Hall & Assocs. v. Envtl. Prot. Agency

• Decision Date: 21 April 2020
• Docket Number: No. 18-5241,18-5241
• Citation: 956 F.3d 621
• Parties: HALL & ASSOCIATES, FOIA Requester, Appellant v. ENVIRONMENTAL PROTECTION AGENCY, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

956 F.3d 621

HALL & ASSOCIATES, FOIA Requester, Appellant

v.ENVIRONMENTAL PROTECTION AGENCY, Appellee

No. 18-5241

United States Court of Appeals, District of Columbia Circuit.

Argued October 10, 2019

Decided April 21, 2020

John C. Hall argued the cause and filed the briefs for appellant.

Laura Myron, U.S. Department of Justice, argued the cause for appellee. On the brief were Jessie K. Liu, U.S. Attorney at the time the brief was filed, H. Thomas Bryon, III, Attorney, U.S. Department of Justice, Civil Division, Appellate Staff, and Rachel F. Homer, Attorney at the time the brief was filed, U.S. Department of Justice, Civil Division, Appellate Staff. Dana Kaersvang, U.S. Department of Justice, entered an appearance.

Before: Henderson, Griffith, and Millett, Circuit Judges.

Millett, Circuit Judge:

Hall & Associates ("Hall") sought certain records under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, from the Environmental Protection Agency. The records related to the EPA’s purported adoption of a "nonacquiescence decision"—that is, a determination to not follow a specific court of appeals’ judgment in cases arising outside of that circuit. The judgment at issue is that of the United States Court of Appeals for the Eighth Circuit in Iowa League of Cities v. EPA , 711 F.3d 844 (8th Cir. 2013).

On November 19, 2013, the EPA issued a press statement advising the public that (i) Iowa League of Cities was legally binding within the Eighth Circuit, and (ii) outside of that circuit, the EPA would continue to apply the regulatory interpretations vacated by the Eighth Circuit’s judgment. The EPA does not contest on appeal that this position amounted to a nonacquiescence decision.

The central dispute in this appeal is one of timing. Did the EPA settle on its nonacquiescence position at the time of that press statement on November 19, 2013, or in the days leading up to it? Or even earlier? The answer to the timing question will determine whether documents regarding that nonacquiescence decision—all but one of which were created between November 14, 2013 and November 18, 2013—are predecisional and, as such, may qualify for withholding under the EPA’s deliberative process privilege.

Because the date on which the EPA reached a final decision to not acquiesce remains a genuine issue of disputed material fact, we vacate the district court’s grant of summary judgment in favor of the EPA and remand for further proceedings.

I

A

Congress enacted FOIA "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny."

Bartko v. Department of Justice , 898 F.3d 51, 61 (D.C. Cir. 2018) (quoting Citizens for Responsibility & Ethics in Washington v. Department of Justice , 746 F.3d 1082, 1088 (D.C. Cir. 2014) ). By empowering individuals to obtain copies of agency records just by the asking, FOIA protects the basic right of the public "to be informed about what their government is up to." Competitive Enter. Inst. v. Office of Science & Tech. Policy , 827 F.3d 145, 150 (D.C. Cir. 2016) (quoting Department of Justice v. Reporters Comm. for Freedom of the Press , 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) ).

That said, FOIA does not pursue transparency at all costs. See Bartko , 898 F.3d at 61–62. Congress recognized that "legitimate governmental and private interests could be harmed by release of certain types of information," and so attempted to "balance the public’s need for access to official information with the Government’s [legitimate] need for confidentiality." AquAlliance v. United States Bureau of Reclamation , 856 F.3d 101, 102–103 (D.C. Cir. 2017) (formatting modified). To that end, Congress exempted nine categories of records from FOIA’s general requirement of disclosure. See 5 U.S.C. § 552(b)(1)–(9). But even when an exemption applies, the agency must disclose "[a]ny reasonably segregable portion of a record," the "amount of information deleted, and the exemption under which the deletion is made." Id. § 552(b).

This case involves Exemption 5, which allows agencies to withhold from disclosure records that are

inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested[.]

5 U.S.C. § 552(b)(5).

Under Exemption 5, agencies generally can withhold materials "normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). That includes materials that fall under an agency’s deliberative process or attorney-client privilege. See Coastal States Gas Corp. v. Department of Energy , 617 F.2d 854, 862 (D.C. Cir. 1980). The deliberative process privilege "protects government documents that are both [i] predecisional and [ii] deliberative" in nature. Judicial Watch, Inc. v. Department of Defense , 847 F.3d 735, 739 (D.C. Cir. 2017) (formatting modified). In that way, the privilege "reflects the commonsense notion that agencies craft better rules when their employees can spell out in writing the pitfalls as well as strengths of policy options, coupled with the understanding that employees would be chilled from such rigorous deliberation if they feared it might become public." Id.

