Hunton & Williams LLP v. U.S. Environmental Protection Agency , 248 F. Supp. 3d 220 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HUNTON & WILLIAMS LLP, :
:
Plaintiff, : Civil Action No.: 15-1203 (RC)
:
v. : Re Document Nos.: 36, 40, 46,
: 50, 52, 56
U.S. ENVIRONMENTAL PROTECTION :
AGENCY, :
:
Defendant. :
:
HUNTON & WILLIAMS LLP, :
:
Plaintiff, : Civil Action No.: 15-1207 (RC)
:
v. :
:
U.S. ARMY CORPS OF ENGINEERS, :
:
Defendant. :
:
HUNTON & WILLIAMS LLP, :
:
Plaintiff, : Civil Action No.: 15-1208 (RC)
:
v. :
:
U.S. DEPARTMENT OF THE ARMY, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART THE EPA’S MOTION FOR SUMMARY JUDGMENT;
GRANTING IN PART AND DENYING IN PART THE CORPS’ MOTION FOR SUMMARY JUDGMENT;
GRANTING IN PART AND DENYING IN PART THE ARMY’S MOTION FOR SUMMARY JUDGMENT;
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR ORDER
GOVERNING FURTHER PROCEEDINGS CONCERNING THE EPA;
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT CONCERNING THE CORPS;
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT CONCERNING THE ARMY
I. INTRODUCTION
Plaintiff Hunton & Williams LLP (Hunton) filed this action seeking documents under the
Freedom of Information Act (FOIA). Hunton requested records from three agencies—the U.S.
Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers (Corps), and the
U.S. Department of the Army (Army)—regarding the government’s Clean Water Act (CWA)
and Rivers and Harbors Act (RHA) jurisdiction over an industrial site in Redwood City,
California. The developer of the site had requested an Approved Jurisdictional Determination
(AJD) in 2012, in order to definitively establish the government’s position on CWA and RHA
jurisdiction. The Corps and the EPA share responsibility for issuing such AJDs.
In this case, after the Corps prepared a draft AJD addressing both CWA and RHA
jurisdiction, the Army intervened to perform a “legal and policy review” in its role as the Corps’
parent agency. After that legal and policy review was complete and the Corps had briefly
returned to work on the AJD, the EPA stepped in and used its “special case” authority to take
over the CWA portion of the AJD. As of August of 2016, the EPA had still not issued the CWA
portion of the AJD.
Hunton, a law firm, submitted multiple FOIA requests for records from the EPA, the
Corps, and the Army. Dissatisfied with the agencies’ responses, Hunton filed this suit. Now
2
pending before the Court are motions for summary judgment by the EPA, the Army, and the
Corps, as well as Hunton’s motion for partial summary judgment concerning the Corps,
Hunton’s motion for partial summary judgment concerning the Amy, and Hunton’s motion for
an order governing further proceedings against the EPA.1
As explained below, because it concludes that the agencies have not adequately justified
their application of FOIA exemptions to withhold documents, the Court will entertain supplemental
1
The Court uses the following short citations to refer to the briefing filed in this case.
With respect to the EPA:
 Mem. P. & A. Supp. Def.’s Mot. Summ. J. (EPA MSJ), ECF No. 40.
 The memorandum docketed as Hunton’s opposition at ECF No. 49 is identical to
the Hunton’s supporting memorandum at ECF No. 50. The Court cites
exclusively to ECF No. 50.
 Pl.’s Mem. P. & A. Opp’n to Def. U.S. EPA’s Mot. Summ. J. & Supp. Pl.’s Mot.
Order Gov. Further Proceedings (Pl.’s Mot. Order EPA), ECF No. 50.
 Def.’s Opp’n Pl.’s Mot. Gov. Further Proceedings & Reply Supp. Def.’s Mot
Summ. J. (EPA Reply), ECF No. 57.
With respect to the Corps:
 Mem. P. & A. Supp. Def.’s Mot. Summ. J. (Corps MSJ), ECF No. 52.
 The memorandum docketed as Hunton’s opposition at ECF No. 55 is identical to
Hunton’s supporting memorandum at ECF No. 56. The Court cites exclusively to
ECF No. 56.
 Pl.’s Mem. P. & A. Opp’n Def. U.S. Army Corps’ Mot. Summ. J. & Supp. Pl.’s
Mot. Partial Summ. J. (Pl.’s MPSJ Corps), ECF No. 56.
 Reply Supp. Pl.’s [sic] Mot. Summ. J. & Opp’n Pl.’s Partial Mot. Summ. J.
(Corps Reply), ECF No. 59.
 Pl.’s Reply Mem. Supp. Pl.’s Mot. Partial Summ. J. (Pl.’s Reply Corps), ECF No. 60.
With respect to the Army:
 Mem. P. & A. Supp. Def.’s Mot. Summ. J. (Army MSJ), ECF No. 36.
 The memorandum docketed as Hunton’s opposition at ECF No. 45 is identical to
Hunton’s supporting memorandum at ECF No. 46. The Court cites exclusively to
ECF No. 46.
 Pl.’s Mem. P. & A. Opp’n Def. U.S. Army’s Mot. Summ. J. & Supp. Pl.’s Mot.
Partial Summ. J. (Pl.’s MPSJ Army), ECF No. 46.
 Def.’s Opp’n Pl.’s Mot. Partial Summ. J. & Reply Supp. Def.’s Mot. Summ. J.
(Army Reply), ECF No. 51.
 Pl.’s Relpy Mem. Supp. Pl.’s Mot. Partial Summ. J. (Pl.’s Reply Army), ECF No. 54.
3
briefing and review selected documents in camera. However, the Court concludes that the
agencies’ searches were adequate. The motions are thus granted in part and denied in part.2
II. BACKGROUND
Hunton filed FOIA requests seeking information relating to the AJD for an industrial site
in Redwood City, California.3 Compl. ¶ 5, ECF No. 1.4 The site, located near the San Francisco
harbor, serves as an active saltworks and contains pools of water and salty brine. Compl. ¶ 6. The
agencies refer to the site by a variety of names, including the Salt Plant, Saltworks, Redwood
City, and Cargill. Compl. ¶ 5. The developers of the site sought an AJD to determine if the site
was covered by the Clean Water Act (CWA)—a highly technical issue turning on whether the
site contains “waters of the United States.” Compl. ¶¶ 6, 9. An AJD would establish the
government’s position on the jurisdiction of both the CWA and the Rivers and Harbors Act
(RHA). Compl. ¶ 9. The AJD at issue was requested on May 29, 2012, Compl. ¶ 9, and remained
pending until at least August of 2016, EPA Reply at 18, ECF No. 57—a total time of more than
1500 days.
Three agencies—the Corps, the EPA, and the Army—played a role in this lengthy
process. Typically, the EPA and the Corps share responsibility for issuing AJDs. Compl. ¶ 9. For
the AJD at issue, the Corps informed the developers that it would take the lead with the EPA
providing the Corps with “technical support.” Compl., Ex. A, ECF No. 1-1. The Corps began
2
Although Hunton has requested oral argument on the motions, the Court finds that oral
argument would not assist it in rendering a decision. See LCvR 7(f).
3
To provide context to Hunton’s FOIA requests, the Court cites to background facts from
Hunton’s complaint, none of which are disputed by the agencies.
4
Unless otherwise noted, all record citations are to the main docket for this consolidated
case—No. 15-cv-1203. As noted, some filings refer to dockets No. 15-cv-1207 or No. 15-cv-1208.
4
work, and in May of 2014 was apparently “on the verge” of issuing an AJD determining both
RHA and CWA jurisdiction. Compl. ¶¶ 15–16.
But the AJD did not issue in May of 2014. Instead, the Assistant Secretary of the Army
for Civil Works (ASA(CW)) used her “oversight responsibility” over the Corps to conduct a
“legal and policy review” of the AJD process, with the effect of delaying the AJD’s issuance.
Decl. of Paul DeAgostino (DeAgostino Decl.) ¶ 21, ECF No. 36-2; Compl. ¶¶ 21, 24. According
to the ASA(CW), this review “only considered the procedural aspects of the determination and
did not in any way consider the substantive question of whether the property in question is in fact
jurisdictional.” Darcy Mem. for the Chief of Engineers at 1, Ex. 1, ECF No. 46-1. The Army
completed its “legal and policy review” in November of 2014 and the Corps once again returned
to the AJD process. Compl. ¶ 24. In November of 2014, the Corps sent the EPA a “draft AJD”
covering both RHA and CWA jurisdiction with the stated intent of issuing it in December of
2014. Pl.’s MSJ Against Corps, Ex. C, ECF No. 56-3. However, another delay arose. On March
18, 2015 the Corps informed the EPA that the Corps had “arrived at a decision” to “finalize and
sign [the AJD] tomorrow.” Pl.’s Reply Army, Ex. E, ECF No. 54-5.
On the eve of this planned issuance, the EPA used its “special case” authority to take
over the CWA portion of the AJD. Brush Decl., Ex. E at 16, ECF No. 40-3; see also Mem.
Agreement, Ex. 2, ECF No. 57-1. The Corps retained the authority to determine RHA
jurisdiction, and issued an AJD with respect to the RHA on March 19, 2015. Compl. ¶ 27. The
special case authority is typically used when “significant issues or technical difficulties are
anticipated or exist, concerning the determination of the geographic jurisdictional scope of
waters of the United States.” Mem. Agreement. A few months later, in June of 2015, the
5
agencies published a new rule altering the definition of “waters of the United States” in the
CWA. See generally 33 C.F.R. § 328 (2015).
As of the briefing of these motions, the CWA portion of the Redwood City AJD had still
not been issued by the EPA. EPA Reply at 18, ECF No. 57. Seeking insight into the EPA and the
Corps’ decisionmaking with respect to the Redwood City site, Hunton submitted multiple FOIA
requests to the EPA, the Corps, and the Army. Nine of those requests are at issue here.
A. FOIA Requests to the EPA
Four of Hunton’s FOIA requests to the EPA are at issue in this suit. First, on May 30,
2014, Hunton submitted FOIA requests to the EPA seeking5:
1. Any and all documents related to the DMB Redwood City Salt Plant (also
known as DMB Redwood City Saltworks project, Redwood City Saltworks
project site, Redwood City salt production facilities, or Cargill operations in
Redwood City) since January 1, 2014.
2. Any and all communications between EPA (all offices) and the other parties,
including but not limited to the Corps (all offices), the Department of the Army
(all offices, including the Office of the Assistant Secretary of the Army for Civil
Works), Congress (members and staff), other Executive Branch employees, and
non-government third parties, related to the DMB Redwood City Salt Plant (also
known as DMB Redwood City Saltworks project, Redwood City Saltworks
project site, Redwood City salt production facilities, or Cargill operations in
Redwood City) since January 1, 2014.
3. Any request (other than this letter) from any entity or person for any documents
relating to the DMB Redwood City Salt Plant (also known as DMB Redwood
City Saltworks project, Redwood City Saltworks project site, Redwood City salt
production facilities, or Cargill operations in Redwood City) received on or after
January 1, 2014, and all documents, communications, and records relating to such
a request, including any response by EPA to that request.
Compl., Ex. E, ECF No. 1-5.
5
Hunton served identical copies of this FOIA request on the EPA Headquarters and EPA
Region 9. Decl. Jason Brush (Brush Decl.) ¶¶ 12-15, ECF No. 40-2. The EPA merged the
requests and treated them as a single request with reference number EPA-R9-2014-006943.
Brush Decl. ¶ 12.
6
Next, Hunton sought the same records as in its initial request, but twice expanded the
applicable date range to cover any documents created since the previous FOIA requests: on
August 19, 2014, Hunton requested documents “since May 30, 2014,”6 Compl., Ex. H, ECF No.
1-8; and, on March 19, 2015, Hunton requested documents “since August 19, 2014.”7
On March 23, 2015, Hunton submitted a fourth request to the EPA seeking:8
the Corps’ “final” CWA JD (with attachments) and/or “final” combined RHA and
CWA JD (with attachments) for Redwood City Saltworks. By “final,” we mean
the version of the document that was prepared for signature by Major General Peabody
(whether or not the document was ever actually signed), and sent to the EPA.
Compl., Ex. N, ECF No. 1-14 (footnotes omitted). Hunton appealed each of the four requests
administratively. Brush Decl. ¶ 29, ECF No. 40-2. The exhaustion of administrative remedies is
not at issue here.9
Between June 2014 and June 2015, the EPA produced documents relating to Hunton’s
first three FOIA requests. Compl. ¶¶ 30, 48. To do so, EPA searched specific employee’s
6
Hunton once again served identical copies of this FOIA request on the EPA
Headquarters and EPA Region 9. Brush Decl. ¶ 13. These requests were again combined by the
EPA as EPA-R9-2014-9624. Brush Decl. ¶ 13.
