Bd. of Comm'rs of Clermont Cnty. v. EPA, No. 17-389, 2021 WL 391715 (S.D. Ohio Feb. 4, 2021) (Cole, J.)

Bd. of Comm'rs of Clermont Cnty. v. EPA, No. 17-389, 2021 WL 391715 (S.D. Ohio Feb. 4, 2021) (Cole, J.)

Re:  Request for records concerning now-closed hazardous waste disposal facility

Disposition:  Granting defendant's motion for summary judgment

• Exemption 5, Deliberative Process Privilege & Attorney-Client Privilege:  "[B]ased on the Court's review of the materials, EPA has carried its burden of demonstrating that the materials are exempt from disclosure under FOIA Exemption 5 on the bases asserted by EPA."  The court relates that "EPA asserts the deliberative-process privilege as to thirty-six records which, EPA claims, fall into three general categories: draft PowerPoint presentations about the site; (2) EPA staff-level geologist notes and opinions; and (3) internal emails among EPA staff."  "For its part, [plaintiff] does not appear to contest that the documents at issue are 'predecisional.'"  First, "the Court agrees with EPA that the draft PowerPoint presentations included in the Vaughn index . . . fall within the deliberative-process privilege."  The court finds that "[t]he fact that these slides are being presented to others within the agency as 'drafts' would suggest that the author may be seeking deliberative input as to whether his or her initial conclusions, as referenced on the drawings, are accurate, or should be revised."  "These seem to be exactly the type of 'frank discussions' that the deliberative-process privilege is designed to protect."  "Moreover, based on the Court's review, it appears that the protected material is so interwoven with the document as a whole that redaction would be impossible."  Second, the court finds that "documents consist[ing] of handwritten or typed notes or memoranda regarding a geologist's impressions or opinions regarding aspects of the . . . site . . . appear designed to contribute to an 'open and frank discussion among' EPA regulators about closure processes for the site."  Third, the court finds that "email exchanges among EPA personnel involved in making regulatory decisions relating to the . . . site . . . expressly reflect the kind of frank discussions and exchanges among regulators that are often essential to agencies' internal deliberative processes."  "Disclosing these documents would almost certainly 'expose an agency's decisionmaking process in such a way as to discourage discussion within the agency and thereby undermine the agency's ability to perform its functions.'"
   
• Exemption 5, Attorney-Client Privilege:  "[T]he Court concludes that EPA appropriately invoked the privilege."  "In each instance in which EPA asserted the privilege, the materials were either seeking, providing, or conveying legal advice that an EPA attorney provided in connection with the . . . site review."  "To be sure, one of the documents as to which the privilege is invoked is an email between two non-lawyer EPA employees (cc'd to an attorney), but the contents of that communication include a portion that conveys legal advice that one of the two employees had received from the copied EPA attorney."