CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant.
Civil Action No. 16-175 (BAH)
UNITED STATES DISTRICT
September 28, 2017
Chief Judge Beryl A. Howell
MEMORANDUM OPINION
The plaintiff, the Center for Biological Diversity (“CBD”),1 initiated this action, pursuant to the
In particular, CBD alleges in nine claims that EPA: (1) failed to provide an estimated completion date and comply with FOIA’s deadline mandates (Counts I and III); (2) engaged in a pattern, practice, and policy of violating FOIA’s estimated completion date requirement and response and determination deadlines (Counts II and IV); (3) failed to conduct an adequate
Pending before the Court are the parties’ cross motions for summary judgment. Def.’s Mot. Summ. J. (“Def.’s MSJ”), ECF No. 16; Pl.’s Cross-Mot. Summ. J. (“Pl.’s XMSJ), ECF No. 17. Defendant’s motion is granted with respect to Counts I through IV and VIII through IX; denied with respect to Count V; granted in part and denied in part, without prejudice, with respect to Count VI; and denied, without prejudice, with respect to Count VII. Plaintiff’s motion is granted with respect to Count V and denied otherwise. For the following reasons, EPA must conduct a supplemental search, disclose any non-exempt materials, and, if it continues to withhold any materials, submit a supplemental declaration and Vaughn Index that sufficiently justifies these withholdings in accordance with, and in the format prescribed in, this Memorandum Opinion.
I. BACKGROUND
The FOIA requests in this case concern EPA’s determination that a new pesticide product, Enlist Duo, manufactured by Dow AgriSciences (“Dow”), would have “no effect” on species protected under the
EPA “registers” pesticides under the
A. The ESA Effects Determination and Addenda
In January 2013, EPA conducted an “Environmental Risk Assessment,” which assessed the risks of Enlist Duo. Pl.’s Cross-Mot Summ. J. (“Pl.’s XMSJ”), Attach. 6, Memorandum from Meghan Radtke and Faruque Khan to Michael Walsh, et al., (Jan. 15, 2013) (“Environmental Risk Assessment”), Ex. B, ECF No. 17-6. This assessment recommends that Enlist Duo be labeled as “toxic to birds, mammals, fish, and aquatic invertebrates,” id. at 4, but nevertheless found “insufficient information” to determine whether use of the pesticide would have “direct effects” on any endangered or threatened species, id. at 11. To address the toxicity risks of Enlist Duo, the assessment determined that a 202 foot spray-drift buffer—an area of unsprayed land surrounding sprayed fields—would “reduce risk quotients for birds (acute), mammals (acute and chronic), and terrestrial plants below [EPA’s] levels of concern.” Id. at 2.
About six months later, in June 2013, EPA issued an Addendum to the Environmental Risk Assessment for Enlist Duo, which “re-evaluated the spray drift buffers.” Id., Attach. 7, Memorandum from Meghan Radtke and Faruque Khan to Michael Walsh, et al. (June 13, 2013) (“First Addendum”), Ex. C, at 1, ECF No. 17-7. In the First Addendum, EPA reduced the spray-drift buffers needed from 202 feet to “from < 25 ft to 30 ft.” Id. at 2.
Eight months later, in February 2014, EPA issued another Addendum that “refined” its risk assessment of Enlist Duo to endangered species, studying the effects on 53 endangered or threatened species in six states for which EPA proposed registering the use of the pesticide: Illinois, Indiana, Iowa, Ohio, South Dakota, and Wisconsin. Id., Attach. 8, Addendum to 2,4-D Choline Salt Section 3 Risk Assessment: Refined Endangered Species Assessment for Proposed New Uses on Herbicide-Tolerant Corn and Soybean (Docket #: EPA-HQ-OPP-2014-0195-0009) (“Six State Addendum”), Ex. D, at 2–3, ECF No. 17-8. This second addendum, called the “Six State Addendum” by the parties, again addressed the toxicity of Enlist Duo on plants and animals, concluding that “[p]otential direct risk concerns could not be excluded for mammals (acute and chronic); birds, reptiles, and terrestrial-phase amphibians (acute); and terrestrial plants,” id. at 1–2, but nonetheless that the herbicide would have “no effect” on any endangered or threatened species in the six states. Id. at 2, 3–5, 13, 17–40. Although EPA recognized that 53 endangered or threatened species “were identified as potentially at risk (direct or indirect effects) in the six states,” id. at 3, EPA concluded that 49 of the 53 species could be given a “no effect” determination with use of a spray drift buffer as those species were unlikely to occur on treated fields. Id. Four species were recognized as “reasonably expected to occur on treated corn and soybean fields,” but EPA concluded, based on species-specific data, that Enlist Duo would have “no effect” on these species. Id. at 3–13. As EPA determined Enlist Duo would have “no effect” on endangered or threatened species, no consultation with NMFS or FWS, informally
On September 26, 2014, EPA issued an additional “refined endangered species assessment” of Enlist Duo for ten states: Arkansas, Kansas, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, and Tennessee. Id., Attach. 11, Addendum to 2,4-D Choline Salt Section 3 Risk assessment: Refined Endangered Species Assessment for Proposed New Uses on Herbicide-Tolerant Corn and Soybean for AR, KS, LA, MN, MS, MO, NE, ND, OK, TN (Docket #: EPA-HQ-OPP-2014-0195-2419) (“Ten State Addendum”), Ex. G, ECF No. 17-11. This “Ten State Addendum” assessed the effects of Enlist Duo on 168 endangered and threatened species, and concluded that the herbicide would have “no effect” on all 168 species. Id. at 3. As EPA determined that the herbicide would have “no effect,” EPA did not consult, formally or informally, with NMFS or FWS, and on March 31, 2015, issued its decision registering Enlist Duo for use in nine of these ten states. Id., Attach. 13, Decision to Amend Enlist DuoTM Herbicide Label to Include Additional States: Arkansas, Kansas, Louisiana, Minnesota, Missouri, Mississippi, Nebraska, Oklahoma, and North Dakota (Mar. 31, 2015), Ex. I, ECF No. 17-13.
