Mo. Coal. for the Env't v. U.S. Army Corps of Engineers, No. 18-663, 2019 WL 1411063 (D.D.C. Mar. 28, 2019) (Kelly, J.)
Re: Request for records concerning Clean Water Act permit program run by Army Corps of Engineers
Disposition: Denying defendant's motion for summary judgment; granting plaintiff's motion for summary judgment
- Litigation Considerations: First, the court finds that "[plaintiff] has provided considerable evidence of a policy or practice by the Corps to improperly withhold non-agency documents related to pending Section 404 permits, and the Corps has offered scant evidence to rebut that showing." The court relates that "[plaintiff] has provided undisputed evidence of five instances, across two Corps districts, over four years, in which the Corps improperly withheld the same types of documents under Exemption 5." "The Corps' record of repeated and almost identical FOIA violations leads to the unavoidable conclusion that its decisions resulted from a policy or practice to withhold materials in the application files of pending Section 404 permit applications, even if those materials were not inter- or intra-agency records." "The Court cannot reasonably conclude that those decisions were isolated mistakes." "And because, as the parties agree, withholding materials on that basis violates FOIA, the policy or practice is unlawful." Second, in terms of remedy, the court finds that "[g]iven the Court's conclusion that the Corps has employed the above policy or practice in violation of FOIA, [plaintiff] is, at a minimum, entitled to a declaratory judgment." However, "the Court finds that injunctive relief is not warranted." "[Defendant] [has] affirmed in multiple declarations that [their] current position . . . is that Exemption 5 does not apply to non-agency records in Section 404 permit application files." "Ultimately, the Court finds 'no record evidence to overcome the presumption of adherence [to the law declared by the Court] to which the [Corps] is entitled.'"