Hall & Associates v. U.S. Environmental Protection Agency ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HALL & ASSOCIATES, :
:
Plaintiff, : Civil Action No.: 19-1095 (RC)
:
v. : Re Document Nos.: 8, 9
:
UNITED STATES ENVIRONMENTAL :
PROTECTION AGENCY, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S CROSS
MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This case arises out of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and
concerns requests for email distribution lists in the possession of the Environmental Protection
Agency (“EPA”). Plaintiff filed FOIA requests for electronic copies of the email distribution
lists used for communications sent by EPA in July 2018 and February 2019. EPA has withheld
the email distribution lists pursuant to FOIA Exemption 6, which exempts matters that are
“personnel and medical files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). In their motions for summary
judgment, the parties disagree about the scope of the “similar files” portion of Exemption 6 and
about the private and public interests at stake in withholding or disclosing the email distribution
lists. For the reasons explained below, the Court finds that Exemption 6 properly applies to the
email distribution lists in question and, therefore, grants EPA’s motion for summary judgment
and denies Plaintiff’s cross motion for summary judgment.
II. FACTUAL BACKGROUND
On July 13, 2018, the Water Security Division of EPA sent an email through an online
platform called Constant Contact with the subject line “Prepare for Harmful Algal Blooms.”
EPA Statement of Material Facts (“EPA’s SMF”) ¶ 2, ECF No. 8-2; Pl.’s Statement of Material
Facts (“Pl.’s SMF”) ¶ 2, ECF No. 9-3. On February 14, 2019, EPA’s Office of Water sent an
email, also through the Constant Contact platform, with the subject line “Conestoga River
Watershed.” EPA’s SMF ¶ 21; Pl.’s SMF ¶ 22. Through two separate FOIA requests, Plaintiff
requested an electronic copy of the email distribution lists used for each of these email
communications. EPA’s SMF ¶¶ 1, 20; Pl’s SMF ¶¶ 2, 22.
Each distribution list is constructed primarily by individual users voluntarily signing up
to receive periodic updates from the respective EPA offices. EPA explains that individuals can
be put on the Water Security Division distribution list by self-registering via text, being a
registered attendee of a conference where the Water Security Division is an exhibitor, or by self-
registering through the Water Security Division’s webpage. EPA’s SMF ¶ 3. Similarly,
individuals can be put on the Office of Water’s distribution list by self-registering online and
selecting from various topic areas of interest. Id. ¶ 22. When signing up through the online
portal for either distribution list, the following language appears at the bottom of the webpage:
By submitting this form, you are consenting to receive marketing emails from: US
EPA [Water Security Division or Office of Water], 1200 Pennsylvania Ave NW,
Washington, DC, 20460 United States . . . You can revoke your consent to receive
emails at any time by using the SafeUnsubscribe® link, found at the bottom of
every email.
Id. ¶¶ 4, 23; Pl.’s SMF at 10, 17. The Water Security Division email distribution list associated
with the “Prepare for Harmful Algal Blooms” email contains approximately 19,000 email
addresses and includes the names of individuals or organizations associated with the addresses.
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EPA’s SMF ¶¶ 5, 13. The Office of Water distribution list associated with the “Conestoga River
Watershed” email contains approximately 47,000 email addresses but does not include the names
of individuals associated with the addresses. Id. ¶ 25.
In response to the request for the “Prepare for Harmful Algal Blooms” email, EPA
eventually produced the email distribution list with all email addresses redacted while leaving
the names associated with the addresses. Id. ¶ 13. EPA had initially considered attempting to
identify which email addresses are associated with private individuals and which addresses are
associated with business or public-facing organizations but estimated the cost of such an
approach would exceed $1000. Travers Decl. ¶ 10, ECF No. 8-3. In contrast, EPA has
determined that the cost for producing the list with the emails redacted totaled $98—which
Plaintiff has not paid. EPA’s SMF ¶ 15. With respect to the request for the “Conestoga River
Watershed” email, EPA withheld in full the distribution list—which does not include names of
individuals or organizations associated with the email addresses. Id. ¶¶ 25, 27.