B. The FOIA Requests
CBD submitted the first of its two FOIA requests at issue in this matter to the EPA on June 26, 2014 (“First Request”), about two months after EPA proposed to register Enlist Duo in the six states, see Id., Attach. 14, Freedom of Information Act Request for Records Related to the Environmental Protection Agency’s Evaluation of 2,4-D Choline Salt Herbicide on Endangered Species (“First FOIA Request”), Ex. J, at 1, ECF No. 17-14, seeking information on what led EPA to conclude that Enlist Duo would have “no effect” on endangered or threatened species, “even as EPA simultaneously determined that Enlist Duo may harm many non-target animals,” id., Attach. 2, Declaration of Brett Hartl, CBD’s former Endangered Species Policy Director and current Government Affairs Director (“CBD Decl.”) ¶ 3, ECF No. 17-2; EPA Decl. ¶ 6. Specifically, CBD sought the following:
All documents and correspondence related to the Environmental Protection Agency’s “Addendum to 2,4-D Choline Salt Section 3 Risk Assessment: Refined Endangered Species Assessment for Proposed New Uses on Herbicide-Tolerant Corn and Soybean,” (Docket #: EPA-HQ-OPP-2014-0195-0009) for the new Enlist DuoTM product.
First FOIA Request at 1. “All documents” is defined as including, but not limited to, “all memoranda, maps, studies, reports, data, correspondence, comments, conversation records, files, electronic mail records, phone notes, or other documents.” Id.
CBD submitted a second, similar FOIA request on October 20, 2014 (“Second Request”), shortly after EPA had issued the registration for use of the pesticide in the six states and had proposed registering the pesticide’s use in an additional ten states. The second FOIA request sought the following:
All records and correspondence related to the Environmental Protection Agency’s
“Addendum to 2,4-D Choline Salt Section 3 Risk assessment: Refined Endangered Species Assessment for Proposed New Uses on Herbicide-Tolerant Corn and Soybean for AR, KS, LA, MN, MS, MO, NE, ND, OK, TN.”
Pl.’s XMSJ, Attach. 16, FOIA Request Letter from Brett Hartl, Center for Biological Diversity, to EPA (Oct. 20, 2014), Ex. L at 1, ECF No. 17-16. Like the first request, “all records” is defined as including, but not limited to, “any and all memoranda, maps, studies, reports, data, correspondence, comments, conversation records, files, electronic mail records, phone notes, meeting notes and all other documents.” Id.
C. Processing of the Requests and Production
EPA’s FOIA office assigned the FOIA requests to the Office of Program Management of the Office of Chemical Safety and Pollution Prevention, which delegated the requests to the Office of Pesticide Programs (“OPP”), since OPP is responsible for regulating pesticides under FIFRA. EPA Decl. ¶¶ 10-11, 14. OPP identified the Environmental Fate and Effects Division (“EFED”) within OPP as the division responsible for the FOIA request. EPA Decl. ¶ 14.
EPA sent CBD an email on December 4, 2014, stating that the First Request was a duplicate of the Second Request and that EPA would therefore close the First Request. Def.’s Statement of Material Facts Not in Genuine Dispute (“Def.’s SMF”) ¶ 5, ECF No. 16; EPA Decl. ¶ 12. After further discussion with CBD, however, EPA agreed that both requests would remain open, and EPA would search for records responsive to both requests, which concerned different states and different listed species. Def.’s SMF ¶ 5; EPA Decl. ¶ 12. On December 17, 2014, the parties discussed a timeline for estimated completion and search parameters, which EPA understood to include records dated through September 26, 2014, the date when the Ten State Addendum was issued. EPA Decl. ¶ 13; see Ten State Addendum. CBD denies agreeing to this cut-off date. CBD Decl. ¶¶ 16–19.
EPA conducted three searches for responsive documents. The first search took place sometime before this litigation began, the second search occurred on February 9, 2016, and the third search took place a year later, if the date provided by EPA is correct, on February 9, 2017. EPA Decl. ¶¶ 14–15, 24; Def.’s Opp’n Pl.’s Cross-Mot. Summ. J. & Reply Supp. Def.’s Mot. Summ. J. (“Def.’s Reply”), Attach. 1, Supplemental Declaration of Earl G. Ingram, Jr., Chief, Public Information and Records Integrity Branch, Information Technology and Resources Management Division, Office of Pesticide Programs, EPA (“EPA Supp. Decl.”) ¶¶ 15–17, ECF No. 22-1. In the first search, EPA’s FOIA staff “emailed three individuals” at EFED “to help coordinate the search.” EPA Decl. ¶ 14. “As the requests were related to specific documents authored by EFED,” EPA explains that this “division was identified as the office likely to have documents responsive to the FOIA requests and the members of that division were considered subject matter experts (SMEs).” Id. EPA “asked that employees of EFED and other OPP employees likely to have documents each search” for “potentially responsive documents” and “deposit[] them to a shared network drive.” Id. FOIA staff “also emailed other OPP employees and coordinated the collection of potentially responsive documents.” Id. In total, EPA identified seven custodians whose records
EPA conducted the second search on February 9, 2016, after the filing of this lawsuit. EPA Supp. Decl. ¶ 16. EPA identified six additional custodians, including four Office of General Counsel (“OGC”) attorneys, “who had advised and consulted on the underlying draft documents,” as well as “two additional potential custodians from OPP’s Registration Division.” EPA Supp. Decl. ¶ 15; see also EPA Decl. ¶ 23.3 For both the original seven custodians and the additional six custodians, EPA then conducted an electronic search of emails “using the Agency’s centralized eDiscovery search service in the Office of Environmental Information (OEI),” EPA Decl. ¶ 24; EPA Supp. Decl. ¶ 16, for emails and attachments dated from February 15, 2013 to October 20, 2014, EPA Decl. ¶ 24.4 The system was searched using the following terms: (“risk assessment” OR “assessment” OR “RA”) AND (“Enlist” OR “Choline” OR “2,4-D”) AND (“ESA” or “endangered species”). EPA Decl. ¶ 24.
A year later, on “February 9, 2017,” EPA apparently conducted a third search, “instruct[ing]” the six additional custodians—the four OGC attorneys and two OPP Registration Division employees—“to conduct a supplemental search of paper and non-electronic records to locate any additional responsive records that would not have been captured by the electronic search.” EPA Supp. Decl. ¶ 17. According to EPA, “[n]o responsive documents were located as a result of” this third supplemental search. Id.
