731 F.2d 16 (D.C. Cir. 1984), 83-1221, Center for Auto Safety v. E.P.A.

Docket Nº:83-1221.
Citation:731 F.2d 16
Case Date:March 27, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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731 F.2d 16 (D.C. Cir. 1984)




No. 83-1221.

United States Court of Appeals, District of Columbia Circuit

March 27, 1984

Argued Nov. 21, 1983.

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Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-3237).

Frederic Townsend, Washington, D.C., with whom Alan B. Morrison and Cornish F. Hitchcock, Washington, D.C., were on the brief, for appellant.

Laura F. Einstein, Attorney-Advisor, Dept. of Justice, Washington, D.C., of the Bar of the Dist. of Columbia Court of Appeals, pro hac vice, by special leave of the Court, with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time of the brief was filed, Royce C. Lamberth, R. Craig Lawrence and Michael J. Ryan, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before MIKVA and SCALIA, Circuit Judges, and RICHEY [*], District Judge for the United States District Court for the District of Columbia.

Opinion for the Court filed by District Judge CHARLES R. RICHEY.

CHARLES R. RICHEY, District Judge:

This is an appeal from the trial judge's grant of the government's Motion for Summary Judgment based on a detailed affidavit in lieu of an in camera inspection of requested documents under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552 (1976 & Supp. V 1981). Appellant, Center for Auto Safety ("the Center") is a non-profit consumer organization chartered under the laws of the District of Columbia for the purpose of improving the quality, safety, fuel efficiency and emissions controls of motor vehicles. It was founded in 1973 by Ralph Nader and Consumers Union. This case arises from the trial court's decision not to inspect 19 documents in camera that the Center had requested from the Environmental Protection Agency (EPA) under the FOIA. The documents concerned an EPA decision to accept a plan under which General Motors (GM) would "offset" previously illegally high levels of auto emissions by lowering such levels in future car model years. This Court is asked to decide the circumstances under which a district court must conduct an in camera review of a small sample of documents in order to verify an agency's assertions that factual material is "inextricably intertwined" with exempt deliberative portions of records. Specifically, the Center urges this Court to adopt a limited per se rule requiring the trial court to conduct an in camera review of documents claimed to be exempt under Exemption 5 of the FOIA. 1 Because we find that adoption of such a per se rule would contravene the clear grant by Congress of broad discretion to trial judges in this matter, and because we find that the trial court did not abuse its discretion in this case, we affirm the trial court's decision regarding in camera inspection.


After a large number of 1979 General Motors automobiles had been sold to the

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public, EPA tests revealed that each of more than half a million cars was emitting levels of nitrogen oxides in violation of the Clean Air Act, 42 U.S.C. Sec. 7401 et seq. GM proposed offsetting the excess pollution by building its 1982 and 1983 cars to produce lower emissions standards than the law required. In August of 1982, the EPA approved such a plan. 2

On August 5, 1982, the Center submitted an FOIA request to the EPA for all documents concerning the decision to accept the offset plan. J.A. 80. On September 9, 1982, EPA released some of the documents but withheld a number of documents under the belief that they were exempt from disclosure under Exemption 5, 5 U.S.C. Sec. 552(b)(5). J.A. 83. The Center filed a timely administrative appeal which was not ruled upon within the 20 working days required under the FOIA. See 5 U.S.C. Secs. 552(a)(6)(A), (C); J.A. 87. After this exhaustion of administrative remedies, the Center brought suit in the United States District Court for the District of Columbia.

By letter dated December 20, 1982, EPA notified the Center that the administrative appeal had been considered, and that EPA "no longer objects to disclosure of 32 documents in their entirety ... and of portions of 30 documents." Brief for Defendant at Exhibit A. EPA enclosed these documents with the letter. EPA continued to withhold 53 documents. As to these 53 documents, with the exception of one document 3, EPA maintained that they were "intra-agency communications and records of settlement negotiations which reflect EPA's deliberative process" and therefore exempt under Exemption 5. Id.

Both parties moved for summary judgment with respect to the remaining documents. EPA asserted that all of the documents were "predecisional and deliberative in nature" and that "[a]ll segregable factual material contained in the documents" had been disclosed. J.A. 22, 23. In support of its Motion for Summary Judgment, EPA submitted an affidavit of Charles N. Freed, the Director of EPA's Manufacturers Operations Division of the Office of Mobile Sources and a Vaughn Index 4 listing the 53 documents being withheld. The Center opposed EPA's motion and limited its arguments to 19 of the 53 remaining documents. In addition, the Center requested that the District Court examine those documents in camera. 5 See Reply Brief of Plaintiff-Appellant at Exhibit II.

On January 27, 1983, the District Court denied the Center's request for in camera review "due to the detailed explanatory material promptly supplied by the EPA." J.A. 3-4. This appeal ensued. 6

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Appellee argues that the issue of in camera inspection "was never raised by the appellant at the District Court." Brief for Defendant-Appellee at p. 4, n. 3. More specifically, appellee claims that the request was based on grounds "entirely unrelated" to any need to verify that facts were inextricably intertwined with deliberative materials. Id. If that were the case, the issue could not be raised for the first time on this appeal. See, e.g., Miller v. Avirom, 384 F.2d 319, 321-22 (D.C.Cir.1967). Such is not the case here.

Upon review of the record below, the Court finds that the first request by the Center for in camera review appeared in its Reply Memorandum and Opposition to Defendant's Cross-Motion For Summary Judgment. In that document, the Center informed the trial court that it would limit its arguments to only 19 of the 53 documents withheld, but specifically requested that "the Court review the remainder of the documents in camera to determine if the EPA description is complete and accurate." Reply Memorandum at p. 2. This request is directly contrary to appellee's contention that the Center requested the inspection only to discover "the extent that they may have advised the EPA Administrator that the offset remedial plan was legal." Brief of Defendant-Appellee at p. 5. The descriptions of the documents supplied by the EPA included a statement that "[a]ll segregable factual material contained in the documents" had been disclosed. J.A. 22, 23. The Center's request for inspection clearly included a desire to have the Court determine whether that statement was accurate.

Appellee's position is further undermined by the transcript of the oral arguments on the cross-motions for summary judgment. With respect to a set of eight factual or technical documents prepared by experts at the agency, the Center asked the trial court "to look at them and see if the descriptions are accurate...." Reply Brief of Plaintiff-Appellant at Exhibit II, p. 6. With respect to an additional set of eleven legal documents, the Center requested the Court "to review those documents in camera to see what they say." Id. at 4. Finally, in rebuttal argument, counsel for the Center told the Court:

... the descriptions of the documents we are seeking appear to contain factual material. At a minimum, they may contain segregable factual material.

* * *

* * *

We urge your honor to look at the documents and see if they give any reasons for that decision or if they contain the kind of factual material not protected by the deliberative process privilege.

Id. at 13-14.

Based upon these statements and requests made to the trial court, we conclude that a request for in camera inspection on the issue of whether non-exempt facts appeared in the documents was properly made below, and is thus a proper issue for us to address on appeal.

Appellee also argues that this case is moot because all of the documents containing factual information have been released by Congress. Specifically, EPA claims that it withheld inextricably...

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