Natural Resources Def. Council v. EPA, No. 17-5928, 2019 WL 4142725 (S.D.N.Y. Aug. 30, 2019) (Furman, J.)

Natural Resources Def. Council v. EPA, No. 17-5928, 2019 WL 4142725 (S.D.N.Y. Aug. 30, 2019) (Furman, J.)

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

Disposition:  Granting in part and denying in part defendant's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  "[T]he Court concludes that the EPA has carried its burden of showing that its search was adequate."  Specifically, responding to plaintiff's objection, the court finds that "the agency's choice of search terms was reasonable and 'reasonably calculated to produce documents responsive to the . . . request.'"  The court finds that "'[f]ederal agencies have discretion to craft the search terms that they believe to be reasonably tailored to uncover documents responsive to a FOIA request,' . . . and, in general, 'a FOIA petitioner cannot dictate the search terms for his or her FOIA request . . . .'"  "Here, the EPA developed a reasonably broad set of search terms in consultation with subject matter experts in [the subject's] office and the EPA's Office of General Counsel."
   
• Exemption 5:  The court evaluates the forseeable harm requirement and holds that "because the agency has demonstrated a logical relationship between the specific decisionmaking processes involved and the harms that the privilege guards against, it has shown that it 'reasonably fores[aw] that disclosure would harm' its Exemption 5-related interests."  "First, the EPA explains in some detail how disclosure of records relating to the Section 6(a) rulemakings, the pesticide registration reviews, the Chemical Data Reporting rules, and the evaluation of existing regulations could prematurely disclose agency rulemakings or policies that have not been finalized."  "Second, the affidavit lays out, for example, that [the subject] exchanged emails and working drafts of scope documents with OSCPP staff and EPA attorneys and that those records contain 'unvetted, incomplete and subjective opinions and rationales of [the staff] who shared the information with [the subject] for internal discussion.'"  "Disclosure of those rationales and opinions could risk 'confusing the issues and misleading the public.'"  "Finally, the agency describes how staff members' '[c]andid, even blunt, staff considerations and assessments' of programs like New Chemicals are important to improving the agency's processes and that disclosure of frank opinions about 'existing approaches' and ways to improve could discourage such candor in the future."  "[T]he Court finds overall that the agency has adequately articulated 'the link between this harm and the specific information contained in the material withheld.'"
   
• Exemption 5, Deliberative Process Privilege:  First, the court holds that "'[i]nternal deliberation on a final agency rule clearly falls within the traditional scope of the deliberative process privilege.'"  "That principle encompasses not only drafts of the rule or regulation in question, but also 'any communications regarding [the] drafting and revision' of the rule."  "After all, such documents are plainly predecisional with respect to the rule being crafted and, almost by definition, deliberative – not merely 'related to the process by which policies are formulated,' but constituting the process itself."  "For similar reasons, the Court concludes that seven records containing drafts of policy papers, reports, and internal agency guidance are protected by the deliberative process privilege."  "Three records are drafts of policy (or 'white') papers regarding, for example, interim methods for evaluating pesticide assessments under the Endangered Species Act."  "Those three records are obviously predecisional with respect to the draft policies in question, and 'reflect[ ] advisory opinions, recommendations and deliberations comprising part of a process' of crafting those policies, which did not represent the final views of the EPA and might 'inaccurately reflect' the views of the agency if disclosed."  "Two others are draft responses by the EPA as part of inter- or intra-agency review – specifically, in providing feedback on a Department of Commerce report with respect to reducing regulatory burdens and in crafting an EPA report in response to an executive order mandating evaluation of existing agency regulations."  "Finally, [two documents] – which are draft internal guidelines for EPA staff to be used in (1) evaluating companies' submissions for new chemicals and (2) developing risk assessments for chemicals, . . . – were properly withheld by the EPA."  "These records reflect 'advisory opinions, recommendations and deliberations' about how the agency should carry out specific aspects of its statutory mandate."  However, "the Court concludes that the EPA has, with one exception, failed to demonstrate that [certain] 'messaging' records have been properly withheld under the deliberative process privilege."  "'[B]ecause they merely "reflect deliberations about what 'message' should be delivered to the public about an already-decided policy decision" and, thus, their disclosure would not "reveal the deliberative process underlying a not-yet-finalized policy decision,"' these records are not protected under Exemption 5."  The court explains that "deliberations about messaging decisions are generally not protected unless an agency is 'exercising its essential policymaking role in [making] those routine messaging decisions, or that [those messaging decisions] are of the type that Congress has (even impliedly) authorized [the agency] to make in the exercise of its statutory discretion.'"  Similarly, regarding draft responses to Congress, the court finds that "EPA does not sufficiently demonstrate that these decisions on how to respond to congressional inquiry about agency policy (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 continues to go through several categories of briefing documents and other miscellaneous documents and finds the deliberative process privilege properly invoked when defendant explained why the material at issue was deliberative and predecisional, but not properly invoked when defendant did not fully explain the deliberative process privilege and when the material was purely factual.
   
• Exemption 5, Attorney-Client Privilege:  The court holds that "four records . . . were properly withheld by the EPA."  These records were created "'for the purpose of . . . providing legal advice' on a 'matter for which the client has sought professional advice'" and included an email, two draft letters, and a draft agenda.  Specifically on the last document, the court finds that it "is protected because it includes 'identified legal matters' relating to OCSPP’s policymaking function and within the attorney-client relationship."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "[U]pon review of the ten records in camera, . . . the Court is not persuaded by the EPA's across-the-board claims that it has appropriately disclosed all of the reasonably segregable, non-exempt material from its records."