United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE
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.
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
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 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).
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.
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).
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)
[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
Exemption  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.
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.
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