United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT;
GRANTING IN PART AND DENYING IN PART PLAINTIFF'S RENEWED
CROSSMOTION FOR SUMMARY JUDGMENT
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.
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. 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.
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.
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,
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  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
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)).
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.
“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)).
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