S. Envtl. Law Ctr. v. Council on Envtl. Quality, No. 18-00113, 2019 WL 4417486 (W.D. Va. Sept. 16, 2019) (Conrad, J.)

S. Envtl. Law Ctr. v. Council on Envtl. Quality, No. 18-00113, 2019 WL 4417486 (W.D. Va. Sept. 16, 2019) (Conrad, J.)

Re:  Request for records concerning Advanced Notice of Proposed Rulemaking

Disposition:  Denying plaintiff's motion for judgment on pleadings

• Litigation Considerations, Pleadings & Exhaustion of Administrative Remedies:  The court holds that, "[f]irst, an agency's failure to comply with the default 20-day deadline for making a 'determination' of whether to comply with a FOA request does not entitle the requesting party to the actual production of the records at issue."  "Instead, it allows the requesting party to 'proceed directly to court' without having to exhaust administrative remedies."  "Second, the court is unable to conclude from the pleadings that agency records have been 'improperly withheld' by CEQ."  "In its answer, CEQ asserted that some or all of the requested records may be fully exempt from release under FOIA."  "Additionally, the adequacy of CEQ's search is 'dependent upon the circumstances of the case,' . . . as is whether the agency has made responsive non-exempt records 'promptly available,' . . . ."  "Because all of these issues require the consideration of evidence outside the pleadings, [plaintiff] is not entitled to judgment under Rule 12(c)."