Pub. Employees for Envtl. Responsibility v. EPA, No. 14-2056, 2016 WL 5675410 (D.D.C. Sept. 30, 2016) (Contreras, J.)

Date: 
Friday, September 30, 2016

Pub. Employees for Envtl. Responsibility v. EPA, No. 14-2056, 2016 WL 5675410 (D.D.C. Sept. 30, 2016) (Contreras, J.)

Re: Request for records concerning EPA's involvement with "'suspected or actual toxic contamination at schools in the Santa Monica Malibu Unified School District'"

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

  • Exemption 5, Deliberative Process Privilege: "[T]he Court concludes '"not that the documents are not exempt as a matter of law, but that the agency has failed to supply" in its Vaughn submissions "the minimal information necessary to make a determination" concerning applicability of the deliberative process privilege.'" The court finds that "[plaintiff's] primary argument – that EPA's Vaughn indices are inadequate because they fail to tie withheld material to an agency decision or decisionmaking process – alone succeeds in defeating summary judgment for EPA with respect to the deliberative process privilege." The court explains that, "EPA is correct that it is not required to identify a specific agency decision, . . . it is required to show that the document was 'generated as part of a definable decision-making process.'" Additionally, the court finds that "for many documents withheld by EPA, the Vaughn indices fail to describe with any amount of detail the 'function and significance of the document(s) in the agency's decisionmaking process.'" "Finally, for many of the documents at issue here, EPA's Vaughn indices and supporting declarations, taken as a whole, do not adequately describe the 'nature of the decisionmaking authority vested in the office or person issuing the disputed document(s), and the positions in the chain of command of the parties to the documents.'" Based on these findings, the court "direct[s] the agency to revise its Vaughn submissions."
     
  • Exemption 5, Attorney-Client Privilege: First, the court finds that, "[t]o the extent EPA seeks summary judgment related to communications that do not appear to include an attorney, the motion will be denied." The court explains that "EPA has failed to carry its burden to show that the withheld communications were made to a member of the bar, acting in his or her capacity as a lawyer." "Next the Court turns to a smaller subset of documents that include an attorney in some portion of the communication" and grants in part and denies in part defendant's motion for summary judgment. On some of these documents, the court agrees with plaintiff's argument that "'the actual withheld documents only contain communications from EPA staff, not from attorneys' and that, although [one attorney] is on the distribution list, 'there is no response from him, providing legal advice or otherwise.'" However, on other documents, "the Court finds that EPA has met its burden of establishing the essential elements of the attorney-client privilege[.]" Specifically, the court responds to plaintiff's objection and finds that "[t]he application of the attorney-client privilege does not turn on a formalistic rule requiring the attorney to respond to a client with legal advice in the same series of communication."
     
  • Litigation Considerations, "Reasonably Segregable" Requirements: "[T]he Court concludes that, at this time, EPA's segregability efforts do not meet the standard[.]"
     
  • Exemption 6: "[T]he Court finds there is no genuine issue of material fact and will grant summary judgment for EPA on this issue." The court finds that "EPA has presented evidence showing that [the one document at issue] implicates [a third party's] privacy interest, and that the document reveals nothing of relevance about the agency's actions." "Aside from the unsupported factual conclusion that Exemption 6 does not apply, . . . [plaintiff] has done nothing to designate 'specific facts showing that there is a genuine issue for trial.'"
Topic: 
Exemption 5
Exemption 6
Litigation Considerations
Segregability
Updated January 19, 2017