THOMAS O. RICE, District Judge.
BEFORE THE COURT is Defendant's Motion for Summary Judgment (ECF No. 34) and Plaintiff's Cross Motion for Partial Summary Judgment (ECF No. 39). This
This case concerns Plaintiff's Freedom of Information Act ("FOIA") requests to the Environmental Protection Agency ("EPA") regarding information about certain dairies in the Lower Yakima Valley, Washington, and nitrate contamination in residential drinking water near the dairies. In the motion now before the Court, Defendant EPA seeks summary judgment on Plaintiff's claims and Plaintiff cross-moves for partial summary judgment on Counts I, II, III and V.
In September 2012, an EPA report, "Relation Between Nitrate in Water Wells and Potential Sources in the Lower Yakima Valley" ("Yakima Valley Nitrate Study"), found that the dairies in the study ("Yakima Valley Dairies") are a likely source of nitrate in the residential drinking water wells downgradient of the dairies. ECF No. 35 at 2. Based on the results of the Yakima Valley Nitrate Study, the EPA offered to negotiate an agreement with the Yakima Valley Dairies. Id. On March 6, 2013, the EPA reached a legal agreement—the Administrative Order of Consent ("AOC")—with four of the Yakima Valley Dairies regarding the nitrate pollution. Id. at 2-3. The dairies were: Cow Palace, LLC; George DeRuyter & Son, LLC and George & Margaret, LLC (part of both D & A and George DeRuyter & Sons Dairy); Liberty Dairies, LLC and H & S Bosma Dairy (part of Liberty Dairy); and D & A Dairy, LLC. Id. at 3. The EPA contends that it was in negotiations with R & M Haak & Sons Dairy, which was also mentioned in the study. Id. But CARE contends that the EPA knew that the Haaks had no financial resources to address the AOC criteria and that subsequent EPA actions indicate that no negotiations were occurring with the Haaks. ECF No. 39-2 at 2.
On February 14, 2013, CARE filed lawsuits against the four Yakima Valley Dairies that entered into the agreement with the EPA. ECF No. 35 at 3. Shortly before doing so, CARE began to submit FOIA requests to the EPA regarding the dairies and the nitrate pollution.
On January 29, 2013 at 4:50 p.m. Pacific Time, CARE submitted its first FOIA request to the EPA ("FOIA Request One"), requesting electronic copies of all preliminary and/or final sampling results of the groundwater sampling in the Yakima Valley. ECF No. 35 at 4; ECF No. 41-1 at 2. The EPA contends that the 20-day statutory deadline for this request was February 28, 2013. ECF No. 35 at 5. CARE's counsel Charles Tebbutt sent a letter to the EPA Region 10 Administrator stating that CARE believed February 27 was the response deadline. Id. EPA Region 10 Counsel Allyn Stern contacted CARE attorneys Tebbutt and Daniel Snyder and informed them that the EPA would require additional time to complete the request. Id. The EPA provided written notice that, pursuant to the Agency's FOIA regulations under 40 C.F.R. § 2.104(d), the EPA would need an additional ten working days to complete FOIA Request One, until March 14, 2013. Id. The notice indicated that the extension was required because of "[t]he need for consultation, which shall be conducted with all practicable speed, with another agency or EPA offices [sic] having a substantial subject-matter interest in
CARE also states that CARE's counsel spoke with Allyn Stern, Regional Counsel for EPA Region 10, on February 28. ECF No. 39-1 at 2. CARE maintains Stern informed him that the EPA would not make a timely determination on Request One; that the agency was seeking a time extension based on unusual circumstances; and that the EPA had located responsive records and was not reviewing them for disclosure exemptions under the FOIA, and would not produce responsive documents until after the terms of the AOC were agreed to by the EPA and the dairies. Id.
CARE submitted its second FOIA request ("FOIA Request Two") seeking records of communications exchanged between the dairies and EPA on Friday February 1, 2013 at 4:17 p.m. Pacific Time. ECF No. 35 at 6; ECF No. 41-2 at 2. The EPA states that the appropriate program office was assigned the request on February 6, 2013. ECF No. 35 at 6. CARE states that it received electronic notification that it had made the request on February 1. ECF No. 39-1 at 4. On March 5, 2013, the EPA sent a notice to CARE stating that the Agency required an extension because of "[t]he need for consultation, which shall be conducted with all practicable speed, with another agency or EPA offices having a substantial subject-matter interest in your request." ECF No. 35-4. The notice states that the new deadline for a disclosure determination is "ten days from today, March 21, 2013." ECF No. 35-4, Exhibit 14 (emphasis in original).
