MEMORANDUM OPINION
Plaintiffs Urban Air Initiative, Inc. and Energy .Future Coalition sent a Freedom of Information Act (“FOIA”) request to defendant Environmental Protection Agency (“EPA”) on February 9, 2015, seeking records related to the EPAct/V2/E-89 Tier 2 Gasoline Fuel Effects Study, known as the EPAct Study; Compl. [Dkt. # 1] ¶¶ 6, 14. After the parties engaged in discussions narrowing plaintiffs’ request and extending the deadline by which EPA had to respond, EPA provided an interim response on June 25, 2015, stating that while it was. actively-searching for-and reviewing documents, and planned to produce-them on a rolling basis, it could not even commit to be finished with the process before February of 2016. Id. ¶¶ 14-29.
On August 17, 2015, plaintiffs filed this lawsuit, alleging that EPA was “unlawfully delaying its determination on [plaintiffs’ request for records,” Compl. ¶ 31, and “unlawfully withholding responsive records” in violation of 5 U.S.C. § 552. Id. ¶39. After completing its production of documents, defendant filed' this -motion for summary judgment, arguing that it has now met its obligations under FOIA. Def.’s Mot. for Summ. J. [Dkt. #19] (“Def.’s Mot.”); Mem. of Law in Supp. of Def.’s Mot. [Dkt. # 19-2] (“Defi’s Mem.”). Plaintiffs opposed defendant’s motion and also filed a cross- . motion for partial summary judgment, maintaining that EPA did not conduct an adequate search and that it improperly withheld responsive records pursuant to FOIA Exemption 5. Pis.’ Opp.’<& Cross-Mot. fdr Partial Summ. J. [Dkt. #21] (“Pis.’ ¡Cross-Mot..”); Mem. in .Supp. of Pis.’ Cross-Mot. [Dkt. #21-1] (“Pis.’ Cross-Mem.”). Plaintiffs are only seeking summary judgment with respect to 198 record? withheld or redacted under Ex-emptioh 5’s deliberative process privilege.
Because -the Court finds that defendant has failed to establish that it conducted an adequate search for records under FOIA, it will deny defendant’s motion in part and remand the matter to the agency, However, the Court will grant defendant’s motion in part and deny plaintiffs’ motion since it has determined that EPA properly invoked Exemptions 4, 5, and 6 to withhold or redact all of the documents at issue, and it has produced all reasonably segregable information.
BACKGROUND
I. Factual Background
Plaintiff Urban Air Initiative, Inc. is an organization dedicated to educating the public about the health threats posed by the use of petroleum-based fuels. Compl. ¶3. Energy Future Coalition is a nonprofit organization that seeks to identify and advance practical solutions to energy and environmental policy challenges. Id. ¶ 4. This lawsuit arises out. of their interest in and inquiries about the EPAct/V2/E-89 Tier 2 Gasoline Fuel Effects Study, known as the “EPAct Study,” which was jointly supported by EPA, Department of Energy, and the Coordinating Research Council (“CRC”). Id. ¶ 6; Decl. of Kathryn Sar-geant [Dkt. # 19-3] (“Sargeant Deck”) ¶ 8.
In 2005, Congress directed EPA to produce an updated emissions model that considered the effect of individual fuel properties on emissions from vehicles. Sargeant Decl. ¶ 10. In order to create this model, which would become known as ■' the MOVES2014 model, EPA developed the EPAct Study. Id. Ultimately, the MOVES2014 model included data from a range of sources, including the EPAct Study. Id.
During, the design phase of the study, “EPA defined the scope.of the study, estimated costs, determined test procedures, and selected fuel parameters and vehicles.” Sargeant Decl. ¶ 13. To test vehicles on different fuels,, EPA engaged Southwest Research Institute (“SwRI”), Id. ¶ 12. Ultimately, the study “measured emissions from a fleet of 15 test cars and trucks from the 2008 model year using twenty-seven fuel blends.” Id, ¶ 16. EPA issued the study’s final report in April 2013. Id.. ¶ 17.
According to plaintiffs, the EPAct Study “was the basis for erroneous emissions factors” in the MOVES2014 model, which, plaintiffs claim, “will result in increased air pollution.” Compl. ¶ 7. So plaintiffs, along with the states of Kansas and Nebraska, petitioned for judicial review of the MOVES2014 model, partially on the basis of “pollution modeling errors that are the direct result • of defects in the EPAct study’s design.” Id. ¶ 10; see Ex. A to Compl.' [Dkt. # 1-1].
