Tuesday, February 26, 2013
Re: Request for a copy of report created by a consultant in response to an employee's allegations that his workplace environment was hostile Disposition: Granting defendant's motion for summary judgment in part
- Jurisdiction:As an initial matter, the court decides that the only claim properly before it is Public Employees for Environmental Responsibility's [PEER's] FOIA claim. The employee whose complaints of harassment led to the generation of the investigative report from an outside consultant at issue settled all claims as part of an agreement he reached with the agency. The court notes that this employee "was represented by counsel" and any FOIA/PA claim "was covered and precluded by the broad language of the settlement agreement." In addition, "PEER has no Privacy Act rights." As the court notes, "[u]nlike FOIA, the PA extends no rights to organizations or corporations."
- Exemption 5:The court finds that EPA properly applied Exemption 5 pursuant to the deliberative process privilege to the report at issue with the exception of the "first three sections of the document, which comprise roughly the first page and a half of the report and are segregable factual background paragraphs that do not fall within the exemption." Those three sections "titled 'Introduction,' 'Methodology,' and 'Documents That Were Reviewed,'" only "describe [the outside consultant's] general methodology." The court finds that "the record is clear that the deliberative process to which the . . . Report contributed was [a supervisor's] determination of the nature of the management issues at WED [the EPA Western Ecology Division] and what options he might consider." The court characterizes the report as containing "recommendations on ways to respond to [the employee's] complaints." The court further notes that "to the extent that facts are discussed" in the report regarding the employee's allegations, "they are considered in more analytical contexts, tied inextricably to [the outside consultant's] opinions and discussions." The court determines that releasing more of the report "would pose a significant threat to the ability of the Agency to have frank internal discussions on personnel matters." The outside consultant who investigated the employee's complaints interviewed numerous individuals and "required candor from those to whom he spoke, and his report contains his conclusions from those interviews, with varying degrees of attributed truth."
- Exemption 6: The court notes that EPA properly applied Exemption 6 to significant portions of the report. The court declares that "[t]o the extent that the report contains information revealed by interviewees who spoke candidly so that [the employee's] allegations could be addressed, those persons have a compelling privacy interest in non-disclosure." In addition, the court "concludes that PEER establishes no particular public interest in the . . . Report." Finally, the court determines that "there is no factual information that can be severed from otherwise exempt material, and thus redaction of names is not a solution."
- Segregability: The court finds that with the exception of the first three sections of the report which pertain to the outside consultant's methodology, "Exemptions 5 and/or 6 protect the report from disclosure. The material is inextricably intertwined with [the outside consultant's] analysis and opinions, cannot be segregated, and is protected by the Exemption 5 deliberative process privilege and/or Exemption 6."
Updated August 6, 2014