The EPA responded to FOIA Request Two on March 28, 2013, requesting written assurance of payment so that the agency could complete the request. ECF No. 35 at 7. CARE issued payment on April 12, 2013. Id. The EPA provided CARE with its response to FOIA Request Two by granting in-part the release of approximately 43 records, and partially denied the request by withholding records under Exemption 4 and Exemption 7(A). Id. The EPA states that this response was dated April 30, 2013, while CARE maintains that it was May 2, 2013, and that the response was only an "interim response." ECF No. 39-2 at 8.
Exemption 7(A). The EPA withheld 61 records under Exemption 7(A), which were comprised of communications between the Agency and the Yakima Valley Dairies that pertained to settlement negotiations. ECF No. 35 at 8. On May 30, 2013, CARE appealed the EPA's response. Id. The EPA did not issue a final appeal determination regarding Exemption 7(A) on June 27, 2013. Id. CARE filed its complaint on June 28, 2013. ECF No. 35 at 8. On July 9, 2013, Haak Dairy's counsel informed the EPA that the dairy sold all of its cows.
ECF No. 35-5. The EPA granted the Dairies' extension request. ECF No. 35 at 10. The agency received the substantiations from the three Yakima Valley Dairies on June 7, 2013. Id. On March 11, 2014, the Agency issued an adverse determination on a subset of the three dairies' CBI claims.
On July 21, 2014, two days before the hearing on the motions now before the Court, the EPA filed a Notice of Case Update Regarding EPA's Final Confidentiality Determination. ECF No. 55. In it, the EPA states that it has determined that the information claimed as confidential by the dairies is not a trade secret or confidential business information, and will accordingly be released to CARE subject to the EPA's regulations at 40 C.F.R. § 2.205(f). ECF No. 55 at 2.
Care submitted its third FOIA request ("FOIA Request Three") on July 12, 2013. ECF No. 35 at 11. The EPA contends that the request was submitted after 5 p.m. Eastern Time, and therefore received it on July 15, 2013. Id. On July 15, 2013, the EPA contacted CARE to clarify the scope of its FOIA request. ECF No. 35 at 12. On August 12, 2013, the Agency notified CARE that pursuant to its FOIA regulations under 40 C.F.R. § 2.104(d), the EPA would need additional time—until August 28, 2013—to complete FOIA Request Three. ECF No. 35-6, Exhibit 34. The EPA contends that this is a 10-day extension; CARE contends it was 12-day extension. On August 27, 2013, the EPA issued its response to FOIA Request Three and released 74 records. ECF No. 35 at 12. It also withheld certain information. Id. The EPA states that the records were withheld pursuant to FOIA Exemption 6, and that under this exemption it redacted personal information about the well users and dairymen. ECF No. 35 at 12. CARE contends that this justification is materially different than what the EPA told CARE in its August 27, 2013, letter;
The EPA maintains that the EPA also redacted another subset of information related to ongoing litigation in United States District Court in Minnesota. ECF No. 35 at 12. CARE contends that the EPA did not indicate which information was being redacted under which exemption or pursuant to a private agreement with a private litigant. ECF No. 39-2 at 14.
