Nat. Res. Def. Council v. EPA, No. 17-5928, 2020 WL 6891537 (S.D.N.Y. Nov. 24, 2020) (Furman, J.)

Nat. Res. Def. Council v. EPA, No. 17-5928, 2020 WL 6891537 (S.D.N.Y. Nov. 24, 2020) (Furman, J.)

Re:  Request for records concerning senior manager's participation in certain agency policymaking activities

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:  Regarding the first set of records at issue, certain briefing materials, the court holds that the records are similar to other documents "which the Court previously held were not exempt from disclosure and, therefore, "are not protected by the deliberative process privilege for the same reasons."  "Nevertheless, the Court agrees with the EPA that [these documents] are sufficiently similar to the documents subject to the EPA's currently pending interlocutory appeal that the EPA's obligation to produce these records should be stayed pending resolution of that appeal."  Regarding the second set of records at issue, emails containing "a science advisor's 'opinions regarding and characterizations of certain academic literature,'" the court finds that, for certain emails, "[t]he EPA's Vaughn Index provides no basis for a connection between [the emails] and [a relevant] registration review other than the fact that the review was occurring at the same time and the underlying study was ["'related'"]."  "It is thus far from clear that this record 'relate[s] to a specific decision facing the agency' . . . ."  For other emails, the court finds that they "contain[] 'opinions regarding and characterizations of certain academic literature,' including which 'literature would be most useful . . . to review to inform upcoming . . . registration-related decision-making.'"  Regarding the third set of records, "an email chain 'concerning which materials need to be included in the docket for [certain] Framework Rules,'" the court finds that "the EPA does not sufficiently demonstrate that these decisions on how to comply with its own guidance on compiling a rulemaking docket (1) are actually exercises of the EPA's 'essential policymaking role' in and of themselves . . . or (2) would 'reflect[ ] internal agency deliberation on matters of substantive policy prior to . . . public announcement of those decisions.'"  The court holds that "'[t]he deliberative process privilege . . . is centrally concerned with protecting the process by which policy is formulated.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements & In Camera Inspection:  The court relates that "EPA avers that, after conducting multiple re-reviews applying the standards articulated in the Court's [previous] opinion, it 'has not identified any remaining segregable, non-exempt factual material' other than what has already been produced."  "'Agencies are entitled to a presumption that [they] disclosed reasonably segregable material,' . . . and the affidavits submitted by the agency in support of its determination 'are accorded a presumption of good faith' . . . ."  The court finds that "[Plaintiff] provides no basis to overcome these presumptions."  "Although [plaintiff] argues that the 'EPA's unsystematic disclosure of additional information from records . . . in piecemeal fashion' warrants in camera review, . . . the Court will not hold against the EPA the fact that it revisited records it had already reviewed and reconsidered earlier exemption determinations in the face of continued challenges from [plaintiff]."  "That is the way the FOIA process should work."