7
Hunton once again served identical copies of this FOIA request on the EPA
Headquarters and EPA Region 9. Brush Decl. ¶ 14. In this case, the EPA Region 9 request (EPA-
R9-2015-005422) was completed first while the Headquarters request (EPA-HQ-2015-5242)
remained pending. Brush Decl. ¶ 14. Only the Region 9 request appears to be at issue in this
litigation. See Brush Decl. ¶ 14 (noting that Region 9 completed its processing on June 12, 2015
while Hunton agreed to allow the EPA to continue processing the Headquarters request after
initiating this lawsuit).
8
This request was labelled by the EPA as EPA-R9-2015-5491. Brush Decl. ¶ 15.
9
The appeal on the fourth request, for the “final” AJD, was denied by the EPA on July
13, 2015. Brush Decl. ¶ 29. The other administrative appeals were still pending when this lawsuit
was filed. Brush Decl. ¶ 29.
Although the EPA asserts that Hunton failed to exhaust its administrative remedies on the
adequacy of the EPA’s search for responsive records, EPA MSJ at 12, ECF No. 40, Hunton does
not appear to challenge the adequacy of the EPA’s search and the Court thus need not resolve
this issue.
7
accounts in its email system using various search terms. Brush Decl. ¶ 16. “[C]ustodians” at EPA
Region 9 and the EPA headquarters were also instructed “to search for and collect other responsive
files that would not be contained in the email system” in response to these three requests. Brush
Decl. ¶ 17. The EPA produced about 600 documents in full, withheld 12 documents in full, and
withheld 320 documents in part. Brush Decl. ¶ 31. Of the withheld information, the information
in 314 documents was withheld on the basis of the deliberative process privilege, the information
in 23 documents was withheld on the basis of the attorney–client privilege, and the information
in 23 documents was withheld on the basis of the attorney work-product privilege. Brush Decl. ¶ 31.
With respect to the fourth FOIA request, the EPA denied the March 23, 2015 request for
the “final” AJD. Compl. ¶¶ 51–52. The EPA located the document using a manual search, but
withheld it in its entirety under the deliberative process privilege. Brush Decl. ¶ 23.10
B. FOIA Requests to the Corps
Four of Hunton’s FOIA requests to the Corps are at issue here. First, on May 30, 2014,
Hunton submitted a FOIA request to the Corps seeking:11
1. Any and all documents related to the DMB Redwood City Salt Plant (also
known as DMB Redwood City Saltworks project, Redwood City Saltworks
project site, Redwood City salt production facilities, or Cargill operations in
Redwood City) since January 1, 2014.
2. Any and all communications between Corps (all offices) and the other parties,
including but not limited to EPA (all offices), the Department of the Army (all
offices, including the Office of the Assistant Secretary of the Army for Civil
Works and the Office of the General Counsel), Congress (members and staff),
other Executive Branch employees, and non-government third parties, related to
the DMB Redwood City Salt Plant (also known as DMB Redwood City Saltworks
10
Although the EPA did not locate the attachments enumerated in Hunton’s request,
Hunton has not pressed that issue here and may have received them from a different agency. See
Brush Decl. ¶ 23.
11
Hunton served identical copies of this FOIA request on the San Francisco and South
Pacific Districts of the Corps, as well as Corps HQ. 15-cv-1207, Compl. ¶ 29, ECF No. 1. The
Corps combined the requests as FP-14-021113. 15-cv-1207, Compl. ¶ 29, ECF No. 1.
8
project, Redwood City Saltworks project site, Redwood City salt production
facilities, or Cargill operations in Redwood City) since January 1, 2014.
3. Any request (other than this letter) from any entity or person for any documents
relating to the DMB Redwood City Salt Plant (also known as DMB Redwood
City Saltworks project, Redwood City Saltworks project site, Redwood City salt
production facilities, or Cargill operations in Redwood City) received on or after
January 1, 2014, and all documents, communications, and records relating to such
a request, including any response by the Corps to that request.
15-cv-1207, Compl., Ex. E., ECF No. 1-5. As is evident from the request, Hunton sought the
same information from the Corps as it did in its request to the EPA.
Next, Hunton sought the same records as in its initial request, but thrice expanded the
applicable date range to cover any document created after the previous FOIA request: on August
19, 2014, Hunton requested documents “since May 30, 2014,” 15-cv-1207, Compl., Ex. F, ECF
No. 1-6;12 on March 19, 2015, Hunton requested documents “since August 19, 2014,” 15-cv-
1207, Compl., Ex. G, ECF No. 1-7; 15-cv-1207, Compl. ¶ 43;13 and on June 12, 2015, Hunton
requested documents “since March 19, 2015,” and added the Office of the General Counsel
within the Department of the Army to the list of enumerated offices. 15-cv-1207, Compl., Ex. H,
ECF No. 1-8; 15-cv-1207, Compl. ¶ 46.14
Between April 2015 and April 2016, the Corps released 20,448 pages of documents. See
Bartlett Decl. ¶ 8. The Corps identified a set of likely custodians within each office and used
search terms to search their files and email. Bartlett Decl. ¶¶ 10–23. The search identified 22,776
pages of responsive documents. Bartlett Decl. ¶ 24. Information was withheld under FOIA
12
Hunton once again served three identical copies of this FOIA request that were
combined by the Corps as FP-14-031623. 15-cv-1207, Compl. ¶¶ 36-37.
13
The Corps consolidated this request with the second request and assigned it the same
tracking number, “[b]ecause [it] had not yet conducted a search for Request 2.” Decl. Michelle
Bartlett (Bartlett Decl.) ¶ 6, ECF No. 52-2.
14
The Corps handled this request as FP-15-022252. Bartlett Decl. ¶ 7.
9
Exemptions 5 and 6. Bartlett Decl. ¶¶ 28–34. The Corps determined that there was only one
“record custodian [who] appeared to have conducted any business using a personal email
account.” Second Decl. Michelle Bartlett (2d Bartlett Decl.) ¶ 7, ECF No. 59-1. That custodian
searched her personal email, but did not identify any previously undisclosed responsive
documents. 2d Bartlett Decl. ¶ 7.
C. FOIA Requests to the Army
Only one FOIA request to the Army is at issue here. On March 19, 2015, Hunton
submitted a FOIA request to the Army seeking:
1. Any and all documents related to the DMB Redwood City Salt Plant (also
known as DMB Redwood City Saltworks project, Redwood City Saltworks
project site, Redwood City salt production facilities, or Cargill operations in
Redwood City).
2. Any and all communications between the Department of the Army (all offices,
including the Office of the Assistant Secretary of the Army for Civil Works and
the Office of the General Counsel) and the other parties, including but not limited
to EPA (all offices), the Corps of Engineers (all offices), Congress (members and
staff), other Executive Branch employees, and non-government third parties,
related to the DMB Redwood City Salt Plant (also known as DMB Redwood City
Saltworks project, Redwood City Saltworks project site, Redwood City salt
production facilities, or Cargill operations in Redwood City).
3. Any request (other than this letter) from any entity or person for any documents
relating to the DMB Redwood City Salt Plant (also known as DMB Redwood
City Saltworks project, Redwood City Saltworks project site, Redwood City salt
production facilities, or Cargill operations in Redwood City) and all documents,
communications, and records relating to such a request, including any response by
the Department to that request.
15-cv-1208, Compl., Ex. E, ECF No. 1-5.
The Army did not release any documents to Hunton before the complaint in this action
was filed. 15-cv-1208, Compl. ¶ 31, ECF No. 1; 15-cv-1203, Answer ¶ 31, ECF No. 16. After
this lawsuit was initiated, the Army identified 3852 pages of responsive documents and released
10
2422 pages of materials between November 2015 and January of 2016. DeAgostino Decl. ¶¶ 5,
15, ECF No. 36-2.
The Army searched for responsive documents within the Office of the ASA(CW) and
within the Office of General Counsel (OGC), the two locations it determined were likely to have
responsive documents. DeAgostino Decl. ¶ 6. The Army identified likely custodians in each
office and applied various search terms to their files. DeAgostino Decl. ¶¶ 7–11. The Army also
used search terms to search those custodians’ files with the Defense Information Systems
Agency—the email provider for the OGC and ASA(CW). DeAgostino Decl. ¶ 12. The Army
withheld a variety of documents from its disclosure under FOIA Exemptions 5 and 6.
DeAgostino Decl. ¶¶ 17–18. The Army supplemented its initial search by searching the personal
email of a particular employee who had used a personal email account to conduct agency
business. Compare Pl.’s Reply Army at 3, ECF No. 54, with Schmauder Decl. ¶ 4, ECF No. 61.
The Army searched the personal email account for the terms “Cargill,” “Saltworks,” and
“Redwood City,” but found only previously released emails. Schmauder Decl. ¶ 4.
D. Procedural History
All three agencies move for summary judgment on the grounds that they performed
adequate searches, appropriately withheld information pursuant to FOIA exemptions, and
released all reasonably segregable material. Army MSJ, ECF No. 36; EPA MSJ, ECF No. 40;
Corps MSJ, ECF No. 52. Against the EPA, Hunton seeks an order denying summary judgment
and granting in camera review of the material the EPA withheld. Pl.’s Mot. Order EPA, ECF No.
50. Against the Corps, Hunton moves for partial summary judgment, seeking an order
documenting violations of FOIA, re-review and production of materials currently withheld as
non-responsive, and either production or in camera review of materials withheld under
11
Exemption 5. Pl.’s MPSJ Corps, ECF No. 56. Against the Army, Hunton moves for partial
summary judgment seeking an order documenting violations of FOIA, release of the names
redacted under Exemption 6, and either production or in camera review of materials withheld
under Exemption 5. Pl.’s MPSJ Army, ECF No. 46. Those motions are now ripe for decision.
The Court reviews the applicable legal standard before analyzing the merits of the
parties’ positions.
III. LEGAL STANDARD
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Def. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). Summary judgment
is appropriate when “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. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a
reasonable jury to return a verdict for the non-movant. Scott v. Harris, 550 U.S. 372, 380 (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 (1986). 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.
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 information. See 5 U.S.C.
12
§ 552(a)(4)(B); Judicial Watch, Inc. 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 Responsibility & Ethics in Wash. v. U.S. Dep’t of Labor, 478 F. Supp. 2d 77, 80 (D.D.C.
2007) (“[T]he Court may award summary judgment solely on the basis of information provided
by the department or agency in declarations when the declarations describe ‘the documents and
the justifications for nondisclosure with reasonably specific detail, demonstrate that the
information withheld logically falls within the claimed exemption, and are not controverted by
either contrary evidence in the record nor by evidence of agency bad faith.’” (quoting Military
Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981))). “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).
Even if the nonmovant does not respond to the motion for summary judgment, the court
cannot grant the motion for the reason that it was conceded. See Winston & Strawn, LLP v.
McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) (“Under the Federal Rules of Civil Procedure, a
motion for summary judgment cannot be ‘conceded’ for want of opposition. ‘The burden is
13
always on the movant to demonstrate why summary judgment is warranted. The nonmoving
party’s failure to oppose summary judgment does not shift that burden.’ The District Court ‘must
always determine for itself whether the record and any undisputed material facts justify granting
summary judgment.’” (quoting Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015)
(Griffith, J., concurring) and citing Fed. R. Civ. P. 56(e)(3))).
IV. ANALYSIS
Hunton disputes the adequacy of the agencies’ searches, as well as the agencies’ use of
FOIA Exemptions 5 and 6. The Court addresses adequacy first, and concludes that the agencies’
searches were adequate. The Court then turns to the agencies’ withholdings, and concludes that
no agency has fully justified its withholdings, and thus in camera review and further briefing will
be appropriate.
A. Adequacy of the Search
Hunton argues that the agencies’ searches were inadequate in two ways—first, because
the agencies did not sufficiently search employees’ personal communications, such as personal
email accounts and text messages; and second, because the Corps artificially limited the number
of custodians that it searched.
Although Hunton does not, in general, challenge the adequacy of the agencies’ searches,
the Court nonetheless conducts an independent evaluation to determine whether the record and
undisputed material facts justify granting summary judgment. Under FOIA, an adequate search is
one that is “reasonably calculated to uncover all relevant documents.” Morley v. CIA, 508 F.3d
1108, 1114 (D.C. Cir. 2007) (internal quotation mark omitted) (quoting Weisberg v. U.S. Dep’t
of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The agency need not search “every record
system” for the requested documents, but it “must conduct a good faith, reasonable search of
14
those systems of records likely to possess the requested records.” Marino v. Dep’t of Justice, 993
F. Supp. 2d 1, 9 (D.D.C. 2013) (citing Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C.
Cir. 1990)). When an agency seeks summary judgment on the basis that it conducted an adequate
search, it “may rely on 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 (if such
records exist) were searched.’” DiBacco v. U.S. Army, 795 F.3d 178, 188 (D.C. Cir. 2015)
(quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)). Once the
agency has provided a reasonably detailed affidavit describing its search, the burden shifts to the
FOIA requester to produce “countervailing evidence” suggesting that a genuine dispute of
material fact exists as to the adequacy of the search. Morley, 508 F.3d at 1116.