CARE submitted its fourth FOIA request ("FOIA Request Four") on August 28, 2013. ECF No. 35 at 14. The EPA states that the Region 10 FOIA Office received FOIA Request Four on August 29, 2013 and Region 10 was assigned as the lead office for this FOIA request. Id. The Region 10 FOIA Officer reassigned FOIA Request Four to the Headquarters FIOA Office on September 3, 2013. Id. at 15. The FOIA Office for the Office of Water received FOIA Request Four on September 4, 2013, and the deadline was calculated to be October 1, 2013. Id. CARE contends that the deadline should have been 20 days after the Agency's initial receipt of the request on August 28, 2013. ECF No. 39-2 at 16. On September 30, 2013, the EPA informed CARE that it would not complete FOIA Request Four within the 20-day statutory period because of "unusual circumstances," including the "Agency's need to search for an collect the requested records from field facilities or other establishments that are separate from the office processing the request." ECF No. 35-6, Exhibit 39. The notice stated that the Agency would respond to FOIA Request Four on or before October 16, 2013. Id. After the Federal Government reopened, the EPA contacted CARE on October 24, 2013, to request an alternative deadline of December 16, 2013, to complete FOIA Request Four, citing the federal government shutdown (between the end of the day September 30, 2013, and October 17, 2013). ECF No. 35 at 15-16. This extension sought more than the statutory 10-day extension. The
On June 28, 2013, CARE filed the lawsuit against the EPA now before the Court. ECF No. 1. On February 4, 2014, CARE amended its complaint, alleging:
ECF No. 20.
CARE asks that the Court:
ECF No. 20.
In the motions now before the Court, the EPA moves for summary judgment on CARE's claims, contending that (1) this Court lacks jurisdiction over CARE's claims; (2) that CARE fails to state a claim for which relief can be granted; (3) that CARE's claims are moot because no agency records have been improperly withheld; (4) that the EPA properly withheld documents under Exemption 7(A), then properly released them under changed circumstances; (5) that CARE cannot establish that the EPA engaged in a pattern or practice of violating FOIA; (6) CARE has not exhausted its administrative remedies for its CBI claims and the court lacks subject matter jurisdiction; and (7) CARE fails to state a claim under the Administrative Procedure Act. CARE cross-moves for summary judgment on Counts I, II, III and V.
Under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, federal agencies must make their records available to the public upon request, subject to nine discretionary exemptions. See Milner v. Dep't of Navy, 562 U.S. 562, 131 S.Ct. 1259, 1262, 179 L.Ed.2d 268 (2011). This case presents four FOIA issues: (1) whether the FOIA provides a cause of action for violations of regulations and statutory provisions about timeliness and procedure after the agency has produced the requested records; (2) whether instances of lateness, improper withholding and allegations of future harm are sufficient to constitute a "pattern and practice" of violations under the FOIA; (3) under what circumstances a plaintiff "substantially prevails" under the FOIA's fee-shifting provision; and (4) whether the Administrative Procedure Act ("APA") provides a cause of action for an agency's violations of FOIA procedure.
Summary judgment may be granted to a moving party who demonstrates "that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party to identify specific genuine
For purposes of summary judgment, a fact is "material" if it might affect the outcome of the suit under the governing law. Id. at 248, 106 S.Ct. 2505. A dispute concerning any such fact is "genuine" only where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. In ruling upon a summary judgment motion, a court must construe the facts, as well as all rational inferences therefrom, in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Only evidence which would be admissible at trial may be considered. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir.2002).
The Freedom of Information Act ("FOIA") gives individuals a judicially-enforceable right of access to government agency documents. Lion Raisins v. U.S. Dep't of Agric., 354 F.3d 1072, 1079 (9th Cir.2004) (citing 5 U.S.C. § 552). The Supreme Court has interpreted the disclosure provisions of FOIA broadly, noting that the act was animated by a "philosophy of full agency disclosure." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989); see also Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ("disclosure, not secrecy, is the dominant objective of the Act"). In order to prevent disclosure of a limited class of sensitive government documents, FOIA lists nine statutory exemptions. 5 U.S.C. § 552(b)(1)-(9). Unlike the disclosure provisions of FOIA, its statutory exemptions "must be narrowly construed." John Doe Agency, 493 U.S. at 152, 110 S.Ct. 471.
Defendant EPA argues that the FOIA provides no cause of action for Plaintiff's claims that the EPA failed to provide a timely and legally adequate determination on Request Two ("Count I") and to abide by statutory and regulatory procedures in responding to and processing CARE's FOIA requests ("Count II"). The Court agrees.
