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Public Employees for Environmental Responsibility v. U. S. Environmental Protection Agency

United States District Court, District of Columbia

September 30, 2016




         Plaintiff Public Employees for Environmental Responsibility ("PEER"), a non-profit organization broadly aimed at educating the public concerning the activities of government, Compl. ¶ 1, sought records from the U.S. Environmental Protection Agency - Office of the Inspector General ("EPA-OIG") under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), concerning a potential violation of federal "revolving-door" prohibitions by a former member of the U.S. Chemical Safety and Hazard Investigation Board ("CSB"). After PEER filed suit in this Court, the EPA-OIG produced nearly nine hundred pages of responsive records, but partially redacted or fully withheld certain pages under various FOIA exemptions. EPA-OIG now moves and PEER cross-moves for summary judgment, disputing one central issue: Does the attorney-client privilege allow an agency to withhold memoranda, including factual findings, written by agency investigators to agency lawyers in order to secure legal advice regarding the criminal liability of an outside party? The Court concludes that it does, and grants summary judgment for the EPA-OIG.

         I. Background

         PEER submitted a FOIA request to EPA-OIG in April 2014 seeking records related to a February 2014 letter, submitted by the then-chair of the CSB, asking the EPA-OIG to investigate a potential violation of the federal "revolving-door" statute, 18 U.S.C. § 207. Def's Mem. Supp. Mot. Summ. J. ("Def's MS J"), Ex. 1 ("Levine Deck"), Ex. A. According to the FOIA request, the letter included a "detailed allegation . . . involving a former CSB board member for his interpleading before the CSB on behalf of his client, Chevron USA." Id. More specifically, PEER requested (1) the "Report of Investigation or other written memorialization of any EPA-OIG inquiry into this allegation, " (2) "[a]ny decision memos of a decision not to conduct an inquiry into this allegation"; and (3) "any communications after [the date of the letter] between EPA-OIG personnel and any outside or non-OIG party concerning the subject matter of this allegation." Id.

         In June 2015, PEER filed this action under FOIA, alleging that the EPA-OIG had not yet produced documents responsive to its FOIA request. Compl. ¶ 6. The EPA-OIG then conducted searches for relevant documents-including a targeted search of the email accounts for four particular individuals, and a broader search of three EPA-OIG offices. Levine Deck ¶¶ 8-16. In October 2015, the EPA-OIG provided PEER with 899 pages of responsive documents, but 57 of those pages were partially redacted and 86 were fully withheld under FOIA Exemptions 5, 6, and 7(C). Id. ¶ 20; see 5 U.S.C. § 552(b)(5), (b)(6), (b)(7)(C). As relevant here, 23 pages of responsive records were fully or partially withheld on the basis of attorney-client privilege under Exemption 5, 5 U.S.C. § 552(b)(5), either because those documents arose in a context where "OIG Investigator(s) sought legal counsel regarding allegations of potential violations of a criminal statute, " or where an agency attorney was "presenting] information, opinion and legal advice to a federal official." Levine Decl. ¶ 23. Of particular note to PEER were three redacted pages of a "Complaint Summary Report, " which the agency's Vaughn index[1] describes as "an investigative document compiled for law enforcement purposes . . . which summarizes the details of a complaint and the investigative findings related to that complaint" and "states that the [c]omplaint was determined to be unsupported and [recommended that it] be closed[.]" Levine Decl. ¶ 23, Ex. D, at 2 (Tracking Number OIG-1-3).

         EPA-OIG now moves for summary judgment on the grounds that it has "produced all reasonably segregable, non-exempt portions of responsive records, and properly asserted [FOIA Exemption 5]." Def's MSJ 4. PEER cross-moves for summary judgment, making clear that it challenges only those "specific redactions" EPA-OIG justified on the basis of attorney-client privilege. PL's Mem. Supp. Cross-Mot. Summ. J. ("PL's Cross-MSJ") 4, 6. The motions are ripe for consideration.

         II. Legal Standards

         FOIA cases are generally resolved at summary judgment, see Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011), which is appropriately granted when the movant has established that "there is no genuine dispute as to any material fact, " warranting "judgment as a matter of law." Fed.R.Civ.P. 56(a). In deciding a motion for summary judgment, the Court assumes the truth of the non-movant's evidence and draws all reasonable inferences in the non-movant's favor. See Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 255 (1986).

         FOIA imposes a general obligation on the government to provide records to the public, but with explicit exceptions. 5 U.S.C. § 552(a)-(b). At issue here is FOIA's Exemption 5, which provides for the withholding of "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). The scope of Exemption 5 is properly "determined by reference to the protections available to litigants in civil discovery; if material is not 'available' in discovery, it may be withheld from FOIA requesters." Burka v. U.S. Dep't of Health & Human Servs., 87 F.3d 508, 516 (D.C. Cir. 1996). Consequently, although it is not limited to these categories, the exemption protects "predecisional deliberative memoranda, " "attorney work product, " and-as relevant here-"attorney-client communications." Id. The attorney-client privilege protects confidential communications from client to attorney, and from attorney to client. Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) ("While its purpose is to protect a client's disclosures to an attorney, the federal courts extend the privilege also to an attorney's written communications to a client[.]"); Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 254 n.25 (D.C. Cir. 1977)

         ("[T]he [attorney-client] privilege has consistently included communications of the attorney to the client as well as vice versa."). Without protections for attorney-client communications, agency officials might not share information with their counsel in the first place, and would consequently be deprived of sound legal advice. This very policy concern grounds FOIA's Exemption 5. As the D.C. Circuit has explained:

Exemption [5] is intended to protect the quality of agency decision-making by preventing the disclosure requirement of the FOIA from cutting off the flow of information to agency decision-makers. Certainly this covers professional advice on legal questions which bears on those decisions. The opinion of even the finest attorney, however, is no better than the information which his client provides. In order to ensure that a client receives the best possible legal advice, based on a full and frank discussion with his attorney, the attorney-client privilege assures him that confidential communications to his attorney will not be disclosed without his consent. We see no reason why this same protection should not be extended to an agency's communications with its attorneys under exemption five.

Mead Data, 566 F.2d at 252.

         Of course, the attorney-client privilege is not an all-purpose FOIA evasion mechanism: The privilege applies only to "[confidential disclosures by a client to an attorney made in order to obtain legal assistance, " Fisher v. United States, 425 U.S. 391, 403 (1976), and to an attorney's "communication [to the client] based on confidential information provided by the client, " Schlefer v. United States, 702 F.2d 233, 245 (D.C. Cir. 1983). See also Mead Data, 566 F.2d at 252 (describing the privilege as covering "confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice"). In this context, the "client" is the agency and its officials. Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997). And those officials may be either "high-level agency personnel" or "lower-echelon employees." Judicial Watch v. Dep't of the Army, 466 F.Supp.2d 112, 121 (D.D.C. 2006).

         In a FOIA case, "[t]he burden is on the agency to demonstrate . . . that the materials sought. . . have not been improperly withheld." DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989). Here, that means the agency "must prove that [the withheld] document[s]" fall within the scope of the attorney-client privilege. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). The Court now turns to considering ...

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