Ecological Rts. Found. v. EPA, No. 19-980, 2021 WL 2209380 (D.D.C. June 1, 2021) (Howell, J.)
Ecological Rts. Found. v. EPA, No. 19-980, 2021 WL 2209380 (D.D.C. June 1, 2021) (Howell, J.)
Re: Request for records concerning agency's transparency, personnel, and accountability policies
Disposition: Granting defendant's motion to alter or amend judgment; denying plaintiff's motion to strike
- Litigation Considerations, Vaughn Index/Declaration: Regarding defendant's supplemental declaration, the court holds that "[defendant's declarant's] position within [EPA's Office of Criminal Enforcement, Forensics and Training ("OCEFT")], his access to and review of EPA records, his knowledge about OCEFT policies, and his representation that he acquired information from other EPA employees in the course of his official duties together demonstrate that Rule 56's personal-knowledge requirement is met." The court also finds that "[t]he Supplemental . . . Declaration . . . relies on the declarant's review of 'information contained in the records of the [EPA], or on information supplied . . . by employees under [his] supervision or employees in other EPA offices[,]'" and "therefore does not contain inadmissible hearsay." Moreover, the court explains that, because "[defendant's declarant] has attested that his testimony is based on his review of agency records and information received from other agency employees in the course of his duties," and "the fact that, as plaintiff suggests, the underlying records are available[,] mitigates any concerns related to the best evidence rule."
- Litigation Considerations: The court finds that "EPA's Motion to Alter or Amend Judgment is procedurally appropriate." First, regarding the timeliness of defendant's motion the court relates that "EPA could have sought leave to file a sur-reply before the entry of judgment and elected not to do so." However, the court finds that "[i]n light of plaintiff’s explicit and obvious dependence on a misunderstanding of EPA's policies with respect to disclosure of PSD agents' identities, the agency's decision to allow such a glaring factual inaccuracy to stand on the record is inexplicable." "EPA's belated effort in the pending motion to correct this error is therefore untimely, but the costs of its failure to remedy the record prior to the entry of judgment fall squarely on the individual PSD agents named in the challenged calendar entries, whose identities will be made public and who may be subject to harassment or other unwarranted intrusions absent reconsideration."
Second, the court finds that "[defendant] now explains that OCEFT has a 'policy of providing supervisor names when spokespeople are needed to comment on significant case developments, but not producing the names of the Agents who serve on the Administrator's security detail,' . . . because the agency believes that supervisors 'do[ ] not have the same privacy concerns as a staff-level agent in CID,' . . . ." "This description of agency policy directly contradicts the description proffered by plaintiff and accepted by the Court, and therefore suggests a clear error of fact . . . ." "This finding alone is sufficient to warrant reconsideration, and EPA's showing of manifest injustice need not be considered."
- Exemption 7(C): First, the court finds that "[e]ven accepting EPA's premise that its nexus argument was previously raised, it does not supply a basis for reconsideration." "The precise argument to which EPA now points was considered and rejected in [the court's previous opinion]." Moreover, "[t]o the extent that EPA seeks to advance a new theory of why no nexus between disclosure of PSD agents and the public interest is present, this attempt is similarly unsuccessful." "EPA had ample opportunity to submit this theory to the Court in its previous briefing, but chose not to do so." "The agency cannot belatedly correct this strategic decision through a motion for reconsideration." "Moreover, even if EPA's argument were timely, [the court's previous opinion] identified an adequate nexus between the agents' names and the asserted public interest in disclosure." The court relates that plaintiff "established a clear nexus between PSD agents' identities and 'the . . . public interest in EPA's reallocation of its CID agents for use by the Administrator as PSD agents and the impact of such reallocation on EPA's execution of its statutory duties.'"
Second, the court relates that "EPA now contends, with previously undisclosed information provided in a new supplemental declaration, that the Court erred in finding that Exemption 7(C) did not apply to shield the [Personnel Security Detail ('PSD')] agents' names from disclosure." "According to EPA, contrary to plaintiff's assertion in its reply briefing on the cross-motions for summary judgment, that EPA routinely releases PSD agents' names, in fact, the agency shares only the names of supervising CID agents approved to act as spokespersons." "In EPA's view, due to reliance on plaintiff’s inaccurate claim, which EPA failed to correct at the time, the Court gave insufficient weight to the agents' privacy interests in the Exemption 7(C) balancing analysis." The court finds that "[t]his explication of agency policy directly contradicts [the court's prior opinion] finding that 'EPA appears to routinely release the names of CID and PSD agents for public relations purposes, for example, positive press coverage about CID or PSD agents,' . . . and therefore demonstrates a clear error of fact appearing on the face of the decision." "The privacy interests of PSD agents in their identities are bolstered by the knowledge that EPA does not disclose the names of any CID agents except the names of CID agents in supervisory roles designated to serve as agency spokespersons for limited purposes." "[The court's [prior opinion] recognized that 'PSD agents could be subjected to harassment by virtue of the identity of the person they protect and the types of investigations in which they and their colleagues are involved,' and that this reality was 'sufficient to establish an "unwarranted invasion of privacy" for Exemption 7(C) purposes.'" "When considered without giving weight to the erroneous belief that EPA itself releases agents' identifying information on a regular basis, this 'strong privacy interest [of PSD agents] in their identities,' . . . outweighs the public interest in disclosure identified by plaintiff . . . ." "Contrary to [the court's prior] finding, then, the agency properly invoked Exemption 7(C) to shield PSD agents' names appearing in the disputed calendar entries from disclosure." "As this finding of a clear error of fact resulting in an error of law is itself sufficient to merit an amendment of judgment under Rule 59(e) . . . ."
Additionally, the court finds that "EPA has demonstrated that foreseeable harm would result from the disclosure of PSD agent names." "EPA's Vaughn Index and the declarations submitted in support of its motion for summary judgment meet [the] standard with respect to withholding of PSD agents' identities." "EPA affirmatively concludes, with respect to all of the records, that disclosure of PSD agents’ names would harm the privacy interests of the identified individuals." "These predicted results of disclosure are exactly what Exemption 7(C) seeks to prevent, and are connected to 'specific information contained in the material withheld,' that is, the names of PSD agents appearing in the disputed calendar entries."
- Litigation Considerations, "Reasonably Segregable" Requirements: The court holds that "EPA's declaration and Vaughn Index are sufficient to establish non-segregability of the disputed calendar entries." The court finds that "'EPA has averred that "all of the information withheld [from its response to plaintiff's FOIA Request] was carefully reviewed to ensure that the Agency has disclosed all reasonably segregable non-exempt information" and that EPA "provided supplemental releases of information where possible."'"