II. Withheld Documents
The EPA contends that FOIA exemptions 5 and 7 apply to the documents and portions of documents that it has withheld. Exemption 5 protects agency documents "that would not be available by law to a party . . . in litigation with the Agency." 5 U.S.C. § 552(b)(5). Thus, exemption 5 permits the agency to withhold from disclosure documents that would be "privileged in the civil discovery process." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 44 L. Ed. 2d 29 , 95 S. Ct. 1504 (1975). The exemption encompasses the deliberative process privilege, the attorney-client privilege, and the work-product privilege. See id.; Mead Data Central, Inc. v. Department of the Air Force, 566 F.2d 242, 252-56 (D.C. Cir. 1977). Exemption 7 applies to "records or information compiled for law enforcement purposes." Id. § 552(b)(7). An agency may withhold such documents if releasing them would result in one of seven types of harm listed in the statute. See id. In this case, the EPA argues that disclosure "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). The EPA submitted the affidavit of Charles F. Findley, Region 10 Director of the HWD, to support the claimed exemptions. The affidavit describes the withheld information and the basis for each exemption in sufficient detail to support the exemptions. See Perry, 684 F.2d at 126.
Plaintiff does not contest the applicability of the claimed exemptions.
Plaintiff asserts that the EPA waived the exemptions through issuance of the Report. Voluntary disclosure of information may waive an otherwise valid FOIA exemption. See Mobil Oil Corp. v. EPA, 879 F.2d 698, 700-01 (9th Cir. 1989); Afshar v. Department of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983); Mead Data Central, 566 F.2d at 253 & n.24; Cooper v. Department of Navy, 594 F.2d 484 (5th Cir.), cert. denied, 444 U.S. 926, 62 L. Ed. 2d 183 , 100 S. Ct. 266 (1979); United States Student Ass'n v. CIA, 620 F. Supp. 565 (D.D.C. 1985). The existence and scope of a waiver depends on the scope of the disclosure. See Mobil Oil, 879 F.2d at 701. The person asserting waiver of a FOIA exemption must show that "the withheld information has already been specifically revealed to the public and that it appears to duplicate that being withheld." United States Student Ass'n, 620 F. Supp. at 571.
The Report describes the contents of the documents in general terms and quotes several passages. Plaintiff contends that the Report's discussion of portions of the documents constitutes a waiver of the applicable FOIA exemptions for the documents in their entirety.
That argument runs contrary to the FOIA's provision that "any reasonably segregable portion of a record shall be provided . . . after deletion of the portions which are exempt." 5 U.S.C.A. § 552(b). That provision is meant to liberalize disclosure, but it also makes clear that an agency may release non-exempt portions of a document while withholding exempt portions. It follows that an agency voluntarily may disclose a portion of an exempt document without waiving the exemption for the entire document. A contrary rule would create an incentive against voluntary disclosure of information and undermine FOIA's purpose "to open agency action to the light of public scrutiny." Department of the Air Force v. Rose, 425 U.S. 352, 96 S. Ct. 1592, 1599, 48 L. Ed. 2d 11 (1976). Therefore, the Court concludes that a partial disclosure of the contents of a document does not constitute a waiver of the applicable FOIA exemptions for the entire document.
The Court now turns to the documents at issue. The Court conducted an in camera inspection of the documents, in part because the agency's affidavits contradicted the Report with regard to certain facts. The Court inspected the documents to determine whether the information withheld "has already been specifically revealed" in the Report. United States Student Ass'n, 620 F. Supp. at 571. The Court deals with the withheld portions of each document separately.
The Report contains a general description of the background paper:
On January 11, 1988, the HWD Director signed two internal memos addressed to the [Regional Administrator]. The Memos, a background paper and an option paper, described the changing conditions at the site. In a discussion of equity considerations, the background paper stated that Gulf as the operator of the site was responsible for a great majority of the pollution problems at Bunker Hill. However, BLP, through various actions or inactions, had contributed to many of these problems. The paper also established a link between the upstream mining companies and site contamination. The option paper discussed timing of the PRP notices and then presented options for notifying additional PRPs.
