Hunton & Williams LLP v. EPA, Nos. 15-1203, 15-1207, 15-1208, 2017 WL 1207410 (D.D.C. Mar. 31, 2017) (Contreras, J.)

Hunton & Williams LLP v. EPA, Nos. 15-1203, 15-1207, 15-1208, 2017 WL 1207410 (D.D.C. Mar. 31, 2017) (Contreras, J.)

Re: Request for records concerning government's Clean Water Act ("CWA") and Rivers and Harbors Act ("RHA") jurisdiction over an industrial site in Redwood City, California

Disposition: Granting in part and denying in part defendants' motions for summary judgment; granting in part and denying in part plaintiff's motion for order governing further proceedings concerning EPA; granting in part and denying in part plaintiff's motion for partial summary judgment concerning U.S. Army Corps of Engineers; granting in part and denying in part plaintiff's motion for partial summary judgment concerning Department of Army

• Litigation Considerations, Adequacy of Search: "The Court . . . concludes that the agencies' searches were adequate." The court finds that "[e]ach agency has provided a declaration describing its search in reasonable detail and explaining how that search was reasonably calculated to uncover all responsive documents." "Upon its independent evaluation – and in the absence of countervailing evidence from [plaintiff] – the Court thus concludes that the agencies' searches were, in general, reasonably designed to locate all responsive documents and that the record thus demonstrates that the agencies are entitled to summary judgment."
  
  Responding to plaintiff's specific objection regarding the need to search personal email accounts, the court also finds that the "agencies have . . . performed searches when specific facts indicated that a particular employee had used a personal email account for agency business." The court relates that "[plaintiff] seeks to require the agencies to search other personal email accounts – presumably those for all employees identified as having been involved with the [requested] issues – even in the absence of any indication that any such personal accounts were used for agency business." The court finds that "[t]his goes too far." "Unlike the requestor in Competitive Enterprise Institute, [plaintiff] is unable to identify any 'countervailing evidence' of personal email use." The court finds similarly with regard to text messages and holds that "[plaintiff] does not point to any evidence indicating that text messages were used for agency business or otherwise show that searching text messages would be likely to lead to responsive documents." Last, the court finds that "[it] has determined that the agency's declarations are sufficient to support a finding that their search of personal communication channels was adequate, and discovery is thus not appropriate."
  
  Regarding plaintiff's objection "that the Corps wrongfully limited the number of custodians whose records it searched[,]" the court finds that "[w]hile [plaintiff] may not have consented to an unconditional limitation, it did agree that it would inform the Corps if it sought records from additional custodians." "[Plaintiff] never exercised this right, and thus cannot object to the Corps proceeding with only the original list."
   
• Litigation Considerations, In Camera Inspection: "The Court . . . turns to the agencies' withholdings, and concludes that no agency has fully justified its withholdings, and thus in camera review and further briefing will be appropriate."
   
• Exemption 5, Deliberative Process Privilege: "The Court [holds] that all three agencies have not provided sufficiently detailed explanations of their withholdings under the privilege." The court first finds that, "[m]indful of the heightened requirement for specificity in the context of the deliberative process privilege, the Court cannot grant the EPA summary judgment because the EPA's disclosures, like others rejected in this jurisdiction, are insufficiently specific about the deliberative process at issue and the function and significance of each record in that process." Similarly, the court finds that "[m]any of the entries in the Corps' Vaughn index for records withheld under the deliberative process privilege are sparse, and do not describe either the specific deliberative process, the function of the particular record, or the nature of the decisionmaking authority." Finally, the court finds that "[a]lthough the Army's Vaughn index contains some variation, many of its entries do not adequately describe why the deliberative process privilege was applied to certain records." "They provide only the fuzziest description of the deliberative process, and also omit entirely to describe the 'function or significance' of the particular record or the decisionmaking authority vested in the author." "Nor does the Army address the possible harms that could result from releasing the withheld information, except to argue in general that '[r]elease of this information would impair the deliberative process.'" Overall, "the Court will entertain supplemental briefing and order in camera review of representative documents."
  
