EPA must pay attorney's fees after denying records that were already

disclosed

WASHINGTON, D.C.–A federal District Court in mid-May rebuffed the efforts of the Environmental Protection Agency to deny attorney’s fees to a Freedom of Information Act requester who successfully challenged the agency’s denial of information.

The agency had claimed that because most of the information it had denied the requester was already public, the requesters had not “substantially prevailed” in the lawsuit they won in October 1996 and would not be entitled to the attorney’s fees.

The court said EPA’s argument was “unpersuasive” since the requesters had not been able to get the information from the agency until after they filed a lawsuit.

The Northwest Coalition for Alternatives to Pesticides requested the ingredients for six pesticides from the EPA. EPA denied the request under Exemption 4, the proprietary exemption to the federal FOI Act.

The agency had consulted with the pesticide manufacturers and followed their advice that release of the ingredients would cause them substantial competitive harm.

The coalition sued in May 1994 in federal District Court in Washington, D.C., asking for the common names of the ingredients. It claimed that the information had been previously disclosed by the manufacturers and that some information would not cause competitive harm if it were released.

In the course of the lawsuit the coalition showed that the manufacturers had already made public information they were asking the agency to withhold as confidential, and in response EPA gave the coalition that information. In its decision in October, the court stated that EPA was required to give the coalition the requested pesticide information.

However, the coalition had to return to court in February 1997 to seek attorney’s fees. EPA claimed that, not unreasonably, it had relied on the manufacturers’ claims that the information was proprietary and therefore exempt under Exemption 4, and that it did not have the time to independently examine requested information submitted by pesticide companies to see if it were exempt.

The court said that in choosing to rely solely on the manufacturers’ claims of confidentiality, EPA had elected not to conduct its own inquiry under the FOI Act. That was a decision, the court said, to confront issues in litigation rather than committing resources to making FOI decisions. By choosing to confront FOI issues only as they arise in litigation, the agency must bear the costs of the requesters if it loses, the court said. (Northwest Coalition for Alternatives to Pesticides v. Browner; Counsel: Lynne Bernabie, Washington, D.C., and Michael Axline, Eugene, Ore.)