Lipton v. U.S. Envtl. Prot. Agency
Lipton v. U.S. Envtl. Prot. Agency
Opinion of the Court
JOHN D. BATES, United States District Judge *247The world moves fast, but government bureaucracy does not. Officials meet daily with individuals and groups that attempt to sway their thinking on the issues of the moment. But while the buttering-up and sausage-making takes place in real time, citizens may only discover what their officials are up to if they ask-and then sue. The Freedom of Information Act (FOIA) requires disclosure of records, such as calendar entries, upon request. Yet agencies may take months to respond, and an incomplete or delayed answer can mean months longer in court. Requesters therefore fear that by the time they can wrest the desired information from an agency's hands, it will be too late for that information to be useful.
The New York Times and one of its reporters, Eric Lipton, believe they have found a way to cut this Gordian knot. One section of FOIA, known as the "reading-room provision," requires agencies proactively to publish certain materials on their websites. Among other things, agencies must make publicly available any previously-released records that either already have been sought at least three times or are likely to be the subject of further requests. See
BACKGROUND
FOIA consists of both proactive and reactive provisions. The reactive provision of FOIA mandates that agencies disclose most records upon request. See
In 1996 and 2016, Congress amended FOIA to bring it up to date with the digital age. See Electronic Freedom of Information Act Amendments of 1996 ("1996 *248Amendments"), Pub. L. No. 104-231, 104th Cong.,
Plaintiff Eric Lipton is an investigative reporter at the New York Times. Lipton Decl. [ECF No. 20-7] ¶ 1. He has published a number of articles reporting on conflicts of interest involving former EPA Administrator Scott Pruitt and other EPA officials, and relies on FOIA requests for his ongoing reporting on the topic.
EPA failed to respond to plaintiffs' revised request within FOIA's twenty-day deadline, and on December 4, 2017, plaintiffs filed this suit against EPA. See Compl. [ECF No. 1]. Plaintiffs bring two claims. Claim One alleges that EPA's failure to make the Administrator's calendar available on a regularly updated basis throughout Pruitt's tenure violated § 552(a)(2)(D).
LEGAL STANDARD
"FOIA cases typically and appropriately are decided on motions for summary judgment." Georgacarakos v. FBI,
ANALYSIS
Plaintiffs assert that EPA's failure to make the Administrator's detailed calendar available in its electronic reading room on an ongoing basis violates FOIA's reading-room provision. See Pls.' Mot. at 9. They urge that the calendar meets all of the prerequisites for publication under § 552(a)(2)(D) : EPA has already released certain date ranges of the calendar, the calendar is of significant public interest and is likely to be the subject of future requests, and it has already been the subject of three or more FOIA requests. See
Two initial observations. First, for the purposes of this opinion, the Court assumes without deciding that the Administrator's detailed electronic calendar up through the date of plaintiffs' FOIA request is an "agency record" (or "records"). See Consumer Fed'n of Am. v. Dep't of Agric.,
Ultimately, however, the Court finds that EPA's proffered interpretation is correct. The reading-room provision does not enable plaintiffs to seek all future entries in the Administrator's detailed calendar on a rolling basis; it only requires an agency to make publicly available documents that have already been created, requested, and released in the past. This "conclusion rests in large part upon the statute's wording, both its individual words and the text taken as a whole." Lagos v. United States, --- U.S. ----,
First, the text. The pertinent portion of the reading-room provision reads as follows:
*250Each agency, in accordance with published rules, shall make available for public inspection in an electronic format-
(D) copies of all records, regardless of form or format-
(i) that have been released to any person under paragraph (3); and
(ii)(I) that because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; or
(II) that have been requested 3 or more times ....
Start with the operative word: "record." The Court must first examine any statutory definition of this word, for "[w]hen a statute includes an explicit definition, we must follow that definition, even if it varies from that term's ordinary meaning." Stenberg v. Carhart,
Therefore, the Court must "interpret the words consistent with their 'ordinary meaning ... at the time Congress enacted the statute.' " Wis. Cent. Ltd. v. United States, --- U.S. ----,
Reading both § 552(a)(2)(D) and FOIA as a whole further clarifies that the Administrator's detailed calendar is not a single, continuous "record" that must be produced in perpetuity under the reading-room provision. To qualify for publication under that provision, records must first "have been released to any person" under the more familiar, reactive FOIA provision.