In general, the agencies’ searches are adequate. Each agency has provided a declaration
describing its search in reasonable detail and explaining how that search was reasonably
calculated to uncover all responsive documents. For example, the EPA provided a declaration
describing its search process for records responsive to request EPA-R9-2014-006943. The EPA
“focused on e-mail correspondence as the location most likely to contain the majority of
responsive records” and therefore used a “centralized tool” to search the EPA’s email system
using the keywords “Cargill,” “Redwood City,” “salt pond,” “DMB,” and “Saltworks.” Brush
Decl. ¶ 16, ECF No. 40-2. In addition, “custodians [] search[ed] for and collect[ed] other
responsive files that would not be contained in the email system (such as word processing
documents or hard copy documents).”15 Brush Decl. ¶ 17. Upon its independent evaluation—and
15
The Corps and the Army similarly provided declarations describing their searches. For
example, in response to request FP-14-021113, the Corps determined “that all responsive
documents would reasonably be found within the Regulatory Office, Chief Counsel’s Office, and
the Executive Office.” Bartlett Decl. ¶ 10, ECF No. 52-2. Within each office, the Corps
identified two or three custodians to “reasonably identify[] all responsive documents” while
15
in the absence of countervailing evidence from Hunton—the Court thus concludes that the
agencies’ searches were, in general, reasonably designed to locate all responsive documents and
that the record thus demonstrates that the agencies are entitled to summary judgment.
* * *
Having concluded that the agencies’ searches were generally adequate, the Court
addresses Hunton’s specific objections. First, Hunton argues that the Corps and the Army did not
adequately search non-official channels of communication. Second, Hunton asserts that the
Corps improperly limited the number of custodians that it searched.
1. Personal Communications
Hunton disputes the adequacy of the Corps’ and the Army’s searches on the grounds that
neither included “non-official channels, such as personal email, text messages, or the like.” Pl.’s
MPSJ Corps at 19, ECF No. 56; Pl.’s MPSJ Army at 23, ECF No. 46. As noted previously, the
agency bears the initial burden of demonstrating, typically through declarations, that it has
performed an adequate search. Once the agency has met that burden—as it has here—the burden
avoiding “duplicate information and processing time.” Bartlett Decl. ¶ 10. The custodians
“searched their email (inbox, sent mail, and archives) and electronic documents on their
computer as well as hard copy files they maintained.” Bartlett Decl. ¶ 23. The keywords used
always included “Redwood,” and also included “Redwood City,” “Salt Works,” “Salt Ponds,”
“south bay,” “lawsuits,” “litigation,” “jurisdictional determination,” and “JD,” based on the
custodian. Bartlett Decl. ¶ 23.
For the Army’s search, the Army “determined that all responsive documents would
reasonably be found within the office of the ASA(CW) or the Office of the Army General
Counsel (OGC).” DeAgostino Decl. ¶ 6, ECF No. 36-2. Custodians within the OGC were
identified, and their “emails, hard-drives and network drives” were searched for records.
DeAgostino Decl. ¶ 7. Search terms used included “Cargill” and “Redwood City.” DeAgostino
Decl. ¶ 8. Custodians were also identified within the ASA(CW), and their files were searched.
DeAgostino Decl. ¶ 13. The ASA(CW) shared drive was also searched for the terms “Hunton,”
“Williams,” “Cargill,” “Redwood,” and “salt.” DeAgostino Decl. ¶ 14. The Army’s email system
was also searched for the terms “Redwood City,” “saltworks,” “Pacific Ventures,” “Westpoint
Slough,” “Cargill,” and “salt plant” for a specific list of custodians. DeAgostino Decl. ¶ 12.
16
shifts to the FOIA requester to produce “countervailing evidence” showing a genuine dispute of
material fact as to the adequacy of the search. Morley, 508 F.3d at 1116.
The D.C. Circuit has suggested that a requester can satisfy its burden to present
“countervailing evidence” in the context of personal email accounts by identifying evidence that
a specific private email address has been used for agency business. See Competitive Enter. Inst.
v. Office of Sci. & Tech. Policy, 827 F.3d 145, 146 (D.C. Cir. 2016). Mere speculation, however,
that private email accounts were used does not require the agency to perform a search. See
Wright v. Admin. for Children & Families, No. 15-218, 2016 WL 5922293, at *8–9 & n.5
(D.D.C. Oct. 11, 2016) (rejecting “the plaintiff’s purely speculative contentions” that personal
email was used because “[t]he plaintiff misconstrues the nature of his burden to submit
‘countervailing evidence’ to raise a ‘substantial doubt’ as to the adequacy of the agency’s
search” and “the plaintiff has not overcome the presumption that agency records are unlikely to
exist on the agency employees’ personal accounts”).
Here, the Corps initially searched the personal email account of one particular employee
because that employee “appeared to have conducted . . . business using a personal email
account.”16 2d Bartlett Decl. ¶ 7, ECF No. 59-1. The search did not identify any additional
responsive documents. 2d Bartlett Decl. ¶ 7, ECF No. 59-1.
The Army did not initially perform any searches for personal emails, but did perform a
supplemental search after Hunton identified emails in the Army’s releases that had been sent
from a personal email account. Pl.’s Reply Army at 3, ECF No. 54. The Army’s supplemental
search covered that particular account and used the search terms “Cargill,” “Saltworks,” and
16
Presumably this employee was identified through an examination of the “to” and
“from” fields in the responsive emails.
17
“Redwood City.” Schmauder Decl. ¶ 4, ECF No. 61. That search discovered only the previously
released emails. See Schmauder Decl. ¶ 4 (indicating that Mr. Schmauder “do[es] not routinely
use [his] personal emails to conduct professional business”); see generally Schmauder Decl.
Both agencies have thus performed searches when specific facts indicated that a
particular employee had used a personal email account for agency business. Hunton identifies no
other particular employees whose accounts it asserts should be searched, or other specific facts in
the record indicating that personal email accounts were used. Hunton seeks to require the
agencies to search other personal email accounts—presumably those for all employees identified
as having been involved with the Saltworks issues—even in the absence of any indication that
any such personal accounts were used for agency business. This goes too far. Unlike the
requestor in Competitive Enterprise Institute, Hunton is unable to identify any “countervailing
evidence” of personal email use. Cf. 827 F.3d at 146. Indeed, Hunton states merely that that “it is
plausible that non-formal channels may have been utilized here.” Pl.’s MPSJ Corps at 20
(emphasis added). Here, as in Wright, the Court finds that Hunton’s purely speculative claims are
insufficient to overcome the presumption that the agency’s search was adequate.17 Cf. Wright,
2016 WL 5922293, at *8–9. Because the Court finds that the agencies have adequately searched
for responsive personal emails, it need not address the Corps’ and the Army’s argument that they
17
Of course, when a requestor identifies a “gap” in the agency’s search—such as an
additional record system—the agency must make efforts to “fill” that gap, including explaining
whether the other record system exists, if so, whether it is reasonably likely to provide additional
responsive material, and, if so, what practical obstacles exist to a search. Ancient Coin Collectors
Guild v. U.S. Dep’t of State, 641 F.3d 504, 514–15 (D.C. Cir. 2011). Here, to the extent that
personal email accounts constitute an additional record system, the agencies’ declarations
attesting that such accounts will not provide additional responsive material because all work was
conducted through agency email accounts are entitled to a presumption of good faith that can be
upset only by the provision of countervailing evidence by Hunton.
18
need not search personal email accounts because it is “unlikely” that they control them.18 Corps
Reply at 18, ECF No. 59; Army Reply at 10, ECF No. 51.
Next, Hunton argues that the agencies should be required to search for responsive text
messages. Pl.’s MPSJ Army at 23–24, ECF No. 46; Pl.’s MPSJ Corps at 19–20. However, as
with emails, Hunton does not present countervailing evidence to overcome the presumption
inherent in the agency’s declarations that all sources of responsive records were searched.
Hunton does not point to any evidence indicating that text messages were used for agency
business or otherwise show that searching text messages would be likely to lead to responsive
documents. Unlike email messages, no evidence in the record suggests that any agency
employees used text messages to conduct official business. The Court therefore finds that
Hunton’s speculative arguments about the possible existence of text messages are insufficient,
and the undisputed facts in the record—including the agency’s declarations—demonstrate that
the agencies are entitled to summary judgment as to the adequacy of their search.
Finally, Hunton’s requests for discovery regarding personal communications channels are
denied as to both the Army and the Corps. “Discovery is the exception, not the rule, in FOIA
cases.” Landmark Legal Found. v. EPA, 959 F. Supp. 2d 175, 183 (D.D.C. 2013) (noting that
“discovery is an extraordinary procedure in a FOIA action” (quoting Thomas v. FDA, 587 F.
Supp. 2d 114, 115 (D.D.C. 2008))). Here, the Court has determined that the agency’s
18
The Court notes, however, that an “agency cannot shield its records from search or
disclosure under FOIA by the expedient of storing them in a private email account.” Competitive
Enter. Inst., 827 F.3d at 146; see also Landmark Legal Found. v. EPA, 959 F. Supp. 2d 175,
181–83 (D.D.C. 2013) (permitting a FOIA plaintiff limited discovery due to the agency’s failure
to search personal email accounts despite evidence that agency employees used their personal
email for official business).
19
declarations are sufficient to support a finding that their search of personal communication
channels was adequate, and discovery is thus not appropriate.
2. The Corps’ Selection of Custodians
Hunton objects that the Corps wrongfully limited the number of custodians whose
records it searched. Pl.’s MPSJ Corps at 20. However, the Court finds that Hunton agreed to a
limited list of custodians—subject to Hunton’s right to suggest additional custodians, which it
never exercised.
The Corps identified seven custodians at Headquarters whose records were searched.19
Bartlett Decl. ¶ 10, ECF No. 52-2; see also 2d Bartlett Decl. ¶ 6, ECF No. 59-1. The Corps
emailed Hunton its proposed list of custodians, and Hunton agreed that the Corps could
“prioritize” the seven Headquarters custodians. Pl.’s MPSJ Corps, Ex. F, ECF No. 56-6. Hunton
“reserve[d] the right to ask that [the Corps] provide documents from additional custodians at a
later date.” Pl.’s MPSJ Corps, Ex. F. The Corps asserts—and Hunton does not dispute20—that
Hunton never requested the inclusion of any additional custodians. 2d Bartlett Decl. ¶ 6.
According to the Corps, the email exchange and several phone calls resulted in “the
understanding between both parties that if [Hunton] decided they wanted to expand the scope of
the search beyond the agreed to records custodians they would so notify [the Corps].” 2d Bartlett
Decl. ¶ 6. The Court agrees with this interpretation. While Hunton may not have consented to an
19
The Corps also appears to have limited the number of custodians whose records were
searched at the South Pacific Division and the San Francisco District Office. See Bartlett Decl.
¶ 14 (listing seven custodians identified for the South Pacific Division), ECF No. 52-2; Bartlett
Decl. ¶ 19 (listing seven custodians identified for the San Francisco District Office). However, in
an email exchange, Hunton informed the Corps that “we want documents from all custodians
from the [South Pacific] District and [San Francisco] Division,” and the Corps replied “That was
previously understood and executed.” Pl.’s MPSJ Corps, Ex. F, ECF No. 56-6.
20
In fact, Hunton abandons its arguments about the Corps’ limitation of custodians in its
reply. See generally Pl.’s Reply Corps, ECF No. 60.
20
unconditional limitation, it did agree that it would inform the Corps if it sought records from
additional custodians. Hunton never exercised this right, and thus cannot object to the Corps
proceeding with only the original list. Cf. Wilson v. U.S. Dep’t of Transp., 730 F. Supp. 2d 140,
152 (D.D.C. 2010) (“Having agreed to that interpretation [of his FOIA request], [the plaintiff]
cannot now argue that he meant something else.”), aff’d, No. 10-5295, 2010 WL 5479580 (D.C.
Cir. Dec. 30, 2010); Kenney v. U.S. Dep’t of Justice, 603 F. Supp. 2d 184, 189 (D.D.C. 2009)
(“Plaintiff cannot allege that the agency failed to produce responsive records, when the records
he now identifies fall outside the scope of his appropriately narrowed request.”). Because “[t]he
adequacy of the search, . . . is judged by a standard of reasonableness and depends, . . . upon the
facts of each case,” Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994), and the
Corps performed a reasonable search here, the Court grants the Corps summary judgment as to
the adequacy of its search.
B. Propriety of the Agencies’ Withholdings under FOIA Exemptions
The three agencies applied FOIA Exemptions 5 and 6 to withhold records. Hunton
objects to the agencies’ use of these exemptions. In addition to Hunton’s challenges to the
general application of each exemption, Hunton also argues that three specific types of records
were wrongfully withheld by the agencies under Exemption 5—the “final draft” AJD created by
the Corps, documents relating to the EPA’s use of its special case authority, and documents
relating to the Army’s legal and policy review. The Court concludes that the agencies’ Vaughn
indices21 and declarations are insufficient to justify their use of their claimed exemptions, and
therefore denies the agencies summary judgment.
21
A Vaughn index, named after the case Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.
1973), is an itemized list that correlates each document subject to withholdings with the applied
exemptions and the justification for non-disclosure.
