Shurtleff v. U.S. Envtl. Prot. Agency

Decision Date30 September 2013
Docket NumberCivil No. 10–2030 (EGS/DAR)
Citation991 F.Supp.2d 1
CourtU.S. District Court — District of Columbia
PartiesMark L. Shurtleff, Plaintiff, v. United States Environmental Protection Agency, Defendant.

OPINION TEXT STARTS HERE

Prashant K. Khetan, Troutman Sanders LLP, Washington, DC, for Plaintiff.

Michelle Lo, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge

Plaintiff Mark L. Shurtleff, Attorney General of the State of Utah, requested information from the defendant, the EnvironmentalProtection Agency (“EPA” or “Agency”) under the Freedom of Information Act (FOIA). In response to his request, the EPA released some records to Plaintiff but withheld other material. Plaintiff challenges the withholding of this material in this case, and he also alleges that the defendant failed to adequately search for material responsive to his request.

Before the Court is the EPA's motion for summary judgment. On March 8, 2012, the Court referred this matter to United States Magistrate Judge Deborah A. Robinson for a report and recommendation. Magistrate Judge Robinson issued a report and recommendation recommending that the motion be granted in part and denied in part. More specifically, she recommended that the Court grant EPA's motion as to the adequacy of its search; its withholding of documents pursuant to Exemption 5's deliberative process privilege and attorney work product doctrine; and its withholding of documents pursuant to Exemption 6. She recommended the Court deny the motion for summary judgment as to one document withheld pursuant to Exemption 4 and documents withheld pursuant to Exemption 5's attorney-client privilege.

Both plaintiff and defendant timely filed objections to the Report and Recommendation. Plaintiff objects to all of the Magistrate Judge's recommendations in favor of EPA. Plaintiff also takes issue with certain segregability determinations and EPA's position that certain responsive documents were already publicly available, and he also raises various general objections to the Report and Recommendation. Pl.'s Objs. at 3–5. The EPA objects to the Magistrate Judge's recommendation that summary judgment be denied with respect to documents withheld under the attorney-client privilege. 1 In addition, after the objections had been fully briefed, Plaintiff filed a motion to supplement the summary judgment record.

Upon consideration of the Report and Recommendation, the objections thereto, the entire record in this case, and for the following reasons the Court accepts all of the Magistrate Judge's recommendations with the exception of the adequacy of the search. The Court accepts the Magistrate Judge's recommendations regarding the adequacy of the search with respect to certain portions of the FOIA request, but rejects the recommendation with respect to other portions. The Agency will be required to conduct another search for documents responsive to these portions of the request, or, in the alternative, to prove that its prior searches meet the adequacy standard. Moreover, in accordance with the Magistrate Judge's recommendation regarding the documents withheld under the attorney-client privilege, the EPA must either disclose the records withheld pursuant to that privilege or file supplemental submissions indicating in sufficient detail why withholding is proper. Finally, the Court will deny Plaintiff's Motion to Supplement the Record.

I. BACKGROUND

The Court will not restate the full factual background of this case, which is set forth in the Report and Recommendation. See Report and Recommendation, Doc. No. 33 (“R & R”) at 1–7. By way of very general overview, in 2009, the EPA promulgated the Endangerment Finding, which found that certain greenhouse gases taken in combination endanger the public health and welfare. Declaration of Elizabeth Craig (“Craig Decl.”) ¶ 9. Among the evidence considered, assessments conducted by the Intergovernmental Panel on Climate Change (“IPCC”) served as the “primary basis supporting the Endangerment Finding.” Id. ¶ 8. The Endangerment Finding, in turn, serves as a basis for the EPA's ability to regulate gas emission standards for motor vehicles and for stationary sources emitting greenhouse gases. Id. ¶¶ 9–10.

