Competitive Enter. Inst. v. EPA, No. 15-215, 2017 WL 521503 (D.D.C. Feb. 8, 2017) (Collyer, J.)

Competitive Enter. Inst. v. EPA, No. 15-215, 2017 WL 521503 (D.D.C. Feb. 8, 2017) (Collyer, J.)

Re: Request for records concerning use of text-messaging by EPA Administrator

Disposition: Granting defendant's motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies: The court finds that "[plaintiff] properly exhausted its administrative remedies before instituting this suit in federal court." The court relates that "[w]hile EPA acknowledges that [plaintiff's] email arrived in [its] email inbox on the evening of . . . January 8, 2015, it argues that 'receipt' should be interpreted to mean the date on which a Staff member opened the email." The court further relates that, "[a]ccording to EPA, the agency received the appeal on Monday, January 12, 2015 and on that same day, sent an email to [plaintiff] acknowledging receipt." "On February 10, 2015, EPA notified [plaintiff] that it required an extension of time to process the administrative appeal." "On the following day, February 11, 2015, [plaintiff] filed the current Complaint challenging EPA's handling of, and response to, its request." "[The] Court distinguished the law governing FOIA requests versus FOIA appeals, explaining that in the context of an appeal the relevant question is 'when [plaintiff's] appeal was received by EPA.'" "FOIA requests, on the other hand, may be appealed within twenty days of receipt by 'the appropriate component of the agency.'" The court holds that "EPA clearly received [plaintiff's] appeal on January 8 and thus failed to respond on a timely basis."
   
• Litigation Considerations, Vaughn Index/Declaration: The court holds that "[t]he Vaughn Index here provides sufficient information to evaluate EPA's claim of privilege." The court finds that "EPA's Vaughn Index is not overly generalized, each document is tied to a specific category and appropriate exemption, and segregability is addressed."
   
• Litigation Considerations, Adequacy of Search: The court holds that "[defendant's] Declaration describes a search reasonably calculated to uncover responsive documents and [plaintiff] provides nothing to challenge the presumption of good faith afforded the declaration." The court relates that "[plaintiff] has failed to articulate a specific challenge to EPA's search for responsive records."
   
• Exemption 5, Attorney-Client Privilege: First, the court holds that "[an EPA contractor's] communications were intra-agency and for the purpose of litigation and are therefore exempt from disclosure." The court relates that "[the] EPA contractor [was] tasked with 'locating and providing the mobile device data and information used to respond to the questions posed by the staff attorneys' for the purpose of obtaining legal advice for ongoing litigation." The court finds that "[i]n all communications, [the contractor] 'was acting within the scope of the contract and for the purpose of aiding the EPA in its functions in responding to the client offices and attorneys' questions.'" Second, the court holds that "[a specific set of emails between two non-lawyers] [was] appropriately withheld or redacted under Exemption 5." The court finds that "the challenged emails . . . were exchanged at the request of attorneys and to provide information to attorneys for the purpose of obtaining legal advice." "Under these circumstances, the fact that these particular emails are between two non-attorneys does not negate protection under the attorney-client privilege." Additionally, responding to plaintiff's argument, the court finds that "[i]t is clear that the . . . [documents were] prepared for the purpose of obtaining legal advice from counsel on how to respond to FOIA requests and in anticipation of litigation." "It is irrelevant that this may not have been the sole purpose of these communications." Third, the court finds that "[emails "'generated as part of a continuous process of agency decision-making regarding how to respond to'" a press inquiry are] protected by attorney-client privilege because a primary purpose[] of the emails was to obtain legal advice concerning the legal risks of the various options for a public statement." The court also finds that these emails were additionally protected by the deliberative process privilege.
   
• Exemption 5, Deliberative Process Privilege: First, the court holds that "'opinions relating to options for responding to plaintiff's FOIA request[]'" were appropriately withheld under Exemption 5. The court finds that "[t]he consultative process described by EPA reflects 'the give-and-take' the deliberative process privilege seeks to protect and involves more than the mere application of legal standards as [plaintiff] suggests." The court notes that EPA stated that the documents "are predecisional because they pre-dated a final response from EPA, and deliberative because they reflect 'analysis and opinions on options that were still in development' by EPA." "In addition, '[t]o the extent there are facts in these records, the selection of those facts [is] an integral part of the process of advising EPA decisionmakers responding to the FOIA request and related litigation.'" Additionally, responding to plaintiff's argument, the court finds that one individual's "role as a contractor does not preclude the application of the deliberative process privilege to the records" because "[the contractor] did not have an independent interest and was hired for the explicit purpose of providing advice." Second, the court holds that "[e]mails 'generated as part of a continuous process of agency decision-making regarding how to respond to' a press inquiry are protected by the deliberative process privilege." The court finds that "[t]he documents . . . were clearly generated as part of a media strategy in response to FOIA litigation." "Furthermore, the correspondence is predecisional in that it pre-dated the release of a public statement and is deliberative because it involved personal opinions and thoughts of staff members working to identify the options." The court also finds that these emails were additionally protected by the attorney-client privilege.
   
• Litigation Considerations, "Reasonably Segregable" Requirements: "The Court has reviewed EPA's Vaughn Index and [its] Declaration and finds that they adequately explain that no portions of the records were segregable."