III. LEGAL STANDARD
FOIA requires agencies to disclose records located in response to a valid FOIA request,
unless material in the records falls within one of FOIA’s nine statutory exemptions. 5 U.S.C. §
552(b); see also Judicial Watch, Inc. v. U.S. Dep’t of Def., 847 F.3d 735, 738 (D.C. Cir. 2017);
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975). “FOIA cases typically and
appropriately are decided on motions for summary judgment.” Pinson v. U.S. Dep’t of Justice,
236 F. Supp. 3d 338, 352 (D.D.C. 2017) (quoting Defs. 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). In a FOIA suit, summary judgment is appropriate “if no
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material facts are genuinely in dispute and the agency demonstrates ‘that its search for
responsive records was adequate, that any exemptions claimed actually apply, and that any
reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt
information.’” Prop. of the People, Inc. v. Office of Mgmt. and Budget, 330 F. Supp. 3d 373, 380
(D.D.C. 2018) (quoting Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 181 (D.D.C.
2017)).
The reviewing court may grant summary judgment based on the record and agency
declarations if “the agency’s supporting declarations and exhibits describe the requested
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.’”
Pronin v. Fed. Bureau of Prisons, No. 17-cv-1807, 2019 WL 1003598, at *3 (D.D.C. Mar. 1,
2019) (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal citation
omitted)). “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if
it appears ‘logical’ or ‘plausible.’” Scudder v. Cent. Intelligence Agency, 254 F. Supp. 3d 135,
140 (D.D.C. 2017) (quoting Judicial Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d 937, 941 (D.C.
Cir. 2013) (internal citations omitted)). But exemptions are to be “narrowly construed.” Bloche
v. Dep’t of Defense, 370 F. Supp. 3d 40, 50 (D.D.C. 2019) (quoting Morley v. Cent. Intelligence
Agency, 508 F.3d 1108, 1115 (D.C. Cir. 2007)). An agency must do more than provide
“summary statements that merely reiterate legal standards or offer ‘far-ranging category
definitions for information.’” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of
Justice, 955 F. Supp. 2d 4, 13 (D.D.C 2013) (quoting King v. U.S. Dep’t of Justice, 830 F.2d
210, 221 (D.C. Cir. 1987)).
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IV. ANALYSIS 1
A. Exemption 6
FOIA Exemption 6 applies to information included in “personnel and medical files and
similar files the disclosure of which would constitute a clearly unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6). Courts in this District have framed Exemption 6 as having two
requirements: (1) the information must be contained in personnel, medical, or similar files; and
(2) the information must be of such a nature that its disclosure would constitute a clearly
unwarranted invasion of personal privacy. Ctr. for Biological Diversity v. U.S. Army Corps of
Engineers, 405 F. Supp. 3d 127, 143 (D.D.C. 2019) (citing U.S. Dep’t of State v. Washington
Post Co., 456 U.S. 595, 598 (1982)).
The Supreme Court has held that Exemption 6 is not limited “to a narrow class of files
containing only a discrete kind of personal information” but rather should be broadly applied “to
cover detailed Government records on an individual which can be identified as applying to that
individual.” Washington Post, 456 U.S. at 602. The Court also embraced the legislative history
on the exemption stating that “‘the balancing of private interest against public interest, not the
nature of the files in which the information was contained, should limit the scope of the
exemption.’” Id. at 599. For this reason, the D.C. Circuit has found that “similar files” should
be read to include “bits of personal information, such as names and addresses, the release of
which would ‘create[] a palpable threat to privacy.’” Judicial Watch, Inc. v. Food & Drug
Admin., 449 F.3d 141, 152–53 (D.C. Cir. 2006) (quoting Carter v. U.S. Dep’t of Commerce, 830
F.2d 388, 391 (D.C. Cir. 1987)). Based on this precedent, courts in this District have held that
Exemption 6 applies to email addresses. See Baldwin v. U.S. Dep’t of Energy, No. 18-cv-1872,
1
The sufficiency of EPA’s search for responsive documents is not in dispute.
