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Envtl. Integrity Project v. SBA, No. 13-01962, 2015 WL 4647926 (D.D.C. Aug. 6, 2015) (Cooper, J.)


Envtl. Integrity Project v. SBA, No. 13-01962, 2015 WL 4647926 (D.D.C. Aug. 6, 2015) (Cooper, J.)

Re: Request for records concerning OMB's review of EPA proposed update to the Effluent Limitation Guidelines

Disposition: Granting defendant's motion for summary judgment and denying plaintiff's motion for summary judgment regarding OMB; reserving judgment on defendant's and plaintiff's motions regarding SBA

  • Litigation Considerations, Vaughn Index/Declaration:  "The Court agrees with Plaintiffs that SBA's descriptions of the withheld documents are insufficient to justify invoking the deliberative process privilege."  "SBA's declarations and Vaughn index recite the general elements of the deliberative process privilege without explaining in relative detail how they apply to the documents in question."  "Nor do they establish that the agency made a finding as to ''which portions of the document are disclosable and which are allegedly exempt.''"  "Given the small number of withheld documents, . . . the Court will attempt to expedite matters by directing SBA to submit the eleven withheld for in camera review."
  • Exemption 5, Deliberative Process Privilege:  The court holds that "OMB's submissions confirm that the records in question reflect precisely the type of communications that the deliberative process privilege was designed to protect."  "[Defendant's] declaration explains that the withheld and redacted sections reflect discussions that took place when OIRA was consulting with EPA and other agencies, receiving and analyzing comments, discussing options with EPA and executive branch officials, and revising regulatory text."  Additionally, "[t]he exchanges reflect the staff's efforts to fulfill OMB's mandate to gather information from agencies on a proposed rule and make recommendations on regulatory coordination."

Moreover, the court rejects plaintiff's argument that "the existence of [Executive Order 12866]," which "requires OMB to 'make available to the public all documents exchanged between OIRA and the agency during the review by OIRA under this section,'" "defeats any reasonable expectation on the part of OMB that its communications during the inter-agency review process will remain confidential, absent which there is no basis for the deliberative process privilege."  "[T]he Court has little trouble concluding that the OMB staffers who engaged in the withheld communications here did so with the settled expectation that their communications with agency staff would not be made public."  The court agrees with defendant that "EO 12866's disclosure requirement applies only to exchanges made by OIRA personnel at the branch-chief level and above."

  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court finds sufficient defendant's statement that "[b]ecause the issues 'involved complex economic, scientific, legal, and policy issues of major significance,' the redacted portions of the documents dealt with 'a mixture of facts, law and policy'" and were, therefore, not further segregable.

Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Litigation Considerations, Vaughn Index/Declarations
Litigation Considerations, “Reasonably Segregable” Requirements
Updated January 12, 2022