Under 5 U.S.C. § 552(a)(4)(B), jurisdiction over FOIA claims is dependent upon a showing that an agency has (1) "improperly"; (2) "withheld"; (3) "agency records." Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). "Judicial authority to devise remedies and enjoin agencies can only be invoked, under the jurisdictional grant conferred by § 552, if the agency has contravened all three components of this obligation." Id. See also Payne Enterprises, Inc. v. United States, 837 F.2d 486, 491 (D.C.Cir.1988) ("A declaration that an agency's initial refusal to disclose requested information was unlawful, after the agency made that information available, would constitute an advisory opinion in contravention of Article III of the Constitution.").
Here, the EPA has produced all records responsive to FOIA Request One, ECF No. 35 at 8; has produced all records responsive to FOIA Request Two except those withheld under Exemption 4, which will be released to CARE per its Notice of Case Update (ECF No. 55); has produced all records requested under Request Three and withheld pursuant to the AFBF litigation; and has produced records pursuant to Request Four except for the approximately
Furthermore, production of requested nonexempt material moots FOIA claims. Papa v. United States, 281 F.3d 1004, 1013 (9th Cir.2002) ("Defendants correctly cite authority for the proposition that the production of all nonexempt material, `however belatedly,' moots FOIA claims.") (citing Perry v. Block, 684 F.2d 121, 125 (D.C.Cir.1982); 5 U.S.C. § 552); See also Yonemoto v. Dep't of Veterans Affairs, 305 Fed.Appx. 333, 334 (9th Cir. 2008) (unpublished) (citing Papa, 281 F.3d at 1013, and holding that the VA's production of redacted material in the discovery process of his EEOC claim moots his FOIA claims); Walsh v. U.S. Dep't of Veterans Affairs, 400 F.3d 535, 536 (7th Cir. 2005) ("In general, `[o]nce the government produces all the documents a plaintiff requests, her claim for relief under the FOIA becomes moot.'"); Carter v. Veterans Admin., 780 F.2d 1479, 1481 (9th Cir. 1986) ("We hold, however, that since Carter's complaint sought injunctive relief directing the V.A. to provide the documents he requested, it was mooted when the V.A. voluntarily mailed copies of the regulations to Carter.").
Plaintiff contends that the failure to make a timely determination is an improper withholding under the FOIA, even if the documents are later produced. ECF No. 52 at 2 (citing Oregon Natural Desert Ass'n v. Gutierrez, 409 F.Supp.2d 1237, 1248 (D.Or.2006) (hereinafter "ONDA")). The ONDA court held "that an untimely response is a violation of FOIA, regardless of the final outcome of the request." Id. In ONDA, "[the Agency] responded well past the statutory time limits, with the first request extending from April 30, 2004 to a response on December 20, 2004 and the second request occurring on January 7, 2005 but never receiving a technically complete response. The information provided on March 7, 2005 did not explain [the requestor's] appeal rights." Id. In ONDA, the agency responded well past the statutory time limits, waiting eight months to respond to one of the plaintiff's requests and not providing an adequate response to a second request. Id. Plaintiff contends that, though the EPA made a response, it did not make a determination, as defined in Citizens for Resp. and Ethics in Wash. v. FEC, 711 F.3d 180, 185 (D.C.Cir.2013) (hereinafter "CREW"). As such, the EPA's determination on Request Two is a year late, CARE argues, and falls into the egregious lateness giving rise to a cause of action described in ONDA. In CREW, the D.C. Circuit has held that to constitute a determination, "within the relevant time period, the agency must at least inform the requester of the scope of the documents that the agency will produce, as well as the scope of the documents that the agency plans to withhold under any FOIA exemptions." Id. at 185. "The statute requires that, within the relevant time period, an agency must determine whether to comply with a request—that is, whether a requester will receive all the documents the requester seeks." Id. at 188-89.
Thus, the Court finds that there is no cause of action under FOIA for Counts I and II.