Plaintiffs submitted a FOIA request to EPA on February 9, 2015, in order to obtain information they needed to pursue their case. Compl. 1114; see Defl’s Statement of Material Facts as to Which There, are no Qenuine Issues [Dkt.; #19-1] (“Defi’s SOF”) ¶ 1; Pis.’ Resp. to Defi’s SOF [Dkt. #21-2] (“Pis.’ RéSp. SOF”) ¶ 1;
At defendant’s urging, plaintiffs narrowed their FOIA request on March 11, 2015, to information about specific contract and work assignments, as well as to 20 subtopics related to the “design phase” of the EPAct’study. See Def.’s SOF ¶¶4, 7; Pis.’ Resp. SOF ¶¶ 4, 7; Ex. D to Sargeant Decl. [Dkt. # 19-4]; Ex. F. to Sargeant Decl. [Dkt. #19-4] (“FOIA Request”). Plaintiffs defined the “design phase” of the study as “everything that preceded the emissions testing that resulted directly in the reported results of any phase of the EPAct study.” FOIA Request. Defendant confirmed the parameters of the narrowed request by letter on April 24, 2015. Defi’s SOF ¶ 9; Pis.’ Resp. SOF ¶ 9; Ex. G to Sargeant Decl. [Dkt. # 19-4]. Ultimately, plaintiffs’ request sought:
a. Work Assignment 1-08
b. Work Assignment 3-02
c. Contract EP-C-07-028
d. All records created, received and/or maintained by the Environmental Protection Agency (including, but not limited to, documents created by or received from, Southwest Research -Institute, Coordinating Research Council, other contractors, and their employees), that pertain to the “design phase of the EPAct/V2/E-89'Tier 2 Gasoline Fuel Effects Study and any of the following topics:
1. re-design of fuel matrices
2. [retracted]
3. [retracted]
4. [retracted]
5. [retracted]
6. fuel 26 as identified in Fuel Matrix Designs # 4, and fuel 26 as identified in Fuel Matrix Design # 5 (fuel 23 as identified in Fuel Matrix Design # 4)
7. fuel 27 as identified in Fuel Matrix Designs # 4, and fuel 27 as identified in Fuel Matrix Design.# 5 (fuel 24 as identified in Fuel Matrix Design # 4)
8. fuel 28 as identified in Fuel Matrix Designs # 4, and fuel 28 as identified in Fuel Matrix Design # 5 (fuel 25 as identified in Fuel Matrix Design # 4)
9. fuel 30 as identified in Fuel Matrix Design #5
10. fuel 31 as identified in Fuel Matrix Design # 5 ■
11. [retracted]
12. [retracted]
13. [retracted]
14. T50
15. [retracted]
16. “a problem in blending the fuels at ETOH=15%” (E15)
17. CRCE-67
18. CRC E-74b
19.. Southwest Research Institute (SwRI)
20. Coordinating Research Council (CRC)
21. Lubrizol Corporation
22. Haltermann Solutions
23. Rafal Sobotowski
24. Richard Gunst
25. James (Jim) Uihlein
26. Chevron
27. “Quality Management Plan” and “Quality Assurance Project Plhn”
28. Science Advisory Board
FOIA Request.
On June 15, 2015, EPA asked plaintiffs to agree to extend the deadline for the production of documents because of the “broad scope of the request” and the “significant amount of EPA’s time and resources” required to complete the request. Defi’s SOF' ¶ 12; Pis.’ Resp. SOF ¶ 12; Ex. I to Sargeant Deck [Dkt. # 19-4]. It projected that it would be able to complete its response to plaintiffs’ request by February 15, 2016. Def.’s SOF ¶12; Pis.’ Resp. SOF ¶ 12; Ex. I to Sargeant Decl. [Dkt. # 19-4]. Plaintiffs responded on June 17, 2015, and agreed to extend the response date for “all native electronic documents” to September 16, 2015, and for all other documents to October 28, 2015. Ex. J to Sargeant Deck [Dkt. # 19 — 5]. Finally, on June 25, 2015, defendant sent a letter to plaintiffs stating that it was “unable to commit to final completion of [the] request before February 2016,” but that it was “actively engaged in searching and reviewing documents and [would] be providing information to [plaintiffs] on a rolling basis.” Ex. K to Sargeant Deck [Dkt. # 19-5]. EPA maintained that this was an “interim response and [plaintiffs would] receive appeal rights in EPA’s final response.” Id. at 2. With this letter, defendant released three documents, including two work assignment records and a redacted contract. Id.
II. Procedural History
Because EPA did not respond to plaintiffs’ FOIA request within the statutorily-required period of time, see Compl. ¶¶ 15-29, 31-37; 5 U.S.C. § 552(a)(6)(A)-(C), plaintiffs - filed this lawsuit on August 17, 2015. Defendant filed an answer on November 12, 2015.- Answer [Dkt. # 5]. On December 11, 2015, defendant filed a status report in which it proposed a schedule of production through May 31, 2016. Def.’s Status Report & Doc. Produc. Schedule [Dkt. # 7] at 1-2. In the report, defendant stated that it had released a total of forty-three documents to plaintiffs since the filing of the complaint on three separate occasions: October 15, 2015 (nine records in full); November 5, 2015 (twenty-eight records in full and one with redactions); and November 20, 2015 (two records in full and three with redactions). Id. at 3; - see also Def.’s SOF ¶ 44; Pis.’ Resp. SOF ¶ 44; Ex. N to Sargeant Decl. [Dkt. # 19-5]; Ex. O to- Sargeant Decl. [Dkt. # 19-5]; Ex. P to Sargeant Decl. [Dkt. # 19-5].
Plaintiffs proposed an alternative production schedule on December 15, 2015, and requested that the Court “order EPA to prioritize responsive email records, producing those documents on a rolling basis beginning immediately, and no later than January 21, 2016.”- Pis.’ Status Report & Resp. to EPA’s Doc. Produc. Schedule [Dkt. # 8] at 1-2. Because the parties could not agree on a proposed' schedule, the Court referred the action to a Magistrate Judge for mediation, which was unsuccessful. Order (Dec. 21, 2015) [Dkt. # 9]; Pis.’ Status' Report & Renewed Proposal for FOIA Produc. Schedule [Dkt. # 10] at 1-2. Defendant continued producing documents according to its preferred schedule, and on January 7, 2016, the agency produced 684 records in full. Def.’s SOF ¶ 44; Pis.’ Resp. SOF ¶ 44; Ex. Q to Def.’s Mem. [Dkt.. # 19-5]. Subsequently, the Court set its own schedule for the production of the remaining documents. Min. Order (Jan.-13, 2016).
