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Tongue-Lashing for EPA After FOIA Failures

WASHINGTON (CN) - The Environmental Protection Agency's unacceptable attitude toward public-records requests earned terse words but no sanctions from a federal judge.

Though Landmark Legal Foundation failed to win spoliation sanctions against the EPA, U.S. District Judge Royce Lamberth agreed with it that the agency had failed its duty to protect and provide public information.

Landmark filed a Freedom of Information Act request with the EPA on Aug. 17, 2012, for any records since Jan. 1, 2012, of communication between EPA representatives and people or organizations outside the EPA about delaying announcements of new regulations until after the November 2012 presidential elections.

After the EPA's FOIA coordinator asked Landmark to narrow the scope of its request, Landmark agreed to limit the request to communications involving senior officials in EPA headquarters.

With the EPA declining to expedite processing, Landmark's legal counsel issued a litigation hold in October 2012, instructing the EPA to preserve any potentially relevant information, on both official and personal devices, while it processed the FOIA request.

The litigation hold was forwarded to 45 EPA employees, but key employees in the offices of the administrator and deputy administrator did not receive the FOIA instructions until weeks later, after the presidential election.

When the assistants to the administrator and deputy administrator of the EPA received the FOIA instructions, their searches ignored several accounts and devices that were likely to contain relevant records, Lamberth's March 2 ruling states.

The EPA produced three sets of relevant documents between Feb. 7 and April 12, 2013, but then requested an extension to review newly discovered pertinent documents. By May 15, 2013, the agency produced an additional 365 relevant documents, and later in the legal process officials admitted that neither the administrator nor deputy administrator had produced any records during the initial FOIA search. Two years later, the EPA further admitted that its chief of staff was not included in the initial search at all.

After evidence surfaced of bad faith on the part of the EPA, a third search of the agency's records was conducted during the second half of 2014, and Landmark was finally satisfied that a proper search was conducted.

Lamberth concluded Monday that this "reasonable suspicion of wrongdoing" in the case is not sufficient to show that the EPA intentionally discarded evidence. The EPA's failure to send the FOIA request to the two senior offices of the agency until after the presidential election, and the EPA's lack of explanation for its lapse, create a cloud of suspicion over the case and reflect poorly on the EPA, the court found.

"During what should be a concerted effort to reaffirm the public's trust in the EPA, the agency's general refusal to accept responsibility for its mistakes throughout this case is baffling," the 25-page opinion states.

Lamberth took issue in particular with the actions of Nena Shaw, then-assistant to the deputy administrator of the EPA. Shaw's purported timeline of events has her receiving multiple reminders to conduct the FOIA search of the deputy administrator's records and finally completing the search more than a month after her initial notice. Once she completed the search, Shaw claimed that she had technical difficulties on two separate occasions while trying to upload to the EPA's FOIA database the records she found. Though Shaw claimed to have then printed the documents, she allegedly could not recall where she put them before she left her position in April 2013. That claim "is about as close to a sworn 'dog ate my homework' statement as one can make," Lamberth said, adding that it is unclear as to whether Shaw was lying or simply completely indifferent to the EPA's FOIA requirements.

If the case were before a jury and Landmark requested an adverse-inference instruction for Shaw's documents, Lamberth said he would grant it. Shaw's behavior was clearly negligent, but the judge said it still doesn't meet the high bar for punitive spoliation sanctions.

The EPA's failure to search officials' personal email accounts and devices and its decision to erase the contents of the deputy administrator's Blackberry after she resigned, despite the continuing litigation hold, further constitutes a failure of its public-information duties, Lamberth said. The actions of senior EPA officials regarding personal accounts and devices and failure to preserve the contents have been haphazard and understandably raises public suspicion, the judge wrote.

Lamberth urged the EPA to change its policy so that employees must preserve any agency records found on personal accounts or devices.

"Requiring EPA employees to both forward and preserve business-related information received within or sent from personal email accounts would not impose an undue burden on agency staff, and, more importantly, would foster greater public confidence in the agency's professed desire for transparency," Lamberth wrote.

"EPA continues to demonstrate a lack of respect for the FOIA process," Lamberth said, and though it voluntarily conducted a supplemental search after it realized it was deficient, that supplemental search would never have been necessary if the EPA took its FOIA obligations seriously in the beginning. Further, despite all the evidence of errors on the part of the EPA, the agency has expressed no indication of regret to Landmark or the court.

"The court is left wondering whether EPA has learned from its mistakes, or if it will merely continue to address FOIA requests in the clumsy manner that has seemingly become its custom," Lamberth wrote. "Given the offensively unapologetic nature of EPA's recent withdrawal notice ... the court is not optimistic that the agency has learned anything."

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