City of Virginia Beach v. US Dept. of Commerce

• Decision Date: 06 November 1992
• Docket Number: Civ. A. No. 91-218-N.
• Citation: 805 F. Supp. 1323
• Parties: The CITY OF VIRGINIA BEACH and Thomas M. Leahy, III, Plaintiffs, v. The UNITED STATES DEPARTMENT OF COMMERCE, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

805 F. Supp. 1323

The CITY OF VIRGINIA BEACH and Thomas M. Leahy, III, Plaintiffs, v. The UNITED STATES DEPARTMENT OF COMMERCE, Defendant.

Civ. A. No. 91-218-N.

United States District Court, E.D. Virginia, Norfolk Division.

November 6, 1992.

Michael Scott Hart, George A. Somerville, Susan Warriner Custer, John Franklin Kay, Jr., Alan Dale Albert, Eric W. Schwartz, Mays & Valentine, Richmond, Va., Leslie Louis Lilley, William Matthew MacAli, Office of City Atty., Municipal Center, Virginia Beach, Va., for Virginia Beach and Thomas M. Leahy, III.

Michael Anson Rhine, U.S. Attys. Office, World Trade Center, Norfolk, Va., Elizabeth A. Pugh, Victoria J. Rosenthal, Dept. of Justice, Civ. Div., Judith Means, Office of Gen. Counsel, U.S. Dept. of Commerce, Washington, D.C., Jane Hannuksela, Office of Gen. Counsel, National Oceanic and Atmospheric Admin., Silver Springs, Md., for U.S. Dept. of Commerce.

MEMORANDUM OPINION

PAYNE, District Judge.

The City of Virginia Beach and Thomas M. Leahy, III, (collectively "the City") have filed an action under the Freedom of Information Act ("FOIA" or the "Act") to compel the production of certain documents in the possession of the National Marine Fisheries Service ("NMFS"), a branch of the United States Department of Commerce (the "Department of Commerce"). The action is properly before the court pursuant to 28 U.S.C. § 636(b)(1)(C), which entitles the parties to a de novo review of the Magistrate Judge's Superseding Report and Recommendation of June 19, 1992 (the "Report") to which the City and NMFS have filed timely Notices of Objection.

STATEMENT OF THE FACTS

On April 9, 1991, the City instituted this action under the FOIA, 5 U.S.C. § 552,¹ to obtain certain documents withheld by NMFS when it responded to the City's FOIA request for documents related to the City's proposed Lake Gaston water supply project (the "Project"). The aim of the Project is to supplement the water needs of Southeastern Virginia by withdrawing 60 million gallons of water per day from Lake Gaston which is located on the Roanoke River.² The City acquired a permit for the Project from the United States Army Corps of Engineers ("the Corps") in February 1984, and the City and the Virginia Electric and Power Company are currently seeking approval of the Project from the Federal Energy Regulatory Commission ("FERC"). NMFS was not a party to the proceedings by which the Corps issued the City's permit, although it did participate extensively by providing scientific comment on what effect, if any, the project might be expected to have on fish habitats and fisheries in the areas affected by the Project. On June 20, 1991, NMFS intervened as a party to the FERC proceeding.

In 1983, during the permitting proceedings before the Corps, NMFS had specifically concurred with the Corps' finding of no significant environmental impact (FONSI). In 1983, NMFS also had concurred with the Corps' decision not to prepare a costly and time-consuming environmental impact statement (EIS) before issuing the City's permit.

On July 7, 1987, the United States District Court for the Eastern District of North Carolina remanded the City's permit to the Corps for further studies. See North Carolina v. Hudson, 665 F.Supp. 428 (E.D.N.C.1987). Shortly after the remand, and for reasons neither explained nor readily apparent at the time, NMFS reassigned primary responsibility for review of the Project from its Northeast Regional Office in Oxford, Maryland to its Southeast Regional Office, and principally to NMFS personnel located in Beaufort, North Carolina whom the City alleges "have a close working relationship with agencies and employees of the State of North Carolina, the City's chief adversary." NMFS continued to provide scientific comment on what effect, if any, the Project might be expected to have on fish habitats and fish in the areas affected by the Project. According to the City, after the reassignment of responsibility from the Northeast Regional Office to the Southeast Regional Office, "NMFS's attitude toward Virginia Beach and its representatives changed from open and cooperative to secretive and hostile ...," and NMFS "reversed its position on the need for an Environmental Impact Statement and demanded expensive and time consuming studies of `potential impacts' which already had been addressed in lengthy and expensive studies and shown to present no potential for adverse environmental impacts." (Plaintiff's Objections to Report at pp. 3-4) The City also alleges that NMFS's actions "demonstrated that some elements within NMFS were unable or unwilling to evaluate its Project fairly or objectively." (Id. at 4)

On July 30, 1990, the City delivered to NMFS a letter which expressed the City's concerns about NMFS's conduct respecting the Project and posed the following questions to NMFS:

1. Do the Services have any quantifiable data, evidence, or analyses which would demonstrate that the City's computer model and/or mitigation plan will not work as stated in its December 7, 1987, transmittal?