The parties’ declarations do not make clear how many documents were actually released. EPA states thirty “studies” were produced on March 12, 2015, and that a total of 48 records, of an unspecified number of pages, were released between March 12, 2015 and May 1, 2015. EPA Decl. ¶¶ 18–21. EPA sent CBD a final response to both FOIA requests on October 8, 2015, indicating that approximately 150 emails and other documents were withheld under FOIA Exemption 5, as containing information protected by the deliberative process privilege and/or attorney-client privilege. EPA Decl. at ¶ 21. According to CBD, these 150 documents totaled approximately 500 pages. CBD Decl. ¶ 30. Following the initiation of litigation, however,
CBD describes a different account of the disclosures, stating that on November 19, 2014, EPA provided six records, which consisted of five emails between Dow and EPA in April and May of 2013, and an “email attachment without any context as to whom it was sent or received by.” CBD Decl. ¶ 22. Based on CBD’s declarations, EPA continued to release documents over the course of the next few months, including at least 138 documents of unspecified length. CBD Decl. ¶¶ 22–28 (describing disclosures made from November 19, 2014 to May 1, 2015). Then, on October 8, 2015, EPA sent final determination letters. EPA Decl. ¶ 21.
On November 6, 2015, CBD appealed EPA’s closure of the requests and withholdings. EPA Decl. ¶ 22; Pl.’s Compl. ¶ 11. EPA did not acknowledge CBD’s appeals until CBD sent a letter “notifying the EPA of the violation and offering to assist,” but as of the filing of this suit, EPA had not responded to CBD’s appeals, and as such, CBD claims the Agency is in violation of the twenty-day response time required by the FOIA. Pl.’s Compl. ¶ 11; Pl.’s Mem. at 12. EPA maintains, however, that the agency sent an acknowledgement letter to CBD on November 10, 2015, EPA Decl. ¶ 22, but concedes that the agency had “not responded to [CBD’s] appeals as of the filing date of the Complaint.” Def.’s Answer ¶ 11.
D. EPA’s Vaughn Indices
Accompanying the release of documents, EPA produced two indices, pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), on November 23, 2016, and February 23, 2017, describing the documents withheld, either in full or in part. EPA Decl., Ex. A, at 15–53 (“Vaughn Index”), ECF No. 16-1; EPA Supp. Decl., Ex. 1 (“Supp. Vaughn Index”), ECF No. 22-1.5 As summarized by EPA, the indices include three categories of documents: “(1) draft versions of Six State and Ten State Addenda and related draft documents; (2) emails transmitting these drafts and including comments, opinions, and proposals for revisions by EPA employees and managers; and (3) presentations and talking points in preparation for meetings with Dow Chemical, the manufacturer of Enlist Duo, and for internal meetings with EPA management.” EPA Supp. Decl. ¶ 7. In its initial declaration, EPA claimed that “approximately 95 documents were withheld in full or in part under the deliberative process privilege.” EPA Decl. ¶ 29. Upon further review, however, EPA claims that “a number of duplicates of documents that had been
withheld in full were not accounted for” in the initial Vaughn Index, “which resulted in an undercounting.” EPA Supp. Decl. ¶ 7. “When those duplicates are included,” EPA explains that it “withheld 108 documents in full and 35 documents in part under FOIA’s Exemption 5’s deliberative process privilege.” Id.6 Five of those documents
II. LEGAL STANDARD
The FOIA was enacted “to promote the ‘broad disclosure of Government records’ by generally requiring federal agencies to make their records available to the public on request.” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (citing U.S. Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988)). Reflecting the necessary balance between the public’s interest in governmental transparency and “legitimate governmental and private interests that could be harmed by release of certain types of information,” United Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (alteration adopted) (quoting Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992)), the FOIA contains nine exemptions set forth in
An agency may carry its burden of properly invoking an exemption by submitting affidavits or declarations, a Vaughn Index, or both, to demonstrate that the government has analyzed carefully any material withheld and provided sufficient information as to the applicability of an exemption to enable the adversary system to operate. See Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (“In FOIA cases, ‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.’” (alteration adopted) (quoting Consumer Fed’n of Am. v. Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006))); Oglesby v. U.S. Dep’t of Army (“Oglesby II”), 79 F.3d 1172, 1176 (D.C. Cir. 1996) (instructing that agency affidavit “should reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection[,] . . . [which] serves the purpose of providing the requestor with a realistic opportunity to challenge the agency’s decision” (citation omitted)); CREW, 746 F.3d at 1088 (noting that agency’s burden is sustained by submitting affidavits that “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith” (quoting Larson v. U.S. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009))). While “an agency’s task is not herculean[,]” it must “‘describe the justifications for nondisclosure with reasonably specific detail’ and ‘demonstrate that the information withheld logically falls within the claimed exemption.’” Murphy, 789 F.3d at 209 (quoting Larson, 565 F.3d at 862). “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Judicial Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)); Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)).
The FOIA provides federal courts with the power to “enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant,”
III. DISCUSSION
In evaluating the parties’ cross-motions for summary judgment, the adequacy of the search (Count V) is considered first before turning to the sufficiency of EPA’s justifications for withholding documents (Count VI), and its across-the-board statement that no segregable portions of any of the withheld documents can be released (Count VII). CBD’s procedural challenges, in Counts I through IV, VIII and IX are discussed last.8
A. ADEQUACY OF THE SEARCH
CBD argues that EPA conducted an inadequate search because “EPA failed to apply pertinent search terms, applied inconsistent and improper cut-off dates, and failed to maintain and search entire categories of records altogether.” Pl.’s Mem. at 3.9 EPA defends the adequacy of
1. Legal Standard
An agency “fulfills its obligations under [the] FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents” and “perform[s] more than a perfunctory search” to identify responsive records. Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (citations and internal quotation marks omitted); see also Truitt v. U.S. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990). “[T]he issue to be resolved is not whether there might exist any other documents
possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). In this regard, “[t]here is no requirement that an agency search every record system,” although “the agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested.” Oglesby v. U.S. Dep’t of Army (“Oglesby I”), 920 F.2d 57, 68 (D.C. Cir. 1990). Further, agencies are not obligated to search “beyond ‘the four corners of the request,’ nor are they ‘required to divine a requester’s intent.’” Am. Chemistry Council, Inc. v. U.S. Dep’t of Health & Human Servs., 922 F. Supp. 2d 56, 62 (D.D.C. 2013) (quoting Landmark Legal Found. v. EPA, 272 F. Supp. 2d 59, 64 (D.D.C. 2003)).
At the summary judgment stage, an agency meets its burden of demonstrating beyond material doubt that it “made a ‘good faith effort to conduct a search using methods which can be reasonably expected to produce the information requested,’” DiBacco, 795 F.3d at 188 (internal alterations omitted) (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1990)), by submitting to the Court a “‘reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive
2. Analysis
EPA’s descriptions of the three searches conducted for responsive records fall short of “demonstrat[ing] beyond material doubt that its search[es] w[ere] reasonably calculated to uncover all relevant documents.” Ancient Coin, 641 F.3d at 514 (citations and internal quotation marks omitted). In particular, four reasons demonstrate that EPA’s searches were inadequate.
