Natural Res. Def. Council v. EPA, No. 17-5928, 2019 WL 3338266 (S.D.N.Y. July 25, 2019) (Furman, J.)

Natural Res. Def. Council v. EPA, No. 17-5928, 2019 WL 3338266 (S.D.N.Y. July 25, 2019) (Furman, J.)

Re:  Request for records concerning Deputy Assistant Administrator of the Office of Chemical Safety and Pollution Prevention at EPA

Disposition:  Ordering defendant to submit supplemental Vaughn Index and certain records for in camera inspection

• Litigation Considerations, Vaughn Index/Declaration:  "[T]he Court finds that the generic, across-the-board articulations of harm provided by the EPA as to a broad range of document types – that '[r]elease of the withheld information would discourage open and frank discussion' and 'have a chilling effect on the Agency's decision-making processes,' . . .  – does not sufficiently 'explain how a particular Exemption 5 withholding would harm the agency’s deliberative process.'"  "Accordingly, . . . EPA shall submit a supplemental or revised affidavit and/or Vaughn index that more specifically and particularly describes the Exemption 5-related interests that would be harmed by disclosure of the documents at issue."  "In so directing, the Court acknowledges that an agency 'is not required to provide so much detail that [any] exempt material effectively would be disclosed,' . . . and that a categorical approach to different types of documents may well be appropriate."
   
• Litigation Considerations, In Camera Inspection:  The court holds that "in order to better evaluate the EPA's claims that it has segregated all reasonably segregable, non-exempt material from the documents at issue, . . . the Court concludes that ex parte, in camera inspection of a sample of the challenged documents is warranted."  The court explains that "[plaintiff] raises colorable arguments that the EPA has withheld non-exempt factual information without adequately justifying its non-disclosure."