Over the course of the next six months, defendant continued to produce documents to plaintiffs on a rolling basis until it determined that it had completed processing plaintiffs’ FOIA request. See Joint Status Report [Dkt. # 17] at 6. On January 15, 2016, defendant produced 412 records in full, 33 with redactions, and it withheld 77' records in full pursuant to FOIA Exemptions 4 and. 5. Def.’s SOF ¶ 44; Pis.’ Resp. SOF II44; Ex. R to Sargeant Decl. [Dkt.# 19-5], On January 29, 2016, EPA produced 557 records in full, 57 records with redactions, and it withheld 43 records in- full pursuant to FOIA Exemptions 4 and 5. Def.’s SOF ¶ 44; Pis.’ Resp. SOF ¶ 44; Ex. S to Sargeant Decl. [Dkt. # 19-5]. On February 12, 2016, defendant produced 837 records in full, 24 records with redactions, and it withheld 29 records in full pursuant to FOIA Exemptions 4 and 5. Def.’s SOF ¶ 44; Pis.’ Resp. SOF '¶ 44; Ex. T to Sargeant Decl. [Dkt. # 19-5]. And on February 29, 2016, EPA produced 1,075 records in full, 149 records with redac-tions, and it withheld 188 records in full pursuant to FOIA Exemptions I and'5. Def.’s SOF ¶ 44; Pis.’ Resp. SOF ¶ 44; Ex. U to Sargeant Decl. [Dkt. # 19-6],
Defendant released another 114 records in,full on May'25, 2016, after certain businesses waived confidentiality, and it produced another 150 records not entitled to confidential treatment in full or in part on June 22, 2016. Def.’s Status Report [Dkt. # 16]; Ex. V to Sargeant Decl. [Dkt. # 19-6]; Ex. W to Sargeant Decl. [Dkt. # 19-6] (“Ex. W”). At this point, EPA concluded its production of records in response to plaintiffs’ FOIA request. Ex. W.
On September 2, 2016, defendant filed a motion for summary judgment, arguing that it has- met its obligations under FOIA. Def.’s .Mem. at 1. Defendant insists that “[t]he EPA has fully responded to [plaintiffs’ request,” id. at 2, by “producing] more than 4,000 documents in full or in part, only withholding documents and information that are exempt from disclosure under 5 U.S.C. §§ 562(b)(4), (b)(5), and (b)(6).” Id. at 4; see also Ex. HH to Def.’s Mem. [Dkt. # 19-11] (¿‘Vaughn index”);
Plaintiffs filed a cross-motion for partial summary judgment on October 14, 2016, maintaining that EPA withheld responsive records pursuant to FOIA Exemption 6 that are hot properly exempted because “[t]he deliberative process privilege does not exempt from disclosure deliberations regarding the design of a scientific study because they do not relate to any ‘policy-oriented judgment.’ ” Pls.’ Cross-Mem. at 16, quoting Petroleum Info. Corp. v. Dep’t of Interior,
On January 17, 2017, defendant filed- an opposition to plaintiffs’ cross-motion and a reply in support of its motion for summary judgment, contending that because plaintiffs had not challenged defendant’s invocation of FOIA Exemptions 4 and 6, they had conceded their applicability. See Def.’s Reply at 3.
Plaintiffs filed a cross-reply on March 31, 2017. Pis.’ Cross-Reply. Despite defendant’s additional productions, plaintiffs confirm that they are seeking summary judgment on 198 records redacted under Exemption 5, two records redacted as partially non-responsive, and all remaining email attachments that were not produced on the basis that they were non-responsive. Id. at 5.
On June 5, 2017, defendant filed a sur-reply in which it clarified that it had inadvertently failed to release the two redacted records that plaintiffs sought summary judgment on in their cross-reply. Def.’s Sur-Reply at 2, EPA rectified the issue by producing the two records in full to plaintiffs on May 25, 2017. Id. at 2-3; Ex. 1 to Def.’s Sur-Reply [Dkt, #36-1]. And, in two separate filings with the Court, defendant confirmed that it has produced all e-. mail attachments to responsive records that it originally withheld as non-responsive. Resp. to Court’s Min. Order [Dkt. # 45]; Resp. to Court’s Order [Dkt. # 48].
