Environmental Integrity Project v. Small Business Administration , 125 F. Supp. 3d 173 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ENVIRONMENTAL INTEGRITY PROJECT,
et al.,
Plaintiffs,
v. Case No. 1:13-cv-01962-CRC
SMALL BUSINESS ADMINISTRATION, et al.,
Defendants.
MEMORANDUM OPINION
As the Court noted in its Memorandum Opinion of August 5, 2015, the Effluent
Limitation Guidelines (“ELGs”) are federal requirements that limit what toxins may be
discharged from coal-fired power plants. Plaintiffs Environmental Integrity Project, Earthjustice,
and Sierra Club filed Freedom of Information Act (“FOIA”) requests with the Small Business
Administration (“SBA”) and the Office of Management and Budget (“OMB”) for records
regarding OMB’s review of an Environmental Protection Agency (“EPA”) proposed update to
the ELGs. SBA and OMB provided hundreds of documents in response to the requests, but
withheld others based on the deliberative process privilege. Plaintiffs brought this action
challenging the agencies’ assertion of the privilege and their refusal to release allegedly
segregable factual information contained in the records they did release.
In its Order of August 5, 2015, the Court granted summary judgment as to OMB, finding
its submissions sufficient to support its privilege assertion. The Court deferred ruling as to SBA,
however, because its affidavits and Vaughn Index were largely conclusory and lacked the
specificity needed to evaluate a claim of privilege. As a result, the Court ordered that SBA
provide its withheld documents to the Court for in camera review. Having reviewed each of the
eleven documents submitted by SBA, the Court concludes that the deliberative process privilege
applies to ten of those documents, and that the remaining document is unresponsive to Plaintiffs’
FOIA request. The Court will therefore grant the remainder of Defendants’ motion for summary
judgment in favor of SBA.
I. Background
This case stems from a proposed change in the Steam Electric ELGs, the regulations
limiting the amount of pollutants coal-fired power plants may discharge into rivers, streams, and
lakes. See Pls.’ Statement of Material Facts (“Pls.’ Statement”) ¶ 1. In April 2013, plaintiffs
submitted identical FOIA requests to SBA and OMB. Id. ¶ 7. The requests sought the release of
records in three categories:
(1) all records exchanged and all records related to any meetings, telephone
conversations, emails, or any other communications between [SBA/OMB] and the
utility industry, representatives of the utility industry, trade group, special
interests groups, and/or other non-governmental parties related to the Effluent
Limitation Guidelines for the Steam Electric Generating Category; wastewater
discharges from coal-fired power plants; and/or treatment technologies, or best
available technology economically achievable (“BAT”) for wastewater discharges
from coal-fired power plants since April 3, 2013;
(2) all records exchanged and all records related to any meetings, telephone
conversations, emails, or any other communications between [SBA/OMB] and the
EPA; [SBA/OMB], Council on Environmental Quality; Executive Office of the
President; and/or White House staff, including, but not limited to, Heather Zichal,
Rob Nabors, and Denis McDonough during interagency review for EPA’s
proposed Steam Electric ELGs Rule; and
(3) all records related to handling of bottom ash wastewater, flue gas
desulfurization (FGD) wastewater, and combustion residual leachate.
Compl. ¶ 36.
In June 2013, SBA provided Plaintiffs all category (1) and (3) records, and eventually
released all but eleven category (2) records, which it withheld under FOIA Exemption 5. Pls.’
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Statement of Material Facts, ¶¶ 8–11. Not satisfied with the extent of SBA’s disclosures,
Plaintiffs filed this action in December 2013. In November 2014, Defendants moved for
dismissal or, alternatively, for summary judgment. In support of that motion, SBA submitted a
Vaughn index and a declaration from Claudia Rodgers, its FOIA Officer and Deputy Chief
Counsel. SBA also filed a supplemental declaration from Ms. Rodgers in January 2015.
II. Standard of Review
Congress passed FOIA “to pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Am. Civil Liberties Union v. U.S. Dep’t of Justice, 655
F.3d 1, 5 (D.C. Cir. 2011). The statute imposes a general obligation on the government to
provide records to the public. 5 U.S.C. § 552(a). Although FOIA provides exemptions to this
general obligation to disclose, 5 U.S.C. § 552(b), “[t]he basic purpose of FOIA is to ensure an
informed citizenry, vital to the functioning of a democratic society, needed to check against
corruption and to hold the governors accountable to the governed,” NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 242 (1978). Thus, FOIA “exemptions are ‘explicitly made
exclusive,’” Milner v. U.S. Dep’t of the Navy, 562 U.S. 562, 565 (2011) (quoting EPA v. Mink,
410 U.S. 73, 79 (1973)), and they “must be ‘narrowly construed,’” id. (quoting FBI v.
Abramson, 456 U.S. 615, 630 (1982)).
