Lipton v. EPA, No. 17-2588, 2018 WL 3369681 (D.D.C. July 10, 2018) (Bates, J.)
Re: Request that the calendars of the EPA Administrator be made available on a rolling basis under 5 U.S.C. § 552(a)(2)
Disposition: Denying plaintiff's partial motion for summary judgment and granting defendant's partial motion for summary judgment
- Proactive Disclosures, Subsection (a)(2): In determining "whether the [EPA] Administrator's detailed calendar—including both existing and future entries—constitutes a single 'agency record' which must be continuously published under [5 U.S.C. 552 § (a)(2)(D),]" the court explains that the reading-room provision "only requires an agency to make publicly available documents that have already been created, requested, and released in the past." The court states, "the ordinary understanding has long been that a 'record' is an existing document or other permanent, preserved account of past events." "Reading both § 552(a)(2)(D) and FOIA as a whole further clarifies that the Administrator's detailed calendar is not a single, continuous 'record' that must be produced in perpetuity under the reading-room provision." While the court acknowledges that "[g]iven the strong interest many organizations have shown in the Administrator's daily calendar, EPA would do well to consider . . . releasing the calendar on a rolling basis." Nevertheless, the court holds that the "FOIA does not require [the government] to publish any calendar entries under § 552(a)(2)(D) until that provision's prerequisites have been met."