This reading of the statute is confirmed by the requirement that an agency "search" for the records requested under the reactive provision.
Legislative history confirms what the text suggests. See Dig. Realty Tr., Inc. v. Somers, --- U.S. ----,
Indeed, in the House report on the 1996 Amendments, Congress noted its understanding that "FOIA establishes a presumptive right for the public to obtain identifiable, existing records of Federal departments and agencies." H.R. Rep. No. 104-795, at 6, 1996 U.S.C.C.A.N. at 3449 (emphasis added). This understanding would not appear to bring within FOIA's reach hypothetical, yet-to-be-generated information. Moreover, Congress clarified that "the term 'record' " is meant to be "interchangeable" with other terms used in FOIA, such as " 'information' and 'matter.' " Id. at 19, 1996 U.S.C.C.A.N. at 3462. It makes little linguistic sense to refer to a document that might be created in the future as constituting the same "information" or "matter" as an already-existing one, no matter how similar the two may prove to be.
Confirming the clear contemplation of the statutory text, the committee reports on the 1996 and 2016 Amendments repeatedly express Congress's assumption that § 552(a)(2)(D) requires publication only of information that is already in the government's hands when the triggering request is made under the reactive provision. These reports constitute "the authoritative source for finding the Legislature's *253intent" in passing § 552(a)(2)(D), Garcia v. United States,
The committee reports also provided examples of the sort of "previously-released records on a popular topic" that Congress believed would now become subject to the reading-room provision. H.R. Rep. No. 104-795, at 21, 1996 U.S.C.C.A.N. at 3464. These examples refer to publication of extant documents regarding past events, rather than to rolling disclosures of future documents triggered by prior requests for existing ones. See
The legislative history of the 2016 Amendments provides plaintiffs no more comfort. The 2016 Amendments added the three-request prong to § 552(a)(2)(D). The Senate report described this provision "as requiring the public posting of documents that have been released under FOIA on three or more occasions." S. Rep. No. 114-4, at 4 (2016), 2016 U.S.C.C.A.N. 321, 324. Thus, far from changing what constitutes a record for purposes of the reading-room provision, the 2016 Amendments merely "clarif[y] that" the provision applies to "any document that has been released under FOIA and has been requested three or more times." Id. at 7, 2016 U.S.C.C.A.N. at 327. Legislative history therefore corroborates the most sensible reading of the text.
Finally, the courts have developed a test to determine what is an "agency record." See, e.g., Judicial Watch,
Against all this, plaintiffs offer two main responses, neither of which is persuasive. First, they argue that the Administrator's detailed calendar qualifies as a single "record" under FOIA because it is a "continuously updated, non-static" document. Reply in Supp. of Pls.' Mot. for Summ. J. ("Pls.' Reply") [ECF No. 27] at 13. Therefore, plaintiffs say, it does not matter that the calendar has been "updated and released" only "in piecemeal fashion until this point." Id. at 11.
