PacifiCorp v. EPA, No. 13-cv-02187, 2014 WL 87509 (D. Colo. Jan. 8, 2014) (Moore, J.)

PacifiCorp v. EPA, No. 13-cv-02187, 2014 WL 87509 (D. Colo. Jan. 8, 2014) (Moore, J.)

Re:  Request for information concerning Wild Earth Guardians v. Jackson, which concerns EPA's duties under Clean Air Act

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

• Litigation Considerations, Adequacy of Search:  The court finds that "the method by which the EPA conducted its initial search demonstrates it was not reasonably calculated to produce the requested information."  The court explains that "it is apparent that no search was conducted of hard copies of records" and that "the responsive documents revealed an additional 23 employees may have responsive information but they were not asked to conduct a search."  However, as to "the last three categories of information requested by [plaintiff] in its first FOIA request," "the Court finds no violation by the EPA in light of the parties' miscommunication."
   
• Exemption 6:  The court holds that "[t]he Vaughan index, along with other supporting evidence, substantiates the EPA's withholding of documents claimed under exemption 6."  The court relates that "[h]ere, the limited information segregated and withheld through redaction contains personal email addresses, an individual's health and leave, and the EPA's conference call and code numbers."  The court explains that "[s]uch information is not only personal but also non-responsive to the FOIA requests."
   
• Exemption 5, Attorney Work-Product Privilege:  The court "finds that purely factual information which does not disclose such mental impressions and/or are not 'inextricably intertwined' with such mental impressions are subject to disclosure."  The court notes that "EPA argued it was not required to segregate factual information from work-product documents," but that "its evidence is conflicting as to what actions it took with respect to such documents."  "As such, the Court finds the Vaughan index, coupled with the record before the Court, fail to show the EPA properly withheld materials claimed under the attorney work-product privilege."
   
• Exemption 5, Attorney-Client Privilege:  The court largely finds that "[u]nder the facts and circumstances of this case, . . . the [Vaughn] index's repeated references to matters such as advice or counsel concerning strategy, deadlines and extensions for the Consent Decree or the WildEarth Guardian litigation are not vague or conclusory in light of the requests to which the documents are responsive."  However, with respect to one document, the court finds that "[t]he fact that an attorney was copied on a communication, without more, is insufficient to establish the communication is covered by the attorney-client privilege."
   
• Exemption 5, Deliberative Process Privilege:  The court finds that the deliberative process privilege was appropriately invoked based on defendant's statement that "the information does not represent an official agency decision or policy, but reflects analysis and recommendations on issues still in development, and release would have a chilling effect on the agency's ability to have open and frank discussions."  However, with respect to one document, the court finds that "no deliberative process privilege was claimed" and so "withholding of such information on this basis was improper."
   
• Litigation Considerations, In Camera Inspection:  The court finds that "[i]n light of the Court's determination that the EPA's Vaughan index and declarations contain detailed explanations of the information withheld and supporting exemptions, an in camera inspection is unnecessary."