New York Public Interest Research v. U.S. E.P.A., 02 Civ. 5130(AKH).

• Decision Date: 10 March 2003
• Docket Number: No. 02 Civ. 5130(AKH).,02 Civ. 5130(AKH).
• Citation: 249 F.Supp.2d 327
• Parties: NEW YORK PUBLIC INTEREST RESEARCH GROUP, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Office of Management and Budget, Defendants.
• Court: U.S. District Court — Southern District of New York

249 F.Supp.2d 327

NEW YORK PUBLIC INTEREST RESEARCH GROUP, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Office of Management and Budget, Defendants.

No. 02 Civ. 5130(AKH).

United States District Court, S.D. New York.

March 10, 2003.

COPYRIGHT MATERIAL OMITTED

David C. Vladeck, with whom Andrew Goldberg and Michael Tankersely were on the brief, for plaintiff.

James B. Comey, United States Attorney for the Southern District of New York, and Elizabeth Wolstein, Assistant United States Attorney, for defendants.

OPINION AND ORDER PARTIALLY GRANTING AND PARTIALLY DNYING SUMMARY JUDGMENT REGARDING

EXEMPTIONS

FOUR AND FIVE OF THE FREDOM OF INFORMATION ACT

HELLERSTEIN, District Judge.

From the 1940s until 1977, two electrical capacitor manufacturing plants owned and operated by the General Electric Company ("GE") discharged over a million pounds of polychlorinated biphenyls ("PCBs") into the Hudson River. The accumulation of PCBs, which are classified as probable human carcinogens, led the United States Environmental Protection Agency ("EPA") to identify the Hudson River as an agency priority and designate it as a "Superfund" site in 1984.

Under provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601, 9604, 9606, 9607, and 9622, the EPA has the responsibility of assessing hazardous environmental problems and the power to compel or negotiate with a responsible party to implement a remedy chosen by the agency. In December 2000, after long deliberation, the EPA proposed a plan for dredging the upper Hudson River to eliminate PCB contaminants, estimated to cost over $450 million. See Environmental Protection Agency, Hudson River PCBs Site, New York, Record of Decision, Feb. 1, 2002, at 98. GE advocated cheaper palliatives, which it argued would avoid the possibility of PCB resuspension. GE made several submissions of its views to the EPA and the Office of Management and Budget ("OMB"), including analyses of comparative estimated costs and scientific evaluations of the efficaciousness and environmental impact of its approach, and engaged in a series of meetings with the EPA and OMB between July and September 2001. In February 2002, the EPA ordered that its proposed large-scale dredging plan be implemented, and on July 23, 2002, entered into a consent order with GE requiring GE to undertake much of the investigation and other costs for the remedy.

Plaintiff, the New York Public Interest Research Group ("NYPIRG"), is a nonprofit organization engaged in environmental issues. Pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(a)(4)(B), NYPIRG seeks disclosure of GE's submissions and of notes about meetings with GE made by officials of the EPA and the OMB. I am asked in this case to define the proper scope of disclosure when Exemptions 4 and 5 of the Freedom of Information Act, 5 U.S.C. §§ 552(b)(4) and (5), which relate to commercial and confidential information and intra- or inter-agency memoranda, have been invoked. The parties have filed cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, each side seeking or objecting to disclosure.

I. Background

A. NYPIRG's FOIA Requests

On September 7, 2001 and again on October 1, 2001, NYPIRG demanded under FOIA that the EPA produce, for the period after July 1, 2001, all correspondence between the EPA and GE and all documents concerning meetings between the EPA and GE about the Hudson River PCB Superfund site clean-up. NYPIRG also requested correspondence between the EPA and two U.S. Representatives. NYPIRG promptly received all of the responsive documents related to the two Congressmen, but did not obtain any EPA documents. On November 8, 2001, NPIRG appealed the de facto denial of its document requests. In response, several documents were produced, but the balance of NYPIRG's requests were denied. On January 15, 2002, NYPIRG appealed to higher authority within the EPA, taking issue with the invocation of exemptions and complaining that the search for documents had not been diligent and complete. On January 24, 2002, the EPA produced two additional documents and subsequently, after this lawsuit began, the EPA found and disclosed four additional documents and withheld seven others as exempt. In January 2003, the EPA produced the confidentiality agreement it had entered into with GE in July 2001.

