Appleton Papers, Inc. v. Environmental Protection Agency
702 F.3d 1018
7th Cir.2012Background
- Contamination at Fox River/Green Bay by API and related PRPs, with estimated cleanup costs around $1 billion.
- Amendola Engineering prepared reports estimating PCB discharges; government released portions in 2000 and 2001.
- API requested all copies/drafts of Amendola reports via FOIA; government withheld under exemption 5 (work product).
- District court granted summary judgment for the government, rejecting API’s separability and waiver theories.
- Government had used parts of the Amendola material in consent decrees with Fort James and Georgia-Pacific, but the court found no global waiver of related material.
- FOIA inquiry is not a substitute for discovery; waivers under 502(a) apply case-by-case and in litigation, not FOIA requests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Amendola materials are protected work product under FOIA Exemption 5 | API argues purely factual material can be separated from opinions | United States maintains both fact and opinion work product remain protected | Yes; all requested material is work product and protected |
| Whether factual material underlying the conclusions is separable from opinions | API seeks separation of facts from opinions | Work product protection covers both fact and opinion material | No; facts underlying opinions remain protected as work product |
| Whether government waiver occurred by using documents in consent decrees | API asserts waiver of all related material | Waiver occurred only for portions used in decrees, not all related material | Waiver did not extend to undisclosed related material; only used portions waived |
| Whether FOIA can override or displace discovery rules in work product contexts | FOIA should reveal material as public | FOIA does not substitute for liability discovery; waiver rules apply in litigation, not FOIA | FOIA inquiry does not override discovery rules; not a general waiver device |
Key Cases Cited
- Grolier, Inc. v. FTC, 462 U.S. 19 (U.S. 1983) (exemption 5 protects work product; not generally disclosable)
- Hickman v. Taylor, 329 U.S. 495 (U.S. 1947) (establishes work product doctrine and its purpose)
- United States v. Nobles, 422 U.S. 225 (U.S. 1975) (illustrates scope of protection for work product; partial reliance may exclude related material)
- Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215 (4th Cir. 1976) (waiver concerns and protection of related work product material)
- In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982) (discusses waiver standards and subject-matter consistency)
- U.S. v. Fort James Operating Co., 313 F. Supp. 2d 902 (E.D. Wis. 2004) (district court decision cited regarding consent decree context)
- U.S. Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S. 487 (U.S. 1994) (FOIA standard for disclosure consistent with public interest)