Urban Air Initiative, Inc. v. EPA, No. 15-1333, 2017 WL 4284542 (D.D.C. Sept. 25, 2017) (Jackson, J.)

Urban Air Initiative, Inc. v. EPA, No. 15-1333, 2017 WL 4284542 (D.D.C. Sept. 25, 2017) (Jackson, J.)

Re:  Request for records concerning Gasoline Fuel Effects Study

Disposition:  Granting in part and denying in part plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[T]he Court finds that the declaration does not describe an adequate search and summary judgment for the agency is inappropriate at this time."  The court finds that "[w]hile plaintiffs clearly narrowed their request to distinguish records related to the design of the tests to be utilized from the results of the tests themselves, the request is broad enough to cover any efforts to fine tune and finalize the design of the study that may have occurred even after some initial testing had begun."  Therefore, defendant's search was too narrow.  Additionally, defendant "does not aver that no other custodians [other than those searched] were likely to possess responsive documents."  "Moreover, even though the declaration describes the systems that these custodians searched, it fails to set forth the search terms used and the type of searches that each custodian performed."  "And the declaration never provides an explanation as to why 'no other record system was likely to produce responsive documents.'"  Finally, "some topics . . . were not included in the search in any way."
   
• Exemption 4:  "Because courts generally defer to the agency's predictive judgments as to substantial competitive harm, . . . and because EPA's Vaughn index and declarations describe the records and the justifications for nondisclosure with reasonable detail, . . . the Court concludes that EPA's unopposed invocation of FOIA Exemption 4 was appropriate, and it will grant summary judgment in favor of defendant."  The court relates that defendant withheld "'(1) data, experiences, approaches, and methodologies; (2) proprietary processes, organization of reports and analyses, facilities, and equipment; and (3) financial information.'"  The court relates that "EPA concluded that all of the documents at issue were required submissions" and disclosure of the withheld information "'would allow competitors to use the information to underbid [the submitter] or offer more favorable commercial terms resulting in lost business opportunities to the company[]'" or "allow other entities to gain insight into [the submitter's] confidential and proprietary information and strategies, take advantage of techniques and approaches developed by [the submitter] without any cost, and access confidential financial information that would allow competitors to anticipate [the submitter's] fees and allow competitors to underbid [the submitter] in the future."
   
• Exemption 6:  "Because plaintiffs do not challenge any of the redactions under Exemption 6, they have not identified any public interest in the disclosure of this information."  "Where the court has 'been shown no public interest in, and a modest personal privacy interest against disclosure,' the court 'need not linger over the balance; something, even a modest privacy interest, outweighs nothing every time.'"  The court relates that "[t]he information redacted includes 'EPA employees' personal medical information, contact information, and leave plans, and conference call-in information.'"
   
• Exemption 5:   "[A]fter analyzing the agency's Vaughn index and conducting an in camera review of a representative sample of documents withheld or redacted under Exemption 5, the Court is satisfied that the documents within each of the seven categories identified by plaintiffs were properly withheld or redacted pursuant to Exemption 5."  The court finds that "[the withheld] decisions, which the agency reached through the exchange of emails and other internal agency records as identified in the Vaughn index, are exactly the type of agency judgments that the deliberative process privilege protects."  "All of these choices were committed to the expertise and judgment of EPA, and the fact that the internal discussions leading up to the final conclusions entailed considerations of scientific principles does not mean that those discussions were not 'deliberative.'"  The court also relates that "[p]laintiffs argue that scientific deliberations are not protected because they do not 'further Exemption 5’s core purpose of enhancing the quality of agency deliberations.'"  "But [the court finds that] this theory makes little sense when an agency's core mission is directly related to and affected by science."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "[T]he Court will grant defendant's motion for summary judgment on the issue of segregability."  The court relates that "EPA has provided a comprehensive, 277 page, Vaughn index, as well as a 25–page supplemental Vaughn index, that describe each document withheld and the exemption under which it was withheld, and both state that no additional reasonably segregable information could be released."  "Further, the Court's in camera review of the provided documents confirms this conclusion."