Pub. Emps. for Envtl. Responsibility v. Envtl. Prot. Agency

• Decision Date: 30 September 2016
• Docket Number: Civil Action No.: 14-2056 (RC)
• Citation: 213 F.Supp.3d 1
• Parties: PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, Plaintiff, v. ENVIRONMENTAL PROTECTION AGENCY, Defendant.
• Court: U.S. District Court — District of Columbia

213 F.Supp.3d 1

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, Plaintiff,

v.ENVIRONMENTAL PROTECTION AGENCY, Defendant.

Civil Action No.: 14-2056 (RC)

United States District Court, District of Columbia.

Signed September 30, 2016

Paula Naomi Dinerstein, Public Employees for Environmental Responsibility, Silver Spring, MD, for Plaintiff.

Benton Gregory Peterson, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiff Public Employees for Environmental Responsibility ("PEER") is a non-profit organization "dedicated to research and public education concerning the activities and operations of federal, state and local governments." Compl. ¶ 4, ECF No. 2. In this Freedom of Information Act ("FOIA") lawsuit, PEER seeks to compel the Environmental Protection Agency ("EPA") to release records related to EPA's involvement with the "suspected or actual toxic contamination at schools in the Santa Monica Malibu Unified School District" ("SMMUSD"). Id. ¶ 5. Specifically, PEER objects to EPA's decision to withhold or redact certain records pursuant to certain FOIA exemptions.

Before the Court are EPA's Motion for Summary Judgment (ECF. No. 18) and PEER's Cross-Motion for Summary Judgment (ECF No. 20). The motions are ripe and fully briefed.¹ Upon consideration of the parties' submissions and the entire record, and for reasons explained below, the Court will grant in part and deny in part EPA's motion for summary judgment and deny PEER's cross-motion for summary judgment.

II. BACKGROUND

On August 19, 2014, PEER submitted a request for records to EPA Region 9, pursuant to FOIA, 5 U.S.C. § 552. See Def.'s Statement of Material Facts ("EPA Statement") ¶ 1, ECF No. 18-1; Pl.'s Statement of Material Facts ("PEER Statement") ¶ 1, ECF No. 20. Specifically, PEER requested:

[E]mails and other written communications and notes of all communications from October 1, 2013 to the present concerning or referencing suspected or actual toxic contamination with [polychlorinated biphenyls ("PCBs") ] between named EPA employees and any other EPA employees and (1) Senator Barbara Boxer, any member of her staff, or the staff of the Senate Environment and Public Works Committee which she chairs; (2) named members of the SMMUSD School Board; (3) named members of the Malibu City Council or the City Council as a group.

EPA Statement ¶ 1; PEER Statement ¶ 1. PEER also sought a fee waiver, which was granted by EPA. See Decl. of Steven Armann ("Armann Decl.") ¶ 16, ECF No. 18-3; PEER Statement ¶ 2. On December 5, 2014, PEER brought this suit, alleging that EPA had failed to provide any records, as required by FOIA. See Compl. ¶¶ 1, 7. Soon after the Complaint was filed, EPA responded to PEER's request by releasing a group of responsive documents on December 22, 2014, but withholding others pursuant to Exemptions 5 and 6 of FOIA. See Armann Decl. ¶ 17; EPA Statement ¶ 4; PEER Statement ¶ 4. Subsequent discussions between PEER and EPA led to the release of additional documents—some produced in full, and others partially redacted. See Armann Decl. ¶¶ 19–21; EPA Statement ¶¶ 5–7; PEER Statement ¶ 5. This Court ordered EPA to produce a Vaughn index providing information on redacted and fully withheld records. See Min. Order, Apr. 28, 2015. The Vaughn indices submitted with EPA's motion for summary judgment described 451 documents withheld in part and another set of documents withheld in full.² See Armann Decl. ¶ 22; EPA Statement ¶ 8; PEER Statement ¶ 6. During the briefing of these motions, EPA filed amended Vaughn indices that corrected certain errors identified by the parties and reflected EPA's decision to release certain records that were not properly withheld. See Notice of Filing Am. Vaughn Indices, ECF No. 26; see also Pl.'s Mem. Supp. Cross-Mot.

Summ. J. ("PEER Mem.") at 22–23, ECF No. 20 (arguing that withheld records were not intra- or inter-agency materials); Second Decl. of Steven Armann ("2d Armann Decl.") ¶ 7, ECF No. 24-1 (releasing challenged documents). Now before the Court are cross-motions for summary judgment filed by each of the parties. See generally Def.'s Mot. Summ. J. ("EPA Mot."), ECF No. 18; Pl.'s Cross-Mot. Summ. J., ECF No. 20.