5
2020 WL 376563, at *4 (D.D.C. Jan. 23, 2020) (finding Exemption 6 applies to emails);
Shurtleff v. United States Envtl. Prot. Agency, 991 F. Supp. 2d 1, 18 (D.D.C. 2013) (“Exemption
6 allows an agency to withhold personal identifying information, such as email addresses . . . .”);
Prechtel v. Fed. Commc’ns Comm’n, 330 F. Supp. 3d 320, 329 (D.D.C. 2018) (finding that the
definition for similar files “encompasses email addresses.”) (citing Bayala v. U.S. Dep’t of
Homeland Sec., 264 F. Supp. 3d 165, 178 (D.D.C. 2017)).
To determine whether disclosure of information “would constitute a ‘clearly unwarranted
invasion of personal privacy,’ the Court must balance the ‘privacy interest in non-disclosure
against the public interest in the release of the records.’” Prechtel, 330 F. Supp. 3d at 329
(quoting Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999)). The privacy interest at stake
must be substantial, meaning “one that is ‘more than de minimis.’” Ctr. For Biological
Diversity, 405 F. Supp. 3d at 143 (quoting Nat’l Ass’n of Retired Fed. Employees v. Horner
(NARFE), 879 F.2d 873, 874 (D.C. Cir. 1989)). Because substantial means only an interest that
is more than de minimis, the D.C. Circuit has acknowledged that use of the word “substantial in
this context means less than it might seem.” Multi Ag Media LLC v. Dep’t of Agriculture, 515
F.3d 1224, 1229 (D.C. Cir. 2008). Whether disclosure of information is a “significant or a de
minimis threat depends on the characteristic(s) revealed by virtue of being on a particular list,
and the consequences likely to ensue.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 178 n.12 (1991)
(quoting NARFE, 879 F.2d at 877). The only relevant public interest is “the extent to which
disclosure of the information sought would ‘she[d] light on an agency’s performance of its
statutory duties’ or otherwise let citizens know ‘what their government is up to.’” Lepelletier,
164 F.3d at 46 (quoting U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 497
(1994)).
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B. EPA’s Application of Exemption 6 2
1. Similar Files
EPA states that it “determined that the withheld information falls within the scope of
‘personnel and medical and similar files’ because the email addresses contained in the”
distribution lists apply to and can be identified with specific individual users. EPA’s Mem.
Supp. Mot. Summ. J. (“EPA’s Mot.”) at 8, ECF No. 8-1. Because “the email addresses at issue
can be identified with the individual user who signed up to receive EPA communications,” id. at
5, EPA argues that the distribution lists appropriately can be considered “similar files.” Plaintiff,
on the other hand, argues that “no evidence exists that these distribution lists can be applied to or
identified with a specific individual.” Pl.’s Opp’n and Mem. Supp. Cross Mot. Summ. J. (Pl.’s
Mot.”) at 17, ECF No. 9-1. Because the distribution lists do not contain other personal
information about the owners of the email addresses, Plaintiff argues they cannot be considered
“similar files” under D.C. Circuit precedent. Id. at 19. Plaintiff compares the release of the
email distribution lists to the release of a list of blood types that does not include any other
identifying information. Pl.’s Reply at 9, ECF No. 15. Furthermore, Plaintiff challenges EPA’s
declaration on this point as conclusory because it “simply presumes that any email address is a
‘similar file’ to a personnel file.” Pl.’s Mot. at 20.
2
In addition to the arguments addressed below, Plaintiff also objects to what it calls the
conclusory nature of the declarations. Pl.’s Mot. at 13–15. But, because of the easy-to-
understand nature of distribution lists at issue, the Court finds that the declarations sufficiently
describe the records and the reasons for withholding. See Am. Immigration Lawyers Ass'n v.
Exec. Office for Immigration Review, 830 F.3d 667, 675 (D.C. Cir. 2016) (permitting a category
approach to redactions where “the documents within each category are sufficiently similar . . . to
allow a court to determine whether the specific claimed exemptions are properly applied.”)
(internal quotations omitted).
