Ecological Rights Foundation v. United States Environmental Protection Agency ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ECOLOGICAL RIGHTS FOUNDATION,
Plaintiff,
Civil Action No. 19-980 (BAH)
v.
Chief Judge Beryl A. Howell
U.S. ENVIRONMENTAL PROTECTION
AGENCY,
Defendant.
MEMORANDUM OPINION
Plaintiff Ecological Rights Foundation, “a non-profit, public benefit corporation . . .
devoted to furthering the rights of all people to a clean, healthful, and biologically diverse
environment,” Am. Compl. ¶ 16, ECF No. 7, challenges the response of defendant, the U.S.
Environmental Protection Agency (“EPA”), to a ten-part request submitted pursuant to the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for records related to the agency’s
transparency, personnel, and accountability policies, see Compl., Ex. 1, Pl.’s FOIA Request
(“FOIA Request”), ECF No. 1-1. Specifically, plaintiff alleges in two claims that EPA
unlawfully withheld records responsive to plaintiff’s FOIA Request (Count II), Am. Compl.
¶¶ 60–62 and failed to conduct an adequate search for responsive records (Count III), id. ¶¶ 63–
65.1
1
In addition to these counts, the Amended Complaint pled that EPA constructively denied plaintiff’s FOIA
Request by failing to comply with FOIA’s deadline mandate, failing to communicate the intended scope of its
production, and failing to make responsive records promptly available to plaintiff (Count I), Am. Compl. ¶¶ 55–59,
and engaged in a pattern and practice of violating FOIA’s response and determination deadlines, failing to disclose
responsive records, and failing to conduct a reasonable search for records (Count IV), id. ¶¶ 66–70. The parties
presented no argument on these claims in their pending cross-motions for summary judgment. In response to the
Court’s order for supplemental briefing addressing these claims, see Min. Order (Jan. 19, 2021), the parties instead
stipulated to the dismissal of Counts I and IV, see Stipulation to Voluntarily Dismiss Without Prejudice Counts I &
IV of Pl.’s Am. Compl. at 2, ECF No. 28, which dismissal was granted on January 22, 2021, see Min. Order (Jan.
22, 2021). Counts II and III are thus the only claims still disputed by the parties.
1
Pending before the Court are the parties’ cross-motions for summary judgment. Def.’s
Mot. Summ. J. (“Def.’s Mot.”), ECF No. 19; Pl.’s Cross-Mot. Summ. J. (“Pl.’s Mot.”), ECF No.
20. For the reasons set forth below, both parties’ cross-motions are granted in part and denied in
part.
I. BACKGROUND
Plaintiff’s FOIA Request is briefly described below, followed by review of EPA’s
responses both before and after initiation of this lawsuit.
A. The FOIA Request
On August 30, 2018, plaintiff submitted its FOIA Request to EPA. FOIA Request at 1;
Def.’s Statement of Material Facts Not in Genuine Dispute (“Def.’s SMF”) ¶ 1, ECF No. 19-2;
Pl.’s Statement of Material Facts (“Pl.’s SMF”) ¶ 1, ECF No. 20-3. Broadly speaking, the ten-
part Request sought records concerning EPA’s policies, practices, and procedures related to
transparency, personnel, and expenses since the departure of former EPA Administrator Scott
Pruitt on July 5, 2018; investigations of former Administrator Pruitt by EPA’s Office of
Investigator General (“OIG”); then-Administrator Andrew Wheeler’s calendar entries and
calendar attachments since July 5, 2018; EPA’s policies, practices, and procedures for processing
FOIA requests; EPA’s processing of a separate FOIA request submitted in February 2017 by
plaintiff (“2017 Request”) that is currently the subject of litigation in the Northern District of
California; and EPA’s procedures for engaging with the media. FOIA Request at 1–4; Def.’s
SMF ¶ 1; Pl.’s SMF ¶ 2; Decl. of Elizabeth White (“White Decl.”) ¶ 3, ECF No. 19-3; Decl. of
Stuart Wilcox (“Wilcox Decl.”) ¶ 3, ECF No. 20-4.
Three features of the FOIA Request underlie the dispute in this litigation. First, the
opening sentence of the FOIA Request frames the request as calling for “all documents
constituting, memorializing, explaining or commenting upon” the specific topics enumerated in
2
each of its ten parts. FOIA Request at 1. Second, with the exception of documents responsive to
its request, in Part 10, for records related to plaintiff’s earlier 2017 Request, the FOIA Request
sought only documents created by EPA “since July 5, 2018,” the date on which Administrator
Wheeler took office, id. at 1; see also id. at 1–3, and, in Part 6, specified that plaintiff sought
“[a]ll documents created by EPA constituting or memorializing Acting Administrator Andrew
Wheeler’s full calendar, meeting schedule, and notes from meetings from July 5, 2018 to the
present,” id. at 3 (emphasis added). Third, the Request, in Part 8, sought “[a]ll documents
created by EPA since July 5, 2018 constituting or memorializing any instructions, directive, plan,
policy, practice, or memorandum to EPA staff concerning how to review and/or respond to
Freedom of Information Act (‘FOIA’) requests.” Id. at 3 (emphasis added).
B. Processing of the Request and Procedural History
On August 30, 2018, the same day plaintiff submitted its request, EPA’s National FOIA
Office assigned the FOIA Request to the Office of Executive Secretariat (“OEX”), Office of the
Administrator for processing. White Decl. ¶ 4. Part 7 of the FOIA Request, seeking “[a]ll
documents created by EPA since July 5, 2018 constituting, memorializing, describing, or
commenting upon the EPA Inspector General’s Office’s investigation of former Administrator
Pruitt,” FOIA Request at 3, was assigned to OIG, which “conducts its own FOIA search efforts,”
White Decl. ¶ 15. Nearly three months later, an OEX attorney emailed plaintiff’s counsel,
indicating that EPA was “working on fulfilling [plaintiff’s] request,” but “ha[d] received a very
high volume of FOIA’s, and consequently, we are doing our best to respond to each as quickly as
possible.” Wilcox Decl., Ex. 2, Email from Christopher Yarbrough, Att’y-Advisor, OEX, EPA,
to Heather Kryczka, Env’tl Advocs. (Dec. 11, 2018, 10:46 AM), ECF No. 20-6; see also Pl.’s
SMF ¶ 5; Def.’s SMF ¶ 2; Def.’s Resp. Pl.’s Statement of Material Facts as to Which There Is
No Genuine Issue (“Def.’s Resp. SMF”) ¶ 5, ECF No. 23-1; White Decl. ¶ 5.
3
Nearly seven months after submitting the FOIA Request, in March 2019, plaintiff, still
having received no determination, estimated completion date, or responsive records, emailed the
OEX attorney again and stated that plaintiff “plan[ned] to file a lawsuit . . . in one week unless
[the parties] can quickly resolve this dispute.” Wilcox Decl., Ex. 3, Email from Stuart Wilcox,
Env’tl Advocs., to Christopher Yarbrough, Att’y-Advisor, OEX, EPA (Mar. 13, 2019, 4:11 PM),
ECF No. 20-7; see also Pl.’s SMF ¶ 6; Def.’s Resp. SMF ¶ 6. Two days later, the OEX attorney
provided plaintiff with an initial production of records, which consisted of former Administrator
Wheeler’s calendars from July 5, 2018 to August 31, 2018, with redacted material withheld as
exempt from disclosure under 5 U.S.C. §§ 552(b)(5), (b)(6), (b)(7)(C), and (b)(7)(F). Def.’s
SMF ¶ 3; Pl.’s SMF ¶ 7; Def.’s Resp. SMF ¶ 7; White Decl. ¶ 6; Wilcox Decl. ¶ 8. The attorney
also requested that the parties confer as to the status and scope of the FOIA Request. Pl.’s SMF
¶ 7; Def.’s Resp. SMF ¶ 7; Wilcox Decl., Ex. 4, Email from Christopher Yarbrough, Att’y-
Advisor, OEX, EPA, to Stuart Wilcox, Env’tl Advocs. (Mar. 15, 2019, 10:02 AM), ECF No. 20-
8; White Decl. ¶ 6. Plaintiff responded on the same day, “requesting that EPA be ready to
discuss the scope of the FOIA request substantively, to agree to a production schedule, to
provide an estimated completion date, and to provide support for the redactions it had made thus
far.” Pl.’s SMF ¶ 8; see also Def.’s Resp. SMF ¶ 8; Wilcox Decl., Ex. 5, Email from Stuart
Wilcox, Env’tl Advocs., to Christopher Yarbrough, Att’y-Advisor, OEX, EPA (Mar. 15, 2019,
5:15 PM), ECF No. 20-9. Around this time, the Director of OEX “began reaching out to subject
matter experts in some of the relevant program offices to begin searching for potentially
responsive non-calendar records.” White Decl. ¶ 6.
Shortly thereafter, the OEX attorney provided plaintiff with a detailed status update as to
each of the ten parts of the FOIA Request and responded to some but not all of the issues raised
4
by plaintiff in its March 2019 email. White Decl., Ex. E, Email from Christopher Yarbrough,
Att’y-Advisor, OEX, EPA, to Stuart Wilcox, Env’tl Advocs. (Mar. 21, 2019, 7:16 PM), ECF No.
19-9; Wilcox Decl., Ex. 9, Email from Christopher Yarbrough, Att’y-Advisor, OEX, EPA, to
Stuart Wilcox, Env’tl Advocs. (Mar. 21, 2019, 5:16 PM), ECF No. 20-13; Def.’s SMF ¶ 4; Pl.’s
SMF ¶ 9; Def.’s Resp. SMF ¶ 9; White Decl. ¶ 8; Wilcox Decl. ¶ 12. The parties continued to
confer by email and phone, resulting in the production of three additional calendar records, with
redactions, under 5 U.S.C. §§ 552(b)(5), (b)(6), (b)(7)(C), and (b)(7)(F), and two non-calendar
records. Pl.’s SMF ¶ 10; Def.’s Resp. SMF ¶ 10; Def.’s SMF ¶¶ 5–6; Wilcox Decl. ¶¶ 13–20;
White Decl. ¶¶ 8–12.
Throughout this exchange, plaintiff continued to express concerns about the status of
EPA’s processing of the FOIA Request, EPA’s withholdings, and the lack of a firm production
schedule. Pl.’s SMF ¶¶ 11–12; Def.’s Resp. SMF ¶¶ 11–12; White Decl. ¶ 11; Wilcox Decl.
¶¶ 13–20. Consequently, plaintiff informed EPA that it did not believe further informal
negotiations would be helpful “without the backstop of court supervision,” but would be willing
“to continue negotiating with [EPA] in the context of a filed case.” Wilcox Decl., Ex. 16, Email
from Stuart Wilcox, Env’tl Advocs., to Christopher Yarbrough, Att’y-Advisor, OEX, EPA (Apr.
5, 2019, 10:21 AM), ECF No. 20-20; see also Pl.’s SMF ¶ 13; Def.’s Resp. SMF ¶ 13. Three
days later, on April 8, 2019, plaintiff initiated the instant suit. Compl. Two months later, the
Court directed EPA to “produce to Plaintiff an interim production of non-exempt, responsive
records” by July 15, 2019, and the parties to “propos[e] a schedule . . . for a final determination,
production schedule, and dispositive motions” the same day. Min. Order (June 7, 2019) (internal
quotation marks omitted).
5
Two weeks before the court-ordered deadline to make an interim production, on June 26,
2019, EPA’s Office of General Counsel (“OGC”) undertook its first search, based on Boolean
search terms, for records responsive to all parts of the FOIA Request except Parts 7 and 8, which
had been assigned to OIG and OEX, respectively. White Decl. ¶ 14. As reflected in the parties’
Joint Status Report, see Joint Status Report (July 15, 2019) ¶ 3, ECF No. 12, EPA notified
plaintiff that OGC had completed its search and identified more than 212,000 potentially
responsive records. Def.’s SMF ¶ 8; Pl.’s SMF ¶ 16; Def.’s Resp. SMF ¶ 16; White Decl. ¶ 17;
Wilcox Decl. ¶ 25. In addition, EPA indicated that the agency had capacity to process
approximately 500 records per month, meaning that processing of the FOIA Request would be
completed in thirty-six months. Def.’s SMF ¶¶ 8–9; Pl.’s SMF ¶ 16; Def.’s Resp. SMF ¶ 16;
White Decl. ¶ 17; Wilcox Decl. ¶ 25.
In an effort to expedite processing, plaintiff proposed an alternative search strategy, under
which plaintiff would “provide further guidance on the records [it is] looking for and that this
guidance be given to management-level staff and/or subject matter experts who will know
whether responsive records exist and/or will know who would have that information.” Wilcox
Decl., Ex. 19, Attach. to Email from Stuart Wilcox, Env’tl Advocs., to Derek Hammond,
Assistant U.S. Att’y (“AUSA”), U.S. Att’y’s Off., D.D.C. (“USAO”) (Aug. 8, 2019, 2:30 PM)
(“Clarification Letter”) at 3, ECF No. 20-23; see also Def.’s SMF ¶ 10; Pl.’s SMF ¶ 17; Def.’s
Resp. SMF ¶ 17; White Decl. ¶ 18; Wilcox Decl. ¶ 26. Plaintiff suggested that this search be
completed within one month and all responsive records be produced within six months.
Clarification Letter at 3. The parties agreed to adopt plaintiff’s proposed approach, as
memorialized in the parties’ next status report submitted to the Court. See Def.’s SMF ¶ 10;
Pl.’s SMF ¶ 18; Def.’s Resp. SMF ¶ 18; Joint Status Report (Aug. 14, 2019) (“Aug. 2019 JSR”)
6
¶ 4, ECF No. 13. At the parties’ suggestion, EPA was allowed several months to complete this
process. See Aug. 2019 JSR ¶¶ 5–6; Min. Order (Aug. 15, 2019).
During this period of continued negotiations between the parties, plaintiff clarified
portions of the FOIA Request. Of particular relevance, plaintiff explained that the FOIA
Request’s Part 8, seeking “[a]ll documents created by EPA since July 5, 2018 constituting or
memorializing any instructions, directive, plan, policy, practice, or memorandum to EPA staff
concerning how to review and/or respond to Freedom of Information Act (‘FOIA’) requests,”
FOIA Request at 3, “would include any draft and/or final EPA regulations implementing FOIA
and any records related thereto,” Clarification Letter at 6 (emphasis omitted); see also Wilcox
Decl., Ex. 20, Email from Stuart Wilcox, Env’tl Advocs., to Derek Hammond, AUSA, USAO
(Aug. 14, 2019, 10:26 AM) (“Clarification Email”), ECF No. 20-24 (plaintiff reiterating that Part
8 encompassed draft materials because “[u]npublished internal drafts would of course
necessarily be circulated to and/or written by EPA staff”); White Decl., Ex. K, Email from Derek
Hammond, AUSA, USAO, to Peter Bermes & Brandon Levine, Att’y-Advisors, OGC, EPA
(Aug. 14, 2019, 11:31 AM), ECF No. 19-15. EPA continued to make interim productions of
responsive records to plaintiff, with 38 pages produced in July 2019, White Decl. ¶ 16; Wilcox
Decl. ¶ 24, and six pages in August 2019, White Decl. ¶ 20; Wilcox Decl. ¶ 27.
EPA also “conducted searches across relevant program offices for potentially responsive
records using the search method proposed by” plaintiff. White Decl. ¶ 21. According to EPA’s
Director of OEX, “the [a]gency consulted with staff in the Office of Public Affairs, the Office of
the Chief Financial Officer, the Office of Mission Support, the National FOIA Office, [and] the
Office of Enforcement and Compliance Assurance,” among other units, and “[s]ubject matter
experts reviewed the [FOIA Request] language and searched for responsive records.” Id. As a
7
result of these efforts, between November 2019 and March 2020, EPA provided three additional
productions of responsive records to plaintiff, consisting of 241 pages, 24 pages, and 38 pages,
respectively, along with, in the final production, a link to a public collection of Administrator
Wheeler’s calendar records and an index of records. White Decl. ¶¶ 22–23; Def.’s SMF ¶ 11;
Pl.’s SMF ¶ 19; Def.’s Resp. SMF ¶ 19; White Decl., Ex. L, Letter from Peter Bermes, Att’y-
Advisor, OGC, EPA, to Stuart Wilcox, Env’tl Advocs. (Mar. 25, 2020), ECF No. 19-16.
The March 2020 production was intended to be EPA’s last production of responsive
records. White Decl. ¶ 23; Def.’s SMF ¶ 11. Upon review of the records provided by EPA,
however, plaintiff raised concerns about EPA’s redactions and missing responsive documents in
the form of attachments to former Administrator Wheeler’s calendar entries. See White Decl.,
Ex. M, Letter from Stuart Wilcox, Env’tl Advocs., to Derek Hammond, AUSA, USAO (Apr. 23,
2020), ECF No. 19-17; id., Ex. O, Letter from Stuart Wilcox, Env’tl Advocs., to Derek
Hammond, AUSA, USAO (June 18, 2020), ECF No. 19-19; Def.’s SMF ¶ 12; Pl.’s SMF ¶ 20.
Plaintiff also indicated in the parties’ next status report that it “would like to set an expeditious
briefing schedule” as “a useful judicial backstop” against continued delay in addressing its
unresolved concerns. Joint Status Report (Apr. 27, 2020) ¶ 5, ECF No. 14. A schedule for
dispositive motions was accordingly set, along with a June 11, 2020 deadline for the parties to
submit a final Joint Status Report indicating whether they would be able to resolve plaintiffs’
concerns without motions practice. Min. Order (Apr. 30, 2020).
The day before the June 11, 2020 deadline, EPA produced some previously withheld
materials and attachment records requested by plaintiff, and indicated that a supplement search
for calendar attachments would be conducted. White Decl., Ex. N, Letter from Peter Bermes,
Att’y-Advisor, OGC, EPA, to Stuart Wilcox, Env’tl Advocs. (June 10, 2020), ECF No. 19-18;
8
Def.’s SMF ¶ 13; White Decl. ¶ 25. This supplemental search for attachments to Administrator
Wheeler’s calendar “returned over 200 potentially responsive records,” White Decl. ¶ 27, and a
subsequent production of additional records, including “updated versions of Administrator
Wheeler’s calendar with some prior redactions removed and . . . the missing attachments to the
Administrator’s calendar,” was made, Def.’s SMF ¶ 14; see also Pl.’s SMF ¶ 20; Wilcox Decl.
¶ 33; White Decl., Ex. P, Letter from Peter Bermes, Att’y-Advisor, OGC, EPA, to Stuart Wilcox,
Env’tl Advocs. (July 10, 2020), ECF No. 19-20. The parties’ last joint status report reflected
receipt of the June 10, 2020 production and indicated that summary judgment briefing would
proceed unless the parties were able “to resolve issues associated with EPA’s production of
records” in the interim. Joint Status Report (June 11, 2020) ¶ 5, ECF No. 15.