Despite this, an agency's time limit and procedural violations may warrant a remedy under the FOIA if there is a pattern and practice of such violations. Plaintiffs may bring a claim alleging a pattern and practice of unreasonable delay in responding to FOIA requests. Hajro v. U.S. Citizenship & Immigration Servs., 832 F.Supp.2d 1095, 1107 (N.D.Cal.2011) ("It is undisputed that a plaintiff may bring a claim alleging `a pattern and practice of unreasonable delay in responding to FOIA requests.'"); see also Liverman v. Office of the Inspector Gen., 139 Fed.Appx. 942, 944 (10th Cir.2005) (quoting Mayock v. Nelson, 938 F.2d 1006, 1008 (9th Cir. 1991)); Gilmore v. U.S. Dep't of Energy, 33 F.Supp.2d 1184, 1189 (N.D.Cal.1998) (finding that plaintiff may allege a pattern or practice of untimely responses to his FOIA requests even if a court already has determined that the documents sought were not improperly withheld). The Court has jurisdiction to hear a claim alleging a pattern and practice of unreasonable delay in responding to FOIA requests, even where the plaintiff's FOIA request had already been resolved. See, e.g., Payne Enter., Inc. v. United States, 837 F.2d 486, 490-91 (D.C.Cir.1988) (production of documents does not moot pattern or practice claim). "Injunctive relief is warranted in order to remedy a pattern and practice of FOIA violations by an agency where there is `a probability that alleged illegal conduct will recur in the future.'" Hajro, 832 F.Supp.2d at 1108 (quoting Long v. United States Internal Revenue Service, 693 F.2d 907, 909 (9th Cir.1982)). "In deciding whether to grant an injunction, the court must consider the effect on the public of disclosure or nondisclosure, the good faith of any intent to comply expressed by the agency, and the character of past violations." Id. (citing Long, 693 F.2d at 909).
Count V of CARE's Second Amended Complaint alleges that the EPA engaged in a pattern, practice, and/or policy of unreasonably and unlawfully withholding records responsive to FOIA requests. ECF
Defendant EPA contends that CARE has suffered no injury in fact from any alleged untimely production of documents. The Supreme Court has established that the minimum constitutional requirements for standing are: (1) the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) it must be likely, as opposed to speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The party invoking federal jurisdiction bears the burden of establishing standing. Id. at 561, 112 S.Ct. 2130.
A district court in the Ninth Circuit has held that an agency's failure to process a FOIA request "in a timely manner was itself an injury—an invasion of a legally protected interest, as defined in Defenders of Wildlife." Gilmore v. U.S. Dep't of Energy, 33 F.Supp.2d 1184, 1188-89 (N.D.Cal.1998). The court explained that "Congress has made it clear that a person filing a FOIA request has a concrete interest in prompt processing of that request." Id. at 1189. In Gilmore, the agency properly denied plaintiffs December 8, 1993 FOIA request, but did so long after the deadline for responding, on May 2, 1994. Id. at 185.
Here, the Court agrees with the Gilmore court that CARE's interest in the timely production of the documents is sufficient to meet the "injury-in-fact" requirement for standing. Thus, the Court will consider the merits of Plaintiffs pattern and practice claim.
CARE first contends that the EPA exceeded the 20-day deadline for responding to Requests One and Two. The EPA's FOIA implementing regulations state that "[u]nless the Agency and the requester have agreed otherwise, or when unusual
CARE contends that the deadline for Request One was February 27, 2013, but that the EPA sent no extension request until February 28, 2013, and that records were not produced until after the terms of the AOC were agreed to on March 5, 2013. ECF No. 39-1 at 3-4. The EPA contends that CARE has calculated the dates incorrectly, and that the confirmation of receipt to which CARE refers (which was sent on the same day as the requests) are automatically generated by the system. ECF No. 35-2 at 10. The EPA contends that within the FOIA online program, FOIA requests received after 5 p.m. Eastern Time or submitted on non-working days will be considered received on the next working day. Id. Thus, the EPA considered Request One to be received on January 30, 2013, and counted February 28, 2013, as a federal holiday; as such, the deadline for Request One was February 28, 2013. The Court agrees. The received date indicated on the FOIA online system (cited by Defendant) is January 30, 2013. ECF No. 35-3 at 7. The EPA's regulations provide that the office will respond to the request "no later than 20 working days from the date the request is received and logged in by the appropriate FOI office." 40 C.F.R. § 2.104(a)
CARE also contends that the deadline for Request Two was March 4, 2013, but the EPA responded untimely because it did not request an extension until March 5. ECF No. 39-1 at 5. The Court disagrees for the reasons explained above. CARE submitted its online request Friday February 1, 2013, at 4:17 p.m. Pacific Time. As above, it is reasonable that the request be considered received the next business day, Monday, February 4, 2013. Accordingly, counting the February 18, 2013, federal holiday, the 20-day deadline would be March 5, 2013. As such, the EPA's March 5, 2013, request for an extension was timely.
