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Pub. Emps. for Envtl. Responsibility v. EPA, No. 14-2056, 2017 WL 6333969 (D.D.C. Dec. 11, 2017) (Contreras, J.)


Pub. Emps. for Envtl. Responsibility v. EPA, No. 14-2056, 2017 WL 6333969 (D.D.C. Dec. 11, 2017) (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; granting in part and denying in part plaintiff's motion for summary judgment

  • Exemption 5, Deliberative Process Privilege:  "Having reviewed the records in camera, the Court agrees that [certain documents] were properly withheld under the deliberative process privilege."  "The redacted material in each document contains internal agency deliberations that evaluate proposed policy options, suggest next steps for the agency, or seek advice from other EPA components about policy alternatives."  However, the court also finds that "four disputed documents . . . are not properly withheld pursuant to the deliberative process privilege."  The court explains that one "record explains design choices that had already been made, [and] . . . cannot be called predecisional and it therefore cannot be shielded under Exemption 5."  "[T]he Court cannot tie [two other records] to any internal policy decision or decisionmaking process."  The last record only "contain[s] explanations and clarifications relating to published EPA studies[]" and "the deliberative process privilege does not protect 'documents that merely state or explain agency decisions.'"
  • Litigation Considerations, "Reasonably Segregable" Requirements:  "[The] Court's inspection of the documents disputed in this case confirms that most of the records do not feature reasonably segregable factual information."  "The sparse factual material present in most of the documents 'reflects an "exercise of discretion and judgment calls"' and its 'exposure would enable the public to probe an agency's deliberative process.'"  However, the court does order information on several other documents to be segregated and released.
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Litigation Considerations, “Reasonably Segregable” Requirements
Updated December 8, 2021