During continuing conferral about areas of disagreement, Def.’s SMF ¶¶ 15–16; Pl.’s
SMF ¶ 20; White Decl. ¶ 30; Wilcox Decl. ¶¶ 31, 34–36, EPA expressed its position that the
FOIA Request “explicitly excluded calendar records pre-dating July 5, 2018 from its scope” and
that, consequently, such records were not responsive to the FOIA Request and would not be
produced, White Decl., Ex. S, Letter from Peter Bermes, Att’y-Advisor, OGC, EPA, to Stuart
Wilcox, Env’tl Advocs. (Aug. 11, 2020) at 1, ECF No. 19-23; see also id., Ex. R, Letter from
Peter Bermes, Att’y-Advisor, OGC, EPA, to Stuart Wilcox, Env’tl Advocs. (Aug. 3, 2020) at 1,
ECF No. 19-22; Def.’s SMF ¶ 16; White Decl. ¶ 30. As a result of the parties’ communications,
EPA made a supplemental production in August 2020, consisting of portions of Administrator
Wheeler’s calendar and ten attachments to calendar entries, all with revised redactions. White
Decl. ¶ 31; Def.’s SMF ¶ 17; Pl.’s SMF ¶ 20; Wilcox Decl. ¶ 36; White Decl., Ex. T, Letter from
Brandon A. Levine, Att’y-Advisor, OGC, EPA, to Stuart Wilcox, Env’tl Advocs. (Aug. 13,
2020), ECF No. 19-24. A few days later, on August 17, 2020, the same day EPA filed its motion
9
for summary judgment, see Def.’s Mot., the agency made a further production of records, Pl.’s
SMF ¶ 21; Def.’s Resp. SMF ¶ 21; Wilcox Decl. ¶ 37; White Decl. ¶ 32, which was
supplemented, on September 21, 2020, with production of one additional responsive record,
which had been inadvertently omitted from the earlier August 2020 production, Suppl. Decl. of
Elizabeth White (“Suppl. White Decl.”) ¶ 2, ECF No. 23-3.
In total, EPA made thirteen productions of records to plaintiff, three productions issued
prior to litigation and ten productions issued between the filing of the Complaint, on April 8,
2019, and its final production, on September 21, 2020. Pl.’s Statement of Genuine Issues ¶ 1,
ECF No. 21-1; Wilcox Decl. ¶¶ 8, 14, 16, 24, 27–28, 30, 33, 36–37; White Decl. ¶¶ 6, 10, 12, 16,
20, 22–23, 25, 28, 31–32; Suppl. White Decl. ¶ 2. Simultaneous with its Motion for Summary
Judgment, on August 17, 2020, EPA produced an index, pursuant to Vaughn v. Rosen, 484 F.2d
820 (D.C. Cir. 1973), describing the documents withheld, either in full or in part, from its
productions, and relying on FOIA Exemptions 5, 6, 7(C), 7(E), and 7(F) as the basis for the
redactions and withholdings. Def.’s Mot., Attach., EcoRights v. EPA, Civ. A. No. 1:19-CV-
00980 (D.D.C.) Vaughn Index (“Vaughn Index”), ECF No. 19-4.2 The redactions and
withholdings are further explained in two declarations from Elizabeth White, the Director of
OEX. See White Decl.; Suppl. White Decl.
EPA “is no longer asserting Exemption 7(F)” with respect to any of the records included
in its Vaughn Index, Def.’s Mem. Supp. Mot. Summ. J. (“Def.’s Mem.”) at 3 n.1, ECF No. 19-1,
and as a result of further narrowing by the parties during the pendency of the instant cross-
2
“A Vaughn index describes the documents withheld or redacted [by the agency] and the FOIA exemptions
invoked, and explains why each exemption applies.” Prison Legal News v. Samuels, 787 F.3d 1142, 1145 n.1 (D.C.
Cir. 2015). Each of the calendar attachments described in EPA’s Vaughn Index and declarations has been assigned
a Bates number that begins with the identical sequence ED_004712_000, followed by five digits unique to the
particular document. For simplicity, the Court refers to such records only by the five unique digits.
10
motions, a number of redactions and withholdings under Exemptions 5, 6, 7(C), and 7(E)
initially disputed are no longer at issue.3 In the end, the parties dispute the adequacy of EPA’s
search, EPA’s withholdings due to the agency’s interpretation of the scope of the FOIA Request
and invocation of Exemptions 5, 6, 7(C), and 7(E), and EPA’s redactions from four responsive
records on segregability and foreseeable harm grounds.4
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, “‘[a] party is entitled to summary judgment
only if there is no genuine issue of material fact and judgment in the movant's favor is proper as
a matter of law.’” Soundboard Ass’n v. FTC, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (quoting
Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006));
see also Fed. R. Civ. P. 56(a). “In FOIA cases, ‘summary judgment may be granted on the basis
of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory
statements, and if they are not called into question by contradictory evidence in the record or by
evidence of bad faith.’” Aguiar v. DEA, 865 F.3d 730, 734–35 (D.C. Cir. 2017) (quoting
3
These now-uncontested issues include: (1) EPA’s withholding of records generated in the process of
converting Administrator Wheeler’s Outlook calendar records to PDFs, Wilcox Decl. ¶ 44; Def.’s Reply Supp. Mot.
Summ. J. & Opp’n Pl.’s Cross-Mot. Summ. J. (“Def.’s Reply”) at 2 n.1, ECF No. 23; Pl.’s Reply Supp. Cross-Mot.
Summ. J. (“Pl.’s Reply”) at 21 n.18, ECF No. 25; (2) EPA’s redaction of the names and phone numbers of an
individual who sought a job reference from Administrator Wheeler and an unsuccessful applicant for a position at
EPA, Wilcox Decl. ¶ 42; and (3) EPA’s withholdings from records outlining the agency’s response to various
natural disasters and plans for organizational improvement, id.; see also Vaughn Index, among others.
4
Plaintiff challenges on segregability and foreseeable harm grounds only EPA’s redaction of portions of
three records: (1) a calendar entry, dated July 5, 2018, for a meeting invitation from which EPA withheld
“descriptions of documents” attached to the invitation, detailing deliberations “regarding the creation of a
framework for managing EPA’s laboratories,” Vaughn Index at 6; (2) a calendar attachment consisting of a briefing
document “developed to provide staff recommendations and opinions concerning how to make decisions concerning
ozone designations for counties in the San Antonio area,” id. at 17 (referring to the document by Bates No. 17566);
and (3) a calendar attachment consisting of a two-page internal briefing document “provided . . . to the
Administrator, and other EPA senior leaders, to review in order to facilitate decision-making on certain citizen
science-related issues and plans,” id. at 18 (referring to the document by Bates No. 17637). See Wilcox Decl. ¶ 42.
Plaintiff challenges EPA’s withholding of a fourth record, described as “a four-page draft internal document” which
“was drafted . . . as a proposed response to [the Office of Water]’s request that [the Office of Research and
Development] provide support to OW on certain aspects of Lead and Copper Rule analysis,” Vaughn Index at 29,
only with respect to segregability, see Wilcox Decl. ¶ 42.
11
Judicial Watch, Inc. v. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013)); see also Students
Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (“[A]n agency is entitled
to summary judgment if no material facts are in dispute and if it demonstrates ‘that each
document that falls within the class requested either has been produced . . . or is wholly exempt
from the Act’s inspection requirements.’” (omission in original) (quoting Goland v. CIA, 607
F.2d 339, 352 (D.C. Cir. 1978))). Most FOIA cases “can be resolved on summary judgment.”
Brayton v. Off. of U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).
FOIA was enacted “to promote the ‘broad disclosure of Government records’ by
generally requiring federal agencies to make their records available to the public on request.”
DiBacco v. Army (“DiBacco I”), 795 F.3d 178, 183 (D.C. Cir. 2015) (quoting Dep’t of Justice v.
Julian, 486 U.S. 1, 8 (1988)). Agencies are therefore statutorily mandated to “make . . records
promptly available to any person” who submits a request that “reasonably describe such records”
and “is made in accordance with [the agency’s] published rules.” 5 U.S.C. § 552(a)(3)(A). To
balance the public’s interest in governmental transparency and “‘legitimate governmental and
private interests [that] could be harmed by release of certain types of information,’” Judicial
Watch, Inc. v. Dep’t of Def., 913 F.3d 1106, 1108 (D.C. Cir. 2019) (quoting FBI v. Abramson,
456 U.S. 615, 621 (1982)), FOIA contains nine exemptions, set forth in 5 U.S.C. § 552(b), which
“are ‘explicitly made exclusive’ and must be ‘narrowly construed,’” Milner v. Dep’t of Navy,
562 U.S. 562, 565 (2011) (first quoting EPA v. Mink, 410 U.S. 73, 79 (1979); and then quoting
Abramson, 456 U.S. at 630); see also Murphy v. Exec. Off. for U.S. Att’ys, 789 F.3d 204, 206
(D.C. Cir. 2015); Citizens for Resp. & Ethics in Wash. v. Dep’t of Justice (“CREW I”), 746 F.3d
1082, 1088 (D.C. Cir. 2014). “[T]hese limited exemptions do not obscure the basic policy that
12
disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of Air Force v. Rose, 425
U.S. 352, 361 (1976).
FOIA authorizes federal courts “to enjoin the agency from withholding agency records
and to order the production of any agency records improperly withheld from the complainant.” 5
U.S.C. § 552(a)(4)(B). When an agency invokes an exemption to disclosure, district courts must
“determine de novo whether non-disclosure was permissible.” Elec. Priv. Info. Ctr. v. Dep’t of
Homeland Sec. (“EPIC”), 777 F.3d 518, 522 (D.C. Cir. 2015). The statute “places the burden
‘on the agency to sustain its action,’ and the agency therefore bears the burden of proving that it
has not ‘improperly’ withheld the requested records.” Citizens for Resp. & Ethics in Wash. v.
Dep’t of Justice, 922 F.3d 480, 487 (D.C. Cir. 2019) (first quoting 5 U.S.C. § 552(a)(4)(B); and
then quoting Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989)); see also Dep’t of
Justice v. Landano, 508 U.S. 165, 171 (1993) (“The Government bears the burden of
establishing that the exemption applies.”); DiBacco v. Dep’t of Army (“DiBacco II”), 926 F.3d
827, 834 (D.C. Cir. 2019) (“‘An agency withholding responsive documents from a FOIA release
bears the burden of proving the applicability of clamed exemptions,’ typically through affidavit
or declaration.” (quoting DiBacco I, 795 F.3d at 195)). This burden does not shift even when the
requester files a cross-motion for summary judgment because the agency ultimately “bears the
burden to establish the applicability of a claimed exemption to any records or portions of records
it seeks to withhold,” Am. Immigr. Lawyers Ass’n v. Exec. Off. for Immigr. Rev. (“AILA”), 830
F.3d 667, 673 (D.C. Cir. 2016), while the “burden upon the requester is merely ‘to establish the
absence of material factual issues before a summary disposition of the case could permissibly
occur,’” Pub. Citizen Health Rsch. Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999) (quoting
Nat’l Ass’n of Gov’t Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)).
13
III. DISCUSSION
The remaining disputes between the parties center on five categories of records withheld
by EPA: (1) records that EPA contends fall outside the scope of the FOIA Request, consisting of
calendar entries (with attachments) dated before July 5, 2018, and drafts of an internal
memorandum dated November 16, 2018; (2) calendar attachments and notes to calendar entries,
consisting of talking points, briefing documents, and meeting agendas, from which certain
information was withheld, pursuant to Exemption 5’s deliberative process privilege; (3) calendar
entries from which information about restaurants frequented by former Administrator Wheeler or
his travel arrangements was withheld, pursuant to Exemption 6; (4) calendar entries from which
the names and email addresses of Personnel Security Detail (“PSD”) agents assigned to protect
former Administrator Wheeler were withheld, pursuant to Exemptions 6 and 7(C); and (5)
calendar entries for meetings held at the White House, from which specific room locations were
withheld, pursuant to Exemption 7(E). Additionally, plaintiff challenges EPA’s segregability
and foreseeable harm analyses with respect to its withholdings. These topics are addressed
seriatim.
A. Adequacy of EPA’s Search
Count III of the Amended Complaint challenges the adequacy of EPA’s search for
records responsive to the FOIA Request. Am. Compl. ¶¶ 63–65. EPA defends the adequacy of
its search as reasonably calculated to uncover all relevant documents within the scope of the
Request, Def.’s Mem. at 7–11, and contends that two categories of records are beyond the scope
of the FOIA Request, namely: forty-two attachments to calendar entries, which were created
before July 5, 2018, and thus withheld in full or in part, and drafts of an internal memorandum,
dated November 16, 2018, on EPA’s policies concerning responses to FOIA requests for which
EPA did not search, White Decl. ¶ 39; Suppl. White Decl. ¶ 3; see also Def.’s Mem. at 4–9;
14
Def.’s Reply at 1–6. Plaintiff contends that, as to the calendar attachments, EPA “has effectively
conceded that these disputed records are improperly withheld” through its failure to proffer any
justification for the withholdings, Pl.’s Mem. P. & A. Supp. Cross-Mot. Summ. J. & Opp’n
Def.’s Mot. Summ. J. (“Pl.’s Opp’n”) at 7, ECF No. 20-1, and that, as to the draft memoranda,
EPA erred in construing the FOIA Request to exclude drafts and, as a result, improperly
withheld them, id. at 8–12. The legal standard for adequacy of a FOIA search is reviewed before
turning to an analysis of EPA’s interpretation of the FOIA Request and subsequent search.
1. Applicable Legal Standard
The plain language of FOIA makes clear that the agency’s obligation to search for
responsive records is triggered when the records sought are “reasonably describe[d].” 5 U.S.C.
§ 552(a)(3)(A). Thus, assessment of the adequacy of an agency’s search for responsive records
“begin[s] . . . by ‘first ascertain[ing] the scope of the request itself’” before evaluating the
agency’s efforts to identify and collect records within that scope. Clemente v. FBI, 867 F.3d
111, 116 (D.C. Cir. 2017) (second alteration in original) (quoting Nation Mag., Wash. Bureau v.
U.S. Customs Serv. (“Nation Mag.”), 71 F.3d 885, 889 (D.C. Cir. 1995)). Courts evaluate both
the scope of the FOIA request and the adequacy of the agency’s search for responsive records de
novo. 5 U.S.C. § 552(a)(4)(B); see also, e.g., DiBacco I, 795 F.3d at 188 (adequacy of search
reviewed de novo); Dillon v. Dep’t of Justice, 444 F. Supp. 3d 67, 84 (D.D.C. 2020) (scope of
request reviewed de novo); Conservation Force v. Ashe, 979 F. Supp. 2d 90, 97 (D.D.C. 2013)
(same).
In defining the description of the records sought and the scope of the concomitant search,
“an agency ‘has a duty to construe a FOIA request liberally,’” Inst. for Justice v. IRS, 941 F.3d
567, 572 (D.C. Cir. 2019) (quoting Nation Mag., 71 F.3d at 890), and to “read FOIA requests ‘as
drafted,’” Machado Amadis v. Dep’t of State, 971 F.3d 364, 370 (D.C. Cir. 2020) (quoting Miller
15
v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984)); see also People for the Ethical Treatment of
Animals v. Nat’l Insts. of Health, 745 F.3d 535, 540 (D.C. Cir. 2014). At the same time,
“agencies are not obligated to search ‘beyond the four corners of the request,’” as defined by the
requester’s description of the records sought, “‘nor are they required to divine a requester’s
intent.’” Poitras v. Dep’t of Homeland Sec., 303 F. Supp. 3d 136, 160 (D.D.C. 2018) (quoting
Am. Chemistry Council, Inc. v. Dep’t of Health & Hum. Servs., 922 F. Supp. 2d 56, 62 (D.D.C.
2013)). Moreover, these duties do not obviate the requester’s statutory burden to “‘reasonably
describe[]’ the records sought.” Inst. for Justice, 941 F.3d at 572 (quoting 5 U.S.C.
§ 552(a)(3)(A)).
For records that fall within the scope of a FOIA request, an agency complies with its
FOIA search obligations by “simply . . . ‘conduct[ing] a search reasonably calculated to uncover
all relevant documents.” In re Clinton, 973 F.3d 106, 116 (D.C. Cir. 2020) (emphasis omitted)
(quoting Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994)). Thus, “a district court
is not tasked with uncovering ‘whether there might exist any other documents possibly
responsive to the request,’ but instead, asks only whether ‘the search for [the requested]
documents was adequate.’” Id. (emphasis in original) (quoting Weisberg v. Dep’t of Justice, 745
F.2d 1476, 1485 (D.C. Cir. 1984)); see also Clemente, 867 F.3d at 117 (describing an agency’s
burden to “‘show that it made a good faith effort to conduct a search for the requested records,
using methods which can be reasonably expected to produce the information requested’”
(quoting Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990))). At summary judgment,
the agency “can satisfy this burden through 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.’” Machado Amadis, 971 F.3d at 368
16
(quoting Oglesby, 920 F.2d at 68). Courts “accord such affidavits ‘a presumption of good faith,
which cannot be rebutted by purely speculative claims about the existence and discoverability of
other documents.’” Id. (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.
1991)); see also Reps. Comm. for Freedom of Press v. FBI, 877 F.3d 399, 402 (D.C. Cir. 2017).
The requester, then, bears the burden of overcoming this presumption of good faith by “rais[ing]
substantial doubt, particularly in view of well defined requests and positive indications of
overlooked materials” that the search was adequate. DiBacco I, 795 F.3d at 188 (internal
quotation marks and citation omitted); see also Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir.
2013) (upholding agency’s search as adequate when requester “ha[d] not presented sufficient
evidence to rebut [the] presumption” of good faith).
Plaintiff contends that EPA too narrowly construed the scope of the FOIA Request with
respect to two categories of records that EPA withheld, in whole or in part, without explanation.
Pl.’s Opp’n at 7–12; Pl.’s Reply at 21–23. This allegation, if true, would necessarily render
EPA’s search inadequate. EPA’s interpretation of the FOIA Request to exclude these records,
and the resulting adequacy of its search, are addressed in turn.
2. Pre–July 5, 2018 Calendar Entry Records
The first category of records claimed by EPA to fall outside the FOIA Request consists of
forty-two attachments to Administrator Wheeler’s calendar entries withheld in full or in part, for
which EPA offered no explanation in its Vaughn Index or initial declaration. See Vaughn Index;
Wilcox Decl. ¶¶ 39–41; id., Ex. 32, Compiled Calendar Attachment Records Produced by EPA
with Redactions and Not Included in Vaughn Index, ECF No. 20-36; id., Ex. 33, Bates No.
17738 (Calendar Attachment Produced by EPA with Redactions), ECF No. 20-37; id., Ex. 34,
Bates No. 18131 (Calendar Attachment Produced by EPA with Redactions), ECF No. 20-38. All
of these attachments were “associated with calendar entries that pre-date July 5, 2018,” with the
17
calendar entry dates linked to the disputed attachments ranging from May 1, 2018 to July 2,
2018. Suppl. White Decl. ¶ 3 (providing Bates numbers and dates for the calendar entries to
which each of the contested document was attached).5
EPA contends that, because these attachments were attached to calendar entries predating
July 5, 2018, they are beyond the scope of Part 6 of the FOIA Request, which limited its request
for records associated with former Administrator Wheeler’s calendar to those documents
“constituting or memorializing” the Administrator’s calendar “from July 5, 2018 to the present,”
FOIA Request at 3, and the agency therefore was not obligated either to produce them or to
explain any withholdings or redactions. See Suppl. White Decl. ¶ 3; Def.’s Reply at 1–2. In
contrast, the agency produced responsive, non-exempt records attached to calendar entries with
dates of July 5, 2018 or later. See, e.g., White Decl. ¶¶ 23, 31–32. Plaintiff counters that EPA’s
failure to properly justify its withholdings under an exemption means that the agency “has failed
to meet its burden to withhold this information . . . and must produce these records.” Pl.’s Opp’n
at 7.