B

Hall submitted a FOIA request to the EPA on November 13, 2014. The request sought certain records pertaining to the EPA’s purported decision to not follow outside of the Eighth Circuit that court’s judgment in Iowa League of Cities v. EPA , 711 F.3d 844 (8th Cir. 2013).

In Iowa League of Cities , the Eighth Circuit vacated two EPA rules regulating water treatment processes at municipally owned sewer systems. See Iowa League of Cities , 711 F.3d at 854, 878.

By October 8, 2013, the EPA had forgone legal avenues to challenge that decision. The EPA’s petition for rehearing en banc was denied on July 10, 2013.

Iowa League of Cities v. EPA , 711 F.3d 844 (8th Cir. 2013). The deadline for filing a petition for a writ of certiorari was October 8, 2013. See 28 U.S.C. § 2101(c) ; see also SUP. CT. R. 13. No petition was ever filed.¹ Instead, "[b]eginning in 2013, EPA made statements indicating that it would not acquiesce in or follow the Eighth Circuit’s decision outside of that circuit." Center for Regulatory Reasonableness v. EPA , 849 F.3d 453, 454 (D.C. Cir. 2017).

As evidence that the EPA likely had records of a decision not to acquiesce in Iowa League of Cities , Hall’s November 2014 FOIA request cited trade press publications and reports of the National Association of Clean Water Administrators ("Water Administrators Association") describing public statements by two EPA officials. Specifically, at a November 20–22, 2013 meeting of the Water Administrators Association, the EPA’s then Acting Assistant Administrator for Water, Nancy Stoner, was reported to have stated that Iowa League of Cities was "not binding" outside of the Eighth Circuit, and that the EPA would look "on a case-by-case [basis] at situations in particular communities" outside of that circuit to determine whether to enforce the vacated EPA rules. J.A. 73–74, 159, 273. Then, at the National Water Policy Forum & Fly-In on April 9, 2014, Stoner and Mark Pollins, Director of the Water Enforcement Division in the EPA’s Office of Civil Enforcement, were said to have reiterated the EPA’s "position that Iowa League of Cities is not binding * * * outside of the [Eighth] Circuit" and that it "would continue to apply the [vacated rules] outside of that area." J.A. 74.

Against that backdrop, Hall’s FOIA request sought from the EPA:

1. Any EPA records which discuss whether or not Ms. Stoner’s November 2013 statement was accurately reported in the trade press;

2. Any talking points and/or other materials prepared for Ms. Stoner and/or Mr. Pollins in advance of their presentations at either of the above-referenced events or used by them at the events;

3. Any presentation materials EPA distributed as part of the aforementioned presentations; 4. Any records that either Ms. Stoner or Mr. Pollins created as part of their respective presentations; and

5. Any records that either Ms. Stoner or Mr. Pollins created in preparation for their respective presentations.

J.A. 74. Hall subsequently clarified that the request pertained "only to documents mentioning EPA’s thoughts on how the Agency would be proceeding post-[ Iowa League of Cities ] decision." J.A. 78.

The EPA responded to Hall’s revised FOIA request with ten responsive documents.

Document 1 is a November 15, 2013 email meeting invite entitled "Iowa League of Cities." J.A. 172. The meeting invite was sent from Stoner to several high-level managers in the Office of General Counsel and Office of Water, including Steven Neugeboren, Associate General Counsel of the Water Law Office in the Office of General Counsel.

Document 1(a) is a three-page draft of talking points that was attached to that meeting invite. Like Document 1, it was created on November 15, 2013. The talking points were authored by Kevin Weiss, a staff engineer in the Water Permits Division of the Office of Wastewater Management within the Office of Water, for Weiss’s coworkers and superiors. They discuss Iowa League of Cities , potential "programmatic activities [for the EPA], and potential communication options" regarding the Eighth Circuit’s decision. J.A. 159.

Document 1(b), a five-page draft memorandum discussing the same subjects as Document 1(a), was also attached to the meeting invite and prepared by Weiss on November 15, 2013.

Document 2 is a November 14, 2013 email entitled: "RE: IA League of Cities – deliberative process; atty client." J.A. 162–163. It was sent from Stoner to Neugeboren and several other EPA officials, including Weiss.

Document 3 is a November 15, 2013 email sent by Neugeboren responding to the Document 2 email.

Document 4 is a...