First, EPA fails to justify the use of September 26, 2014, or October 20, 2014, as cut-off dates for the searches.10 EPA alleges that CBD and EPA “discussed the search parameters in a telephone conversation on December 17, 2014” and “[i]t was agreed that the search would include documents through September 26, 2014,” EPA Decl. ¶ 13, which is the date EPA issued the Ten State Addendum. In its sworn declaration, CBD confirms communicating with EPA “regarding the search parameters of the two FOIA requests,” CBD Decl. ¶ 16, but states that it has “found no evidence that EPA ever alerted [it] to, or otherwise memorialized, a ‘cut-off’ date of” September 26, 2014. CBD Decl. ¶ 19. Further, CBD memorialized the December 17, 2014 conversation in an email sent to EPA, which email made no mention of such a key search parameter as an agreed-upon cut-off date of September 26, 2014. See Pl.’s XMSJ, Attach. 23,
Email from Brett Hartl, CBD, to Larry Gottesman and Earl Ingram, EPA, Ex. S at 2–3, ECF No. 17-23. Although agency affidavits are afforded a presumption of good faith, SafeCard Servs., 926 F.2d at 1200, a FOIA plaintiff “may nonetheless produce countervailing evidence,” Morley, 508 F.3d at 1116. In this case, CBD has produced such evidence calling into doubt the purported agreement to a “cut-off” date of September 26, 2014, and EPA has failed to counter this evidence to demonstrate otherwise.
In any event, the use of September 26, 2014, or October 20, 2014, as cut-off dates
off policy”); Edmonds Inst. v. U.S. Dep‘t of Interior, 383 F. Supp. 2d 105, 111 (D.D.C. 2005) (stating that “[t]he D.C. Circuit has all but endorsed the use of date-of-search as the cut-off date for FOIA requests” and explaining that “[u]nder the date-of-search approach, Edmonds can, with relative ease, file a second FOIA request for documents created since December 31, 2002.”). This guidance on use of the date-of-search as a cut-off date for FOIA searches is well-established and even incorporated into the regulations of various federal agencies. See, e.g.,
Second, documents disclosed by the EPA make apparent that the limited number of custodians searched, see supra notes 2–3, are not all the relevant custodians, and thus the searches likely failed to be “reasonably calculated to uncover all relevant documents.” Ancient Coin, 641 F.3d at 514.11 As CBD points out, at least sixteen additional EPA personnel are included in email correspondence relating to Enlist Duo but were not identified as custodians. See CBD Decl. ¶ 33.12 EPA acknowledges
Third, the adequacy of EPA‘s searches is called into question given that neither the records released, nor the Vaughn indices, include any correspondence or documentation of conferral with any state agencies despite EPA‘s statement that “deliberative communications occurred among EPA staff, and between EPA and its state and federal partner agencies.” Def.‘s MSJ at 11 (citing EPA Decl. ¶ 29) (emphasis added).13 Also, with the exception of five emails from 2013 between EPA and Dow, CBD Decl. ¶ 22, no further correspondence or documents of communications with Dow or other third parties were produced or reflected in the two Vaughn indices. EPA must conduct additional searches for any responsive documents
Finally, EPA did not search instant messages, text messages, or other electronic communications. Although the agency disclaims any duty to search for text messages or instant messages, EPA states it “confirmed” with the “subject matter experts” that no instant messages or text messages, “or any other kind of chats were used by OPP staff to communicate on the drafting and review of documents related to the Endangered Species Assessment.” EPA Decl. ¶ 15.14 This statement suggests either that the subject matter experts were able to, and did, conduct a search of these kinds of communications, or that EPA conducted no search and rather relied solely on assurances of the subject matter experts. EPA Decl. ¶ 14. If the former, EPA must clarify how the subject matter experts conducted a search of these communications. If the latter, EPA must either conduct a search of these communications, or if it is unable to do so, explain how it is not feasible to search these messages for responsive material, similar to the explanation the agency provided regarding preservation of voicemails, see supra note 9. Cf. Defs. of Wildlife v. U.S. Dep‘t of Agric., 311 F. Supp. 2d 44, 55 (D.D.C. 2004) (“With regard to the defendants’ search of the Under Secretary of the NRE‘s office, the bare assertion that the Deputy Under Secretary saw the FOIA request and that he stated that he had no responsive documents is inadequate because it does not indicate that he performed any search at all.” (citing Steinberg v. U.S. Dep‘t of Justice, 23 F.3d 548, 551-52 (D.C. Cir. 1994); Weisberg v. Dep‘t of Justice, 627 F.2d 365, 371 (D.C. Cir. 1980)))).
* * *
If the “record leaves substantial doubt as to the sufficiency of the search,” summary judgment for the agency is not warranted. Truitt, 897 F.2d at 542. Here, EPA has failed to “demonstrate beyond material doubt that its search[es] w[ere] reasonably calculated to uncover all relevant documents.” Ancient Coin, 641 F.3d at 514. Accordingly, EPA is directed to conduct a supplemental search with the following features: (1) the date of the new supplemental search must be used as the cut-off date; (2) uniform search terms most “reasonably calculated to uncover all relevant documents” must be used; (3) electronic and hard-copy documents of the initial seven custodians, the six additional custodians identified by EPA, and the ten potential custodians identified by CBD, must be searched; and (4) if it is able and has not done so already, EPA must search for responsive text messages, instant messages, or other similar agency communications. EPA is further directed to submit a supplemental declaration explaining the
B. EPA‘S WITHHOLDINGS UNDER EXEMPTION 5
Summary judgment must be denied to EPA due to the inadequacy of the agency‘s search for responsive records and, consequently, resolution of other issues presented in this case may await the completion of the supplemental search. In order to provide guidance to the agency for completing responses to the FOIA requests at issue, however, the Court proceeds to consider the parties’ arguments regarding EPA‘s application of Exemption 5. At the outset, the significant shortcomings in the EPA‘s Vaughn Indices are detailed, with instructions to the agency on the proper format for this important submission, followed by a summary of the applicable law for withholding under Exemption 5 and then discussion of EPA‘s invocation of both the deliberative process and attorney-client privilege in this case.