As EPA correctly points out, by requesting calendar records “from July 5, 2018 to the
present,” FOIA Request at 3, Part 6 of the FOIA Request “specifically sought Administrator
Wheeler’s calendar records since July 5, 2018, the day he became the Acting EPA
Administrator,” Def.’s Reply at 2. The plain language of the FOIA Request thus unambiguously
states that responsive calendar records are those dated July 5, 2018 or later. Plaintiff does not
propose an alternative interpretation of Part 6 of its Request, arguing instead that it “did not
5
Plaintiff originally challenged EPA’s withholdings from forty-three such calendar attachments. Wilcox
Decl. ¶¶ 39–41. One of the challenged attachments, with Bates No. 04415, post-dates July 5, 2018. Def.’s Reply at
2 n.2. EPA represents that it “had intended to produce [this record] in full,” but it “was inadvertently omitted from
the August 14, 2020 production.” Suppl. White Decl. ¶ 2. The record was “produced in full” to plaintiff on
September 21, 2020 and therefore is no longer at issue. Id.; see also Def.’s Reply at 2 n.2; Pl.’s Reply at 21 n.18.
18
agree to forego challenging [the pre–July 5, 2018 calendar records] at any time during the
conferral process with EPA and EPA has provided no basis on which it can withhold these
records.” Pl.’s Opp’n at 7. This argument misconstrues EPA’s obligations under FOIA.
Otherwise-responsive calendar entries and associated attachments dated before July 5, 2018 are
squarely outside the scope of the FOIA Request and thus EPA is not required either to release
them or to explain its failure to do so. See, e.g., Evans v. Fed. Bureau of Prisons, 951 F.3d 578,
583 (D.C. Cir. 2020) (“Under FOIA, an agency is only obligated to release nonexempt records if
it receives a request that ‘reasonably describes such records,’” that is, if the nonexempt records
fall within the scope of the request. (quoting 5 U.S.C. § 552(a)(3)(A))). Plaintiff’s later
representations concerning these records do not alter the limits imposed by the plain text of its
Request. See, e.g., Am. Oversight v. Dep’t of Justice, 401 F. Supp. 3d 16, 34 (D.D.C. 2019) (“An
agency must liberally construe a FOIA request . . . but it is not obligated to rewrite the request to
ask for more than the requester did.” (internal quotation marks and citations omitted)); Coss v.
Dep’t of Justice, 98 F. Supp. 3d 28, 34 (D.D.C. 2015) (“Although FOIA requires an agency to
produce all records ‘reasonably described,’ a FOIA plaintiff may not expand the scope of his
request once his original request is made.”). EPA thus did not err in interpreting the FOIA
Request to exclude any attachment to a calendar entry predating July 5, 2018.
3. Drafts of the Awareness Notification Memorandum
The second category of withheld records that, in EPA’s view, are not covered by the
FOIA Request consists of drafts of a November 16, 2018 memorandum issued by EPA’s then–
Chief of Staff, titled “Awareness Notification Process for Select Freedom of Information Act
Releases” (the “Awareness Notification Memorandum”). This memorandum sets out EPA’s
policy of providing politically sensitive records sought by FOIA requesters to political
appointees within the agency before releasing them to the public. See Wilcox Decl., Ex. 44,
19
Memorandum from Ryan Jackson, Chief of Staff, EPA, to EPA Staff re Awareness Notification
Process for Select Freedom of Information Act Releases (Nov. 16, 2018) at 1–3, ECF No. 20-48.
EPA produced to plaintiff the final version of the Awareness Notification Memorandum that was
circulated to staff, White Decl. ¶ 38, but did not collect or produce earlier drafts, id. ¶ 39. In
EPA’s view, draft memoranda are not encompassed by Part 8 of the FOIA Request, which
sought “[a]ll documents created by EPA since July 5, 2018 constituting or memorializing any
instructions, directive, plan, policy, practice, or memorandum to EPA staff concerning how to
review and/or respond to Freedom of Information Act (‘FOIA’) requests,” FOIA Request at 3
(emphasis added), because pre-final versions of the Awareness Notification Memorandum “were
not circulated to EPA staff as an instruction, directive, plan, policy, practice or memorandum,”
White Decl. ¶ 39 (emphasis added); see also Def.’s Mem. at 8–9; Def.’s Reply at 3–6.
EPA’s interpretation of the FOIA Request as restricted to documents actually sent as
instructions to agency staff does not cover drafts. Notably, the text of the request itself does not
expressly reference or use the word “draft.” Nonetheless, plaintiff urges a reading of Part 8 of its
Request to encompass drafts, positing that this part of the request was not limited to documents
actually circulated “to EPA staff,” but also covered more broadly “all documents constituting,
memorializing, explaining or commenting upon” the described topic, citing the Request’s first
sentence, which applies this broader language to each of the Request’s ten discrete parts. Pl.’s
Opp’n at 8–10; see also FOIA Request at 1, 3; supra Part I.A.6 Reading the FOIA Request
through this lens, the first sentence’s request for documents “explaining or commenting upon”
the specific topics enumerated in the Request’s ten parts expands Part 8 beyond its text to request
6
Plaintiff did not raise this interpretive argument at any time during the parties’ conferral process, instead
contending that “[u]npublished internal drafts would of course necessarily be circulated to and/or written by EPA
staff” and therefore fell within the plain language of Part 8 standing alone. Clarification Email. Since this
contention is neither raised nor addressed by either party in summary judgment briefing, it is not considered here.
20
not only documents “constituting or memorializing” directions to staff regarding FOIA requests
but also documents “explaining or commenting upon” such directions. Pl.’s Opp’n at 10.
Even adopting plaintiff’s preferred construction, the FOIA Request does not reach far
enough to include in its scope drafts of the documents sought in Part 8. The scope of Part 8’s
request for documents “constituting or memorializing any instructions, directive, plan, policy,
practice, or memorandum to EPA staff” turns on the meaning of the key phrase “to EPA staff.”
That phrase may be construed as referring either to final instructions, directives, plans, policies,
practices, or memoranda actually disseminated to EPA staff, as EPA suggests, or to any such
documents that were intended eventually to be disseminated to EPA staff. The former
construction would exclude drafts; the latter would include them. Without further clues in the
text of Part 8, “to EPA staff” is fairly read either way, and the choice of one interpretation over
the other is a close call. The ordinary use and meaning of the phrase weigh slightly in favor of a
reading that encompasses only documents actually disseminated to EPA staff. Moreover, instead
of relying on a somewhat strained theory of the interaction between the first sentence of the
FOIA Request and the language of Part 8 to obtain drafts of the Awareness Notification
Memorandum, plaintiff could have submitted a FOIA request explicitly seeking draft records,
and remains free to do so. See, e.g., Wallick v. Agric. Mktg. Serv., 281 F. Supp. 3d 56, 70
(D.D.C. 2017) (noting that plaintiff could “submit another FOIA request” to receive documents
found to be outside the scope of the FOIA request at issue in the case).7
7
Even if Part 8 of the FOIA Request did include drafts, plaintiff would not necessarily be entitled to receive
drafts of the Awareness Notification Memorandum. As discussed in more detail infra Part III.B.1, FOIA’s
Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or letters that 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), including
documents that would be shielded from disclosure under the deliberative process privilege, see Judicial Watch, Inc.
v. Dep’t of Def., 847 F.3d 735, 739 (D.C. Cir. 2017). This privilege safeguards “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. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
Although “[d]irectives from decisionmakers [to subordinates] are not covered by the deliberative process privilege,”
21
On balance, then, EPA’s interpretation of Part 8 as requesting only documents actually
circulated to EPA staff narrowly prevails. To the extent that the first sentence of the FOIA
Request in fact expands Part 8 to seek documents “explaining or commenting upon” these
circulated directives, as plaintiff suggests, the broader request would be for records created in
reference to the final, circulated documents that, for example, elaborate, describe, seek to
implement, or otherwise discuss the instructions actually received by EPA staff. Prior drafts of a
disseminated document, by definition, do not serve any of these functions with respect to the
final document and therefore do not explain or comment upon the documents sought in Part 8 of
the Request.
To bolster the argument that the FOIA Request is properly construed to include drafts of
the Awareness Notification Memorandum, plaintiff next asserts that its clarification during the
parties’ conferral process that Part 8 should be understood to “include any draft and/or final EPA
regulations implementing FOIA and any records related thereto,” Clarification Letter at 6
(emphasis omitted), should have eliminated any doubt as to the scope of the Request, see Pl.’s
Mem. at 10–12; Pl.’s Reply at 21–23. As EPA correctly notes, however, “a requester cannot
expand a FOIA request after it is made” through later clarifications. Def.’s Reply at 4 (citing
Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996); Coss, 98 F. Supp. 3d at 34);
see also, e.g., Brown v. Wash. Metro. Area Transit Auth., Civ. A. No. 19-cv-2853 (BAH), 2020
WL 806197, at *11 (D.D.C. Feb. 18, 2020) (finding that a requester’s “subsequent clarification”
Hunton & Williams LLP v. EPA, 346 F. Supp. 3d 61, 79 (D.D.C. 2018), the privilege has been applied to allow
agencies to withhold drafts of final instructions that were eventually distributed to staff that reflect the agency’s
deliberations as to the content of the directives ultimately given, see, e.g., Heartland All. for Hum. Needs & Hum.
Rights v. Immigr. & Customs Enf’t, 406 F. Supp. 3d 90, 121–22 (D.D.C. 2019) (holding intra-agency draft of an
operational plan to be covered by the deliberative process privilege); Soghoian v. Off. of Mgmt. & Budget, 932 F.
Supp. 2d 167, 182 (D.D.C. 2013) (finding a draft of a document outlining agency policy with respect to agreements
with internet service providers exempt from disclosure because the information in the draft constituted “ideas passed
back and forth about what . . . instructions [to staff] ultimately may be”). EPA might therefore successfully invoke
Exemption 5 to withhold drafts of the Awareness Notification Memorandum if such a request is expressly made.
22
of his request “did not require [the agency] to restart the [response] process for his reformulated
request” (internal quotation marks and citation omitted)); Judicial Watch, Inc. v. Dep’t of State,
177 F. Supp. 3d 450, 456 (D.D.C. 2016) (“An agency’s reasonable effort to satisfy a FOIA
request ‘does not entail an obligation to search anew based upon a subsequent clarification.’”
(quoting Kowalczyk, 73 F.3d at 388)). The conclusion that the FOIA Request does not extend to
drafts of FOIA–related instructions circulated to EPA staff means that plaintiff’s subsequent
clarifications do not operate to expand the scope of the Request and, as such, are owed no weight
in the scope analysis. See, e.g., Miller, 730 F.2d at 777 (rejecting effort to expand a FOIA
request that “was not broadly drawn; it made a specific inquiry about specific actions”); Am.
Oversight, 401 F. Supp. 3d at 34 (finding that a request for documents “provided to” an
individual could not fairly be read, even after plaintiff’s clarifications, to encompass “records
that reflected guidance or directives,” such as meeting notes, that were not actually given to the
individual); Wallick, 281 F. Supp. 3d at 66–68 (concluding that plaintiff’s clarifying emails did
not expand his FOIA request, which sought information about a single application, to include
records related to subsequent applications).
In short, EPA properly construed Part 8 of the FOIA Request to exclude drafts of the
Awareness Notification Memorandum. The agency therefore had no obligation to search for, or
to explain its withholding of, such records.
4. Adequacy of EPA’s Search
EPA conducted a search for responsive records predicated on its reasonable construction
of the FOIA Request. Aside from the disputes about the scope of the FOIA Request resolved
above, plaintiff neither raises any specific objection to the adequacy of EPA’s search nor
attempts to rebut the presumption of good faith otherwise owed to the declarations of EPA’s
Director of OEX, see White Decl.; Suppl. White Decl. See DiBacco I, 795 F.3d at 188. The
23
search detailed in those declarations demonstrates beyond material doubt that EPA has
“conduct[ed] a search reasonably calculated to uncover all relevant documents.’” In re Clinton,
973 F.3d at 116 (emphasis, internal quotation marks, and citation omitted). As set forth in detail
above, EPA assigned portions of the FOIA Request to OEX, OIG, and OGC, following agency
guidelines. See supra Part I.B. After a Boolean search by OGC generated approximately
212,000 potentially responsive records, EPA consulted with plaintiff as to the volume of records
and adopted an alternative approach, proposed by plaintiff, under which EPA conducted a search
guided by consultations with agency staff and subject-matter experts. Id. The agency consulted
with its Office of Public Affairs, Office of the Chief Financial Officer, Office of Mission
Support, National FOIA Office, and Office of Enforcement and Compliance Assurance, among
others. Id. EPA and plaintiff regularly communicated throughout this process, and EPA
attempted to address plaintiff’s concerns, either by producing additional records or by explaining
its withholdings. The agency undertook supplemental searches to rectify potential gaps in the
productions identified by plaintiff. Id. In total, EPA made thirteen productions of responsive
records to plaintiff. Id. This process, in which plaintiff was both consulted and involved, was a
reasonable one, targeted at identifying documents responsive to the FOIA Request. As to Count
III, EPA is therefore entitled to summary judgment.
B. Application of FOIA Exemptions
Count II of the Amended Complaint alleges that EPA unlawfully withheld, in full or in
part via redaction, records responsive to plaintiff’s FOIA Request. Am. Compl. ¶¶ 60–62. FOIA
“requires government agencies to make information available upon request, unless the
information is protected by one of” FOIA’s nine exemptions. Judicial Watch, Inc. v. Dep’t of
Def., 847 F.3d 735, 738 (D.C. Cir. 2017). An agency must prove the applicability of claimed
exceptions, and can do so through a Vaughn index, and supporting affidavits or declarations, that
24
“describe[] the justifications for withholding the information with specific detail, demonstrate[]
that the information withheld logically falls within the claimed exemption, and [are] not
contradicted by contrary evidence in the record or by evidence of the agency’s bad faith.”
DiBacco II, 926 F.3d at 834 (internal quotation marks and citation omitted); see also, e.g.,
CREW I, 746 F.3d at 1088; Poitras, 303 F. Supp. 3d at 150 (“An agency may carry its burden of
showing an exemption was properly invoked by submitting sufficiently detailed affidavits or
declarations, a Vaughn index of the withheld documents, or both, to demonstrate that the
government has analyzed carefully any material withheld and provided sufficient information as
to the applicability of an exemption to enable the adversary system to operate.”). “Ultimately, an
agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or
‘plausible.’” Judicial Watch, Inc. v. Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting
ACLU v. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)).
Plaintiff contests EPA’s withholding, in full or in part, pursuant to FOIA Exemptions 5,
6, 7(C), and 7(E), of sixty-one records comprised of forty-nine calendar entries and twelve
calendar attachments. See Vaughn Index at 2, 3, 4, 5, 7, 10, 11, 12, 13, 14, 15, 16, 19, 20, 21, 22,
23. The agency’s withholdings under each exemption are examined in turn.
1. Information Withheld Pursuant to Exemption 5
Plaintiff disputes EPA’s withholdings, pursuant to FOIA Exemption 5, of one calendar
entry, Vaughn Index at 7–8, and twelve documents attached to calendar entries, id. at 10–17, 19–
24. Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or letters
that 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). “‘Among th[e] privileges protected by Exemption 5 is the . . . deliberative
process privilege,’” Judicial Watch, Inc., 847 F.3d at 739 (alteration and omission in original)
(quoting Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257 (D.C. Cir. 1982)); see also Abtew v.
25
Dep’t of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015), which protects government
“‘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 (“Klamath Water Users”), 532 U.S. 1, 8 (2001) (quoting
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)). The deliberative process privilege is
predicated on the theory that “agencies craft better rules when their employees can spell out in
writing the pitfalls as well as the strengths of policy options, coupled with the understanding that
employees would be chilled from such rigorous deliberation if they feared it might become
public,” Judicial Watch, Inc., 847 F.3d at 739, and thus is intended to “protect[] ‘debate and
candid consideration of alternatives within an agency,’ thus improving agency decisionmaking,”
Machado Amadis, 971 F.3d at 371 (quoting Jordan v. Dep’t of Justice, 591 F.2d 753, 772 (D.C.
Cir. 1978) (en banc)); see also Klamath Water Users, 532 U.S. at 8–9 (finding that the
deliberative process privilege “rests on the obvious realization that officials will not
communicate candidly among themselves if each remark is a potential item of discovery and
front page news”).
“To qualify for the deliberative process privilege, an intra-agency memorandum must be
both pre-decisional and deliberative.” Abtew, 808 F.3d at 898 (citing Coastal States Gas Corp.
v. Dep’t of Energy (“Coastal States”), 617 F.2d 854, 866 (D.C. Cir. 1980)); see also Hall &
Assocs. v. EPA, 956 F.3d 621, 624 (D.C. Cir. 2020). “Documents are ‘predecisional’ if they are
‘generated before the adoption of an agency policy,’ and ‘deliberative’ if they ‘reflect[] the give-
and-take of the consultative process.’” Judicial Watch, Inc., 847 F.3d at 739 (alteration in
original) (quoting Pub. Citizen, Inc. v. Off. of Mgmt. & Budget, 598 F.3d 865, 874 (D.C. Cir.
2010)).
26
In showing that withheld records meet this standard, the government must explain, for
each withheld record, at a minimum “(1) ‘what deliberative process is involved,’ (2) ‘the role
played by the documents at issue in the course of that process,’ and (3) ‘the nature of the
decisionmaking authority vested in the office or person issuing the disputed document[s], and the
positions in the chain of command of the parties to the documents.’” Ctr. for Biological
Diversity v. EPA, 279 F. Supp. 3d 121, 147 (D.D.C. 2017) (alteration in original) (first quoting
Senate of P.R. v. Dep’t of Justice, 823 F.2d 574, 585–86 (D.C. Cir. 1987); and then quoting Elec.
Frontier Found. v. Dep’t of Justice, 826 F. Supp. 2d 157, 168 (D.D.C. 2011)). As to the third
requirement, “[t]he D.C. Circuit has acknowledged that ‘[t]he identity of the parties to the
memorandum is important’ because ‘a document from a subordinate to a superior official is more
likely to be predecisional, while a document moving in the opposite direction is more likely to
contain instructions to staff explaining the reasons for a decision already made.’” Trea Senior
Citizens League v. Dep’t of State, 923 F. Supp. 2d 55, 69 (D.D.C. 2013) (second alteration in
original) (quoting Coastal States, 617 F.2d at 868). “[T]he government, not the requester, must
identify the deliberative process to which any record relates.” Ctr. for Investigative Reporting v.
U.S. Customs & Border Prot., 436 F. Supp. 3d 90, 101 (D.D.C. 2019) (citing 100Reporters LLC
v. Dep’t of Justice, 248 F. Supp. 3d 115, 152 (D.D.C. 2017)); see also Senate of P.R., 823 F.2d at
585 (“[T]o approve exemption of a document as predecisional, a court must be able ‘to pinpoint
an agency decision or policy to which the document contributed.’” (quoting Paisley v. CIA, 712
F.2d 686, 698 (D.C. Cir. 1981))).