The central thrust of plaintiffs' argument is the implication that the Administrator's past and future calendar is one record that is merely "update[ed] or alter[ed]" by adding each new day's meetings. Id. Plaintiffs cite Yeager v. Drug Enforcement Administration,
Plaintiffs also claim that "the D.C. Circuit has previously assumed that an agency administrator's electronic calendar is a single agency record for purposes of FOIA." Pls.' Reply at 12 n.2. True enough. As plaintiffs point out, in *255Consumer Federation of America v. Department of Agriculture,
Indeed, the D.C. Circuit has treated individual annual paper calendars, and individual "daily agendas" that a secretary distributed each day to inform agency staff of her boss's schedule, as separate documents for the purposes of determining whether they were "agency records." See Bureau of Nat. Affairs, 742 F.2d at 1487-88, 1495-96. The Circuit has also referred to other non-static, electronically stored entries as separate "records" for FOIA purposes. See, e.g., Judicial Watch,
Second, plaintiffs contend that their reading of the statute best fulfills Congress's desire to promote "efficient access" to government information. Pls.' Reply at 13-14. "Congress enacted the FOIA in order to 'pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.' " Morley v. CIA,
As plaintiffs themselves recognize, the intent behind the reading-room provision is not just "access," but "efficient access." Plaintiffs argue that the phrase "records ... that have been released" in § 552(a)(2)(D) should be read to include "the EPA Administrator's detailed calendar" because this reading would "streamlin[e] public access to those records" in the face of a recent glut of requests for Pruitt's calendar entries. Pls.' Reply at 15. But more disclosure does not always equal more efficient disclosure. One of Congress's purposes in enacting the 1996 Amendments, which created § 552(a)(2)(D), was to "enable agencies to more efficiently use their limited resources to complete [FOIA] requests on time." H.R. Rep. No. 104-795, at 12-13, 1996 U.S.C.C.A.N. at 3455-56. Yet plaintiffs' reading of § 552(a)(2)(D) would create massive, ongoing duties to publish non-static records if any part or prior version of a record had met the provision's prerequisites. Sticking with the example of a calendar, an agency might be required to publish an office's calendar on a rolling basis if, over several years, three people *256requested one day's worth of entries each. Or even upon the first request for any entry in the calendar, if the agency determined that other requesters would likely seek that or any other entry. The same might hold true of other non-static records, from email chains to Google Docs to White House access logs.
Nor does this duty have any natural stopping point. In arguing that the detailed calendar they seek has previously been released, as required by the reading-room provision, plaintiffs note that EPA "has released the Administrator's Calendar pursuant to FOIA under previous administrations." Pls.' Mot. at 11. If release of an agency head's calendar under a prior administration suffices to trigger rolling disclosure of the current agency head's calendar, then a mere three requests for certain entries would necessitate decades of effort on the agency's part. Popular interest in a non-static document like a calendar at one time could saddle an agency with responsibility to publish every update even when there would otherwise be no interest in or request for those updates at a later time. This is not the sort of efficient access that Congress envisioned.
At oral argument, plaintiffs attempted to draw numerous distinctions: between electronic calendars and certain other non-static documents; between requests for targeted sets of calendar dates and more general calendar requests; and between Pruitt's calendar and other Administrators' calendars, if different Administrators are given different user accounts. This sort of parsing raises more concerns than it resolves. For one thing, agencies and courts would be required to engage in fact-intensive analyses of the particular technology used to create the record(s). This would eliminate much of the efficiency advantage that might otherwise be gained by making future changes to an existing record subject to publication under § 552(a)(2)(D). For another thing, the reading-room provision would become subject to manipulation. EPA could, for instance, create new user accounts for the same Administrator each month so that each month's entries would constitute a new record. And, most importantly, FOIA itself mandates none of this line-drawing. Plaintiffs suggest, for example, that editing and overwriting a document might not render the archived and new versions separate records. However, if one created a new document with a new name, rather than overwriting the same one, it would undoubtedly constitute a new record. Nowhere does FOIA state that the reading-room provision can be toggled on and off by pressing "Save" versus "Save As."
Plaintiffs point out that if the reading-room provision is not read to require affirmative disclosure of the Administrator's calendar, repeat requesters like them will be forced to file regular FOIA requests. See Pls.' Mot. at 15; Pls.' Reply at 16. Congress, they assume, could not have intended to require such a cumbersome process for both requester and agency. See Pls.' Mot. at 15-16; Pls.' Reply at 15-16. But "such anomalies often arise from statutes, if for no other reason than that Congress typically legislates by parts-addressing one thing without examining all others that might merit comparable treatment." Michigan v. Bay Mills Indian Cmty., --- U.S. ----,
*257Kimble v. Marvel Entm't, LLC, --- U.S. ----,
Hence, for all of these reasons, Claim One of plaintiffs' complaint will be dismissed. Plaintiffs also seek injunctive relief, requiring EPA regularly to provide updated versions of Pruitt's calendar to plaintiffs until Pruitt leaves office. See Compl. ¶ 18(b), Prayer for Relief ¶ 3; Pls.' Mot. at 9, 13. Pruitt has now resigned, but EPA has not yet released these documents, so the issue remains live. However, the injunction is requested as a remedy for EPA's alleged violation of the reading-room provision. See Compl., Prayer for Relief ¶ 3; Pls.' Mot. at 9, 13, 17; Pls.' Reply at 19-21. Since the reading-room provision has not been violated, no relief is necessary.