CARE also contends that the EPA exceeded the 10-day extension limit provided for by the FOIA.
40 C.F.R. § 2.104(d).
CARE contends that the ten-day extension to Request Two should have been March 19, not March 21, as the EPA stated. ECF No. 39-1 at 5. The EPA counters that FOIA Request Two was assigned to the correct program office on February 6, 2013; as such, the 20-day deadline for FOIA Request Two is March 7, 2013. Accordingly, the Agency argues, the 10 day extension runs from March 7, 2013, not March 5, and therefore extends to March 21, 2013, instead of March 19. ECF No. 35 at 6. However, the Court need not determine which deadline is correct, because the EPA provided an "interim response" on March 28, 2013, and therefore missed the deadline by either calculation.
Request Three was submitted late Friday afternoon on July 12, 2013. The EPA would have considered the request received on the next business day, July 15, 2013, ECF No. 35-2 at ¶ 45, but the request needed clarification and EPA did not receive clarification from CARE until late that evening. Id. Thus, the EPA should have considered the request received on July 16, 2013, with a due date of August 13, 2013. The EPA then invoked the unusual circumstances requirement for an extension on August 12, 2013, because of "[t]he need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records involved in" the request. ECF No. 35-6, Exhibit 34. The letter stated that the new due date was August 28, 2013 (because the EPA mistakenly believed the 20-day due date was August 14, 2013). Id. CARE contends that this is a 12-day, not a 10day extension. ECF No. 39-1 at 10. Both parties were wrong. With a 10-day extension from the properly calculated 20-day deadline (August 13, 2013), the EPA had until August 27, 2013 to timely respond. By happenstance, it did so that day. ECF No. 35-2 at ¶ 47; ECF No. 35-6, Exhibit 35.
With respect to Request Four, CARE again contends that the EPA improperly effectuated a 12-day, not a 10-day extension. ECF No. 39-1 at 10.
Unfortunately, the Federal Government was shut down on October 1 to October 17, 2013. Only then did the EPA seek greater than the 10-day statutory extensions, based on these exceptional circumstances. The EPA provided CARE an opportunity to narrow or modify its request and provided contact information of its Public FOIA Liaison. ECF No. 35-7, Exhibit 41. The records were eventually provided, or exceptions invoked. See ECF No. 35-2, ¶¶ 57-60.
CARE contends that because the extensions were more than 10 days, under the regulations and the FOIA, the extensions must include an opportunity to narrow the scope of the request, arrange an alternative timeframe, or make the EPA's public liaison available. ECF No. 39-1 at 10. See 40 C.F.R. § 2.104(d) ("When the extension is for more than 10 working days, the Agency will provide you with an opportunity either to modify the request so that it may be processed within the 10 working day time limit extension or to arrange an alternative time period for processing the original or modified request.")
It is clear on this record that the EPA issued the required language with respect to Request Four and its highly unusual circumstances of the government shutdown.
CARE also argues that the EPA required the extensions on improper grounds. The Court disagrees. The FOIA provides that:
5 U.S.C. § 552(6)(B)(i). Under the FOIA:
5 U.S.C.A. § 552(a)(6)(B)(iii).
CARE appears to argue that, pursuant to the FOIA and implementing regulations, the EPA could not validly seek an extension to Request One in order to wait for the EPA and the Yakima Dairies to come to an agreement on the AOC. CARE also argues that there is no enumerated exemption allowing the Agency to withhold records to wait for the AOC negotiations to be completed. The Court agrees that this would be an invalid reason for withholding, but does not find that the EPA withheld records responsive to Request One, nor did it base its extension on this impermissible reason. CARE contends that the EPA's counsel, Allyn Stern, represented to CARE that the EPA was withholding the documents on grounds that it was waiting for the AOC negotiations to be resolved—an invalid reason for an extension under the FOIA. ECF No. 39-1 at 2. However, the notice provided to CARE indicates that the EPA's reasoning for requiring the 10-day extension was "[t]he need for consultation, which shall be conducted with all practicable speed, with another agency or EPA offices having a substantial subject-matter interest in your request." ECF No. 35-3, Exhibit 9. Thus, the EPA properly sought an extension for a reason recognized by the FOIA. See 5 U.S.C. § 552(a)(6)(B)(iii)(III). The EPA ultimately produced the requested records on March 6, 2013, within the time allotted for the extension. Thus, the Request One records were not withheld; they were produced within the period designated by the properly brought extension.
