                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
__________________________________
                                   )
COMPETITIVE ENTERPRISE             )
INSTITUTE,                         )
                                   )
            Plaintiff,             )
                                   )
      v.                           )    Civil Action No. 15-cv-215 (RMC)
                                   )
UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY,                 )
                                   )
            Defendant.             )
_________________________________  )

                                               OPINION

               Even experts sometimes make mistakes. The Environmental Protection Agency

urges the Court to dismiss the Freedom of Information Act complaint by the Competitive

Enterprise Institute because it jumped the gun and sued before exhausting its administrative

remedies. Although the Court disagrees with EPA’s reading of certain FOIA provisions, EPA

has thus far been diligent in processing the Institute’s request. The motion for summary

judgment must be denied without prejudice, however, pending a more thorough explanation of

the information technology involved; that is the only way to resolve the parties’ competing

arguments about the timeliness of this suit.

                                               I. FACTS

               The Competitive Enterprise Institute (the Institute) “is a public policy research

and education institute in Washington, D.C., dedicated to advancing responsible regulation and

in particular economically sustainable environmental policy.” Compl. [Dkt 1] ¶ 11. It engages

in research, investigative journalism and publication, and seeks “public records relating to

environmental policy and how policymakers use public resources.” Id. The Institute has


                                                  1
previously filed no fewer than seven requests under the Freedom of Information Act, 5 U.S.C.

§ 552 (FOIA) and four lawsuits seeking records relating to the use of text messaging by EPA

Administrator Gina McCarthy. See generally Mot. Summ. J. [Dkt 8-1] (Mot.) at 2-3.

               On May 13, 2014, the Institute submitted a FOIA request to EPA that sought:

               Copies of all email or text messages sent to or from anyone in EPA
               Headquarters Office of General Counsel that both 1) is either to or
               from Gina McCarthy or cites or refers to Gina McCarthy, and
               2) cites, mentions, or refers to the words text messaging or text
               messages (which also includes reference to such terms as, e.g.,
               “texts”, “texting”, “SMS”). That is, all OGC emails and/or texts
               that are from, to, cite or refer to Ms. McCarthy, and reference
               texting as described.

Compl. ¶ 25 (emphases in original). EPA assigned identification number HQ-FOI-2014-006434.

               Inasmuch as the request targeted emails or texts involving persons within the

Office of the General Counsel after four FOIA suits by the Institute involving Ms. McCarthy’s

text messages, it comes as no surprise that EPA withheld some records, in whole or in part, under

Exemption 5 of FOIA, 5 U.S.C. § 552(b)(5) (exempting records that are covered by the attorney-

client privilege, attorney work-product privilege, and/or deliberative process privilege). After a

rolling production of 1,702 documents, EPA advised the Institute in a Final Response Letter

dated December 9, 2014 that EPA was relying on Exemption 5 for most redactions or

withholdings and on Exemption 6 for redacting personal information of EPA employees.

Compl. ¶ 28. The Institute does not challenge the application of Exemption 6. Id.

               The Final Response Letter advised: “You may appeal this response to the

National Freedom of Information Officer, U.S. EPA, FOIA and Privacy Branch, 1200

Pennsylvania Avenue, N.W. (2822T), Washington, DC 20460 (U.S. Postal Service only), FAX:

(202) 566-2147, E-mail hq.foia@epa.gov.” Id. ¶ 29. Along with the final set of responsive

documents, EPA provided the Institute with a list of documents withheld in full, identifying each


                                                 2
email’s sender, subject line, time, date, attachment count (if any) and file size. Of the 380

documents withheld in full, EPA relied on the attorney-client privilege for 376; attorney work

product privilege for 368; and deliberative process privilege for 364. See Statement of Material

Facts [Dkt. 8-2] (Facts) ¶ 8.1

               EPA produced a Vaughn index2 putting the records that were withheld in whole or

in part into categories. See Facts ¶¶ 10-15. The Institute challenges the use of categories instead

of individual record-by-record entries.

