                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
_____________________________________
EXXONMOBIL CORPORATION,                )
                                       )
      Plaintiff,                       )
                                       )
      v.                               )    Civil Action No. 10-250 (RCL)
                                       )
DEPARTMENT OF COMMERCE, et al., )
                                       )
      Defendant.                       )
_____________________________________ )


                               MEMORANDUM OPINION

       Plaintiff ExxonMobil Corporation brings this action against defendants Department of

Commerce and Environmental Protection Agency under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, as amended, and the Administrative Procedure Act (“APA”), 5 U.S.C.

§ 791 et seq., challenging defendants’ responses to multiple FOIA requests that plaintiff

submitted.   Plaintiff also seeks a writ of mandamus pursuant to 28 U.S.C. § 1361 and a

declaratory judgment pursuant to 28 U.S.C. §§ 2201–2202. Before the Court is defendants’

Motion [13] for Summary Judgment and plaintiff’s Cross-Motion [16] for Summary Judgment.

Upon consideration of both Motions, plaintiff’s opposition [16] to defendants’ motion,

defendants’ reply [21] in support of their motion and opposition to plaintiff’s cross-motion,

plaintiff’s reply [22], the entire record in this case, and the applicable law, the Court will

GRANT defendants’ Motion for Summary Judgment and DENY plaintiff’s Cross-Motion for

Summary Judgment.




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   I.      BACKGROUND

        A. Exxon Valdez Oil Spill Trustee Council

        On March 24, 1989, the oil tanker T/V Exxon Valdez spilled approximately 11 million

gallons of crude oil owned by Exxon Corporation into Prince William Sound, Alaska. Compl.

Ex. C (“Agreement”). In 1991, plaintiff ExxonMobil (“Exxon”) entered into an Agreement and

Consent Decree with the United States and the State of Alaska under which Exxon paid the two

Governments $900 million in settlement of the Governments’ claims against Exxon arising out

of the oil spill. Agreement ¶¶ 8, 10; see United States v. Exxon Corp., et al., Nos. 3:91-0082 &

3:91-0083 (D. Alaska). The Agreement provided for the $900 million to be disbursed over a ten-

year period, providing compensation for all existing and future natural resource damages,

assessment costs, and restoration costs stemming from the spill.

        The Exxon Valdez Oil Spill Trustee Council (“Trustee Council”) was created in 1992 to

oversee the use of these settlement funds for restoration efforts. Defs.’ Mot. for Summ. J. Ex. 2

(“Hagen Decl.”), ¶ 7; Defs.’ Mot for Summ. J. Ex. 3 (“O’Connor Decl.”), ¶ 6. The Trustee

Council is composed of three State of Alaska trustees and three Federal trustees. Compl. Ex. G.

The three Federal trustees are the National Oceanic and Atmospheric Administration (“NOAA”),

a component of the Department of Commerce; the Department of the Interior; and the

Department of Agriculture. Id. Each Trustee agency designates its own representative to serve

on the Trustee Council. Id. The National Marine Fisheries Services (“NMFS”) Alaska Regional

Administrator represents NOAA on the Trustee Council and oversees the NMFS Office of

Exxon Valdez Oil Spill Damage Assessment and Restoration, which administers projects carried

out by NMFS researchers and outside contractors, and facilitates research planning and

coordination between EVOS projects and other programs. Hagen Decl. ¶ 8. The Trustee



                                                2
Council operates by unanimous consent among its trustees and establishes its own policies and

procedures consistent with the Agreement to make all decisions related to injury assessment,

restoration activities, or other use of the natural resource damage recoveries obtained by the

Governments. Id. An Executive Director administers the Trustee Council office and oversees

the creation of an annual workplan using a competitive process to solicit project proposals. Id.;

O’Connor Decl. ¶ 7.