Pursuant to Exemption 5, plaintiff contests EPA’s withholding, in full or in part, of (1)
three calendar attachments which are “briefing documents prepared to assist the Administrator,
and other relevant EPA senior leaders, with making a particular decision or decisions” within
27
EPA, White Decl. ¶ 55; see Vaughn Index at 10–11, 12–14; (2) one calendar entry and eight
calendar attachments which are “internal briefing material” and “suggestions for discussion
topics and talking points” to prepare former Administrator Wheeler for two meetings with
foreign dignitaries, five phone calls with various elected officials, and an interview with the
Washington Examiner, Def.’s Mem. at 15; see White Decl. ¶¶ 52, 60–62; Vaughn Index at 7, 11–
12, 14–15, 16–17, 19–24; and (3) a calendar attachment of an agenda for an upcoming meeting
of the National Economic Council (“NEC”) and representatives of several government agencies,
White Decl. ¶ 65; Vaughn Index at 15. Each category of records is addressed in turn.
a) Briefing Documents
EPA has asserted the deliberative process privilege to protect three briefing documents
included as attachments to entries on Administrator Wheeler’s calendar. The first briefing
document is described as a one-page agenda presenting “options for resolution of a dispute that
arose under the Federal Facilities Agreement (FFA) that governs the superfund cleanup at the
Edwards Air Force Base South Air Force Research Laboratory,” prepared by EPA staff for
Administrator Wheeler and other senior EPA leaders. White Decl. ¶ 56; see also Vaughn Index
at 10–11 (referring to the document by Bates No. 04639). EPA withheld, pursuant to Exemption
5, sections of the document on “Options for Resolution Discussion” and “Action Items and Path
Forward.” White Decl. ¶ 56; Vaughn Index at 10. The withheld sections “reflect[] options for
resolution and the thoughts of staff related to action items and a path forward on this [FFA]
dispute.” White Decl. ¶ 57; see also Vaughn Index at 10. These options were “generated prior
to arriving at a final decision concerning EPA’s actions with regard to resolution of the dispute.”
White Decl. ¶ 57; see also Vaughn Index at 10. The document as a whole was intended to “brief
the Administrator, and other Agency leaders, on a decision regarding a dispute that arose under
28
the FFA” and “was provided to the Agency’s senior leaders to solicit feedback and final
decision-making on staff’s proposed options.” Vaughn Index at 10; see also White Decl. ¶ 57.
EPA has thus adequately stated what deliberative process is involved (EPA’s deliberations
regarding the resolution of an FFA dispute); the role the withheld sections of the document
played (presenting options for resolution of the dispute developed by staff to agency leadership);
and the nature of the decisionmaking authority of the authors of the document (EPA staff tasked
with evaluating the FFA dispute and formulating possible solutions for superiors’ consideration).
The “Options for Resolution Discussion” and “Action Items and Path Forward” sections were
properly withheld.
EPA next asserts the privilege with respect to a one-page briefing document drafted by
EPA staff to “brief the Administrator, and other senior leaders, in order to facilitate decision-
making related to the registration review for the pesticide Chlorpyrifos.” Vaughn Index at 12
(referring to the document by Bates No. 05410). The portions of the document withheld
pursuant to Exemption 5, titled “Issue” and “Timeline,” detailed “internal Agency discussion and
deliberation . . . , including tentative plans and estimated timelines, on the continued
coordination with the [National Marine Fisheries Service] that is required as part of the pesticide
registration review” and analysis related to “[Endangered Species Act] consultation with the
National Marine Fisheries Service.” Id. Again, EPA asserts that this document “was generated
prior to arriving at a final decision concerning EPA’s actions regarding the registration review
for the pesticide Chlorpyrifos.” Id. Much the same analysis thus applies to this document. The
deliberative process involved is the discussion of possible approaches to the statutorily required
interagency consultation for the then-ongoing Chlorpyrifos registration review; the document
memorializes internal agency deliberations about that process while it was in progress; and the
29
individuals involved are EPA staff responsible for briefing the Administrator and other senior
agency leaders. Id.Nonetheless, plaintiff challenges application of the deliberative process privilege,
contending that the withheld “Issue” and “Timeline” sections of this document provide
“descriptive and factual information that does not expose the back and forth of EPA’s policy
development on these issues” and therefore are not “deliberative” within the meaning of the
exemption. Pl.’s Reply at 7; see also Pl.’s Opp’n at 22. EPA counters that these sections are not
factual in nature because the “Issue” section provides “EPA staff’s characterizations of specific
issues related to this topic,” Def.’s Reply at 9, while the “Timeline” section “contains estimated
timelines related to EPA activity on the topic, as well as EPA’s plans for continued activity on
the matter,” id. at 9–10; see also Vaughn Index at 12. As the agency points out, EPA’s
consideration of how to frame the discrete issues implicated by the Chlorpyrifos review, its
“tentative plans and estimated timelines,” Vaughn Index at 12, and staff assessments and
recommendations with respect to these questions extend beyond mere description into internal
discussion and analysis relating to EPA’s work and coordination with NMFS, Def.’s Reply at 10.
The agency’s explanation for its withholding thus adequately shows that the “Issue” and
“Timeline” sections are deliberative in nature. See, e.g., Ctr. for Biological Diversity v. EPA,
369 F. Supp. 3d 1, 24 (D.D.C. 2019) (applying the deliberative process privilege to EPA briefing
documents on Endangered Species Act consultations in a pesticide registration review). To the
extent that plaintiff is correct in its claim that these sections contain purely factual or descriptive
information that EPA should have produced, that argument goes to the question of whether EPA
has fulfilled its obligation to release all reasonably segregable, non-exempt information within
this document, discussed infra Part III.D.
30
Finally, EPA asserts the deliberative process privilege with respect to a three-page
briefing document, withheld in full except for its title and footers, that was prepared by EPA staff
“to brief the Administrator, and other relevant senior leaders, in order to facilitate decision-
making related to revisions to the Lead and Copper Rule and the next steps in the process that
were identified by staff.” Vaughn Index at 13 (referring to the document by Bates No. 05438).
EPA again claims that the document “was generated prior to arriving at a final decision
concerning EPA’s actions with regards to the Rule” because “[a]t the time, EPA was still
deliberating about the best approach to revising the Rule.” Id. It further asserts that “the
withheld information reflects staff’s framing of the issue and options available to the Agency.”
Id. This document, too, qualifies for the deliberative process privilege. The deliberative process
involved is the evaluation of possible revisions to the Lead and Copper Rule and the best method
by which to make any such revisions. The document reflects analysis provided to senior
leadership before a final decision was reached, and the individuals who prepared the document
are EPA staff providing requested analysis, opinions, and suggestions to their superiors, thereby
satisfying all requirements for properly invoking the privilege.
b) Suggested Talking Points
Second, EPA raises the deliberative process privilege to protect calendar attachments and
a calendar entry consisting of “internal briefing material for Administrator Wheeler containing
preliminary thoughts and proposals for potential talking points and discussion topics” for an
upcoming meeting with the Australian Minister for the Environment and Energy and an official
celebration of the Emperor of Japan’s birthday, held at the Ambassador of Japan’s residence,
Def.’s Mem. at 15; see also White Decl. ¶¶ 52, 60–62; Vaughn Index at 7, 11–12, 14–15;
“suggestions for discussion topics and talking points” for five scheduled phone calls “with
31
various senators and state officials,” Def.’s Mem. at 15; see also White Decl. ¶¶ 60–62; Vaughn
Index at 16–17, 19–22, 23–24; and “an internal briefing document for Administrator Wheeler
suggesting discussion topics and/or questions that could be raised during an upcoming interview”
with the Washington Examiner, Def.’s Mem. at 15; see also Vaughn Index at 22–23.
(i) Talking Points Are Not Categorically Excluded from
Deliberative Process Privilege
At the outset, the parties dispute the applicability of the deliberative process privilege to
talking points and other records that reflect an agency’s consideration of how to present its
policies and decisions to the public and elected or foreign officials. Their disagreement centers
on whether such records are predecisional, a determination that turns on how best to characterize
the agency decision at issue. EPA submits that its “decisions about how and what to
communicate to the public or to Congress are important agency decisions in and of themselves,”
so that documents reflecting deliberations on external communications may be predecisional if
they precede the communication actually made, Def.’s Reply at 6 (citing Krikorian v. Dep’t of
State, 984 F.2d 461, 466 (D.C. Cir. 1993)), while plaintiff contends that “talking points [and
similar documents that] discuss decisions already made” by the agency are nothing more than
debates about how to communicate past decisions, and therefore “are not properly withheld
under the deliberative process privilege because they are not predecisional to any actual agency
decision,” Pl.’s Opp’n at 18; see also Pl.’s Reply at 1–6.
As plaintiff correctly submits, “[t]he deliberative process privilege does not lend itself to
bright line rules because it ‘is so dependent upon the individual document and the role it plays in
the administrative process.’” Pl.’s Opp’n at 17 (quoting Elec. Frontier Found., 826 F. Supp. 2d
at 167–68); see also id. at 17 n.4 (collecting cases that stand for the proposition that an agency
must show that every withheld record, including talking points and similarly communication-
32
focused documents, meets the requirements for exemption); Pl.’s Reply at 5 n.3 (same). While
EPA is therefore obligated to show that each of the individual talking points and briefing
materials in this category qualifies for exemption under the deliberative process privilege, see,
e.g., Morley v. CIA, 508 F.3d 1108, 1115 (D.C. Cir. 2007) (finding “generalized allegations of
exemptions” unacceptable (internal quotation marks and citation omitted)), some general
consideration of whether, for purposes of the deliberative process privilege, an agency’s
discussion of public statements concerning its actions represents an distinct agency decision or
merely reflects a decision already made, is warranted.
The D.C. Circuit has not determined, as a categorical matter, “whether or not discussions
about public statements to outside entities are protected under the deliberative process privilege.”
Leopold v. Off. of Dir. of Nat’l Intel., 442 F. Supp. 3d 266, 275 (D.D.C. 2020); see also Am. Ctr.
for Law & Justice v. Dep’t of State, 330 F. Supp. 3d 293, 302 (D.D.C. 2018) (“[T]he D.C. Circuit
does not appear to have addressed the application of the deliberative process privilege to the
formulation of an agency’s public statements[.]”). The purpose of the privilege—to “protect[]
open and frank discussion among those who make [decisions] within the Government,” Klamath
Water Users, 532 U.S. at 9; see also Sears, Roebuck & Co., 421 U.S. at 150 (holding that the
deliberative process privilege safeguards the “process by which governmental decisions are
formulated” (internal quotation marks and citation omitted)); Machado Amadis, 971 F.3d at 371
(finding that the deliberative process privilege “protects debate and candid consideration of
alternatives within an agency, thus improving agency decisionmaking” (internal quotation marks
and citation omitted))—suggests that an agency’s development of its statements to the public and
other outside entities via talking points and similar documents is the type of decision to which it
applies. Such records are typically “prepared by [agency] employees for the consideration of
33
[agency] decision-makers,” Judicial Watch, Inc. v. Dep’t of Com., 337 F. Supp. 2d 146, 174
(D.D.C. 2004), and, when “prepared by more junior staffers for a more senior official [are] rarely
the final decision about what the senior official will say,” Am. Ctr. for Law & Justice v. Dep’t of
Justice, 325 F. Supp. 3d 162, 173 (D.D.C. 2018). Rather, they “reflect a discourse that occurred
during the decision-making process concerning . . . what strategy the [agency] should take” and,
assuming that “no official statement has yet been made [at the time when they are drafted], . . .
remain ripe recommendations that are ready for adoption or rejection by the [agency].” ACLU v.
Dep’t of Homeland Sec., 738 F. Supp. 2d 93, 112 (D.D.C. 2010).
Documents of this nature therefore may contain predecisional agency analysis about what
information to share with external stakeholders or the general public and how best to
communicate it, a strategic determination that is best informed by the type of candid
conversations within an agency that the deliberative process privilege seeks to preserve. See,
e.g., Am. Ctr. for Law & Justice, 325 F. Supp. 3d at 172 (“[I]f agency deliberations about public
statements were FOIA–able, then agencies would be hamstrung in their dealings with the press
[and other outside entities], defeating the very transparency FOIA aims to foster.”). As EPA
explains, “[r]evealing this type of information would reveal EPA staff’s deliberations concerning
how to communicate EPA’s positions to important stakeholders and the public, decisions that in
and of themselves are crucial to the effective work of the Agency.” Def.’s Reply at 7. At least
two circuits, and the overwhelming majority of Judges on this Court, have thus concluded that an
agency’s consideration of what information to present to external parties and how to present it is
a decision in itself, distinct from the underlying policy decision that is the subject of any
34
anticipated communication, and thus can qualify a record of such consideration for exemption
under the deliberative process privilege.8
In an effort to diminish the weight of this strong consensus, plaintiff relies on Trea Senior
Citizens League v. Department of State (“Trea II”), 994 F. Supp. 2d 23 (D.D.C. 2013), and
Public Citizen, Inc. v. Office of Management of Budget, 598 F.3d 865 (D.C. Cir. 2010), for the
proposition that “[w]here talking points discuss decisions already made, . . . they are not properly
withheld under the deliberative process privilege because they are not predecisional to any actual
agency decision.” Pl.’s Opp’n at 18; see also Pl.’s Reply at 5–6. Neither case sets forth such a
categorical rule. Trea II, in evaluating the applicability of the deliberative process privilege to a
talking-points document developed for use in a bilateral negotiation between the United States
and Mexico culminating in a formal agreement between the two nations, determined only that
the talking points at issue were not predecisional with respect to that agreement because they
were “dated . . . nearly seven years after the Agreement was signed.” 994 F. Supp. 3d at 36.
Likewise, Public Citizen, a case assessing the withholding of intra-agency documents related to
interagency review of proposed legislation, makes only the general pronouncement that “[a]
8
See, e.g., ACLU v. Dep’t of Justice, 844 F.3d 126, 133 (2d Cir. 2016) (holding “a set of suggested talking
points concerning the legal basis for drone strikes” and “a draft of a proposed op-ed article that suggested some
ways of explaining the Government’s legal reasoning in support of drone strikes” were “predecisional and need not
be disclosed” because “[g]overnment officials do not lose the protection of Exemption 5 by considering informally
how to present a legal analysis”); N.H. Right to Life v. Dep’t of Health & Hum. Servs., 778 F.3d 43, 54 (1st Cir.
2015) (finding that documents in which an agency considered how to make a “public announcement” of a grant
award “deal with the Department’s decision of how and what to communicate with the public, which is a decision in
and of itself”); Husch Blackwell LLP v. EPA, 442 F. Supp. 3d 114, 122–23 (D.D.C. 2020) (finding “materials
preparing officials for congressional testimony and draft responses to Congress,” “draft question and answer
responses,” and “draft web content and news briefs” exempt from disclosure under the deliberative process privilege
(internal quotation marks omitted)); Am. Ctr. for Law & Justice v. Dep’t of Justice, 392 F. Supp. 3d 100, 106
(D.D.C. 2019) (“[T]he privilege applies to agency deliberations about future public statements, including talking
points,” but “that protection is not categorical.”); Watkins Law & Advoc., PLLC v. Dep’t of Vets. Affs., 412 F. Supp.
3d 98, 122 (D.D.C. 2019) (finding that “internal talking points fall within the scope of the deliberative process
privilege”); Protect Democracy Project, Inc. v. Dep’t of Def., 320 F. Supp. 3d 162, 177 (D.D.C. 2018) (“[C]ourts
have generally found that documents created in anticipation of press inquiries are protected even if crafted after the
underlying event about which the press might inquire.”).
35
document that does nothing more than explain an existing policy cannot be considered
deliberative.” 598 F.3d at 876 (citing In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997)).
This statement does not stand in tension with the majority view that documents containing
deliberation about communications may be deliberative, to the extent that they consider, in a
preliminary fashion before use by an agency decisionmaker, the content of talking points in the
process of formulating the agency’s decision of what information to share and how to share it.
Plaintiff turns next to Krikorian v. Department of State, 984 F.2d 461 (D.C. Cir. 1993), a
case cited by EPA that found the deliberative process privilege exempted from disclosure
documents discussing how an agency “should respond to the reaction of some members of the
public” to a published article repeating a statement contradictory to a longstanding agency
policy, including “two draft letters proposing two options for replies to public inquiries” about
the article, id. at 466; see also Def.’s Reply at 6. The controversial statement was later retracted
by the agency. Krikorian, 984 F.2d at 463. Plaintiff attempts to argue that the Krikorian court
reached its conclusion “[b]ecause the policymaking process,” that is, the agency’s decision of
whether or not to retract the statement, “was still actively ongoing,” and that the disputed records
are therefore distinguishable from the records at issue here, which were developed “merely to
discuss policies [EPA] had already developed.” Pl.’s Reply at 4; see also id. at 4–5. The records
at issue in Krikorian, however, did not discuss a proposed change in agency policy. Rather, they
debated the agency’s public response to a communication that stood in tension with a pre-
existing agency policy. Krikorian, 984 F.2d at 463. The decision in question, then, concerned
the agency’s strategic communications response to a public relations debacle, not whether the
agency should alter the underlying policy. As such, the Krikorian decision does not stand for the
proposition urged by plaintiff that records formulating a communications strategy about an
36
adopted agency policy are per se outside the purview of Exemption 5’s deliberative process
privilege.
The other D.C. Circuit cases plaintiff cites are equally inapposite. See Pl.’s Reply at 3–4.
For example, Judicial Watch, Inc. v. FDA, 449 F.3d 141 (D.C. Cir. 2006), found only that the
agency’s “failure to provide an adequate explanation” for its withholding of documents post-
dating an agency decision “prevent[ed] [the Court] from determining whether every piece of
[postdated] correspondence . . . constitutes a new final agency action” within the privilege’s
scope, id. at 151. Similarly, the Coastal States Court determined that memoranda to agency staff
providing “straightforward explanations of agency regulations in specific factual situations” were
not protected by the privilege. 617 F.2d at 868. In those cases, the disputed records contained
factual descriptions of an already-adopted agency policy rather than discussion about how best to
communicate such descriptions, and thus did not implicate the purposes of the privilege.
Likewise, plaintiff points to Jordan v. Department of Justice, 591 F.2d 753 (D.C. Cir.
1978) (en banc), a decision in which the en banc Court considered whether portions of a staff
manual and an internal agency memorandum providing guidelines for Assistant U.S. Attorneys
on how to handle issues related to certain low-level offenses and pretrial diversion were exempt
from disclosure under the deliberative process privilege, id. at 757–58. In the course of
determining that these records were neither predecisional nor deliberative, and therefore did not
qualify for exemption, the Jordan Court noted that “a communication promulgating or
implementing an established policy [is] not privileged.” Id. at 774. This statement, made in
reference to documents for which “[t]he substantive content . . . ha[d] already been determined”
and therefore “represent[ed] the promulgation and implementation of polices that ha[d] [a]lready
been adopted,” id. at 775, is not dispositive of the privilege’s application to an agency’s
37
formulation of public statements. Preliminary drafts of such public statements are not merely
explanations of substantive agency policy. Formulation of an agency’s public or external
communications may reflect development of the agency’s agenda, goals, or strategy with regard
to certain substantive policies, and thus may be both predecisional and deliberative with respect
to the agency’s public relations decisions.