On July 6, 2010, Plaintiff submitted a FOIA request to the EPA. The request expressed “concerns about [the Endangerment] finding” and sought documents in order “to evaluate more fully the process by which the EPA developed the [ ] Finding.” Complaint Ex. A. The request is extremely lengthy, consisting of fourteen pages and thirty-seven subparts. Id. It is also extremely broad, seeking, inter alia, all documents regarding EPA's review of relevant IPCC assessments, all communications between any EPA employee and any individual regarding same, and all documents regarding EPA analysis of human behavior as the cause of rising global temperatures. Id. at 2, 9.

The EPA conducted a search for records, and collected over 19,000 potentially responsive records. Craig Decl. ¶ 35. The agency then produced responsive documents on a rolling basis from October 2010 to April 2011; in addition, the agency made five supplemental productions from June to October 2011. Id. ¶40. Ultimately, approximately 12,987 records were deemed responsive, of which approximately 8,200 were released in part, 4,445 in full, and 342 withheld in full. Id. ¶61.

Plaintiff filed this suit in November 2010. On May 25, 2011, this Court granted Defendant's Motion to Permit a Sample Vaughn Index. Order, May 25, 2011. In accordance with the Order, the EPA submitted a representative sample of records withheld, including all records withheld in full, every seventy-fifth record of the partially redacted records, and fifty records of plaintiff's choosing. Craig Decl. ¶¶ 54–60. Thereafter, in October 2011, the EPA filed its summary judgment motion. (Doc. No. 21). The Magistrate Judge issued her Report and Recommendations on the motion in September 2012, and the parties filed their objections thereafter. The parties' objections, as well as Plaintiff's Motion to Supplement the Record, are ripe for review.

II. LEGAL STANDARDSA. Summary Judgment in a FOIA Case

Summary judgment is granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.Cir.2002). In determining whether a genuine issue of fact exists, the court must view all facts in the light most favorable to the non-moving party. SeeMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Under FOIA, all underlying facts and inferences are analyzed in the light most favorable to the FOIA requester; as such, only after an agency proves that it has fully discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C.1996) (citing Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C.Cir.1983)). FOIA cases are typically and appropriately decided on motions for summary judgment. Gold Anti–Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F.Supp.2d 123, 130 (D.D.C.2011) (citations omitted).

In considering a motion for summary judgment under the FOIA, the court must conduct a de novo review of the record. See5 U.S.C. § 552(a)(4)(B) (2012). The court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations that describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see alsoVaughn v. Rosen, 484 F.2d 820, 826–28 (D.C.Cir.1973), cert. denied,415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). Agency affidavits or declarations must be “relatively detailed and non-conclusory.” SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991). Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” Id. (internal citation and quotation omitted).

An agency may discharge its obligations under FOIA by producing a Vaughn index, which is an affidavit that indexes and specifically describes withheld or redacted records and explains why each withheld record is exempt from disclosure. King v. U.S. Dep't of Justice, 830 F.2d 210, 219 (D.C.Cir.1987). When a large number of responsive documents are involved, [r]epresentative sampling is an appropriate procedure to test an agency's FOIA exemption claims.” Bonner v. U.S. Dep't of State, 928 F.2d 1148, 1151 (D.C.Cir.1991). “Representative sampling allows the court and the parties to reduce a voluminous FOIA exemption case to a manageable number of items that can be evaluated individually through a Vaughn index.... If the sample is well-chosen, a court can, with some confidence, extrapolate its conclusions from the representative sample to a larger group of withheld materials.” Id. (internal citations and quotation marks omitted).

B. Magistrate Judge Recommendations

Pursuant to Federal Rule of Civil Procedure 72(b), once a magistrate judge has entered her recommended disposition, a party may file specific written objections. The district court “must determine de novo any part of the magistrate judge's disposition that has been properly objected to,” and “may accept, reject or modify the recommended disposition.” Fed.R.Civ.P. 72(b)(3). Proper objections “shall specifically identify the portions of the proposed findings and recommendations to which...

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