       Since the settlement in 1991, hundreds of research, monitoring, and general restoration

projects have been funded to restore the ecosystem of Prince William Sound and the Gulf of

Alaska to its condition prior to the spill. Hagen Decl. ¶ 7; O’Connor Decl. ¶ 6. The Trustee

Council does not have independent fiscal authority, so it operates through its Trustee agencies

acting on behalf of the Trustee Council to enter into contractual agreements with third parties to

implement these projects. Hagen Decl. ¶ 10; O’Connor Decl. ¶ 9. The Trustee council is

responsible for soliciting project proposals and administering the proposal process, including the

issuance of contract bids for restoration proposals. Hagen Decl. ¶¶ 9–10; O’Connor Decl. ¶¶ 8–

9. The bid announcement specifies the restoration actions that are sought and the terms under

which the project proposals will be awarded, and the proposals are evaluated by Trustee Council

staff, which obtain funding recommendations and develop workplans based on the

recommendations. Hagen Decl. ¶¶ 9–10; O’Connor Decl. ¶¶ 8–9.

       As one of the implementing agencies of the Trustee Council, NOAA issues a Broad

Agency Announcement (“BAA”) concurrent with the Trustee Council invitation for proposals.

Hagen Decl. ¶ 10; O’Connor Decl. ¶ 9. Interested parties are asked to submit a copy of their

proposal to NOAA at the same time that it is submitted to the Trustee Council, but the review,




                                                3
evaluation, and selection of the proposals are done solely by the Trustee Council. Hagen Decl. ¶

10; O’Connor Decl. ¶ 9.

       Once the Trustee Council unanimously approves a workplan, the U.S. Department of

Justice and the State of Alaska Department of Law initiate the process of withdrawing funds

from the settlement account and transferring them to the Federal or State agency administering

the particular project for distribution to the entity implementing the project. Hagen Decl. ¶ 11;

O’Connor Decl. ¶ 10. Funds for projects that are submitted under the BAA are routed to NMFS

Alaska Regional office, which works with the NMFS procurement office to obligate those funds

and enter into contracts with the third-party entities using the Trustee Council-approved project

proposal as the contract statement of work. Hagen Decl. ¶ 11; O’Connor Decl. ¶ 10. To fund

these projects, the Trustee Council transfers money from the $900 million settlement account to

the implementing agency, such as NOAA. Hagen Decl. ¶ 11; O’Connor Decl. ¶ 10. The work

performed by contract awardees is not funded by trustee agency appropriations. Hagen Decl. ¶

11; O’Connor Decl. ¶ 10.

       B. Restoration Projects 070801 (Michel Study) and 070836 (Boufadel Study)

       A provision entitled “Reopener for Unknown Injury” in the 1991 Agreement between

ExxonMobil and the Governments allows the governments to seek additional funds from Exxon

under specific circumstances enumerated in the Agreement. See Agreement ¶¶ 17–19. On May

31, 2006, the Governments submitted a claim to Exxon under the Reopener to develop and

implement a restoration plan to accelerate the removal of lingering subsurface oil. Compl. Exs.

D, E. The goals of the Reopener Claim are: (1) to determine the locations, approximate amounts,

and chemical states of all significant residual deposits of oil from the 1989 spill; and (2) to

accelerate the natural processes of degradation and dispersal of the lingering oil through active



                                               4
remediation. Compl. Ex. E, at 2. The day after the Reopener Claim was submitted, on June 1,

2006, the Trustee Council issued an Invitation for Proposals for fiscal year 2007 for a project that

would “map distribution and assess patterns of lingering oil remaining in [Prince William

Sound]” and a project that would “investigate the physical and chemical processes that influence

the lingering oil in [Prince William Sound].” Compl. Ex. H, at 8–9.

       On February 16, 2007, the Trustee Council approved Restoration Project 070801, entitled

“Assessment of the Areal Distribution and Amount of Lingering Oil in Prince William Sound

and the Gulf of Alaska” (“Michel Study”). Compl. Ex. I. The proposal was submitted by Dr.

