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Hunton & Williams LLP v. U.S. Environmental Protection Agency

United States District Court, District of Columbia

September 27, 2018

HUNTON & WILLIAMS LLP, Plaintiff,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant. HUNTON & WILLIAMS LLP, Plaintiff,
v.
U.S. ARMY CORPS OF ENGINEERS, Defendant. HUNTON & WILLIAMS LLP, Plaintiff,
v.
U.S. DEPARTMENT OF THE ARMY, Defendant.

          MEMORANDUM OPINION RE DOCUMENT, 73

          RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE.

         Granting in Part and Denying in Part Defendants' Motion For Summary Judgment; Sua Sponte Granting in Part Summary Judgment to Plaintiff

         I. INTRODUCTION

         Plaintiff law firm Hunton & Williams LLP (“Hunton”) filed this action under the Freedom of Information Act (“FOIA”) against three federal agencies: the U.S. Environmental Protection Agency (“EPA”), the U.S. Army Corps of Engineers (“USACE” or “Corps”), and the U.S. Department of the Army (“Army”). The nine FOIA requests at issue in this suit concern the federal government's Clean Water Act (“CWA”) and Rivers and Harbors Act (“RHA”) jurisdiction over an industrial site in Redwood City, California. The developer of the site, Hunton's client, had requested an Approved Jurisdictional Determination (“AJD”) in 2012 in order to definitively establish the government's position on CWA and RHA jurisdiction over the site. The Corps, which is a component of the Army, and the EPA share responsibility for issuing such AJDs.

         The Corps prepared a draft AJD in 2014 addressing jurisdiction under both the CWA and RHA, but before that AJD was released, the Army intervened to perform a “legal and policy review” in its role as the Corps' parent agency. After that legal and policy review was complete and the Corps had briefly returned to work on the AJD, the EPA stepped in and used its “special case” authority to take over the CWA portion of the AJD. As far as the Court is aware, the EPA had still not issued the CWA portion of the AJD.

         In order to learn more about each agency's decision-making process, Hunton filed FOIA requests with the EPA, the Corps, and the Army, and ultimately challenged each agency's response by filing suit. The three agencies submitted motions for summary judgment on their responses to the requests, and Hunton submitted a motion for partial summary judgment challenging the agencies' withholdings pursuant to FOIA Exemptions 5 and 6. The Court found that the agencies had performed adequate searches and that the agencies had properly justified some of their withholdings under the applicable FOIA exemptions. However, the Court found that none of the agencies had sufficiently justified their withholdings under Exemption 5 on the basis of the deliberative process privilege, nor had the Corps sufficiently justified its withholdings under Exemptions 5 based on either the attorney-work product privilege or attorney-client privilege. Therefore, the Court ordered supplemental briefing and submission of selected documents for in camera review so that it could determine the propriety of the agencies' withholdings under these exemptions. For the reasons given below, the Court grants the three defendant agencies summary judgment on the majority of their withholdings. However, a small number of redactions were either not sufficiently justified or simply do not fall under Exemption 5 or Exemption 6, and therefore, summary judgment as to those redactions is denied. The Court now orders the release of the erroneously redacted information that it has observed in camera, but does not order that the agencies reprocess and relabel their responsive records due to the low rate of error observed during this round of summary judgment briefing.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         This case arises from several FOIA requests Hunton submitted in 2014 and 2015 seeking documents related to the federal government's response, or lack thereof, to its client DMB Redwood City Saltworks's 2012 request for an AJD on an industrial site [1] it plans to redevelop in Redwood City, California.[2] Compl. ¶ 5, ECF No. 1. It submitted its AJD request because, in order to proceed with its planned redevelopment, Hunton's client would “need[] to know whether or to what extent the federal Government considers its Salt Plant facilities to be jurisdictional under either the RHA or CWA” as either “navigable waters of the United States” or “waters of the United States, ” respectively. Compl. ¶¶ 6-7. “The extent of federal jurisdiction will dictate whether Saltworks must apply for permits under the CWA and RHA before redeveloping the Site.” Compl. ¶ 7.

         The Corps holds sole authority to issue AJDs regarding RHA jurisdiction, while the Corps and the EPA share the authority to issue AJDs regarding CWA jurisdiction. Compl. ¶¶ 9- 10. Because of the “EPA's historic involvement [in] and understanding” of the industrial site, when Saltworks submitted its request for an AJD in 2012, it requested that the EPA issue the CWA portion of the AJD. Compl. ¶ 10. Initially, the EPA declined to exercise this authority, informing Saltworks that the Corps would determine both the RHA and CWA portions of the AJD, with some EPA involvement as to the CWA portion. Compl. ¶ 11.

