Reyes v. U.S. Envtl. Prot. Agency

Decision Date13 June 2014
Docket NumberCivil No. 10–2030 (EGS/DAR)
Citation991 F.Supp.2d 20
PartiesSean D. Reyes, Attorney General, State of Utah, Plaintiff, v. United States Environmental Protection Agency, Defendant.
CourtU.S. District Court — District of Columbia

OPINION TEXT STARTS HERE

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

Claire M. Whitaker, U.S. Attorney's Office, Washington, DC, Michelle LO, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge

Pending before the Court is [46] the U.S. Environmental Protection Agency's (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, 2013 WL 5423963, 2013 U.S. Dist. LEXIS 140433 (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 (1989) (citations omitted).

III. DISCUSSIONA. 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 “client” may be the agency and the attorney may be an agency lawyer.

Tax Analysts v. I.R.S., 117 F.3d 607, 618 (D.C.Cir.1997)(citing Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 254 (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 at 16–18, 2013 WL 5423963, at *9–10, 2013 U.S. Dist. LEXIS 140433, 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.2See 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. Opp'n to Renewed Mot. at 9–10. The Court disagrees. While [t]he privilege does not allow the withholding of documents simply because they are the product of an attorney-client relationship,” Mead Data, 566 F.2d at 553, it does apply to communications “made for the purpose of securing primarily ... an opinion on law.” In re Lindsey, 158 F.3d 1263, 1270 (D.C.Cir.1998) (citation omitted). As the most recent Declaration explains, each document pertains to an issue for which EPA sought the legal advice of its lawyers: (1) reviewing the EPA's draft response to public comments on the Endangerment Finding in order to provide legal advice on how to respond to certain comments; see EPA2–6968, EPA2–2413, EPA–105; (2) requesting information from the client in order to provide legal interpretation and defense of the Endangerment Finding in response to questions from the White House, petitions for reconsideration, and congressional inquiries, see EPA2–3150, EPA2–4349, EPA2–7374, EPA2–7384; (3) reviewing agency solicitations and providing guidance on legal compliance before publication, see EPA2–6158; and (4) providing legal advice regarding then-unreleased air quality standards, resting on confidential information from client regarding then-ongoing development of standards, see EPA2–1076. See generally Second Supp. Craig Decl. ¶¶ 5, 11–18, Ex. A.

Plaintiff also claims that the EPA has not met its burden to demonstrate that the documents remained confidential. Opp'n to Renewed Mot. at 9. Again, the Court disagrees. The declaration and attachment provide the name, job title and responsibilities of the sender and recipient of each document. See Second Supp. Craig Decl. ¶¶ 5, 11–18, Ex. A. The senders and recipients were limited to EPA attorneys, scientists, analysts, support staff, or senior executives who were responsible for developing EPA's position on the underlying environmental issues. Id.3 These representations satisfy EPA's burden to show the documents were limited to people “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.

Under FOIA, [i]f a document contains exempt information, the agency must still release any reasonably segregable portion after deletion of the nondisclosable portions.” Oglesby v. U.S. Dep't of the Army, 79 F.3d 1172, 1176 (D.C.Cir.1996) (internal quotation marks and citation omitted). Though not specifically raised by Plaintiff, the Court has “an affirmative duty to consider the segregability issue sua sponte.” Trans–Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C.Cir.1999). The Court is satisfied that EPA has fulfilled this burden based on Ms. Craig's most recent Declaration. She provides the redacted documents as attachments to her Declaration, and, more importantly, describes the information that was redacted or withheld in detail.

B. Adequacy of the Search

In response to a challenge to the adequacy of its search for requested records, “the agency may meet its burden by providing ‘a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials ... were searched.’ Iturralde v. Comptroller of the Currency, 315 F.3d 311, 313–14 (D.C.Cir.2003) (citations omitted). In addition, [a]ny factual assertions contained in affidavits and other attachments in support of motions for summary judgment are accepted as true unless the nonmoving party submits affidavits or other documentary evidence contradicting those assertions.” Wilson v. U.S. Dep't of Transp., 730 F.Supp.2d 140, 148 (D.D.C.2010) (citations omitted).

In the 2013 Opinion, the Court denied EPA's motion for summary judgment as to the adequacy of the search for documents responsive to the subparts of Plaintiff's FOIA request that did not appear to be included in EPA's three search phases: 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). Shurtleff, 991 F.Supp.2d at 10–13, 2013 WL 5423963, at *5–6, 2013 U.S. Dist. LEXIS 140433, at *16–18 (noting that the Agency provided almost no details about searches for documents responsive to these subparts). Accordingly, the Court directed EPA to conduct new searches or prove that...

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