Jacqueline Michel, of Research Planning, Inc.; Dr. Jeffrey Short, a scientist of Auke Bay

Laboratory, a unit of the NMFS Alaska office; and Dr. Gail Irvine, of the United States

Geological Survey. See id. On March 9, 2007, the Trustee Council also approved Restoration

project 070836, entitled “Factors Responsible for Limiting the Degradation Rate of Exxon

Valdez Oil in Prince William Sound” (“Boufadel Study”). Compl. Ex. J. The proposal was

submitted by Dr. Michel Boufadel, of Temple University; Dr. Albert Venosa, of the EPA; and

Brian Wrenn of Washington University. See id.

       NOAA was the implementing agency for both the Michel and the Boufadel Studies. See

Hagen Decl. ¶ 3. The Program Manager for the Exxon Valdez Oil Spill Office within the NMFS

Alaska Regional Office servied as the Contracting Officer’s Technical Representative (“COTR”)

for both studies. Id. ¶¶ 14, 27. Consistent with the Trustee Council’s directives, the COTR

monitored the performance and progress of the contractors with respect to the statement of work

and recommended payment of invoices to the Contracting Officer. See id. However, the COTR

did not have any supervisory function over the researchers or any substantive involvement in

their projects; rather, the COTR’s role was limited to the administrative function of monitoring



                                                 5
the progress of the projects for purposes of reimbursing the researchers. Id. Under the terms of

the contract awards for both projects, quarterly, annual, and final reports are provided directly to

the Trustee Council, and the only documents required to be provided to NMFS during the course

of the project are cost and progress reports. See id. ¶¶ 15, 28.

       C. Plaintiff’s FOIA Requests to NOAA

       By letters dated October 29, 2007, January 16, 2008, April 2, 2008, October 17, 2008,

and October 20, 2008, ExxonMobil submitted FOIA requests to NOAA’s headquarters in Silver

Spring, Maryland, seeking records related to the Michel Study and the Boufadel Study. See

Compl. ¶¶ 21–31. Due to the subject matter of the requests, NOAA’s FOIA office assigned the

requests to the NMFS FOIA headquarters and to NOS. Defs.’ Mot. for Summ. J. Ex. 5, ¶ 5. The

NMFS FOIA Officer further assigned the requests to the NMFS Alaska Regional office. Id. ¶ 5–

6. In response to each of the FOIA requests at issue, NMFS searched its Exxon Valdez Oil Spill

records, all of which are located at either the Auke Bay Laboratory or the Exxon Valdez Oil Spill

Office. Id. ¶ 8.

       In its first letter (Request No. 2008-0046), Exxon requested all records related to the field

work conducted for the Michel Study. In response to this request, NMFS’s search located eight

responsive records, which were released in their entirety to Exxon. Compl. Ex. M. Exxon

subsequently appealed this response, which the Department of Commerce denied for timeliness

reasons pursuant to agency regulations requiring that an appeal be received within 30 calendar

days of the date of the written denial. See Compl. Ex. HH; 15 C.F.R. § 4.10(a).

       In its second letter (Request No. 2008-00179), Exxon requested all data and documents

related to the probability model developed for the Michel Study. A search of NOAA facilities

revealed that there were no records responsive to this FOIA request. Compl. Ex. R. Exxon



                                                  6
subsequently appealed this response, which the Department of Commerce denied on the ground

that the records sought by Exxon were not “agency records.” See Compl. Ex. HH.

       In its third letter (Request No. 2008-0331), Exxon requested all data and documents

related to the field work and analyses conducted through the Boufadel Study. NMFS located

five responsive records, which it released in their entirety to Exxon, accompanied by an index.

Compl. Ex. V. Exxon subsequently appealed this response, which the Department of Commerce

denied for timeliness reasons pursuant to agency regulations requiring that an appeal be received

within 30 calendar days of the date of the written denial. See Compl. Ex. HH; 15 C.F.R. §

4.10(a).

       In its fourth letter (Request No. 2009-00039), Exxon again requested all records related

to the field work and analyses conducted pursuant to the Boufadel Study. NOAA responded that

it had no records responsive to the request. Compl. Ex. Y. The Department of Commerce

denied Exxon’s appeal on the ground that the records sought by Exxon were not “agency

records.” See Compl. Ex. FF.

