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January 31, 1994



The opinion of the court was delivered by: STANLEY S. HARRIS

Before the Court are cross-motions for summary judgment in an action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Upon consideration of the motions, the Court finds that defendant properly invoked exemption 5 of the FOIA. The Court, however, also finds that defendant did not adequately address the segregability of factual material from those documents withheld in their entirety. Accordingly, the Court remands to defendant to disclose factual material from those documents withheld in whole or to justify why such material may be withheld. Thus the Court grants in part plaintiff's motion for summary judgment and denies in part defendant's motion for summary judgment. With respect to those documents released in redacted form, the Court grants in part defendant's motion for summary judgment and denies in part plaintiff's motion for summary judgment. Although findings of fact and conclusions of law are unnecessary in ruling on a summary judgment motion, the Court sets forth its reasoning. See Fed. R. Civ. P. 52(a).


 Plaintiff, the American Petroleum Institute, contends that defendant, the Environmental Protection Agency ("EPA") has unlawfully withheld 14 documents in violation of the FOIA, 5 U.S.C. § 552. Plaintiff seeks release of the withheld documents, or alternatively, disclosure of segregable factual portions of the documents.

 As part of the Clean Air Act Amendments of 1990 ("Clean Air Act Amendments"), Congress directed the EPA to establish a vehicle-based, or onboard, control method to limit the release of gasoline vapor emissions during the refueling of light-duty vehicles. See Pub. L. No. 101-549, 104 Stat. 2399 (codified as amended at 42 U.S.C.A. § 7521(a)(6) (1993)). Congress further required that prior to promulgating such a standard, the EPA was to consult with the Department of Transportation ("DOT") regarding the safety of such controls. Id. Accordingly, the DOT's agency responsible for automobile safety, the National Highway Transportation Safety Administration ("NHTSA"), produced a study, "An Assessment of the Safety of Onboard Refueling Vapor Recovery Systems" ("NHTSA study"), and provided it to the EPA in July, 1991. NHTSA concluded that onboard vapor controls would "have a negative impact on safety." Plaintiff's Ex. 18 at 30.

 On October 2, 1991, plaintiff filed a FOIA request seeking production of any EPA staff analysis concerning the NHTSA study. In response, defendant assembled the members of its onboard emissions control safety evaluation team. The team compiled all related materials, which included 66 documents totaling 748 pages. On October 24, 1991, defendant provided a partial response to plaintiff's request and released 16 documents in their entirety. The agency released 33 more documents in their entirety and an additional five documents in redacted form on November 1, 1991. The EPA withheld 12 documents in their entirety. In refusing to disclose all materials, defendant relied on the deliberative process privilege for intra-agency documents under exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5). Plaintiff filed an administrative appeal of the EPA's nondisclosure on March 23, 1992.

 On March 27, 1992, the EPA filed the "Final Agency Action Pursuant to Section 202(a)(6) of the Clean Air Act Regarding Onboard Control of Refueling Emissions" ("Final Agency Action on Onboard Controls"). 57 Fed. Reg. 13,220-31 (1992). Citing the NHTSA study as evidence that such systems would be unsafe, the EPA decided not to promulgate the onboard vapor emissions control systems. Id. at 13,222-23. Instead, the agency announced that gasoline pump-mounted, or Stage II, control systems were a viable alternative. Id. at 13,230.

 On August 18, 1992, the EPA issued a decision in response to plaintiff's FOIA appeal. The agency released three previously withheld documents: one that had been withheld in whole (number 29) and two others that had been released in redacted form only (numbers 30 and 42). EPA continued to withhold 11 documents (numbers 18, 19, 22, 27, 28, 31, 32, 39, 40, 64, and 66) in whole and three others in part (numbers 17, 61, and 62). All but three of the documents are critiques or analyses of the NHTSA study or recommendations for future action; two (numbers 61 and 62) are notes made in the margins of copies of the NHTSA study and the remaining document (number 66) includes notes on two staff meetings in which analyses and opinions were expressed. *fn1" Defendant contends that all 14 withheld documents are privileged under exemption 5 of the FOIA.


 Defendant seeks summary judgment on the grounds that it has properly withheld intra-agency documents pursuant to exemption 5 of the FOIA. See 5 U.S.C. § 552(b)(5). In its cross-motion for summary judgment, plaintiff asserts that defendant has failed to provide sufficient information to invoke the exemption. In addition, plaintiff contends that defendant has failed to segregate and disclose factual information from the withheld documents pursuant to § 552(b). The Court first reviews the summary judgment standard under the FOIA. Next, the Court examines the function of exemption 5. Finally, the Court considers plaintiff's claims that the agency has unlawfully withheld the documents.

 To obtain summary judgment in a FOIA action, as in any action, an agency must prove that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law. Founding Church of Scientology, Inc. V. NSA, 197 U.S. App. D.C. 305, 610 F.2d 824, 836 (D.C. Cir. 1979). Accordingly, the agency must "prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from [FOIA's] Inspection requirements." National Cable Television Ass'n v. FCC, 156 U.S. App. D.C. 91, 479 F.2d 183, 186 (D.C. Cir. 1973). A court may award summary judgment to an agency and thereby deny disclosure only if the agency provides "a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." Mead Data Cent., Inc. v. Department of Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 251 (D.C. Cir. 1977).

 In camera inspection of the disputed documents is not necessary to rule on a summary judgment motion under the FOIA. EPA v. Mink, 410 U.S. 73, 94, 35 L. Ed. 2d 119, 93 S. Ct. 827 (1973). Rather, an agency may submit affidavits to the court to demonstrate that the documents are beyond the range of material that must be disclosed. Id. If the affidavits are sufficiently detailed, nonconclusory, and submitted in good faith, "the district judge has the discretion to forgo discovery and award summary judgment on the basis of the affidavits." ...

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