               The Institute sent an administrative appeal dated Thursday, January 8, 2015 to

hq.foia@epa.gov. According to EPA, its FOIA Online tracking software issued an

acknowledgement email to the Institute’s counsel on Monday, January 12, 2015, informing him

that the appeal had been received on that date. Facts ¶ 16. The Institute hotly disputes this fact,

questioning the plausibility of the four-day delay, pointing out that the e-mail in question is not

attached to Mr. Miller’s Declaration, and suggesting that perhaps the appeal simply was not

logged until January 12. Statement of Genuine Issues of Material Fact in Dispute [Dkt. 9-1]

(Disputes) at 17-19. In its reply, EPA attaches a complete (and more legible) copy of the

Institute’s FOIA Online Appeal file. See Reply, Ex. 1 [Dkt. 10-1] (Appeal File). That document


1
 In its statement of genuine issues of material fact in dispute, the Institute denies that the
documents qualify for the privilege(s) under which they were withheld. See Statement of
Disputed Facts [Dkt. 9-1] (Disputes) at 1. That dispute is immaterial for these purposes.
2
  See generally DiBacco v. U.S. Army, 795 F.3d 178, 199 n.2 (D.C. Cir. 2015). In a Vaughn
index, an agency “indicates in some descriptive way which documents the agency is withholding
and which FOIA exemptions it believes apply.” ACLU v. CIA, 710 F.3d 422, 432 (D.C. Cir.
2013). The name comes from Vaughn v. Rosen, which first established the process by which an
agency may discharge its burden to justify withholding information under FOIA exemptions. See
484 F.2d 820, 826-828 (D.C. Cir. 1973). Although agencies frequently rely on Vaughn indices,
“[t]he materials provided by the agency may take any form so long as they give the reviewing
court a reasonable basis to evaluate the claim of privilege.” ACLU, 710 F.3d at 433 (quoting
Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994)).

                                                  3
shows an appeal “received date” of Monday, January 12, 2015 and an “acknowledgement sent

date” of January 14, 2015. Id. at 1. It also shows, under “Correspondence to Requestor,” a

message to Christopher C. Homer (counsel to the Institute) on January 12, 2015. That message

also reflects a “date submitted” (in reference to the Institute’s appeal) of January 12, 2015. Id.

               On February 10, 2015, EPA notified Institute counsel by email that EPA needed a

brief extension of time to process the appeal because of unusual circumstances. The Institute

does not challenge EPA’s need for an extension and therefore waives the point. See 5 U.S.C.

552(a)(6)(B)(iii) (defining “unusual circumstances”). Rather, the Institute argues that EPA was

too late when it purported to grant itself a 10-day extension.. See 5 U.S.C. § 552(a)(6)(B)(ii)

(requiring that an “unusual circumstances” extension be requested within the original deadline

prescribed by § 552(a)(6)(A)(i)—in this case, 20 days). EPA argues that because its system

logged the Institute’s appeal on January 12, 2015, its February 10 request was timely and it had

until February 25, 2015 to respond to the appeal. Facts ¶ 17 (citing 5 U.S.C. § 552(a)(6)(B)(i)).

If EPA is right, then the Institute’s lawsuit (filed on February 11, 2015) was premature. See

Compl. [Dkt. 1].

                                    II. LEGAL STANDARD

               FOIA cases are typically and appropriately decided on motions for summary

judgment. Brayton v. U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011); Moore v.

Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). Federal Rule of Civil Procedure 56 provides that

summary judgment must be granted when “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment

is properly granted against a party who “after adequate time for discovery and upon motion . . .

fails to make a showing sufficient to establish the existence of an element essential to that party’s
                                                 4
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must draw all

justifiable inferences in the nonmoving party's favor and accept the nonmoving party’s evidence

as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the

mere existence of a scintilla of evidence” in support of its position. Id. at 252.

                When an agency subject to FOIA receives a request for records, it must

determine within twenty days whether to comply with that request and, once it does, must

immediately notify the requester of its determination and reasoning. 5 U.S.C. § 552(a)(6)(A)(i).

Upon receipt of that determination, the requester may administratively appeal the agency’s

decision, and the agency must decide the appeal within twenty days. See id. § 552(a)(6)(A)(ii).

Exhaustion of that administrative appeal process is a prerequisite to seeking judicial relief, unless

the agency has not responded within the statutory time limits. See id. § 552(a)(6)(C); Oglesby v.

Department of Army, 920 F.2d 57, 61-62 (D.C. Cir. 1990).

               Federal district courts have jurisdiction under FOIA “to enjoin [an] agency from

withholding agency records and to order the production of any agency records improperly

withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). In a FOIA suit, the burden is “on the

agency to sustain its action,” and the district court must “determine the matter de novo.” Id.

                                         III. ANALYSIS

               The record before the Court raises as many questions as it answers. Because one

day could mean the difference between timeliness and untimeliness, EPA will be ordered to

provide for a more thorough explanation of the information technology involved.

