Tuesday, February 4, 2014
Re: Eighteen requests for records concerning National Pollutant Discharge Elimination System permit program Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment
- Litigation Considerations, Adequacy of Search: The court notes that "[p]laintiff does not challenge the adequacy of Defendant's search for documents," but "[t]he Court . . . independently finds that EPA's search was adequate." The court holds that defendant's "human-centered approach is entirely proper" and "[i]ndeed, it is reasonable for an agency to limit its search to asking staff members familiar with all aspects of a government program to find the relevant documents."
- Fees and Fee Waivers, Fees: The court explains that "[p]laintiff's challenge thus boils down to the argument that 'the Region . . . claiming it took 8.5 hours to read twenty-three pages . . . is inappropriate.'" Based on this argument, the court finds that "[a] plaintiff's bare allegation that a fee assessment is unreasonable . . . is insufficient to avoid summary judgment."
- Exemption 5, Deliberative Process Privilege: The court declines to rule on plaintiff's attempt to invoke a "government-misconduct" exception to FOIA cases. The court explains that "[g]eneral criticisms of the merits of policy decisions do not amount to evidence of misconduct." Second, the court addresses plaintiff's segregability argument and finds that "[p]laintiff has certainly not presented sufficient evidence to rebut the presumption of good faith afforded to [defendant's] declaration." "Nonetheless, out of an abundance of caution, the Court, at Plaintiff's request, ordered EPA to produce the unredacted letter for in camera review," and, following that in camera review it determines that, "the Court is of the opinion that the agency was perhaps more liberal with its disclosures that it had to be under the prevailing law." Third, the court addresses plaintiff's "passing reference to the established principle that the privilege applies only to predecisional records" and finds that "[d]eliberations over how to respond to allegations concerning a past event are without a doubt 'predecisional' to the actual response."
Adequacy of Search
Fees and Fee Waiver
Updated August 6, 2014