action. Vaughn, 523 F.2d at 1143-44. Because defendant meets both the predecisional and deliberative requirements, the Court finds that defendant may properly invoke the deliberative process privilege as a justification for withholding the documents under exemption 5 of the FOIA. Thus, plaintiff's motion for summary judgment is denied in part.
Plaintiff also contends that even if the documents may be withheld under exemption 5, defendant has failed to segregate and disclose factual information from the documents. Defendant makes two assertions in response. First, the agency claims that the redaction of information from three of the 14 withheld documents demonstrates that it evaluated the contents of each document and withheld only those segments covered by exemption 5. In addition, defendant contends that because the facts found in the documents are derived from the publicly released NHTSA study, the agency need not provide redacted versions of the documents.
Under the FOIA, an agency has a statutory duty to release all reasonably segregable factual portions of withheld documents. 5 U.S.C. § 552(b); see Mink, 410 U.S. at 90 ("Virtually all of the courts that have thus far applied Exemption 5 have recognized that it requires different treatment for materials reflecting deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other." (footnote omitted)); Mead Data Cent., 566 F.2d at 260 ("The focus of the FOIA is information, not documents, and an agency cannot justify withholding an entire document simply by showing that it contains some exempt material."). Accordingly, factual material that is severable from the opinions or recommendations in a document must be disclosed. See, e.g., The Army Times Publishing Co. v. Department of the Air Force, 302 U.S. App. D.C. 432, 1993 U.S. App. LEXIS 20124, at *12, 998 F.2d 1067-14 (D.C. Cir. 1993); PHE, Inc. v. Department of Justice, 299 U.S. App. D.C. 223, 983 F.2d 248, 252 (D.C. Cir. 1993); Paisley, 712 F.2d at 699.
Some factual information may be exempted, however, if it is intertwined with deliberative material. See id. ("Even factual material may come within Exemption 5 if 'the manner of selecting or presenting those facts would reveal the deliberative process, or if the facts are 'inextricably intertwined' with the policymaking process." (quoting Ryan v. Department of Justice, 199 U.S. App. D.C. 199, 617 F.2d 781, 790 (D.C. Cir. 1980))); Mead Data Cent., 566 F.2d at 256 ("in some circumstances, however, the disclosure of even purely factual material may so expose the deliberative process within an agency that it must be deemed exempted by section 552(b)(5)." (footnote omitted)).
The documents in dispute primarily evaluate various sections of the NHTSA study. It is likely that they contain factual synopses reviewing the NHTSA findings.
If such factual material is intertwined with the opinions or analyses protected by exemption 5, then such material is exempt. In addition, if the agency staff utilized factual information in a way that would "expose the deliberative process," then such material is exempt. See Mead Data Cent., 566 F.2d at 256. If, however, the documents contain independent portions of factual material, these segments must be released. Here, defendant has presented the Court with insufficient information regarding factual material withheld within the documents exempted in their entirety. Thus, the Court remands to the EPA to review the 11 documents withheld in full (document numbers 18, 19, 22, 27, 28, 31, 32, 39, 40, 64, and 66) and disclose segregable portions or provide explanations why such factual material may be withheld. See Army Times, 302 U.S. App. D.C. 432, 1993 U.S. App. LEXIS 20124, at *13, 998 F.2d 1067; PHE, Inc., 933 F.2d at 252. As a result, plaintiff's motion for summary judgment is granted in part and defendant's motion for summary judgment is denied in part with respect to those documents withheld in their entirety. The Court grants summary judgment in favor of defendant with respect to those documents previously released in redacted form (numbers 17, 61, and 62).
For the reasons stated, the Court grants in part and denies in part both defendant's and plaintiff's motions for summary judgment. Because the Court finds that the agency may rightfully withhold the documents under the deliberative process privilege of exemption 5, summary judgment for defendant is granted with respect to those documents already redacted. Accordingly, summary judgment for plaintiff is denied in part. The Court remands to defendant to release segregable portions of the documents withheld in whole or to submit additional information regarding the segregability of the factual material therein. Thus summary judgment for plaintiff is granted in part and summary judgment for defendant is denied in part. An appropriate Order accompanies this Opinion.
Stanley S. Harris
United States District Judge
For the reasons stated in the accompanying Opinion, it hereby is
ORDERED, that with respect to those documents released in redacted form, defendant's motion for summary judgment is granted and plaintiff's motion for summary judgment is denied. It hereby further is
ORDERED, that with respect to those documents withheld in their entirety, plaintiff's motion for summary judgment is granted in part and denied in part and defendant's motion for summary judgment is denied. Accordingly, the Court remands to defendant to segregate factual material from those documents withheld in whole or explain why such factual material may be withheld.
Stanley S. Harris
United States District Judge