Ethyl Corp. v. U.S.E.P.A.
| Decision Date | 01 June 1994 |
| Docket Number | No. 93-1768,93-1768 |
| Citation | 25 F.3d 1241 |
| Parties | 24 Envtl. L. Rep. 21,591 ETHYL CORPORATION, Plaintiff-Appellant, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: John Jay Range, Hunton & Williams, Washington, DC, for appellant. Timothy David Backstrom, Office of General Counsel, Environmental Protection Agency, Washington, DC, for appellee. ON BRIEF: F. William Brownell, Kevin L. Fast, Kimberly A. Newman, Ross S. Antonson, Hunton & Williams, Washington, DC, for appellant. Kenneth E. Melson, U.S. Atty., Theresa Carroll Buchanan, Asst. U.S. Atty., Alan D. Margolis, Office of General Counsel, Environmental Protection Agency, Washington, DC, for appellee.
Before MURNAGHAN and NIEMEYER, Circuit Judges, and YOUNG, Senior United States District Judge for the District of Maryland, sitting by designation.
Vacated and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge MURNAGHAN and Senior Judge YOUNG joined.
After the Environmental Protection Agency ("EPA") denied the application of Ethyl Corporation for a waiver of approval for a gasoline additive, Ethyl filed this action under the Freedom of Information Act to compel the production of records from the EPA relevant to the EPA's denial of the waiver application. In its complaint, Ethyl contended that the EPA did not conduct an adequate search for the documents requested and that other documents were discovered and improperly withheld. Ethyl also requested discovery on these issues. The district court granted the EPA's motion for summary judgment, finding that Ethyl "failed to make a sufficient showing on an essential element of the case on which that party has the burden of proof." The court concluded: (1) the EPA's efforts in searching for information were adequate and no factual dispute was shown to exist; (2) the EPA's decision to withhold certain documents on the ground that they fell within the "deliberative process" privilege and the decision not to produce or describe other documents on the ground that they constituted personal, not agency, documents were proper as a matter of law; and (3) no discovery or in camera inspection was necessary to dispose of the case properly.
Because we conclude that factual questions remained on issues on which the EPA had the burden of proof, we vacate the judgment and remand the case for further proceedings.
In May 1990, Ethyl initiated an administrative proceeding before the EPA pursuant to Sec. 211(f)(4) of the Clean Air Act, 42 U.S.C. Sec. 7545(f)(4), seeking the EPA's approval of high-performance gasoline additive known as HiTEC 3000 (methylcyclopentadienyl manganese tricarbonyl). Section 211 prohibits use of a fuel additive until the manufacturer demonstrates that the additive will not interfere with the proper operation of any emission device or system. Pending completion of that proceeding, which Ethyl expects will be protracted, Ethyl requested a "fuel additive waiver" based on its own extensive and successful testing of HiTEC 3000. The EPA denied the application for a waiver on January 8, 1992, and on appeal, the issue was remanded to the EPA for further proceedings. Ethyl Corp. v. Browner, 989 F.2d 522 (D.C.Cir.1993).
On January 10, 1992 Ethyl submitted a request under the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552, for EPA documents relating to the denial of Ethyl's waiver application, including "communications between the EPA and representatives of the automobile manufacturing industry" and portions of telephone logs and calendars reflecting such communications. In response to Ethyl's request, the EPA provided approximately 450 documents and identified 243 more which it declined to disclose on the grounds that the documents were used internally in the agency's deliberative process and were protected by the attorney-client and attorney work-product privileges. The EPA therefore took the position that these documents were exempt from disclosure under Exemption 5 of the FOIA, 5 U.S.C. Sec. 552(b)(5). The EPA further noted that it was withholding an undisclosed number of documents that its employees had characterized as "personal." It did not identify those documents except to note that they consisted of calendars, telephone logs, and personal notes from telephone conversations and meetings.
