EPA Ordered to Recheck Greenhouse Gas Records

(CN) - The U.S. Environmental Protection Agency must conduct a new search for records requested by a state attorney general regarding greenhouse gases and the danger they pose to the public, a Federal Court ruled.

In a complaint filed in Washington, D.C., Utah Attorney General Mark Shurtleff explained he asked to see records of the EPA's endangerment finding, a document that purportedly details how certain greenhouse gases, taken in combination, endanger the public health and welfare.

While he did receive some of the records he sought, he said, the agency fell far short of its obligations in fulfilling his Freedom of Information Act request.

Specifically he complained the EPA wrongly decided to not search records maintained by its Office of Science Policy, Office of Science Advisor, Science Advisory Board, and Regional Offices.

He also accused the agency of searching the files of only certain employees, but not others, at the agency's Research Triangle Park facility in North Carolina.

The EPA argued it provided detailed and non-conclusory information as to the electronic databases and hard copy filing systems, and that all relevant employees were asked to search.

The agency also said it identified employees deemed likely to have responsive records, and noted that some of the documents the attorney general was seeking were already publicly available.

In March 2012, U.S. District Judge Emmet Sullivan referred the case to a magistrate judge for a report and recommendation.

In her report, U.S. Magistrate Judge Deborah Robinson held the then-pending motions should be granted in part and denied in part.

Specifically, Robinson recommended the court grant EPA's motion as to the adequacy of its search; its withholding of certain documents pursuant to FOIA exemptions for deliberative

process privilege and attorney work products.

She went on to recommend the court deny summary judgment in regard to other withheld documents.

On review, Judge Sullivan noted Shurtleff requested an enormous amount of material, and that the agency began searching for responsive records shortly thereafter; he also observed the EPA gave the attorney general a first tranche of documents just three months later.

In light of this, Sullivan said, he had to reject "plaintiff's argument that defendant's delay in producing documents is evidence of bad faith or an inadequate search," a finding in line with the magistrate's analysis.

However, Sullivan rejected the magistrate's recommendations in other regards.

As a result, he wrote, "The Agency will be required to conduct another search for documents responsive to these portions of the request, or, in the alternative, to prove that its prior searches meet the adequacy standard.

"Moreover, in accordance with the Magistrate Judge's recommendation regarding the documents withheld under the attorney-client privilege, the EPA must either disclose the records withheld pursuant to that privilege or file supplemental submissions indicating in sufficient detail why withholding is proper," he said.Judge Sullivan also denied a motion by Shurtleff to supplement the case record.

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