21
“[D]isclosure, not secrecy, is the dominant objective of [FOIA].” Dep’t of the Air Force
v. Rose, 425 U.S. 352, 361 (1976). “Consistent with this purpose, agencies may withhold only
those documents or portions thereof that fall under one of nine delineated statutory exemptions.”
Elliott v. USDA, 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
(1989) (quoting FAA Adm’r v. Robertson, 422 U.S. 255, 262 (1975)). The agency bears the
burden of showing that an exemption applies. Elliott, 596 F.3d at 845 (citing 5 U.S.C.
§ 552(a)(4)(B)). “If an agency’s affidavit describes the justifications for withholding the
information with specific detail, demonstrates that the information withheld logically falls within
the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence
of the agency’s bad faith, then summary judgment is warranted on the basis of the affidavit
alone.” ACLU v. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted).
Hunton challenges the agencies’ use of Exemptions 5 and 6. The Court addresses each
exemption in turn, beginning with Exemption 5. Exemption 5 protects “inter-agency or intra-
agency memorandums or letters that would not be available by law to a party . . . in litigation
with the agency.” 5 U.S.C. § 552(b)(5). This exemption protects documents “normally privileged
in the civil discovery context,” Judicial Watch, Inc. v. U.S. Dep’t of Justice, 365 F.3d 1108, 1113
(D.C. Cir. 2004), such as materials shielded by the attorney–client privilege, the attorney work-
product privilege and “what is sometimes called the ‘deliberative process’ privilege,” U.S. Dep’t
of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). In other words,
Exemption 5 covers “those documents, and only those documents, normally privileged in the
civil discovery context.” Loving v. U.S. Dep’t of Defense, 550 F.3d 32, 37 (D.C. Cir. 2008)
(citations omitted). All three of these aspects of Exemption 5 are at issue here.
22
1. The Deliberative Process Privilege
Hunton challenges all three agencies’ withholdings based on the deliberative process
privilege. The Court agrees that all three agencies have not provided sufficiently detailed
explanations of their withholdings under the privilege.
The deliberative process privilege “covers documents reflecting advisory opinions,
recommendations, and deliberations comprising part of a process by which governmental
decisions and policies are formulated.” Dep’t of Interior v. Klamath Water Users Protective
Ass’n, 532 U.S. 1, 8 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)).
The purpose of the exemption is to protect the decisionmaking process within the agency. See
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). In order to
withhold information pursuant to the privilege, an agency must demonstrate that the information
is both (1) predecisional, or “generated before the adoption of an agency policy,” and also
(2) deliberative, or “reflect[ing] the give-and-take of the consultative process.” Id.22
When the deliberative process privilege is at issue, the need for an agency to describe all
of the information it withheld is “particularly acute because ‘the deliberative process privilege is
so dependent upon the individual document and the role it plays in the administrative process.’”
Animal Legal Def. Fund v. Dep’t of Air Force, 44 F. Supp. 2d 295, 299 (D.D.C. 1999) (quoting
Coastal States, 617 F.2d at 867). If the agency does not provide “‘the minimal information
necessary to make a determination’ concerning applicability of the deliberative process
privilege” then the court should deny the agency summary judgment. See Elec. Frontier Found.
22
Congress recently amended the FOIA to remove protection for records withheld under
the deliberative process privilege that were “created 25 years or more before the date on which
the records were requested.” FOIA Improvement Act of 2016, Pub. L. No. 114–185, § 2(2), 130
Stat. 538 (enacted June 30, 2016). Consideration of this amendment is unnecessary because
Hunton seeks only documents created after 2014.
23
v. U.S. Dep’t of Justice, 826 F. Supp. 2d 157, 173 (D.D.C. 2011) (quoting Coastal States, 617
F.2d at 861).
To justify its application of the deliberative process privilege, an agency must address the
following areas: “(1) the nature of the specific deliberative process involved, (2) the function and
significance of the document in that process, and (3) the nature of the decisionmaking authority
vested in the document’s author and recipient.” Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d
101, 189 (D.D.C. 2013) (citing Senate of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 585–86
(D.C. Cir. 1987); Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257–58 (D.C. Cir. 1982); Coastal
States, 617 F.2d at 867–68). In addition, other courts in this jurisdiction have held, and the D.C.
Circuit has suggested, that “the agency must make the additional showing that disclosure would
cause injury to the decisionmaking process.” Nat’l Sec. Archive v. CIA, 859 F. Supp. 2d 65, 70
(D.D.C. 2012), aff’d, 752 F.3d 460 (D.C. Cir. 2014) (citing Army Times Publ’g Co. v. Dep’t of
the Air Force, 998 F.2d 1067, 1071 (D.C. Cir. 1993)); see also Mead Data Cent., Inc. v. U.S.
Dep’t of Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977) (“An agency cannot meet its statutory
burden of justification by conclusory allegations of possible harm. It must show by specific and
detailed proof that disclosure would defeat, rather than further, the purposes of the FOIA.”);
Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252, 259 (D.D.C. 2004) (“The
deliberative process privilege exists to prevent injury to agency decisionmaking. . . . [s]uch harm
can not be merely presumed . . .” (internal citation omitted)).
Each of these areas must be addressed with reasonable specificity—a “broad and opaque
description of the deliberative process involved does not provide the Court with enough detail
about whether these documents are deliberative and predecisional.” Trea Senior Citizens League
v. U.S. Dep’t of State, 923 F. Supp. 2d 55, 68 (D.D.C. 2013). Courts in this jurisdiction have
24
rejected agency descriptions that did not adequately describe the deliberative process at issue.
See, e.g., Nat’l Sec. Counselors, 960 F. Supp. 2d at 189 (rejecting a description of the
deliberative process as “the process by which the [CIA] comes to a final determination in
response to FOIA requests” (alteration in original)); Trea Senior Citizens League, 923 F. Supp.
2d at 68 (rejecting a description of the deliberative process as “the overall process of negotiating
and signing the [totalization] agreement” (alteration in original)); Judicial Watch, Inc. v. U.S.
Postal Serv., 297 F. Supp. 2d at 264 (rejecting a description of the deliberative process as
“actions taken or proposed in response to the discovery of anthrax in the mail”). With these
principles in mind, the Court turns to each agency’s description of its application of the
deliberative process privilege.
i. EPA
Hunton argues that the EPA’s Vaughn index is insufficient to justify its withholding of
information pursuant to the deliberative process privilege. E.g., Pl.’s Mot. Order EPA at 18–22,
ECF No. 50. Because EPA does not sufficiently describe the particular decisionmaking process
or the function of the records in that process, the Court agrees.
The EPA’s Vaughn index begins with the following description for DOC-001:
Reflect[ing] pre decisional deliberations . . . regarding jurisdiction over and
development of the Cargill Salt Ponds. . . . At the time of this discussion, the
Agency had not acted, and EPA was still deliberating on the best Agency-wide
approach for coordinating its response. The author does not have decision-making
authority with respect to providing the final response to said conditions. The
withheld information is deliberative because EPA employees and managers were
still internally discussing issues concerning responsive records and how to best
coordinate the Agency’s response, and were providing advice to the decision
makers. The record reflects analysis, recommendations, and opinions that were
considered as part of the Agency’s decision making process prior to its actions
regarding the Salt Ponds. The email does not constitute a final Agency action.
Release would discourage open and frank discussions among its staff about the
Agency’s ongoing review of issues related to its response. Release would also
have a chilling effect on agency decision-making processes, and on the Agency’s
25
ability to have internal discussions and consultations concerning its response.
Furthermore, release would cause public confusion by disclosing rationales and
reasons that were not in fact ultimately the grounds for EPA’s ultimate response.
The withheld information was not circulated outside the Agency. . . . The agency
has released all reasonably segregable information. The remaining withheld
information does not contain reasonably segregable factual information. To the
extent any of the withheld information contains facts, is [sic] inextricably
intertwined with the deliberative discussions concerning the Agency’s ongoing
development of its policies.
EPA’s Vaughn index at 1, ECF No. 40-4. An attentive reader would detect only modest variation
from this initial theme as the EPA’s Vaughn index continues for several hundred pages. The
precise quotation above is also found in the descriptions for, inter alia, DOC-002, DOC-003,
DOC-079, DOC-156, DOC-225, DOC-279, and DOC-321.23 See, e.g., EPA’s Vaughn index at
1–2, 2–3, 66–67, 134, 192, 243–44, 285–86.
This language24—in its various iterations—does not provide sufficient information about
the nature of the specific deliberative process involved. Returning to the example of DOC-001, it
23
Some entries included additional details at the location of the first ellipsis. See, e.g.,
EPA’s Vaughn index at 192 (describing DOC-225 as “reflect[ing] the pre decisional
deliberations of an EPA Deputy Regional Administrator about USACE’s determinations
regarding jurisdiction over and development of the Cargill Salt Ponds and possible EPA action . .
. .” (emphasis added to identify EPA’s added material)). At the location of the final ellipsis, some
entries listed additional claimed exemptions.
24
Although the EPA argues that its Vaughn index must be considered in conjunction with
its declarations, doing so would not close the gap. The EPA’s declaration states that withheld
records fall into one of three categories: “1) drafts of formal or official correspondence . . . ; 2)
informal intra-or inter-agency emails reflecting deliberative discussions; and 3) other deliberative
documents.” Brush Decl. ¶ 27, ECF No. 40-2. The declaration further specifies that most of the
drafts from EPA’s first category relate to “1) Region 9’s Special Case Request Memo; 2) Region
9’s Office of Public Affairs ‘Redwood City Special Case Talking Points’ Memo; 3) Region 9
ORC’s Redwood City Special Case (‘Cargill 02-06-2015’); 4) Draft Cargill Fact Sheet
developed for EPA Office of Congressional and Intergovernmental Relations and 5) EPA
Headquarters Response Memo.” Brush Decl. ¶ 28. Similarly, most of the informal
communications from EPA’s second category relate to “(1) the development of the substantive
Agency decisions regarding the special case request, and (2) the drafting and development of the
formal correspondence announcing or communicating those decisions.” Brush Decl. ¶ 30. The
records in EPA’s third category are not further described except that they “regard[] the
jurisdictional issues being considered by the EPA.” Brush Decl. ¶ 33. These descriptions come
26
is unclear if the EPA considers the deliberative process to be “jurisdiction over and development
of the Cargill Salt Ponds,” or “the best Agency-wide approach for coordinating its response,” or
“issues concerning responsive records and how to best coordinate the Agency’s response.”
EPA’s Vaughn index at 1 (DOC-001). None of these options provides sufficient insight into a
particular deliberative process, and the Vaughn index thus fails to demonstrate that DOC-001
was “generated as part of a definable decision-making process.” Gold Anti-Trust Action Comm.,
Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 135-36 (D.D.C. 2011) (citing
Petroleum Info. Corp. v. U.S. Dep’t of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992)).
Mindful of the heightened requirement for specificity in the context of the deliberative
process privilege, the Court cannot grant the EPA summary judgment because the EPA’s
disclosures, like others rejected in this jurisdiction, are insufficiently specific about the
deliberative process at issue and the function and significance of each record in that process.25
ii. The Corps
Hunton also argues that the Corps’ Vaughn index provides insufficient detail to justify
the Corps’ withholding of information under the deliberative process privilege, and the
Court agrees.
closer to describing the specific deliberative processes at issue, but the categories are not
matched to specific records. Without connecting each record to a particularized process, the
Court cannot understand each “individual document and the role it plays in the administrative
process.” Animal Legal Def. Fund, Inc. v. Dep’t of Air Force, 44 F. Supp. 2d 295, 299 (D.D.C.
1999) (emphasis added) (quoting Coastal States, 617 F.2d at 867).
25
Hunton also challenges the EPA’s Vaughn index on the grounds that it contains “little
more than boilerplate responses.” Pl.’s Mot. Order EPA at 19–20. Although the Court rejects the
EPA’s request for summary judgment for other reasons, the Court notes that repetition between
entries in a Vaughn index may be appropriate when multiple entries concern the same or similar
deliberative processes. See Judicial Watch, Inc. v. FDA, 449 F.3d 141, 147 (D.C. Cir. 2006). If
multiple records truly served the same or highly similar roles in one deliberative process, it
would be inefficient to force the agency to craft a verbally distinct description of each. The
descriptions provided here, however, suffered from a problem of vagueness, not just repetition.
27
Many of the entries in the Corps’ Vaughn index for records withheld under the
deliberative process privilege are sparse, and do not describe either the specific deliberative
process, the function of the particular record, or the nature of the decisionmaking authority. The
entries in the Corps’ Vaughn index are varied and defy easy summation, but many share the
common feature of providing very little information—if any—about the decisional process
supposedly at issue. For example, the entry for document 13710–13712 reads: “Discussion
between HQUSACE regulatory and Chief Counsel regarding timing of possible meeting EPA
[sic].” Corps’ Vaughn index26 at 133, ECF No. 52-4. Although this entry mentions a meeting, it
does not describe the deliberative process of which that meeting was a part. The description also
omits the role of this particular document, the nature of the decisionmaking authority vested in
the participants, or any potential harm to the deliberative process that would be incurred by
releasing the document. Many of the other entries in the Corps’ Vaughn index are similarly
nonspecific. See, e.g., Corps’ Vaughn index at 46 (“Email discussion between senior leadership
contining [sic] opinions and recommendations related to agency participation in a site visit of
RWC.”) (entry for document 3094–3100); Corps’ Vaughn index at 74 (“Email concerning
briefing attendees – contains opinions.”) (entry for document 736–737).