         By early 2014, the Corps, which had maintained primary authority for issuing the AJDs over the industrial site, had completed its review and was almost ready to release its final AJD on both RHA and CWA jurisdiction. Compl. ¶¶ 15-18. At that point, the EPA and the Army intervened. In May 2014, the Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy instructed the Corps not to release the AJD for the site because the Assistant Secretary's Office would be conducting a “legal and policy review” of the Corps' determination. This review “only considered the procedural aspects of the determination and did not in any way consider the substantive question of whether the property in question is in fact jurisdictional.” Darcy Mem. for the Chief of Engineers at 1, Ex. 1, ECF No. 46-1. Once the Army had finished this review in November 2014 and returned the matter to the Corps, the Corps sent a draft of its AJD to the EPA. The draft analyzed jurisdiction under both the RHA and the CWA. Then, in March 2015, EPA decided to use its “special case” authority to take over responsibility for the CWA portion of the AJD. As a result, that same month, the Corps issued an AJD addressing jurisdiction under the RHA only. Compl. ¶ 27. As far as the Court is aware, the EPA has yet to issue its decision regarding CWA jurisdiction.[3]

         Seeking information on the EPA's, Corps', and Army's protracted decisionmaking processes, Hunton filed several FOIA requests with the agencies. As to the EPA, Hunton filed a FOIA request in May 2014 seeking:

1. Any and all documents related to the DMB Redwood City Salt Plant (also known as DMB Redwood City Saltworks project, Redwood City Saltworks project site, Redwood City salt production facilities, or Cargill operations in Redwood City) since January 1, 2014.
2. Any and all communications between EPA (all offices) and the other parties, including but not limited to the Corps (all offices), the Department of the Army (all offices, including the Office of the Assistant Secretary of the Army for Civil Works), Congress (members and staff), other Executive Branch employees, and nongovernment third parties, related to the DMB Redwood City Salt Plant (also known as DMB Redwood City Saltworks project, Redwood City Saltworks project site, Redwood City salt production facilities, or Cargill operations in Redwood City) since January 1, 2014.
3. Any request (other than this letter) from any entity or person for any documents relating to the DMB Redwood City Salt Plant (also known as DMB Redwood City Saltworks project, Redwood City Saltworks project site, Redwood City salt production facilities, or Cargill operations in Redwood City) received on or after January 1, 2014, and all documents, communications, and records relating to such a request, including any response by EPA to that request.

Compl., Ex. E, ECF No. 1-5. Hunton twice requested that the temporal scope of its request be expanded to include any documents generated since its previous request. Additionally, in March 2015, Hunton submitted a fourth request to the EPA seeking: “the Corps' ‘final' CWA JD (with attachments) and/or ‘final' combined RHA and CWA JD (with attachments) for Redwood City Saltworks. By ‘final,' [Hunton meant] the version of the document that was prepared for signature by Major General Peabody (whether or not the document was ever actually signed), and sent to the EPA.” Compl., Ex. N, ECF No. 1-14 (footnotes omitted).

         In May 2014, Hunton also sent a request to the Corps that was nearly identical to its May 2014 request to the EPA, and thrice expanded the temporal scope of its request to include more recent documents. See 15-cv-1207, Compl., Ex. E., ECF No. 1-5; Compl., Ex. F, ECF No. 1-6; Compl., Ex. G, ECF No. 1-7. In March 2015, Hunton also submitted a nearly identical request to the Army, but never expanded the temporal scope of its request. See 15-cv-1208, Compl., Ex. E, ECF No. 1-5. Unsatisfied with the agencies' responses, Hunton filed suit.

         Following an initial round of summary judgment briefing, the Court determined that all three agencies had performed adequate searches for responsive records. Hunton I, 248 F.Supp.3d at 236. The Court also granted summary judgment to the Army as to its withholdings pursuant to Exemption 5 on the basis of the attorney-client privilege, as well as its withholding of its employees' contact information pursuant to Exemption 6. Id. at 255, 257.[4] However, the Court denied summary judgment as to the Army's withholding of the names of Army employees appearing in responsive records pursuant to Exemption 6, and ordered that those names be released. Id. at 257-59. Additionally, the Court denied summary judgment as to all three agencies regarding their withholdings under Exemption 5 on the basis of the deliberative process privilege because none of the agencies had provided sufficiently detailed explanations of their withholdings under the privilege. Id. at 240. The Court similarly denied the Corps summary judgment on its withholdings pursuant to Exemption 5 on the bases of the attorney-client privilege and the attorney work product privilege. Id. at 251.

