Before the Court are the cross-motions for summary judgment filed by Goodrich Corporation and Gibson, Dunn & Crutcher, LLP (collectively, "plaintiffs") and the United States Environmental Protection Agency ("EPA" or "defendant"). Plaintiffs have filed suit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking to compel the production of two documents EPA has to date withheld from production. EPA argues that it has properly withheld both documents pursuant to FOIA's statutory exemptions. For the reasons set forth below, plaintiffs' and EPA's summary judgment motions are both granted in part and denied in part.
At issue in this case are two EPA models used to analyze contamination at a site in Rialto, California ("the Site"). The Site has been occupied by several entities since World War II; Goodrich Corporation ("Goodrich") occupied the Site from 1957 to 1963. Compl. ¶ 8. Sometime after 1963, EPA discovered groundwater contamination in the nearby Rialto-Colton Basin. In 2003, EPA issued a Unilateral Administrative Order ("UAO") to Goodrich and another company pursuant to section 106 of the Comprehensive Environmental Response, Compensation, and Liability Act. 42 U.S.C. § 9606. The UAO ordered the companies to investigate the contamination at the Site and to take certain remedial actions there. See Compl. Ex. 3.
EPA has developed, or is developing, two models related to the Site. One model, the "vadose zone model," "simulat[es] the downward movement of perchlorate through the vadose zone at the Site (i.e., the zone, approximately 420 feet deep, between the ground surface and the underlying groundwater)." Declaration of Wayne Praskins, October 20, 2008, ¶ 4. The second model, the "groundwater flow model," "simulates the movement of groundwater at the Site under varying conditions." Id. ¶ 9. This model is still in development, but EPA "plan[s] to make the groundwater model available" when it is complete in early 2009. Id. ¶ 10. Plaintiffs learned of these models in 2006. Plaintiffs allege that Jorge Leon, counsel for the California Regional Water Quality Control Board ("Regional Board"), informed Goodrich's counsel, Gibson, Dunn & Crutcher, LLP ("Gibson Dunn"), that EPA had developed a model demonstrating that Goodrich could not have been responsible for the contamination at the Site. Compl. ¶ 10.
On December 19, 2007, Gibson Dunn submitted a FOIA request seeking "all models, prepared by or for the U.S. EPA, regarding the groundwater contamination" at the Site. Compl. ¶ 11. EPA located the two models but withheld them, claiming the protection of FOIA Exemptions 5 and 7. EPA's Statement of Facts ¶ 6. Gibson Dunn filed an appeal, which EPA denied on September 12, 2008. Id. ¶¶ 7-8. Plaintiffs filed the current complaint one week later. Plaintiffs simultaneously sought limited discovery to explore the validity of EPA's claimed exemptions and an alleged waiver of Exemption 5 protection for the vadose zone model. On October 31, 2008, this Court issued an Order permitting plaintiffs to depose Mr. Leon and another Regional Board employee, Kurt Berchtold, on limited issues related to the waiver claim. Now before the Court are the parties' cross-motions for summary judgment.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings . . . and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party opposing a motion for summary judgment, however, "may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The nonmoving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Any factual assertions in the movant's affidavits will be accepted as being true unless the opposing party submits his own affidavits or other documentary evidence contradicting the assertion. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).
FOIA requires a federal agency to release all records responsive to a proper request except those protected from disclosure by one or more of nine enumerated exemptions set forth at 5 U.S.C. § 552(b). The district court is authorized "to enjoin [a federal] agency from withholding agency records or to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B); see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). The agency has the burden of proving that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980) (internal citation and quotation omitted); see also Maydak v. Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000) (the government has the burden of proving each claimed FOIA exemption). The district court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations that describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).
I. Groundwater Flow Model
EPA argues that it properly withheld the groundwater flow model pursuant to FOIA Exemption 5, which applies to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." See 5 U.S.C. § 552(b)(5). "'Courts have construed this exemption to encompass the protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery context, including materials which would be protected under the attorney-client privilege, the attorney work-product privilege, or the executive deliberative process privilege.'" Rockwell Int'l Corp. v. Dep't of Justice, 235 F.3d 598, 601 (D.C. Cir. 2001) (quoting Formaldehyde Inst. v. Dep't of Health and Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989)). In the FOIA context, the deliberative process privilege applies to inter- or intra-agency documents that are both predecisional and deliberative. See Baker & Hostettler LLP v. Dep't of Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006).
Plaintiffs challenge only the deliberative nature of the groundwater flow model. Plaintiffs' theory is straightforward: the model is purely factual and facts cannot be deliberative. Memorandum in Support of Plaintiffs' Cross-Motion for Summary Judgment ("Pls. Mem.") at 26. Plaintiffs are correct that a long line of cases, beginning with Environmental Protection Agency v. Mink, 410 U.S. 73, 79 (1973), recognizes a distinction between factual and deliberative materials. But the distinction is not as stark as plaintiffs portray it to be. Indeed, the D.C. Circuit has cautioned against overuse of the factual/deliberative distinction. See Dudman Commc'ns Corp. v. Dep't of Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987). "Exemption 5 was intended to protect not simply deliberative material, but also the deliberative process of agencies." Montrose Chemical Corp. v. Train, 491 F.2d 63, 71 (D.C. Cir. 1974) (emphasis added). In Montrose, the D.C. Circuit expressly retained the factual/deliberative distinction while recognizing "that in some cases selection of facts or summaries may reflect a deliberative process which exemption 5 was intended to shelter." Id.
In the current case, EPA asserts (and plaintiffs do not dispute) that the groundwater flow model is in draft form. Declaration of Keith Takata ¶ 24. As a general matter, "drafts" of documents are exempt from disclosure under the deliberative process privilege. See, e.g., City of Va. Beach v. Dep't of Commerce, 995 F.2d 1247, 1253 (4th Cir. 1993); Dudman, 815 F.2d at 1569; Russell v. Dep't of Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1988). The draft groundwater flow model reflects EPA's deliberative process because "evolving iterations of the Model's inputs and calibration reflect the opinions of the staff currently developing the Model, which may not represent EPA's ultimate opinions relating to these matters." Id. ¶ 25. Therefore, even if the data plugged into the model is itself purely factual, the selection and calibration of data is part of the ...