Competitive Enter. Inst. v. EPA, No. 12-1617, 2014 WL 308093 (D.D.C. Jan. 29, 2014) (Boasberg J.)

Date: 
Wednesday, January 29, 2014
Re: Request for information related to former EPA Administrator's use of secondary email account Disposition: Granting in part and denying in part defendant's motion for summary judgment
  • Litigation Considerations, Adequacy of Search:  The court "finds summary judgment proper on the adequacy of the search."  The court explains that plaintiff "hammers on three points, but it never specifically challenges the actual scope or method of EPA's search for records in this particular case."  "Hazy allegations of administrative malfeasance may sound incriminating, but the Court requires concrete, specific challenges to the sufficiency of EPA's search in order to deny the agency summary judgment on this point."
  • Litigation Considerations, Vaughn Index/Declaration:  The court holds that "[i]n order to ensure full compliance with its sampling Order . . . the Court will require EPA to justify its withholding of one out of the 25 documents" which were "'inadvertently excluded from the sample pool.'"  The court also issues instructions "[t]o guarantee that such document is selected at random."  On a separate issue, the court finds that "[w]hile it would have been preferable for EPA to leave . . . non-responsive documents off its final list of fully withheld documents, the Court will not deny the agency summary judgment on this point."  However, the court does note that "by including these 'non-responsive' records in its sample pool, EPA risked polluting the final sample with irrelevant documents."
  • Litigation Considerations, Vaughn Index/Declaration:  The court rejects "[plaintiff's] complains that EPA used boilerplate language when it explained how each relevant FOIA Exemption applied to the sampled withholdings" and holds that "EPA was allowed to use the same language to justify multiple different withholdings when the FOIA Exemptions applied for the same reasons."  Therefore, "[t]he Court will not deny EPA summary judgment on this basis."
  • Exemption 4:  The court holds that, although defendant does not "indicate the identity or the content of the document withheld under this Exemption," "because [plaintiff] has not raised any dispute as to the applicability of Exemption 4 to the mystery document in question, the Court believes it has conceded the issue and will thus grant summary judgment in favor of the agency on this point."
  • Exemption 5, Deliberative Process Privilege:  The court upholds defendant's use of the deliberative process privilege.  First, the court finds that defendant correctly withheld documents which "'involved decisions about whether to hold, and who to send to, meetings on topics of pending legislation, rulemakings, and other discussions'" because "[t]hese materials . . . fell on the 'advice and recommendations' side of the line . . . and were appropriately withheld under the deliberative-process privilege."  Second, the court finds that "the two media-related withholdings to which [plaintiff] objects reflected EPA's ongoing decisionmaking about 'how the agency's activities should be described to the general public' . . . and so they appropriately fall under the protection of Exemption 5."  Third, the court finds that information concerning Congressional communications were correctly withheld because the "communication at issue involved 'how to communicate with members of Congress ... and how to prepare for potential points of debate or discussion,'" and "'related to ... how to prepare for potential points of debate or discussion.'"  Last, the court disagrees with plaintiff's argument to the contrary and finds that "[d]eliberations over how to commemorate a past event are obviously 'predecisional' to the actual commemoration—they bear little, if at all, on the event itself, especially if the event took place four decades prior to the discussion."
  • Exemption 6:  The court first discounts plaintiff's argument that the "employees have no private interest in their personal email addresses because the use of personal email accounts for work-related correspondence violates EPA policy."  The court "does not see why an agency official's personal email address—in which he or she would obviously have a powerful privacy interest—would become any less private by dint of the fact that it was used when it should not have been."  The court also finds that "[t]he public interest in exposing potential violations of agency policy has already been satisfied by the Vaughn entries in question, which both name the employee and explain that his or her 'personal email address ... [has been] withheld on the basis of Exemption 6," and that "[b]eyond that, there is no public interest in knowing, for example, whether EPA employees used Hotmail or Yahoo for their personal email correspondence."  However, while recognizing the "powerful privacy interest" that White House staff have in their work email addresses while they are employed, the court finds that "EPA must disclose the White House email address" for a departed official that was used by that official to communicate with EPA, and that "EPA must clarify whether it withheld [that official’s] personal or official email address."
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court explains that "[i]n order to ensure that EPA complied with its disclosure obligations and properly segregated all non-exempt information, the Court ordered the agency to 'produce in camera every tenth document listed on the sample Vaughn index of fully withheld documents.'"  "Having done so, the Court is satisfied that there are no segregability problems in this case."  The court explains that "[i]f the fully withheld documents had instead been redacted, [plaintiff] would have only found 'disjointed words, phrases, or ... sentences which taken separately or together have minimal or no information content.'"
Topic: 
Adequacy of Search
Declarations
District Court
Exemption 4
Exemption 5
Exemption 6
Litigation Considerations
Segregability
Vaughn Index
Updated August 6, 2014