JUDICIAL WATCH, INC. Plaintiff,
U.S. DEPARTMENT OF TRANSPORTATION Defendant.
Royce C. Lamberth, Chief Judge
Plaintiff Judicial Watch brings this Freedom of Information Act (“FOIA”) action against defendant Department of Transportation seeking disclosure of documents passed between defendant’s agency, the Federal Railroad Administration (FRA), and the California High Speed Rail Authority (CHSRA), while developing the California High Speed Rail (CHSR).
Both parties now move for summary judgment. Upon consideration of the defendants’ Motion  for Summary Judgment, the plaintiff’s Cross-Motion and Opposition  thereto, the defendant’s Reply and Opposition , and the plaintiff’s Reply  the Court will GRANT the defendant’s Motion and DENY the plaintiff’s motion
The CHSR is an ambitious plan to provide inter-city train service at speeds of over 200 mph from the San Francisco Bay Area and Sacramento in Northern California to Los Angeles and San Diego in Southern California. Since 2001, FRA and CHSRA have been collaborating to ensure that the CHSR meets federal and state environmental regulations. Under these regulations, agencies must assess the likely environmental impact of the proposed project, as well as alternatives to the proposal, before carrying out major actions affecting the environment. 42 U.S.C. § 4332(C); West’s Ann. Cal. Pub. Res. Code § 21002.
To accomplish this task, FRA and CHSRA have agreed to jointly develop environmental impact reports for both the program as a whole and each segment of the CHSR. According to three Memoranda of Understanding (“MOUs”) memorializing this arrangement, FRA and CHSRA are “co-lead” agencies, with FRA responsible for compliance with the federal National Environmental Policy Act (NEPA) and CHSRA responsible for compliance with the state California Environmental Quality Act (CEQA). Def.’s Reply Supp. Mot. Summ. J. and Opposition to Pl.’s Cross-Mot Summ. J., Ex. A, Fashour Suppl. Decl. ¶ 5–9.
On January 4, 2012, Judicial Watch filed a FOIA request for
All documents, communications, and correspondence (including electronic email) transmitted between the Federal Railroad Administration and the California High Speed Rail Authority addressing or relating to the route alternatives under consideration for the proposed California High Speed Rail within Madera County and Merced County, California. Compl. ¶ 5.
After not receiving a determination from FRA within 20 working days, Judicial Watch filed this action. FRA then provided records responsive to the request on April 13, 2012, and May 30, 2012. It withheld certain records, however, claiming that they were protected under the deliberative process exemption of 5 U.S.C. § 552(b)(5) (“Exemption 5”). Judicial Watch challenges the application of this exemption, claiming that communications between the CHSRA and FRA do not meet Exemption 5’s threshold requirement of being “inter-agency or intra-agency.” FRA claims that they should be considered “intra-agency” under Exemption 5’s “consultant corollary, ” which our and many other circuits have adopted. Both parties’ motions for summary judgment are now before this court.
II. LEGAL STANDARD
A. Summary Judgment under FOIA
Courts must grant summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 321–23 (1986). When considering motions for summary judgment, courts must draw all reasonable inferences in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “[I]f material facts are genuinely in issue or, though undisputed, are susceptible to divergent inferences bearing upon an issue critical to disposition of the case, summary judgment is not available.” Alyeska Pipeline Serv. v. EPA, 856 F.2d 309, 314 (D.C. Cir. 1988).
Under FOIA, agencies bear the burden of justifying non-disclosure of any requested records. 5 U.S.C. § 552(a)(4)(B). Consistent with FOIA’s “basic purpose” of “ensur[ing] an informed citizenry, . . . needed to check against corruption and to hold the governors accountable to the governed, ” agencies may only withhold responsive records if they fall under one of nine carefully structured statutory exemptions. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 220–21, 42 (1978). ...