United States District Court, W.D. Virginia, Charlottesville Division
E. CONRAD SENIOR UNITED STATES DISTRICT JUDGE
Environmental Law Center (“SELC”) filed this
action under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, against David
Bernhardt, in his official capacity as Acting Secretary of
the Department of the Interior (“DOI”); Daniel
Smith, in his official capacity as Deputy Director of the
National Park Service (“NPS”), an agency within
DOI; and Daniel Jorjani, in his official capacity as
Principal Deputy Solicitor of the Office of the Solicitor, an
agency within DOI (collectively, the “DOI
Defendants”). The case is presently before the court on
the DOI Defendants' partial motion to dismiss for lack of
subject-matter jurisdiction, in which the DOI Defendants
argue that SELC does not have standing to pursue the
policy-or-practice claim asserted in Count II of the
complaint. For the reasons set forth below, the motion will
be denied without prejudice.
SELC's FOIA Request
a nonprofit public interest law firm that focuses on
environmental issues affecting six southeastern states.
Compl. ¶ 9, Dkt. No. 1. “As part of its mission,
SELC regularly submits FOIA requests to agencies within the
Department of the Interior, including the NPS.”
Id. ¶ 12.
December 14, 2017, SELC sent NPS a FOIA request seeking
“records . . . related to the crossing of the Blue
Ridge Parkway or Appalachian National Scenic Trail by the
Atlantic Coast Pipeline.” Compl. Ex. 1, Dkt. No. 1-2.
NPS did not respond to the FOIA request within twenty days,
as required by statute. See 5 U.S.C. §
552(a)(6)(A)(i). Consequently, on January 9, 2018, SELC
requested an update on the status of the FOIA request and
offered to clarify the scope of the request. Compl. ¶
39. However, “NPS did not respond.” Id.
seven weeks later, on February 28, 2018, NPS acknowledged
receipt of the FOIA request and produced two documents,
namely, the final permits issued for the Atlantic Coast
Pipeline. Id. ¶ 40. In its February 28, 2018
communication, NPS also sought additional clarification
regarding the FOIA request, noting that more than 90 NPS
staff members in more than six offices would potentially
possess responsive records. Id. ¶ 41. In
response, SELC clarified the categories of documents sought
and attempted to narrow the scope of the request.
Id. ¶ 42. SELC also offered to narrow the scope
of the request even further if NPS would describe the
categories of responsive records. Id.
April 4, 2018, NPS advised SELC that “agency staff were
‘working on preparing a list . . . of materials or
categories.'” Id. ¶ 43. Seven weeks
later, on May 23, 2018, SELC contacted NPS and requested an
update on the FOIA request. Id. ¶ 44. NPS
replied that it was working on an advanced search query for
email searches and that NPS would keep SELC posted on the
9, 2018, nearly seven months after the FOIA request was
initially submitted, SELC contacted NPS again and requested
an estimated date of completion. Id. ¶ 45. That
communication went unanswered. Id. As of February
21, 2019, when the instant action was filed, SELC had
received no further communication regarding the FOIA request.
Id. ¶ 61.
Policies or Practices Allegedly Affecting SELC's FOIA
alleges that the DOI Defendants have unlawfully delayed
responding to the pending FOIA request, and that the delay
was caused, at least in part, by policies and practices
expressed in certain memoranda. Specifically, SELC cites to
policies and practices associated with an “Awareness
Process Memorandum” issued by DOI on May 24, 2018, a
“Deliberative Process Memorandum” issued to the
Fish and Wildlife Service (“FWS”) on September 6,
2018, and a “Foreseeable Harm Memorandum” issued
by DOI on December 29, 2017 (collectively, the
“Memoranda”). Compl. ¶¶ 46-59.
Awareness Process Memorandum requires FOIA personnel to
“search responsive emails and attachments to emails for
the names and email addresses of current [DOI] employees who
are Presidentially Appointed, Senate Confirmed (PAS),
Non-Career Senior Executive (NCSE), and/or Schedule C
employees.” Awareness Process Mem. 2, Dkt. No. 1-4. If
such information is located, FOIA personnel must
“notify each PAS, NCSE, and/or Schedule C employee
identified in responsive emails and provide him/her access to
the full set of responsive records.” Id. at 3.
FOIA personnel must also “simultaneously identify a
[Solicitor's Office] attorney.” Id. The
identified employee and the attorney “have up to 72
hours to review the responsive records.” Id.
Additional time may be provided upon request. Id.
Deliberative Process Memorandum issued to FWS includes
“recommendations and considerations for when
withholding records as deliberative under FOIA Exemption 5 (5
U.S.C. [§] 552(b)(5)) may be appropriate.”
Deliberate Process Mem. 1, Dkt. No. 1-6. The memorandum
indicates that it “is intended to raise awareness of
the need to process FOIA requests in a manner most likely to
preserve the consistency of information released under FOIA
with information that could be subsequently included in an
[administrative record] pursuant to Administrative Procedure
Act (APA) litigation involving FWS decisions.”
Id. According to the memorandum, FWS previously
released documents in response to FOIA requests
“without undertaking a discerning review for
deliberative materials.” Id. at 2. The
memorandum emphasizes that “FWS personnel should
carefully review responsive documents for deliberative
process applicability” in order to “protect
[agency] decisions in the FOIA context” and “in
APA litigation.” Id. at 4. The memorandum goes
on to describe “[c]ategories of information and
documents that should be considered for withholding in full
or in part under Exemption 5's deliberative process
privilege.” Id. at 5.
Foreseeable Harm Memorandum, which is incorporated by
reference in the Deliberative Process Memorandum, creates an
additional layer of review before certain documents may be
released in response to a FOIA request. Specifically, the
memorandum states that if a FOIA officer “plan[s] to
release a record (or portion of it) covered by an exemption
because [the officer] decide[s] no foreseeable harm would
result from the disclosure, ” the officer must
“seek additional ...