Locke

Background

On March 11, 2004, ONDA submitted a FOIA request to NOAA Fisheries, a component of an agency within the Department of Commerce. ONDA requested documents regarding the effects of livestock grazing on Upper and Mid- dle Columbia River Steelhead from “2003 to the present.” NOAA Fisheries obtained clarification of the request and then determined the documents responsive to it were those within its possession and control as of April 30, 2004, pursuant to the cut-off regulation.2 15 C.F.R. § 4.5(a) (prior to amendment). NOAA Fisheries referred the request to the agencies that had the primary interest in the documents for a direct response to ONDA. See 15 C.F.R. § 4.5(b).

ONDA filed a second FOIA request on January 7, 2005 seeking the same information as the first request, but for the period from “March 2004 to the present.” NOAA Fisheries limited its search to documents in its possession and control before January 10, 2005, the date it received the second request, pursuant to the cut-off regulation. See 15 C.F.R. § 4.5(a) (prior to amendment). 1 ONDA moved to dismiss this appeal on the ground that “[t]he OPEN Government Act invalidates Commerce’s sole basis for the appeal.”…