Pursuant to the Court’s orders on June 27, 2017, and July 6, 2017, the parties delivered a representative sample of documents withheld under Exemption 5 to chambers for in camera inspection to assist the Court in making a responsible de novo determination. See Ray v. Turner,
STANDARD OF REVIEW
In a FOIA case, the district court reviews the agency’s decisions de novó and “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey,
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes , demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc.,
“Summary judgment may be granted on the basis of agency affidavits” in FOIA cases, when those affidavits “contain reasonable specificity of detail rather than merely conclusory statements,” and when “they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Judicial Watch, Inc. v. U.S. Secret Serv.,
Even if the nonmoving party fails to respond to the motion for’ summary judgment, or portions thereof, a court cannot grant the motion for the reason that it was conceded. Winston & Strawn, LLP v. McLean,
ANALYSIS
FOIA requires the release of government records upon request. Its purpose is “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co.,
To prevail in a FOIA action, an agency must first demonstrate that it has made “a good faith effort to conduct a search for the requested records, r using methods which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep’t of Army,
I. EPA’s search was inadequate.
A. Legal Standard
Because a fundamental principle behind FOIA “is public access to government documents,” courts require “agencies to make more than perfunctory searches and, indeed, to follow through on obvious leads to discover requested documents.” Valencia-Lucena v. U.S. Coast Guard,
To demonstrate that it has performed an adequate search for responsive documents, an agency must submit' a reasonably detailed affidavit describing the search. Oglesby,
“Agency affidavits are accorded a presumption of good faith,” Safecard Servs., Inc.,
While defendant has submitted a declaration in an attempt to meet its burden with regard to the adequacy of the search, the declaration does not inspire confidence that the agency .has conducted a search that is reasonably calculated to uncover all relevant documents. Therefore, the Court will remand the case to the agency. ,
B. EPA’s Search
To describe its search for records in this case, EPA proffered the declaration of Kathryn Sargeant, the Deputy Director of the. Assessment and Standards Division (“ASD”) of the Office of Transportation and Air Quality (“OTAQ”) and the Office of Air and Radiation (“OAR”) at the EPA. Sargeant Deel. ¶ 1. Once OTAQ received the FOIA request at issue, it assigned the request to ASD bécause that division was responsible for designing the EPAct Study. Id.' ¶¶ 18-19. Sargeant oversees ASD staff in responding to FOIA requests assigned to the division. Id. ¶ 6.
EPA initiated its search by identifying employees who were reasonably likely to be in possession of responsive records. Sargeant Decl. ¶ 26. The declaration avers that ten-ASD staff members
More specifically, EPA instructed the custodians to search for responsive records in “electronic files in each employee’s C: drive, network drives, thumb drives, and any documents that are attached to emails; and [ ] paper files in each staff member’s office or file cabinets.” Sargeant Deck ¶ 31. After completing a search, the custodian was directed to upload electronic files to the share drive, and to manually scan any hard copy records. Id. “EPA staff members who were most familiar with the collection of the EPAct files on the EPA’s network share drives were als'o asked to search those drives for material responsive to the FOIA'request.” Id. Further, “each ■custodian verified,” either verbally or via e-mail, that he or she had completed the search for paper files. Id. ¶ 32.
Additionally, EPA’s Office of Environmental Information' (“OEI”), which is the agency’s information technology office, searched the ten custodians’ Lotus Notes e-mail boxes for responsive records. Sar-geant Deck ¶ 33. The declaration ’ avers that EPA used Lotus Notes as its email application throughout the relevant dates responsive to the FOIA request — January 1, 2006 to March 3, 2009. Id. “The search request submitted to OEI included the following terms: Haltermann, Gunst, Uih-lein, fuel 23, fuel 24, fuel 25, fuel 26, fuel 27, fuel 28, fuel 30, fuel 31, EPAct and v2 and E-89, T50, E15, E-67, E-74, Southwest, Institute, SwRI, CRC, council, Lu-brizol, Rafal, Sobotowski, Chevron, Quality Management. Plan,. QMP, Quality Assurance Project Plan, QAPP, Science Advisory Board, SAB, chevron.com, swri.org, jhaltermann.com; and crcao.org.” Id. ¶ 34.
Any-records identified as a result of the searches were imported into. Relativity, a computer software program used to review documents. Sargeant Decl. ¶¶ 35, 37. Ultimately, EPA’s search of office electronic and paper files located approximately 4,000 electronic records, 11 binders, and 100 pages of paper files. Id. ¶ 36. In total, EPA produced approximately 3,980 records in full, 196 records with redactions, and 136 records withheld in full. Id. ¶ 49.
C. Adequacy of the Search
Plaintiffs challenge the adequacy of the search, arguing that EPA misinterpreted the scope of their request by restricting the search to documents generated prior to March 3, 2009. Pis.’ Cross-Mem. at 28. Plaintiffs’ request sought documents “relate[d] to the design phase” of the EPAct Study, which plaintiffs defined as “everything that preceded the emissions testing that resulted directly in the reported results of any phase of the* EPAct study.” FOIA Request.
While plaintiffs did narrow their request to the design phase of the study, they contend that this phase did not end “until at least 37 weeks after March 3, when EPA settled on the vehicles to be included in the testing protocols, finalizing the designs of the emissions tests that produced the EPAct Study’s results.” Pis.’ Cross-Mem. at 28-29; Final Report on Program Design & Data Collection, Ex. B to Conde Decl. [Dkt, ,# 22-1] (“Final Report”) at B-51. Further, they maintain that EPA “was still making decisions about which fuels to test for particular pollutants, and what their parameters should be, as of March 11, 2009.” Pis.’ Cross-Mem. at 29; Ex. AA to Conde Decl. [Dkt. #22-2], Plaintiffs also argue that the search was not reasonably calculated to uncover all relevant documents because “EPA failed to search the files of several custodians ..., and EPA failed to search. for entire categories of documents.” Pis.’ Cross-Mem. at 29.