1. Inadequacy of the EPA‘s Vaughn Indices
Both substantively and structurally, EPA‘s two Vaughn indices are patently insufficient. EPA‘s “Vaughn Index provides, at best, thin descriptions of broad categories of materials, paired with assertions that merely parrot legal conclusions.” Am. Immigration Council v. U.S. Dep‘t of Homeland Sec., 950 F. Supp. 2d 221, 243 (D.D.C. 2013). Further, typically, a comprehensive Vaughn index will at least include the following information: “(1) an index identification number [(i.e., a Bates stamp number)]; (2) the document‘s subject; (3) its date; (4) the author; (5) the recipient; (6) the total number of pages; . . . ([7]) the disposition (that is, whether entirely or partially withheld); ([8]) the reason for being withheld; ([9]) the statutory authority for the withholding; and ([10]) the number of pages containing withheld information.” Judicial Watch, 449 F.3d at 146-47. The two Vaughn indices submitted in this case, however, are a jumbled and disorganized, inspiring little confidence that EPA has adequately kept track of each withheld document or fully considered, let alone explained, the basis for withholdings.
First, EPA‘s slapdash identification system seems designed to create confusion. Although a legend states that documents are referred to as either “PRD” for “produced with Bates number,” or “WIF” for “withheld in full,” email attachments, which were withheld in full, are not given their own identification number and are referred to only as an “attachment” to an email with a “PRD” number. See, e.g., Supp. Vaughn Index at 33 (referring to a document as “Attachment to PRD 1075”). Other parts of the Vaughn indices abandon any consistent numbering system altogether. For example, documents are referred to as “Document PRD 8/15 #1,” “WHF#1,” “WH#4,” “9/15 red#1,” and “9/15 Redaction 2,” without any explanation as to what these identifiers are supposed to mean. See Supp. Vaughn Index at 33, 34, 36, 40, 41. The lack of any consistent system of identifying and numbering documents raises serious questions about EPA‘s efforts to track responsive documents and fulfill the purposes of the Vaughn Index of providing sufficient information to the requester and the Court for
Second, at least two documents are listed on the supplemental Vaughn index as withheld with no explanation whatsoever—only a Bates number is provided. See Supp. Vaughn Index at 29–30 (entries “PRD 828” and “PRD 833”). The Vaughn indices do not explain whether these documents were withheld, in full or in part, or whether they are duplicates of other documents, and, if so, which ones. The Vaughn indices suggest that the documents may be duplicates of a document numbered “PRD 91,” but no document labeled “PRD 91” appears in the Vaughn indices.
Third, as CBD points out, EPA‘s revised Vaughn Index obscures rather than clarifies. See Pl.‘s Mem. at 27–28. EPA unhelpfully fails to provide any explanation as to what changes were made to the first Vaughn index, leaving to opposing counsel and the Court the difficult task of comparing the two indices in an effort to figure out which materials EPA is in fact withholding. Although some information regarding the authors and recipients of several documents is added to EPA‘s supplemental 42-page index, at the same time other entries are eliminated from the original 39-page index—with no explanation.
For these reasons, after completion of the supplemental search, EPA is directed to submit a second supplemental Vaughn index for any documents the agency continues to withhold in full or in part. As the two submitted Vaughn indices are patently insufficient, the Court prescribes the following format for any supplemental Vaughn index to include a separate numbered entry for each document, including for each email (or email chain) and for each email attachment (which shall be separately listed in consecutive order after its associated email): (1) a document number; (2) an index identification number (i.e., a Bates stamp number); (3) the document‘s subject or title; (4) its date; (5) the author and the author‘s job title; (6) the recipient and the recipient‘s job title; (7) the total number of pages; (8) the disposition (whether it is entirely or partially withheld); (9) the reason for being withheld; (10) the statutory authority for the withholding; and (11) the number of pages with redacted, withheld information. See Judicial Watch, 449 F.3d at 146–47.
2. Legal Standard For Evaluating Withholdings Under Exemption 5
Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.”
“The attorney-client privilege ‘is the oldest of the privileges for confidential communications known to the common law,’” and it aims “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” United States v. Jicarilla Apache Nation, 564 U.S. 162, 169 (2011) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). “The objectives of the
The deliberative process privilege, which is intended to protect “open and frank discussion” among government officials to enhance the quality of agency decisions, “rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.” Abtew, 808 F.3d at 898 (quoting Dep‘t of Interior v. Klamath Water Users Protective Ass‘n (“Klamath Water”), 532 U.S. 1, 8–9 (2001)). The privilege allows federal agencies to withhold “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Klamath Water, 532 U.S. at 8–9. “To qualify for the deliberative process privilege, an intra-agency memorandum must be both pre-decisional and deliberative.” Abtew, 808 F.3d at 898 (citing Coastal States, 617 F.2d at 866); Whitaker v. U.S. Dep‘t of State, No. 14–5275, 2016 WL 9582720, at *2 (D.C. Cir. Jan. 21, 2016) (per curiam) (quoting Abtew, 808 F.3d at 898). In general, “[a] document is predecisional if it was ‘prepared in order to assist an agency decisionmaker in arriving at his decision,’ rather than to support a decision already made.” Petroleum Info. Corp. v. U.S. Dep‘t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (quoting Renegotiation Bd. v. Grumman Aircraft, 421 U.S. 168, 184 (1975)); see also Leopold v. CIA, 89 F. Supp. 3d 12, 19 (D.D.C. 2015) (quoting Petroleum Info. Corp., 976 F.2d at 1434). While the D.C. Circuit has observed that the “term ‘deliberative’ does not add a great deal of substance to the term ‘pre-decisional,’” Nat‘l Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014), “‘deliberative’ in this context means, in essence, that the communication is intended to facilitate or assist development of the agency‘s final position on the relevant issue,” id. (citing Russell v. U.S. Dep‘t of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982)).
“Under the deliberative process privilege, factual information generally must be disclosed, but materials embodying officials’ opinions are ordinarily exempt.” Petroleum Info. Corp., 976 F.2d at 1434 (citations omitted). Nonetheless, “the D.C. Circuit has cautioned against overuse of the factual/deliberative distinction.” Goodrich Corp. v. U.S. Envtl. Prot. Agency, 593 F. Supp. 2d 184, 189 (D.D.C. 2009) (citing Dudman Commc‘ns Corp. v. U.S. Dep‘t of Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987)). Instead, “the legitimacy of withholding does not turn on whether the material is purely factual in nature or whether it is already in the public domain, but rather on whether the selection or organization of facts is part of an agency‘s deliberative process.” Ancient Coin, 641 F.3d at 513 (citation omitted); see also Petroleum Info. Corp., 976 F.2d at 1435 (“To fall within the deliberative process privilege, materials must bear on the formulation or exercise of agency policy-oriented judgment.” (emphasis in original; citation omitted)); Wolfe v. U.S. Dep‘t of Health & Human Servs., 839 F.2d 768, 774 (D.C. Cir. 1988) (noting that, although “the fact/opinion distinction ‘offers a quick, clear, and predictable rule of decision,’ for most cases,” courts “must examine the information requested in light of the policies and goals that underlie the deliberative process privilege” (quoting Mead Data, 566 F.2d at 256 (noting that “[i]n some circumstances, . . . the disclosure of even purely factual material may so expose the deliberative process within an agency that it must” enjoy the deliberative process privilege))); Montrose Chem. Corp. of Cal. v. Train, 491 F.2d 63, 71 (D.C. Cir. 1974) (“Exemption 5 was intended to protect not simply deliberative material, but also the deliberative process of agencies.”).