       A. Administrative Exhaustion

               “It goes without saying that exhaustion of remedies is required in FOIA cases.”

Dettmann v. DOJ, 802 F.2d 1472, 1476 (D.C. Cir. 1986). While administrative exhaustion is not
                                                  5
strictly jurisdictional under FOIA, it is nonetheless “a jurisprudential doctrine [and] failure to

exhaust precludes judicial review if ‘the purposes of exhaustion’ and the ‘particular

administrative scheme’ support such a bar.” Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir.

2003) (citing Oglesby, 920 F.2d at 61). The detailed structure of FOIA supports application of

this jurisprudential doctrine, making prior exhaustion required before suit. Hidalgo, 344 F.3d at

1258-59.

               Without contesting this legal requirement, the Institute argues that it did, in fact,

constructively exhaust its administrative remedies because EPA’s response to its appeal was late.

Twenty federal work days from January 8, 2015 was February 6, 2015.3 EPA’s notice that it

needed additional time due to unusual circumstances was sent by email on February 10.

               The Institute notes that it submitted its appeal on January 8, 2015 by email to

hq.foia@epa.gov and that EPA’s declarant responds only that “[o]n January 12, 2015, my office

received a copy of an administrative appeal by Plaintiff dated January 8, 2015.” Mot., Ex. 3

[Dkt. 8-3] (Miller Decl.) ¶ 23. The Institute cites different EPA documents that identify both

January 12 and January 14 as the date the appeal was received. Opp’n at 10.4 From this, the

Institute argues that “[t]hese inconsistent statements suggest that neither date is correct, and show

possible fabrication and bad faith [by EPA], making its summary judgment papers not credible,

and thus justifying the denial of its motion for summary judgment.” Id. The Institute cites, inter

alia, Landmark Legal Foundation v. EPA, 959 F. Supp. 2d 175, 183 (D.D.C. 2013) for this



3
 The 20-day deadline prescribed by 5 U.S.C. § 552(a)(6)(A)(ii) is exclusive of weekends and
public holidays.
4
 Compare Mot., Ex. A [Dkt. 8-4] (Case File) (listing “01/12/2015” as the date that “FOIA
Appea[l] EPA-HQ-2015-003028 [was] Submitted”) with Opp’n, Ex. 1 [Dkt. 9-2 at 6] (1/14/2015
EPA Ltr.) (acknowledging “receipt of [the Institute’s] FOIA appeal . . . on January 14, 2015”).

                                                  6
proposition. Since electronic mail is delivered instantly, the Institute contends that it filed a

proper appeal on January 8, 2012, to the email address provided by EPA, and that it was

delivered on that date. From that sequence, it contends that it exhausted all administrative

remedies before receiving a response on its appeal and is properly before the Court.

       B. FOIA Requests vs. FOIA Appeals

               EPA contends that its 20-day due date for responses to FOIA appeals only begins

“on the date on which the request is first received by the appropriate component of the agency,

but in any event not later than ten days after the request is first received by any component of the

agency.” Mot. at 6 (citing 5 U.S.C. § 552(a)(6)(A)(ii)). EPA relies on Mr. Miller’s declaration

for the proposition that “the [Institute’s] appeal was not received by the Agency until January 12,

2015.” Mot. at 6 (citing Miller Decl. ¶ 22). What Mr. Miller said was: “On January 12, 2015,

my office received a copy of an administrative appeal filed by Plaintiff dated January 8, 2015.”

Miller Decl. ¶ 22 (emphasis added).

               The statutory language cited by EPA applies to FOIA requests, not to FOIA

appeals. See 5 U.S.C. § 552(a)(6)(A) (“The 20-day period under clause (i) shall commence on

the date on which the request is first received by the appropriate component of the agency . . . .”)

(emphasis added). Appeals are governed by clause (ii), not by clause (i).5 The date that EPA’s

“appropriate component” received the appeal—which it argues was January 12, 2015—is

immaterial for present purposes. What matters is the date that the Agency received the appeal.



5
  When Congress intended to include both clause (i) and (ii) in its expansions of the 20-day time
limit, it made that clear. See, e.g., 5 U.S.C. § 552(a)(6)(B)(i) (“In unusual circumstances as
specified in this subparagraph, the time limits prescribed in either clause (i) or clause (ii) of
subparagraph (A) may be extended by written notice . . . .”) (emphasis added).




                                                  7
See 5 U.S.C. § 552(a)(6)(A)(ii) (requiring “a determination with respect to any appeal within

twenty days . . . after the receipt of such appeal.”).

