Pub. Employees for Envtl. Responsibility v. EPA, No. 15-1012, 2016 WL 5676298 (D.D.C. Sept. 30, 2016) (Cooper, J.)
Re: Request for records concerning potential violation of federal 'revolving-door' prohibitions by former member of U.S. Chemical Safety and Hazard Investigation Board
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment
- Exemption 5, Attorney-Client Privilege: "The Court finds that the investigative memoranda at issue were properly withheld under FOIA's Exemption 5." The court holds that "the attorney-client privilege allow[s] an agency to withhold memoranda, including factual findings, written by agency investigators to agency lawyers in order to secure legal advice regarding the criminal liability of an outside party." The court relates that defendant withheld "emails and investigative memoranda, most of them written by OIG investigators for the purpose of seeking legal advice from either OIG or EPA attorneys in connection with an identified, potential revolving-door violation." The court finds that "it is inaccurate to say that the withheld communications 'had no bearing' on the agency's 'responsibilities'" because they involved a potential "'violation of Federal criminal law.'" Moreover, the court notes that "[c]ourts have applied the attorney-client privilege in the FOIA context to protect legal advice from agency attorneys to agency investigators concerning the legal parameters of third-party conduct." The court also rejects plaintiff's segregability argument and holds that "the attorney-client privilege protects not only legal advice, but the confidentially conveyed facts upon which that advice is based."