In response, EPA informed the Court that its original declaration contained an inadvertent error identifying March 3, 2009 as the search end date when the agency had actually searched for records through March 12, 2009, when EPA maintains that the design phase ended. Def.’s Reply 'at 11; Sargeant Suppl. Decl. ¶4. Although this clarification addresses one of plaintiffs’ concerns, it does not resolve the question of whether the agency should have searched for records generated after that date. . ' '
Defendant takes the position that because some emissions tests began on March 12, 2009, that marked “the end of the ‘design phase.’” Def.’s Reply at 11. Plaintiffs’ narrowed request sought records pertaining'to the “design phase” of the EPAct Study.' See id. EPA chose to treat the design phase and emission test phase as distinct, and it insists that “[t]he choice of March 12, 2009 as an end date was meant to ensure that [it] captured records generated preceding the emissions testing^” Def.’s Reply at 11.
But' “[t]he agency [is] bound to read .[the request] as drafted, not as [] agency officials ... might wish it was drafted,” Miller v. Casey,
■ While' plaintiffs clearly narrowed their request to distinguish records related to the design of the tests to be utilized from the results of the tests themselves, the request is broad enough to cover any efforts to fine tune and finalize the design of the study that may have occurred even after sonae initial testing had begun. See Nation Magazine,
The Court has additional concerns with the adequacy of EPA’s search. The.declaration asserts that ten custodians were “reasonably likely to be in possession of [ ] responsive records” because “they were substantively involved in the .... design phase of the EPAct Study,” Sargeant Decl. ¶26, but it does not aver that no other custodians were likely to possess responsive documents. See Oglesby,
With regard to OEI’s search, the declaration also falls short because the search terms OEI used in and of themselves raise doubt with the Court that defendant performed an adequate search. Plaintiffs sought documentation related to a number of topics, many of which were included as search terms. See Sargeant Decl. ¶ 34; FOIA Request. However, some topics, such as “re-design of fuel matrices,” were not included in the .search in any way, and the declaration does not attempt to explain why this is the case. Moreover, the declaration states that OEI conducted a search of the Lotus Notes e-mail boxes without explaining why this was the only document location searched and without averring that “no other record system was likely to produce responsive documents.” Oglesby,
• Therefore, the Court finds that the declaration does not describe an adequate search and summary judgment for the agency is inappropriate at this time.
II. EPA’s withholdings and redactions were justified under Exemptions 4 and 6.
Turning to the records that EPA identified and either redacted or withheld, the agency argues that it properly invoked Exemptions 4 and 6. Plaintiffs do not address this contention in their opposition. Defendant urges the Court to grant summary judgment in its favor since plaintiffs “conceded the EPA’s use of these exemptions.” Def.’s Reply at 3. But the Court does not believe that it may use a plaintiffs failure to respond on an issue as the sole basis to grant summary judgment on that issue in light of the D.C. Circuit’s holding in Winston & Strawn,
A. Exemption 4
FOIA Exemption 4 prohibits' disclosure of “trade • secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). The D.C. Circuit has given the terms in this exemption their “ordinary meanings,” Nat’l Ass’n of Home Builders v. Norton,
Whether commercial or financial information is protected turns in part on whether it was provided to the government agency voluntarily or under compulsion: if the information was disclosed voluntarily, it will be considered confidential for purposes of Exemption 4 if it- is the kind of information “that would customarily not be released to the public by the person from whom it was obtained.” Critical Mass Energy Project v. NRC,
EPA withheld approximately forty-eight records (forty-one released with redactions, and six withheld in full) under FOIA Exemption 4. Sargeant Decl. ¶ 58. It asserts that the information withheld falls into one of three categories: “(1) data, experiences, approaches, and methodologies; (2) proprietary processes, organization of reports and analyses, facilities, and equipment; and (3) financial information.” Id. Defendant argues that “there cannot be any dispute” that the withheld information from the previously named categories is “commercial information.” Def.’s Mem. at 9-10.
EPA’s declarant avers that EPA asked its sources if they were asserting any claims to potential confidential business information (“CBI”) in responsive records. Sargeant Decl. ¶¶ 60-61. Once EPA received responses from the businesses, it made confidentiality determinations regarding the information. Id. Chevron Phillips Chemical Company (“Chevron Phillips”) and Southwest Research Institute (“SwRI”) did not waive their confidentiality claims, so the agency redacted their claimed CBI. Id. ¶¶ 65-66, 70-71. And. in its final determination concerning confidentiality as to both entities, EPA concluded that all- of the documents at issue were required submissions.' See Ex. JJ to' Sar-geant Decl. [Dkt. # 19-7] at 3; Ex. II to Sargeant Decl. [-Dkt. # 19-6] at 3. Thus,the agency contends that all of the redacted information is entitled to confidential treatment because the “release of the records at issue — which Chevron Phillips and SwRI protect from- disclosure to both competitors and the public alike — would likely cause substantial competitive harm” -Def.’s Mem, at 10-11.
More specifically, EPA insists that the redacted Chevron Phillips ‘ information, which mostly consists of non-public pricing information, “would allow competitors to use the information to underbid Chevron Phillips or. offer-more favorable-commercial terms resulting in lost business opportunities to the company.” Def,’s.Mem. at 11-12. And with regard to SwRI, the agency posits that, disclosure of the redacted information would, among other things, allow. .other entities to gain insight into SwRI’s confidential and proprietary information .and strategies, take advantage, of techniques and approaches developed by SwRI without any cost, and, access confidential financial information that would allow competitors to anticipate SwRI’s fees and allow competitors to underbid SwRI in the ' future. Id. at 12-14, citing Decl., of Ronald B, Kalmbaeh [Dkt. # 19-12] ¶¶ 12-17.
