude the Administrator—the top political appointee in the agency." The court determines that the "possibility that [defendant] engaged in such an apparently bad faith interpretation, raised by [plaintiff's] allegations and supported by [defendant's] inconsistent filings, precludes this court from entering summary judgment in [defendant's] favor as to the adequacy of the search."
- Discovery: The court "finds that limited discovery is appropriate here." The court states that, "[t]he two outstanding issues of fact precluding summary judgment both point to issues that may indicate bad faith on the part of the agency." "The possibility that unsearched personal email accounts may have been used for official business raises the possibility that leaders in [defendant agency] may have purposefully attempted to skirt disclosure under the FOIA." "The possibility that the agency purposefully excluded the top leaders of [defendant agency] from the search, at least initially, suggests an unreasonable and bad faith reading of [plaintiff's] FOIA request and subsequent agreement to narrow its scope." The court holds that, "[m]oreover, as reviewed above, [defendant's] briefing and affidavits on the facts and circumstances surrounding the second point contain numerous inconsistencies and reversals which undermine confidence in their truthfulness."
- Referral to Special Counsel: The court declines to refer the matter to the special counsel. The court explains that, "[b]ecause the court finds that discovery is warranted to address the adequacy of the search along the two fronts listed above, it need not address whether discovery is separately warranted to pursue the possibility that [a defendant] agent acted 'arbitrarily or capriciously' under 552(a)(4)(F)." The court "leaves the question of whether to issue 'written findings' pursuant to this section for another day when the factual record is more fully developed."