PHILADELPHIA – A Bala Cynwyd law firm and two of its attorneys allege that the U.S. Coast Guard have declined to answer its Freedom of Information Act request concerning records related to a proposed expansion of the Port of Wilmington, Delaware.
Manko Gold Katcher & Fox, LLP and its attorneys Stephen D. Daly and Brandon P. Matsnev, all of Bala Cynwyd, filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 22 versus the United States Coast Guard, of Washington, D.C.
“Plaintiffs Manko Gold Katcher & Fox, LLP, Stephen D. Daly and Brandon P. Matsnev submitted a Freedom of Information Act (FOIA) request to defendant United States Coast Guard on Sept. 13, 2023 for records in defendant’s possession concerning the proposed Port of Wilmington Edgemoor Expansion, located at 4600 Hay Road in the Edgemoor section of New Castle County, Delaware by Diamond State Port Corporation,” the suit states.
“In response to the FOIA request, defendant failed to perform an adequate search for records and produced no records responsive to the request even though plaintiffs are aware of several such records that exist and provided evidence of same to defendant. Defendant then failed to issue a decision as to plaintiffs’ appeal of defendant’s determination within the time prescribed by FOIA. Therefore, plaintiffs now file this action for injunctive and other appropriate relief under the Freedom of Information Act.”
The suit continues that the plaintiffs sought records from the defendant in furtherance of Manko Gold’s representation of clients concerned about the Project’s potential impacts to safety and navigation on the Delaware River – and that the FOIA request sought documents or written communications (including emails) regarding the project, including but not limited to, the project’s potential impact on navigation on the Delaware River, including any communications between the defendant and the Delaware Department of Natural Resources and Environmental Control (DNREC) or the United States Army Corps of Engineers.
“In an email dated Oct. 11, 2023, defendant confirmed receipt of plaintiffs’ FOIA request and assigned the request a control number, 2023-CGFO-02455. On Nov. 1, 2023, defendant provided a written correspondence to plaintiffs, notifying them that defendant was ‘unable to locate or identify any responsive records’ in
response to the request after having conducted what defendant described as ‘a comprehensive search of files within Sector Delaware Bay for records.’ The Nov. 1 letter explained that plaintiffs had a right to appeal this determination. Defendant’s response that there were no responsive records in Sector Delaware Bay’s files concerning the project was erroneous, because plaintiffs had in their possession several email communications involving Sector Delaware Bay relating to the project that had been provided to plaintiffs by DNREC,” the suit says.
“In one such email, Lieutenant Commander Andrew Cooke, United States Coast Guard, stated that ‘Sector Delaware Bay does not see this project posing a risk to safe navigation.’ At a minimum, this email communication should have been identified as part of any adequate search by defendant for responsive records. Further, other administrative agencies, including DNREC and the United States Army Corps of Engineers, had represented that they had relied upon conclusions reached by defendant in assessing the project’s impacts to navigation as part of their own permitting reviews relating to the project. Defendant therefore likely has within its possession records relating to any assessment it performed concerning the project and its impacts to navigation. On Dec. 22, 2023, plaintiffs submitted a letter response to defendant’s Nov. 1 letter, attaching as evidence the existence of certain email records involving Sector Delaware Bay relating to the project. Defendant did not respond to plaintiffs’ Dec. 22 letter.”
On Jan. 23, 2024, plaintiffs submitted a timely administrative appeal of defendant’s Nov. 1 determination following the procedures outlined at 6 C.F.R. Section 5.9, which was submitted via both electronic mail and certified mail.
“Under 6 C.F.R. Section 5.8(d), defendant had 20 business days from the receipt of the appeal to issue a decision, i.e. by or before Feb. 21, 2024. It was not until well after this deadline for issuing a decision, on April 8, 2024, that defendant merely acknowledged receipt of the appeal. As of the date of the filing of this complaint, defendant has failed to render a decision regarding the appeal, notwithstanding multiple requests for status updates from plaintiffs,” the suit states.
“Under FOIA, a person making a request is deemed to have exhausted his administrative remedies if the agency fails to comply with the applicable time limit provisions set forth in the statute. Defendant has failed to adequately search for relevant records responsive to the request and therefore has failed to produce responsive agency records to plaintiffs. Further, the statutory period for the agency to issue a decision deciding the appeal has expired.”
For three counts of violating the Freedom of Information Act through failure to conduct an adequate search, failure to decide an administrative appeal within the time required and wrongful withholding of records, the plaintiff is seeking the Court to:
• Assume jurisdiction in this matter and maintain jurisdiction until defendant complies with FOIA and every order of this Court;
• Order defendant to expeditiously conduct an adequate search for all records responsive to plaintiffs’ FOIA request;
• Declare that defendant’s failure to make a timely decision with regard to plaintiffs’ appeal violates FOIA;
• Declare that defendant’s failure to promptly disclose the records responsive to plaintiffs’ request violates FOIA;
• Order defendant to expeditiously disclose all responsive, non-exempt records and enjoin defendant from improperly withholding records;
• Award plaintiffs their attorneys’ fees and costs; and
• Grant such other relief as the Court may deem just, equitable and appropriate.
The plaintiffs are represented by Jill Hyman Kaplan and Suzanne Ilene Schiller of Manko Gold Katcher & Fox, in Bala Cynwyd.
The defendant has not yet secured legal counsel.
U.S. District Court for the Eastern District of Pennsylvania case 2:24-cv-01681
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com