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Like other courts in this District have determined before, the Court concludes that the
emails contained in the distribution lists fall within the scope of “similar files.” See Baldwin,
2020 WL 376563, at *4; Shurtleff, 991 F. Supp. 2d at 18; Prechtel, 330 F. Supp. 3d at 329;
Bayala, 264 F. Supp. 3d at 178. The email distribution lists contain “bits of personal
information” that normally remain private unless shared. Unlike a list of blood types, which
cannot be tied to any individual, a list of email addresses allows for immediate communication
with the email account owners; email addresses are unique identifiers just like physical addresses
and they can be identified with their owner. See Judicial Watch, Inc., 449 F.3d at 152–53.
Given the Supreme Court’s guidance to interpret the “similar files” provision broadly, see
Washington Post, 456 U.S. at 602, the Court will not block the invocation of Exemption 6 on this
threshold matter as Plaintiff suggests.
2. Balancing of Interests
EPA’s declarations explain that the agency “determined there is a significant privacy
interest in an individual user’s email address” and that the users on the email lists have a privacy
interest “in avoiding public disclosure of their email addresses.” Travers Decl. ¶ 24; Lousberg
Decl. ¶ 15, ECF No. 8-4. The declarations note that the “individual users provided EPA their
email addresses to receive emails only from EPA” and that “release to the public of an email list
. . . would allow third parties to take possession of this list, and harass and spam the individual
users with unsolicited communications.” Travers Decl. ¶ 24; Lousberg Decl. ¶ 15. With respect
to a public interest in release, the declarations state that “there is no cognizable public interest in
releasing the personal information withheld under Exemption 6 because this information sheds
no light on the Agency’s performance of its official duties.” Travers Decl. ¶ 25; Lousberg Decl.
¶ 16. According to EPA, “[d]isclosure of the email addresses . . . would reveal nothing about
8
how EPA performs its statutory duties.” Travers Decl. ¶ 25; Lousberg Decl. ¶ 16. The agency
“weighed the significant privacy interests . . . against the absence of public interest in disclosure
and concluded that disclosure would constitute a clearly unwarranted invasion of personal
privacy.” Travers Decl. ¶ 26; Lousberg Decl. ¶ 17.
Plaintiff argues that there is no evidence that disclosure of the list would lead to
harassment or unwanted communications. Pl.’s Mot. at 21–23. Because the email distribution
lists contain no additional personal information, Plaintiff claims that disclosure of the list does
not reveal any characteristics about an individual’s personal life. Id. at 23–24. Furthermore,
Plaintiff claims that the possibility of unsolicited contacts does not create an unwarranted
invasion of privacy justifying the withholding of the information. 3 Id. at 25–26. Plaintiff
suggests that because unwanted email can be easily ignored, any privacy interest would not be
more than de minimis. Id. at 25. Plaintiff acknowledges that it seeks to use the lists to “provide
those parties . . . with balanced information” on topics of specific interest to the individuals but
claims that such communications do not implicate a privacy interest or amount to harassment
given the expressed interests of the individuals on the lists. Id. at 26. Finally, Plaintiff identifies
what it claims are two public interests justifying disclosure: first, the lists demonstrate with
whom the government is communicating, and second, the lists demonstrate “what the
3
Plaintiff also contends that because EPA has released email addresses in response to
FOIA requests in the past, its invocation of Exemption 6 is now improper. Id. at 26–28. Plaintiff
offers no precedent or other authority to support the argument that because an agency has
voluntarily disclosed a certain type of information in the past, it must disclose that type of
information from that point forward. Circuit precedent contradicts Plaintiff’s position. See Nat’l
Sec. Archive v. CIA, 752 F.3d 460, 464 (D.C. Cir. 2014) (“[A]n agency does not forfeit the
benefit of a FOIA exemption simply because of its prior decision to voluntarily release other
similar information”).
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government is up to” because they show “the apparent new vehicle for how EPA is
communicating its national regulatory policies and future actions with the public.” Id. at 28–29.
As an initial matter, the Court notes a distinction between email addresses held
privately—email addresses not available through any public source—and email addresses
available publicly, such as an official email address for a business or organization. Courts in this
District have routinely held that release of privately held email addresses would implicate a
privacy interest. See Gov’t Accountability Project, 699 F. Supp. 2d at 106 (noting a “clear
privacy interest in avoiding disclosure of [] personal email addresses.”); Judicial Watch, Inc. v.