       In its fifth letter (Request No. 2009-00040), Exxon again requested all data and

documents related to the field work, analyses, and modeling developed for the Michel Study. In

response, the Department of Commerce released five records found at Auke Bay Laboratory

(four documents and a CD) in their entirety plus an index, determined to be responsive to

Exxon’s request. See Compl. Ex. T. The Department of Commerce denied Exxon’s appeal of

this response on the ground that the records sought by Exxon were not “agency records.” See

Compl. Ex. II.




                                               7
         D. Plaintiff’s FOIA Requests to EPA

         By letter dated October 29, 2007 (Request No. HQ-RIN-00168-08), Exxon submitted a

FOIA request to EPA seeking all records related to the Boufadel Study. In response, EPA

released two draft reports and 26 e-mails responsive to this request and withheld a number of e-

mails pursuant to the deliberative process privilege as incorporated in Exemption 5 of the FOIA,

5 U.S.C. 552(b)(5). Compl. Ex. Z, ¶ 6. Exxon appealed EPA’s statement that it did not possess

the Boufadel data, but did not appeal EPA’s decision to withhold documents under Exemption 5.

Id. ¶ 7. EPA denied the appeal, stating that “EPA does not possess and has never possessed the

field work data.” Compl. Ex. GG.

         In another letter sent to EPA dated October 17, 2008 (Request No. HQ-RIN-00138-09),

Exxon requested under FOIA all records related to a project being conducted by Dr. Venosa

entitled “A Microcosm Study on the Biodegradability of Lingering Oil in Prince William Sound

19 Years After the Exxon Valdez Oil Spill” (“Venosa Project”). Compl. ¶ 55. EPA forwarded

this request on to Dr. Venosa. In June 2010, EPA released responsive, non-exempt records that

Dr. Venosa had located, withholding a number of records pursuant to the deliberative process

privilege in Exemption 5 of FOIA. Defs.’ Mot. for Summ. J. Ex. 6, ¶ 13. At the time that Exxon

filed this Complaint against defendants, Exxon had not appealed EPA’s response to its request

for documents relating to the Venosa Project.

   II.      LEGAL STANDARDS

         A. Summary Judgment

         Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when the

moving party demonstrates that “there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In determining



                                                8
whether a genuine issue of material fact exists, the trier of fact must view all facts, and all

reasonable inferences drawn therefrom, in the light most favorable to the non-moving party.

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). In order to defeat

summary judgment, a factual dispute must be capable of affecting the substantive outcome of the

case and be supported by sufficiently admissible evidence that a reasonable trier of fact could

find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986);

Laningham v. U.S. Navy, 813 F.2d 1236, 1242–43 (D.C. Cir. 1987). “[A] complete failure of

proof concerning an essential element of the non-moving party’s case necessarily renders all

other facts immaterial[, and t]he moving party is entitled to judgment as a matter of law.”

Celotext Corp. v. Catrett, 477 U.S. 317, 322 (1986).

       B. FOIA

       FOIA requires agencies of the federal government, upon request, to release records to the

public. 5 U.S.C. § 552(a). The term “record,” as defined in FOIA, includes “any information

that would be an agency record subject to the requirements of [FOIA] when maintained by an

agency in any format, including an electronic format,” including any such information “that is

maintained for an agency by an entity under Government contract, for the purposes of records

management.” 5 U.S.C. § 552(f)(2). A FOIA requester may appeal an agency’s failure to

disclose requested records. 5 U.S.C. § 552(a)(6). If the agency denies the request on appeal, the

requester is deemed to have fully exhausted his administrative remedies and may bring suit in

federal district court. 5 U.S.C. § 552(a)(6)(C)(i). A district court has jurisdiction to enjoin a

federal agency from withholding information and order the production of any records that have

been improperly denied to the requester. 5 U.S.C. § 552(a)(4)(B).




                                               9
   III.      ANALYSIS

          A. Exhaustion of Administrative Remedies

          Exhaustion of administrative remedies is a prerequisite to a lawsuit under FOIA “so that

the agency has an opportunity to exercise its discretion and expertise on the matter and to make a

factual record to support its decision.” See Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61 (D.C.