An agency may not, therefore, rely on this privilege unless disclosure of the withheld information would reveal the agency‘s deliberative process for its ultimate conclusion, see Playboy Enters., Inc. v. U.S. Dep‘t of Justice, 677 F.2d 931, 936 (D.C. Cir. 1982), or if the factual information that is withheld is “inextricably intertwined with the deliberative sections of documents,” In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). To be precise, the “deliberative process privilege is . . . dependent upon the individual document and the role it plays in the administrative process.” Playboy Enters., 677 F.2d at 935 (citation omitted). Thus, when claiming the deliberative process privilege, the agency must, at the very least, explain in its Vaughn Indices and/or declarations, for each contested document withheld in part or in full, (1) “‘what deliberative process is involved,” Senate of P.R. v. U.S. Dep‘t of Justice, 823 F.2d 574, 585–86 (D.C. Cir. 1987) (quoting Coastal States, 617 F.2d at 868), (2) “the role played by the documents in issue in the course of that process,’” id. (quoting Coastal States, 617 F.2d at 868), and (3) “‘the nature of the decisionmaking authority vested in the office or person issuing the disputed document[s], and the positions in the chain of command of the parties to the documents,’” Elec. Frontier Found. v. U.S. Dep‘t of Justice, 826 F. Supp. 2d 157, 168 (D.D.C. 2011) (quoting Arthur Andersen & Co. v. Internal Revenue Serv., 679 F.2d 254, 258 (D.C. Cir. 1982)).
3. EPA‘s Application of Exemption 5‘s Deliberative Process Privilege
According to EPA‘s supplemental declaration, EPA is withholding 108 documents in full and 35 documents in part under FOIA Exemption 5‘s deliberative process privilege.15 EPA Supp. Decl. ¶ 7. EPA largely justifies withholding documents related to the “no effect”
determination, including drafts of the Six State and Ten State Addenda, Supp. EPA Decl. ¶ 8, by contending the documents are deliberative “because they are part of an iterative process,
CBD vigorously disputes EPA‘s reasoning and contends that the withheld documents do not fall under the deliberative process privilege because “fact-based, scientific processes and conclusions about the effects of agency actions to species are not ‘deliberative processes’ within the scope of the deliberative process privilege.” Pl.‘s Mem. at 17. CBD avers that EPA had to “make a simple, factual determination with only two outcomes, whether an action has ‘no effect’ or ‘may effect’ endangered species” and “[t]hus, there are no policy deliberations embedded in the species effects determinations that EPA made in the Addenda.” Id. at 17–18.
CBD‘s point is well taken, though may be overstated to the extent its argument would bar application of the deliberative process privilege to any records associated with the EPA‘s “no effect” determination. In other words, as CBD contends, given that the “no effect” determination is statutorily required to be based on “the best scientific and commercial data available,”
a) EPA Has Not Explained the Nature of the Decisionmaking Authority Vested in the Office or Person Issuing the Documents, or the Positions in the Chain of Command of the Parties to the Documents
For nearly all of the documents, EPA has not explained “the nature of the decisionmaking authority vested in the office or person issuing the disputed document[s], and the positions in the chain of command of the parties to the documents.” Elec. Frontier Found., 826 F. Supp. 2d at 168. “A document‘s context is the sine qua non of the court‘s assessment of whether or not the document is predecisional and deliberative.” Conservation Force v. Jewell, 66 F. Supp. 3d 46, 61 (D.D.C. 2014), aff‘d, No. 15-5131, 2015 WL 9309920 (D.C. Cir. Dec. 4, 2015). Indeed, “[t]he need to describe each withheld document when Exemption 5 is at issue is particularly acute [precisely] because ‘the deliberative process privilege is so dependent upon the individual document and the role it plays in the administrative process.’” Animal Legal Def. Fund, Inc. v. U.S. Dep‘t of Air Force, 44 F. Supp. 2d 295, 299 (D.D.C. 1999) (quoting Coastal States, 617 F.2d at 867). “For example, ‘[a] document from a junior to a senior is likely to reflect his or her own subjective opinions and will clearly have no binding effect on the recipient.’” Conservation Force, 66 F. Supp. 3d at 61 (quoting Access Reports, 926 F.2d at 1195). In contrast, a document “moving from senior to junior is far more likely to manifest decisionmaking authority and to be the denouement of the decisionmaking rather than part of its give-and-take.” Access Reports, 926 F.2d at 1195. Additionally, where a document does not “invite a response from the requesting official,” it is not likely to fall under the deliberative process privilege at all. Schlefer v. United States, 702 F.2d 233, 243 (D.C. Cir. 1983). The Vaughn indices provide little to no information as to the “identities, positions, and job duties of any of the authors or recipients of the withheld documents; consequently, this Court simply cannot properly determine whether the deliberative process privilege applies.” Conservation Force, 66 F. Supp. 3d at 61 (citing SafeCard, 926 F.2d at 1204) (agency could not withhold based on the deliberative process privilege where the agency did not “explain such matters as how decisions like those in issue are reached; the role that staff discussion and memoranda play in such decisions; the manner in which such decisions are memorialized and explained; and whether such decisions are treated, in later agency decisionmaking, as precedents”); Animal Legal Def. Fund, 44 F. Supp. 2d at 299 (concluding an agency “failed to establish that the documents contributed to the deliberative process” because while the agency “identified the deliberative process at issue,” it “utterly failed to specify the role played by each withheld document in the course of developing that policy”). If EPA is unable to provide adequate justification addressing the salient factors for invocation of the deliberative process privilege for its withholdings, the information must be released.
b) EPA Has Not Justified Decision to Withhold Documents In Full
Under FOIA, “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.”
