Chapter 9A Obtaining Discovery from Federal Agencies Apart from Discovery Under the Federal Rules of Civil Procedure

• Jurisdiction: United States

Chapter 9A Obtaining Discovery from Federal Agencies Apart from Discovery Under the Federal Rules of Civil Procedure
Gail L. Wurtzler Lucas Satterlee Davis Graham & Stubbs LLP Denver, CO

GAIL L. WURTZLER is a partner in the natural resource/environmental and trial groups at Davis Graham & Stubbs LLP. She has been recognized since 2010 by The Best Lawyers in America® and is also peer-rated AV® through Martindale-Hubbell. Her practice includes litigation and trial of a variety of natural resource and environmental issues in state and federal courts in Colorado, Montana, Nevada, Idaho, Wyoming, Oregon, and Washington. Examples include: environmental toxic tort actions involving individual claims as well as class actions; royalty disputes; NEPA actions; public lands administrative appeals; CERCLA cost recovery and contribution actions; natural resource damages actions; Clean Water Act citizen suits; and RCRA citizen suits. Gail has written and lectured extensively on toxic tort and environmental litigation topics. She is currently chair of the Foundation's Publication Committee and co-chair of the ABA Litigation Section's subcommittee of women energy and environmental litigators. Gail has a J.D. from the University of Chicago and a B.A. (with honors, Phi Beta Kappa) from the University of Wisconsin-Madison (political science and economics).

LUCAS SATERLEE is an associate at Davis Graham & Stubbs LLP whose practice focuses on environmental and natural resources law involving regulatory compliance, litigation, and transactional work for clients in a variety of industries, such as mining, manufacturing, oil and gas, renewable energy, and real estate development. A significant component of Mr. Satterlee's current practice involves providing legal counsel related to hard-rock mine site cleanups throughout the western U.S. under the federal CERCLA (or Superfund) law or its state equivalent, in addition to other types of remediation sites and facilities with similar hazardous substance/wastes and water quality concerns. Mr. Satterlee also has experience assisting with environmental due diligence in association with corporate and real estate transactions, defending clients in administrative enforcement proceedings (including oil and gas companies before the Colorado Oil and Gas Conservation Commission), and advising clients on issues related to unmanned aircraft systems (drones). While attending the University of Denver Sturm College of Law, Mr. Satterlee worked as a legal intern at the U.S. Department of Justice (Environment and Natural Resources Division) and the U.S. Department of Energy (Office of Energy Efficiency & Renewable Energy

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Litigation of disputes concerning natural resources or environmental issues often concerns permits, projects or properties where a federal agency is involved. That agency may be a public lands management agency such as the Bureau of Land Management in the United States Department of the Interior or the Forest Service in the United States Department of Agriculture. Or, the involved federal agency may be an environmental regulator such as the United States Environmental Protection Agency overseeing a hazardous waste cleanup or setting and enforcing conditions in permits issued under federal environmental statutes.

Records maintained by these agencies may be important evidence to establish facts or provide data and other information to support or rebut expert opinions in litigation. This litigation could include, for example, disputes over development of resources on public lands, disputes over calculation of royalties on minerals produced under federal mineral leases, claims for recovery of response costs incurred by a private party for performing a hazardous waste cleanup under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq. ("CERCLA"), as well as other types of disputes.

Employees of these agencies may have relevant evidence. If the agency is not a party to the litigation, the ability to obtain discovery from these employees may be limited or nonexistent. The federal agency employees are not like employees of other non-parties in terms of their availability for discovery. They are subject to regulations, the Touhy regulations, governing the circumstances under which they can be asked to provide evidence in a dispute where their agency is not a party.

This paper is divided into two sections and addresses two methods for obtaining information from federal agencies apart from the methods available to obtaining information from a party to litigation under the Federal Rules of Civil Procedure.

The first section addresses use of the federal Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), and its implementing regulations to obtain documents within the possession of the federal agencies most relevant to natural resource and environmental litigation. The second section addresses the process under the Touhy regulations to obtain witness testimony from a federal agency employee in a deposition or at a hearing or trial when that agency, and indeed the government, is not a party to the litigation. Whether the potential agency employee witness can be compelled to testify under the Touhy regulations when the United States is not a party to the litigation will depend upon a number of case-specific facts.

FREEDOM OF INFORMATION ACT, 5 U.S.C. § 552

The Freedom of Information Act or FOIA was enacted in 1966 and codified at 5 U.S.C. § 552. It provides the public with a statutory right of access to certain records in the possession

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of federal agencies. In general, records must be disclosed unless the statute expressly excludes or exempts them from disclosure. The statute has been amended several times, most recently in 2016 by the FOIA Improvement Act.

By statute, agencies provide three types of access. The first is automatic disclosure through publication of notices in the Federal Register such as of notices of proposed rulemaking and final rulemaking as well as other notices of agency actions. The second is disclosure to the public in an electronic format of certain records without waiting for a formal request. Such records include: final opinions and orders made in adjudication of cases; statements of agency policy or interpretation that are not published in the Federal Register; administrative staff manuals and instructions to staff that affect a member of the public; and copies of all records that have been previously released in response to a FOIA request and that are or are likely to be the subject of subsequent FOIA requests or have been requested at least three times previously.¹ The third, and the focus of this paper, is responding to individual requests for government agency records submitted by the public including private persons and public and private entities such as corporations, associations, and state or local governments.

Each federal agency must publish in the Federal Register its rules and other information regarding the location, timing, procedures, and fees for requesting records from that agency.²

When an agency receives a FOIA request, the agency will assign a tracking number to the request if processing will take longer than ten days.³ That tracking number will allow the requester to check by telephone or online the status of the agency's efforts to complete action on the request including an estimated date on which the agency will complete action.⁴ The agency must determine within twenty working days whether to comply with the request and then notify the requestor of its determination The agency's response letter should tell the requester whether the request is granted, denied, or granted in part. The agency must identify any exemptions that it used to withhold documents. The agency's response also must advise the requester of its right to seek assistance from the agency's FOIA Public Liaison, and, if the request is denied in whole or in part, the right to appeal to the head of the agency within ninety days of the adverse determination and the right to seek dispute resolution services from the agency's FOIA Public Liaison or the Office of Government Information Services.⁵ The twenty-day period may be tolled by the agency while it waits for information reasonably sought from the requestor or to clarify with the requester issues about fee assessment. The tolling period ends when the requester responds to the agency.⁶

The twenty-day period also may be extended by ten working days upon written notice to the requester if "unusual circumstances" exist.⁷ "Unusual circumstances" include the need to search for and collect documents from field offices or other locations separate from the office

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processing the request; the need to search for and review a voluminous amount of separate and distinct records to respond; or the need for consultation with another agency having a substantial interest in the determination of the request or among two or more components of the same agency having such an interest.⁸

In addition, the agency shall notify the requester if it cannot process the request in the twenty-day period and provide the requester an opportunity to limit the scope of the request so it can be processed in that time period, modify the request, or arrange for an alternative deadline for the processing the request.⁹

The amount of fees that an agency will charge depends upon the requester's status and purpose. Requests made by an educational or noncommercial scientific institution (including students) whose purpose is scholarly or scientific research are subject to assessment of reasonable standard charges for document duplication after the first 100 pages. News media requests are subject to the same type of fee. Records requests for commercial use, which means a use motivated by a commercial, trade or profit interest, include requests made to pursue such an interest in litigation. The commercial use category...