Husch Blackwell LLP v. EPA, No. 18-01213, 2020 WL 709376 (D.D.C. Feb. 12, 2020) (Mehta, J.)

Husch Blackwell LLP v. EPA, No. 18-01213, 2020 WL 709376 (D.D.C. Feb. 12, 2020) (Mehta, J.)

Re:  Requests for communications between certain EPA officials and certain individuals associated with either International Agency for Research on Cancer or California's Office of Environmental Health Hazard Assessment

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

• Litigation Considerations, Adequacy of Search:  "The court agrees with Plaintiff that the search was inadequate."  The court relates that "[a]fter lengthy correspondence, EPA and Plaintiff settled on a single string of search terms; that search string included the names of the six non-EPA individuals identified by Plaintiff."  "The EPA ran this single search across the custodial files of the six EPA personnel identified by Plaintiff."  The court finds that "by limiting the search to only six custodial files, the agency missed any communications between other agency personnel and the six non-EPA individuals that did not include the six custodians."  "This is not to say that the agency had to search the custodial files of all EPA personnel to find responsive records."  "That would be too great a burden."  "But the agency did have to undertake a reasonable effort to determine which EPA personnel other than the six custodians might have communicated with the six non-EPA persons and to search those additional custodial files."  "Optimally, the parties would have reached agreement on the universe of relevant custodians."  "In any event, by limiting the search to the files of only the six identified EPA officials, the agency fell short of its obligation to run searches that would 'be reasonably expected to produce the information requested.'"
   
• Exemption 3:  "[T]he court grants as conceded the EPA's motion as to Exemption 3."  The court relates that "Plaintiff does not dispute the EPA's withholding of several records pursuant to Exemption 3 and the Federal Insecticide, Fungicide, and Rodenticide Act."
   
• Exemption 5, Deliberative Process Privilege:  "The court has reviewed the Vaughn index descriptions and is satisfied that they establish that the records in question were properly withheld pursuant to the deliberative process privilege in light of the foregoing authorities."  The court relates that "Plaintiff challenges the withholding, under Exemption 5, of three categories of documents pursuant to the deliberative process privilege: (1) 'materials preparing officials for congressional testimony and draft responses to Congress;' (2) 'draft question and answer responses in preparation of the release of the registration review of glyphosate and [tetrachlorvinphos];' and (3) 'draft web content and news briefs to be published as part of the process of the registration review of glyphosate.'"  The court finds that "'Courts in this jurisdiction have repeatedly concluded that talking points prepared for use in congressional testimony are deliberative and predecisional documents subject to FOIA exemption 5.'"  "The same is true of talking points and deliberations about press inquiries or public statements by an agency."  "Similarly, this court has previously held that '[p]redecisional documents include those "generated as part of a continuous process of agency decision making, viz., how to respond to ongoing inquiries[.]"'"  "'Accordingly, "courts have generally found that documents created in anticipation of press inquiries are protected."'"
   
• Exemption 5, Attorney-Client Privilege:  The court holds that "Defendant's Motion is denied as to the two records withheld pursuant to the attorney-client privilege."  The court finds that, "[w]ith respect to the withheld portions of [a certain email chain] the EPA has failed to state 'with sufficient particularity' the nature of the legal issues or legal advice sought."  "The agency does not, for instance, explain how the communication conveyed or sought legal advice about the ongoing litigation, particularly in the context of a press inquiry."
   
• Exemption 6:  "[T]he court agrees with the EPA that the potential harm and embarrassment to the EPA employee of releasing 'an intimate [email] conversation' ["between an EPA employee and 'a personal acquaintance or family member'"] outweighs any public interest in the email content, given that the email 'does not shed light on the employee's performance of official duties.'"  "This is especially true given that the substantive email attachment has been released to Plaintiff in full."  "The court also agrees that there is no public interest in the third party's contact information, given that the email exchange was of a personal nature."  "In fact, the EPA did release a portion of the email address reading 'arthursellakum,' while redacting the rest of the address 'to allow Plaintiff some information about who the person is without violating the individual's privacy,' . . . or causing 'unsolicited communications or harassment' . . . ."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "[t]he EPA has met its burden of demonstrating that it segregated all non-exempt material from withheld documents."  The court finds that "[t]he EPA provided a detailed Vaughn index, describing the individual documents or portions withheld and offering a segregability analysis as to each set of withholdings."