        C. The Institute’s Appeal in this Case

                EPA directs FOIA appellants to send their appeals to an email address

(hq.foia@epa.gov) from which they are sorted and delivered internally. Notably, because EPA’s

argument does not distinguish between FOIA requests and FOIA appeals—or explain whether an

email to its FOIA website is maintained by EPA or an outside vendor—the argument does not

say when the Institute’s appeal was received by EPA and, thus, whether the Institute’s present

lawsuit is premature.

                Nor is the timeliness issue resolved by EPA’s request for an extension due to

“unusual circumstances,” emailed to the Institute’s counsel on February 10, 2015. If an agency

fails to respond to an initial request on a timely basis, but responds before a requestor files suit,

the requester must appeal that decision and exhaust administrative remedies before going to

court. See Flaherty v. IRS, 468 F. App’x 8, 9 (D.C. Cir. 2012) (per curiam) (“If the agency

responds to the request after the twenty-day statutory window, but before the requester files suit,

the administrative exhaustion requirement still applies.”) (quoting Judicial Watch, Inc. v.

Rossotti, 326 F.3d 1309, 1310 (D.C. Cir. 2003)); see also Oglesby v. U.S. Dep’t of Army, 920

F.2d 57, 64-65 (D.C. Cir. 1990) (“We therefore interpret 5 U.S.C. §§ 6(A) and (C) as requiring

the completion of the administrative appeal process before courts become involved, if the agency

has responded to the request before the suit is filed.”).

                But Oglesby concerned an agency’s tardy response to a FOIA request, not a tardy

response to an appeal. The plaintiff in Oglesby had failed to file administrative appeals on the

denials of his FOIA requests and had gone to court instead. The D.C. Circuit held that “judicial



                                                   8
review of his claims . . . was precluded” against the five agencies that had answered his requests

after 20 days but before he sued. 920 F.2d at 71. Since Oglesby set out new requirements,

however, the D.C. Circuit directed the district court “to grant petitioner to the right . . . to pursue

administrative appeals from the initial agency denials.” Id. Further, it clarified that “[o]nce the

head of the agency has made a determination on appeal or the twenty-day statutory deadline for

the appeal decision has passed, he may bring suit in federal district court.” Id. (emphasis

added). The D.C. Circuit stated further that “if the agencies do not respond with twenty days of

the appeal, the appellant will be deemed to have fully exhausted his administrative remedies and

may bring suit.” Id. See also id. n.8 (“The statutory twenty days allowed for a decision on

appeal hardly posits an unreasonable addition to the lifespan of a FOIA request.”).

                Certainly, Oglesby did not erase an agency’s ability to claim more time to handle

an appeal due to unusual circumstances. Here, however, EPA may have notified the Institute too

late.6 If so, then under Oglesby the Institute’s suit would not be premature.

        D. The Need for Additional Explanation

                We thus return to the critical question: when was EPA’s “receipt of [the

Institute’s] appeal” under 5 U.S.C. § 552(a)(6)(A)(ii)? EPA does not explain the communication

technology at work here, whereby a message emailed to a public address on a Thursday was

somehow not delivered until the following Monday. Miller Decl. ¶ 22 (“On January 12, 2015,

my office received a copy of an administrative appeal filed by Plaintiff dated January 8, 2015.”).



6
 The Institute alleges that it was owed a response by February 6, 2015. Compl. ¶ 31. EPA
argues—presumably, because it does not specify a date—that its response was due February 10,
2015. See Mot. at 6-7 (arguing that the 20-day deadline should be calculated, excluding
weekends and public holidays, from the date of receipt, which EPA maintains is January 12,
2015). This count excludes eight weekend days and Martin Luther King Day, celebrated on
Monday, January 19, 2015.

                                                   9
Since there are possible explanations (outside contractors, technical limitations, etc.) for this

seeming discrepancy but none is provided, the Court cannot determine on this record when the

Institute’s email was actually received by EPA. The threshold question of timeliness is therefore

impossible to answer.

                                       IV. CONCLUSION

               The Court will deny without prejudice EPA’s motion for summary judgment and

order EPA to provide a technical and complete explanation of the technology used to process the

Institute’s appeal, including an explanation of how a January 8, 2015 email was not received

until January 12, 2015. This explanation shall be filed by March 25, 2016. The Institute may

file a response by April 8, 2016.

               A memorializing Order accompanies this Opinion.



Date: March 4, 2016

                                                                      /s/
                                                       ROSEMARY M. COLLYER
                                                       United States District Judge




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