CEI and ATI v. EPA – March 28 Complaint

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Plaintiffs COMPETITIVE ENTERPRISE INSTITUTE (“CEI”) and AMERICAN TRADITION INSTITUTE (“ATI”) for their complaint against Defendant UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (“EPA” or “the Agency”), allege as follows:

1) This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to compel production of EPA Instant Message transcripts under two separate but substantively similar FOIA requests by two distinct groups.

2) In January 2013, Plaintiffs submitted their respective requests, both of which seek certain records created on Instant Messaging (“IM”) accounts and sent or received by three senior officials of the United States Environmental Protection Agency.

3) Plaintiff CEI discovered the existence of these IM accounts in an Agency email obtained under a previous FOIA request. That email indicated that EPA’s creation of a false identity email account for its then-Administrator Lisa Jackson was first discussed in an “IM” discussion.

4) These IM accounts are used for particular official functions by senior agency employees, and will also reveal the extent to which Defendant EPA has complied with disclosure and other obligations.

5) Specifically, these “IM”s are “agency records” under federal record-keeping and disclosure laws and are of significant public interest for reasons including that their existence is not widely known, if at all, even among regular requesters of EPA records.

6) To Plaintiffs’ knowledge Defendant EPA has never produced an Instant Message in response either to a request under FOIA, or in response to a congressional oversight request, despite numerous requests from both for “records” or “electronic records”.

7) EPA denied both Plaintiffs’ requests to have their fees waived or reduced for the requests for Instant Messages at issue in the present matter, despite having, until recently, routinely provided Plaintiffs fee waivers for requests of far less public interest.

8) Defendant EPA never responded to either Plaintiff’s appeal of these fee waiver denials. Defendant thereby continues its refusal to waive fees for both requests, to respond to either appeal, or to provide estimated fees necessary to proceed or to appeal.

9) As such, and in the face of revelations about organized and systemic abuses by senior federal employees to hide from the public their activities, particularly their electronic communications, EPA has denied both requests and both appeals, leaving Plaintiffs no recourse but this lawsuit asking this Court to compel EPA to comply with the law.