NYPIRG also filed a FOIA request with the OMB on October 4, 2001, asking for the OMB's records of meetings and correspondence with GE concerning the Hudson River PCB Superfund site for the period after July 1, 2001. The OMB obtained a ten-day extension, but was not heard from again until after this lawsuit was filed. The OMB then produced fourteen documents in full and ten redacted documents, and withheld another thirty responsive documents. On March 4, 2003, OMB released another two documents that had been in dispute.¹

B. The Instant Lawsuit

NYPIRG brought suit pursuant to 5 U.S.C. § 552(a)(4)(B) of FOIA to compel the production of the records that it had requested. There are a total of forty-nine documents at issue. Defendants contend that the first group of forty-three documents are exempt as GE's commercial and confidential information,² see 5 U.S.C. § 552(b)(4) ("Exemption 4" of FOIA). The GE documents, many of which are entitled "Hudson River Proposal" and "Hudson River—Remedy Proposal," present its analyses of the costs, benefits, and environmental impact associated with the EPA's proposed remedy and GE's alternative remedy. Several pages are marked "Privileged & Confidential," and defendants represent that GE submitted their proposals pursuant to the July 2001 confidentiality agreement between the EPA and GE. GE, however, has not submitted any affidavits or taken a position with regard to the documents in this litigation. Defendants withhold a second group of six documents—notes and memoranda written by agency officials about the meetings with GE—by invoking the exemption for interagency or intra-agency communications or deliberations, see 5 U.S.C. § 552(b)(5) ("Exemption 5" of FOIA).

At oral argument held on January 22, 2003, I reviewed in camera a representative sample of the forty-three documents withheld pursuant to Exemption 4 and all the notes withheld pursuant to Exemption 5. I ruled that the defendants were entitled to withhold, under Exemption 5, the documents numbered 2 and 6 on the OMB Withholding Justification Table, documents 18 and 19 of the EPA Withholding Justification Table, the last six pages of the eight-page document 14 of the EPA chart, and the last two pages of the sixpage document 15 of the EPA chart. I reserved decision on the balance of the documents, and asked for a supplemental submission by the government after counsel consulted with the author of the notes constituting documents 14 and 15.

II. Discussion

Summary judgment is warranted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). A "genuine issue" of "material fact" exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although all facts and inferences therefrom are to be construed in favor of the party opposing the motion, see Harlen Assocs. v. Village of Mineola, 273 F.3d 494, 498 (2d Cir.2001), the non-moving party must raise more than just "metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "[M]ere speculation and conjecture is insufficient to preclude the granting of the motion." Harlen, 273 F.3d at 499. "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).

Generally, FOIA cases are resolved on motions for summary judgment, once the documents in issue are properly identified. See, e.g., Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir.1993). The district court makes its determination de novo. See 5 U.S.C. § 552(a)(4)(B). In order to prevail on a motion for summary judgment, the defendant agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to FOIA. See id. "Affidavits submitted by an agency are `accorded a presumption of good faith.'" Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir.1994) (citations omitted). The central purpose of FOIA is "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (citations omitted). Because the basic objective behind FOIA is disclosure, not secrecy, the nine exemptions are to be "narrowly construed." FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982).

A. Documents Withheld Pursuant to Exemption k

Under 5 U.S.C. § 552(b)(4), the government may exclude "trade secrets and commercial or financial information obtained from a person and privileged or confidential" from production under FOIA. The issue at hand is whether or not forty-three documents can be withheld by defendants pursuant to Exemption 4. The privilege applies if the defendants show that the information is (a) commercial or financial (b) obtained from a person, and (c) privileged or confidential. American Airlines v. Nat'l Mediation Bd., 588 F.2d 863, 867-68 (2d Cir. 1978) (citing Consumers Union v. Veterans Admin., 301 F.Supp. 796, 802 (S.D.N.Y.1969)).

i. "Commercial" Information

The legislative history sheds little light on the precise scope of the...