Contrary to plaintiff’s position, then, a set of talking points or similar document, even if
focused on an agency’s external presentation of a past policy decision, may fall within the scope
of the deliberative process privilege. As EPA puts it, these records may be “predecisional as to
what is ultimately communicated by EPA and deliberative because [they] reveal[] the decision-
making among staff concerning how best to convey EPA’s position on certain topics, or what a
specific policy means in a particular context, or how a policy will be implemented in a specific
circumstance.” Def.’s Reply at 7. This general principle notwithstanding, the agency’s
obligation to show that each of its withholdings of records reflecting deliberations about external
communications satisfies the exemption’s criteria, described supra Part III.B.1, remains. See,
e.g., Leopold, 442 F. Supp. 3d at 277 (“[I]n order [for internal agency deliberations about public
statements] to receive the protection of FOIA Exemption 5 through the deliberative process
privilege, defendant agencies must still provide ‘context about the particular press-related
deliberations at issue and cannot rely solely on conclusory labels.’” (quoting Am. Ctr. for Law &
Justice, 325 F. Supp. 3d at 172)).
In short, the categorical approach urged by plaintiff to exclude from the deliberative
process privilege agency records of talking points, though attractive in its simplicity of
application, is an overreach, and the harder job of reviewing of each document in context is
required.
38
(ii) Final Talking Points Are Neither Predecisional Nor
Deliberative
Finally, plaintiff briefly raises the issue of whether any of the talking-points records
withheld by EPA “were . . . adopted by EPA or used in its dealings with third parties,” such that
the documents would lose their potentially exempt status because they would reflect a final
agency decision rather than the give and take of the deliberative process. Pl.’s Opp’n at 20
(citing Coastal States, 617 F.2d at 866; Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d
252, 261 (D.D.C. 2004)). Plaintiff rightly asserts that “Exemption 5 does not apply ‘if an agency
chooses expressly to adopt or incorporate by reference’ a [document] that would otherwise have
been protected by the deliberative process privilege.” Elec. Frontier Found. v. Dep’t of Justice,
739 F.3d 1, 10 (D.C. Cir. 2014) (emphasis in original) (quoting Sears, Roebuck & Co., 421 U.S.
at 161)). This logic is supported by the deliberative process privilege’s goal of ensuring that “the
writer [of a draft] . . . know[s] at the time of writing that the privilege will apply and that the
draft will remain confidential, in order for the writer to feel free to provide candid analysis.”
Nat’l Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014) (citing Upjohn Co. v. United
States, 449 U.S. 383, 393 (1981)). For this goal to be realized, a government employee writing
internal drafts of talking points must be confident that the advice will remain privileged. See,
e.g., Judge Rotenberg Educ. Ctr., Inc. v. FDA, 376 F. Supp. 3d 47, 70 (D.D.C. 2019) (finding
draft talking points that “contain[ed] redline edits and comment bubbles and was later turned into
a version of the agency’s final position” exempt (internal quotation marks omitted)). Thus,
under this guidance, drafts of talking points that are not forwarded to an agency decisionmaker
for use in making a public statement are most clearly exempt.
In contrast, talking points that are shared with agency decisionmakers for actual use in
making a public statement are disqualified from exemption because they have become final
39
rather than deliberative. The version of a set of talking points that is given by staff to an agency
head or other senior official in preparation for an upcoming public communication has been
thoroughly vetted by agency staff and is considered ready for use by that individual in actually
communicating with the public. Absent evidence that the official who received the talking
points made subsequent revisions, declined to use them, or otherwise rejected their view of what
to communicate to a particular audience, that last document is the endpoint of agency debate as
to the content and format of its public communication on a specific issue or in a particular venue.
A talking-points document that is attached to a calendar entry for an event at which an official is
expected to speak, or for a scheduled meeting or call, therefore presumptively reflects the
agency’s final decision as to what information to share and how to share it.
Some Judges on this Court have found that, even if an agency decisionmaker uses a final
set of talking points to deliver public remarks, the talking points themselves remain predecisional
and deliberative because the official may not stick to the script, or may closely follow the talking
points without formally adopting their reasoning. See, e.g., Leopold, 442 F. Supp. 3d at 285
(allowing the withholding of “proposed talking points” that “were crafted by lower-level subject
matter experts for [a] more senior official’s preparation and potential use” (internal quotation
marks omitted)); Am. Ctr. for Law & Justice, 325 F. Supp. 3d at 174 (concluding that even final
talking points remain predecisional and deliberative because “given that talking points are
typically used on the fly, it would rarely be the case that an official formally adopts” them and “a
simple comparison of the talking points with the official’s public remarks would reveal the
agency’s deliberations” (internal quotation marks and citation omitted)); Judicial Watch, Inc.,
337 F. Supp. 2d at 173–74 (finding exempt talking points “prepared by [agency] employees for
the consideration of [agency] decision-makers”).
40
This conclusion appears to follow from decisions of this Circuit holding that “a
recommendation does not lose its predecisional or deliberative character simply because a final
decisionmaker later follows or rejects it without comment” and that “the deliberative-process
privilege protects recommendations that are approved or disapproved without explanation.”
Machado Amadis, 971 F.3d at 370 (citing Renegot. Bd. v. Grumman Aircraft Eng’g Corp., 421
U.S. 168, 185 (1975))). That rule, however, is best understood in the context in which it
originated, of agencies seeking to withhold staff recommendations made in more traditional
formats such as briefing documents, policy memoranda, or standard forms, as its application in
Machado Amadis v. Department of State, 971 F.3d 364 (D.C. Cir. 2020), demonstrates. The
agency in that case produced, in response to plaintiff’s FOIA request, a series of “Blitz Forms,”
documents used to adjudicate FOIA appeals, with redactions under the deliberative process
privilege. Id. at 369–71. The panel concluded that just “because fields provided for reviewer
comments and attorney follow-up remained blank” did not transform the staff recommendations
included in the otherwise-completed forms into final decisions. Id. at 370. Without some
explicit indication that the recommendations were either accepted or rejected, the panel
determined that the forms had been “approved or disapproved without explanation” and therefore
remained presumptively deliberative. Id. The final decision of the agency with respect to a
FOIA appeal, however, remains subject to FOIA, even though the underlying “Blitz Form” is
exempt from disclosure.
As applied to records such as those contested in Machado Amadis, the rule of explicit
adoption by an agency aligns with the goals of the deliberative process privilege by shielding all
but the final decision of an agency from disclosure. The rule also conforms to FOIA’s broader
purpose of promoting transparency because recommendations made in these traditional formats
41
will either result in a final decision that is itself subject to FOIA or will culminate in no decision
at all and remain exempt. That documents reflecting or commenting upon a final decision
remain subject to disclosure thus effectively balances the privilege against FOIA’s overall goal
of disclosure.
As applied to final talking points, however, a rule that deems such records as mere
recommendations about what a decisionmaker should say undermines FOIA’s larger aims by
effectively allowing an agency to withhold all records related to its public communications and
protecting even final decisions from public view. If final talking points intended for use for an
agency decisionmaker are exempt from disclosure, in the event that a scheduled public
appearance does not happen, or that the talking points were prepared for a private event or a
meeting between agency officials and external stakeholders or elected officials, there exist no
“public remarks,” Am. Ctr. for Law & Justice, 325 F. Supp. 3d at 174, through which the public
can learn what information the agency ultimately chose or meant to share. As a result, the
agency’s final decision as to the content and strategy of its public communications remains a
mystery, contrary to FOIA’s aim of “promot[ing] the broad disclosure of Government records.”
DiBacco I, 795 F.3d at 183 (internal quotation marks and citation omitted). In contrast, requiring
disclosure of final talking points, that is, documents considered by the agency to be ready for use
by an agency official in making a public statement, both protects the give-and-take process
through which the agency developed the talking points and furthers FOIA’s ultimate goal of
transparency.
Moreover, that an agency official might extemporize some portion of her remarks while
relying on a final set of talking points does not alter the finality of the agency public relations
decisions that the talking points reflect. Final talking points taken up to the podium are the
42
agency’s determination of what information should be shared and how to share it. The remarks
actually delivered by the speaker may represent an additional agency decision—the decision to
abandon or change the strategy set forth in the talking points—but do not render the final talking
points mere recommendations rather than a considered agency decision. Regardless of whether
or how they are ultimately used, then, final talking points and similar documents memorialize the
agency’s final decision about its public relations strategy with regard to a particular event or
topic and are therefore neither predecisional nor deliberative.
Further, considerations of administrative and judicial workability weigh in favor of
finding final talking points to fall outside the scope of the privilege. Even those decisions that
consider final talking points to be exempt from disclosure leave open the likelihood that, were an
agency official to read a speech or set of talking points word-for-word in giving public remarks,
the decisionmaker would have formally adopted that version of his or her statement. In such a
case, the document memorializing the official’s public statement verbatim would become
disclosable as a final agency decision. See, e.g., Leopold, 442 F. Supp. 3d at 284 (implying that
“whatever [statement] was provided publicly” by the head of an agency and any “transcripts or
summaries or statements actually made by him” would be subject to disclosure (alteration and
internal quotation marks omitted)); Am. Ctr. for Law & Justice, 325 F. Supp. 3d at 174
(suggesting that “a verbatim recitation” of talking points would render them non-exempt).
Consequently, under a rule holding final talking points generally exempt unless recited verbatim
and thus formally adopted by an agency official, an agency responding to a FOIA request that
seeks talking points would have to evaluate whether and to what extent an agency decisionmaker
relied upon each requested set of talking points in order to justify its withholdings. This
43
administrative burden would prove unmanageable in the face of regular personnel changes and
the volume of FOIA requests processed by agencies.
A rule of “exempt unless recited verbatim” would also require reviewing courts to assess
the degree of variation between a final set of talking points withheld by an agency and the public
statement made by an agency decisionmaker in reliance on the withheld material. Taken to its
logical end, such a rule could be understood to mean that a decisionmaker’s omission of a single
word or phrase stands in the way of disclosure, undermining the goals of FOIA while doing little
to promote the interests protected by the deliberative process privilege. To avoid such absurd
results, courts would be called upon to decide how much variation between a final set of talking
points and a public statement by an agency results in protection. The arbitrary line-drawing that
would inevitably result from this exercise would result in a frustrating degree of unpredictability
for both agencies seeking to comply with their obligations under FOIA and requesters seeking to
obtain information about agencies’ public and external communications.
In contrast, a rule under which final talking points provided to an agency decisionmaker
for actual use in making a public statement not only provides clear guidance to agencies and
requesters, but also strikes a more evenhanded balance between the interests protected by the
deliberative process privilege and FOIA’s overarching goal of transparency. Thus, if the context
surrounding a final talking-points document indicates that it was provided to an agency
decisionmaker for actual use in a public communication as the agency’s representative, the
document is not protected under Exemption 5’s deliberative process privilege.
(iii) Application of Deliberative Process Privilege to Talking
Points at Issue
Against this backdrop, EPA’s explanation for the withholding of each of the challenged
talking points and briefing documents is considered. First, EPA asserts the deliberative process
44
privilege to withhold portions of a July 11, 2018 calendar entry containing “preparation notes for
an upcoming meeting between Administrator Wheeler and Australian Minister [of the
Environment and Energy] Josh Frydenberg,” an event consisting of a bilateral meeting followed
by the public signing of a memorandum of understanding. Vaughn Index at 7. The redacted
notes are described as featuring “information about plans for a briefing for the Administrator and
highlight[] changes that have been made to certain briefing materials.” Id. According to EPA,
the withheld material reflects internal discussions about “how best to prepare Administrator
Wheeler and other relevant senior leaders for the meeting,” White Decl. ¶ 52, and contains
“preliminary thoughts about potential topics for discussion, meeting invitees, and elements of a
briefing package, that were considered as part of the Agency’s decision-making process
concerning preparation for the meeting,” Vaughn Index at 7. This material is predecisional, in
that the notes and the briefing documents they describe were prepared and sent to former
Administrator Wheeler ahead of the meeting with Minister Frydenberg, which was scheduled for
July 12, 2018. See Vaughn Index at 14. EPA has adequately identified the deliberative process
involved (preparations for the Administrator’s upcoming meeting with a foreign official), the
role the withheld sections of the document played (presenting options for discussion during the
meeting), and the nature of the decisionmaking authority of the authors of the document (EPA
staff charged with readying the agency head and other senior leaders for the meeting). The notes
were properly withheld.
Likewise, EPA withheld portions of the “Key Messages” and “Background” sections, and
withheld in full the “Talking Points” section, of a nine-page internal briefing document, provided
to Administrator Wheeler and other senior EPA leaders as a calendar attachment in preparation
for this same July 12, 2018 meeting with Minister Frydenberg, titled “Bilateral Meeting and
45
MOU Signing with Minister for the Environment and Energy Josh Frydenberg.” Vaughn Index
at 14–15 (referring to the document by Bates No. 17459). EPA asserts that the document was
used by EPA staff “to brief the Administrator, and other senior leaders, on the upcoming meeting
and to facilitate decision-making on the content of the remarks the Administrator may offer
while participating in the bilateral meeting and MOU signing.” Id. at 14. According to the
agency, the withheld information “reflects opinions and suggestions from staff on what Agency
leaders should consider in preparing for the meeting and, additionally, talking points that the
Administrator could use as part of his remarks.” Id. With the exception of the “Talking Points”
section, much the same analysis applies to information withheld from this document: it is
predecisional because the recommendations were sent before the meeting, and deliberative
because it reflects agency staff’s preparations for and suggestions regarding the content of a
meeting between the Administrator and his foreign counterpart.
Plaintiff challenges EPA’s withholdings from this document on the grounds that “EPA
does not state that this briefing paper was designed to formulate policy rather than to discuss the
decision already reached” and that the decision “to sign a memorandum of understanding . . .
was made well in advance and certainly not on the spot at the signing ceremony.” Pl.’s Opp’n at
19. As explained above, however, the deliberative process of which this document is a part is
not whether or not to sign a memorandum of understanding, but rather how to communicate the
decision to sign the memorandum to the public. Further, EPA represents that the document
includes not only talking points for the signing ceremony, but also strategic considerations for
the Administrator’s private meeting with Minister Frydenberg. See Vaughn Index at 14–15. The
determination of what information should be shared with a foreign official is a privileged agency
decision. See, e.g., Leopold, 442 F. Supp. 3d at 285–86 (holding that draft talking points
46
“concerning proposed statements to be made to foreign officials” fell within the scope of the
privilege (internal quotation marks omitted)), Elec. Frontier Found. v. Dep’t of Justice, 890 F.
Supp. 2d 35, 48–49 (D.D.C. 2012) (finding exempt communications between U.S. negotiators
discussing next steps for conversations with their European Union counterparts). EPA has
adequately shown that portions of the “Key Messages” and “Background” sections were
appropriately withheld from this document.
As to the “Talking Points” section, EPA’s Vaughn Index suggests that these particular
talking points were intended for Administrator Wheeler’s direct use in making remarks at the
signing ceremony. See Vaughn Index at 14–15. They therefore reflect a final agency decision as
to what the Administrator should say. As a result, the “Talking Points” are neither predecisional
nor deliberative and are not exempt from disclosure.
Next, EPA invokes the deliberative process privilege to explain its withholdings from a
four-page internal briefing document about an official celebration of the Emperor of Japan’s
birthday, held at the Ambassador of Japan’s residence, that former Administrator Wheeler was
scheduled to attend. Vaughn Index at 11–12 (referring to the document by Bates No. 05385).
The agency withheld only an attachment to the document that is described as outlining suggested
talking points for the Administrator’s remarks at the event. Id. at 11. EPA asserts that “EPA
staff used the document to brief the Administrator on the details of the celebration and facilitate
his decision-making as to what remarks he may offer while attending the event,” and that the
withheld information provided “opinions and thoughts from staff on . . . suggested talking points
that the Administrator could consider during his remarks.” Id.Plaintiff argues that “what to say at someone’s birthday party is not a cognizable policy
decision for deliberative process privilege purposes.” Pl.’s Opp’n at 20. This argument misses
47
the mark. Comments made by Administrator Wheeler in his official capacity at an official event,
whether celebrating a birthday or marking an occasion considered less frivolous by plaintiff,
constitute public statements by the agency, discussions of which fall within the scope of the
privilege. See, e.g., Am. Ctr. for Law & Justice v. Nat’l Sec. Agency, 474 F. Supp. 3d 109, 133–
34 (D.D.C. 2020) (concluding that drafts and discussions of and proposed edits to U.N.
Ambassador’s commencement speech at a university and remarks upon receiving a prize for her
work were deliberative and covered by the exemption). Nonetheless, EPA has not adequately
shown that the withheld information was related to a deliberative process. The talking points
were given to Administrator Wheeler for him to use in giving remarks at an official event at a
foreign embassy, at which he would be representing EPA. They therefore are not simply staff
recommendations or suggestions to the Administrator, but rather a reflection of the agency’s
considered judgment as to the content of Administrator Wheeler’s speech. These talking points,
too, are a final agency determination, neither predecisional nor deliberative, and thus are not
exempt from disclosure.
EPA further claims that the privilege shields from disclosure portions of five documents,
described as “suggestions for discussion topics and talking points for upcoming . . . phone calls
with various senators and state officials.” Def.’s Mem. at 15. The first withheld document
consists of an internal briefing document for a scheduled phone call between Administrator
Wheeler and Senator Tom Carper, from which document EPA withheld sections on “Potential
Areas of Concern” and “Proposed Talking Points.” Vaughn Index at 16–17 (referring to the
document by Bates No. 17552). EPA staff provided this document to the Administrator to
“craft[] a strategy for how Administrator Wheeler could respond to inquiries or potential topics
of discussion raised during the call by the Senator.” Id. at 16. Three of the five withheld
48
documents are internal memoranda from Christian Palich, “a former senior adviser,” to
Administrator Wheeler, provided for “the Administrator to review in order to prepare him for . . .
telephone call[s]” with Senators John Cornyn, Tom Udall, and Lisa Murkowski. Id. at 19–20
(referring to the Cornyn document by Bates No. 17727), 20–21 (referring to the Udall document
by Bates No. 17816), 23–24 (referring to the Murkowski document by Bates No. 17961). EPA
withheld sections on “Topics for Discussion,” which were written “to prepare [the
Administrator] for potential topics of discussion, and to provide him with talking points on those
potential points of discussion,” from each document. Id. at 19, 20, 23. The last of the five
disputed documents is an internal memorandum from Preston Cory, “a special adviser,” to
Administrator Wheeler, “provided . . . to the Administrator to review in order to prepare him for
a telephone call with” Governor Kim Reynolds. Id. at 21–22 (referring to the document by Bates
No. 17838). EPA withheld sections titled “Purpose” and “Topics for Discussion,” which
sections were written “to prepare [the Administrator] for potential topics of discussion, and to
provide him with talking points on those potential points of discussion.” Id. at 21.
Based on EPA’s descriptions, all five documents contain “drafted talking points . . . to
facilitate the Administrator’s decision-making as to what remarks to offer” during his calls with
elected officials. White Decl. ¶ 60. Once again, these documents are neither predecisional nor
deliberative because they were shared with former Administrator Wheeler for his use in a
scheduled call, see id. ¶ 61; Vaughn Index at 16, 19, 20, 21, 23, and therefore represent the
agency’s actual decision as to the content of his conversations. Though EPA submits that the
withheld sections “reflect[] the personal opinions and thoughts of staff working on preparing the
Administrator” for the calls and “tasked with providing him with suggested talking points” and
were drafted by EPA staff, including a senior adviser and a special adviser to the Administrator,
49
for use by the Agency’s most senior official, White Decl. ¶ 60, EPA provides no indication that
these talking points were subject to any further revision. To the contrary, all evidence indicates
that these talking points were intended for Administrator Wheeler’s actual use during the calls.
