279 F.Supp.3d 121
D.D.C.2017Background
- CBD submitted two FOIA requests seeking all records related to EPA’s endangered-species assessments (Six-State and Ten-State Addenda) for the pesticide Enlist Duo (2,4‑D + glyphosate). EPA processed the requests, produced some documents, and withheld others under FOIA Exemptions 5 and 6.
- EPA conducted three searches (initial, Feb. 9, 2016 e‑discovery search, and a supplemental paper search ~Feb. 9, 2017), searched files of seven initial custodians and later added six more; EPA used cut‑off dates (Sept. 26, 2014 / Oct. 20, 2014) for searches that CBD disputes.
- EPA produced documents and issued Vaughn indices identifying drafts, emails, attachments, and talking points withheld largely under the deliberative process and attorney‑client privileges; EPA claimed roughly 108 documents withheld in full and 35 in part, plus one phone number under Exemption 6.
- CBD sued under FOIA and APA seeking adequate search, disclosure of nonexempt material, and relief for EPA’s alleged failure to provide estimated completion dates; parties filed cross motions for summary judgment.
- The court found EPA’s searches inadequate (Count V) and ordered a supplemental search with specific parameters; it denied EPA summary judgment as to most withholdings (Count VI) and ordered a new, properly detailed Vaughn index and supplemental declaration if EPA continues withholding.
- The court granted EPA summary judgment on CBD’s procedural/policy‑practice claims (Counts I–IV) and on the APA claims (Counts VIII–IX) and Exemption 6 withholding for the phone number; CBD prevailed only on the adequacy‑of‑search claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of EPA's search for responsive records | EPA failed to use proper search terms, used improper cut‑off dates, omitted likely custodians and categories (e.g., state/third‑party communications, IMs/texts) | Search was reasonably calculated; consulted SMEs and used eDiscovery for emails/attachments; cut‑off dates discussed with CBD | Search inadequate. Court ordered supplemental search using date‑of‑search cut‑off, uniform terms, expanded custodians (initial 7 + 6 + ~10 CBD identified), and search for non‑email communications; directed explanation re: state/third‑party records. |
| Withholdings under Exemption 5 (deliberative process privilege) | Many withheld materials are factual/scientific (non‑policy), so not protected; EPA failed to justify deliberative privilege for each document or show non‑segregability | Withheld drafts/emails/presentations are predecisional and deliberative as part of iterative scientific assessment and internal deliberations | EPA’s Vaughn and declarations are insufficiently particularized. Court denied summary judgment to EPA on these withholdings and required a properly detailed Vaughn explaining the deliberative process, document roles, authors/recipients/positions, and segregability analysis. |
| Withholdings under attorney‑client privilege | EPA’s boilerplate descriptions insufficient; sharing with attorneys does not automatically create privilege | Communications involve EPA OGC advising on legal issues and were limited to need‑to‑know | EPA failed to substantiate attorney‑client privilege for five documents; must provide particularized explanations (nature of legal issue, confidentiality, whether legal advice sought/received). |
| Procedural claims re: estimated completion dates and FOIA deadlines (pattern/practice) | EPA ignored requests for estimated completion dates and missed statutory deadlines; seeks injunction and declaration of policy/practice violations | EPA communicated with CBD, provided interim estimates/assurances (45–60 days), and produced documents; delays do not show an unlawful, recalcitrant policy like Payne Enterprises | Court granted summary judgment to EPA on Counts I–IV (procedural/policy claims) and on APA counts (VIII–IX). The record showed communications and interim estimates, not the deliberate refusal in Payne. |
Key Cases Cited
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (establishes indexing requirement for withheld records)
- Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504 (D.C. Cir. 2011) (search must be reasonably calculated to uncover relevant records)
- DiBacco v. U.S. Army, 795 F.3d 178 (D.C. Cir. 2015) (agency affidavits presumed in good faith; requester must raise substantial doubt)
- Pub. Citizen v. Dep’t of State, 276 F.3d 634 (D.C. Cir. 2002) (date‑of‑request cut‑off requires compelling justification)
- Payne Enters., Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) (policy/practice claim requires more than delay; recalcitrant refusal supports relief)
- Department of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (U.S. 2001) (describing deliberative process privilege)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (scope and purpose of attorney‑client privilege)
- Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977) (elements of governmental attorney‑client privilege)
- Milner v. U.S. Dep’t of Navy, 562 U.S. 562 (U.S. 2011) (FOIA exemptions are exclusive and construed narrowly)