Judge Disses Think Tank's 'Imaginative' FOIA Request

By Jenny Tsay, Esq. on February 04, 2014 | Last updated on March 21, 2019

A D.C. federal judge tossed out Competitive Enterprise Institute's (CEI) FOIA lawsuit against the EPA partially because it contained an "imaginative conspiracy theory."

In Competitive Enterprise Institute v. EPA, Judge James E. Boasberg of the U.S. District Court for D.C. found that CEI was using weak (albeit creative) arguments to compel the EPA to release about a thousand withheld emails.

So what made Judge Boasberg declare CEI's arguments to be an "imaginative conspiracy theory?"

Conspiracy Theory What?

In 2012, CEI filed an initial lawsuit against the EPA to reveal emails that were withheld after a FOIA request. The conservative think tank wanted emails to or from secondary addresses that contained the words climate, coal, endanger, or MACT (Maximum Achievable control technology Standards), according to Think Progress.

Now in CEI, the court has granted EPA summary judgment on almost every claim because CEI's "broad claims of bureaucratic conspiracy" weren't persuasive. For example, the think tank became very suspicious of the numbering used by the EPA for its withheld documents.

The judge asked for a sampling of the withheld emails for review. The numbering of the documents happened to begin with "-0." CEI theorists argued that using negative numbers could be utilized by the EPA to manipulate what documents were turned over. Back on planet earth, it seems the EPA used "-0" for documents without tracking numbers or for ones that were initially categorized to be released. So not exactly an elaborate government cover up scheme. 

Access (Mostly) Denied

Think tanks and special interest groups sure do love challenging partially granted FOIA requests. Frequently, the judges end up denying most, if not all, of the lawsuit.

In CEI, the think tank tried to argue that the EPA used "boilerplate exemption explanations" to justify why they withheld the emails. However, Judge Boasberg gave that argument the side eye, because the D.C Circuit doesn't prohibit the repetitive language, especially when the agency has already disclosed and withheld a large number of documents -- it's just more convenient to re-use relevant language.

After cracking some great jokes, Judge Boasberg allowed EPA to gracefully exit the lawsuit, but compelled them to hand over a few things first, including withheld email addresses of two key EPA players.

As for CEI's lawyers, they at least proved that attorneys can be creative types.

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