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Documents denied despite delay in response

Virginia Lawyers Weekly//November 20, 2019

Documents denied despite delay in response

Virginia Lawyers Weekly//November 20, 2019//

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Although the Council on Environmental Quality did not respond to the Southern Environmental Law Center’s FOIA request within the 20 days required by statute, the delay, by itself, does not entitle the center to the documents. Moreover, because the agency argued some of the requested documents may be exempt under FOIA, the center’s motion seeking disclosure of the documents as a matter of law was denied.


Southern Environmental Law Center, or SELC, filed this action against the Council on Environmental Quality, or CEQ, seeking to compel the disclosure of records requested under the Freedom of Information Act, or FOIA. SELC has moved for judgment on the pleadings and requested that the court order CEQ to produce all documents responsive to its FOIA request.


In support of the motion, SELC contends that it is undisputed that CEQ did not make and communicate its “determination” whether to comply with the FOIA request within the time required by law. Second, SELC emphasizes that CEQ has failed to produce any responsive documents. While the court understands the plaintiff’s frustration over the delay in receiving a response to its FOIA request, the court is unable to conclude that the plaintiff is entitled to judgment as a matter of law at this stage of the proceedings.

First, an agency’s failure to comply with the default 20-day deadline for making a “determination” of whether to comply with a FOA request does not entitle the requesting party to the actual production of the records at issue. Instead, it allows the requesting party to “proceed directly to court” without having to exhaust administrative remedies. However, “the agency suffers no prejudice on the merits of its defense” to the case.

Second, the court is unable to conclude from the pleadings that agency records have been “improperly withheld” by CEQ. In its answer, CEQ asserted that some or all of the requested records may be fully exempt from release under FOIA. Additionally, the adequacy of CEQ’s search is “dependent upon the circumstances of the case,” as is whether the agency has made responsive nonexempt records “promptly available.” Because all of these issues require the consideration of evidence outside the pleadings, SELC is not entitled to judgment under Rule 12(c).

Plaintiff’s motion for judgment on the pleadings denied.

Southern Environmental Law Center v. Council on Environmental Quality, Case No. 18-cv-00113, Sept. 16, 2019. WDVA at Charlottesville (Conrad). VLW 019-3-438. 7 pp.

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