The documents were theoretically subject to revision by the Administrator upon review, but the
fact that they were attached to calendar entries for the calls, rather than to entries for internal
briefings scheduled in advance of the calls, indicates strongly that these were final talking points,
meant for the Administrator to rely on while speaking to elected officials. As such, the withheld
sections memorialize EPA’s decision as to the information that the Administrator should share
and the positions he should communicate in conversations with elected officials as the agency’s
representative, and are not exempt from disclosure.9
EPA last asserts the privilege with respect to portions of an internal briefing document,
prepared for Administrator Wheeler, “on a scheduled interview with the Washington Examiner.”
Vaughn Index at 22 (italics added) (referring to the document by Bates No. 17919). This record
is described as including “details related to the interview, a short biography of the journalist that
was scheduled to be conducting the interview, and EPA staff’s outline of potential topics that
may be covered and suggested talking points.” Id. at 22. The agency withheld only the last of
these three sections: the outline of potential topics and suggested talking points. Id. The
withheld section “was generated to brief Administrator Wheeler” in advance of the interview and
9
Plaintiff asserts that the deliberative process privilege does not apply to any of these documents because
“none of these people [the elected officials with whom the calls were scheduled] have responsibility for setting EPA
policy, and it appears that the conversations merely focused on policy decisions EPA had already made.” Pl.’s
Opp’n at 18. This argument once again fails, as an agency’s deliberations over “how to communicate with members
of Congress . . . and how to prepare for potential points of debate or discussion” fall within the scope of the
privilege. Competitive Enter. Inst. v. EPA, 12 F. Supp. 3d 100, 120 (D.D.C. 2014) (omission in original) (emphasis
and internal quotation marks omitted) (holding an agency’s materials related to upcoming calls and meetings with
Senators exempt under the deliberative process privilege); see also Comm. on Oversight & Gov’t Reform, U.S.
House of Reps. v. Lynch, 156 F. Supp. 3d 101, 111–12 (D.D.C. 2016) (finding that the privilege extends to “internal
deliberations about how to respond to press and Congressional inquiries”).
50
“reflects the person opinions and thoughts of staff working on and preparing Administrator
Wheeler for the interview,” in order to “craft[] a strategy for how Administrator Wheeler could
respond to questions or potential topics of discussion raised.” Id. The document as a whole was
designed for the Administrator to “review . . . before making final decisions as to how he would
respond to questions or potential topics of discussion . . . during the interview.” Id. EPA has
thus adequately identified the deliberative process involved (internal deliberations about the
content to be shared during a press interview of the agency’s head); the role the withheld section
of the document played in presenting options and suggestions to Administrator Wheeler; and the
nature of the decisionmaking authority of the authors of the document (EPA staff tasked with
preparing the Administrator for the interview). Again, however, the fact that these talking points
were attached to a calendar entry for the interview itself provides strong evidence that they were
intended for Administrator Wheeler’s use during the interview, without further revision, and
therefore reflect agency guidance as to the Administrator’s public comments to the Washington
Examiner. These talking points, too, are final rather than predecisional and deliberative, and
must be disclosed.
In short, the talking points and similar information withheld from these documents are
not exempt from disclosure under the deliberative process privilege because they appear to be
final talking points, intended for Administrator Wheeler’s actual use in making public remarks
on EPA’s behalf. This information must be produced.
c) NEC Meeting Agenda
The last record for which EPA asserts the deliberative process privilege is described as an
“an agenda . . . internal to the federal government [which] was used to prepare for an upcoming
meeting with the National Economic Council (NEC) and representatives of several agencies”
51
attached to a calendar entry. Vaughn Index at 15 (referring to the document by Bates No.
17471). EPA withheld this document in full, claiming that it “contains a list of topics to be
discussed at the upcoming meeting” between the NEC and invited deputy-level officials from
several agencies, including EPA. Id.; see also White Decl. ¶ 65; Def.’s Reply at 8. EPA asserts
that the agenda was drafted in advance of the scheduled meeting, to “prepare[] meeting
participants for the decisions to be made at the upcoming meeting,” Vaughn Index at 15; see also
White Decl. ¶ 65, and was used as “part of the interagency process of collaborating to solve a
number of issues important to the federal government” related to “U.S. and global economic
policy,” Vaughn Index at 15; see also White Decl. ¶ 65.
Although plaintiff insists that this document is best characterized as “a bare list of topics
in an agenda for a meeting,” the disclosure of which “would not expose any deliberations,” Pl.’s
Opp’n at 22 (internal quotation marks omitted); see also Pl.’s Reply at 6–7, preliminary meeting
agendas that reflect staff recommendations for topics of discussion may be deliberative in nature
and therefore exempt, see, e.g., Ctr. for Pub. Integrity v. FEC, 332 F. Supp. 3d 174, 180 (D.D.C.
2018) (“A meeting agenda prepared before the meeting is necessarily predecisional and
inherently deliberative in that staff are suggesting the topics to be discussed at the meeting.”);
Pub. Emps. for Env’tl Resp. v. Off. of Sci. & Tech. Pol’y, 881 F. Supp. 2d 8, 15–17 (D.D.C.
2012) (finding that “meeting agendas” for an intra-agency working group fell within the scope of
the privilege). EPA has not shown, however, that this meeting agenda qualifies for exemption.
First, the agency does not identify the author(s) of the document, and does not even claim that
the agenda originated within EPA. Crucial information is therefore missing to determine the role
this document played, if any, in the interagency collaboration to which EPA asserts that the
document relates. Second, while EPA does represent that the agenda was prepared before the
52
NEC meeting, Vaughn Index at 15; White Decl. ¶ 65, the agency is silent as to whether the
agenda is a final agenda, representing a firm decision about topics to be discussed, or a
preliminary agenda, subject to revision by former Administrator Wheeler or other senior
officials. EPA is clear that, at the time the agenda was written, “no final decisions had been
made about any of the policy issues discussed in the document,” Def.’s Reply at 9, but this
statement does not answer the question of whether the agenda precedes in time the final decision
about which policy issues would be discussed at the NEC meeting. EPA has not adequately
shown that the NEC meeting agenda is either predecisional or deliberative.
* * *
EPA has shown that information was properly withheld under Exemption 5 from the
three briefing documents discussed supra Part III.B.1.a (Bates Nos. 04639, 05410, and 05438),
the July 11, 2018 calendar entry discussed supra Part III.B.1.b.iii (Vaughn Index at 7), and the
redacted “Key Messages” and “Background” sections of the briefing document with Bates No.
17459, discussed supra Part III.B.1.b.iii. In contrast, EPA has not justified its withholdings of
talking points and related information in the calendar attachments discussed supra Part
III.B.1.b.iii (Bates Nos. 05385, 17459, 17552, 17727, 17816, 17838, 17919, and 17961), and
must produce the redacted information, consistent with this Memorandum Opinion. As to the
document discussed supra Part III.B.1.c (Bates No. 17471), EPA has not provided sufficient
information to determine whether its withholdings are justified, and must either produce the
withheld information or supply additional information about its use that might justify the
agency’s withholdings pursuant to the deliberative process privilege.
2. Information Withheld Pursuant to Exemption 6
Plaintiff next challenges EPA’s withholdings pursuant to FOIA Exemption 6, which
exempts from disclosure “personnel and medical files and similar files the disclosure of which
53
would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).
“FOIA’s strong presumption in favor of disclosure is at its zenith in th[e] Exemption 6 analysis.”
Jurewicz v. Dep’t of Agric., 741 F.3d 1326, 1332 (D.C. Cir. 2014) (internal citations and
quotation marks omitted).
Review of personal privacy withholdings under Exemption 6 proceeds in stages. The
first stage requires the Court to “‘determine whether the [records] are personnel, medical or
similar files covered by Exemption 6.”” AILA, 830 F.3d at 673 (alteration in original) (quoting
Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1228 (D.C. Cir. 2008)). If the records
are such files, at the second stage, the Court then must “determine whether their disclosure
would constitute a clearly unwarranted invasion of privacy.” Id. (internal quotation marks and
citation omitted). This stage requires “another two-step process,” which considers first whether
“‘disclosure would compromise a substantial, as opposed to a de minimis, privacy interest.’” Id.at 673–74 (quoting Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 33 (D.C. Cir. 2002)).
The burden of showing that disclosure will injure a substantial privacy interest lies with the
government. Prison Legal News v. Samuels, 787 F.3d 1142, 1147 (D.C. Cir. 2015) (citing
Ripskis v. Dep’t of Hous. & Urban Dev., 746 F.2d 1, 3 (D.C. Cir. 1984)). For purposes of the
Exemption 6 analysis, “[t]he privacy interest at stake belongs to the individual, not the
government agency.” Ford v. Dep’t of Justice, 208 F. Supp. 3d 237, 250 (D.D.C. 2016); accord
Dep’t of Justice v. Reps. Comm. for Freedom of Press (“Reps. Comm.”), 489 U.S. 749, 763–65
(1989). A substantial privacy interest is “anything greater than a de minimis privacy interest,”
Multi Ag Media LLC, 515 F.3d at 1229–30, but the weight of the “privacy interest at stake may
vary depending on the context in which it is asserted,” AILA, 830 F.3d at 675 (internal quotation
marks and citation omitted); see also Bartko v. Dep’t of Justice, 898 F.3d 51, 69 (D.C. Cir.
54
2018). “‘[I]f no significant privacy interest is implicated . . . FOIA demands disclosure.’” Multi
Ag Media LLC, 515 F.3d at 1229 (omission in original) (quoting Nat’l Ass’n of Retired Fed.
Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989)).
If, on the other hand, disclosure would infringe a substantial privacy interest, the privacy
interest must be balanced “‘against the public interest in the release of the records.’” AILA, 830
F.3d at 674 (quoting Nat’l Ass’n of Home Builders, 309 F.3d at 33). Only one public interest is
relevant: “the extent to which disclosure would serve the ‘core purpose of the FOIA,’ which is
‘contribut[ing] significantly to public understanding of the operations of activities of the
government.’” Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 495 (1994) (emphasis and
alteration in original) (quoting Reps. Comm., 489 U.S. at 775). “In other words, disclosure of
government records under FOIA is meant to help the public stay informed about ‘what their
government is up to.’” AILA, 830 F.3d at 674 (quoting Reps. Comm., 489 U.S. at 773). The
agency carries the burden of establishing that any withheld records meet the statutory balancing
test. See id. at 673.
EPA has applied Exemption 6 to withhold information in thirteen calendar entries,
ranging in date from July 5, 2019 to March 30, 2019, “contain[ing] the locations at which the
Administrator ate lunch or dinner,” Vaughn Index at 2; see also White Decl. ¶ 43, and
information in two calendar entries, dated February 14, 2019 and March 25, 2019, consisting of
“information related to [Administrator Wheeler’s] train or flight reservations (i.e., specific ticket
or route numbers) and the names of hotels at which the Administrator stayed while traveling,”
Vaughn Index at 2–3. At the first stage, “[s]imilar files” covered by Exemption 6 “include
‘detailed Government records on an individual which can be identified as applying to that
individual,’” Prison Legal News, 787 F.3d at 1146–47 (quoting Judicial Watch, Inc. v. Dep’t of
55
Justice, 365 F.3d 1108, 1124 (D.C. Cir. 2004)), and encompass “‘not just files, but also bits of
personal information, such as names and addresses, the release of which would create[] a
palpable threat to privacy,’” id. at 1147 (alteration in original) (quoting Judicial Watch, Inc., 449
F.3d at 152); see also Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982) (holding that
all information that “applies to a particular individual” satisfies the threshold requirement for
Exemption 6 coverage). Administrator Wheeler’s calendar entries are “files” within the meaning
of Exemption 6 because “[t]hey are detailed government records about [Administrator Wheeler]
that, if released, would be identified as applying to him.” E.G. v. Dep’t of Air Force, 302 F.
Supp. 3d 230, 235 (D.D.C. 2018). Plaintiff does not contest this conclusion. See Pl.’s Opp’n at
27–29; Pl.’s Reply at 9–11.
At step two, EPA contends that releasing the locations at which Administrator Wheeler
ate lunch or dinner and the particulars of his travel arrangements “would constitute a clearly
unwarranted invasion of personal privacy and could lead to harassment as well as unwanted
contact by the media and others,” Def.’s Mem. at 19; see also Def.’s Reply at 13–15, especially
because the Administrator may frequent the same restaurants in Washington, D.C., or
“repeatedly use similar travel routes and stay in similar hotels,” Vaughn Index at 2–3; see also
White Decl. ¶¶ 42–43. Plaintiff answers that this privacy interest is “wholly speculative,” and
further, that the passage of time since March 30, 2019 (the date of the last relevant calendar
entry) “reduces the reasonableness of any espoused privacy concerns arising from disclosure of
these wholly past, completed actions.” Pl.’s Opp’n at 27–28; see also Pl.’s Reply at 9–11.
As to plaintiff’s first argument, that Administrator Wheeler’s alleged privacy interest in
the withheld information is “wholly speculative,” Pl.’s Opp’n at 27, EPA asserts, as a general
matter, that “it is axiomatic that certain employees or officials in sensitive positions or who work
56
at certain agencies may face an increased risk of harassment or unwanted contact,” Def.’s Reply
at 13 (citing Long v. Off. of Pers. Mgmt., 692 F.3d 185, 192 (2d Cir. 2012); Judicial Watch, Inc.,
449 F.3d at 153; Armstrong v. Exec. Off. of President, 97 F.3d 575, 582 (D.C. Cir. 1996)). EPA
doubles down on this assertion in a supplemental declaration claiming that “[m]edia reports
demonstrate that politically motivated harassment of government officials in public spaces is a
reality, and that these incidents have occurred regularly in recent years, especially in dining
establishments,” noting that “Administrator Wheeler’s immediate predecessor had a meal
disrupted at a Washington, D.C. restaurant.” Suppl. White Decl. ¶ 4; see also id. (further
asserting that “[a]s a cabinet level official, Administrator Wheeler faces an increased risk of
harassment from the media and from politically motivated individuals when he is in public
spaces,” a risk that would be “exacerbate[d]” by disclosure of the withheld material). Likewise,
as to plaintiff’s second argument, that the passage of time since Administrator Wheeler ate at a
particular restaurant or undertook certain travel diminishes his privacy interest in the withheld
information, Pl.’s Opp’n at 27–28, EPA contends that, as of the time of writing on October 5,
2020, “Administrator Wheeler still leads EPA and engages in certain routines, including dining
at restaurants in, or around, downtown Washington, D.C., as well as travel,” Def.’s Reply at 14.
Administrator Wheeler left the helm of EPA on January 19, 2021. See EPA, Chronology
of EPA Administrators (last visited Feb. 12, 2021), https://www.epa.gov/history/chronology-epa-
administrators. Thus, the context and relevance of the privacy interests EPA asserts in defense
of its Exemption 6 withholdings has changed substantially. Administrator Wheeler is no longer
a Cabinet-level government official, nor is he “the public face for every action the EPA takes in
fulfilling its mission.” Def.’s Reply at 14. Rather, Administrator Wheeler is now a private
citizen whose comings and goings two or three years ago are significantly less likely to attract
57
media attention or harassment than they might have during his tenure in office. Further, to the
extent that Administrator Wheeler’s repeated visits to certain restaurants or use of certain travel
routes or accommodations were associated with his role as Administrator, concerns about
disclosure leading to “harassment as well as unwanted contact by the media and others” may be
lessened. Def.’s Mem. at 19. EPA does not point to any privacy interests held by the
Administrator in his personal capacity, aside from a de minimis interest in “not having one’s
dietary preferences published,” Vaughn Index at 2, relying instead on those privacy interests
associated with his former, public-facing position. See Def.’s Mem. at 19; Def.’s Reply at 13–
15. Even if Administrator Wheeler remained in office, the general interest of a Cabinet-level
official in avoiding harassment or unwanted contact that EPA asserts is best understood as a
security interest rather than a personal privacy interest, given the inherently public nature of
Cabinet members’ positions and official duties. Finally, the records reflect visits to restaurants
and travel that occur in public spaces subject to observation by the public, significantly reducing
any privacy interest that might attach. EPA has therefore failed to raise a substantial privacy
interest with respect to the withheld information. In the absence of such an interest, no further
inquiry is necessary, and EPA must disclose this information. See Multi Ag Media LLC, 515
F.3d at 1229. Summary judgment as to these records is granted for plaintiff.
3. Information Withheld Pursuant to Exemption 7(C)
Third, plaintiff disputes EPA’s withholding from thirty calendar entries, ranging in date
from July 10, 2018 to March 27, 2019, of information consisting of the names and email
addresses of agents who provided protection to former Administrator Wheeler as part of his
Personnel Security Detail (“PSD”). See Vaughn Index at 5–6; White Decl. ¶¶ 44–47. The PSD
“is comprised of Criminal Investigators from” EPA’s Office of Criminal Enforcement,
Forensics, and Training (“OCEFT”) “who are assigned to protect to the health and safety of the
58
EPA Administrator.” Decl. of Claude Walker (“Walker Decl.”) ¶ 3, ECF No. 23-2. EPA has
asserted both Exemption 6 and Exemption 7(C) with respect to its withholding of this
information. White Decl. ¶ 47; Vaughn Index at 5. Similar to Exemption 6, Exemption 7(C)
shields from disclosure “records or information compiled for law enforcement purposes, but
only to the extent” that disclosure “could reasonably be expected to constitute an unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Both Exemption 6 and Exemption 7(C)
“seek to protect the privacy of individuals identified in certain agency records,” ACLU v. Dep’t
of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011), but textual differences between the two exemptions
mean that “Exemption 7(C) is more protective of privacy than Exemption 6 and thus establishes
a lower bar for withholding material,” id. (internal citation and quotation marks omitted);
compare 5 U.S.C. § 552(b)(6) (exempting records “disclosure of which would constitute a
clearly unwarranted invasion of personal privacy” (emphasis added)), with 5 U.S.C.
§ 552(b)(7)(C) (exempting records that “could reasonably be expected to constitute an
unwarranted invasion of personal privacy” (emphasis added)); see also Nat’l Archives &
Records Admin. v. Favish, 541 U.S. 157, 165–66 (2004) (noting that the phrase “clearly
unwarranted” in Exemption 6 creates a higher bar for withholding responsive material than
Exemption 7(C)).