         Given these deficiencies, the Court ordered supplemental briefing so that the agencies could better explain their redactions, and also ordered that each agency submit “a representative selection of a portion of the responsive documents” for in camera review. Order, ECF No. 62. The parties recommended that they submit 120 representative documents to the Court-20 selected by Hunton, and 100 selected at random by the Defendants, subject to certain restrictions. See Joint Proposed Case Management Plan, ECF No. 65. Having received the 120 selected documents, Defendants' updated Vaughn Indices, and the parties' supplemental briefing, the Court now grants summary judgment as to the majority of Defendants' redactions, but denies it as to a few.

         III. LEGAL STANDARD

         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)). Additionally, FOIA “requires that even if some materials from the requested record are exempt from disclosure, any ‘reasonably segregable' information from those documents must be disclosed after redaction of the exempt information unless the exempt portions are ‘inextricably intertwined with exempt portions.'” Johnson v. EOUSA, 310 F.3d 771, 776 (D.C. Cir. 2002) (citing 5 U.S.C. § 552(b) and Mead Data Cent., Inc. v. Dep't of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)).

         “FOIA cases typically and appropriately are decided on motions for summary judgment.” Def. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A “material” fact is one capable of affecting the substantive outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a reasonable jury to return a verdict for the non-movant. Scott v. Harris, 550 U.S. 372, 380 (2007). In considering a motion for summary judgment, a court must “eschew making credibility determinations or weighing the evidence, ” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most favorable to the non-movant, see Anderson, 477 U.S. at 255.

         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.” Elec. Privacy Info. Ctr. v. U.S. Drug Enf't 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(a)(4)(B); see also, e.g., Citizens for Responsibility and Ethics in Washington 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). The 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 (D.D.C. 2017) (quoting Wolf v. CIA, 473 F.3d 370, 374-75). Nonetheless, “exemptions from disclosure must be narrowly construed . . . and conclusory and generalized allegations of exemptions are unacceptable.” Morley v. CIA, 508 F.3d 1108, 1114-15 (D.C. Cir. 2007) (citation and internal quotation marks omitted).

         Even if a nonmovant does not respond to a motion for summary judgment, the court cannot grant the motion as conceded. See Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) (“Under the Federal Rules of Civil Procedure, a motion for summary judgment cannot be ‘conceded' for want of opposition. ‘The burden is always on the movant to demonstrate why summary judgment is warranted. The nonmoving party's failure to oppose summary judgment does not shift that burden.'” (quoting Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring))). “The District Court ‘must always determine for itself whether the record and any undisputed material facts justify granting summary judgment.'” Id. (quoting Grimes, 794 F.3d at 97 (Griffith, J., concurring)). Therefore, the Court reviews the propriety of each redaction, even those that have not been challenged. See Pinson v. U.S. Dep't of Justice, 2018 WL 2336103, at *8 (D.D.C. May 23, 2018).

         IV. ANALYSIS

         Having granted summary judgment on the adequacy of the agencies' searches for responsive records, as well as a portion of the agencies' withholdings under Exemptions 5 and 6, the Court is left to decide, after reviewing a sampling of responsive records in camera, whether the agencies have properly invoked Exemption 5 on the basis of the deliberative process privilege, and whether the Corps has properly invoked Exemption 5 based on either the attorney-client privilege or attorney work product privilege. The Court also reviews a portion of the agencies' Exemption 6 withholdings. For the reasons set forth below, the Court grants summary judgment to the EPA on both its Exemption 5 and Exemption 6 withholdings, and it grants summary judgment to the Army on its Exemption 5 withholdings, but not all of its Exemption 6 withholdings. Additionally, it grants summary judgment to the Corps on most of its Exemption 5 withholdings, but denies summary judgment as to a portion of its withholdings pursuant to Exemptions 5 and 6.

         A. Exemption 5

         Exemption 5 protects “inter-agency or intra-agency memorandums or letters that would not be available by law to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5). This exemption protects documents “normally privileged in the civil discovery context, ” Judicial Watch, Inc. v. U.S. Dep't of Justice, 365 F.3d 1108, 111 (D.C. Cir. 2004), such as materials shielded by the attorney-client privilege, the attorney work product privilege, and “what is sometimes called the ‘deliberative process' privilege, ” U.S. Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001). All three exemptions are at issue in Defendants' renewed motion for summary judgment.

         1. Deliberative ...


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