U.S. Dep’t of State, 306 F. Supp. 3d 97, 117 (D.D.C. 2018) (finding that “case law is clear that
there is a substantial privacy interest in full email addresses”) (citations omitted); Prechtel, 330
F. Supp. 3d at 329 (noting that “courts in this district have attached a substantial privacy interest
to the email addresses of private individuals”) (internal citations omitted). Courts have also
upheld the withholding of email addresses used for work purposes where they are not publicly
available. See Williams LLP v. U.S. Envtl. Prot. Agency, 346 F. Supp. 3d 61, 86 (D.D.C. 2018)
(concluding that redacting employee’s work email address and mobile phone number under
Exemption 6 was proper); Shurtleff, 991 F. Supp. 2d at 18; see also Seife v. U.S. Dep’t of State,
298 F. Supp. 3d 592, 629 (S.D.N.Y. 2018) (concluding that Exemption 6 properly applies to
official government email addresses that are not publicly available). Publicly available email
addresses, however, do not implicate a privacy interest protected by Exemption 6. See Multi Ag
Media LLC, 515 F.3d at 1228 (explaining that Exemption 6 does not protect the privacy interests
of businesses or corporations). For a publicly available address, unsolicited contact might
actually serve the interests of the account owner as a means to develop business. As such, the
following analysis relates only to those email addresses that are privately held; the Court
10
discusses publicly available email addresses that may appear on the distribution lists in its
discussion of segregability below.
The Court finds that while disclosure of the privately held email addresses may implicate
a rather modest privacy interest, it is more than de minimis. In NARFE, the D.C. Circuit
considered whether unwanted intrusions or solicitations can constitute a substantial enough
privacy interest to prevent disclosure. There, the court stated “there is a substantial probability
that the disclosure [of names and addresses] will lead to threatened invasion: one need only
assume that business people will not overlook an opportunity to get cheaply from the
Government what otherwise comes dearly, a list of qualified prospects . . . .” NARFE, 879 F.2d
at 878. A large email distribution list generated primarily based on self-identified interest in
particular topics holds undeniable value. Furthermore, in this case, the disclosure statement on
EPA’s website stated that submitting the form indicated consent to receive emails from EPA and
that consent could be revoked at any time by clicking a link at the bottom of the email
communications. EPA’s SMF ¶¶ 4, 23. Could consent be revoked in a similar manner for
communications from FOIA requesters utilizing the disclosed distributions lists? See Pavement
Coating Tech. Council v. United States Geological Survey, 436 F. Supp. 3d 115, 132 (D.D.C.
2019) (“The prospect of such solicitation is also especially troublesome where, as here, the
volunteers who participated in the survey were initially told [their personally identifiable
information] would remain confidential . . . .”). Plaintiff claims that unwanted solicitation is
unlikely and, even if it does occur, ignoring and deleting an email is easy enough to render the
invasion of privacy de minimis. The Court disagrees. As pointed out by EPA, Plaintiff admits it
wants to utilize the email distribution lists to contact the individuals—it is plausible that others
would want to do the same. And while unwanted emails can be dealt with in rather short order,
11
that does not change the interest individuals have in keeping their email addresses private and
controlling the dissemination of that information. Like other courts in this District have held
before, this Court finds there is a greater than de minimis—that is to say, a substantial—privacy
interest in nondisclosure of private email addresses. See e.g., Gov’t Accountability Project, 699
F. Supp. 2d at 106.
The Court finds that Plaintiff’s first proffered public interest in disclosure does not
outweigh the private interests at stake. Plaintiff claims that release of the distribution lists
“would inform the public to whom the Government is” communicating and suggests that release
would reveal parties that “seek to influence agency policy and decisions.” Pl.’s Mot. at 28–29.
While it is true that releasing the distribution lists would reveal who received the email
communications at issue, the agency declarations demonstrate that, because of how the lists were
constructed, disclosure would not “she[d] light on [EPA’s] performance of its statutory duties.”
