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Ctr. for Biological Diversity v. EPA, No. 17-1270, 2019 WL 1383648 (D.D.C. Mar. 27, 2019) (Jackson, J.)


Ctr. for Biological Diversity v. EPA, No. 17-1270, 2019 WL 1383648 (D.D.C. Mar. 27, 2019) (Jackson, J.)

Re:  Request for records concerning agency's revisions to aquatic life water quality criteria for heavy metal cadmium in 2015 and 2016

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

  • Exemption 5, "Inter-Agency or intra-Agency" Threshold Requirement:  "Because there is no indication in the record that [Great Lakes Environmental Center ("GLEC")] represented its own interests, or outside interests, during its consulting work for EPA, and there is no evidence of bad faith, the Court finds that the agency's detailed declarations justify withholding its deliberative communications with GLEC under Exemption 5."  The court relates that "defendant argues that GLEC 'd[id] not represent or advocate for any outside interests' when it performed work to assist the EPA in its development of the Final Cadmium Report."  Additionally, defendant related that "GLEC submitted the conflict of interest certification, and that 'GLEC has notified EPA of no actual or potential personal or organizational conflicts of interest related to the Water Quality Criteria for Cadmium.'"
  • Exemption 5, Deliberative Process Privilege:  The court finds that "[t]he facts that appeared in the documents were inextricably intertwined with the deliberative discussions and process itself."  "Therefore, the material was properly withheld under Exemption 5, and the Court finds that disclosure of these deliberative communications would hamper 'open and frank discussion' within the agency."  "Based on its review of the agency's declaration, the Vaughn Index, and its in camera inspection, the Court finds that the material is deliberative and properly withheld under FOIA Exemption 5."  "Contrary to plaintiff's assertion that the withheld records consist of 'plain account[s] of the factual information,' . . . the information was instead culled from a 'broad range of available information,' . . . and it 'reflects the give-and-take of the consultative process.'"
  • Litigation Considerations "Reasonably Segregable" Requirements:  "[T]he Court is satisfied that EPA has met the FOIA requirement that all reasonably segregable materials be released after appropriately asserting an exemption."  The court explains that "EPA's declarant averred that the agency conducted a 'line-by-line review' and 'released all reasonably segregable, non-exempt information to [p]laintiff.'"  "The agency also maintains that '[t]o the extent there are facts in the withheld information, those facts are an integral part of the deliberations, and the factual information contained therein is [inextricably] intertwined with the deliberative discussions contained in the documents.'"  "And as the Court noted, the facts contained in the documents it reviewed in camera are exempt because the factual material is inextricably intertwined with deliberative discussions . . . or it was selected and organized in a manner that reflects the deliberative process itself."
  • Litigation Considerations, Vaughn Index/Declaration:  The court finds that, "[c]ontrary to plaintiff's characterization, most of defendant's Vaughn Index entries for the 67 records in dispute provide enough detail to enable the Court to determine whether Exemption 5 applies."  "And, in any event, the Court has based its opinion on an in camera review in addition to the Vaughn Index."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Exemption 5, Inter-Agency or Intra-Agency Threshold Requirement
Litigation Considerations, Vaughn Index/Declarations
Litigation Considerations, “Reasonably Segregable” Requirements
Updated November 16, 2021