Pebble v. EPA, No. 14-0199, 2016 U.S. Dist. LEXIS 76912 (D. Alaska June 14, 2016) (Holland, J.)

Pebble v. EPA, No. 14-0199, 2016 U.S. Dist. LEXIS 76912 (D. Alaska June 14, 2016) (Holland, J.)

Re: Request for records concerning plaintiff's mining plans

Disposition: Granting in part and denying in part defendant's motion for summary judgment; ordering certain material released to plaintiff

• Exemption 5, Threshold:  The court holds that "communications between . . . contractors [at issue here] and defendant are treated as intra-agency communications to which Exemption 5 could apply."  The court explains that "[c]ommunications between an agency and its contractors can be considered intra-agency communications 'if the consultant "does not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it."'"  "The contractors hired by defendant to perform certain tasks in connection with the Bristol Bay Watershed Assessment . . . were used by defendant to inform its decision-making process."
   
• Exemption 5, Deliberative Process Privilege:  The court evaluates each remaining document at issue to ensure that they are "'both (1) "predecisional" or "antecedent to the adoption of agency policy" and (2) "deliberative," meaning "it must actually be related to the process by which policies are formulated."'"  The court finds that certain documents are withholdable, but orders other documents and portions of documents released.