CARE also contends that the Agency's March 28 and April 30, 2013, responses to Request Two are not final determinations under the FOIA and therefore a final determination on Request Two is untimely. Thus, CARE maintains, the delay in issuing a determination on Request Two is not a "five-day" delay as the EPA claims but a delay of more than a year. ECF No. 52 at 2. As the Court determined above, the EPA responded within the definition described in CREW; accordingly, it finds this argument unpersuasive.
Thus, for these reasons, the Court finds that the undisputed facts show only one violation of the timeliness in responding to CARE's FOIA requests—and demonstrates a delay of only a few days. Common sense dictates that a single violation cannot constitute a "pattern" or a "practice." Accordingly, the Court finds that CARE's pattern and practice claim must fail.
Count III of CARE's Second Amended Complaint alleges that the EPA unlawfully withheld records responsive to FOIA Request Two under 5 U.S.C. § 552(B)(7)(A). ECF No. 20 at 36. The EPA ultimately released these records, and CARE concedes in its reply briefing that Count III is moot to the extent that CARE initially sought a declaration that the EPA's Exemption 7(A) withholdings were improper. ECF No. 52 at 6. However, CARE contends that this count is not moot for purposes
The fee-shifting provision of FOIA states that the Court "may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i). "[A] complainant has substantially prevailed if the complainant has obtained relief through either—(I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial." 5 U.S.C. § 552(a)(4)(E)(ii). The Ninth Circuit has crafted a two-step process for determining whether a party may be awarded fees and costs under § 552(a)(4)(E). To be eligible for an award, a party must show both that "(1) the filing of the action could reasonably have been regarded as necessary to obtain the information," and that "(2) the filing of the action had a substantial causative effect on the delivery of the information." Church of Scientology of California v. U.S. Postal Serv., 700 F.2d 486, 489 (9th Cir. 1983) ("Church of Scientology"); Rosenfeld v. United States Dep't of Justice, 903 F.Supp.2d 859, 865 (N.D.Cal.2012).
Defendant contends that a requestor does not prevail when an agency produces previously withheld records after an exemption becomes inapplicable due to changed circumstances. ECF No. 48 at 5. The Agency contends that circumstances changed when, a month after the lawsuit was filed, the Haak Dairy sold its cows and ceased operating as a dairy; as such, its production of the documents was in response to those "changed circumstances" rather than CARE's lawsuit. Here, the evidence indicates that the EPA produced the documents after Haak Dairy told the agency it had sold all of its cows. CARE filed its lawsuit on June 28, 2013. ECF No. 1. On July 9, 2013, the EPA claims that Haak Dairy told the Agency it had sold all of its cows. ECF No. 34 at 5. Haak sold its cows in May, 2013. ECF No. 39-1 at 6. Two months later, on September 18, 2013, the Agency released the Haak records. Thus, the information was released after Haak Dairy told the EPA it sold its cows, the very reason the EPA cited for having released the information. Accordingly, the Court finds that CARE has not sustained its burden of showing that the filing of the lawsuit had a "substantial causative effect" on the EPA's decision to release the records.
Count VI of CARE's Second Amended Complaint alleges that the EPA violated
The parties agree that if the Court finds that CARE has an adequate remedy for its claims under FOIA, the Court need not consider CARE's parallel APA claims. ECF No. 52 at 11. However, if the Court finds that one or more of CARE's claims is not cognizable under the FOIA, CARE renews its request to submit additional briefing concerning its APA claims. Id.
Having found above that CARE has no remedy against the EPA under the FOIA for not timely producing records or following its regulations, the Court grants CARE's request to allow the parties an opportunity to brief the merits of CARE's claim under the APA.
The District Court Executive is hereby directed to enter this Order and provide copies to counsel.
5 U.S.C. § 552(6).