Cir. 1990). This means that a requester under FOIA must file an administrative appeal within the

time limit specified in an agency’s FOIA regulations or face dismissal of any lawsuit

complaining about the agency’s response. See id. at 65 n.9. The Department of Commerce’s

FOIA regulations require that an administrative appeal of an initial denial of a request for records

be received within 30 days of the date of the written denial. 15 C.F.R. § 4.10(a).

          Failure to exhaust available administrative remedies is a jurisprudential, not a

jurisdictional, bar to judicial review. Hidalgo v. FBI, 344 F.3d 1256, 1259 (D.C. Cir. 2003).

The exhaustion requirement thus precludes judicial review if the “‘purposes of exhaustion’ and

the ‘particular administrative scheme’ support such a bar.” Id. at 1258–59 (quoting Oglesby, 920

F.2d at 61). However, FOIA’s administrative scheme “favors treating failure to exhaust as a bar

to judicial review.” Hidalgo, 344 F.3d at 1259. Therefore, where a FOIA plaintiff has not

exhausted the available administrative remedies before filing suit in district court, dismissal of

the complaint is warranted.

          By letter dated September 5, 2008, Exxon submitted an appeal of the partial denial letters

from the Department of Commerce dated December 18, 2007 (in response to Request No. 2008-

0046) and July 18, 2008 (in response to Request No. 2008-0331). The Department of Commerce

properly denied these appeals on timeliness grounds, as Exxon appealed these denials after the

30 day limit for appeals established by the agency regulations. See 15 C.F.R. § 4.10(a). Exxon



                                                  10
therefore failed to exhaust its administrative remedies with regard to these two claims before it

filed suit in this Court. 1 Furthermore, at the time that Exxon filed its Complaint on February 18,

2010, it had not exhausted its administrative remedies with regard to FOIA Request No. HQ-

RIN-00138-09. Exxon did not even file an administrative appeal of EPA’s response to its FOIA

request for documents relating to the Venosa Project until March 16, 2010, almost one month

after filing its Complaint in this Court. As the Court finds that Exxon failed to exhaust its

administrative remedies with regard to FOIA Request Nos. 2008-0046, 2008-0331, and HQ-

RIN-00138-09, the Court will not reach the merits of Exxon’s arguments regarding these FOIA

requests.

         B. FOIA

         The Court now turns to Exxon’s appeals of the agency determinations regarding its

remaining FOIA requests: 2008-00179, 2009-00039, 2009-00040, and HQ-RIN-00168-08.

“[T]he elements of a FOIA claim are (1) improperly (2) withheld (3) agency records.” Antonelli

v. U.S. Parole Comm’n, 619 F. Supp. 2d 1, 3 (D.D.C. 2009). To qualify as “agency records”

within the meaning of FOIA, requested materials must meet two criteria: (1) “an agency must

either create or obtain the requested materials as a prerequisite to its becoming an agency record

within the meaning of FOIA”; and (2) “the agency must be in control of the requested materials

at the time the FOIA request is made.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144–

45 (1989).



1
  Exxon argues that the failure to exhaust can be remedied where the plaintiff’s first FOIA request was excused by
subsequent requests for the same materials. Under Exxon’s theory, because it made subsequent requests that
encompassed the records initially sought under Request Nos. 2008-0046 and 2008-0031, it is irrelevant whether its
initial requests were timely appealed. Exxon supports its theory by citing a case out of the District of Nevada in
which the court declined to accept the theory that “the failure to appeal the first FOIA request should bar subsequent
requests for the same material.” Nevada v. U.S. Dep’t of Energy, 517 F. Supp. 2d 1245, 1257 (D. Nev. 2007).
However, that authority is inapposite here and offers no support for Exxon’s argument that administrative appeals
can be aggregated to defeat the exhaustion requirement.