To qualify for Exemption 7(C)’s more protective treatment, however, an agency must
first “make a threshold showing that the FOIA request seeks records ‘compiled for law
enforcement purposes.’” Bartko, 898 F.3d at 64 (quoting Jefferson v. Dep’t of Justice, 284 F.3d
172, 176 (D.C. Cir. 2002)). This standard “requires that a document be created, gathered, or
used by an agency for law enforcement purposes at some time before the agency invokes the
exemption.” Pub. Emps. for Env’tl Resp. v. U.S. Section, Int’l Boundary & Water Comm’n,
59
U.S.-Mexico (“PEER”), 740 F.3d 195, 203 (D.C. Cir. 2014) (citing John Doe Agency v. John
Doe Corp., 493 U.S. 146, 155 (1989)). “Law enforcement entails more than just investigating
and prosecuting individuals after a violation of the law and includes . . . proactive steps designed
to prevent criminal activity and to maintain security.” EPIC, 777 F.3d at 522 (emphasis and
omission in original) (internal quotation marks and citations omitted). EPA “does not
‘specialize[] in law enforcement,’” even if its OCEFT, from which PSD officers are assigned,
does, and therefore “its attempt to shield its records under Exemption 7(C) merits no deference.”
Bartko, 898 F.3d at 64 (alteration in original) (quoting Campbell v. Dep’t of Justice, 164 F.3d 20,
32 (D.C. Cir. 1998)).10
If the records are properly characterized as law enforcement records, the agency must
next show that “the privacy interest the government asserts . . . outweighs any public interest in
disclosure.” Id. (citing Roth v. Dep’t of Justice, 642 F.3d 1161, 1174 (D.C. Cir. 2011)). Like
Exemption 6, Exemption 7(C) aims to “protect the privacy of individuals identified in certain
agency records.” ACLU, 655 F.3d at 6. “[T]he only public interest relevant for purposes of
Exemption 7(C) is one that focuses on ‘the citizens’ right to be informed about what their
government is up to.’” Davis v. Dep’t of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting
Reps. Comm., 489 U.S. at 773); cf. AILA, 830 F.3d at 674. The FOIA requester carries the
burden “to show . . . that the public interest sought to be advanced is a significant one, and that
10
Plaintiff, relying on Bartko and other D.C. Circuit precedent, contends that, for purposes of the Exemption
7(C) analysis, “[t]o qualify as law enforcement records, the record must arise out of ‘investigations which focus
directly on specifically alleged illegal acts which could, if proved, result in civil or criminal sanctions.’” Pl.’s Opp’n
at 31 (quoting Bartko, 898 F.3d at 64); see also Pl.’s Reply at 13–15. This characterization of the “compiled for law
enforcement purposes” standard is overly restrictive, and reads Bartko out of context. The D.C. Circuit in Bartko
described the standard only as it applied to the records at issue in that case, which were investigatory files. See 898
F.3d at 64. In fact, the threshold “compiled for law enforcement purposes” inquiry applies to all exemptions set
forth under 5 U.S.C. § 552(b)(7), not just Exemption 7(C), nor is Exemption 7(C) limited to records of an
investigation. See 5 U.S.C. § 552(b)(7). As such, many types of records may be considered to have been “compiled
for law enforcement purposes.” See PEER, 740 F.3d at 203.
60
the [requested] information is likely to advance that interest.” Bartko, 898 F.3d at 72 (alteration
in original) (internal quotation marks and citation omitted); see also Favish, 541 U.S. at 175(explaining that the requester must make “a meaningful evidentiary showing” of a public interest
“to balance against the cognizable privacy interests in the requested records”).
Under the standard outlined above, EPA has established that the names and email
addresses of PSD agents assigned to protect Administrator Wheeler, included in thirty calendar
entries, were “compiled for law enforcement purposes.” The agency explains that “the purpose
of the PSD is to ensure the Administrator’s security by detecting, preventing, and responding to
potential criminal acts perpetrated against him.” White Decl. ¶ 44; Walker Decl. ¶ 3 (same).
PSD agents accompany the Administrator to events and meetings in a protective capacity,
anticipate and mitigate threats to the Administrator’s safety, and assist with sensitive
environmental criminal investigations. Walker Decl. ¶¶ 3–4, 7. Each of these functions,
undertaken in agents’ capacity as members of the PSD, serves to prevent potential criminal
activity and promote public safety as well as the Administrator’s safety. Calendar records
detailing which PSD agents will carry out these activities on a given date and time are therefore
“compiled for law enforcement purposes.” See Milner, 562 U.S. at 582 (Alito, J., concurring)
(The “ordinary understanding of law enforcement includes . . . proactive steps designed to
prevent criminal activity and to maintain security.”); EPIC, 777 F.3d at 523 (finding that an
emergency protocol passed Exemption 7’s threshold test because it “was created to prevent
crime and keep people safe, which qualify as law enforcement purposes”). Accordingly, EPA’s
withholding of PSD agents’ names and email addresses from these records is evaluated only
under Exemption 7(C), because it “provides broader privacy protection than Exemption 6.”
61
Citizens for Resp. & Ethics in Wash. v. Dep’t of Justice, 854 F.3d 675, 681 (D.C. Cir. 2017); see
also CREW I, 746 F.3d at 1091 n.2.
EPA argues that “PSD agents have a significant privacy interest in the continued
withholding of their names and email addresses” because “[d]isclosure of their identities,
including contact information, could expose them to harassment or danger due to their role
providing security to the Administrator.” White Decl. ¶ 45; see also Vaughn Index at 5. In
particular, the agency asserts that PSD agents are “subject to attention from the media and from
politically motivated individuals due to the high-profile nature of the protectee,” such that
“disclosure of PSD members’ personal information would expose them to undue attention from
individuals seeking information about the Administrator and harassment from individuals
seeking to disrupt the Administrator’s activities,” Walker Decl. ¶ 6, as well as “harassing queries
for unauthorized access to information” about “sensitive environmental criminal investigations”
to which PSD agents might be assigned, id. ¶ 7.
Though plaintiff contends that EPA “fail[s] to provide any reason why the innocuous act
of serving on a security detail would be controversial at all, much less likely to draw threats and
harassment,” Pl.’s Opp’n at 29; see also Pl.’s Reply at 11–12, EPA’s claim, substantiated by two
declarations, that the PSD agents could be subjected to harassment by virtue of the identity of the
person they protect and the types of investigations in which they and their colleagues are
involved is sufficient to establish an “unwarranted invasion of privacy” for Exemption 7(C)
purposes. Rank-and-file government employees, including law enforcement agents, have a clear
interest in avoiding harassment by members of the media or the public, as courts in this Circuit
have routinely acknowledged.11 They have an even stronger interest in keeping private their
11
See, e.g., Roth, 642 F.3d at 1174; Schrecker v. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (“On
the privacy side of the ledger, our decisions have consistently supported nondisclosure of names or other
62
direct contact information that might facilitate such harassment. See, e.g., Hall & Assocs. v.
EPA, Civ. A. No. 19-1095 (RC), 2020 WL 4673411, at *3–4 (D.D.C. Aug. 12, 2020) (finding a
privacy interest in privately held email addresses); Seife v. Dep’t of State, 298 F. Supp. 3d 592,
629 (S.D.N.Y. 2018) (identifying a privacy interest in official government email addresses that
are not otherwise publicly available).
The privacy interests of PSD agents must next be balanced “against the public interest in
the release of the records.” AILA, 830 F.3d at 674 (internal quotation marks omitted). First, as
to the official government email addresses of PSD agents, plaintiff asserts no specific public
interest that disclosure of this information would promote, nor it is apparent how public
knowledge of PSD agents’ email addresses would illuminate EPA’s performance of its statutory
duties or otherwise inform citizens of EPA’s activities. See Pl.’s Opp’n at 29–31; Pl.’s Reply at
11–13. Plaintiff has therefore failed to show that disclosure of PSD agents’ email addresses
promotes a significant public interest, and PSD agents’ substantial privacy interest in their direct
contact information thus outweighs the public interest in disclosure of this information. See
Bartko, 898 F.3d at 72; Consumers’ Checkbook, Ctr. for Study of Servs. v. Dep’t of Health &
Hum. 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
information identifying individuals appears in law enforcement records, including investigators[.]”); Lesar v. Dep’t
of Justice, 636 F.2d 472, 487–88 (D.C. Cir. 1980) (concluding that FBI agents’ names were not subject to disclosure
because agents could face “public exposure or possible harassment”); Hunton & Williams LLP, 248 F. Supp. 3d at
257 (finding that Army employees, other than high-ranking officials, “clearly have a substantial privacy interest in
avoiding potential harassment”); Lamb v. Millennium Challenge Corp., 334 F. Supp. 3d 204, 216–17 (D.D.C. 2018)
(“[G]overnment investigators and employees have a legitimate interest in preserving the secrecy of matters that
conceivably could subject to them to annoyance or harassment in either their official or private lives.” (internal
quotation marks and citation omitted)); Michael v. Dep’t of Justice, Civ. A. No. 17-0197 (ABJ), 2018 WL 4637358,
at *11 (D.D.C. Sept. 27, 2018) (“[D]isclosure of personal information of law enforcement personnel may hinder the
ability to conduct ongoing investigations, may lead to unwarranted harassment, and may otherwise cause
embarrassment and constitute the invasion of privacy that is contemplated by the Exemptions.”); Tracy v. Dep’t of
Justice, 191 F. Supp. 3d 83, 95 (D.D.C. 2016) (allowing the FBI “to withhold the names of FBI employees” under
Exemption 7(C) due to the generalized threat of public harassment).
63
interest, outweighs nothing every time.’” (quoting Nat’l Ass’n of Retired Fed. Emps., 879 F.2d at
879)); Hunton & Williams LLP, 248 F. Supp. 3d at 257 (finding Army employees’ government
email addresses exempt from disclosure in part because the plaintiff “d[id] not identify any
public interest in this information”).12
As to the names of PSD agents, EPA again relies on the privacy interests of these
individuals in remaining free from threats and harassment by individuals “seeking information
about the Administrator . . . [and] seeking to disrupt the Administrator’s activities,” Walker Decl.
¶ 6, as well as “harassing queries for unauthorized access to information” about “sensitive
environmental criminal investigations,” id. ¶ 7. Further, EPA is concerned about “retaliation
against PSD agents involved in investigations” of individuals prior to or simultaneous with their
being assigned to protect the Administrator. Id.; see also, e.g., Hunton & Williams LLP, 248 F.
Supp. 3d at 258 (recognizing Army employees’ “privacy interest in keeping their names from the
public spotlight” in part because of the threat that they “could become targets of harassing
inquiries for unauthorized access to information” (internal quotation marks omitted)).
12
Though plaintiff does not set forth any public interest in the email addresses, it does claim that they are not
exempt from disclosure because EPA’s online staff directory makes this information readily available to the public.
Of course, “when an agency has officially acknowledged otherwise exempt information through prior disclosure, the
agency has waived its right to claim an exception with respect to that information.” ACLU v. CIA, 710 F.3d 422,
426 (D.C. Cir. 2013). To raise an “official acknowledgment” argument, plaintiff bears the “‘initial burden of
pointing to specific information in the public domain that appears to duplicate that being withheld.’” Id. at 427(quoting Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007)). To this end, plaintiff asserts that “[its] counsel . . . was
readily able to identify [similarly situated agents’] email addresses on EPA’s publicly available Staff Directory
merely by searching their names.” Pl.’s Opp’n at 30; see also Wilcox Decl. ¶ 45. EPA counters that “the only
reason that [p]laintiff was able to locate [these] agents’ email addresses on EPA’s staff directory was because
[p]laintiff already knew the names of those individuals” to search on the directory. Def.’s Reply at 17 n.7. EPA’s
online staff directory allows users to search for EPA employees by first and last name and work location. See EPA,
Staff Directory (last visited Feb. 12, 2021), https://cfpub.epa.gov/locator/index.cfm. “A minimum of the first two
letters of the [employee’s] last name must be used” to initiate a search. Id. Search results do not list individual
employees’ job titles, but do include their EPA email addresses. These features of the online staff directory suggest
that the precise information plaintiff seeks, that is, the identities of particular PSD agents paired with their email
addresses, is not available in the public domain, at least not without prior knowledge of PSD agents’ identities.
Indeed, plaintiff’s own successful searches were predicated on identification of the relevant agents in court
decisions. See Pl.’s Opp’n at 30; Wilcox Decl. ¶ 45. Plaintiff has therefore failed to carry its burden to raise an
“official acknowledgment” argument against withholding of the email addresses.
64
Plaintiff asserts a countervailing public interest in the identities of PSD agents assigned to
protect Administrator Wheeler based on an EPA OIG report, produced by the agency in response
to the FOIA Request, which found that the cost of former Administrator Pruitt’s security detail,
“around $3.5 million in his first year alone,” represented “a 110 percent increase over the
previous period.” Pl.’s Opp’n at 29–30; see also Wilcox Decl., Ex. 47, OIG, EPA, Report No.
19-P-0155, Actions Needed to Strengthen Control over the EPA Administrator’s and Associated
Staff’s Travel (2019) (“OIG Report”) at 3, ECF No. 20-51. Plaintiff alleges that Administrator
Pruitt’s security detail was “three times as large as for previous EPA Administrators,” Pl.’s
Opp’n at 29 (citing FOIA Request at 19), and that the PSD agents who contributed to this
increased detail “were permanently transferred from CID [EPA’s Criminal Investigation
Division] to Pruitt’s security detail ‘with no significant responsibilities for investigating
environmental crimes’” pursuant to EPA’s statutory mandates, id. at 30 (quoting OIG Report at
13). Thus, plaintiff contends, knowing the identities of the transferred PSD agents “would allow
the public to assess the effects of these reductions on environmental enforcement actions and to
assess whether EPA is still overstaffing the PSD.” Id.; see also Pl.’s Reply at 12–13.
EPA counters that “PSD payroll and travel costs for the time period of [p]laintiff’s
request, and prior years, are publicly available on EPA’s website,” Def.’s Reply at 16; see also
Walker Decl. ¶ 5, such that disclosure is not necessary for the public interests identified by
plaintiff to be satisfied. EPA is correct that “the availability of the information [sought by a
FOIA requester] through other sources” is “relevant to the public interest,” Prison Legal News,
787 F.3d at 1147, to the extent this publicly available information might reduce the public
interest in disclosure for the purpose of facilitating evaluation of EPA’s spending. Without the
identities of the PSD agents, however, plaintiff “cannot determine which CID agents were
65
transferred to the PSD, and therefore taken off of environmental enforcement duties; how that
may affect the CID’s environmental enforcement abilities; and which statute(s) these PSD agents
formerly enforced prior to being reassigned.” Pl.’s Reply at 12. Even if EPA is correct that
“[t]he specific names and email addresses of individual agents . . . offer[] no insight into [the]
costs” associated with agents’ assignment to the PSD beyond that provided by the cost-related
information on its website, Def.’s Reply at 16, the separate public interest in EPA’s reallocation
of its CID agents for use by the Administrator as PSD agents and the impact of such reallocation
on EPA’s execution of its statutory duties remains unsatisfied. Nor is it clear that plaintiff could
obtain the information it seeks through any other publicly available means. Plaintiff has thus
stated a cognizable public interest in disclosure of PSD agents’ names.
The burden, then, falls on EPA to “explain[] why disclosure of [PSD agents’ names]
would . . . be ‘reasonably . . . expected to constitute an unwarranted invasion’” of agents’
personal privacy, “when balanced against the public interest in disclosure.” Bartko, 898 F.3d at
66 (second omission in original) (quoting 5 U.S.C. § 552(b)(7)(C)). EPA’s declarations and
Vaughn Index make no apparent effort to weigh the public interest in disclosure against PSD
agents’ privacy interests in nondisclosure of their names. See Vaughn Index at 5–6; White Decl.
¶¶ 44–47. In its briefing, EPA argues only that, in the “absence of any countervailing public
interest,” EPA’s withholdings are justified, Def.’s Reply at 16, falling far short of its burden
under Exemption 7(C).
In any event, the balancing of interests favors disclosure. Although PSD agents have a
strong privacy interest in their identities, EPA appears to routinely release the names of CID and
PSD agents for public relations purposes, for example, positive press coverage about CID or
PSD agents, see, e.g., Suppl. Decl. of Stuart Wilcox (“Suppl. Wilcox Decl.”), Ex. 52, Thomas
66
Korosec, Meet the EPA’s Top Cop, D MAG. (Apr. 2012), ECF No. 25-2 (identifying a CID agent
by name), and press releases about successful investigations undertaken with CID involvement.13
Further, EPA does not identify any particularized risk of threat or harassment to PSD agents
assigned to protect Administrator Wheeler. See, e.g., Hunton & Williams LLP, 248 F. Supp. 3d
at 258 (finding that the public interest in disclosure outweighed Army employees’ privacy
interest in their names where “the Army d[id] not give any reason to believe that [the employees
whose names were redacted] face particular risks” of harassment); Sierra Club v. EPA, No. 3:18-
cv-03472-JCS, 2020 WL 7240211, at *5 (N.D. Cal. Dec. 8, 2020) (noting that “[w]hile the mere
potential for harassment creates a cognizable interest even in the absence of any certainty that
harassment would result, . . . [w]here the EPA has offered no reason to believe that the particular
individuals at issue in this case would face harassment if their names or email addresses were
disclosed, the Court assigns relatively little weight to that potential harm,” though declining to
determine whether such information is exempt from disclosure (emphasis, internal quotation
marks, and citation omitted)); see also Pl.’s Notice of Suppl. Authority at 1, ECF No. 26
(pointing to Sierra Club, 2020 WL 7240211, for this proposition).
Plaintiff, on the other hand, has identified a significant public interest in tracing EPA’s
transfer and reallocation of law enforcement agents from investigatory duties within CID to the
Administrator’s PSD and any “concomitant reduction in enforcement actions at EPA.” Pl.’s
Reply at 12. This interest will be furthered by disclosure of the names of the Administrator’s
PSD agents because plaintiff, or others, can use this information to determine how many agents
13
See, e.g., Suppl. Wilcox Decl., Ex. 55, Press Release, U.S. Dep’t of Justice, U.S. Att’y’s Off., D. Haw.,
Eleven Defendants Charged in Hawaii Federal Court with Racketeering & Other Offenses (July 15, 2020), ECF No.
25-5 (naming a CID special agent assigned to an investigation that resulted in extensive criminal charges); id., Ex.
58, Press Release, U.S. Dep’t of Justice, U.S. Att’y’s Off., N.D.N.Y., Former Fulton County Tannery Owner
Ordered to Pay Restitution for Clean-up of Hazardous Waste (May 15, 2020), ECF No. 25-8 (naming a CID special
agent assigned to an investigation that resulted in a substantial fine).
67
were shifted from investigation and enforcement to protection. This is a weighty public interest
that will, in part, reveal how EPA functions and how it carries out its statutory duties. Summary
judgment as to these records is therefore granted for plaintiff.
4. Information Withheld Pursuant to Exemption 7(E)
Finally, plaintiff contests EPA’s withholding, pursuant to FOIA Exemption 7(E), of
information in three calendar entries, one from January 4, 2019 and two from different times on
January 24, 2019, identifying “the specific room in the White House where a regular meeting
concerning clean air fuel economy standards took place.” White Decl. ¶ 49; see also Vaughn
Index at 4.
Exemption 7(E) protects law enforcement records to the extent disclosure of those
records “would disclose techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if
such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C.
§ 552(b)(7)(E). This “risk of circumvention” standard “‘sets a relatively low bar for the agency
to justify withholding’” of documents within the statutory categories of law enforcement
techniques, procedures, or guidelines. PEER, 740 F.3d at 205 (quoting Blackwell v. FBI, 646
F.3d 37, 42 (D.C. Cir. 2011)). In order to prevail, “an agency must demonstrate only that release
of a document might increase the risk ‘that a law will be violated or that past violators will
escape legal consequences.’” Id. (quoting Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C.