  "However, in order to assist the parties moving forward, the Court . . . briefly address[es] the specific issues concerning the application of the deliberative process privilege to withhold particular categories of documents." The court first notes that "[it] finds it highly plausible that [a] 'final' draft [Approved Jurisdictional Determination ("AJD")] created by the Corps is exempt from disclosure[,]" but "the EPA must explain 'such matters as how decisions like those in issue are reached; the role that staff discussion and memoranda play in such decisions; the manner in which such decisions are memorialized and explained; and whether such decisions are treated, in later agency decisionmaking, as precedents.'" Second, the court notes that, during its review, it will consider "whether some of the withheld documents constitute the 'working law' of the agency that must be disclosed." Third, regarding a set of documents, the court finds that "[b]efore it can consider whether the documents were predecisional or deliberative, the Court must determine whether the legal and policy review [at issue] was a deliberative process at all."
   

• Exemption 5, Attorney Work-Product: "Because the Corps has not adequately shown that the records in question were prepared 'because of' potential litigation, the Court denies the Corps summary judgment." The court relates that "the Corps justified its withholding of draft versions of the AJD by applying the work-product privilege[,]" and "the Corps used the privilege to withhold draft versions of letters to members of Congress." The court finds that "[t]he 'because of' test demonstrates the flaw in the Corps' reasoning." "Drafts of the AJD were not prepared because of possible litigation." "The Corps was required to prepare the AJD, and thus drafts of the AJD, even if it knew that no litigation would ever result." "Similarly, the Corps' replies to Congress about the AJD process were not created 'because of' the possibility of future litigation – unless the Corps would have ignored Congressional inquiries into a less controversial case." "The Corps does not attempt to explain how drafts of the AJD constitute attorney work-product."
   

• Exemption 5, Attorney-Client Privilege: "[B]ecause the Corps has not satisfactorily demonstrated the elements of the attorney–client privilege, the Court denies it summary judgment on the basis of that privilege." The court finds that "[t]his brief description does not sufficiently explain the application of the attorney–client privilege, given that the context makes it clear that the attorney was only a participant in the email chain as a carbon-copy." However, the court finds that "the Army's Vaughn index is adequate to justify its use of the attorney–client privilege." The court explains that "the Army's Vaughn index does specify the nature of the legal advice involved in each document." Also, "[plaintiff] does not challenge ["that the communications were kept confidential between the attorney and client"] in its reply, nor has it identified any indicia on the redacted documents that they were distributed to outside entities." Additionally, the court finds that, "[c]ontrary to [plaintiff's] implication, courts in this district have recognized that the attorney–client privilege may apply between counsel for different agencies."
   

• Exemption 6: "The Court . . . denies the Army summary judgment and grants [plaintiff] partial summary judgment on the Army's redaction of names under Exemption 6." "[T]he Court finds that the public interest in understanding what the government is up to outweighs the interest of the Army employees in privacy as to the names of the involved employees." "Although there is a privacy interest, it is likely small." Also, "[plaintiff] has identified a public interest in understanding the agency's functioning that will be served by identifying the employees involved and permitting observers to understand the progress of the various released documents." However, "the Court finds that, as to their contact information, the privacy interest of the Army employees outweighs the public interest in disclosure."
   

• Procedural Requirements, Searching for Responsive Records: The court holds that "[plaintiff's] motion for partial summary judgment is . . . granted to the extent that the Corps is ordered to re-review and, if appropriate, release the records previously labelled as non-responsive." The court relates that "[b]oth parties agree that the D.C. Circuit's recent decision established that there is 'no statutory basis [in FOIA] for redacting ostensibly non-responsive information from a record deemed responsive.'"
   

• Litigation Considerations, Relief: "The Court denies [plaintiff's] requests for orders documenting violations by the Corps and Army." The court explains that "'FOIA does not create a cause of action for an agency's untimely response to a FOIA request' beyond the ability to seek an injunction from the district court." "Nor is declaratory relief appropriate."