2. Do the Services have any quantifiable data, evidence, or analyses to indicate that the City's mitigation plan, which is now a permit requirement, will not mitigate the project's small impact to the Flow Committee's experimental regime in the same manner as it would the 1971 MOU regime?

3. In quantitative terms, how could the Services find in 1983 that the project without mitigation would have "minimal" impacts and in 1988 that the same project with mitigation would have significant impacts?

4. Would each Service please state the circumstances, logic, and rationale for shifting the review of the project from the Northeast region to the Southeast region?

5. Who should Virginia Beach contact at each respective Service if it has future requests for information.

(July 30, 1990 letter from City to NMFS (emphasis in original)) The City also raised numerous allegations of what it perceived to be misconduct or legally inappropriate action on the part of some NMFS employees involved the decisions and recommendations respecting the Project previously made by NMFS.³

NMFS replied by letter dated September 11, 1990, stating that it was in the process of formulating a response to the City's questions. At the same time, Dr. William W. Fox, Jr., the head of NMFS, informed the City that NMFS was conducting an independent investigation of the City's allegations respecting actions previously taken by NMFS employees in respect of the Project.

Dr. Fox responded to the City's letter by letter dated November 15, 1990. He explained that NMFS had transferred responsibility for review of the Project from its Northeast Regional Office to its Southeast Regional Office because "service personnel located in the area where the impact occurs; i.e. in North Carolina, the Wilmington District, and the Southeast Region, are more familiar with the affected resource and therefore more able to assess potential impacts." The letter did not, however, respond substantively to the City's allegations of legally inappropriate conduct by NMFS employees. Nor did the letter respond substantively to the City's questions respecting that mitigation proposal or provide reasons for the alleged change of position by NMFS between 1983 and 1988 respecting the need for an Environmental Impact Statement.

On December 12, 1990, the City, confronted with what it considered a legally inadequate response to its inquiries, filed a request pursuant to the FOIA calling upon NMFS to produce copies of certain records related to the Project. On December 28, 1990, NMFS sent the City an interim response to the request accompanied by three documents. On January 18, 1991, NMFS supplemented its response by releasing 444 additional pages of documents, and withholding 71 of the requested records on the grounds that they were exempt under the provisions of 5 U.S.C. § 552(b)(5) (hereafter "Exemption 5"). On February 8, 1991, the City appealed the position of NMFS on those 71 documents to the Department of Commerce which, on March 28, 1991, issued its final decision denying the City's appeal. Having exhausted its administrative appeals, the City filed this action to obtain access to the 71 documents withheld by NMFS under Exemption 5.

NMFS moved for summary judgment on the ground that there was no genuine issue of material fact as to whether the withheld documents were entitled to protection from disclosure under Exemption 5. A hearing was held before the Magistrate Judge, and the documents in dispute were submitted under seal for in camera review. The Magistrate Judge recommended that summary judgment be granted in part and denied in part. (Report at 3) It is from these recommendations that both parties now appeal.

For the reasons explained below, the court adopts the Magistrate Judge's recommendations as they relate to the documents protected by the attorney work-product privilege⁴. However, the court finds that the documents which NMFS seeks to protect under the "deliberative process" privilege are not covered by that privilege and directs NMFS to produce them.⁵

DISCUSSION

The Act requires full disclosure of documents to which it applies unless the information requested is clearly exempt under the Act. Deering Milliken, Inc. v. Irving, 548 F.2d 1131 (4th Cir.1977) (emphasis added). The purpose of the Act is "to open agency action to the light of public scrutiny," Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772, 109 S.Ct. 1468, 1481, 103 L.Ed.2d 774 (1989), because "the public is entitled to know what its government is doing and why." Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 868 (D.C.Cir. 1980). In keeping with this policy, the Act imposes on the claiming agency the burden to establish that a statutory exemption precludes disclosure. Ethyl Corp. v. EPA, 478 F.2d 47, 49 (4th Cir.1973). See also Dep't of Justice v. Reporters Comm., 489 U.S. at 755, ...