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. Also, Jackson’s “secondary” personal email account and BlackBerry, both of which she used to conduct government business, were neither preserved nor searched. As a result, when Jackson left office in February 2013, US EPA erased her BlackBerry, including potentially relevant information stored on it. The Agency claimed other potentially relevant ESI was lost due to technical difficulties.

Judge Lamberth first noted that punitive spoliation sanctions sought by Landmark required a showing by clear and convincing evidence that US EPA destroyed relevant materials in bad faith. While Judge Lamberth held that the record did not support a bad-faith finding, he seized the opportunity to admonish the Agency for its “utter indifference” to its FOIA obligations. His opinion stated that two possible explanations exist for US EPA’s conduct: “Either EPA intentionally sought to evade Landmark’s lawful FOIA request so the agency could destroy responsive documents, or EPA demonstrated apathy and carelessness toward Landmark’s request.” Finding insufficient evidence of the first, Judge Lamberth reproached US EPA for “continu[ing] to demonstrate a lack of respect for the FOIA process,” its “obvious errors” in conducting data searches, and its failure to offer Landmark or the court “any indication of regret.” Tellingly, Judge Lamberth concluded by “wondering whether EPA has learned from its mistakes, or if it will merely continue to address FOIA requests in the clumsy manner that has seemingly become its custom” and “implor[ing] the Executive Branch to take greater responsibility in ensuring that all EPA FOIA requests … are treated with equal respect and conscientiousness.”