Competitive Enterprise Institute v. United States Environmental Protection Agency
232 F. Supp. 3d 172
D.D.C.2017Background
- Competitive Enterprise Institute (CEI) submitted a FOIA request (May 13, 2014) seeking OGC emails/texts referencing Gina McCarthy and text messaging; EPA assigned request HQ-FOI-2014-006434.
- EPA produced 1,702 pages, withheld 380 documents in full and redacted parts of 384 documents under FOIA Exemption 5 (attorney-client, work-product, deliberative process); provided a 50‑page Vaughn index organized in 28 categories.
- CEI administratively appealed by emailing hq.foia@epa.gov on Jan. 8, 2015 (8:37 p.m.); EPA entered the appeal into FOIAonline and acknowledged receipt on Jan. 12, 2015 (staffing/leave issues caused delay).
- CEI filed suit (Feb. 11, 2015) before EPA’s Feb. 10, 2015 extension request; EPA moved for summary judgment arguing CEI failed to exhaust administrative remedies.
- Court held CEI had properly exhausted administrative remedies (appeal was received Jan. 8 by the agency) but reviewed EPA’s supplemental submissions and ultimately granted summary judgment to EPA on merits: search adequate, Vaughn index sufficient, Exemption 5 withholdings valid, and nonsegregable determinations supported.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion — when was appeal "received" by agency for 20‑day rule | Appeal emailed Jan. 8; agency received it that day so 20‑day clock ran from Jan. 8; suit timely after deadline | Receipt means agency did not "receive" until a staff member opened/entered appeal into FOIAonline (Jan. 12) | Court: CEI properly exhausted—agency received appeal Jan. 8; exhaustion satisfied |
| Adequacy of EPA's search for responsive records | CEI implied other records (e.g., texts) exist; challenges sufficiency of search methodology | EPA searched OGC attorneys' files using reasonable terms, reviewed results, and no responsive texts found; declarations support reasonableness | Search was reasonably calculated to uncover responsive records; plaintiffs failed to rebut agency declarations |
| Application of Exemption 5 (attorney‑client, work‑product, deliberative) — including communications involving contractor and non‑attorneys | Contractor communications and certain non‑attorney exchanges are not privileged; some withheld material merely relates to privileged communications or is routine/factual | Communications were intra‑agency, prepared for legal advice/litigation, and contractor acted as consultant for legal purposes; non‑attorney exchanges made at attorneys' request (Upjohn rationale) | Withholdings under Exemption 5 upheld: contractor/ non‑attorney communications here fall within attorney‑client, work‑product, or deliberative privileges |
| Vaughn index & segregability — was EPA’s categorical Vaughn sufficient and were redactions properly segregable | CEI argued categories overly broad and some redactions unjustified; asked for record‑by‑record entries | EPA provided detailed Vaughn categories with descriptions, privileges, and segregability analyses; categorical approach appropriate given volume and similarity | Vaughn index adequate; EPA adequately explained lack of reasonably segregable nonexempt material; withholdings/redactions sustained |
Key Cases Cited
- Brayton v. U.S. Trade Representative, 641 F.3d 521 (D.C. Cir.) (FOIA summary judgment framework)
- Oglesby v. Dep't of the Army, 920 F.2d 57 (D.C. Cir.) (exhaustion/appeal requirement under FOIA)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (attorney‑client privilege applies to communications by corporate/non‑decisionmaker employees when for counsel's advice)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (U.S. 1975) (Exemption 5 protects materials normally privileged in civil discovery)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (requirement and functions of a Vaughn index)
- Public Citizen v. Office of Management & Budget, 598 F.3d 865 (D.C. Cir.) (deliberative process privilege standards)