                                                         11
           1. FOIA Requests to Department of Commerce

       First, the Court must determine whether the records Exxon requested from the

Department of Commerce were created or obtained by the agency. See Tax Analysts, 492 U.S. at

144–45. The mere fact that a private researcher who created the requested records received

federal funds to finance the research is insufficient to conclude that the data were “created or

obtained” by the agency, but data produced by a private researcher may be considered agency

records if the researcher was acting on behalf of the agency. See Burka v. U.S. Dep’t of Health

and Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996). However, neither the Boufadel Study nor

the Michel Study receives any funding from NOAA appropriations. Defs.’ Mot. for Summ. J.

Ex. 2, ¶ 11; Ex. 3, ¶ 10. Rather, all funding for the Boufadel and Michel Studies is derived from

money transferred to NOAA from the $900 million civil settlement between Exxon and the

Governments. NOAA has a limited, ministerial role in contracting with private organizations

that are responding to proposals generated by and conducting research on behalf of the Trustee

Council, rather than on behalf of one of the Trustee Council’s trustee agencies. The Trustee

Council—not NOAA—is responsible for soliciting project proposals, administering the proposal

process, and developing workplans based on the funding recommendations. Defs.’ Mot. for

Summ. J. Ex. 2, ¶¶ 9–11; Ex. 3 ¶¶ 8–10. And although the COTR monitors the performance and

progress of the contractor with respect to the statement of work and recommends payment of

invoices to the NMFS Contracting Officer, the COTR does not have any substantive involvement

in Trustee Council research projects. See Defs.’ Mot. for Summ. J. Ex. 2, ¶¶ 14, 27. NOAA’s

position as one of the federal trustees on the Trustee Council does not change the fact that the

Boufadel and Michel Studies were conducted by private researchers for the benefit of the Trustee




                                               12
Council, and were not funded by nor conducted on behalf of one of the Trustee Council’s trustee

agencies.

       Even assuming, arguendo, that the records requested from the Department of Commerce

were “created or obtained” by the agency, NOAA does not meet the second criterion of the

“agency records” analysis requiring that the agency “be in control of the requested materials at

the time the FOIA request is made.” Tax Analysts, 492 U.S. at 144–45. To determine whether

an agency exercises sufficient control over a document to render it an “agency record,” four

factors must be balanced under a totality of the circumstances test: “(1) the intent of the

document’s creator to retain or relinquish control over the records; (2) the ability of the agency to

use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or

relied upon the document; and (4) the degree to which the document was integrated into the

agency’s record system or files.” Burka, 87 F.3d at 515.

       First, the Court will look at Dr. Boufadel and Dr. Michel’s intent to retain or relinquish

control over the records that Exxon requested. Under the Trustee Council Data Policy, “[d]ata

acquired under Trustee Council funding is considered public information,” and “[c]opyright to

such data is owned by the State and/or Federal agencies sponsoring the project.” Compl. Ex. K,

at 3. However, one of the stated purposes of the Trustee Council Data Policy is to “protect the

right of investigators who collect data, develop models, or who apply models to generate

significant new insight to be cited whenever the data, models, or insights are used.” Id. at 1.

Even if Burka’s “control” test is constructive rather than actual—that is, even if it hinges on

whether the researchers intend to turn over data to the agency, not on whether the researcher has

already done so—the result is unclear here. Even though, pursuant to the Trustee Council Data

Policy, Dr. Boufadel and Dr. Michel are obligated to relinquish control over their final reports to



                                                 13
the Trustee Council and copyright to those final reports is owned by NOAA as the project

sponsor, this does not necessarily indicate an intent on the part of the researchers to relinquish

control over their preliminary findings to NOAA.          Under the Trustee Council Operating

Procedures, Dr. Boufadel and Dr. Michel are not obligated to turn over to the Trustee Council

the preliminary models and data that Exxon requested; rather, they will merely relinquish control

over their final reports once their projects are complete, at which point the final reports will

become public information. See Compl. Ex. G, at II-4. However, because the language used in

the Data Policy merely refers to “[d]ata acquired under Trustee Council funding” and does not

distinguish between preliminary data and final data for copyright purposes, it is unclear whether

the researchers, by agreeing to abide by the Data Policy, effectively intended to relinquish

control over their preliminary findings to the agency.

