Ecological Rts. Found. v. EPA, No. 19-980, 2021 WL 535725 (D.D.C. Feb. 13, 2021) (Howell, J.)

Ecological Rts. Found. v. EPA, No. 19-980, 2021 WL 535725 (D.D.C. Feb. 13, 2021) (Howell, J.)

Re:  Request for records concerning agency's transparency, personnel, and accountability policies

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  First, the court holds that "[o]therwise-responsive calendar entries and associated attachments dated before July 5, 2018 are squarely outside the scope of the FOIA Request and thus EPA is not required either to release them or to explain its failure to do so."  "As EPA correctly points out, by requesting calendar records 'from July 5, 2018 to the present,' . . . the FOIA Request 'specifically sought [the then EPA Administrator's] calendar records since July 5, 2018, the day he became the Acting EPA Administrator' . . . ."  "The plain language of the FOIA Request thus unambiguously states that responsive calendar records are those dated July 5, 2018 or later."
  
  Second, the court finds that "EPA properly construed [the portion of plaintiff's request for documents "'constituting or memorializing any instructions, directive, plan, policy, practice, or memorandum to EPA staff'"] of the FOIA Request to exclude drafts of ["a November 16, 2018 memorandum issued by EPA's then-Chief of Staff, titled 'Awareness Notification Process for Select Freedom of Information Act Releases' (the 'Awareness Notification Memorandum')"]."  The court explains that "[t]he ordinary use and meaning of the phrase weigh slightly in favor of a reading that encompasses only documents actually disseminated to EPA staff."
  
  Third, the court finds that "EPA conducted a search for responsive records predicated on its reasonable construction of the FOIA Request."  "Aside from the disputes about the scope of the FOIA Request resolved above, plaintiff neither raises any specific objection to the adequacy of EPA's search nor attempts to rebut the presumption of good faith otherwise owed to the [agency] declarations . . . ."  This process, in which plaintiff was both consulted and involved, was a reasonable one, targeted at identifying documents responsive to the FOIA Request.  "The search detailed in those declarations demonstrates beyond material doubt that EPA has 'conduct[ed] a search reasonably calculated to uncover all relevant documents.'"
   
• Exemption 5, Deliberative Process Privilege:  First, regarding "three briefing documents included as attachments to entries on [the then EPA Administrator's] calendar," the court finds that these were appropriately withheld.  The court explains that "EPA has thus adequately stated what deliberative process is involved . . . ; the role the withheld sections of the document played; and the nature of the decisionmaking authority of the authors of the document . . . ."
  
  Second, regarding "calendar attachments and a calendar entry consisting of 'internal briefing material for [the then EPA Administrator] containing preliminary thoughts and proposals for potential talking points and discussion topics' for an upcoming meeting with the Australian Minister for the Environment and Energy and an official celebration of the Emperor of Japan's birthday, held at the Ambassador of Japan's residence, the court finds that "the categorical approach urged by plaintiff to exclude from the deliberative process privilege agency records of talking points, though attractive in its simplicity of application, is an overreach, and the harder job of reviewing of each document in context is required."  The court explains that "[c]ontrary to plaintiff's position, . . . a set of talking points or similar document, even if focused on an agency's external presentation of a past policy decision, may fall within the scope of the deliberative process privilege."  "As EPA puts it, these records may be 'predecisional as to what is ultimately communicated by EPA and deliberative because [they] reveal[ ] the decision-making among staff concerning how best to convey EPA's position on certain topics, or what a specific policy means in a particular context, or how a policy will be implemented in a specific circumstance.'"  "This general principle notwithstanding, the agency's obligation to show that each of its withholdings of records reflecting deliberations about external communications satisfies the exemption's criteria . . . remains."  The court then considered the agency's argument that "even if an agency decisionmaker uses a final set of talking points to deliver public remarks, the talking points themselves remain predecisional and deliberative because the official may not stick to the script, or may closely follow the talking points without formally adopting their reasoning."  The court finds "that an agency official might extemporize some portion of her remarks while relying on a final set of talking points does not alter the finality of the agency public relations decisions that the talking points reflect."  "Final talking points taken up to the podium are the agency's determination of what information should be shared and how to share it."  "The remarks actually delivered by the speaker may represent an additional agency decision – the decision to abandon or change the strategy set forth in the talking points – but do not render the final talking points mere recommendations rather than a considered agency decision.""  "Regardless of whether or how they are ultimately used, then, final talking points and similar documents memorialize the agency's final decision about its public relations strategy with regard to a particular event or topic and are therefore neither predecisional nor deliberative."  With this in mind, the court analyzes certain talking points material and finds that, regarding some of the material, "EPA has adequately identified the deliberative process involved . . ., the role the withheld sections of the document played . . . , and the nature of the decisionmaking authority of the authors of the document . . . ."  "[H]owever, [the court finds that] the fact that [certain] talking points were attached to [calendar entries] for . . . interview[s] . . . provides strong evidence that they were intended for [the then EPA Administrator's] use during the interview[s], without further revision, and therefore reflect agency guidance as to the Administrator's public comments."  The court finds that "[t]hese talking points . . . are final rather than predecisional and deliberative, and must be disclosed."
  