When Ethyl moved to supplement the administrative record of its waiver application to include documents produced by the EPA, the EPA conducted a further review of the documents it had withheld and, concluding that 12 of them had been improperly withheld, provided them to Ethyl. With respect to the remaining withheld documents, Ethyl then filed an administrative appeal of its FOIA request. When the EPA failed to respond, Ethyl filed this action in August 1992, seeking a court order compelling the EPA to disclose the remaining documents it had identified as responsive but exempt from mandatory disclosure along with documents identified as personal.
Along with its complaint, Ethyl filed a motion to compel the production of a Vaughn index 1 and served a set of interrogatories and requests for the production of documents. The EPA opposed Ethyl's discovery requests and took the position that it was not obliged to produce the Vaughn index until it filed a motion for summary judgment.
Although the district court stayed discovery until it could consider the EPA's motion for summary judgment, it entered an order directing the EPA to produce a Vaughn index. The order required the EPA to provide with respect to each withheld document: (1) its date; (2) its author and each recipient; (3) a description of its contents; (4) the reason for withholding its production, stated with sufficient specificity "to allow the court to determine whether the document has been properly withheld"; (5) any public interest determination made by the EPA concerning such withholding; and (6) "an identification of any reasonably segregable portions of a withheld document that may be disclosed to Ethyl, with a statement of all reasons for withholding the remainder of the document." Although the EPA filed a Vaughn index with the district court, it failed to provide most of the information required by the district court's order. Nevertheless, two days after producing the Vaughn index, the EPA determined that 79 more withheld documents could be released, and it provided them to Ethyl.
In February 1993, the EPA filed a motion for summary judgment relying on affidavits of David Kortum, the EPA official assigned the task of collecting the documents, and Mary Smith, the Director of the Field Operations and Support Division of the EPA's Office of Mobile Sources. The Smith affidavit revealed that five previously unidentified documents had been added to the Vaughn list and that another, which had been identified and withheld, was being produced. Ethyl states that on another occasion the EPA released three more documents. It contends that as of this time the number of documents being withheld totals 146. 2
The district court granted the EPA's motion for summary judgment on April 19, 1993, ruling that "the non-moving party [Ethyl] has failed to make a sufficient showing on an essential element of the case on which the party has the burden of proof." The court concluded that, based on the affidavits presented, the EPA had conducted "an adequate and thorough search" for responsive documents, and that Ethyl had failed to contradict the EPA's assertions in that regard. The court concluded that the only undisclosed documents were those listed on the EPA's Vaughn index, and based on information in the index, it concluded that the disputed documents were protected by the agency's "deliberative process privilege for pre-decisional and deliberative documents and that further disclosure would harm the public interest." The court also concluded that any purely factual materials in the withheld documents were not "reasonably segregable from the deliberative context of the documents." The court's findings were made on the basis of the Vaughn index and without the benefit of any in camera review.
Following the district court's ruling, Ethyl made a second FOIA request in July 1993, seeking further documents relating to the EPA's denial of its application for a gasoline additive waiver. In its second request, Ethyl asked the EPA to omit from its response any documents which had previously been produced in response to the first FOIA request. The EPA provided further documents in response to the second request, some previously produced, explaining that the agency had kept no record of which documents it had produced in response to the first FOIA request. Ethyl asserts that 17 documents produced in response to the second request were also responsive to the first request, and cites this fact as relevant to its contention that the EPA improperly withheld documents on the first request. It is unclear whether any of the 17 documents in question were listed on the Vaughn index of withheld documents that are the subject of this action.
The Freedom of Information Act was enacted to maintain an open government and to ensure the existence of an informed citizenry "to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2327, 57 L.Ed.2d 159 (1978). While an efficient and effective democratic government is one that is open to the people and accountable to them, the people's access must be orderly and not so unconstrained as to disrupt the government's daily business. Although the Act recognizes these principles, it nevertheless is to be construed broadly to provide information to the public in accordance with its purposes; for the same reason, the exemptions from production are to be construed narrowly. See ...
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