        Second, the Court will examine NOAA’s ability to use and dispose of the requested

records as it sees fit.   As noted above, it is uncertain whether the language in the Data Policy

indicating that copyright to data acquired under Trustee Council funding refers to preliminary

data or final reports. However, it is clear that the information Exxon sought to obtain through its

FOIA requests was preliminary data that had not yet been turned over to the Trustee Council—

or, for that matter, to NOAA. Accordingly, there is no indication from the parties’ submissions

that at the time of Exxon’s FOIA request, NOAA had the ability to use any of the data that

Exxon requested from the agency. Moreover, under the Trustee Council Data Policy, “all

documents (including written, electronic, photographic, and magnetic) or physical evidence

(such as tissue samples) produced or collected as part of any Trustee Council-funded project

must be preserved, unless authorization is given by both the Alaska Department of Law and the




                                                14
U.S. Department of Justice.” Compl. Ex. K, at 2. This plainly demonstrates that NOAA has no

ability to dispose of the requested records as it sees fit.

        Third, the Court will analyze the extent to which NOAA personnel read or relied upon

the requested documents. Although the Trustee Council obtained a summary of the status of the

Boufadel and Michel Studies, this summary report was disclosed to Exxon, made publicly

available, and posted on the Trustee Council website. See Defs.’ Mot. for Summ. J. Ex. 3, at ¶

17. There is no evidence that the NOAA Trustee read or relied upon the Boufadel and Michel

data or reports, other than this summary report that has already been provided to Exxon. There is

also no evidence that any other NOAA personnel, including any of the personnel at the Auke

Bay Laboratory or the Exxon Valdez Oil Spill Office, read or relied upon the other Boufadel and

Michel data or reports that Exxon seeks. “[W]here an agency has neither created nor referenced

a document in the ‘conduct of its official duties,’ . . . the agency has not exercised the degree of

control required to subject the document to disclosure under FOIA.” Judicial Watch, Inc. v. Fed.

Hous. Fin. Agency, 646 F.3d 924, 928 (D.C. Cir. 2011) (citation omitted).

           Fourth, the Court will consider the degree to which the requested documents were

integrated into NOAA’s record system or files.            Pursuant to the Trustee Council General

Operating Procedures, a copy of each final project report “shall be placed in the Trustee

Council’s official record and at ARLIS (Alaska Resources Library & Information Services).”

Compl. Ex. G, at II-4.         The Trustee Council Data Policy mandates that all data and

documentation acquired by principal investigators and their personnel through projects funded

by the Trustee Council must be archived by the principal investigator in the Trustee Council’s

archive.     See Compl. Ex. K, at 1–3.         However, the Data Policy only requires principal

investigators to archive their data and documents at the time of the submission of their final



                                                   15
project report to the Trustee Council office, at which point this information becomes public. Id.

at 3. The requested documents therefore have not been integrated into NOAA’s record system or

files.

         Although it is unclear whether Dr. Boufadel and Dr. Michel intended to retain control

over the data request by Exxxon or relinquish control to the agency, when this is balanced with

the other three factors in the “control” test, the totality of the circumstances establishes that

NOAA was not in control of the requested materials at the time Exxon made the FOIA request.

This, coupled with the Court’s determination that NOAA did not create or obtain the requested

materials, leads the Court to find that the requested records are not “agency records” of NOAA

within the meaning of FOIA.

            2. FOIA Requests to EPA

         The records Exxon requested from EPA were created and maintained by private

researchers funded by and acting on behalf of the Trustee Council, not the agency, and so they

do not meet the first prong of the “agency records” analysis requiring that the agency “create or

obtain” the materials being requested. See Tax Analysts, 492 U.S. at 144–45. Notably, although

Dr. Venosa, (an EPA scientist) was listed on the Boufadel Project proposal, the extent of his

involvement in the project stopped there. As proposed, the project was time-sensitive and

required summer sampling. Defs.’ Mot. for Summ. J. Ex. 7, ¶ 6. The project would have

required the time-consuming drafting of a Category II quality assurance project plan (which

establishes quality assurance requirements for important, highly visible agency projects

involving areas such as supporting the development of environmental regulations or standards).

