Hall & Assocs. v. EPA, No. 18-1749, 2021 WL 1226668 (D.D.C. Mar. 31, 2021) (Moss, J.)

Hall & Assocs. v. EPA, No. 18-1749, 2021 WL 1226668 (D.D.C. Mar. 31, 2021) (Moss, J.)

Re:  Request for records concerning November 19, 2013 "'Desk Statement'" announcing that, outside of the Eighth circuit, the EPA would continue to apply regulatory interpretations concerning regulation of discharge of water from treatment facilities vacated by the Eighth Circuit's judgment

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

• Exemption 5, Deliberative Process Privilege & Exemption 5, Attorney-Client Privilege:  "The Court has reviewed Document 9 in camera and, based upon that review, it concludes that the EPA's withholdings satisfy Exemption 5 with four small exceptions [regarding segregability]."  The court finds that "the vast majority of the withheld material in Document 9 is protected by Exemption 5 because the material is, as the EPA explains, predecisional and deliberative."  "The withheld portions of the document are predecisional because they pertain to [certain] permits not yet granted, and the withheld portions are deliberative because they reflect the agency's internal thought processes regarding how those pending permits should be adjudicated."  "But the EPA has not explained how or why disclosure of the material identified above 'would impose significant costs on the agency,' . . . or would demand the 'agency to commit significant time and resources' to processing the records in a different manner . . . ."  "Neither has the agency explained why the withholdings covering purely factual material are inseparable from the deliberative portions of Document 9."
  
  "Based on its in camera review of Document 14, the Court concludes that the EPA has sufficiently justified its withholding under Exemption 5."  "The withheld portions of the document do not discuss any applications of agency policy, settled or otherwise."  "Instead, those portions of the document discuss the need to respond to pending permitting matters and identify one issue of particular concern relating to potential litigation that the agency may face."  "The Court also agrees with the EPA that disclosure of the withheld materials would cause foreseeable harm, potentially chilling agency discussion on sensitive topics related to permitting and litigation that may follow as a result."  "Finally, the Court concludes that the EPA has produced to [plaintiff] all segregable portions of Document 14."
  
  The court relates that "[i]n August 2016, the 'EPA inadvertently released' Documents 21, 24, and 33 to [plaintiff] 'in the course of responding to other FOIA requests' that [plaintiff] had filed."  "EPA has contacted [plaintiff] to request that [plaintiff] 'return the documents[,] . . . delete any copies in its possession[,] . . . [and] cease any further publication of the inadvertently released information.'"  "And [plaintiff] has, for its part, evidently declined to do any of those things."  "The EPA does not, however, ask the Court to order [plaintiff] to return Documents 21, 23, 24, and 33."  "Nor has the EPA moved to seal the docket (where the documents are, and have long been, publicly available) or moved for any protective order limiting [plaintiff's] disclosure of the documents."  "In light of the foregoing, the Court will require the parties to address whether [plaintiff's] complaint, insofar as it seeks Documents 21, 23, 24, and 33, has been rendered moot."
  
  The Court agrees with the EPA that Documents 26 and 27[, "'draft legal briefing document created by an attorney to consult with managers in the Office of Water, Office of Enforcement and Compliance Assurance, and Office of General Counsel about how to respond to a November 26, 2013, letter from the U.S. Conference of Mayors and others,'"] are properly shielded by the deliberative process privilege."  "To start, there is no genuine dispute of material fact, contrary to [plaintiff's] contention, that the EPA had not yet determined how to respond to the Conference of Mayors' letter before Documents 26 and 27 were created."  Additionally, the court finds that "the EPA staff who wrote and received Documents 26 and 27 were engaged in the process of strategizing about how best to respond to an inquiry about the agency's policy."  "That type of information is properly shielded by the deliberative-process privilege, even if the ultimate communication and underlying policy are not."  "Finally, the Court agrees with the EPA that all segregable materials from Document 26 and Document 27 have been disclosed to [plaintiff] and that foreseeable harm would result from those materials' disclosure – namely, a diminution in candor with respect to how the EPA will evaluate its responses to future public inquiries."
  
