Public Employees for Environmental Responsibility v. United States Environmental Protection Agency
211 F. Supp. 3d 227
| D.D.C. | 2016Background
- PEER filed a FOIA request to EPA-OIG for records relating to a February 2014 complaint alleging a former CSB board member violated federal revolving-door criminal restrictions.
- EPA-OIG searched and produced 899 pages but withheld or redacted 143 pages under FOIA Exemptions 5, 6, and 7(C); 23 pages were withheld or redacted as attorney-client privileged under Exemption 5.
- Withheld materials included investigator-prepared memoranda and a three-page Complaint Summary Report stating the complaint was unsupported and recommending closure.
- PEER sued under FOIA and limited its challenge to EPA-OIG’s attorney-client privilege redactions. EPA-OIG moved for summary judgment; PEER cross-moved.
- Central legal question: whether attorney-client privilege under Exemption 5 permits withholding investigative memoranda and factual findings provided to agency lawyers to obtain legal advice about potential criminal liability of a third party.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemption 5’s attorney-client privilege protects investigator memoranda and factual material prepared for agency lawyers about a potential third-party criminal violation | Privilege does not apply because communications did not concern agency legal rights or responsibilities and involved an outside third party, not agency wrongdoing | Privilege applies because communications were confidential requests for legal advice made in furtherance of the OIG’s statutory duty to report suspected federal criminal violations | Court held privilege applies; documents were properly withheld under Exemption 5 |
| Whether factual material in withheld documents is reasonably segregable and must be disclosed | Factual findings are non-privileged and must be disclosed separately | Factual information is part of confidential communications and protected when provided to attorneys for legal advice | Court held factual material was covered by the privilege and not required to be disclosed |
Key Cases Cited
- Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) (Exemption 5 protects confidential attorney-client communications to preserve frank legal advice to agencies)
- Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) (attorney-client privilege applies to attorney-client communications; distinguished where memoranda were used as public precedent)
- Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d 508 (D.C. Cir. 1996) (scope of Exemption 5 tied to civil discovery protections)
- Fisher v. United States, 425 U.S. 391 (U.S. 1976) (privilege covers confidential disclosures made to obtain legal assistance)
- Vento v. Internal Revenue Serv., 714 F. Supp. 2d 137 (D.D.C. 2010) (attorney listed as recipient does not automatically make a document privileged)
- Touarsi v. Dep’t of Justice, 78 F. Supp. 3d 332 (D.D.C. 2015) (attorney-client privilege protects legal advice from DOJ attorneys to agents about investigations and potential prosecutions)