Landmark Legal Foundation v. EPA

The federal district court for the District of Columbia denied the request of the Landmark Legal Foundation (LLF) for punitive spoliation sanctions against EPA in a lawsuit brought to compel production of documents under the Freedom of Information Act (FOIA). In denying the sanctions motion, the court found that LLF had not presented sufficient evidence that EPA failed to preserve responsive documents in bad faith. The court, however, criticized EPA’s response to the FOIA request, finding that some of the document searches could only have been done with “abject carelessness” and that an EPA employee had exhibited “utter indifference” to the agency’s FOIA obligations. The court was also critical of EPA’s “baffling” refusal to take responsibility for its mistakes during the course of the litigation. Nonetheless, the court said that spoliation could not be inferred from EPA’s delayed response, and that negligent failure to preserve records was not sufficient to warrant punitive sanctions. The court said, however, that it “would implore” the executive branch to take steps to ensure that all EPA FOIA requests are “treated with equal respect and conscientiousness” regardless of the requester’s political affiliation.

Landmark Legal Foundation (LLF) asked the federal district court for the District of Columbia to impose sanctions on the U.S. Environmental Protection Agency (EPA) for spoliation. The sanctions motion was made in an action LLF filed before the 2012 presidential election to force EPA to produce documents under the Freedom of Information Act (FOIA) relevant to LLF’s request for records the group believed would show that EPA improperly delayed controversial environmental regulations for political reasons prior to the election. The sanctions motion was filed almost a year after the court’s August 2013 decision permitting LLF to conduct limited discovery because the court found that questions of fact had been raised as to (1) whether EPA deliberately and in bad faith sought to exclude the EPA administrator’s records from the scope of the FOIA request and (2) whether possibly relevant personal e-mails had been excluded from EPA’s records search. LLF contends that EPA failed to recover—and, in fact, erased—text messages and failed to cooperate in investigation the loss of text messages, and to search and recover relevant e-mails from personal accounts. LLF seeks attorney fees, costs, and a fine; the appointment of an independent monitor; and orders directing EPA’s Inspector General to investigate and report on all spoliation issues involving senior officials covered by the FOIA request and directing EPA to notify plaintiffs and petitioners in proceedings against the agency since 2009 of the possibility that EPA engaged in spoliation in their proceedings.