  "[T]he Court is unpersuaded that the EPA has identified a decision-making process with the specificity necessary to justify its withholding of Document 31[, "'a string of three emails that discusses issues related to EPA's on-going discussions concerning a possible Kansas State-issued permit for a Johnson County, Kansas facility'"]."  "While it . . . possible that Document 31 concerns deliberations regarding how the agency would communicate with its regional permitting staff, the EPA's Vaughn index does not aver (1) that EPA headquarters was ever asked, or prepared to answer, regional permitting staffs' questions about the Johnson County permit; (2) that any significant deliberations occurred with respect to those topics; or (3) that at the time Document 31 was created, any state permit for Johnson County had even been proposed."  "The Court also concludes that the EPA has failed to meet its burden to demonstrate that Document 31 should be withheld under the attorney-client privilege."  "Although an attorney . . . is included on the email exchange, it remains unclear from the face of the document what legal advice – as opposed to policy advice – was sought or delivered."  "The EPA's Vaughn index does not clarify, either."
  
  "The Court concludes that the EPA has not sufficiently demonstrated that the withholdings in Document 32 are appropriate."  "[O]n the Court's review, it appears that Document 32 is predecisional and deliberative about whether to raise an issue with a senior official within the agency for further review."  "But that is not the rationale for withholding that the EPA provides in its Vaughn index."  "To the contrary, rather than explaining how Document 32 contributed to a definable agency decision-making process – here, a staff-level deliberation about whether to raise an issue with a senior official for further review – the EPA offers an overly vague description of the relevant decision-making process and, then, disclaims its predecisional nature, averring that '[t]his process . . . did not ripen into Agency policy or decisions.'"  "That does not necessarily indicate that the Document lies outside Exemption 5 – after all, [s]ometimes a proposal dies on the vine,' . . . – but it does mean that the agency must, as explained, do more to show that the document was 'generated as part of a definable decision-making process' . . . ."  The court finds that "[t]he EPA's reliance on the attorney-client privilege is similarly wanting."  "EPA's Vaughn index does not specify or provide any detail about the nature of legal advice sought, nor is it clear, based on the Court's in camera review of the documents, what that legal advice might be."
  
  "The Court concludes, based upon its in camera review, that [Document 34] falls within the attorney-client privilege."  "The document reveals a lawyer from the EPA, here the client agency, seeking input from a lawyer from the Department of Justice regarding legal arguments or analysis on a question within the EPA's jurisdiction."  "'The withheld portion of the email string' was, furthermore, shared 'only with EPA employees who had a need-to-know[ ] and [was] not widely disseminated throughout the Agency.'"  "Document 34 is thus shielded from disclosure under FOIA by Exemption 5's attorney-client privilege."  "[T]he Court agrees with the EPA that all segregable portions of the document have been released and that, furthermore, disclosure of such privileged material would reasonably imperil the agency's ability to receive legal advice on issues central to its mission."
  
  "Based on its in camera review of Document 35, the Court agrees with the EPA that the deliberative-process privilege applies to the first withholding made by the agency."  "That withheld content reflects a genuine back-and-forth between agency officials and is predecisional with respect to the agency's proposed approach 'for the Johnson County, Kansas's State-issued NPDES permit' under consideration."  "For many of the same reasons already explained, moreover, the Court agrees that disclosure of the information would pose legitimate risks to the EPA's deliberative interests."  "The same cannot be said for Document 35's second withholding."  "That material contains purely factual information, and the Court cannot discern – nor has the EPA explained – how that material is 'inextricably intertwined with the deliberative material.'"  "The withheld material, moreover, is effectively revealed in other documents that the EPA has disclosed, and it is perhaps therefore unsurprising that the EPA fails adequately to explain why disclosure of the withheld material is likely to dampen agency deliberations or otherwise engender foreseeable harm."  "Although the Court has, with respect to the other documents for which the EPA's withholding justifications fall short, provided the EPA another opportunity to supplement its Vaughn index, the Court can discern no benefit to doing so here."  "The Court will, accordingly, grant [plaintiff's] motion for summary judgment with respect to that withholding and deny the EPA's motion for summary judgment with respect to that withholding."