As these examples demonstrate, the Corps’ Vaughn index27 does not establish that the
records at issue are part of a predecisional deliberative process. Because the Corps has “‘failed to
supply’ in its Vaughn submissions ‘the minimal information necessary to make a determination’
26
Citations to the Corps’ Vaughn index use ECF page numbers.
27
Nor do the Corps’ declarations provide the information missing from its Vaughn index.
Those declarations clarify only that withheld documents pertain to both “the development of
substantive agency decisions [and] . . . the jurisdictional determination.” See Corps Reply at 10
(alteration in original) (quoting Bartlett Decl. ¶ 30, ECF No. 52-2). Both of these categories of
decisions are broad and fail to illuminate the particular decisionmaking process at issue.
28
concerning applicability of the deliberative process privilege,”28 the Court must deny the Corps’
request for summary judgment as to the propriety of its withholdings. Elec. Frontier Found. v.
U.S. Dep’t of Justice, 826 F. Supp. 2d 157, 173 (D.D.C. 2011) (quoting Coastal States, 617 F.2d
at 861).
iii. The Army
Finally, Hunton argues that the Army’s Vaughn index is insufficient to demonstrate
that the Army correctly withheld information under the deliberative process privilege, and the
Court agrees.
Although the Army’s Vaughn index contains some variation, many of its entries do not
adequately describe why the deliberative process privilege was applied to certain records. For
example, the entire entry for document 334 reads: “Email contains pre-decisional information
related to legal advice between attorney and client regarding AJD legal and policy review”—in a
similar vein, the entry for 213 reads “Emails contain pre-decisional information for agency
official regarding information for AJD legal and policy review.” Army’s Vaughn index at 35, 48,
ECF No. 36-3. These descriptions are just as broad and vague as those previously rejected by
courts in this jurisdiction. They provide only the fuzziest description of the deliberative process,
and also omit entirely to describe the “function or significance” of the particular record or the
decisionmaking authority vested in the author. Nor does the Army address the possible harms
that could result from releasing the withheld information, except to argue in general that
“[r]elease of this information would impair the deliberative process.” DeAgostino Decl. ¶ 21,
28
The Court especially notes the absence of any comment by the Corps on the
decisionmaking authority of the author for the many letters in the index written by the
ASA(CW), who “has oversight responsibility over the USACE.” DeAgostino Decl. ¶ 21, ECF
No. 36-2.
29
ECF No. 36-2. The Army must, at least, describe the decisional process which would be harmed
by disclosure and the nature of the harm.
Because the Army’s disclosures do not provide “‘the minimal information necessary to
make a determination’ concerning applicability of the deliberative process privilege” the Court
denies the Army’s request for summary judgment as to the propriety of its withholdings.29 See
Elec. Frontier Found., 826 F. Supp. 2d at 173 (quoting Coastal States, 617 F.2d at 861).
* * *
The Court has thus determined that none of the three agencies has provided “‘the minimal
information necessary to make a determination’ concerning applicability of the deliberative
process privilege” and the Court will thus deny the agencies summary judgment as to the deliberative
process privilege. See Elec. Frontier Found., 826 F. Supp. 2d at 173 (quoting Coastal States, 617
F.2d at 861). The Court has several options for an appropriate remedy. “If the agency fails to
provide a sufficiently detailed explanation to enable the district court to make a de novo determination
of the agency’s claims of exemption, the district court then has several options, including
inspecting the documents in camera, requesting further affidavits, or allowing the plaintiff
discovery.” Spirko v. USPS, 147 F.3d 992, 997 (D.C. Cir. 1998); see also Dickstein Shapiro LLP
v. Dep’t of Def., 730 F. Supp. 2d 6, 9 (D.D.C. 2010) (“Title 5, United States Code, Section 552,
provides that the court ‘may examine the contents of such agency records in camera to determine
whether such records or any part thereof shall be withheld under any of the exemptions.’”).
29
Although the Army defends its use of a combined Vaughn index and declarations at
length, see Army Reply at 14, ECF No. 51, the Army’s difficulties arise not from its use of the
combined approach, but from the lack of information provided in either the Vaughn index or
its declarations.
30
In this case, as described with more specificity in the accompanying Order, the Court will
entertain supplemental briefing and order in camera review of representative documents. See
Pinson v. U.S. Dep’t of Justice, 177 F. Supp. 3d 56, 90 (D.D.C. 2016) (“In camera inspection
may be appropriate . . . when agency affidavits are insufficiently detailed to permit meaningful
review of exemption claims . . . .” (quoting Lam Lek Chong v. U.S. Drug Enf’t Admin., 929 F.2d
729, 735 (D.C. Cir. 1991))). Ordering such review is at the discretion of the district court.
Dickstein Shapiro, 730 F. Supp. 2d at 9.
However, in order to assist the parties moving forward, the Court will briefly address the
specific issues concerning the application of the deliberative process privilege to withhold
particular categories of documents. As a preliminary matter, the Court notes that both parties
create unnecessary confusion by treating the entire chain of events here as one long
decisionmaking process. That is not the case. The Court identifies at least three separate
decisionmaking processes, namely: (1) the Corps’ development of the “final” draft AJD; (2) the
EPA’s decision to exercise its special case authority; and (3) the Army’s legal and policy review.
In the future, both parties’ briefing would be clarified by considering separately each
decisionmaking process.
iv. The Corps’ “Final” Draft AJD
The first bone of contention is the “final” draft AJD developed by the Corps and withheld
under the deliberative process privilege by the EPA. See, e.g., Compl., Ex. N (Hunton’s FOIA
request for the “final” draft AJD), ECF No. 1-14; Pl.’s Mot. Order EPA at 22–24, ECF No. 50.30
Hunton argues that the “final” draft AJD was in an extremely advanced state because the subject
30
This document was apparently prepared by the Corps no later than March 18, 2015,
when Major General Peabody—the Deputy Commanding General for Civil and Emergency
Operations of the Corps—emailed it to the EPA. See, e.g., Pl.’s Mot. Order EPA at 22.
31
of Major General Peabody’s email was “Redwood City Decision Finalized” and the body of the
email stated that Major General Peabody would “finalize and sign” the document the next day.
Ex. F, ECF No. 49-6. The EPA does not dispute that the “final” draft AJD was a whisker’s
breadth from completion. Nonetheless, because the “final” draft AJD was never finalized and has
not—to this Court’s knowledge—been adopted by any agency, the Court agrees with EPA that
the deliberative process privilege could apply.
First, the “final” draft AJD may be predecisional because it was created before the final
decision was reached on the AJD.31 Hunton disputes this point on the ground that the document
was otherwise ready and the failure to actually issue the AJD was merely “ministerial.”32 Pl.’s
Mot. Order EPA at 23. However, the “draft” AJD does not appear to have been given any effect,
either informally or formally. It was never signed or finalized as referred to in the text of the
email. Nor does Hunton claim that the draft has been applied to govern CWA jurisdiction over
the site. Indeed, Hunton’s repeated assertions that EPA has delayed and continues to delay the
CWA portion of the AJD makes it clear that the government is not giving the “final” draft AJD,
which Hunton asserts concluded against CWA jurisdiction, any legal effect.33 E.g., Compl.
¶¶ 13, 25.
31
In fact, as far as the Court is aware, the AJD for the CWA is still pending. See EPA
Reply at 18, ECF No. 57 (noting that the AJD had yet to issue as of August 17, 2016).
32
Hunton also hints at a constitutional argument concerning the propriety of the CWA.
See Pl.’s Reply Corps at 5, ECF No. 60. No such claim appears in the complaint, and therefore
would not be properly before this Court.
33
Although Hunton cites the Supreme Court’s decision in U.S. Army Corps of Engineers
v. Hawkes for the proposition that “the Corps’ AJDs are ‘final agency actions’” for APA purposes,
Pl.’s Reply Corps at 5 (quoting 136 S. Ct. 1807, 1812 (2016)), this argument is inapposite here
for several reasons, including that the “final” draft AJD was never issued by the Corps.
32
To argue that the “final” draft AJD is not predecisional, Hunton argues that it represents
the Corps’ final position, regardless of the EPA’s decision to take over the determination. Pl.’s
Mot. Order EPA at 23 (asserting that “the Corps had reached its final agency position” and “[t]he
fact that EPA chose to make a decision on its own . . . does not convert the Corps’ decision into a
pre-decisional deliberative document”). This argument confuses the temporal sense of “final”
with the sense required by FOIA. Hunton presents no evidence that the Corps, or any other
agency, has ever relied on, referred to, or treated as precedential the “final” draft AJD. As in
other circumstances where agencies have ceased to work in an area, that cessation does not
convert the Corps’ last-in-time position to a legally final one:
the [deliberative process] privilege does not turn on the agency’s present ability to
engage in the type of rulemaking to which the deliberations in question were
relevant. Agency employees most certainly would be inhibited from frank
deliberation if their statements could be made public instantaneously upon the
agency’s happenstance loss of jurisdiction over the subject matter of their
deliberations . . . . [T]he fact that a memorandum concerns an enforcement action
that was never taken does not compel its disclosure.
Exxon Corp. v. Dep’t of Energy, 585 F. Supp. 690, 699–700 (D.D.C. 1983) (emphasis added);
see also Ashley v. U.S. Dep’t of Labor, 589 F. Supp. 901, 908 (D.D.C. 1983) (“Similarly, an
agency’s rejection of the recommendations in a withheld document, either explicitly or implicitly
through agency inaction, does not make otherwise predecisional documents final and
disclosable.” (citing Common Cause v. IRS, 646 F.2d 656, 659 (D.C. Cir. 1981), Brinton v. Dep’t
of State, 636 F.2d 600, 600 (D.C. Cir. 1980), and Lead Industries Ass’n., Inc. v. OSHA, 610 F.2d
70, 84 (2d Cir. 1979))).
Second, the “final” draft may be deliberative because it represents the back and forth of
the decisionmaking process. This is ultimately a functional analysis—a document is “part of the
deliberative process if its disclosure would expose an agency’s decisionmaking process in such a
way as to discourage candid discussion within the agency and thereby undermine the agency’s
33
ability to perform its functions.” Judicial Watch of Florida, Inc. v. U.S. Dep’t of Justice, 102 F.
Supp. 2d 6, 13 (D.D.C. 2000) (citing Formaldehyde Inst. v. Dep’t of Health and Human Servs.,
889 F.2d 1118, 1122 (D.C. Cir. 1989) and Mobil Oil Corp. v. EPA, 879 F.2d 698, 703 (9th Cir.
1989)). The deliberative process can—as it did here—span between two different agencies. This
set-up is particularly common when one agency serves a secondary function to a supervising
agency. See Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 187–88 (1975)
(“By including inter-agency memoranda in Exemption 5, Congress plainly intended to permit
one agency possessing decisional authority to obtain written recommendations and advice from a
separate agency not possessing such decisional authority without requiring that the advice be any
more disclosable than similar advice received from within the agency.”).
For example, another court in this jurisdiction considered the applicability of the
deliberative process exemption to documents transmitted between the Office of Government
Ethics (OGE) and the Department of the Interior (DOI). The OGE “relies upon agencies to
conduct inquiries into ethics violations and to report their findings” because of its “limited
resources,” but, “the results of the agency’s investigations and [the agency’s] own conclusions
about whether ethics violations actually occurred are not the final word if the OGE finds that
more needs to be done.” Defs. of Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 19 (D.D.C.
2004). That court therefore concluded that the DOI’s letters to OGE discussing DOI’s inquiry
into an ethics violation were protected by the deliberative process privilege—they “did not
constitute final decisions just waiting to be implemented” because “the OGE had the authority to
disagree with the conclusions contained therein, and it did so. . . . OGE, in effect, overrode
DOI’s initial conclusions.” Id. at 20–21.
34
This case fits the same pattern. Here, the EPA has the ultimate authority to decide
questions of CWA jurisdiction. The agreement between the Corps and the EPA describing the
special case authority begins from this premise. See Mem. Agreement at 1, ECF No. 57-1 (“The
Attorney General of the United States issued an opinion . . . that the Administrator of EPA . . .
has the ultimate authority under the CWA to determine the geographic jurisdictional scope of
section 404 waters of the United States and the application of section 404(f) exemptions.”);
Mem. Agreement at 2 (“EPA will be considered the lead agency and will make the final decision
if the agencies disagree.”); Mem. Agreement at 2 (“A special case is a circumstance where EPA
makes the final determination of the geographic jurisdictional scope of the waters of the United
States for the purposes of section 404.”). The Corps’ submissions34 to the EPA thus are part of
the deliberative process because the EPA retained the authority to disagree and exercise its
special case power—as it did here. Given that neither the Corps nor the EPA has—to the best of
this Court’s knowledge—issued a final decision, the deliberative process is ongoing.35 Just as in
34
The material provided to the supervising agency need not take the form of a
recommendation, it can also—as the “final” draft AJD presumably did here—contain legal
opinions. Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975) (“[T]he document must be a
direct part of the deliberative process in that it makes recommendations or expresses opinions on
legal or policy matters.” (emphasis added)).