  Finally, the court finds that "EPA has not shown . . . that [one] meeting agenda qualifies for exemption."  "First, the agency does not identify the author(s) of the document, and does not even claim that the agenda originated within EPA."  "Second, while EPA does represent that the agenda was prepared before the NEC meeting, . . . the agency is silent as to whether the agenda is a final agenda, representing a firm decision about topics to be discussed, or a preliminary agenda, subject to revision by former [the then EPA Administrator] or other senior officials."
   
• Exemption 6:  The court holds that "EPA has therefore failed to raise a substantial privacy interest with respect to the withheld information."  "In the absence of such an interest, no further inquiry is necessary, and EPA must disclose this information."  The court relates that "EPA has applied Exemption 6 to withhold information in thirteen calendar entries, ranging in date from July 5, 2019 to March 30, 2019, 'contain[ing] the locations at which the Administrator ate lunch or dinner,' . . . and information in two calendar entries, dated February 14, 2019 and March 25, 2019, consisting of 'information related to [the then EPA Administrator's] train or flight reservations (i.e., specific ticket or route numbers) and the names of hotels at which the Administrator stayed while traveling' . . . ."  The court finds that "[the then EPA Administrator's] calendar entries are 'files' within the meaning of Exemption 6 because "[t]hey are detailed government records about [[the then EPA Administrator] that, if released, would be identified as applying to him.'"  However, the court notes that "[the then EPA Administrator] left the helm of EPA on January 19, 2021" and, therefore, "[the then EPA Administrator] is no longer a Cabinet-level government official, nor is he 'the public face for every action the EPA takes in fulfilling its mission.'"  The court finds that "EPA does not point to any privacy interests held by the Administrator in his personal capacity, aside from a de minimis interest in 'not having one's dietary preferences published,' . . . relying instead on those privacy interests associated with his former, public-facing position."  "Even if [the then EPA Administrator] remained in office, the general interest of a Cabinet-level official in avoiding harassment or unwanted contact that EPA asserts is best understood as a security interest rather than a personal privacy interest, given the inherently public nature of Cabinet members' positions and official duties."
   
• Exemption 7(C):  The court relates that defendant withheld "the names and email addresses of agents who provided protection to [the then EPA Administrator] as part of his Personnel Security Detail ("PSD")."  First, the court finds that "EPA has established that the names and email addresses of PSD agents assigned to protect [the then EPA Administrator], included in thirty calendar entries, were 'compiled for law enforcement purposes.'"  "The agency explains that 'the purpose of the PSD is to ensure the Administrator's security by detecting, preventing, and responding to potential criminal acts perpetrated against him.'"  The court then finds that "EPA's claim, substantiated by two declarations, that the 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 is sufficient to establish an 'unwarranted invasion of privacy' for Exemption 7(C) purposes."  Regarding the public interest, the court finds that "as to the official government email addresses of PSD agents, plaintiff asserts no specific public interest that disclosure of this information would promote, nor it is apparent how public knowledge of PSD agents' email addresses would illuminate EPA's performance of its statutory duties or otherwise inform citizens of EPA's activities."  However, regarding the names of the PSD personnel, the court finds that "[w]ithout the identities of the PSD agents . . . plaintiff 'cannot determine which [CID (EPA's Criminal Investigation Division)] agents were transferred to the PSD, and therefore taken off of environmental enforcement duties; how that may affect the CID's environmental enforcement abilities; and which statute(s) these PSD agents formerly enforced prior to being reassigned.'"  The court finds that "[p]laintiff has thus stated a cognizable public interest in disclosure of PSD agents' names."  The court notes that "EPA's declarations and Vaughn Index make no apparent effort to weigh the public interest in disclosure against PSD agents' privacy interests in nondisclosure of their names."  The court holds that "the balancing of interests favors disclosure."  "Although PSD agents have a strong privacy interest in their identities, 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 press releases about successful investigations undertaken with CID involvem."  "Further, EPA does not identify any particularized risk of threat or harassment to PSD agents assigned to protect [the then EPA Administrator]."
   
