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Public Employees for Environmental Responsibility v. Environmental Protection Agency

United States District Court, District of Columbia

December 11, 2017





         Plaintiff Public Employees for Environmental Responsibility (“PEER”) brings this Freedom of Information Act (“FOIA”) suit seeking records from the Environmental Protection Agency (“EPA”) concerning EPA's involvement with “suspected or actual toxic contamination at schools in the Santa Monica Malibu Unified School District” (“SMMUSD”). Compl. ¶ 5, ECF No. 2. In a prior Memorandum Opinion, this Court determined that EPA had appropriately withheld a small number of documents.[1] Pub. Emps. for Envtl. Responsibility v. EPA, 213 F.Supp.3d 1, 22-24 (D.D.C. 2016). Finding, however, that EPA had not sufficiently explained its refusal to release most of the challenged records, the Court directed the agency to revise its submissions to permit judicial consideration of whether the documents are protected by the claimed FOIA exemptions. See id. at 16. Since the Court issued its first opinion, the dispute has narrowed to nineteen documents, EPA has submitted supplemental Vaughn indices and additional declarations, and the Court has inspected all nineteen disputed documents in camera. Now before the Court are the parties' renewed cross-motions for summary judgment. For the reasons set out below, the Court grants the agency's motion for summary judgment except as to PRD 260, 1095, 1108 and 1617, which EPA must disclose in full, and PRD 940 and 1449, which EPA must disclose in part.


         In August 2014, PEER submitted a request for records to EPA Region 9, pursuant to FOIA, 5 U.S.C. § 552. See Def.'s Statement of Material Facts (“EPA Statement”) ¶ 1, ECF No. 18-1; Pl.'s Statement of Material Facts (“PEER Statement”) ¶ 1, ECF No. 20. Specifically, PEER requested:

[E]mails and other written communications and notes of all communications from October 1, 2013 to the present concerning or referencing suspected or actual toxic contamination with [polychlorinated biphenyls (“PCBs”)] between named EPA employees and any other EPA employees and (1) Senator Barbara Boxer, any member of her staff, or the staff of the Senate Environment and Public Works Committee which she chairs; (2) named members of the SMMUSD School Board; (3) named members of the Malibu City Council or the City Council as a group.

EPA Statement ¶ 1; PEER Statement ¶ 1. PEER also sought a fee waiver, which EPA granted. See Decl. of Steven Armann (“Armann Decl.”) ¶ 16, ECF No. 18-3; PEER Statement ¶ 2. Months later, PEER brought this suit, alleging that EPA had failed to provide any records, as required by FOIA. See Compl. ¶¶ 1, 7. Soon after the Complaint was filed, EPA responded to PEER's request by releasing a group of responsive documents, but withholding others pursuant to Exemptions 5 and 6 of FOIA. See Armann Decl. ¶ 17; EPA Statement ¶ 4; PEER Statement ¶ 4. Subsequent discussions between PEER and EPA led to the release of additional documents- some produced in full, and others partially redacted. See Armann Decl. ¶¶ 19-21; EPA Statement ¶¶ 5-7; PEER Statement ¶ 5. Thereafter, the parties filed cross-motions for summary judgment.

         On September 30, 2016, this Court denied PEER's motion for summary judgment and granted in part and denied in part the EPA's cross-motion. See Pub. Emps. for Envtl. Responsibility, 213 F.Supp.3d at 26. In their motions, the parties had addressed three categories of documents: (1) documents withheld pursuant to Exemption 5 as being subject to the deliberative process privilege, (2) documents withheld pursuant to Exemption 5 as being subject to the attorney-client privilege, and (3) a document withheld pursuant to Exemption 6 as a record implicating the privacy interests of an EPA employee. See id. at 10-11, 19, 25.

         The Court found that EPA had met its burden of showing that the document withheld under Exemption 6 was proper and that four records were properly withheld as privileged attorney-client communications. See id. at 22-26. The Court held, however, that EPA's Vaughn index [2] was inadequate in certain respects and did not permit the Court to assess whether documents were properly withheld under the deliberative process privilege or whether certain other records were properly withheld under Exemption 5 for attorney-client privilege. Id. at 16. Because of deficiencies in the Vaughn index, the Court also could not assess whether EPA had met its burden of showing that it had released all reasonably segregable, nonexempt factual material. See id. at 24.

         The Court, in its discretion, allowed EPA an opportunity to supplement its Vaughn index. See id. at 16-17. Specifically, it directed that EPA's supplemental submissions “must show, at the least: ‘(1) the nature of the specific deliberative process involved, (2) the function and significance of the document in that process, and (3) the nature of the decisionmaking authority vested in the document's author and recipient.'” Id. at 18-19 (quoting Nat'l Sec. Counselors v. CIA, 960 F.Supp.2d 101, 189 (D.D.C. 2013)).

         EPA has now supplemented its Vaughn index, and the parties have narrowed their dispute to nineteen documents, all of which have been reviewed by the Court in camera. See EPA Vaughn Index 5/11/17, ECF No. 43-2; Order (Oct. 5, 2017) (directing Defendant to submit disputed records for in camera review), ECF No. 46; EPA Notice of Ex Parte In Camera Filing, ECF No. No. 47. Now before the Court are the parties' renewed cross-motions for summary judgment. See Def.'s Renewed Mot. Summ. J. (“EPA Mot.”), ECF No. 33; Pl.'s Renewed Cross-Mot. Summ. J. (“PEER Mot.”), ECF No. 38.


         FOIA “sets forth a policy of broad disclosure of Government documents in order ‘to ensure an informed citizenry, vital to the functioning of a democratic society.'” FBI v. Abramson, 456 U.S. 615, 621 (1982) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)). The Act mandates release of properly requested federal agency records, unless the materials fall squarely within one of nine statutory exemptions. Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011); Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2011) (citing 5 U.S.C. § 552(a)(3)(A), (b)). “FOIA cases typically and appropriately are decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009) (citing Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007)). The agency is entitled to summary judgment if no material facts are genuinely in dispute and the agency demonstrates “that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information.” Competitive Enter. Instit. v. EPA, 232 F.Supp.3d 172, 181 (D.D.C. 2017). “This burden does not shift even when the requester files a cross-motion for summary judgment because ‘the Government ultimately has the onus of proving that the documents are exempt from disclosure, ' while the ‘burden upon the requester is merely to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.'” Hardy v. ATF, 243 F.Supp.3d 155, 162 (D.D.C. 2017) (brackets omitted) (quoting Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904-05 (D.C. Cir. 1999)).

         To carry its burden, the agency must provide “a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of the withheld document to which they apply.” Electronic Privacy Info. Ctr. v. U.S. Drug Enforcement Agency,192 F.Supp.3d 92, 103 (D.D.C. 2016) (quoting Mead Data Cent., Inc. v. U.S. Dep't of Air Force,566 F.2d 242, 251 (D.C. Cir. 1977)). In conducting its review, a court may also rely on its own in camera examination of disputed documents to determine whether they were properly withheld under the claimed statutory exemptions. See 5 U.S.C. § 552; see also, e.g., Citizens for Responsibility and Ethics inWashington v. Nat'l Archives and Records Admin.,715 F.Supp.2d 134, 140-42 (D.D.C. 2010) (relying on the Court's in camera review to resolve whether documents had been properly withheld). This Court reviews the agency's explanations de novo, and will endorse an agency's decision to withhold information if the justification for invoking a FOIA exemption “appears ‘logical' or plausible.'” Pinson v. U.S. Dep't of Justice,245 F.Supp.3d 225, 239 ...

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