III. LEGAL STANDARD

A. Summary Judgment

"FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol , 623 F.Supp.2d 83, 87 (D.D.C. 2009) (citing Bigwood v. U.S. Agency for Int'l Dev ., 484 F.Supp.2d 68, 73 (D.D.C. 2007) ). Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A "material" fact is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" if there is enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. See Celotex Corp. v. Catrett , 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant bears the initial burden of identifying portions of the record that demonstrate the absence of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1) ; Celotex , 477 U.S. at 323, 106 S.Ct. 2548. In response, the non-movant must point to specific facts in the record that reveal a genuine issue that is suitable for trial. See Celotex , 477 U.S. at 324, 106 S.Ct. 2548. In considering a motion for summary judgment, a court must "eschew making credibility determinations or weighing the evidence," Czekalski v. Peters , 475 F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most favorable to the non-movant, see Anderson , 477 U.S. at 255, 106 S.Ct. 2505. Nevertheless, conclusory assertions offered without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton , 164 F.3d 671, 675 (D.C. Cir. 1999).

B. Freedom of Information Act

FOIA was enacted so that citizens could discover "what their government is up to." U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press , 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting EPA v. Mink , 410 U.S. 73, 105, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) ). "[D]isclosure, not secrecy, is the dominant objective of [FOIA]." U.S. Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). "Consistent with this purpose, agencies may withhold only those documents or portions thereof that fall under one of nine delineated statutory exemptions." Elliot t v. U.S. Dep't of Agric. , 596 F.3d 842, 845 (D.C. Cir. 2010) (citing 5 U.S.C. § 552(b) ). "[T]he exemptions are ‘explicitly exclusive.’ " U.S. Dep't of Justice v. Tax Analysts , 492 U.S. 136, 151, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) (quoting FAA Adm'r v. Robertson , 422 U.S. 255, 262, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975) ). And it is the agency's burden to show that withheld material falls within one of these exemptions. See 5 U.S.C. § 552(a)(4)(B) ; Elliott , 596 F.3d at 845.

When assessing a summary judgment motion in a FOIA case, a court makes a de novo assessment of whether the agency has properly withheld the requested documents. See 5 U.S.C. § 552(a)(4)(B) ; Judicial Watch v. U.S. Dep't of Homeland Sec. , 598 F.Supp.2d 93, 95 (D.D.C. 2009). To prevail on a motion for summary judgment, "the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements." Weisberg v. U.S. Dep't of Justice , 627 F.2d 365, 368 (D.C. Cir. 1980) (internal quotation marks omitted) (quoting Nat'l Cable Television Ass'n v. FCC , 479 F.2d 183, 186 (D.C. Cir. 1973) ).

To meet its burden, a defendant may rely on declarations that are reasonably detailed and non-conclusory. See Citizens for Ethics & Responsibility in Wash. v. U.S. Dep't of Labor , 478 F.Supp.2d 77, 80 (D.D.C. 2007) (quoting Military Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981) ). The agency's justification is typically contained in a declaration or affidavit, referred to as a " Vaughn index" after the case Vaughn v. Rosen , 484 F.2d 820 (D.C. Cir. 1973). An agency's affidavits or declarations are presumed to be submitted in good faith. See SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991). The purpose of a Vaughn index is "to permit adequate adversary testing of the agency's claimed right to an exemption," Nat'l Treasury Emps. Union v. U.S. Customs Serv. , 802 F.2d 525, 527 (D.C. Cir. 1986) (citing Mead Data Cent., Inc. v. U.S. Dep't of Air Force , 566 F.2d 242, 251 (D.C. Cir. 1977) ), and therefore the index must contain "an adequate description of the records" and "a plain statement of the exemptions relied upon to withhold each record," id. at 527 n.9.

"Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ " Wolf v. CIA , 473 F.3d 370, 374–75 (D.C. Cir. 2007) (quoting Gardels v. CIA , 689 F.2d 1100, 1105 (D.C. Cir. 1982) ). Generally, a reviewing court should "respect the expertise of an agency" and not "overstep the proper limits of the judicial role in FOIA review." Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C. Cir. 1979). Nonetheless, "exemptions from disclosure must be narrowly construed ... and conclusory and generalized allegations of exemptions are...