• Exemption 7, Threshold & Exemption 7(E):  The court relates that plaintiff contests EPA's withholding, pursuant to FOIA Exemption 7(E), of information in three calendar entries, one from January 4, 2019 and two from different times on January 24, 2019, identifying 'the specific room in the White House where a regular meeting concerning clean air fuel economy standards took place.'"  First, the court finds that "[t]he disputed calendar entries, which include specific locations within the White House where a regular meeting attended by senior government officials is held, might qualify as law enforcement records . . . , but neither the agency's Vaughn Index nor its declarations indicate that the meeting locations were shared or otherwise known by law enforcement officers."  "Further, in defense of its determination that these records were compiled for law enforcement purposes, EPA states only that they qualify as such '[d]ue to the high security concerns associated with particular locations in the White House.'"  "Allowing agencies to claim that withheld records are 'compiled for law enforcement purpose' because they implicate nebulous 'high security concerns,' without offering any specification of the law enforcement ends to which the records relate or indeed, any evidence that the records were even used by or made available to law enforcement, would deprive Exemption 7's threshold inquiry of all meaning."
   
  Additionally, the court finds that "[e]ven if the calendar entries were law enforcement records, EPA has not met its burden to withhold information under Exemption 7(E) because it has not identified a law enforcement technique, procedure, or guideline connected to the redacted room locations or any way in which disclosure of this information would create or enhance a risk of violation of the law."  "Nor has EPA carried its burden with respect to the 'risk of circumvention' showing."  "The agency provides only a barebones justification for its withholding of the room locations, representing that 'disclosure would pose operational challenges for security' and therefore 'could reasonably be expected to risk circumvention of the law.'"
   
• Exemption 5, Deliberative Process Privilege & Foreseeable Harm:  The court holds that "EPA has sufficiently connected disclosure of the withheld information in these records to a foreseeable harm and has therefore fully justified this subset of its deliberative process withholdings under Exemption 5."  The court finds that "EPA's Vaughn Index in this case makes a[n] . . . adequate showing."  "EPA identifies the contents of the documents with sufficient particularity."  "The agency affirmatively concludes, with respect to each record, that disclosure would harm an interest protected by the privilege."  "EPA states that disclosure of the withheld information 'would hamper the efficient day-to-day workings of EPA,' . . . by 'hav[ing] a chilling effect on the Agency's ability to engage in open and frank discussions concerning . . . recommendations to EPA senior leadership' on the particular topic or type of decision at issue . . . ."  "For some of the records, EPA submits that release would generate 'public confusion' concerning the agency's final decision."  "These predicted results of disclosure are 'exactly what the privilege seeks to prevent.'"  The court finds that "EPA also draws a sufficient link between these specified harms and 'specific information contained in the material withheld.'"  "[Defendant's] explanation 'specifically connects disclosure of [the record] to a tangible chilling effect,' here among EPA staff when drafting options to resolve issues for senior officials' consideration, and a concrete risk of generating public confusion."  "EPA provides similarly specific explanations of 'why the disclosure of [a] particular [record] would implicate the specific harms identified' for each of the challenged records."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "EPA's declaration and Vaughn Index are sufficient to establish non-segregability of the disputed exempt records."   The court finds that "EPA has averred that 'all of the information withheld 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.'"  "Further, EPA's declaration states that '[t]he remaining withheld information, if released, would reveal the information sought to be protected by the exemptions claimed,' . . . and its Vaughn Index represents, for each of the contested documents, that any potentially non-exempt factual information is 'inextricably intertwined' with privileged information . . . ."