Ecological Rts. Found. v. EPA, No. 22-15936, 2023 WL 4342100 (9th Cir. July 5, 2023) (per curiam)

Ecological Rts. Found. v. EPA, No. 22-15936, 2023 WL 4342100 (9th Cir. July 5, 2023) (per curiam)

Re:  Request for records regarding Supplemental Environmental Projects (“SEP”)

Disposition:  Affirming district court’s grant of defendant’s motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration & In Camera Inspection:  The Court of Appeals for the Ninth Circuit holds that “[t]he district court correctly applied [the] standards [for in camera inspection].”  “EPA submitted a 35-page affidavit that divides its records into eight categories, with detailed justifications for its withholdings and redactions.”  “It supplemented this affidavit with a 650-page Vaughn index that reviews all records EPA redacted or withheld – featuring particularized explanations for each FOIA exemption EPA asserted, EPA’s efforts to segregate non-exempt information, and the manner in which disclosure of the withheld material would foreseeably harm interests protected by the exemptions.”  “Accordingly, the district court was entitled to take these materials at ‘face value’ absent ‘“contrary evidence in the record.”’”  “The record contained no such evidence.”  “Contrary to [the requester’s] argument on appeal, the unredacted portions of EPA’s documents do not undermine EPA’s justifications for the portions it withheld . . . .”

• Exemption 5, Deliberative Process Privilege:  The Court of Appeals for the Ninth Circuit holds that “EPA properly withheld and redacted [certain categories of records] under [the deliberative process privilege].”  The court finds that “[t]he documents withheld in [two categories] are deliberative materials produced for meetings that were held between EPA and Department of Justice . . . officials to discuss proposed changes to SEP policy.”  “Both categories of documents are predecisional to the 2019 change in SEP policy, and the [one category of] records are additionally predecisional to settlements in specific enforcement cases.”  “The records in [the other category and two other categories] consist of deliberations regarding specific enforcement cases, and are predecisional to litigation, settlement, and enforcement decisions in those cases.”  “Although [the requester] contends that EPA must disclose [specific] records featuring settlement recommendations that EPA ultimately accepted, there is no indication that EPA has ‘adopted’ any such recommendations as ‘the agency’s effective law and policy.’”

• Exemption 5, Attorney-Client Privilege:  The Court of Appeals for the Ninth Circuit holds that “[t]he remaining records, in [two categories], are entitled to [protection under the attorney-client privilege].”  “The records in [one category] feature confidential legal advice from EPA and DOJ attorneys regarding ‘the potential impact of changes to SEP policy on enforcement work at EPA,’ including specific requests from agency officials seeking confidential legal advice following press inquiries.”  “The documents withheld in [the other category] consist of confidential legal advice sought by agency officials in advance of Congressional inquiries and hearings.”

• Litigation Considerations, “Reasonably Segregable” Requirements:  The Court of Appeals for the Ninth Circuit holds that “EPA’s Vaughn index and affidavit demonstrate that the agency proceeded document-by-document and line-by-line to parse through each record and segregate all factual, non-exempt material.”  “Additionally, between the categorical justifications in the affidavit and the document-specific descriptions in EPA’s Vaughn index, EPA offered detailed explanations regarding how the disclosure of its records would foreseeably harm interests protected by Exemption 5.”

• Litigation Considerations, Pattern-or-Practice Claims:  The Court of Appeals for the Ninth Circuit relates that “[the requester] requested an injunction directing EPA to comply with future FOIA requests on the basis that EPA has a pattern or practice of FOIA violations.”  “The district . . .  properly evaluated these factors.”  “In its opinion, the district court recognized that the public has an interest in records related to changes in SEP policy, but found that EPA acted in good faith and is taking concrete steps to reduce its FOIA backlog.”  “The court also noted the ‘expansiveness’ of [the requester’s] FOIA request and observed that EPA had provided [the requester] with ‘rolling productions’ and updates on its estimated completion date.”  The court finds that “the district court did not ‘rel[y] upon erroneous legal principles or abuse[ ] its discretion’ by declining to issue an injunction.”  “Second, [the court relates that plaintiff] sought a declaratory judgment that EPA violated FOIA’s deadlines in responding to its request in this case.”  “However, a claim that the government violated FOIA’s deadlines when responding to a specific request is mooted by the production of documents.”  “Additionally, the district court did not abuse its discretion by declining to issue this declaration.”  “The district court concluded that there was ‘no indication that EPA deliberately caused needless delay,’ as ‘EPA and [the requester] engaged in frequent discussions’ regarding how to best respond to [the requester’s] comprehensive FOIA request.”  “That is sufficient to demonstrate that the court considered [the requester’s] claims of delay and properly exercised its discretion.”