Because courts generally defer to the agency’s predictive judgments as to substantial competitive harm, United Techs. Corp.,
B. Exemption 6
FOIA Exemption 6 bars disclosure of “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The term “similar files”'has been- interpreted to include “all information that applies to a particular individual.” Lepelletier v. FDIC,
The D.C, Circuit has recognized a broad concept of personal privacy, see, e.g., Horowitz v. Peace Corps,
Defendant released approximately ten records with redactions under Exemption 6, and provided explanations for those redactions in its Vaughn index and affidavit. See, e.g., Vaughn index at 164; Sargeant Decl. ¶¶ 81-86. The information redacted includes “EPA employees’ personal medical information, contact information, and leave plans, and conference call-in information.” Sargeant Decl. ¶ 81. EPA argues that the individuals have a privacy interest in all of the redacted information, and that “the harm to the individual as a result of disclosure far outweighs the public interest in such disclosure.” Def.’s Mem. at 20.
Because plaintiffs do not challenge any of the redactions under Exemption 6, they have not identified any public interest in the disclosure of this information. Where the court has “been shown no public interest in, and a modest personal privacy interest against disclosure,” the court “need not linger over the balance; something, even a modest privacy interest, outweighs nothing every time.” Nat'l Ass’n of Retired Fed. Emps. v. Horner,
III. EPA’s withholdings and redactions under Exemption 5 were justified.
A. Legal Standard
Exemption 5 permits agencies to withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). A document may be properly withheld under Exemption 5 only if (1) its source is a government agency, and (2) it falls “within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Dep’t of Interior & Bureau of Indian Affairs v. Klamath Water Users Protective Ass’n,
“The deliberative process privilege'rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery,” and its purpose “is to enhance ‘the quality of agency decisions’ by protecting open and frank discussion among those who make them within the Government.” Klamath,
For a document to be predecisional, the agency does not have to “point to an agency final decision;” it may “merely establish what deliberative process is involved, and the role [] that the documents at issue played in that process.” Judicial Watch, Inc. v. Export-Import Bank,
In this case, plaintiffs challenge the withholding or redaction of 198 documents
B. Exemption 5 Analysis
Plaintiffs have divided their challenge into seven categories of documents, which are identified further in the declaration of James R. Conde. See Pls.’ Cross-Mem. at 16-18; Conde Decl. ¶¶ 48-60. But, plaintiffs maintain that “the documents identified within groups 1 through 7 all suffer from the same defect:” they reflect deliberations that are technical in nature and that “do not relate, to any ‘policy-oriented judgment.’ ” Pls.’ Cross-Mem. at 16-18 & n.8, quoting Petroleum Info. Corp. v. Dep’t of Interior,
To support their argument, plaintiffs primarily rely- on Petroleum Info. Corp. v. Dep’t of Interior,
Plaintiffs’ almost exclusive reliance on this case is misplaced. First, there is no indication that any of the withheld or redacted information in this case was publicly available, and plaintiffs do not argue this point. Further, EPA’s task cannot be compared to a mere effort to organize existing records. The agency was instructed by Congress to create an updated emissions model, which would then be used by various states to implement requirements of the Clean Air Act. See Sargeant Decl. ¶¶ 9-10. In order to accomplish this goal, the agency decided to develop the EPAct Study and incorporate its conclusions into the emissions model. Id. ¶ 10. EPA conducted the study in partnership with consultants from the energy industry, and as plaintiffs acknowledge, throughout the process it had to make critical decisions about “what types .of fuel blends it could and should test to create a study capable of generating [emissions effect] output.” Pis.’ Cross-Mem. at 18, Moreover, “EPA defined the scope of the study, estimated costs, determined.test procedures, and selected the fuel parameters and vehicles.” Sargeant Decl. ¶ 13.
These sorts of decisions, which the agency reáched through the exchange of emails and other internal agency records as identified in the Vaughn index, are exactly the type of agency judgments that the deliberative process privilege 'protects. All of these choices were committed to the expertise and judgment of EPA, and the fact that the internal discussions' leading up to the final conclusions entailed considerations of scientific principles does not mean that those discussions were not “deliberative.” For example, some of the withheld information- “reflects the options available for the study and EPA employee evaluation of those options,” Vaughn index at 157, and these -discussions “contributed to the [a]gency’s decision-making process both in designing the study’s testing and allocating funding.” Id. Agency personnel engaged in extended discussions and analysis in order to execute the study, and EPA did far more than merely “reorganize and repackage a mass of dispersed public information.” Petroleum,
Plaintiffs argue that scientific deliberations are not protected because they do not “further Exemption 5’s core purpose of enhancing the quality of agency deliberations.” Pls.’ Cross-Mem. at 19. But this theory makes little sense when an agency’s core mission is directly related to and affected by science. See ABOUT EPA, https://www.epa.gov/aboutepa/our-mission- and-what-we-do (last visited Sept. 13, 2017) (“EPA’s purpose is to ensure that: ... national efforts to reduce environmental risk are based on the best available scientific information.”). Defendant’s Vaughn index explains that the release of the information withheld would “have a chilling effect on the [a]gency’s ability to have open and frank discussions among its staff and with its contractors concerning budgetary options and study designs,” as well as “options or ideas that may not ultimately be selected for [a]gency action.” See e.g., Vaughn index at 56, 157-58. Further, the Vaughn index states that disclosure of these records would undermine “EPA’s ability to perform its basic functions,” and it, “could cause public confusion” 'if certain “reasons, rationales, and conclusions that were not in fact, ultimately the position, of the EPA” were released. Id.
