346 F. Supp. 3d 61
D.C. Cir.2018Background
- Hunton & Williams filed FOIA suits against EPA, USACE (Corps), and the Army seeking records about an Approved Jurisdictional Determination (AJD) process for a Redwood City site; EPA ultimately exercised "special case" authority over the CWA portion while the Corps issued an RHA-only AJD.
- The parties litigated adequacy of searches and numerous redactions; the court previously found searches adequate and allowed some Exemption 5 and 6 withholdings but rejected others for insufficient justification.
- The court ordered supplemental briefing and an in camera review of a representative sample (120 documents) after agencies failed to explain several Exemption 5 withholdings (deliberative process, attorney-client, work-product).
- The in camera review focused on whether redactions were properly supported as predecisional/deliberative, attorney-client, or work product, and whether any redactions implicated Exemption 6 (personal privacy).
- The court granted summary judgment to EPA and Army on their deliberative-process withholdings; granted the Corps' withholdings mostly but ordered release of a small number of lines/emails and certain unnamed redactions where exemptions were not shown.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether redactions are protected by Exemption 5 — deliberative process privilege | Hunton argued agencies gave insufficient, document-specific justification and some redactions concealed "secret law" or non-deliberative material | Agencies contended withheld material (drafts, edits, notes, recommendations, coordination emails) were predecisional and deliberative and would harm decisionmaking if disclosed | Court: EPA and Army show sufficient support; Corps mostly successful too, but two supervisory directive emails (Docs. 40 & 1374) were not deliberative and must be released |
| Whether Corps' redactions are protected by Exemption 5 — attorney-client privilege | Hunton challenged Corps' invocation in many instances and highlighted inadequate Vaughn detail | Corps argued communications between Corps officials and Corps counsel, counsel edits, and legal advice requests are privileged | Court: Majority of attorney–client withholdings upheld where communications sought or conveyed legal advice; some emails with attorney cc or routine highlights were not attorney-client privileged but were covered by deliberative privilege |
| Whether Corps' redactions are protected by Exemption 5 — attorney work-product privilege | Hunton argued mere possibility of litigation is insufficient; Corps failed to show documents were created "because of" litigation | Corps produced evidence that counsel engaged early to preserve litigation posture and that many drafts/consultations aimed to strengthen position for foreseeable litigation | Court: Most claimed work-product documents satisfied the "because of" test and were withheld properly; a few drafts lacked adequate showing for work-product but remained withheld under deliberative privilege |
| Whether Exemption 6 redactions (names, contact info, medical info) were proper and whether agencies must reprocess records | Hunton sought disclosure of names; agencies argued privacy interests outweigh public interest for contact/medical details | Agencies limited redactions mainly to contact info and medical details; Army had previously been ordered to release names but some in-camera docs still redacted without explanation | Court: Medical, email addresses, phone numbers, and leave-hour details may be withheld; Court ordered disclosure of names that were not justified and noted Army should comply with earlier direction; error rate was negligible so no wholesale reprocessing ordered |
Key Cases Cited
- FBI v. Abramson, 456 U.S. 615 (establishes FOIA's disclosure policy and context for exemptions)
- Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (deliberative process privilege scope)
- Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854 (D.C. Cir. 1980) (describes types of materials protected by deliberative privilege)
- Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242 (D.C. Cir. 1977) (segregability and need for specificity to justify privilege)
- Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) (standards for attorney-client and work-product privileges in government context)
- Judicial Watch, Inc. v. U.S. Dep't of Justice, 365 F.3d 1108 (D.C. Cir. 2004) (Exemption 5 protects materials normally privileged in civil discovery)