As an initial matter, EPA has not shown with sufficient particularity that the withheld documents reflect “policy judgments” exempt from disclosure under the deliberative process privilege. See Coastal States, 617 F.2d at 868 (“[T]he agency has the burden of establishing what deliberative process is involved, and the role played by the documents in issue in the course of that process.”). The touchstone of the deliberative process privilege is that in order to fall within the privilege, the materials in question “must bear on the formulation or exercise of agency policy-oriented judgment.” Petroleum Info. Corp., 976 F.2d at 1435 (Ginsburg, B. R., J.) (emphasis in original). “The deliberative process privilege . . . is centrally concerned with protecting the process by which policy is formulated.” Id. (emphasis in original); Jordan v. U.S. Dep‘t of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) rev‘d, in part, on other grounds, 691 F.2d 514 (D.C. Cir. 1982); Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981) (explaining that to be deliberative, a document “must actually be related to the process by which policies are formulated”). Thus, Exemption 5 protects “preliminary positions or ruminations about how to exercise discretion on some policy matter.” Petroleum Info. Corp., 976 F.2d at 1435 (emphasis added). “Conversely, when material[s] could not reasonably be said to reveal an agency‘s or official‘s mode of formulating or exercising policy-implicating judgment, the deliberative process privilege is inapplicable.” Id. (emphasis added). At bottom, “[p]urely factual reports and scientific studies cannot be cloaked in secrecy by an exemption designed to protect only ‘those internal working papers in which opinions are expressed and policies formulated and recommended.’” Bristol-Myers Co. v. FTC., 424 F.2d 935, 939 (D.C. Cir. 1970) (footnote omitted).
As EPA concedes, the vast majority of the withheld documents, draft addenda and draft assessments, “weigh and evaluate scientific data, studies, reports and other relevant information in order to reach a determination” of whether Enlist Duo “may affect” an endangered or threatened species. EPA Supp. Decl. ¶ 9.17 As part of this binary determination—whether a pesticide does or does not “affect” an endangered or threatened species—EPA
Addressing similar kinds of documents under § 7 of the ESA, other courts have reasoned that non-discretionary, factual, and scientific documents are not “deliberative.” For example, in Greenpeace v. National Marine Fisheries Serv., No. C98-492Z, 2000 WL 151915 (W.D. Wash. Feb. 2, 2000), the court addressed whether documents related to a “jeopardy” and “adverse modification” decision under § 7 of the ESA could be withheld under the deliberative process privilege. Concluding that the deliberative process privilege did not apply, the court stressed that a “jeopardy” and “adverse modification” decision under § 7 is factual and scientific rather than a legal or policy determination. Id. at *2. Notably, on motion for reconsideration, the court clarified that its holding did not depend on the documents containing purely factual information; rather, the court based its decision on a conclusion that the process of making a § 7 determination was not policy-oriented. See Greenpeace v. National Marine Fisheries Serv., 198 F.R.D. 540, 543–45 (W.D. Wash. Apr. 11, 2000). The Court explained that although “scientific expertise is brought to bear” in the production of the documents in question, that fact “‘does not transform interpretations of facts into communications protected by the deliberative process privilege.’” Id. at 544 (quoting Seafirst Corp. v. Jenkins, 644 F. Supp. 1160, 1163 (W.D. Wash. 1986)). In other words, to fall under the deliberative process privilege, expert opinion must relate to an exercise of discretionary policy-making judgment. See id. As “Section 7 of the ESA does not require, nor permit, discretionary policy-making,” and “[a] determination of jeopardy or adverse modification is limited to objective, fact-based scientific conclusions,” the Court concluded that the “process as a whole is not ‘deliberative’ within the meaning of the privilege.” Id.
Similarly, in Greenpeace v. Mineta, Order Affirming in part and Reversing in part Magistrate Judge‘s Order Denying Plaintiffs’ Motion to Strike Claims of Privilege and Granting Defendants’ Motion for Protective Order, 00-0068, at 12 (D. Haw. Mar. 30, 2001), the District Court for the District of Hawaii held that the deliberative process privilege did not apply to documents prepared as part of NMFS‘s § 7 consultation “pertaining to various agency actions affecting the Hawaiian monk seal.”18 The court contrasted these decisions with true discretionary policy decisions, such as “whether to close [a] lobster fishery in a certain year.” Id. at 13. As
In this case, EPA has withheld most documents in full. Given that non-discretionary, factual, and scientific determinations are unlikely to reflect “preliminary positions or ruminations about how to exercise discretion on some policy matter,” Petroleum Info. Corp., 976 F.2d at
1435, at least some portions of document withheld in full are likely non-exempt and can be disclosed. Instead, however, EPA has issued a blanket declaration that for nearly every document, “[t]here is no additional segregable information.” See, e.g., Supp. Vaughn Index at 1 (entry “PRD 85–86”). This conclusory statement is insufficient here because, given the context, it “does not ‘show with reasonable specificity why the documents cannot be further segregated’ and additional portions disclosed.” Hertzberg v. Veneman, 273 F. Supp. 2d 67, 90–91 (D.D.C. 2003) (citing Armstrong v. Exec. Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996)). “[A] blanket declaration that all facts are so intertwined to prevent disclosure under the FOIA does not constitute a sufficient explanation of non-segregability.” Wilderness Soc‘y, 344 F. Supp. 2d at 19. “Rather, for each entry the defendant is required to ‘specify in detail which portions of the document are disclosable and which are allegedly exempt.’” Id. (quoting Animal Legal Def. Fund, 44 F. Supp. 2d at 302 (emphasis in original)). Accordingly, if EPA intends to withhold any document, in full or part, and disclaims any segregable information, EPA must provide a particularized explanation of non-segregability for each document. Further, if EPA is withholding a document under the deliberative process privilege, EPA must explain how the withheld information reflects a discretionary mode of policy-making judgment.