35
The extent to which the EPA relies upon or eventually adopts the “final” draft AJD as a
recommendation is immaterial. Even if the EPA disregards the Corps’ opinion, then the Corps’
decisionmaking process has stopped without a final decision, yet the material may still be
withheld as discussed above.
If the EPA does adopt part of the Corps’ reasoning, then the extent of that adoption will
control whether the EPA must disclose the “final” draft AJD as part of that final decision. See
Trans Union LLC v. Fed. Trade Comm’n, 141 F. Supp. 2d 62, 70–71 (D.D.C. 2001) (“[W]here it
is unclear whether a recommendation provided the basis for the regulation, the recommendation
is exempt from disclosure.”); De Sousa v. CIA, No. 14-1951, 2017 WL 943898, at *13 (D.D.C.
Mar. 9, 2017) (“[A]doption requires that an agency ‘make an “express[ ]” choice to use a
deliberative document as a source of agency guidance.’” (quoting Sears, Roebuck & Co., 421
U.S. at 161)). The Court need not decide this at this time, as it does not appear that the EPA has
issued a final decision.
35
Defenders of Wildlife, revealing the Corps’ reasoning could damage the open dialogue between
the two collaborating agencies, and risk “confusing the issues and misleading the public by
dissemination of documents suggesting reasons and rationales for a course of action which were
not in fact the ultimate reasons for the agency’s action” once the EPA reaches a final decision.
EPA Reply at 18, ECF No. 57 (quoting Coastal States, 617 F.2d at 866); see also Defs. of
Wildlife, 314 F. Supp. 2d at 21 (“[D]isclosure of the documents exchanged between DOI and
OGE would expose the decision-making process OGE initiated and directed in such a way as to
discourage candid communication in the future between OGE and agencies.”).
For these reasons, the Court finds it highly plausible that the “final” draft AJD created by
the Corps is exempt from disclosure.36 However, the infirmities of the EPA’s Vaughn index, as
36
Nor does Hunton’s argument that the “final” draft AJD constitutes “secret law” dictate
a different outcome. Under the “secret law” doctrine, a record which has not officially become a
final decision, but is treated with the same de facto respect as a final decision, is not protected by
the deliberative process privilege. The “secret law” doctrine thus permits the public to discover
“the reasons which did supply the basis for an agency policy actually adopted.” Pl.’s Mot. Order
EPA at 13–14, ECF No. 50 (quoting Sears, Roebuck & Co., 421 U.S. at 152–53) (emphasis
added); see also Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 867 (D.C. Cir.
1980) (“[A]n agency will not be permitted to develop a body of ‘secret law,’ used by it in the
discharge of its regulatory duties and in its dealings with the public, but hidden behind a veil of
privilege because it is not designated as ‘formal,’ ‘binding,’ or ‘final.’”).
The classic secret law cases deal with “orders and interpretations which [the agency]
actually applies in cases before it,” Sterling Drug, Inc. v. FTC, 450 F.2d 698, 708 (D.C. Cir.
1971), or which are “routinely used by agency staff as guidance,” Coastal States, 617 F.2d at
869. For example, the documents at issue in Coastal States were “regional counsel opinions” that
“were routinely used by agency staff as guidance in conducting their audits, and were retained
and referred to as precedent.” Coastal States, 617 F.2d at 869. Here, however, Hunton does not
argue that the Corps has been using the “final” draft AJD in any way or explain how the “final”
draft AJD “reflect[s] the law the government is actually applying in its dealings with the []
public.” Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997). Such manuals or policy
guidance are also typically sent down the chain of command, distributed from the top down to
those responsible for implementing a policy. Here, the “final” draft AJD was sent from the top of
the Corps to the EPA, in the EPA’s supervisory capacity. Hunton does not argue that the “final”
draft AJD has been distributed downward to those who implement the Corps’ policies.
To the extent that the Corps’ argument is simply that the “final” draft AJD represents one
stage of the Corps’ reasoning, this argument proves too much. Allowing the public access to all
36
discussed above, prevent the Court from granting the EPA summary judgment. Instead, the EPA
must explain “such matters as how decisions like those in issue are reached; the role that staff
discussion and memoranda play in such decisions; the manner in which such decisions are
memorialized and explained; and whether such decisions are treated, in later agency
decisionmaking, as precedents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1204 (D.C. Cir.
1991) (citing Renegotiation Bd., 421 U.S. at 185–86).
v. The EPA’s Decision to Exercise Its Special Case Authority
Second, Hunton challenges the EPA’s withholding of records related to its decision to use
its special case authority.37 In its in camera review the Court will focus on whether the withheld
materials are both predecisional and deliberative, as required by the deliberative process
privilege, as well as whether they constitute “secret law” such that they are removed from the
protections of the deliberative process privilege. The Court also notes that “FOIA is not designed
to force every government agency to produce a document explaining each of its decisions, nor is
it designed to force the agency or courts to find and disclose whatever extant document comes
closest to serving that decision-explaining role.” Mead Data Cent., Inc. v. U.S. Dep’t of Air
Force, 575 F.2d 932, 936 (D.C. Cir. 1978) (citing Renegotiation Bd. v. Grumman Aircraft, 421
U.S. 168, 192 (1975)).
Hunton and the EPA dispute whether or not the documents are predecisional. According
to the EPA, they are because it did not exercise the special case authority until March of 2015.
stages of agency decisionmaking would no doubt reveal something about the agencies’
reasoning, but Congress has determined that such unfettered disclosure would be damaging to
the agencies’ ability to deliberate.
37
Hunton suggests these would be documents generated by EPA after April 2014, Pl.’s
Mot. Order EPA at 16, ECF No. 50, but before EPA exercised the special case authority in
March of 2015, EPA MSJ, Ex. E, ECF No. 40-3.
37
According to Hunton, the decision had actually been made prior to that, as evidenced by a
dramatic reduction in the number of documents. Pl.’s Mot. Order EPA at 16–17. Even if the
documents were predecisional, the parties also dispute whether some of the withheld documents
constitute the “working law” of the agency that must be disclosed. To make this determination, a
court considers “the function and significance of the document in the agency’s decisionmaking
process.” Taxation with Representation Fund v. IRS, 646 F.2d 666, 678 (D.C. Cir. 1981). Both of
these questions will be more easily explored after this Court’s in camera review, and the Court
thus defers their resolution.
vi. The Army’s Legal and Policy Review
Hunton also seeks documents from the Army relating to its legal and policy review.38
Pl.’s MPSJ Army at 17, ECF No. 46 (“[A] considerable number of the redacted or withheld
documents relate to the content of the so-called ‘legal and policy review.’ . . . . Plaintiff is
entitled to know the reasons which supplied the basis for the adopted policy.” (internal quotation
marks and citations omitted)). The legal and policy review began in May of 2014, Compl. Army
38
It is unclear if Hunton also seeks documents created by the Army relating to its
decision to undertake the legal and policy review. See Pl.’s MPSJ Army at 17, ECF No. 46
(“Given that the Army ultimately decided to conduct this ‘[legal and policy] review,’ Plaintiff is
entitled to know the ‘reasons which supplied the basis’ for the adopted policy.” (citing Elec.
Frontier Found., 739 F.3d at 7)). The Court is unaware of any documents listed in the Army’s
Vaughn index—and Hunton does not identify any—from before the date Hunton names as the
beginning of the legal and policy review of “[o]n or around May 15, 2014.” Compl. Army at
¶ 21, ECF No. 1 (No. 15-cv-1208). Nor does Hunton argue explicitly that the Army’s search was
inadequate on that basis. To the extent that there are withheld documents relating to the Army’s
decision to embark on the legal and policy review and Hunton seeks those documents, the Court
will consider the applicability of FOIA exemptions to such documents as part of its in camera
review.
Similarly, it is unclear if Hunton seeks records related to the Corps’ internal review,
which was undertaken at nearly the same time. See Mem. for the Chief of Engineers at 2, Ex. 2,
ECF No. 45-2. To the extent that Hunton does, the Court is also open to considering these
documents during its in camera review.
38
¶ 21, ECF No. 1 (No. 15-cv-1208), and the Court thus assumes that Hunton refers to documents
from after that date.
The parties’ briefing of this issue reflects confusion among the several separate
decisionmaking processes. See, e.g., Pl.’s MPSJ Corps at 10, ECF No. 56 (arguing that the legal
and policy review was not predecisional because it “did not affect the decision that the Corps
initially made in 2014,” presumably, the Corps’ “final” draft AJD). For example, Hunton argues
that it should be entitled to documents relating to the legal and policy review because the “relevant
decision” was the Army’s choice to “undertake the vague ‘legal and policy review’” which was
complete when the review began. Pl.’s Reply Army at 5–6, ECF No. 54. While this may be an
accurate statement, the documents generated during the legal and policy review should be
analyzed in relation to the decisionmaking process of that review—culminating in the completion
of the review —not in the context of the earlier, separate decision to perform the review.
Before it can consider whether the documents were predecisional or deliberative, the
Court must determine whether the legal and policy review was a deliberative process at all. In
some situations, an agency’s reexamination of its own behavior does constitute a deliberative
process. See Sears, 421 U.S. at 151 n.18 (“Agencies are, and properly should be, engaged in a
continuing process of examining their policies; this process will generate memoranda containing
recommendations which do not ripen into agency decisions; and the lower courts should be wary
of interfering with this process.”); Ashley v. U.S. Dep’t of Labor, 589 F. Supp. 901, 908 (D.D.C.
1983) (“[D]iscussion of the merits of past efforts, alternatives currently available, and
recommendations as to future strategy are privileged if the documents bear sufficient indicia that
they were part of the deliberative process . . . . [including that] they were all written by
subordinates to superiors, the authors had no decisionmaking authority, and the opinions
39
expressed therein did not explain agency policy or establish agency guidelines or secret law[.]”
(internal quotation marks and citations omitted)). If the Court concludes that these criteria are
met, it must then determine whether each document is predecisional and deliberative, and if any
constitute the Army’s “secret law.” The Court will be better positioned to address each of these
questions after its in camera review and upon reviewing the Army’s supplemental briefing.
2. The Attorney Work-Product Privilege
Hunton challenges the Corps’ use of Exemption 5 to withhold information on the basis of
the attorney work-product privilege. Because the Corps has not adequately shown that the
records in question were prepared “because of” potential litigation, the Court denies the Corps
summary judgment.
One category of records exempted from disclosure by Exemption 5 of FOIA is attorney
work-product. The work-product privilege “shields materials ‘prepared in anticipation of
litigation or for trial by or for another party or by or for that other party’s representative.’”
Judicial Watch, Inc. v. Dep’t of Justice, 432 F.3d 366, 369 (D.C. Cir. 2005) (quoting Fed. R. Civ.
P. 26(b)(3) and Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir. 1997)). The privilege protects
“the mental impressions, conclusions, opinions, or legal theories of an attorney,” as well as
“factual materials prepared in anticipation of litigation.” Tax Analysts, 117 F.3d at 620 (internal
quotation marks omitted). The work-product privilege originates from the longstanding
recognition that “materials prepared by one’s attorney in anticipation of litigation are generally
privileged from discovery by one’s adversary.” Nat’l Ass’n of Criminal Def. Lawyers v. U. S.
Dep’t of Justice Exec. Office for U.S. Attorneys, 844 F.3d 246, 250 (D.C. Cir. 2016) (citing
Hickman v. Taylor, 329 U.S. 495, 510–12 (1947) and In re Sealed Case, 146 F.3d 881, 884 (D.C.
Cir. 1998)).
40
In order to establish that it has properly withheld information under the work-product
privilege, the agency must: “(1) provide a description of the nature of and contents of the
withheld document, (2) identify the document’s author or origin, (3) note the circumstances that
surround the document’s creation, and (4) provide some indication of the type of litigation for
which the document’s use is at least foreseeable.” Ellis v. U.S. Dep’t of Justice, 110 F. Supp. 3d
99, 108 (D.D.C. 2015), aff’d, No. 15-5198, 2016 WL 3544816 (D.C. Cir. June 13, 2016); see
also FTC v. Boehringer Ingelheim Pharms. Inc., 778 F.3d 142, 149 (D.C. Cir. 2015) (holding
that records qualify for protection under the attorney work-product privilege when “in light of
the nature of the document and the factual situation in the particular case, the document can
fairly be said to have been prepared or obtained because of the prospect of litigation” (quoting
United States v. Deloitte LLP, 610 F.3d 129, 137 (D.C. Cir. 2010))); In re Sealed Case, 146 F.3d
881, 884 (D.C. Cir. 1998) (requiring the agency to demonstrate that the records were created
with a “subjective belief that litigation was a real possibility, and that belief must have been
objectively reasonable”).