Moreover, if the project had used Trustee funds and the funds came to EPA from the Trustees

through an Interagency Agreement, then EPA would have had to adhere to lengthy government



                                               16
contract regulations to get the funds to Temple University. Therefore, because his participation

would have delayed the required summer sampling by at least a year, Dr. Venosa decided to

remove himself and the EPA from the Boufadel Project subsequent to the submission of the

proposal. Id. Instead, the Boufadel Project was funded directly with Temple University and Dr.

Boufadel by the Trustee Council. Id. ¶ 7. Accordingly, EPA had no involvement in the

Boufadel Project after the proposal stage, making clear that EPA did not create or obtain the

requested materials and thus unquestionably fails to satisfy the first criterion of the “agency

records” test. The Court thus sees no need to reach the question of whether EPA was in control

of the requested materials at the time of the FOIA request and therefore holds that the requested

materials are not “agency records” of EPA within the meaning of FOIA. 2

        C. APA

        Exxon also cited the Administrative Procedure Act, 5 U.S.C. ¶ 701, as a basis for

jurisdiction over its FOIA claims. However, it is well established that the existence of an

adequate remedy under FOIA precludes the availability of a plaintiff’s APA claim. See, e.g.,

Bigwood v. Defense Intelligence Agency, 699 F. Supp. 2d 114, 117–18 (D.D.C. 2010); Feinman

v. F.B.I., 713 F. Supp. 2d 70, 75–78 (D.D.C. 2010); Kenney v. U.S. Dep’t of Justice, 603 F.

Supp. 2d 184, 190 (D.D.C. 2009); People for the American Way Found. v. Nat’l Park Serv., 503

F. Supp. 2d 284, 308–09 (D.D.C. 2007); Edmonds Inst. v. U.S. Dep’t of the Interior, 383 F.

Supp. 2d 105, 111–12 (D.D.C. 2005). Exxon fails to present the Court with any explanation as



2
  Exxon presents evidence demonstrating that in the past, the Trustee Council required Exxon to submit its FOIA
requests directly to the funding agencies responsible for scientific studies authorized by the Trustee Council.
According to Exxon, the Trustee Council has required FOIA requests to go through the contracting agencies because
the Trustee Council is not an independent entity, and therefore NOAA and EPA should be required to produce the
requested records. However, the fact that Trustee Council representatives gave Exxon this guidance does not
necessarily mean that it was correct, nor does it change the Court’s analysis. As the Court has established, the
requested records are not agency records of either NOAA or EPA within the definition of FOIA, regardless of where
the Trustee Council advised Exxon to direct its FOIA requests.

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to why its claim that the agencies allegedly improperly withheld documents cannot be adequately

remedied under FOIA. Accordingly, Exxon’s APA claims against defendants are dismissed.

         D. Mandamus

         Exxon further cites the Mandamus Act, 28 U.S.C. § 1361, as a basis for jurisdiction over

its FOIA claims. Although neither plaintiff nor defendants addressed this issue in their summary

judgment motions, the Court will raise it sua sponte. The Mandamus Act states that “the district

courts shall have original jurisdiction of any action in the nature of mandamus to compel an

officer or employee of the United States or any agency thereof to perform a duty owed to the

plaintiff.” 28 U.S.C. § 1361. Mandamus relief is available only if “(1) the plaintiff has a clear

right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy

available to plaintiff.” Fornaro v. James, 416 F.3d 63, 69 (D.C. Cir. 2005). As noted above,

Exxon has an adequate remedy available under FOIA. Exxon’s claims under the Mandamus Act

are therefore dismissed.

   IV.      CONCLUSION

         For the foregoing reasons, the Court finds that no genuine issue of material fact remains.

The Court will therefore GRANT defendants’ Motion for Summary Judgment and DENY

plaintiff’s Cross-Motion for Summary Judgment.



         Signed by Royce C. Lamberth, Chief Judge, on December 8, 2011.




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