Nat'l Res. Def. Council v. EPA, No. 17-5928, 2019 WL 6467497 (S.D.N.Y. Dec. 2, 2019) (Furman, J.)

Nat'l Res. Def. Council v. EPA, No. 17-5928, 2019 WL 6467497 (S.D.N.Y. Dec. 2, 2019) (Furman, J.)

Re:  Request for records concerning senior manager's participation in certain agency policymaking activities under amended Toxic Substances Control Act

Disposition:  Denying defendant's motion for reconsideration

• Exemption 5, Deliberative Process Privilege & Litigation Considerations:  The court denies defendant's motion for reconsideration.  The court relates that "EPA's primary argument is that the Court ignored controlling precedent [from the Second Circuit Court of Appeals] . . . ."  However, the court finds that while "[it] did not specifically cite [the prior precedent] in its discussion of 'messaging' documents . . . it did cite the decision elsewhere . . . ." and "the Court relied on its own prior decision."  Additionally, the court finds that "EPA simply seeks to relitigate or second-guess the Court's decisions as to whether it carried its burden of proof to show that these documents were privileged, often by drawing facile comparisons to documents that the Court, after meticulous review, found were protected."  "In its earlier Opinion, the Court held that the EPA had failed to carry its burden of showing that [one document] – a chain of emails discussing how to respond to a media inquiry about the New Chemicals program – was protected by the deliberative process privilege because the EPA connected the document only to '"messaging" decisions, not the underlying policy decisions that [were] being communicated.'"  "Making matters worse, as Plaintiff observes, in doing so, the EPA makes 'assertions about records or portions of records this Court has found non-exempt that are either unsupported by, or at odds with, EPA's Vaughn index.'"  "Needless to say, that is not a valid basis for reconsideration."