Thursday, October 10, 2013
Re: Request for documents related to delisting of certain wild goat under Endangered Species Act Disposition: Denying defendant's motion to dismiss, or alternatively for summary judgment; granting plaintiff's cross-motion for summary judgment
- Procedural Considerations, Adequacy of Search: The court first reject's defendant's contention that "because it never made a 12–month finding (despite its statutory obligation to do so), 'the 90–day finding was the only decision or agency action that [was] made with respect to [the] 1999 petition'; consequently, there is no administrative record beyond the 90–day finding." "[T]he Court concludes that [defendant's] failure to publish a 12–month finding, in violation of its statutory duty to do so, constitutes a final agency decision in this case such that documents that [defendant] generated or considered in regard to the 1999 downlist petition after the 90–day finding was made (including but not limited to documents that were part of the mandatory notice and comment period for the 12–month finding) are part of the 'entire Administrative Record' for purposes of Plaintiff's FOIA request." The court explains that "[w]ere it otherwise, an agency could almost always circumvent its FOIA duty to produce record documents with respect to rejected petitions simply by running out the clock on the formal decision making period." The court denies defendant's motion to dismiss, or alternatively for summary judgment because defendant, "cannot yet say that Plaintiff has received all of the responsive documents that the agency has in its files because it has not yet searched for documents in a manner that is designed to yield all of the records that Plaintiff plainly seeks." The court explains by rejecting defendant's contention that "Plaintiff's FOIA request only asks for the small set of documents that [defendant] actually produced because the parenthetical that follows the request for 'the entire Administrative Record' specifically identifies the 90–day finding." The court states that "it is clear to the Court that the parenthetical is best read as 'an additional attempt to clarify wh[ich] petition the request concerned.'" Moreover, the court explains that "even if [defendant]'s narrow reading is a reasonable one, an agency 'has a duty to construe a FOIA request liberally.'"
Adequacy of Search
Updated August 6, 2014