Therefore, after analyzing the agency’s Vaughn index and conducting an in camera review of a representative sample of documents withheld or redacted under Exemption 5, the Court is satisfied that the documents within each of the seven categories identified by plaintiffs were properly withheld or redacted pursuant to Exemption 5.
IY. EPA has met its segregability requirement.
After asserting and explaining the use of particular exemptions, an agency must release “[a]ny reasonably segrega-ble portion of a record,” 5 U.S.C. § 652(b), unless the non-exempt portions are “inextricably intertwined with exempt portions” of the record. Mead Data Cent., Inc.,
Plaintiffs argue that “EPA has offered no evidence that it fulfilled its obligation to produce all reasonably segrega-ble responsive information as to all records challenged by [plaintiffs.” Pis.’ Cross-Mem. at 33. They insist that defendant’s Vaiughn index contains nothing more than “boilerplate explanations of its segregation determination” and “unsophisticated parroting of FOIA’s statutory language.” Id. at 33-34 (internal citation omitted).
EPA has provided a comprehensive, 277 page, Vaughn index, as well as a 25-page supplemental Vaughn index, that describe each document withheld and the exemption under which it was withheld, and both state that no additional reasonably segregable information could be released. See generally Vaughn index; .Suppl. Vaughn index. In addition, EPA’s declarant avers that the agency “conductéd a line-by-line review of each record responsive to the request for segregability of non-exempt information,” “records were redacted for exempt material and the reasonably seg-regable non-exempt portions released,” and agency reviewers “determined that where a record was withheld in full, no meaningful portion could reasonably be released.” Sargeant Decl. ¶ 42. Further, the declarant justifies defendant’s inability to redact additional information from these documents by asserting. that disclosing that information would still reveal internal agency analysis and decisions. Id. ¶¶43-45.
Although each side accuses the other of “cherry-picking” certain documents in its favor to prove its point, see Pls.’ Cross-Mem. at 34-36; Def.’s Reply at 22, a review of both Vaughn indexes reveals that defendant provided a segregability explanation for every document, and it made a diligent effort to individualize the segregation determinations. See, e.g., Vaughn index at 3 (“There is no additional reasonably segregable information in this briefing beyond what has been produced. Re-dactions were only made to two pages of the 11 page briefing and to the extent there are facts,- contained in the two withheld pages of this briefing, the selection of those facts are an integral part of the deliberations in selecting final program options.”) (emphasis added). Even if some of the agency’s explanations are similar, if not identical, that finding does not preclude summary judgment because sometimes “categorization and repetition provide efficient vehicles by which a court can review withholdings that implicate the same exemption-for similar reasons.” Judicial Watch, Inc.,
Therefore, considering all of the segregation determinations in combination with defendant’s declaration, the Court is satisfied that the agency has met its segrega-bility requirement. See Juarez,
CONCLUSION
For the foregoing: reasons, , the Court concludes that EPA’s declaration does not describe an adequate search in response to plaintiffs’ FOIA request,-Therefore, defendant’s motion for summary judgment will be DENIED IN' PART, and the Court will remand the. case to the agency. The agency is instructed to conduct a further search for responsive records, to provide a more detailed justification for the adequacy of the searches, and ,to release any reasonably segregable non-exempt material to plaintiffs- consistent -with, FOIA. With respect to the documents EPA redacted or withheld pursuant to FOIA Exemptions 4, 5, or 6, the Court finds that EPA properly-invoked the exemptions and that it met its segregability requirement. Thus, defendant’s motion for summary judgment will be GRANTED IN PART, and plaintiffs’ motion for partial summary judgment will be DENIED.
A separate order will issue.
Notes
. Plaintiffs originally sought summary judgment on two other issues — "two records redacted as partially non-responsive, and all remaining email attachments redacted as non-responsive” — but those issues are now moot. See Pis.’ Cross-Reply at 5; Def.’s Sur-Reply [Dkt. # 36] ("Def.’s Sur-Reply”); Resp. to Court’s Min. Order [Dkt, # 45]; Resp. to Court's Order [Dkt. # 48],
. Pursuant to Local Rule 7(h), both parties submitted statements of material facts. In support of their cross-motion for summary judgment, plaintiffs provided a Separate Statement of Material Facts, but it does not appear that defendant ever responded to that separate statement. See Pis.' Separate Statement of Material Facts as to Which There are no Genuine Issues [Dkt. #21-2] ("Pis.’ SOF”). In opposition to plaintiffs' cross-motion, and reply in support of its own motion for summary judgment, defendant provided a Second Statement of Material Facts, but it never addresses plaintiffs' Separate Statement of Material Facts. See Def.’s Second Statement of Material Facts [Dkt. # 28-1] ("Def.’s Second SOF”). Plaintiffs do, though, respond to defendant's Second Statement of Material Facts. See Pis.' Resp. to Def.’s Second SOF [Dkt. # 34-1] (“Pis.’ Resp. Second SOF”).