Fed. Labor Relations Auth., 510 U.S. at 497. EPA explains that email addresses are added to the
lists when an individual either self-registers (by text message or through the website) or attends a
conference where EPA is an exhibitor. Travers Decl. ¶ 7; Lousberg Decl. ¶ 7. Appearing on
these lists does not by itself suggest any effort to influence the decision making of the agency. If
Plaintiff sought the email addresses of individuals petitioning EPA to take some action or
commenting on a proposed rule, we would have a different case. See People for the Am. Way
Found. v. Nat’l Park Serv., 503 F. Supp. 2d 284, 305–06 (D.D.C. 2007) (explaining that “[w]hen
a citizen petitions his government to take some action, courts have generally declined to find the
identity of the citizen to be information that raises privacy concerns under exemption 6” (quoting
Lardner v. U.S. Dep’t of Justice, No. 03-cv-180, 2005 WL 758267, at *18 (D.D.C. Mar. 31,
2005)). But that is not what the record suggests. Appearing on these distribution lists does not
12
suggest any desire to influence the agency and is a function of actions taken by the owners of the
email addresses. 4 As such, more is revealed about the interests of those owners rather than about
how or whether EPA is performing its statutory duties. See Reed v. NLRB, 927 F.2d 1249, 1252
(D.C. Cir. 1991) (finding the withholding of Excelsior list appropriate under Exemption 6
because “‘disclosure of information about private citizens that is accumulated in various
governmental files’ would ‘reveal[] little or nothing about an agency’s own conduct.’”) (quoting
U.S. Dep’t of Justice v. Reporters Committee For Freedom of Press, 489 U.S. 749, 772 (1989));
Maryland v. U.S. Dep’t of Veteran Affairs, 130 F. Supp. 3d 342, 353 (D.D.C. 2015) (“The public
interest in the release of email addresses containing individual’s names is practically
nonexistent.”); see also NARFE, 879 F.2d at 876 (“[N]o one would request simply all ‘names
and addresses’ in an agency’s files, because without more, those data would not be
informative.”).
For similar reasons, the Court finds that Plaintiff’s second proffered public interest in
disclosure does not outweigh the privacy interests of the individual email address owners.
Plaintiff argues that disclosure of the lists would reveal a “new vehicle for how EPA is
communicating its national regulatory policies and future actions with the public.” Pl.’s Mot. at
28–29. With respect to the “Prepare for Harmful Algal Bloom” list—which EPA has released
with email addresses redacted but with the names of individuals—that much can be determined
with the Exemption 6 redactions applied. See VoteHemp, Inc. v. Drug Enf’t Admin., 567 F.
Supp. 2d 1, 16 (D.D.C. 2004) (“[T]he names and addresses of government employees or third
4
Plaintiff argues that the calculus should change because the lists are constructed in part
by the agency after certain individuals attend conferences. Pl.’s Mot. at 29–30. But regardless
of whether EPA “affirmatively selected those email addresses to be included within the
distribution list,” id. at 30, appearing on the list still says more about the individuals on the list
than it does about the agency.
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parties would not shed any more light on the subject at issue, beyond the information already in
plaintiff’s possession.”). And for the “Conestoga River Watershed” list, which only contains
email addresses without associated names, disclosure does not serve Plaintiff’s proffered
purpose. Without evidence, Plaintiff suggests that “EPA has effectively replaced Federal
Register notices of its actions” by using these distribution lists to disseminate notice of official
agency action instead. 5 Pl.’s Mot. at 29. But even if that were true, Plaintiff does not explain
how knowing the actual email addresses would demonstrate the “new vehicle” for regulatory
communication. Accordingly, the disclosure of the email addresses would not “she[d] light on
[EPA’s] performance of its statutory duties.” Fed. Labor Relations Auth., 510 U.S. at 497.
On balance, the Court finds that the interest in controlling the dissemination of a private
email address outweighs the virtually nonexistent public interest in disclosure. NARFE, 879 F.2d
at 879 (“We need not linger over the balance; something, even a modest privacy interest,
outweighs nothing every time.”); Gov’t Accountability Project, 699 F. Supp. 2d at 106 (allowing
withholding of private email addresses on job applications because “releasing their email
addresses serves no public interest because these email addresses would not reveal ‘what the
government is up to’”). Disclosure of the privately held email addresses, which would allow
Plaintiff and any other party to immediately contact the individual owners of the addresses, does
not serve either of Plaintiff’s proffered public interests in disclosure. The disclosure statement
on EPA’s website where individuals sign up to receive emails further supports the application of
Exemption 6. In short, the owners of the email addresses have a more than de minimis interest in
the nondisclosure of their contact information and the email addresses themselves do not show
5
Both email communications, attached to EPA’s declarations, do not announce any
official agency action that would normally appear in the Federal Register. See Travers Decl. Ex.
