991 F.Supp.2d 20 (D.D.C. 2014), 10-2030 (EGS/DAR), Reyes v. United States Environmental Protection Agency

Docket Nº:Civil 10-2030 (EGS/DAR)
Citation:991 F.Supp.2d 20
Opinion Judge:Emmet G. Sullivan, United States District Judge.
Party Name:SEAN D. REYES, Attorney General, State of Utah, [1] Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant
Attorney:Civil No. 10-2030 (EGS/DAR) For Mark L. Shurtleff, Attorney General of the State of Utah, Plaintiff: Prashant Kumar Khetan, LEAD ATTORNEY, TROUTMAN SANDERS LLP, Washington, DC. For United States Environmental Protection Agency, Defendant: Claire M. Whitaker, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE,...
Case Date:June 13, 2014
Court:United States District Courts, District of Columbia

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991 F.Supp.2d 20 (D.D.C. 2014)

SEAN D. REYES, Attorney General, State of Utah, 1 Plaintiff,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant

Civil No. 10-2030 (EGS/DAR)

United States District Court, D. Columbia

June 13, 2014

Page 21

For Mark L. Shurtleff, Attorney General of the State of Utah, Plaintiff: Prashant Kumar Khetan, LEAD ATTORNEY, TROUTMAN SANDERS LLP, Washington, DC.

For United States Environmental Protection Agency, Defendant: Claire M. Whitaker, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

OPINION

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MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge.

Pending before the Court is [46] the U.S. Environmental Protection Agency's

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(" EPA" ) Renewed Motion for Summary Judgment. Upon consideration of the motion, response, reply, the relevant caselaw and the record as a whole, and for the reasons that follow, the Renewed Motion is GRANTED.

I. BACKGROUND

This matter arises from Plaintiff's Freedom of Information Act (" FOIA" ) request to EPA seeking information on the EPA's Endangerment Finding, which found that certain greenhouse gases taken in combination endanger the public health and welfare. The request was lengthy, consisting of fourteen pages and thirty-seven subparts, and broad, seeking a tremendous amount of information about the finding. See Compl., Ex. A. The EPA ultimately located about 13,000 responsive records, of which approximately 8,200 were released in part, 4,445 were released in full, and 342 were withheld in full. See Decl. of Elizabeth Craig (" Craig Decl." ) ¶ 61.

In September 2013, the Court issued a Memorandum Opinion granting in part and denying in part the EPA's Motion for Summary Judgment. Shurtleff v. EPA, No. 10-2030, 991 F.Supp.2d 1, (D.D.C. Sept. 30, 2013) (" 2013 Opinion" ). Familiarity with the 2013 Opinion is assumed. With regard to the partial denial of the motion, the Court directed EPA (1) either to disclose documents withheld under the attorney-client privilege or file supplemental submissions indicating in sufficient detail why withholding is proper; and (2) either to conduct another search for documents responsive to subparts A(4)(b),(c), A(5)(a),(b),(c),(d),(e), B(1)(a), D(1)(a),(b), E(2)(a),(b), and F(1)(a) of Plaintiff's FOIA request, or, in the alternative, prove that its prior searches meet the adequacy standard. Id. at *45.

Subsequently, EPA filed the instant Renewed Motion for Summary Judgment. In support of its Renewed Motion, the EPA relies upon the Second Supplemental Declaration of Elizabeth Craig (" Second Supp. Craig Decl." ). Craig is the Director of the Climate Protection Partnership Division of the Office of Atmospheric Programs in the EPA's Office of Air and Radiation, and former Acting Director of the Office of Atmospheric Programs. Second Supp. Craig Decl. ¶ 1. The EPA's Renewed Motion is ripe for review.

II. LEGAL STANDARD

The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In a FOIA case, the burden of proof is on the agency to demonstrate that it has fully discharged its obligations under the FOIA. See U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) (citations omitted).

III. DISCUSSION

A. Attorney-Client Privilege

FOIA exempts from disclosure " inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5).

The attorney-client privilege protects confidential communications from clients to their attorneys made for the purpose of securing legal advice or services. The privilege also protects communications from attorneys to their clients if the communications " rest on confidential information obtained from the client." In the governmental context, the

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" client" may be the agency and the attorney may be an agency lawyer.

Tax Analysts v. IRS, 117 F.3d 607, 618, 326 U.S.App. D.C. 53 (D.C. Cir. 1997)(citing Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 254, 184 U.S.App. D.C. 350 (D.C. Cir. 1977)). The agency bears the burden to show that information exchanged between an agency and its attorneys is confidential. Privilege only extends to " those members of the organization who are authorized to act or speak for the organization in relation to the subject matter of the communication." Mead Data, 566 F.2d at 253 n.24.

The Court denied EPA's first Motion for Summary Judgment as to records withheld pursuant to the attorney client privilege for two reasons: (1) EPA failed to specify who received the documents, thus it did not establish the communications were confidential; and (2) EPA failed to explain the recipients' responsibilities, thus, it did not establish that the recipients were authorized to act or speak for the government in relation to the subject matter of the communication. Shurtleff, 991 F.Supp.2d 1, at *34-35. It directed EPA to either disclose the records, or indicate in sufficient detail why withholding is proper. Id.

Elizabeth Craig's Second Supplemental Declaration addresses each of the nine documents withheld or partially withheld pursuant to attorney-client privilege.2 See Second Supp. Craig Decl. ¶ ¶ 5, 11-18. Additionally, Ms. Craig provides the redacted documents as Exhibit A to her Declaration. Id. Ex. A. The documents are email chains between agency counsel and other agency staff.

Plaintiff claims the EPA fails to establish that the documents contained legal advice...

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