. A complete list of the- withholdings being challenged by plaintiffs is contained within the Declaration of James R. Conde. Decl. of James' R. Conde, Ex, 3 to Pis.’ Cross-Mot. [Dkt. #21-3] ("Conde Decl.”) ¶¶ 48-61. Defendant points out in its reply that the Conde declaration was unsigned and merely submitted by plaintiffs’ attorney. Def.’s Opp. to Pis.’ Cross-Mot. & Reply in Supp. of Def.’s Mot. -.[Dkt. #30] ("Def.’s Reply”) at 2 n.2. However, plaintiffs have since filed a notice of errata and attached a signed copy of die declaration. Notice of Errata [Dkt. # 33].
. In their cross-motion, plaintiffs state that they are challenging "EPA Exemption 4 claims for vagueness only.” Pis.’ Cross-Mem. at 12 n.7. Plaintiffs clarify that they still "seek summary judgment to the extent EPA asserts the deliberative process privilege applies to these records,” id., and they contend that the records redacted under both Exemption 4 and 5 “suffer from the same defect" as all of the other documents withheld or redacted under Exemption 5, Id. at 17 n.8,
. On December 8, 2016, after re-reviewing its Exemption 5 withholdings' for communications between EPA- and outside parties, defendant produced six documents in.full that had previously been withheld in part or in full, Def.’s Second SOF ¶ 24; Pis.’ Resp. Second SOF ¶ 24; Def.’s Reply at 4; ,Pls.’ Cross-Reply at 3-4; Suppl. Decl. of Kathryn Sar-geant [Dkt. #28-2] ("Sargeant Suppl. Deck”) ¶ 16; Ex. 2 to Sargeant Suppl, Decl. [Dkt. # 28-3], Two weeks later, defendant released a total of 180 documents "in an effort to narrow' the issues” that it had -previously identified as non-responsive e-mail attachments; it released 149 records in full and 31 records in part, and it withheld 4 additional records in full. Def.’s Second SOF IT 25; Pis.’ Resp. Second^ SOF ¶ 25; ' Sargeant Suppl. Decl. ¶ 17; -Ex. 3 to Sargeant Suppl. Decl. [Dkt. # 28-3], Thirty records released in part contain information withheld under Exemption 4, and one record contains information ' withheld under Exemption 5. Ex. 3 to Sar- ' geant Suppl. Decl. [Dkt. # 28-3]. Three records were withheld in full pursuant to Exemption 4, and one record was withheld in full under Exemptions 4 and 5. Id. EPA provided plaintiffs with a supplemental Vaughn index for these withholdings. See Ex. 4 to Sargeant Suppl. Decl. [Dkt. # 28-3] ("Suppl. Vaughn index”).
. Plaintiffs argue that EPA has not produced all non-respo.nsive e-mail attachments since they can identify certain e-mail attachments in defendant’s Vaughn index that have yet to be produced. Reply Concerning the Court’s Min. Order [Dkt. # 46]; Reply Concerning the Court's Min. Order [Dkt, # 49], However, EPA clarified that the identified e-mail attachments were not produced because they are duplicates of already-produced documents. ' See Def.’s Consent Mot. for Extension of Time [Dkt. # 47]. Moreover, EPA conducted a full review of its production of non-duplicative, non-responsive e-mail attachments and con- . firmed that it has indeed produced all of them to plaintiffs. Resp. to Court’s Order [Dkt. # 48]. The Court concludes that the legal issue concerning the production, of all non-responsive e-mail attachments-is moot since EPA has agreed to produce all of the documents. The Court's Order will address the steps that must be taken to resolve any remaining disputes concerning the agency’s compliance with this obligation,
. The following individuals were identified as custodians of potentially responsive records: Kathryn Sargeant, Paul Machiele, Christine Brunner, Aron Butler, Rich Cook, Marion Hoyer, Ed Nam, Rafal Sobotowski, Catherine Yanca, and Connie Hart. Sargeant Deck ¶ 27.
. Even defendant’s supplemental declaration suffers from the same omission. See Sargeant Suppl. Decl. ¶ 6 ("[T]he ten custodians were identified as those reasonably likely to possess responsive records due to their substantive involvement in the design of the EPAct Study.”).
. As of the filing of plaintiffs' cross-motion,' plaintiffs were challenging the withholding or redaction of 203 records, arguing that they were outside of the scope of Exemption 5’s deliberative process privilege. Pis.' Cross-Mem. at 16; Pis.' Cross-Reply at 3. Included in those 203 documents were six records that plaintiffs contended were not "inter-agency” records. Pis.' Cross-Reply at 4, Defendant subsequently released those six records to plaintiffs in full. Pis.’ Cross-Reply, at 4; see Ex. 2 to Sargeant Suppl. Decl. [Diet. # 28-3]; Def.'s Second SOF ¶ 24; Pis.’ Resp. Second SOF ¶ 24. Then defendant produced a set of documents on December 21, 2016, one of which was redacted under Exemption 5. Pis.' Cross-Reply at 4-5; see Ex 3 to Sargeant Suppl. Decl. [Dkt. # 28-3] And plaintiffs are now challenging those redactions as outside of the scope of the deliberative process privilege as well. Pis.' Cross-Reply at 5.
. In their cross-motion, plaintiffs argued that EPA unlawfully invoked Exemption 5 to ' Withhold or redact several records containing information it shared with the petroleum industry. Pis,' Cross-Mem. at 22-27. This issue is now moot because defendant produced the six documents af issue. See Def.’s Reply at 3-.4; Pis,’ Cross-Reply at 4-5.