Public Employees for Environmental Responsibility v. Environmental Protection Agency Region 9
213 F. Supp. 3d 1
| D.D.C. | 2016Background
- PEER filed a FOIA request to EPA Region 9 for emails and communications (Oct 1, 2013–present) about suspected/actual PCB contamination in Santa Monica-Malibu schools; EPA granted a fee waiver and produced some records while withholding/redacting others under FOIA Exemptions 5 and 6.
- After suit, EPA produced additional records and submitted Vaughn indices describing hundreds of documents withheld in part and in full; EPA later filed amended Vaughn indices and released some records it had improperly withheld.
- PEER does not dispute the adequacy of EPA’s search or constructive exhaustion; the sole dispute is whether EPA properly withheld material under Exemptions 5 (deliberative process and attorney-client privileges) and 6.
- The Court found EPA’s Vaughn indices inadequate for many Exemption 5 deliberative-process withholdings because entries failed to identify the specific deliberative process, the document’s role/importance, and the decisionmaking authority of authors/recipients.
- The Court granted EPA summary judgment for four records withheld under the attorney-client privilege (PRD 538, 935, 1438, 1575), denied summary judgment for ten records that do not appear to include an attorney, and gave EPA a final opportunity to justify privilege claims for a few ambiguous records (PRD 834, 838, 1645).
- The Court denied EPA summary judgment as to deliberative-process withholdings and segregability (ordering supplemental Vaughn detail), but granted EPA summary judgment on the single contested Exemption 6 withholding (PRD 367).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of Vaughn entries for Exemption 5 (deliberative process) | EPA’s Vaughn is boilerplate and fails to tie documents to a definable deliberative process, identify document function, or show authors’/recipients’ decision authority | EPA says it identified process where possible and that repetitive/categorical descriptions are acceptable where they explain role in deliberations | Court: Vaughn indices inadequate; denied EPA summary judgment on deliberative-process withholdings and ordered supplemental, more specific Vaughn detail |
| Attorney-client privilege (Exemption 5) | Many redactions are not to or from attorneys; agency failed to prove elements of privilege for numerous documents | EPA contends communications include or embody legal advice and are confidential attorney-client communications | Court: EPA met burden for 4 documents (PRD 538, 935, 1438, 1575) and summary judgment granted for those; EPA failed to show privilege for 10 records lacking attorneys and for ambiguous chains (PRD 834, 838, 1645) and given a final opportunity to justify |
| Segregability of factual material | EPA’s segregability explanations are insufficient given deficient Vaughn; factual material may have been withheld improperly | EPA argues further segregation would reveal deliberative material and is not feasible | Court: Denied EPA summary judgment on segregability; ordered better Vaughn detail before evaluating further disclosure/severance |
| Exemption 6 (privacy) for PRD 367 | PEER disputes withholding of email about EPA employee Hugh Kaufman (but made no developed argument in briefs) | EPA asserts disclosure would be a clearly unwarranted invasion of personal privacy and that document reveals nothing about agency operations | Court: EPA carried its burden; granted summary judgment for EPA on Exemption 6 withholding for PRD 367 |
Key Cases Cited
- U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (FOIA disclosure purpose and limits)
- Klamath Water Users Protective Ass'n v. U.S. Dep't of the Interior, 532 U.S. 1 (deliberative process privilege description)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (predecisional/deliberative analysis)
- Weisberg v. U.S. Dep't of Justice, 627 F.2d 365 (agency must produce or justify withheld documents)
- Vaughn v. Rosen, 484 F.2d 820 (Vaughn index purpose)
- Mead Data Central, Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242 (Vaughn specificity and harm proof)
- In re Sealed Case, 737 F.2d 94 (elements of attorney-client privilege)
- Upjohn Co. v. United States, 449 U.S. 383 (scope of attorney-client privilege in corporate/government context)
- Tax Analysts v. Internal Revenue Service, 117 F.3d 607 (limits on protecting agency ‘‘working law")
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standards)