1; Lousberg Decl. Ex. 1.
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“what the government is up to.” Accordingly, the Court finds that EPA properly invoked
Exemption 6 to withhold both email distribution lists at issue. 6
3. Segregability
The Court has a duty to consider whether the agency has met its obligation to produce all
segregable, nonexempt information. Elliott v. U.S. Dep’t of Agric., 596 F.3d 842, 851 (D.C. Cir.
2010) (referring to court’s “affirmative duty to consider the segregability issue sua sponte”
(quoting Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007)). This obligation can be fulfilled
through a sworn declaration from an agency official. Milton v. U.S. Dep’t of Justice, 842 F.
Supp. 2d 257, 260 (D.D.C. 2012) (“An affidavit stating that an agency official conducted a
review of each document and how she determined that no document contains segregable
information fulfills the agency’s obligation.”). Such a declaration must include “a detailed
justification and not just conclusory statements to demonstrate that all reasonably segregable
information has been released.” Ctr. For Pub. Integrity v. United States Dep’t of Commerce, 401
F. Supp. 3d 108, 116 (D.D.C. 2019) (quoting Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C.
2010)). Once such a declaration has been submitted, agencies are “entitled to a presumption that
they complied with the obligation to disclose reasonably segregable material.” Am. Ctr. for Law
& Justice v. United States Dep’t of Justice, 325 F. Supp. 3d 162, 175 (D.D.C. 2018) (citing
Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007)). A plaintiff can rebut
6
Plaintiff argues in the alternative that disputed facts regarding the potential
consequences of disclosure, previous disclosures made by EPA, and what constitutes an
“unwarranted invasion of privacy” should preclude EPA from obtaining summary judgment.
Pl.’s Mot. at 32–33. The Court disagrees and finds that the declarations submitted by EPA and
the facts the parties do not dispute sufficiently support the holding here. See Scudder, 254 F.
Supp. 3d at 140 (“Ultimately, an agency’s justification for invoking a FOIA exemption is
sufficient if it appears ‘logical’ or ‘plausible.’”) (quoting Judicial Watch, Inc., 715 F.3d at 941
(internal citations omitted)).
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this presumption by producing a “quantum of evidence,” at which point the government must
“demonstrate that no segregable, nonexempt portions were withheld.” Id.
EPA submitted two supplemental declarations that speak to the segregability of non-
exempt information. As noted above, email addresses publicly available do not enjoy protection
from disclosure under Exemption 6. Acknowledging that some email addresses on both lists
may be publicly available, EPA “conducted a sample review of 10 percent of [the lists] . . . to
identify email addresses that appeared to be associated only with a company or entity and not
associated with a particular individual.” 2d Travers Decl. ¶ 5; 2d Lousberg Decl. ¶ 4. For each
list, EPA personnel conducted a line-by-line review of ten percent of the emails, amounting to
forty-two pages and 2,226 email addresses for the “Prepare for Harmful Algal Bloom” list and
102 pages and 4,794 email addresses for the “Conestoga River Watershed” list. 2d Travers Decl.
¶ 8; 2d Lousberg Decl. ¶ 6. To determine whether the email address could only be associated
with a business or public entity, EPA used the following criteria:
(1) the prefix and domain of the email address both included the business or entity’s
full name and did not include any reference to a person’s name; (2) the domain of
the email address was a business or entity’s name and the prefix of the email address
was an identifiable word or abbreviation that did not include any reference to a
person’s name; or (3) the prefix of the email address referred to a portion or
abbreviation of the business or entity identified in the domain of the email address
and did not include any reference to a person’s name.
