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EPA Sued by Center for Food Safety Over Dicamba-Related FOIA Issues

A tractor fertilizing a field

Tracking shot. Drone point of view of a Tractor spraying on a cultivated field. Small Business.

A suit was filed on Monday in the District of Columbia by plaintiff Center for Food Safety (CFS) against the Environmental Protection Agency, or EPA. The complaint for declaratory and injunctive relief alleges that the defendant violated the Freedom of Information Act by failing to comply with the Act’s deadlines. The organization was seeking information relating to the agency’s report on dicamba-based pesticides.

The Center for Food Safety is described in the complaint as a “nonprofit public interest and environmental advocacy organization working to protect public health and the environment.” The Freedom of Information Act (FOIA) aims to increase governmental transparency and the public’s role in agency action.

Agencies are required by FOIA to provide records on request unless the request falls under an exemption. Following the submission of a request, FOIA requires that the agency must “determine whether it will release the requested records, and must notify the requester of its determination, the reasons for its decision, and the requester’s right to appeal an adverse decision to the head of the agency,” within 20 working days.

CFS said they submitted a written request to the defendant on June 17 seeking the notes, talking points, and speeches from meetings relating to the agency’s 2021 report on “the Status of Over-the-Top Dicamba: Summary of 2021 Usage, Incidents and Consequences of Off-Target Movement, and Impacts of StakeholderSuggested Mitigations…”

CFS argued in the request that it was in the public’s best interest to obtain these records “because disclosure would significantly contribute to public understanding of the operations or activities of government, and because obtaining the information was of no commercial interest to CFS.”

The defendant responded to the request with an unusual circumstances letter, explaining that they would need until January of 2023 to fulfill the request. In response, CFS slightly narrowed the volume of their request and requested a new estimated completion date. Despite multiple follow-ups, the defendant has yet to provide the plaintiff with an estimated completion date or any further communication as is required by FOIA.

The complaint cites failure to comply with the Freedom of Information Act’s mandatory determination deadline, failure to conduct an adequate search for responsive records, the unlawful withholding of all responsive records, failure to provide reasonably segregable portions of any lawfully exempt records, and failure to provide an estimated date of completion as required by FOIA.

CFS is seeking an order requiring the defendant to provide a lawful initial determination on the plaintiff’s FOIA request by a specified date, an order requiring the defendant to conduct searches for the requested records, a declaration that the defendant failed to make and communicate an initial determination or undertake a search and disclosure of the records, and expeditious proceedings.

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