(Compl. ex. I, p. 12-13).
The EPA withheld the portion of the background paper that contains "a discussion of equity considerations." The Report merely reveals the subject of that discussion. The background paper contains detailed factual information and analysis that the Report does not disclose. In fact, the Report discloses approximately the same information regarding the contents of the background paper that the EPA might set forth in an affidavit supporting a FOIA exemption. Therefore, the Report's description of the background paper does not constitute a waiver of the applicable exemptions. The information that the Report specifically discloses (e.g., the identification of BLP) is not segregable from the exempt information. Therefore, the EPA properly withheld the relevant portion of the background paper.
The same passage describes the option paper. The Report characterizes the contents of the option paper without revealing any of the specific options listed in the paper. Thus, the Report merely discloses the existence of a memorandum discussing possible strategies for naming PRPs. That disclosure does not waive the applicable FOIA exemptions for the entire document.
The same conclusion applies to the executive summary, which is a synopsis of the option paper. The Report does not mention the executive summary itself, and its description of the option paper does not disclose the information in the executive summary. Therefore, the Court finds that the Report does not constitute a waiver of the FOIA exemptions for the option paper and the executive summary.
With regard to the ownership report, the Report states:
The report makes two important points. The first is that the corporate officers of the original Bunker Hill Company (owned by Gulf), BLP, and all the newly formed corporations (one of which is chartered in British Columbia) that now own the complex are the same people. The second point is that the majority of the corporate restructuring occurred during 1987 and 1988--the same period that the conflict over enforcement actions and naming additional PRPs was occurring. (Ex. I, p. 16).
In addition, the Report quotes a paragraph of the ownership report. The EPA released the quoted paragraph and withheld the remainder of the ownership report. Like the background and option papers, the ownership report contains detailed factual information and analysis that the IG's Report does not reveal. Although the Report discloses some information within the ownership report, that information is inextricably combined with undisclosed information. There is no reasonably segregable portion of the document to which waiver applies. Therefore, withholding the undisclosed portions of the ownership report was proper.
The fifth document, the notice letter memo, accompanied a draft PRP letter. The Report mentions the draft PRP letter, but it does not mention the memo. According to the Report, the director of the CERCLA Enforcement Division drafted "revised" and "softer" language for a PRP letter and sent the draft to the Office of Regional Counsel. The EPA released the draft letter, but it withheld the memo. Because the Report does not reveal any information regarding the notice letter memo, waiver does not apply and the EPA properly withheld the memo.
The EPA has provided adequate affidavits with regard to its search in response to plaintiff's FOIA request to EPA headquarters. However, the EPA has not provided adequate affidavits describing the search in response to plaintiff's request to EPA Region 10. After examining the five documents that the EPA has withheld in whole or part, the Court concludes that the EPA has released all of the information subject to waiver through the IG's Report. Accordingly, the Court denies plaintiff's motion for partial summary judgment. The Court grants defendant's motion for summary judgment with regard to the adequacy of the search by EPA headquarters, and with regard to the exemptions claimed for the withheld documents. The Court denies without prejudice defendant's motion for summary judgment with regard to the search by Region 10. An appropriate Order accompanies this Opinion.
Stanley S. Harris
United States District Judge
Date: AUG 26 1992
ORDER - August 26, 1992, Filed
Before the Court are plaintiff's motion for partial summary judgment and defendant's motion for summary judgment. On consideration of the entire record and for the reasons set forth in the accompanying Opinion, it hereby is
ORDERED, that plaintiff's motion for partial summary judgment is denied. It hereby further is
ORDERED, that defendant's motion for summary judgment is granted with regard to the adequacy of the search of EPA headquarters and with regard to the claimed exemptions for the withheld portions of documents. It hereby further is
ORDERED, that defendant's motion for summary judgment is denied without prejudice as to the search conducted by EPA Region 10. Within 30 days of the date of this Order, defendant shall submit a supplemental affidavit describing that search.
Stanley S. Harris
United States District Judge
Date: AUG 26 1992