2d Travers Decl. ¶ 10; 2d Lousberg Decl. ¶ 8. EPA found that 0.45 percent of the “Prepare for
Harmful Algal Bloom” list and one percent of the “Conestoga River Watershed” list met the
criteria, but the agency was “unable to determine definitely that the [] email addresses were only
associated with a business or public entity and not an individual.” 2d Travers Decl. ¶ 11; 2d
Lousberg Decl. ¶ 9. Because of the difficulties in definitively identifying public email addresses
and the “significant time and expense required to analyze” the lists with tens of thousands of
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email addresses, EPA determined that “the information is not reasonably segregable.” 2d
Travers Decl. ¶ 12; 2d Lousberg Decl. ¶ 10.
Plaintiff argues that this position is inconsistent with EPA’s original proposal to review
the email distribution lists and attempt to release any email addresses not associated with an
individual. Pl.’s Reply at 21–22. According to Plaintiff, the supplemental declarations
submitted suggest EPA’s position is “an argument of convenience” and reflects an arbitrary view
of the distinction between privately held and publicly available email addresses. Id. Plaintiff
does not specifically take issue with the criteria used by EPA to determine whether an address
can be associated only with a business or public entity nor does Plaintiff challenge EPA’s
determination that only a very small percentage of the email addresses meet the criteria.
The Court finds that the justification provided by EPA sufficiently demonstrates that all
reasonably segregable material has been released. The agency laid out in detail the steps it took
to determine how many email addresses could only be associated with a business or public
entity. The declarations indicate that, to the extent it is even possible to definitively distinguish
between privately held and publicly available email addresses, a very small percentage of the
email addresses would fit the criteria. Plaintiff does not object to EPA’s method nor its findings.
In Mead Data, albeit in a slightly different context, the court stated “if only ten percent of the
material is non-exempt and it is interspersed line-by-line throughout the document, an agency
claim that it is not reasonably segregable because the cost of line-by-line analysis would be high
and the result would be an essentially meaningless set of words and phrases” could satisfy an
agency’s segregability obligation. 566 F.2d 242, 261 (D.C. Cir. 1977). The same principle
applies here. Given the presumption in EPA’s favor, the Court’s findings regarding the lack of
public interest in disclosure of the distribution lists, and the very small percentage of potentially
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non-exempt email addresses, EPA’s declarations sufficiently fulfill its segregability obligations.
Although a literal line-by-line review has not been conducted, the Court is satisfied that EPA’s
method supports its claim that any non-exempt information is not reasonably segregable.
4. Processing Fees
Plaintiff claims that the processing fees requested by EPA—which ended up at $98—are
unreasonable. Plaintiff states that “EPA merely added block redactions of every single email
address,” which, according to Plaintiff, means the requested fee “does not reflect a reasonable
level of time and effort.” Pl.’s Mot. at 33–34. EPA’s declaration explains the additional work
that went into processing the FOIA request: “EPA searched for the email distribution list,
downloaded the list into a producible format, reviewed the list, and redacted the final list.”
Travers Decl. ¶ 21. EPA states that “these tasks took approximately 9 hours to complete, [but]
EPA charged for only 3.5 hours of work at $28 per hour, totaling $98.” Id. Plaintiff does not
dispute EPA’s description of the additional work completed to process the request. “Plaintiff
offers no substantive response to EPA’s argument,” Hall & Associates v. United States Envtl.
Prot. Agency, 14 F. Supp. 3d 1, 8 (D.D.C. 2014), and instead suggests that the only work that
should matter is the application of the block redaction. “A plaintiff’s bare allegation that a fee
assessment is unreasonable, however, is insufficient to avoid summary judgment.” Id. (citing
Nat’l Treas. Empl. Union v. Griffin, 811 F.2d 644, 650 (D.C. Cir. 1987)). Based on EPA’s
explanation of the additional work required to complete the request, and Plaintiff’s failure to
meaningfully address that explanation, the Court finds that the requested fee is reasonable.
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V. CONCLUSION
For the foregoing reasons, EPA’s motion for summary judgment (ECF No. 8) is
GRANTED and Plaintiff’s cross motion for summary judgment (ECF No. 9) is DENIED. An
order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: August 12, 2020 RUDOLPH CONTRERAS
United States District Judge
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