315 F. Supp. 3d 519
D.C. Cir.2018Background
- Hall & Associates (H & A) filed a FOIA suit challenging EPA withholdings of records about the agency's response to the Eighth Circuit's decision in Iowa League of Cities (ILOC), which vacated an EPA rule on "blending." H & A sought internal memoranda, talking points, and presentations tied to two national Clean Water Act seminars.
- EPA identified ten responsive documents, released one in full, withheld two in full, and produced seven with redactions under FOIA Exemption 5 (attorney-client and deliberative-process privileges).
- Central dispute: whether EPA had made a nonacquiescence decision (i.e., to not apply ILOC nationwide) and, if so, when—because predecisional/deliberative materials created before such a decision can be withheld under Exemption 5 but materials reflecting "working law" or officially acknowledged positions must be disclosed.
- Key factual events: EPA staff discussed responses to ILOC through summer–fall 2013; EPA issued a public Desk Statement to Bloomberg on November 19, 2013, and agency officials publicly described a case-by-case approach the following day.
- The Court conducted in camera review and concluded EPA made a nonacquiescence decision as of November 19, 2013, rendering most earlier documents predecisional; but certain portions were nonprivileged or officially acknowledged and therefore must be produced.
- Procedurally: cross-motions for summary judgment; court granted in part and denied in part—ordering production of Documents 4 and 6 in full, limited portions of Documents 1(a) and 1(b), and upholding withholdings for most other redactions; H & A’s ancillary motions (to amend complaint, discovery, strike declaration, sanctions) were denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did EPA make a nonacquiescence decision re: ILOC, and when? | H & A: EPA nonacquiesced when it declined certiorari (Aug 2013) or by late Oct 2013; thus withheld records reflect working law. | EPA: No formal nonacquiescence decision yet; deliberations remain predecisional and privileged. | Court: EPA formally announced nonacquiescence on Nov 19, 2013 (Desk Statement); documents before that date are predecisional. |
| Are the predecisional records protected by the deliberative-process privilege? | H & A: Some documents are agency working law and not protected. | EPA: Drafts, talking points, and internal emails are deliberative and privileged. | Court: Most pre-Nov 19 documents (1(a),1(b),2,3,4(a),4(b),5) are deliberative and privileged, except Document 4 (not privileged) and limited factual portions in 1(a)/1(b). |
| Do attorney-client privileges apply to contested materials? | H & A: Privilege invocation improper where documents reflect working law or public policy. | EPA: Certain communications with agency counsel are confidential legal advice and privileged. | Court: Attorney-client privilege would apply to many legal communications, but it does not protect a specific nonconfidential, factual paragraph in Document 1(b); that paragraph must be disclosed. |
| Do working-law or official-acknowledgment doctrines require disclosure of privileged content? | H & A: Documents embody EPA's "working law" or have been officially acknowledged; so redactions must be released. | EPA: Public disclosures (Desk Statement and other released docs) reflect working law; contested drafts were not adopted or relied on in adjudications and were not publicly acknowledged. | Court: With one narrow exception (specific fields/paragraph in Document 1(b) previously disclosed), withheld material is not working law nor officially acknowledged; privileged withholdings largely sustained. |
Key Cases Cited
- Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013) (decision vacating EPA rule on blending that prompted agency deliberations)
- National Environmental Development Association’s Clean Air Project v. EPA, 752 F.3d 999 (D.C. Cir. 2014) (agency statements can evidence nonacquiescence)
- Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) (deliberative-process privilege and definition of predecisional/deliberative materials)
- Mead Data Cent., Inc. v. United States Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977) (rationale for intra-agency memorandum exemption; attorney-client scope)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (working-law doctrine: final agency statements of policy not protected)
- Abtew v. Department of Homeland Security, 808 F.3d 895 (D.C. Cir. 2015) (standards for predecisional/deliberative analysis)