UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ECOLOGICAL RIGHTS FOUNDATION, Plaintiff, Civil Action No. 19-980 (BAH) v. Chief Judge Beryl A. Howell U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant. MEMORANDUM OPINION Plaintiff Ecological Rights Foundation, “a non-profit, public benefit corporation . . . devoted to furthering the rights of all people to a clean, healthful, and biologically diverse environment,” Am. Compl. ¶ 16, ECF No. 7, challenges the response of defendant, the U.S. Environmental Protection Agency (“EPA”), to a ten-part request submitted pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for records related to the agency’s transparency, personnel, and accountability policies, see Compl., Ex. 1, Pl.’s FOIA Request (“FOIA Request”), ECF No. 1-1. Specifically, plaintiff alleges in two claims that EPA unlawfully withheld records responsive to plaintiff’s FOIA Request (Count II), Am. Compl. ¶¶ 60–62 and failed to conduct an adequate search for responsive records (Count III), id. ¶¶ 63– 65.1 1 In addition to these counts, the Amended Complaint pled that EPA constructively denied plaintiff’s FOIA Request by failing to comply with FOIA’s deadline mandate, failing to communicate the intended scope of its production, and failing to make responsive records promptly available to plaintiff (Count I), Am. Compl. ¶¶ 55–59, and engaged in a pattern and practice of violating FOIA’s response and determination deadlines, failing to disclose responsive records, and failing to conduct a reasonable search for records (Count IV), id. ¶¶ 66–70. The parties presented no argument on these claims in their pending cross-motions for summary judgment. In response to the Court’s order for supplemental briefing addressing these claims, see Min. Order (Jan. 19, 2021), the parties instead stipulated to the dismissal of Counts I and IV, see Stipulation to Voluntarily Dismiss Without Prejudice Counts I & IV of Pl.’s Am. Compl. at 2, ECF No. 28, which dismissal was granted on January 22, 2021, see Min. Order (Jan. 22, 2021). Counts II and III are thus the only claims still disputed by the parties. 1 Pending before the Court are the parties’ cross-motions for summary judgment. Def.’s Mot. Summ. J. (“Def.’s Mot.”), ECF No. 19; Pl.’s Cross-Mot. Summ. J. (“Pl.’s Mot.”), ECF No. 20. For the reasons set forth below, both parties’ cross-motions are granted in part and denied in part. I. BACKGROUND Plaintiff’s FOIA Request is briefly described below, followed by review of EPA’s responses both before and after initiation of this lawsuit. A. The FOIA Request On August 30, 2018, plaintiff submitted its FOIA Request to EPA. FOIA Request at 1; Def.’s Statement of Material Facts Not in Genuine Dispute (“Def.’s SMF”) ¶ 1, ECF No. 19-2; Pl.’s Statement of Material Facts (“Pl.’s SMF”) ¶ 1, ECF No. 20-3. Broadly speaking, the ten- part Request sought records concerning EPA’s policies, practices, and procedures related to transparency, personnel, and expenses since the departure of former EPA Administrator Scott Pruitt on July 5, 2018; investigations of former Administrator Pruitt by EPA’s Office of Investigator General (“OIG”); then-Administrator Andrew Wheeler’s calendar entries and calendar ...
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