Cal. Air Res. Bd. v. EPA, No. 19-965, 2020 WL 2934914 (D.D.C. June 3, 2020) (Kollar-Kotelly, J.)

Cal. Air Res. Bd. v. EPA, No. 19-965, 2020 WL 2934914 (D.D.C. June 3, 2020) (Kollar-Kotelly, J.)

Re:  Request for records concerning notice of proposed rulemaking for the Safer Affordable Fuel-Efficient ("SAFE") Vehicles rulemaking

Disposition:  Granting defendants' motion for summary judgment; denying plaintiff's motion for summary judgment

• Procedural Requirements, Proper FOIA Requests:  The court rejects defendants' contention "that Plaintiff's letter was not a proper FOIA request."  The court relates that "Defendants argue that portions of Plaintiff's letter are requests for explanations rather than proper FOIA requests for documents."  The court holds that "[w]hile Plaintiff's requests would have benefitted from more precise language, the requests did not cross the line from document requests to non-FOIA requests for explanations."  The court explains that "narrative portion[s] [included alongside plaintiff's request] does not negate Plaintiff's initial request for data."  The court further explains that "Defendants waited approximately one year to raise the issue of whether or not portions of Plaintiff’s letter constituted a request for documents. . . ."  "If Defendants had such concerns, they could have and should have raised them earlier."
   
• Litigation Considerations, Vaughn Index/Declaration:  The court holds that, contrary to plaintiff's argument, "the failure of Defendants' argument [concerning proper FOIA requests] does not create an inference of bad faith."  Additionally, the court finds that "alleged inconsistency [between defendant's declarations and previous communication] can be explained without inferring bad faith."
   
• Litigation considerations, Adequacy of Search:  "[T]he Court concludes that [defendant's] search in response to part 1 of Plaintiff's request was reasonably calculated to uncover all responsive documents."  The court explains that "Defendant . . . stated that it provided Plaintiff's request to the two engineers who worked most closely with [the subject matter of the request]."  "Those engineers manually searched the locations most likely to contain any responsive documents to all subparts of Plaintiff's part 1 request."  "The materials which were identified as potentially responsive to Plaintiff's request matched the engineers' expectations, and they explained that no other locations were likely to contain missing documents."  In response to plaintiff's objection regarding the scope of the search, the court finds that "Defendant . . . has provided uncontroverted evidence that it conducted a search for records responsive to all three subparts of part 1 of Plaintiff's request."  Finally, the court holds that "Plaintiff's base speculation that other documents must exist is not sufficient to show that [defendant's] search was inadequate."
   
• Exemption 5, Deliberative Process Privilege:  "The Court finds that the information in . . . two email threads was rightfully withheld for two independent reasons."  "First, the withheld information is not responsive to Plaintiff's FOIA request."  The court explains that "the email does not contain the three specific pieces of information requested."  "Second, even if the redacted information was responsive, the Court finds that the information was rightly withheld as predecisional and deliberative."  "The first email thread was predecisional because it was drafted to further EPA's work with [the National Highway Traffic Safety Administration ("NHTSA")] to develop the [Notice of Proposed Rulemaking] for the SAFE Vehicles Rule."  "The email is also deliberative."  "The email reflects [defendant's] 'opinions, analysis, and discussion' relating to his understanding of comments made by another agency during the process of developing the Notice."  "The second email was also predecisional because it relates to the analysis that [the Department of Energy's Argonne National Laboratories] was conducting as part of the SAFE Vehicles rulemaking process."  "Additionally, the email was deliberative as it reflects 'a back-and-forth discussion between the staff members of two agencies regarding the details of a particular modeling approach . . . , including the ways that model may be used in the context of the SAFE Vehicles Rule.'"
  
  The court holds similarly regarding "draft reports by . . . a mathematical statistician in NHTSA's Office of Regulatory Analysis and Evaluation."  "First, the Court finds that both draft reports are predecisional" and "[n]either document has been finalized."  "Second, the Court finds that both draft reports are deliberative" because "[t]hey reflect the author’s preliminary impressions of the statistical methodologies used to compare crash fatalities with motor vehicle weight."  "Moreover, release of these deliberative documents would result in harm for the agency."  "As the draft reports are not finalized, their disclosure would result in confusion as to which documents represent NHTSA's final decisions and which documents are merely preliminary opinions."  "Disclosure would also risk chilling the work product of NHTSA staff due to fear that early drafts of their reports could be released to the public."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "[T]he Court finds that no non-exempt information could be segregated and released from the two draft reports."  "NHTSA's declarant stated that 'NHTSA has released all reasonably segregable, non-exempt information to [plaintiff] in response to the FOIA request.'"