US EPA Escapes Sanctions But Incurs Judge’s Wrath For Deficient FOIA Responses

In a March 2, 2015 decision, Judge Royce C. Lamberth of the US District Court for the District of Columbia denied requested spoliation sanctions against US EPA but blasted the Agency for its “continued disregard” for its Freedom of Information Act (FOIA) obligations and “offensively unapologetic” actions in response to claims of insufficiency.

Plaintiff Landmark Legal Foundation had submitted a FOIA request to US EPA in August 2012, seeking emails, text messages, and other electronically stored information (ESI) from high-ranking US EPA officials, including former Administrator Lisa Jackson, related to the release dates of key environmental regulations. In October 2012, after receiving insufficient responses from US EPA, Landmark filed suit to obtain the information.

US EPA responded to Landmark’s FOIA request with repeated deficient electronic searches, both before and after the lawsuit commenced. For example, a litigation hold notice instructing US EPA employees to preserve potentially relevant information was not issued by the Agency until October 23, 2012, over two months after Landmark submitted its FOIA request. And while the hold notice explained that ESI must be preserved regardless of its nature or where it was stored, including on smart phones and home computers, the notice was not sent to the Administrator or other high ranking US EPA officials. Continue>>>