The Corps’ descriptions of information withheld in the Corps’ Vaughn index are
insufficient to establish that the withheld documents were prepared because of potential
litigation. Two groups of documents illustrate the point.
First, the Corps justified its withholding of draft versions of the AJD by applying the
work-product privilege. See, e.g., Corps’ Vaughn index at 115–22, ECF No. 52-4 (entries for
9994–9998, 10022–10029, 10045–10052, 10154–10162, 11305–11312 including descriptions
such as “Draft, nonfinal JD under the Rivers and Harbors Act and Clean Water Act”). Second,
the Corps used the privilege to withhold draft versions of letters to members of Congress. See,
41
e.g., Corps’ Vaughn index at 123–26 (entries for 11871–11873, 11965–11966, 12086–12087
including descriptions such as “Draft letter to member of Congress regarding status of Cargill JD”).
The work-product privilege does not cover “any document prepared by any person in the
Government with a law degree simply because litigation might someday occur” or else “the
policies of the FOIA would be largely defeated.” Coastal States Gas Corp. v. Dep’t of Energy,
617 F.2d 854, 865 (D.C. Cir. 1980). The Court must apply a “‘because of’ test, asking whether,
in light of the nature of the document and the factual situation in the particular case, the
document can fairly be said to have been prepared or obtained because of the prospect of
litigation.” United States v. Deloitte LLP, 610 F.3d 129, 137 (D.C. Cir. 2010) (emphasis added)
(quoting In re Sealed Case, 146 F.3d at 884).
The “because of” test demonstrates the flaw in the Corps’ reasoning. Drafts of the AJD
were not prepared because of possible litigation. The Corps was required to prepare the AJD, and
thus drafts of the AJD, even if it knew that no litigation would ever result. Similarly, the Corps’
replies to Congress about the AJD process were not created “because of” the possibility of future
litigation—unless the Corps would have ignored Congressional inquiries into a less controversial
case. The Corps does not attempt to explain how drafts of the AJD constitute attorney work-product.
As to the draft letters, the Corps argues that because the parties seeking the AJD were “contentious”
and “litigious[],” the Corps expected that its letters to Congress would “find [their] way into
litigation.” Corps Reply at 17, ECF No. 59. This misunderstands the nature of the privilege. The
mere fact that a document might find its way into litigation does not suffice unless the litigation
was the reason for the creation of the document. See Coastal States, 617 F.2d at 865.
Although the Corps has not yet established that these records were created because of
reasonably expected litigation, such a showing remains possible in the future. For example, an
42
agency performing a statutory duty with a reasonable anticipation of litigation might have
additional counsel edit the documents or draft plans for litigation strategy because of that
reasonable expectation, and those edits or plans could then qualify for the attorney work-product
privilege. However, the Corps has not provided sufficient explanation to conclude that similar
circumstances existed here. The Corps’ motion for summary judgment is thus denied as to its use
of the work-product portion of Exemption 5.39
3. The Attorney–Client Privilege
Hunton challenges the Corps’ and the Army’s use of the attorney–client privilege portion
of Exemption 5.40 Although the Corps’ Vaughn Index is inadequate to demonstrate that it
justifiably withheld information based on the attorney–client privilege, the Army has adequately
met its burden.
39
The Corps also notes that much of the information withheld under the work-product
privilege was also withheld under other portions of Exemptions 5 or other FOIA exemptions, but
takes this position to the extreme in arguing that, because Hunton did not expressly object to
every claimed exemption, “any challenge to the withholding of the documents should be deemed
waived.” Corps Reply at 16. This goes too far.
Although, of course, the agency may withhold material as long as it is proper under a
single FOIA exemption, the agency should not treat a laundry list of FOIA exemptions as a trap
for the unwary. At the summary judgment stage, the agency bears the burden of proving “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)). Furthermore, “FOIA litigants are
entitled to assume that the agency’s Vaughn index is accurate in every detail” and “[t]here is no
excuse for submitting a Vaughn index that contains errors, even minor ones,” Schiller v. NLRB ,
964 F.2d 1205, 1209 (D.C. Cir. 1992), abrogated on other grounds, Milner v. Dep’t of Navy, 562
U.S. 562 (2011).
40
Hunton also devotes one paragraph in each of its briefings to challenge the EPA’s use
of the attorney–client privilege. See Pl.’s Mot. Order EPA at 19, ECF No. 50. If the Court were
to consider this argument, it would be satisfied by the EPA’s Vaughn index. See EPA’s Vaughn
index at 77, ECF No. 40-4.
43
“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.’” Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997)
(quoting In re Sealed Case, 737 F.2d 94, 98–99 (D.C. Cir. 1984)). “In the governmental context,
the ‘client’ may be the agency and the attorney may be the agency lawyer.” Tax Analysts, 117
F.3d at 618. The government bears the burden of proving, through “detailed and specific
information,” that the withheld information falls within the attorney–client privilege. See
Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998). To succeed on a motion for
summary judgment, the government must show:
(1) [T]he holder of the privilege is, or sought to be, a client; (2) the person to
whom the communication is made is a member of the bar or his subordinate and,
in connection with the communication at issue, is acting in his or her capacity as a
lawyer; (3) the communication relates to a fact of which the attorney was
informed by his client, outside the presence of strangers, for the purpose of
securing legal advice; and (4) the privilege has been claimed by the client.
Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 841 F. Supp. 2d 142, 153–54 (D.D.C. 2012)
(citing In re Sealed Case, 737 F.2d at 98–99). With this standard in mind, the Court addresses
each agency’s withholdings.
a. The Corps’ Use of the Attorney–Client Privilege
Hunton argues that the Corps has failed to justify its application of the attorney–client
privilege because it does not sufficiently describe the context of withheld information, and
appears to apply the exemption to correspondence where the lawyer was merely carbon-copied,
rather than an active participant. The Court agrees that the Corps’ explanations are insufficient.
Hunton argues that the Corps applied the attorney–client privilege to justify withholding
“communications between various non-attorney personnel where an attorney has been copied.”
44
Pl.’s MPSJ Corps at 14, ECF No. 56. An example is illustrative. Consider an email colloquy
between two non-attorney agency employees, sent to a lawyer as a carbon-copy.41 Pl.’s MPSJ
Corps, Ex. D, ECF No. 56-4. The Corps claims that both the deliberative process and
attorney–client privileges apply. Corps’ Vaughn index at 47, ECF. No. 52-4. The Vaughn index
description reads, in relevant part: “[e]mail between USACE Leadership, Army OGC, and the
ASA(CW) discussing the purpose and need for the policy and legal review of the Redwood City
Salt plant JD process.” Corps’ Vaughn index, ECF. No. 52-4. This brief description does not
sufficiently explain the application of the attorney–client privilege, given that the context makes
it clear that the attorney was only a participant in the email chain as a carbon-copy.
Nor can the information missing from the Corps’ Vaughn index be drawn from its
declaration.42 Cf. Corps Reply at 15, ECF No. 59. The Corps’ declaration states only that,
in general:
41
Neither party provides a citation to the Vaughn index entry for this document in their
discussion. The Court interprets the reference in the exhibit to Bates number 3139 to match it
with the cited entry in the Vaughn entry on page 47.
Although the Vaughn index entry does not name the lawyer, the email addresses in
the document itself are not redacted. One message was sent from Jo-Ellen Darcy—the
ASA(CW)—to Thomas Bostick—the commanding general of USACE—with Craig
Schmauder—a lawyer at the Army’s OGC—as a carbon-copy. Pl.’s MPSJ Corps, Ex. D, ECF
No. 56-4. The second email was sent back from Thomas Bostick to Jo-Ellen Darcy with Craig
Schmauder again as a carbon-copy. Pl.’s MPSJ Corps, Ex. D, ECF No. 56-4. The Corps does not
dispute Hunton’s characterization of the roles of the three participants.
42
Furthermore, the explanation provided in the Corps’ briefing contradicts its initial
explanation in its Vaughn index, further clouding the issue. The Vaughn index indicated the
email was between “USACE Leadership, Army OGC, and the ASA(CW).” Corps’ Vaughn index
at 47, ECF. No. 52-4. This explanation fits well with the three participants in the address block
of email: Thomas Bostick, the commanding general of the Corps, as “USACE Leadership;”
Craig Schmauder, a lawyer for the Army, as the “Army OGC;” and Jo-Ellen Darcy in her role as
the “ASA(CW).” But the Corps’ briefing seeks to explain the application of the attorney–client
privilege by claiming that the “the entire chain” of emails was sent to E. Stockdale, a lawyer with
the Corps. 2d Bartlett Decl. ¶ 5, ECF No. 59-1. This recent explanation involves the participation
of a person who does not fit comfortably into any of the categories mentioned in the Corps’
Vaughn index explanation. Cf. Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992) (“There
45
Information that was withheld pursuant to the Attorney–Client Privilege
contained confidential communications regarding legal consultation regarding the
jurisdictional determination and other legal issues related to the Saltworks
between the USACE and personnel and their attorneys, and between USACE,
EPA, and Army attorneys. The subject of these confidential communications were
not released or made known to third parties and therefore these communications
are protected from disclosure.
Bartlett Decl. ¶ 32, ECF No. 52-2. However, these broad and vague statements, in conjunction
with a bare Vaughn index, are insufficient. The agency may not “offer[] nothing more than
conclusory assertions and blanket affirmations” to support its use of the attorney–client privilege.
Cuban v. SEC, 744 F. Supp. 2d 60, 79 (D.D.C. 2010). This general statement cannot overcome
the otherwise inadequate Vaughn index because it fails to provide necessary document-specific
information such as the identities of the client and lawyer and whether legal advice was sought.
See Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 841 F. Supp. 2d 142, 153–54 (D.D.C.
2012). Thus, because the Corps has not satisfactorily demonstrated the elements of the
attorney–client privilege, the Court denies it summary judgment on the basis of that privilege.43
is no excuse for submitting a Vaughn index that contains errors, even minor ones.”), abrogated
on other grounds, Milner v. Dep’t of Navy, 562 U.S. 562 (2011).
43
Hunton also objects to the Corps’ use of the attorney–client privilege to withhold,
rather than entire communications, “markings placed by an attorney.” Pl.’s MPSJ Corps at 14,
ECF No. 56. In general, the Court agrees with the Corps that markings may be “confidential
communications between an attorney and his client relating to a legal matter for which the client
has sought professional advice.” Corps Reply at 14, ECF No. 59 (quoting Mead Data Cent. v.
Dep’t of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977)).
However, it is not clear from the briefing if the affected records were withheld in their
entirety or redacted, and the Court notes that redaction—where it will not render the privilege
futile—is the typical remedy in this jurisdiction. See, e.g., A.N.S.W.E.R. Coal. v. Salazar, No. 05-
0071, 2011 WL 2516419, at *2 (D.D.C. June 23, 2011); Gen. Elec. Co. v. Johnson, No. 00-2855,
2007 WL 433095, at *21 (D.D.C. Feb. 5, 2007) (concluding after an in camera review that
handwritten comments by an attorney should be redacted, but “those redactions should leave in
tact [sic] as much text as possible” because “except for the two annotated comments, the
underlining and other markings are only very marginally protected by the work-product
doctrine”). Because the Court denies the Corps summary judgment and will review a selection of
documents in camera, it does not further address the issue here.
46
b. The Army’s Use of the Attorney–Client Privilege
Unlike the Corps’ Vaughn index, the Army’s Vaughn index is adequate to justify its use
of the attorney–client privilege. Although Hunton advances three arguments challenging the
adequacy of the Army’s Vaughn index, none is successful.
First, Hunton accuses the Army of “simply redact[ing] all communications between
attorneys” because “there is nothing in either the DeAgostino declaration or the Vaughn index to
support the conclusory assertion that these communications contain legal advice.” Pl.’s MPSJ
Army at 19–20, ECF No. 46. However, the Army’s Vaughn index does specify the nature of the
legal advice involved in each document. For example, Entry 423, which was partially withheld
based on the attorney–client privilege, states that the record contains a “[d]raft response . . .
prepared [] by attorney to advise client regarding responding to requester.” Army’s Vaughn
index at 57, ECF No. 36-3. While not a model of specificity, that description makes sense in the
context of the document and informs Hunton about the type of legal advice provided. This
description rises to the level of being “logical or plausible,” which the D.C. Circuit has explained
suffices. Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007) (internal quotation marks and citations
omitted). Here, the Army has described “the documents and the justifications for nondisclosure
with reasonably specific detail” and “demonstrate[d] that the information withheld logically falls
within the claimed exemption.” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of
Labor, 478 F. Supp. 2d 77, 80 (D.D.C. 2007) (internal quotation marks and citations omitted). In
Finally, in response to Hunton’s challenges to the Corps’ assertion of the attorney–client
privilege the Corps again objects that Hunton has waived other possible objections by failing to
individually rebut each exemption claimed by the Corps. See, e.g., Corps Reply at 14, ECF No.
59. This goes too far. See supra note 39.
47
the absence of “contrary evidence in the record []or [] evidence of agency bad faith” the Army’s
description is sufficient. Id. at 80 (internal quotation marks and citations omitted).
