SUMMARY OF ARGUMENT
Defendant’s motion for summary judgment should be rejected, because it has notcomplied with this Court’s order that it produce a representative sample
Index of 172fully-withheld documents, has not consistently sampled every tenth document, omitted severalhundred records from its sampling, and has instead demonstrated that its withholding of documents under FOIA exemptions is based on unreliable and often erroneous privilege claims.
See, e.g., Bonner v. Department of State
, 928 F.2d 1148, 1152-54 (D.C. Cir. 1990). Thus, it hasnot met its burden of justifying its withholding in full or part of thousands of documentsresponsive to plaintiff’s FOIA request.
See Vaughn v. Rosen
, 484 F.2d 820, 823 (D.C. Cir. 1973)(“the burden is on the agency to prove
in trial court
that the information sought fitsunder one of the exemptions to the FOIA”);
accord U.S. Dept. of Justice v. Reporters CommitteeFor Freedom of Press,
489 U.S. 749, 755 (1989);
GC Micro Corp. v. Defense Logistics Agency
,33 F.3d 1109, 1113 (9th Cir. 1994);
Church of Scientology v. U.S. Dept. of Justice
, 30 F.3d 224,228 (1st Cir. 1994).The FOIA request at issue, moreover, uncovered serious flaws in EPA’s transparencypractices that fueled a major controversy. The request focused on emails sent to or from EPAAdministrator Lisa Jackson’s “secondary email accounts.”
The Administrator’s use of suchaccounts, especially one using a “Richard Windsor” alias, has become a highly publicized issueattracting widespread media coverage and Congressional scrutiny.
This week, a Senate
Docket No. 24-4, exhibit 1 (attaching the FOIA request).
Do Text Messages from Feds Belong on Record? EPA’s Chief’s Case Opens Legal Battle
, Washington Times, April 30, 2011, at A1; Stephen Dinan,
EPA Staff to Retrain on Open Records; MemoSuggests Breach of Policy
, Washington Times, April 9, 2013, at A4.
Case 1:12-cv-01617-JEB Document 26 Filed 09/11/13 Page 5 of 48