Surgey v. EPA, No. 18-654, 2021 WL 5758880 (D.D.C. Dec. 3, 2021) (Kelly, J.)

Surgey. EPA, No. 18-654, 2021 WL 5758880 (D.D.C. Dec. 3, 2021) (Kelly, J.)

Re:  Request for records concerning trip taken by former EPA Administrator to attend 2018 Rose Bowl college football game

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "[t]he EPA has largely carried its burden."  "As explained above, the EPA searched several areas likely to have records responsive to [plaintiff's] request."  The court relates that "The EPA explained in an affidavit that [its] 'search terms would locate responsive records' because 'football,' 'rose bowl,' 'sooner*,' or 'bulldog*' would capture records about the Rose Bowl trip, as the University of Oklahoma Sooners played the University of Georgia Bulldogs in the 2018 Rose Bowl game."  "Meanwhile, 'Pasadena' and 'Huntington Beach' would 'capture records that refer to the location of the trip but that do not specifically mention the football game.'"  The court finds that "[t]he EPA was not required, as [plaintiff] argues, to expand its search to capture 'all records concerning all parts of' the [former EPA Administrator's] family's vacation in California regardless of their relation to the Rose Bowl game."  "[T]he EPA properly construed [plaintiff's] request as limited to records related to the former Administrator's trip to and attendance at the Rose Bowl game. "  "True, as [plaintiff] points out, the request goes on to describe the records sought as ones 'that describe the trip to Pasadena, the Rose Bowl game, and any associated meetings or events that took place on the same trip.'"  "But including 'any associated meetings or events that took place on the same trip,' does not suddenly sweep in all documents related to the former Administrator's vacation as a whole."  "Such an interpretation ignores the description of the relevant 'trip' as the one to Pasadena and the Rose Bowl game."  "The Court also agrees with the EPA that it did not need to search its Ethics Office for responsive records."  "Here, there is no reason to think that the Ethics Office would have any responsive documents."  "The EPA has explained that '[t]he Administrator's trip to the 2018 Rose Bowl was a personal family vacation.'"  "And since [plaintiff] filed his cross-motion for summary judgment, the agency has clarified that the 'EPA's Ethics Office of the General Counsel was not consulted regarding [that] . . . trip to the Rose Bowl or [the Administrator's] travel to California.'"  "'Because the Ethics Office was not consulted regarding the trip to California,' the EPA decided that 'there was no reason to search that office for records.'"  "There is, however, one problem:  the EPA 'has failed to invoke the magic words concerning the adequacy of the search – namely, the assertion that [the EPA] searched all locations likely to contain responsive documents.'"  "The Court will therefore reserve judgment on the adequacy of the EPA's search."  "Assuming the agency can provide a supplemental declaration showing that it searched all locations likely to contain responsive material, the Court will grant it summary judgment on the adequacy of its search."
   
• Exemption 6:  The court holds that "The EPA . . . properly withheld under Exemption 6 additional details about how [the] former Administrator . . . and his family spent their family vacation."  First, the court notes that "the parties agree that details about how the former Administrator and his family spent their vacation is 'personnel, medical, or similar' in nature."  Regarding the privacy interests, the court finds that "[t]he information would 'allow for an inference to be drawn about the financial situation of' the [former Administrator's] family."  "Also, '[r]elease could expose the family to unwarranted media attention and harassment.'"  "And that threat is not 'speculative.'"  "[Plaintiff] himself points to the media attention the [former Administrator's] family already received over their Rose Bowl trip."  Responding to plaintiff's argument, the court finds that "even if the former Administrator's family's vacation did include tourist activity that was in a sense public, that 'does not mean that' the family 'has no interest in limiting disclosure or dissemination of the information.'"  Regarding the public interest, the court finds that "[t]he public's interest is . . . prevalent here, where [plaintiff] points to at least some evidence that [the] former Administrator . . . or those around him misused agency resources before."  However, the court finds that "it is hard to see how releasing further details about how the former Administrator spent his personal family vacation 'is likely to advance' the identified public interest . . . ."  "[Plaintiff] already has the family's itinerary dated the day the trip began."  "The information disclosed includes key locations where the family would be present on each day – in particular, the Rose Bowl or Disneyland – and the hotels at which they were staying."  "This should give [plaintiff] all he needs to determine 'how agency resources were expended to cover travel expenses for the [Private Security Detail] on [the former EPA Administrator's] trip to California.'"  "Any added value provided by knowing further details of where the former Administrator's family otherwise 'dined, stayed, or spent time' would be marginal at best."
   
• Exemption 7(E) & Exemption 7(F):  The court relates that "EPA redacted information about the Protective Service Detail's travel and logistical coordination under [Exemptions 7(E) and 7(F)]."  The court relates that "[t]he parties agree that the Protective Service Detail's logistical coordination information and travel details both constitute 'information compiled for law enforcement purposes.'"  "To the extent that the information withheld concerns security staffing, [the] Court agrees with the EPA that the information would be properly withheld under Exemption 7(E) or 7(F)."  "The agency has explained that the redacted staffing-related information would allow the public to 'know the number of [Protective Service Detail] agents traveling with the Administrator during specific trips (some of whom may be undercover agents).'"  "Even if there is 'no final, approved standard operating procedure[ ]' for Protective Service Detail staffing, . . . such information still 'would reveal an aspect of a resource allocation scheme' . . . ."  "Indeed, that information, 'when extrapolated, enable[s] a person to predict the number of agents assigned [and] . . . the protective means and methods.'"  "It is reasonable for the EPA to expect someone to use that information 'to counteract [the Protective Service Detail's] security measures' and 'circumvent the law,' rendering the Protective Service Detail ineffective during a future attack."  "All that said, the Court ultimately agrees with [plaintiff] that the record suggests that at times, the EPA may be applying Exemptions 7(E) and 7(F) to neither staffing nor logistical coordination information, like where the Protective Service Detail went or stayed during the family's trip."  "And the Court is inclined to agree with [plaintiff] that such information would not create a reasonable risk of circumvention or endangerment, thereby preventing the application of Exemptions 7(E) or 7(F)."  "But on this record, the Court cannot say for sure that the agency is applying Exemption 7(E) or 7(F) to such information."  "The disclosed portions of the records provide helpful context, but still this Court cannot tell exactly what information is being withheld, so that it may assess the applicability of these exemptions."  "The Court will therefore reserve judgment on the EPA's decision to withhold the Protective Service Detail's logistical coordination and travel details under Exemptions 7(E) and 7(F) until the EPA elaborates on the information being withheld."
   
• Exemption 6 & Exemption 7(C):  "As for the EPA's application of Exemptions 6 and 7(C) to the Protective Service Detail's travel information, the Court again finds itself unable to award judgment to either party."  "The agency says that revealing travel details 'like airline names, airport codes, and confirmation numbers would reveal information about travel operations' . . . yet does not explain how those details would reveal anything of an 'intimate personal nature,' which is the type of 'disclosure[ ] with which the statute is concerned' . . . ."  "Meanwhile, [plaintiff] never tries to identify a public interest in disclosure . . . ."  "Given the omissions on both sides, the Court will reserve judgment on this issue as well and deny both parties' motions for summary judgment accordingly."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court will therefore wait to address the segregability of [certain information discussed above], but otherwise find that the EPA met its segregability burden as to all other withholdings."  The court relates that "[defendant] has provided a Vaughn index, and it declared that 'the Agency has segregated releasable information when possible.'"