CONCLUSION
This Circuit has recognized that delayed disclosure under FOIA, often after protracted litigation, "provides scant comfort when stale information is of little value yet more costly than fresh information ought to be." Payne Enters., Inc. v. United States,
There are no disputes regarding any of the material facts necessary to the resolution of these cross-motions. See Pls.' Statement of Material Facts [ECF No. 20-2] ¶¶ 33-36; Def.'s Statement of Material Facts [ECF No. 23-1] ¶¶ 1-9; Def.'s Response to Pls.' "Statement of Material Facts" [ECF No. 23-2] ¶¶ 33-36; Pls.' Response to Def.'s Statement of Material Facts [ECF No. 27-1] ¶¶ 1-9.
See, e.g., Black's Law Dictionary 1437 (rev. 4th ed. 1968) ("A written account of some act, transaction, or instrument, drawn up, under authority of law, by a proper officer, and designed to remain as a memorial or permanent evidence of the matters to which it relates."); Webster's Third New International Dictionary 1898 (1966) ("1 a: the state or fact of being recorded ... c (1): evidence, knowledge, or information remaining in permanent form (as a relic, inscription, document) ... (2): an account in writing or print (as in a document) or in some other permanent form (as on a monument) intended to perpetuate a knowledge of acts or events ....").
See, e.g., Black's Law Dictionary 1279 (7th ed. 1999) ("A documentary account of past events, usu. designed to memorialize those events; information that is inscribed on a tangible medium or that, having been stored in an electronic or other medium, is retrievable in perceivable form."); Oxford English Dictionary Online (3d ed. 2009), http://www.oed.com/view/Entry/159867 (fourth definition) ("Anything preserving information and constituting a piece of evidence about past events; esp. an account kept in writing or some other permanent form; (also) a document, monument, etc., on which such an account is inscribed. Frequently in plural: a collection of such accounts, documents, etc."); Webster's Third New International Dictionary 1898 (1993) ("1 a: the state or fact of being recorded ... c (1): evidence, knowledge, or information remaining in permanent form (as a relic, inscription, document) ... (2): an account in writing or print (as in a document) or in some other permanent form (as on a monument) intended to perpetuate a knowledge of acts or events ....").
The other way to meet the prerequisites is to successfully request records "that because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records."
The Senate version of the 1996 Amendments would have provided such a definition, stating that "the term 'record' means all books, papers, maps, photographs, machine-readable materials, or other information or documentary materials, regardless of physical form or characteristics." S. Rep. No. 104-272, at 4 (1996). However, the Senate ultimately passed a version of the House bill with negotiated modifications, see 142 Cong. S10894, 104th Cong. (1996), which did not include the definitional language from the initial Senate bill, see 1996 Amendments, § 3, 110 Stat. at 3049. The House noted that it had rejected the Senate's definition because the definition was pulled from the Records Disposal Act, and courts had read that law's disclosure exclusions (e.g., for "library materials") so broadly as to place documents beyond FOIA's reach. See H.R. Rep. No. 104-795, at 20, 1996 U.S.C.C.A.N. at 3463.
The House bill, rather than the Senate bill, formed the basis for the final law. See supra note 5. However, the language of what would become § 552(a)(2)(D) was nearly identical in both bills, except that the House bill explicitly required a record previously to have been released under § 552(a)(3) to be eligible for publication under § 552(a)(2)(D). See H.R. 3802, 104th Cong. § 4 (as reported by H. Comm. on the Judiciary, July 25, 1996); S. 1090, 104th Cong. § 4 (as reported by S. Comm. on the Judiciary, April 25, 1996). Thus, while the House and Senate negotiators chose the House bill's language for this provision in the final 1996 Amendments, see Pub. L. No. 104-231, § 4, 110 Stat. at 3049, both committee reports are useful in interpreting § 552(a)(2)(D).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.