Cir. 2009)). EPA’s burden, then, is that of “‘demonstrat[ing] logically how the release of the
requested information might create a risk of circumvention of the law.’” Blackwell, 646 F.3d at
42 (quoting Mayer Brown LLP, 562 F.3d at 1194).
Like Exemption 7(C), invocation of Exemption 7(E) requires an agency first to make a
threshold showing that the records it seeks to withhold were compiled for law enforcement
68
purposes. The D.C. Circuit has found that “‘federal building plans and related information—
which may have been compiled originally for architectural planning or internal purposes—may
fall within Exemption 7 if that information is later compiled and given to law enforcement
officers for security purposes.’” PEER, 740 F.3d at 203 (quoting Milner, 562 U.S. at 584 (Alito,
J., concurring)). The disputed calendar entries, which include specific locations within the White
House where a regular meeting attended by senior government officials is held, might qualify as
law enforcement records under this definition, but neither the agency’s Vaughn Index nor its
declarations indicate that the meeting locations were shared or otherwise known by law
enforcement officers. Further, in defense of its determination that these records were compiled
for law enforcement purposes, EPA states only that they qualify as such “[d]ue to the high
security concerns associated with particular locations in the White House.” Vaughn Index at 4;
see also White Decl. ¶ 49. Allowing agencies to claim that withheld records are “compiled for
law enforcement purpose” because they implicate nebulous “high security concerns,” without
offering any specification of the law enforcement ends to which the records relate or indeed, any
evidence that the records were even used by or made available to law enforcement, would
deprive Exemption 7’s threshold inquiry of all meaning.
Even if the calendar entries were law enforcement records, EPA has not met its burden to
withhold information under Exemption 7(E) because it has not identified a law enforcement
technique, procedure, or guideline connected to the redacted room locations or any way in which
disclosure of this information would create or enhance a risk of violation of the law. To merit
nondisclosure, “the agency must at least provide some explanation of what [law enforcement]
procedures are involved and how they would be disclosed.” CREW I, 746 F.3d at 1102. Here,
EPA disregards the statutory text’s focus on “techniques,” “procedures,” and “guidelines”
69
entirely. Instead, it jumps straight to this Circuit’s “risk of circumvention standard,” without
satisfying the preliminary requirement of explaining how the disputed information is linked to a
law enforcement technique, procedure, or policy. See Def.’s Mem. at 21–22; Def.’s Reply at 18.
Nor has EPA carried its burden with respect to the “risk of circumvention” showing. The
agency provides only a barebones justification for its withholding of the room locations,
representing that “disclosure would pose operational challenges for security” and therefore
“could reasonably be expected to risk circumvention of the law.” Vaughn Index at 4; see also
White Decl. ¶ 49. Operational challenges, however, do not create or enhance any risk of
circumvention of the law in and of themselves. They may complicate the government’s response
to or prevention of potential circumventions of the law, and thus indirectly raise the risk of
violations, but that interest falls outside the scope of Exemption 7(E), which is trained on the
risks that result from the disclosure of information about “law-enforcement techniques and
procedures” that would assist a prospective wrongdoer in planning their misconduct. Elec. Priv.
Info. Ctr. v. Dep’t of Justice, Civ. A. Nos. 19-810 (RBW), 19-957 (RBW), 2020 WL 5816218, at
*11 (D.D.C. Sept. 30, 2020) (internal quotation marks and citation omitted); see also Pinson v.
Dep’t of Justice, 243 F. Supp. 3d 74, 80 (D.D.C. 2017) (Exemption 7(E) protects “material that
would compromise law enforcement by revealing information about investigatory techniques
that are not widely known to the general public.” (internal quotation marks and citation
omitted)). Further, the meetings at issue occurred in January 2019, a fact that leaves open the
question of whether disclosure of room locations used for meetings more than two years ago
would in fact implicate any current law enforcement tactics or introduce a risk of illegal activity
today. In sum, EPA has not connected the dots between the withheld information and the “risk”
of circumvention of the law it asserts. Summary judgment with respect to these records is
70
therefore granted for plaintiff, and EPA must produce the room locations in the three contested
calendar entries.
C. Foreseeable Harm
Plaintiff next contends that, even if the disputed records are exempt from disclosure,
“EPA has not met its burden” under the FOIA Improvement Act of 2016 “to show that releasing
the withheld records [at] issue would cause any cognizable foreseeable harm.” Pl.’s Opp’n at 35;
see also Pl.’s Reply at 16–20. The FOIA Improvement Act provides that “[a]n agency shall
withhold information . . . only if the agency reasonably foresees that disclosure would harm an
interest protected by” one of the nine FOIA exemptions. 5 U.S.C. § 552(a)(8)(A). This
provision requires agencies withholding information under an exemption to show not only that a
withheld record “falls within a FOIA exemption,” but also that “the agency ‘reasonably foresees
that disclosure would harm an interest protected by [the] exemption.’” Machado Amadis, 971
F.3d at 370 (alteration in original) (quoting 5 U.S.C. § 552(a)(8)(A)(i)(I)).
An agency successfully makes this second, “heightened” showing, Judicial Watch, Inc. v.
Dep’t of Com., 375 F. Supp. 3d 93, 100 (D.D.C. 2019), by “‘identify[ing] specific harms to the
relevant protected interests that it can reasonably foresee would actually ensue from disclosure of
the withheld materials’ and ‘connect[ing] the harms in [a] meaningful way to the information
withheld,’” Ctr. for Investigative Reporting, 436 F. Supp. 3d at 106 (third alteration in original)
(quoting Judicial Watch, Inc. v. Dep’t of Justice (“Judicial Watch II”), Civ. A. No. 17-0832
(CKK), 2019 WL 4644029, at *5 (D.D.C. Sept. 24, 2019)); see also H.R. Rep. No. 114-391, at 9
(2016) (“An inquiry into whether an agency has reasonably foreseen a specific, identifiable harm
that would be caused by a disclosure would require the ability to articulate both the nature of the
harm and the link between the specified harm and specific information contained in the material
withheld.”). Agencies therefore “must provide more than ‘nearly identical boilerplate
71
statements’ and ‘generic and nebulous articulations of harm.’” Ctr. for Investigative Reporting,
436 F. Supp. 3d at 106 (quoting Judicial Watch II, 2019 WL 4644029, at *4–5).
Of course, the agency’s burden to demonstrate that harm would result from disclosure
may shift depending on the nature of the interests protected by the specific exemption with
respect to which a claim of foreseeable harm is made. See, e.g., Rosenberg v. Dep’t of Def., 442
F. Supp. 3d 240, 259 (D.D.C. 2020) (“The degree of detail necessary to substantiate a claim of
foreseeable harm is context-specific.”); S. Rep. No. 114-4, at 8 (2015) (anticipating that
foreseeable harm determinations would turn on “whether the agency reasonably foresees that
disclosing that particular document, given its age, content, and character, would harm an interest
protected by the applicable exemption”). The purpose of the attorney-client privilege
encompassed by Exemption 5, for example, is to provide an “assurance of confidentiality” to
clients, Animal Welfare Inst. v. Nat’l Oceanic & Atmospheric Admin., 370 F. Supp. 3d 116, 130
(D.D.C. 2019) (internal quotation marks and citation omitted), such that disclosure of privileged
information is a harm in and of itself. When invoking the attorney-client privilege, then, an
agency likely does not need to reach far beyond the fact of disclosure to show foreseeable harm.
By contrast, foreseeable harm under the deliberative process privilege requires the withholding
agency to show more. The agency “cannot simply rely on generalized assertions that disclosure
could chill deliberations.” Machado Amadis, 971 F.3d at 371 (internal quotation marks omitted).
Rather, the agency must “provide ‘context or insight into the specific decision-making processes
or deliberations at issue, and how they in particular would be harmed by disclosure.’” Ctr. for
Investigative Reporting, 436 F. Supp. 3d at 107 (quoting Judicial Watch II, 2019 WL 4644029,
at *5).
72
If an agency fails to show that a withheld record fits within the claimed exemption in the
first instance, the foreseeable harm analysis need not be addressed. See Machado Amadis, 971
F.3d at 370. Thus, EPA’s assertions of foreseeable harm are considered only with respect to the
internal briefing documents discussed supra Part III.B.1.a (Bates Nos. 04639, 05410, 05438); the
July 11, 2018 calendar entry containing “preparation notes for an upcoming meeting between
Administrator Wheeler and Australian Minister [of Environment and Energy] Josh Frydenberg,”
Vaughn Index at 7; the “Key Messages” and “Background” sections of an internal briefing
document about the same meeting (Bates No. 17459), discussed supra Part III.B.1.b; and three
partially or fully withheld records that plaintiff challenges only on segregability and foreseeable
harm grounds (one July 5, 2018 calendar entry, see Vaughn Index at 6, and two calendar
attachments with Bates Nos. 17566 and 17637, see id. at 17–18), see supra n.4; Wilcox Decl.
¶ 42.
EPA asserts the deliberative process privilege with respect to all of these withholdings.
The D.C. Circuit recently considered the adequacy of an agency’s foreseeable harm showing
under the deliberative process privilege in Machado Amadis. In that case, the agency’s affidavit,
submitted in support of its deliberative-process redactions from the contested “Blitz Forms,” see
supra Part III.B.1.b.ii, stated that the withheld material revealed “line attorneys’ evaluations,
recommendations, discussions, and analysis which are prepared for senior-level review and
decisionmaking,” Machado Amadis, 971 F.3d at 370 (internal quotation marks omitted), and
claimed that disclosure of this information “would discourage line attorneys from candidly
discussing their ideas, strategies, and recommendations, thus impairing the forthright internal
discussions necessary for efficient and proper adjudication of administrative appeals,” id. at 371
(alteration and internal quotation marks omitted). The D.C. Circuit found this showing of
73
foreseeable harm sufficient because the agency “specifically focused on the information at issue”
and properly “concluded that disclosure of that information would chill future internal
discussions.” Id. (internal quotation marks omitted).
EPA’s Vaughn Index in this case makes a similarly adequate showing. As in Machado
Amadis, EPA identifies the contents of the documents with sufficient particularity. See Vaughn
Index at 6, 7, 10, 12, 13, 14, 17,18, 29; supra Part III.B.1. The agency affirmatively concludes,
with respect to each record, that disclosure would harm an interest protected by the privilege.
See Machado Amadis v. Dep’t of Justice, 388 F. Supp. 3d 1, 18–19 (D.D.C. 2019) (summarizing
the relevant interests as (1) “protect[ing] creative debate and candid consideration of alternatives
within an agency, and, thereby, improv[ing] the quality of agency policy decisions,” (2)
“protect[ing] the public from the confusion that would result from premature exposure to
discussions occurring before the policies affecting it had actually been settled upon,” and (3)
“protect[ing] the integrity of the decision-making process itself by confirming that officials
would be judged by what they decided, not for matters they considered before making up their
minds” (internal quotation marks and citations omitted)). EPA states that disclosure of the
withheld information “would hamper the efficient day-to-day workings of EPA,” Vaughn Index
at 10, by “hav[ing] a chilling effect on the Agency’s ability to engage in open and frank
discussions concerning . . . recommendations to EPA senior leadership” on the particular topic or
type of decision at issue, Vaughn Index at 6; see also, e.g., id. at 7, 10, 12 (disclosure would
“impair agency staff’s ability to brief issues with candor and provide advice and options to senior
level decisionmakers”), 13, 14, 17, 18. For some of the records, EPA submits that release would
generate “public confusion” concerning the agency’s final decision. See, e.g. id. at 7, 10, 13, 14,
74
17, 18. These predicted results of disclosure are “exactly what the privilege seeks to prevent.”
Machado Amadis, 971 F.3d at 371.
Like the declarations found sufficient in Machado Amadis, EPA also draws a sufficient
link between these specified harms and “specific information contained in the material
withheld.” Judicial Watch II, 2019 WL 4644029, at *4 (internal quotation marks and citation
omitted). Take, for example, EPA’s Vaughn Index entry for one of the contested records, a two-
page “internal draft briefing document” that “identifies . . . a citizen science-related issue” and
provides a “‘proposed response’ or proposed Agency action related to the identified issue.”
Vaughn Index at 18. EPA withheld the proposed responses and agency actions, which it states
“do[] not reflect an official Agency decision or policy,” consist of “analysis, suggestions and
proposals on the identified citizen science issues,” and were drafted by EPA staff to “brief
Administrator Wheeler and other senior leaders on these near-term citizen science-related issues
and plans so as to facilitate decision-making.” Id. As to foreseeable harm, the agency explains
that “disclosure would constrain EPA’s ability to perform its basic functions, as staff would no
longer feel free to identify issues and propose to senior decision-makers solutions to address
those issues” and that “release could cause public confusion by disclosing the thoughts and
analysis expressed in the briefing document,” as compared to actions actually taken by EPA on
the identified citizen science-related issues. Id. This explanation “specifically connects
disclosure of [the record] to a tangible chilling effect,” here among EPA staff when drafting
options to resolve issues for senior officials’ consideration, and a concrete risk of generating
public confusion. Judicial Watch, Inc. v. Dep’t of Justice, Civ. A. No. 17-0832 (CKK), 2020
WL 5593930, at *5 (D.D.C. Sept. 18, 2020) (finding a similar level of detail sufficient in light of
Machado Amadis). EPA provides similarly specific explanations of “why the disclosure of [a]
75
particular [record] would implicate the specific harms identified” for each of the challenged
records. Id. at *4; see Vaughn Index at 6, 7, 10, 12, 13, 14, 17,18. The standard of Machado
Amadis appears to require nothing more.
EPA has sufficiently connected disclosure of the withheld information in these records to
a foreseeable harm and has therefore fully justified this subset of its deliberative process
withholdings under Exemption 5.
D. Segregability
FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which are exempt” from
disclosure. 5 U.S.C. § 552(b). Producing segregable information is essential for agencies’ FOIA
compliance, and “district courts cannot approve withholding exempt documents ‘without making
an express finding on segregability.’” Machado Amadis, 971 F.3d at 371 (quoting Morley, 508
F.3d at 1123); see also Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 734 (D.C.
Cir. 2008) (“[B]efore approving the application of a FOIA exemption, the district court must
make specific findings of segregability regarding the documents to be withheld.” (internal
quotation marks and citation omitted)); Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116
(D.C. Cir. 2007).
In evaluating segregability, “[a]gencies are entitled to a presumption that they complied
with the obligation to disclose reasonably segregable material.” Sussman, 494 F.3d at 1117.
Even under that presumption, “the agency must provide a ‘detailed justification’ for [the exempt
material’s] non-segregability,” but need not “provide so much detail that the exempt material
would be effectively disclosed.” Johnson v. Exec. Off. for U.S. Att’ys, 310 F.3d 771, 776 (D.C.
Cir. 2002) (quoting Mead Data Ctr., Inc. v. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir.
1977)). Affidavits attesting to the agency’s “line-by-line review of each document withheld in
76
full” and the agency’s determination “that no documents contained releasable information which
could be reasonably segregated from the nonreleasable portions,” in conjunction with a Vaughn
index describing the withheld record, suffice. Id. (internal quotation marks omitted); see also
Loving v. Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008) (stating that “the description of the
document set forth in the Vaughn index and the agency’s declaration that it released all
segregable material” are “sufficient for [the segregability] determination”).14
To this end, EPA has averred that “all of the information withheld was carefully reviewed
to ensure that the Agency has disclosed all reasonably segregable non-exempt information” and
that EPA “provided supplemental releases of information where possible.” White Decl. ¶ 68.
Corroborating these statements is the fact that of the disputed records for which EPA has
justified its withholdings or for which plaintiff does not contest EPA’s withholdings, all but one
was released with redactions. See Vaughn Index at 6, 7, 10, 12, 13, 14, 17, 18, 29. Further,
EPA’s declaration states that “[t]the remaining withheld information, if released, would reveal
the information sought to be protected by the exemptions claimed,” White Decl. ¶ 68, and its
Vaughn Index represents, for each of the contested documents, that any potentially non-exempt
factual information is “inextricably intertwined” with privileged information, see Vaughn Index
at 6, 7, 11, 13, 15, 17, 18–19, 29. See, e.g., Ctr. for Biological Diversity, 369 F. Supp. 3d at 26
(relying on similar “inextricably intertwined” language in EPA’s declarations to find non-
segregability). Therefore, EPA’s declaration and Vaughn Index are sufficient to establish non-
14
The FOIA Improvement Act of 2016 added another provision concerning segregability: “An agency
shall . . . (I) consider whether partial disclosure of information is possible whenever the agency determines that a full
disclosure of a requested record is not possible; and (II) take reasonable steps necessary to segregate and release
nonexempt information.” 5 U.S.C. § 552(a)(8)(A)(ii). The D.C. Circuit has interpreted subsection (b) of FOIA to
be satisfied by affidavits attesting to the agency’s “line-by-line review of each document withheld in full” and the
agency’s determination “that no documents contained releasable information which could be reasonably segregated
from the nonreleasable portions.” Johnson, 310 F.3d at 776 (internal quotation marks omitted). The FOIA
Improvement Act’s new provision on segregability “appears to require no more than that.” Ctr. for Investigative
Reporting, 436 F. Supp. 3d at 115.
77
segregability of the disputed exempt records. Summary judgment as to these records is granted
for defendant.
IV. CONCLUSION
For the foregoing reasons, EPA’s Motion for Summary Judgment, ECF No. 19, is granted
in part and denied in part. EPA is granted summary judgment on Count III as to the adequacy of
its search and partial summary judgment on Count II with respect to certain of its withholdings
under Exemption 5’s deliberative process privilege. These withholdings include all withholdings
from three briefing documents attached to calendar entries (Bates Nos. 04639, 05410, and
05438); a July 11, 2018 calendar entry containing information about Administrator Wheeler’s
meeting with Minister Frydenberg (Vaughn Index at 7); and the redaction of the “Key Messages”
and “Background” sections from the briefing document with Bates No. 17459, as well as
withholdings from the records contested by plaintiff only with respect to segregability and
foreseeable harm (a July 5, 2018 calendar entry, Vaughn Index at 6; calendar attachments with
Bates Nos. 17566 and 17637; and a four-page internal briefing document, Vaughn Index at 29).
As for EPA’s withholdings under Exemption 5 from the NEC meeting agenda (Bates No.
17471), the agency must either produce the withheld information or supplement its Vaughn
Index and/or declarations consistent with this Memorandum Opinion.
Plaintiff’s Cross-Motion for Summary Judgment, ECF No. 20, is granted in part and
denied in part. Plaintiff is granted partial summary judgment on Count II with respect to EPA’s
withholdings under Exemption 5’s deliberative process privilege of talking points and related
information in the calendar attachments discussed supra Part III.B.1.b.iii (Bates Nos. 05385,
17459, 17552, 17727, 17816, 17838, 17919, and 17961) and as to EPA’s withholding of
78
information pursuant to Exemptions 6, 7(C), and 7(E). EPA must produce all such records
consistent with this Memorandum Opinion. Plaintiff is otherwise denied summary judgment.
The parties are directed to submit, by March 12, 2021, a joint status report as to the
progress, if any, the parties have made to narrow the remaining disputed issues and to propose a
schedule to govern further proceedings in this matter.
An order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: February 13, 2021
__________________________
BERYL A. HOWELL
Chief Judge
79