4. EPA Has Not Sufficiently Justified its Withholdings Under the Attorney-Client Privilege
EPA also withheld five documents as protected by attorney-client privilege. See Supp. Vaughn Index at 3–5, 6–7, 7–8, 9–10, 36 (entries “PRD 517,” “Attachment to PRD 630 and 631,” “Attachment to PRD 632,” “Attachment to PRD 633,” and “WHF#3”). Using the same boiler-plate language for each document in the Vaughn indices, EPA claims that these five documents “present[] information and legal advice,” that the withheld information “contains communications between EPA attorneys relating to potential legal issues,” and that information was “circulated on a limited, need-to-know basis.” See Supp. Vaughn Index at 4–5, 6–7, 8, 9–10, 36. This meager information, however, is insufficient to conclude that the documents withheld were sent “for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding.” In re Grand Jury, 475 F.3d 1299, 1304 (D.C. Cir. 2007) (emphasis added) (internal quotation marks omitted). That a document was shared with or by an attorney does not magically render a communication privileged. EPA must, at the very least, (1) describe with sufficient particularity the nature of the legal issue or issues for which advice was sought; (2) explain whether the communications sought legal advice, conveyed legal advice, or both; and (3) provide evidence that the communications were confidential.19 Coastal States, 617 F.2d at 862–63 (attorney-client privilege “‘protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.’” (quoting Fisher, 425 U.S. at 403)); Mead Data, 566 F.2d at 252 (the attorney-client privilege shields only “confidential communications” between an attorney and client “relating to a legal matter for which the client has sought professional advice”). The “brief justifications fail[] to provide the Court with much of the information required to substantiate an attorney-client privilege claim.” Citizens for Responsibility & Ethics in Washington v. U.S. Dep‘t of Justice, 955 F. Supp. 2d 4, 21 (D.D.C. 2013).
* * *
Accordingly, for the foregoing reasons, summary judgment is denied to EPA for any current withholdings, without prejudice. EPA may either disclose the documents or must submit a supplemental declaration and Vaughn Index in the prescribed format that provides sufficient
information to assess whether the documents may be properly withheld under the deliberative process privilege or the attorney-client privilege. For documents withheld under the deliberative process privilege, EPA shall describe the relevant deliberative process, the role the document played in that process, the nature of the decisionmaking authority vested in the office or person issuing the document, and the positions in the chain of command of the parties to the documents. As for documents withheld under the attorney-client privilege, EPA shall show how the documents were “confidential communications” between an attorney and client “relating to a legal matter for which the client has sought” legal advice. Mead Data, 566 F.2d at 252. For any documents withheld, EPA shall also adequately explain why further nonexempt material cannot be segregated from any exempt material.
C. CBD‘S Procedural Claims
In addition to the FOIA claims, CBD asserts four claims based on alleged deficiencies in EPA‘s compliance with FOIA, including the agency‘s failure to provide an estimated date of completion, as required by FOIA,
As background for these claims, CBD explains that it sent EPA requests for status updates on the estimated completion date on three different occasions for two specific FOIA requests and on one
EPA responds that CBD “has failed to establish a factual basis sufficient to support” these claims, asserting that CBD “merely alleges that EPA‘s responses to its requests have been delayed” and that “delay alone, even repeated delay, is not the type of illegal policy or practice that is actionable.” Def.‘s Reply at 21 (citing Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988) and Judicial Watch, Inc. v. U.S. Dep‘t of Homeland Sec., 211 F. Supp. 3d 143, 147 (D.D.C. 2016) (stating that Payne Enterprises and its progeny recognize policy and practice clams that involve “more egregious, intentional agency conduct than mere delay”)).
In evaluating these claims, the fact is undisputed that EPA did not completely ignore CBD‘s requests. EPA was in direct contact with CBD regarding CBD‘s two FOIA requests, emphasizing that “due to the voluminous amount of records potentially involved in these requests and due to [EPA‘s] limited resources, it will take more than twenty business days to complete these requests.” Pl.‘s XMSJ, Attach. 20, Email from Earl Ingram, EPA, to Brett Hartl, CBD (Dec. 4, 2014), Ex. P at 1, ECF No. 17-20. Further, the parties conducted a conference call on December 16, 2014, during which EPA “explained that there was a voluminous amount of information received from the Subject Matter Experts and that upon review of any applicable FOIA exemptions, our office would continue to send information to you on an interim basis with the goal to be completed within 60 days.” Id., Attach. 22, Letter from Kimberly Smith, EPA, to Brett Hartl, CBD (Dec. 16, 2014), Ex. R at 1, ECF No. 17-22 (emphasis added). Indeed, according to CBD, EPA “assured [CBD] that the Center‘s FOIA request [would] be completed within 45-60 days, approximately between February 2nd and February 18th[, 2015.]” Id., Attach. 23, Email from Brett Hartl, CBD, to Earl Ingram and Larry Gottesman, Ex. S at 2, ECF No. 17-23. On this record, EPA did, in fact, provide CBD with anticipated, estimated dates of completion even if EPA did not actually comply with those dates.
CBD relies on Payne Enterprises as authority to proceed on the policy and practice claims set out in Counts II and IV, but this reliance is misplaced. The D.C. Circuit held in Payne Enterprises “that there ‘may very well be circumstances in which prolonged delay in making information available or unacceptably onerous opportunities for viewing disclosed information require judicial intervention.’” Payne Enters., Inc., 837 F.2d at 491 (quoting Lybarger v. Cardwell, 577 F.2d 764, 767 (1st Cir. 1978)).20 In Payne, however,
“For almost two years, officers at AFLC bases refused to fulfill Payne‘s requests for copies of bid abstracts when there was limited competition for a contract, thus forcing Payne to seek administrative review.” Id. at 494. Although “the Secretary‘s Office sent letters to AFLC commanders, admonishing them for their refusals to grant Payne‘s requests because no FOIA exemption applied,” “[t]he AFLC officers . . . continued to deny Payne‘s requests, and the Secretary refrained from taking firm action to end their recalcitrance.” Id. This is wholly unlike the situation here, where EPA not only disclosed documents, but took steps to communicate with CBD about the pending FOIA requests. CBD does not allege that EPA ever decided to refuse to produce any records. See Del Monte Fresh Produce N.A. v. United States, 706 F. Supp. 2d 116, 120 (D.D.C. 2010) (“Payne Enterprises regards the repeated denial of Freedom of Information requests based on invocation of inapplicable statutory exemptions rather than the delay of an action over which the agency had discretion.”). Consequently, the undisputed factual record does not support CBD‘s pattern and practice claims. Accordingly, summary judgment is granted to EPA on Counts I through IV.21
IV. CONCLUSION
For the foregoing reasons, the defendant‘s Motion for Summary Judgment is GRANTED in part and DENIED in part, without prejudice, and the plaintiff‘s Cross-Motion for Summary Judgment is GRANTED in part and DENIED in part, without prejudice.
Specifically, EPA is granted summary judgment with respect to CBD‘s procedural claims (Counts I, II, III and IV) and
CBD‘s motion for summary judgment is granted as to the inadequacy of EPA‘s search for responsive records, as alleged in Count V, but otherwise denied as to Counts I, II, III, IV, VIII and IX, and as to other claims, without prejudice.
An appropriate order accompanies this Memorandum Opinion.
Date: September 28, 2017
BERYL A. HOWELL
Chief Judge