Pebble Ltd. P'ship v. EPA, No. 14-0199, 2015 U.S. Dist. LEXIS 117909 (D. Alaska Aug. 24, 2015) (Holland, J.)

Pebble Ltd. P'ship v. EPA, No. 14-0199, 2015 U.S. Dist. LEXIS 117909 (D. Alaska Aug. 24, 2015) (Holland, J.)

Re: Request for records concerning plaintiff's mining plans

Disposition: Granting in part defendant's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records & "Agency Records":  The court holds that "EPA's presentation constitutes a prima facie showing of adequate response to [plaintiff's] FOIA request."  The court explains that "[defendant's] declarations show that EPA's search was appropriately designed to retrieve relevant information from the various files maintained by EPA employees who were the subject of plaintiff's request."  Additionally, the court finds that "[t]he fact that over time EPA located and released additional documents subsequent to its initial response to plaintiff's FOIA request does not undermine the court's confidence in the search undertaken by the EPA."  "On the contrary, the fact that the EPA continued to work cooperatively with representatives of [plaintiff] reassures the court that the EPA did not purposefully withhold any records that should have been made available." 

The court also notes that, "[p]laintiff points out that the EPA's responses did not include any emails from [former employees'] personal email accounts."  "But [defendant's] declaration shows that the EPA's search of its records included communications of former employees."  "If [the former employees at issue] used personal facilities to send email or other communications to an EPA account, those communications would have been captured by the EPA's search."  "On the other hand, if [the former employees at issue] employed personal email accounts to communicate with someone else's personal email account about [plaintiff's] project, the EPA search would not have captured such communications."  "Such communications, existing exclusively on private servers, are not within the EPA's possession, and the EPA cannot be said to have withheld documents not within its possession."

• Litigation Considerations, Discovery:  The court holds that "plaintiff's request for discovery is denied."  The court notes that "discovery in FOIA cases is sparingly granted" and finds that "[t]he EPA's presentation constitutes a prima facie showing of adequate response to [plaintiff's] FOIA request."
   
• Litigation Considerations, In Camera Review:  "Encouraged by the suggestions of the parties that a privilege ruling on some of the documents could be extrapolated to resolve other disputes, the court will undertake an in camera review."
   
• Exemption 6:  The court finds that, "[w]ith respect to FOIA Exemption 6, that matter was not raised in [plaintiff's] complaint, nor is it addressed in its response to the EPA's motion for summary judgment."  "The court understands the matter to have been dropped."