Second, Hunton claims that the Army did not sufficiently establish that the communications
were kept confidential between the attorney and client. Pl.’s MPSJ Army at 18–19. But in fact
the Army’s supplemental declaration states that “[t]he documents withheld in accordance with
the Attorney–Client Privilege were internal documents only and were not released to third
parties.” 2d DeAgostino Decl ¶ 3, ECF No. 51-1. Hunton does not challenge this declaration in
its reply, nor has it identified any indicia on the redacted documents that they were distributed to
outside entities. See Pl.’s Reply Army at 7–9, ECF No. 54.
Finally, Hunton criticizes the particular application of the attorney–client privilege to the
record described at entry 104 of the Army’s Vaughn index. Army’s Vaughn index at 19, ECF 36-3.
According to Hunton, the Army did not “differentiat[e] which privilege is supposed to apply to
which document,” within the email chain. Pl.’s MPSJ Army at 19. Contrary to Hunton’s
assertion, the Army’s Vaughn index specifies that the chain contains “[t]wo emails between
agency counsel,” and that “[t]here are also two emails between Earl Stockdale [counsel for the
Corps] and Craig Schmauder [counsel for the Army].” Army’s Vaughn index at 19, entry 104.
Hunton appears to object that the two lawyers involved are counsel for different agencies. Pl.’s
MPSJ Army at 19. Contrary to Hunton’s implication, courts in this district have recognized that
the attorney–client privilege may apply between counsel for different agencies. See Hollar v.
IRS, No. 95-1882, 1997 WL 732542, at *5 (D.D.C. 1997) (“Communications between one
agency’s attorneys and another agency’s attorneys are also covered by both Exemption 5 and the
attorney–client privilege as ‘inter-agency’ memoranda so long as those communications reflect
the facts given by agency decision-makers to elicit legal advice.” (citing Schlefer v. United
48
States, 701 F.2d 233, 245 (D.C. Cir. 1983))). For these reasons, the Army’s motion for summary
judgment as to its use of the attorney–client privilege is granted.
4. FOIA Exemption 6
Hunton challenges the Army’s use of Exemption 6 to redact personal information from
the released records.44 Pl.’s MPSJ Army at 21–23, ECF No. 46. The Army used Exemption 6 to
redact the “names and contact information of government personnel” below the level of either
general officer or senior executive service. DeAgostino Decl. ¶ 23, ECF No. 36-2; 2d
DeAgostino Decl. ¶ 4, ECF No. 51-1. These redactions included the identities of individuals who
sent or received email. DeAgostino Decl. ¶ 23.
Exemption 6 permits an agency to withhold “personnel and medical files and similar
files,” when disclosure “would constitute a clearly unwarranted invasion of personal privacy.”
5 U.S.C. § 552(b)(6). Here, neither party disputes that the names and contact information of the
Army’s employees constitute personal information. See Prison Legal News v. Samuels, 787 F.3d
1142, 1147 (D.C. Cir. 2015) (holding that personal information includes “names and addresses”);
Milton v. U.S. Dep’t of Justice, 783 F. Supp. 2d 55, 58 (D.D.C. 2011) (holding that “[t]he
information . . . ‘need not be intimate’” (quoting N.Y. Times Co. v. NASA, 920 F.2d 1002, 1006
(D.C. Cir. 1990))).
FOIA requires the release of personal information “if no significant privacy interest is
implicated.” Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1229 (D.C. Cir. 2008)
44
Hunton also makes a brief reference alleging a misuse of Exemption 6 by the Corps.
See Pl.’s MPSJ Corps at 1, ECF No. 56. Because this argument is not further developed, the
Court agrees with the Corps that it has been waived. See Corps Reply at 9, ECF No. 59; cf.
Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013) (“[I]t is not the obligation of this
Court to research and construct the legal arguments available to the parties. To the contrary,
perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent
authority, are deemed waived.” (internal quotation marks and citations omitted)).
49
(brackets and internal quotation marks omitted) (quoting Nat’l Ass’n of Retired Fed. Emps. v.
Horner, 879 F.2d 873, 874 (D.C. Cir. 1989)). This standard, however, “means less than it might
seem,” for a substantial privacy interest is “anything greater than a de minimis privacy interest.”
Id. at 1229–30. Here, the Army employees do clearly have a substantial privacy interest in
avoiding potential harassment, and Hunton does not assert that they do not have a privacy interest.
The Court must thus determine whether releasing the information would be a “clearly
unwarranted invasion of personal privacy,” Wash. Post Co. v. U.S. Dep’t of Health & Human
Servs., 690 F.2d 252, 260 (D.C. Cir. 1982) (internal quotation marks omitted) (quoting 5 U.S.C.
§ 552(b)(6)), by balancing “the privacy interest that would be compromised by disclosure against
any public interest in the requested information,” Multi Ag Media, 515 F.3d at 1228. “The only
relevant public interest in the FOIA balancing analysis is the extent to which disclosure of the
information sought would ‘shed light on an agency's performance of its statutory duties’ or
otherwise let citizens know ‘what their government is up to.’” Lepelletier v. FDIC, 164 F.3d 37,
46 (D.C. Cir. 1999) (brackets and internal quotation marks omitted) (quoting U.S. Dep’t of Def.
v. Fed. Labor Relations Auth., 510 U.S. 487, 497 (1994)).
First, the Court finds that, as to their contact information, the privacy interest of the Army
employees outweighs the public interest in disclosure. Hunton does not identify any public
interest in this information. See Consumers’ Checkbook Ctr. for the Study of Servs. v. U.S. Dep’t
of Health & Human Servs., 554 F.3d 1046, 1056 (D.C. Cir. 2009) (“We have been shown no
public interest in . . . disclosure. . . . We need not linger over the balance; something, even a
modest privacy interest, outweighs nothing every time.” (quoting Nat’l Ass’n of Retired Fed.
Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989))).
50
Next, the Court turns to the withholding of the names of Army employees. On the
privacy side of the balancing equation, government employees have a privacy interest in keeping
their names from the public spotlight. The Army notes that its employees could “become targets
of harassing inquiries for unauthorized access to information if their identities are released”
because they have access to sensitive information. DeAgostino Decl. ¶ 24. Further, the Army is
concerned about “hazards . . . evidenced by the recent attacks on service members and
installations in recent years.”45 2d DeAgostino Decl. ¶ 4, ECF No. 51-1.
On the public interest side, Hunton claims a “substantial public interest in knowing the
identities and job functions of the individuals involved in this case” because “a critical
component of understanding what took place is understanding who was involved in the decision-
making process.” Pl.’s Opp’n to Army at 21, 23, ECF No. 45. Hunton asserts that “the Army
policy of redacting the identities of the majority of its personnel makes it often impossible to determine
from the face of the document the relative positions of the author and recipient.” Pl.’s MPSJ
Army at 16 n.4. Although the Army counters that non-senior personnel are “identified by title or
position” “throughout the Vaughn index,” Army Reply at 19, ECF No. 51, inspection of the
Vaughn index reveals that the involved individuals are frequently described only as “non-Senior
Executive personnel,” see, e.g., Army Vaughn index at 2 (entry for document 13 reading
45
The Army buttresses these arguments by reference to a Department of Defense policy
that calls for withholding the names of low-ranking employees. See, e.g., Army Reply at 19
(citing to memoranda filed as exhibits at ECF No. 51-1). However—as Hunton notes—that
policy on its face appears to cover aggregated lists of employees, rather than employees’ names
incidentally included in other documents. See Memorandum for DOD FOIA Offices (Nov. 9,
2001) (“Ordinarily names of DoD personnel, other than lists of names, mentioned in documents
that are releasable under the FOIA should not be withheld, but in special circumstances where
the release of a particular name would raise substantial security or privacy concerns, such a name
may be withheld.”), ECF No. 51-1. The Court thus does not find the Department of Defense
policy highly persuasive as to the privacy interest.
51
“[e]mail[] between non-Senior Executive personnel and Craig Schmauder”); Army Vaughn
index at 10 (entry for document 50 reading “[e]mail string: between non-Senior Executive
personnel and Senior Executive personnel”).
In balancing these interests, the Court finds that the public interest in understanding what
the government is up to outweighs the interest of the Army employees in privacy as to the names
of the involved employees. Although there is a privacy interest, it is likely small. The Army has
already named several individuals in its briefing as custodians, reducing their remaining privacy
interest in the remaining documents. See, e.g., DeAgostino Decl. ¶ 12 (naming nine custodians).
Furthermore, the Army does not give any reason to believe that individuals involved in this AJD
determination face particular risks such as harassment. Hunton has identified a public interest in
understanding the agency’s functioning that will be served by identifying the employees
involved and permitting observers to understand the progress of the various released documents.
Nor do the cases cited by the Army, in which other courts permit it to withhold names,
control the outcome of this case. In each cited case the court considered the balancing test of
Exemption 6 and found that the privacy interests outweighed the public interest articulated by the
requester, often because the requesters did not articulate a public interest in the employees’
names.46 Here, Hunton does articulate that the public’s interest in understanding the
46
See, e.g., Shwaner v. Dep’t of the Army, 696 F. Supp. 2d 77, 82–83 (D.D.C. 2010)
(permitting the withholding of “lists of certain Army personnel, their ranks, companies, and
addresses” when “[p]laintiff does not argue, nor does the Court find, that release of the withheld
information would shed any light on the Amy’s performance of its duties”); Schoenman v. FBI,
575 F. Supp. 2d 136, 161 (D.D.C. 2008) (permitting the withholding of names of Department of
Defense employees when “[p]laintiff maintains that the names . . . would make for more accurate
and detailed historical accounts. [Plaintiff] does not argue, nor does the Court find, that the
withheld information would shed any light on the [agency’s] performance of its statutory
duties”); Kimmel v. U.S. Dep’t of Defense, 2006 WL 1126812, at *3 (D.D.C. March 31, 2006)
(permitting the withholding of the names of Department of Defense employees because “the
52
decisionmaking process by understanding the role played by different individuals at the Army.
This is a public interest that will, in part, reveal how the agency is functioning. The Court
therefore denies the Army summary judgment and grants Hunton partial summary judgment on
the Army’s redaction of names under Exemption 6.
5. The Corps’ Withholding of Documents as Non-Responsive
Hunton also objects to the Corps’ use of a “non-responsive” label to withhold certain
records. Both parties agree that the D.C. Circuit’s recent decision established that there is “no
statutory basis [in FOIA] for redacting ostensibly non-responsive information from a record
deemed responsive.” Am. Immigration Lawyers Assoc. v. Exec. Office for Immigration Review,
830 F.3d 667, 670 (D.C. Cir. 2016). Hunton has requested that the Corps re-review these records
and release them unless they fall under an enumerated FOIA exemption, Pl.’s MPSJ Corps at
18–19, ECF No. 56, and the Corps has stated that it intends to “release the information [marked
as non-responsive] to Plaintiff that is not otherwise subject to a FOIA exemption.,” Corps Reply
at 18, ECF No. 59. Hunton’s motion for partial summary judgment is thus granted to the extent
that the Corps is ordered to re-review and, if appropriate, release the records previously labelled
as non-responsive.
C. Hunton’s Request for Orders Documenting FOIA Violations
The Court denies Hunton’s requests for orders documenting violations by the Corps and
Army. “FOIA does not create a cause of action for an agency’s untimely response to a FOIA
request” beyond the ability to seek an injunction from the district court. Bangoura v. U.S. Dep’t
of Army, 607 F. Supp. 2d 134, 143 n.6 (D.D.C. 2009). Nor is declaratory relief appropriate.
court does not believe that releasing these individuals’ names would shed any light on the subject
of the FOIA request”).
53
Compare id. (holding that defendant’s response to plaintiff’s FOIA request “without more, does
not present a ‘cognizable danger of recurrent violation’ or ‘an illegal agency policy’” sufficient
to justify declaratory judgment), with Nat’l Sec. Archive Fund, Inc. v. U.S. Dep’t of Air Force,
No. 05-571, 2006 WL 1030152, at *1 (D.D.C. Apr. 19, 2006) (granting declaratory judgment
against an agency that failed to answer numerous requests over a period of more than ten years).
V. CONCLUSION
For the foregoing reasons, the EPA’s motion for summary judgment (ECF No. 40) is
GRANTED IN PART AND DENIED IN PART, the Corps’ motion for summary judgment
(ECF No. 52) is GRANTED IN PART AND DENIED IN PART, the Army’s motion for
summary judgment (ECF No. 36) is GRANTED IN PART AND DENIED IN PART,
Hunton’s motion for an order governing further proceedings concerning the EPA (ECF No. 50)
is GRANTED IN PART AND DENIED IN PART, Hunton’s motion for partial summary
judgment concerning the Corps (ECF No. 56) is GRANTED IN PART AND DENIED IN
PART, and Hunton’s motion for partial summary judgment concerning the Army (ECF No. 46)
is GRANTED IN PART AND DENIED IN PART. An order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: March 31, 2017 RUDOLPH CONTRERAS
United States District Judge
54