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S. Env't L. Ctr. v. Council on Env't. Quality, No. 18-00113, 2020 WL 7331996 (W.D. Va. Dec. 14, 2020) (Conrad, J.)

Date

S. Env't L. Ctr. v. Council on Env't. Quality, No. 18-00113, 2020 WL 7331996 (W.D. Va. Dec. 14, 2020) (Conrad, J.)

Re:  Request for records concerning Council on Environmental Quality ("CEQ")'s Advance Notice of Proposed Rulemaking ("ANPRM") titled "Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act" published in the Federal Register on June 20, 2018

Disposition:  Ordering defendant to produce unredacted documents to plaintiff

  • Exemption 5, "Foreseeable Harm" Requirement:  The court relates that "CEQ has submitted various categories of documents for the court to review in camera."  "The court has reviewed the records in their redacted and unredacted forms."  The court finds that, "[u]pon review of each of the submitted records, the court concludes that CEQ has not adequately demonstrated it will suffer a reasonably foreseeable harm from the documents' unredacted production."  The court finds that "the court's in camera review of the documents showed scant risk [of] either potential harm arising."  "To justify its redactions, [defendant] cites a 'foreseeable harm of chilling speech and stifling frank and open discussions' and a general 'risk of public confusion.'"  "Simply put, having studied each unredacted document, the court cannot conclude that 'disclosure would harm an interest protected by an exemption.'"  "As stated previously, the foreseeable harm requirement is subject to a 'heightened standard[;]'" "[t]hat is, the agency must 'articulate both the nature of the harm and the link between the specified harm and specific information contained in the material withheld.'"  "Bearing this in mind, and having had the benefit of reviewing the unredacted documents in camera, the court finds Exemption 5 inapplicable to the records submitted for in camera review."
Court Decision Topic(s)
District Court opinions
Exemption 5
Updated November 9, 2021