Public Employees for Environmental Responsibility v. United States Section International Boundary and Water Commission, U.S.- Mexico
839 F. Supp. 2d 304
D.D.C.2012Background
- PEER, a non-profit, requests FOIA records from USIBWC on dam safety issues in the Rio Grande area.
- PEER seeks eight categories of documents, including a November 2009 Amistad Dam report and related emails, inundation maps, emergency action plans, geotechnical reports, and levee reconstructions.
- USIBWC responds Sept. 28, 2010, locating some documents, withholding others under Exemption 5, and denying some items as non-existent.
- PEER appeals on Nov. 15, 2010; USIBWC partially denies the appeal, later clarifying existence of a Joint Expert Panel Review and revealing additional responsive material.
- PEER sues Jan. 31, 2011 for FOIA violations and APA challenges; Milner v. Navy (2011) subsequently narrows Exemption 2 applicability.
- USIBWC moves for summary judgment; Milner prompts reassessment of exemptions, after which the agency relies on Exemptions 5, 7(F), and 7(E).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether APA claims are precluded by FOIA relief. | PEER seeks APA review of agency action. | FOIA de novo review suffices; APA claims are subsumed. | APA claims dismissed. |
| Whether USIBWC's search was adequate under FOIA. | Agency failed to locate all responsive records (bad faith). | Search was reasonably calculated to uncover all relevant documents. | Search deemed adequately conducted. |
| Whether Exemption 2 validly applied after Milner to withhold documents. | Milner limits Exemption 2 applicability; withholding should end. | Milner requires recharacterization; Exemption 2 no longer used. | Exemption 2 withdrawn; issue not reached. |
| Whether Exemption 5's deliberative process protects the Joint Expert Panel Review and related items. | Joint Expert Panel Review was not intra-agency or predecisional. | Panel Review is intra-agency/deliberative; protected. | Exemption 5 applies to Joint Expert Panel Review and related email. |
| Whether Exemption 7's thresholds and subsections legitimately justify withholding EAPs and inundation maps. | Disclosures would not threaten safety; maps are widely shared elsewhere. | Documents were compiled for law enforcement/homeland security; disclosure could jeopardize safety; exemptions 7(E) and 7(F) apply. | Exemption 7 (E) and (F) properly applied; maps and guidelines withheld. |
Key Cases Cited
- Milner v. Dep’t of Navy, 131 S. Ct. 1259 (2011) (limits Exemption 2 to employee relations and HR matters)
- Dep’t of the Interior and Bureau of Indian Affairs v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) (consultant corollary for Exemption 5)
- Jefferson v. Dep’t of Justice, 284 F.3d 172 (D.C. Cir. 2002) (law enforcement Nexus for Exemption 7 threshold)
- Living Rivers, Inc. v. U.S. Bureau of Reclamation, 272 F. Supp. 2d 1313 (D. Utah 2003) (inundation maps protected under Exemption 7(F))
- Public Citizen, Inc. v. Office of Management and Budget, 598 F.3d 865 (D.C. Cir. 2010) (deliberative process privilege and Vaughn testing)
- Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) (non-exempt information must be segregated when possible)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (Vaughn index function and purpose)
- Founding Church of Scientology of Washington, D.C., Inc. v. Bell, 603 F.2d 945 (D.C. Cir. 1979) (requires sufficient detail in exemptions)
- Trans Union LLC v. FTC, 141 F. Supp. 2d 62 (D.D.C. 2001) (affidavits suffice for FOIA exemptions when uncontroverted)
- Harrison v. Federal Bureau of Prisons, 681 F. Supp. 2d 76 (D.D.C. 2010) (reasonableness of search in FOIA context)