III. Analysis
SBA claims that the eleven documents it withheld are exempt from disclosure under
FOIA Exemption 5. That exemption permits an agency to withhold “inter-agency or intra-
agency memorandums or letters which would not be available by law to a party other than an
agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). “Courts have construed this
exemption to encompass the protections traditionally afforded certain documents pursuant to
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evidentiary privileges in the civil discovery context, including materials which would be
protected under the attorney-client privilege, the attorney work-product privilege, or the
executive deliberative process privilege.” Formaldehyde Inst. v. U.S. Dep’t of Health & Human
Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989) (citations omitted).
In order to obtain protection under the deliberative process privilege, the agency must
demonstrate that the materials are “both predecisional and part of the deliberative process.” Id.
(citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151–52). A predecisional document is
one prepared in order to assist an agency decisionmaker in arriving at a decision, and may
include “recommendations, draft documents, proposals, suggestions, and other subjective
documents which reflect the personal opinions of the writer rather than the policy of the agency.”
Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). A
document may be withheld “if ‘the disclosure of the materials 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 ability to perform its functions.’” Formaldehyde Inst., 889 F.2d
at 1122 (quoting Dudman Commc’ns Corp. v. U.S. Dep’t of Air Force, 815 F.2d 1565, 1568
(D.C. Cir. 1987)). Factual information, however, “may be protected only if it is inextricably
intertwined with the policy-making processes.” Soucie v. David, 448 F.2d 1067, 1077–78 (D.C.
Cir. 1971).
In its August 5, 2015 Memorandum Opinion, the Court agreed with Plaintiffs that SBA’s
brief descriptions of its withheld documents were insufficient to justify invoking the deliberative
process privilege. Having reviewed SBA’s withheld documents, the Court is now in a position
to evaluate SBA’s claim of privilege. As discussed below, the Court finds that ten of the
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documents are subject to the deliberative process privilege, and the remaining document is non-
responsive to Plaintiffs’ request.
A. SBA Documents 1, 5, 6, 8, 9, 11, 12, 13, 14, and 16
SBA documents 1, 5, 6, 8, 9, 12, 13, 14, and 16 are classic examples of the types of
communications that the deliberative process privilege is designed to protect. These documents
reflect SBA’s comments related to EPA’s methodology, timing, and additional factors for EPA
to consider; requests for clarification; draft calculations; analysis of EPA’s assumptions and
calculations; discussion of commenters’ critiques and questions; and suggestions for improving
the draft regulations. Each of these documents relates directly to the decisionmaking process and
either includes or describes SBA’s “recommendations, draft documents, proposals, [or]
suggestions” and “reflect[s] the personal opinions of the writer . . . .” Coastal States Gas Corp.,
617 F.2d at 866. Therefore, they fall squarely within the protection of FOIA Exemption 5.
Document 11, which SBA describes as an email from Kevin Bromberg, SBA’s Assistant
Chief Counsel for Environmental Policy, “re: steam Electric meeting,” does not directly involve
any SBA recommendation, proposal, or suggestion. Releasing this document would, however,
likely expose aspects of SBA’s decisionmaking process. It discusses the format in which SBA
sought various EPA data and indicates how SBA was going about the process of developing its
comments. As a result, it is also subject to withholding under FOIA Exemption 5.
B. SBA Document 7
The deliberative process privilege cannot shield Document 7 from disclosure. But
because its contents bear no relationship to Plaintiffs’ FOIA request, it is a non-responsive
document and need not be disclosed. SBA describes Document 7 as an email from Kevin
Bromberg “re Steam electric v3 april 1.” While the email’s subject line would appear to indicate
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some relationship to ELGs for the Steam Electric Generating Category, its content can best be
described as friendly banter. It has nothing to do with the subject matter of Plaintiffs’ FOIA
request. Additionally, while the text of some emails mentioning SBA’s comments were
appended to the bottom of Mr. Bromberg’s email, that text is duplicative of other documents
properly withheld pursuant to the deliberative process privilege. Therefore, while SBA may not
rely on FOIA Exemption 5 to withhold what Mr. Bromberg wrote in his email, as part of
Document 7, SBA may withhold Mr. Bromberg’s writing on the grounds that it is non-
responsive to Plaintiffs’ request.
IV. Conclusion
For the reasons stated above, the Court will grant the remainder of Defendants’ motion
for summary judgment in favor of SBA and deny Plaintiffs’ cross-motion for summary judgment
as to SBA. An appropriate order accompanies this Memorandum Opinion.
________________________
CHRISTOPHER R. COOPER
United States District Judge
Date: August 28, 2015
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