Schaefer v. EPA, No. 20-2702, 2023 WL 2663015 (D.D.C. Mar. 28, 2023) (Cooper, J.)

Schaefer v. EPA, No. 20-2702, 2023 WL 2663015 (D.D.C. Mar. 28, 2023) (Cooper, J.)

Re:  Request for records concerning plaintiff’s criminal prosecution

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  “The Court has no trouble concluding that EPA’s search for records in this case ‘was reasonably calculated to uncover all relevant documents.’”  The court relates that “[i]n response to [plaintiff’s] extremely broad request – which sought any documents relating to him or his criminal case – the agency reasonably searched its [Online Criminal Enforcement Activities Network] database, which contains records relating to criminal investigations and prosecutions; contacted a [Criminal Investigative Division (“CID”)] special agent in the jurisdiction that was assigned to [plaintiff’s] criminal case; queried the jurisdiction’s Superfund Program Records Center database, which stores information regarding EPA environmental cleanup efforts; and ran an even broader eDiscovery search for any electronically stored information that included [plaintiff’s] name, social security number, date of birth, criminal case number, and known addresses.”  “[Defendant’s] declaration further affirms that EPA ‘searched all locations reasonably likely to have records responsive to Plaintiff’s FOIA request.’”  “[Plaintiff’s] basis for thinking EPA’s search was inadequate is nothing more than his belief that ‘Defendant would have taken pictures throughout the search’ of his apartment ‘as a matter of routine practice, training, and preservation of evidence.’”  The court finds that “[t]hat speculation cannot defeat summary judgment in this case.”
   
• Exemption 5, Deliberative Process Privilege & Litigation Considerations, Vaughn Index/Declaration:  “[T]he Court concludes that EPA has properly invoked Exemption 5.”  The court relates that “[h]ere, EPA invoked the deliberative process privilege to redact the body of one email.”  “According to the agency’s Vaughn Index, the [first] . . . email includes an exchange between an EPA CID special agent and his or her supervisor, discussing the possibility of settling criminal charges in a prosecution separate from [plaintiff’s].”  “[Another set of] . . . emails reflect a discussion between EPA and FBI law enforcement personnel concerning whether the government would bring criminal charges against [plaintiff].”  “Specifically, the emails concern an EPA CID special agent’s request for continued coordination with the FBI as it deliberates whether to pursue criminal charges.”  “These emails comfortably fall within Exemption 5.”  “Further, EPA’s descriptions of the withheld information satisfy the level of detail required . . . .”  “As for the . . . [first] email, the Vaughn Index specifies the ‘roles of the document drafters and recipients and their places in the chain of command’ . . . .”  “The Vaughn Index also describes the nature of the withheld content – ‘information shared between Agency personnel about settlement information’ in a separate criminal matter ‘provided by the Department of Justice’ – and states that disclosing these ‘individual staff thoughts and opinions concerning settlement of a criminal matter’ would harm the ‘ability of staff to frankly discuss settlement negotiations internally’ and ‘chill future negotiations.’”  “As for the [other] emails, the Vaughn index likewise specifies that the message was sent from an EPA CID special agent to an FBI agent in the context of the agencies’ coordinated criminal investigation into Schaefer.”  “The withheld content includes the EPA employee’s ‘thoughts, questions and ideas regarding whether or not to bring criminal charges . . . .’”  The court finds that “[plaintiff’s] two arguments for why Exemption 5 does not cover the October emails do not hold water.”  “First, [plaintiff] objects that ‘there is no agency decisionmaker and no agency decision’ because the ‘U.S. Attorney’s Office of the Department of Justice,’ not EPA, ‘determines what cases to prosecute.’”  “But even when ‘a second agency’ has ‘final decisional authority’ over a question, ‘views submitted by one agency’ to the other ‘are predecisional materials exempt from disclosure under FOIA.’”  “Second, [plaintiff] posits that he has been ‘wrongfully convicted on fabricated evidence’ and that the records he seeks ‘may prove the FBI lied to convict him.’”  “Construing this allegation liberally, the Court understands [plaintiff] to be invoking the exception to the deliberative process privilege ‘when there is reason to believe the documents sought may shed light on government misconduct.’”  “Although the misconduct [plaintiff] hypothesizes would be the kind of ‘extreme government wrongdoing’ that could justify invocation of this exception, . . . he has offered no factual basis to believe that the . . . email might reveal any such misconduct . . . .”
   
• Exemption 6 & Exemption 7(C):  “[T]he Court concludes that EPA has properly invoked Exemptions 6 and 7(C) to justify the limited redactions of names, contact information, and other personal identifiers from its production of documents.”  The court relates that “EPA redacted ‘cell phone numbers for Agency employees, the names, email addresses, and phone[] numbers of law enforcement personnel, and personally identifying information (e.g. names, dates of birth, social security numbers, addresses, etc.) of witnesses and interviewees pertaining to criminal investigations, and non-U.S. government license plate numbers.’”  “The information redacted here . . . falls within Exemptions 6 and 7(C).”  “‘Redaction of the names of law enforcement personnel under similar circumstances routinely is upheld.’”  “Contrary to [plaintiff’s] assertion that these officials, as public servants, lack any viable privacy interest in their names, . . . officers ‘have a legitimate interest in preserving the secrecy of matters that conceivably could subject them to annoyance or harassment in either their official or private lives . . . .”  “The same goes for the names, contact information, and other personally identifying information of other private individuals – such as witnesses or interviewees – who are mentioned in law enforcement records.”  “When it comes to information like the ‘names and addresses of third parties mentioned in witness interviews,’ the ‘privacy interest at stake is substantial’ and the ‘public interest in disclosure is not just less substantial, it is insubstantial.’”
   
• Litigation Considerations, In Camera Inspection:  The court relates that “[plaintiff] requests that the Court review the records discussed above in camera, contending that EPA’s affidavit and Vaughn Index were insufficiently specific regarding the agency’s redactions.”  “In camera review is not warranted here.”  The court finds that “EPA’s description of the documents at issue is sufficiently specific.”  “Further, EPA has explained that its staff conducted a line-by-line review of all responsive documents and released all reasonably segregable information.”  “Because ‘the agency’s affidavits provide specific information sufficient to place the documents within the exemption categor[ies],’ that information ‘is not contradicted in the record,’ and ‘there is no evidence in the record of agency bad faith,’ summary judgment ‘is appropriate without in camera review of the documents.’”