Public Employees for Environmental Responsibility v. Environmental Protection Agency Region 9

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PUBLIC EMPLOYEES FOR :
ENVIRONMENTAL RESPONSIBILITY, :
:
Plaintiff, : Civil Action No.: 14-2056 (RC)
:
v. : Re Document Nos.: 33, 38
:
ENVIRONMENTAL PROTECTION :
AGENCY, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S RENEWED M OTION FOR SUMMARY
J UDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF’S RENEWED CROS S -
M OTION FOR SUMMARY J UDGMENT
I. INTRODUCTION
Plaintiff Public Employees for Environmental Responsibility (“PEER”) brings this
Freedom of Information Act (“FOIA”) suit seeking records from the Environmental Protection
Agency (“EPA”) concerning EPA’s involvement with “suspected or actual toxic contamination
at schools in the Santa Monica Malibu Unified School District” (“SMMUSD”). Compl. ¶ 5,
ECF No. 2. In a prior Memorandum Opinion, this Court determined that EPA had appropriately
withheld a small number of documents. 1 Pub. Emps. for Envtl. Responsibility v. EPA, 213 F.
Supp. 3d 1, 22–24 (D.D.C. 2016). Finding, however, that EPA had not sufficiently explained its
refusal to release most of the challenged records, the Court directed the agency to revise its
1 Specifically, the Court determined that EPA had properly withheld PRD 538, 935,
1438, and 1575 pursuant to FOIA Exemption 5 and the attorney-client privilege and PRD 367
pursuant to FOIA Exemption 6. Pub. Emps. for Envtl. Responsibility, 213 F. Supp. 3d at 22, 26.
submissions to permit judicial consideration of whether the documents are protected by the
claimed FOIA exemptions. See id. at 16. Since the Court issued its first opinion, the dispute has
narrowed to nineteen documents, EPA has submitted supplemental Vaughn indices and
additional declarations, and the Court has inspected all nineteen disputed documents in camera.
Now before the Court are the parties’ renewed cross-motions for summary judgment. For the
reasons set out below, the Court grants the agency’s motion for summary judgment except as to
PRD 260, 1095, 1108 and 1617, which EPA must disclose in full, and PRD 940 and 1449, which
EPA must disclose in part.
II. BACKGROUND
In August 2014, PEER submitted a request for records to EPA Region 9, pursuant to
FOIA, 5 U.S.C. § 552. See Def.’s Statement of Material Facts (“EPA Statement”) ¶ 1, ECF No.
18-1; Pl.’s Statement of Material Facts (“PEER Statement”) ¶ 1, ECF No. 20. Specifically,
PEER requested:
[E]mails and other written communications and notes of all communications from
October 1, 2013 to the present concerning or referencing suspected or actual toxic
contamination with [polychlorinated biphenyls (“PCBs”)] between named EPA
employees and any other EPA employees and (1) Senator Barbara Boxer, any
member of her staff, or the staff of the Senate Environment and Public Works
Committee which she chairs; (2) named members of the SMMUSD School
Board; (3) named members of the Malibu City Council or the City Council as a
group.
EPA Statement ¶ 1; PEER Statement ¶ 1. PEER also sought a fee waiver, which EPA granted.
See Decl. of Steven Armann (“Armann Decl.”) ¶ 16, ECF No. 18-3; PEER Statement ¶ 2.
Months later, PEER brought this suit, alleging that EPA had failed to provide any records, as
required by FOIA. See Compl. ¶¶ 1, 7. Soon after the Complaint was filed, EPA responded to
PEER’s request by releasing a group of responsive documents, but withholding others pursuant
to Exemptions 5 and 6 of FOIA. See Armann Decl. ¶ 17; EPA Statement ¶ 4; PEER Statement ¶
4. Subsequent discussions between PEER and EPA led to the release of additional documents—
some produced in full, and others partially redacted. See Armann Decl. ¶¶ 19–21; EPA
Statement ¶¶ 5–7; PEER Statement ¶ 5. Thereafter, the parties filed cross-motions for summary
judgment.
On September 30, 2016, this Court denied PEER’s motion for summary judgment and
granted in part and denied in part the EPA’s cross-motion. See Pub. Emps. for Envtl.
Responsibility, 213 F. Supp. 3d at 26. In their motions, the parties had addressed three categories
of documents: (1) documents withheld pursuant to Exemption 5 as being subject to the
deliberative process privilege, (2) documents withheld pursuant to Exemption 5 as being subject
to the attorney–client privilege, and (3) a document withheld pursuant to Exemption 6 as a record
implicating the privacy interests of an EPA employee. See id. at 10–11, 19, 25.
The Court found that EPA had met its burden of showing that the document withheld
under Exemption 6 was proper and that four records were properly withheld as privileged
attorney-client communications. See id. at 22–26. The Court held, however, that EPA’s Vaughn
index 2 was inadequate in certain respects and did not permit the Court to assess whether
documents were properly withheld under the deliberative process privilege or whether certain
other records were properly withheld under Exemption 5 for attorney-client privilege. Id. at 16.
Because of deficiencies in the Vaughn index, the Court also could not assess whether EPA had
2 As the Court explained in its prior Opinion, a “Vaughn index”—named for the case
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)—contains the agency’s justification for
invoking a particular FOIA exemption. See Pub. Emps. for Envtl. Responsibility, 213 F. Supp.
3d at 9.
met its burden of showing that it had released all reasonably segregable, nonexempt factual
material. See id. at 24.
The Court, in its discretion, allowed EPA an opportunity to supplement its Vaughn index.
See id. at 16–17. Specifically, it directed that EPA’s supplemental submissions “must show, at
the least: ‘(1) the nature of the specific deliberative process involved, (2) the function and
significance of the document in that process, and (3) the nature of the decisionmaking authority
vested in the document’s author and recipient.’” Id. at 18–19 (quoting Nat’l Sec. Counselors v.
CIA, 960 F. Supp. 2d 101, 189 (D.D.C. 2013)).
EPA has now supplemented its Vaughn index, and the parties have narrowed their dispute
to nineteen documents, all of which have been reviewed by the Court in camera. See EPA
Vaughn Index 5/11/17, ECF No. 43-2; Order (Oct. 5, 2017) (directing Defendant to submit
disputed records for in camera review), ECF No. 46; EPA Notice of Ex Parte In Camera Filing,
ECF No. No. 47. Now before the Court are the parties’ renewed cross-motions for summary
judgment. See Def.’s Renewed Mot. Summ. J. (“EPA Mot.”), ECF No. 33; Pl.’s Renewed
Cross-Mot. Summ. J. (“PEER Mot.”), ECF No. 38.
III. LEGAL STANDARD
FOIA “sets forth a policy of broad disclosure of Government documents in order ‘to
ensure an informed citizenry, vital to the functioning of a democratic society.’” FBI v.
Abramson, 456 U.S. 615, 621 (1982) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 242 (1978)). The Act mandates release of properly requested federal agency records,
unless the materials fall squarely within one of nine statutory exemptions. Milner v. Dep’t of
Navy, 562 U.S. 562, 565 (2011); Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833
(D.C. Cir. 2011) (citing 5 U.S.C. § 552(a)(3)(A), (b)). “FOIA cases typically and appropriately
are decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol,
623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Bigwood v. U.S. Agency for Int’l Dev., 484 F.
Supp. 2d 68, 73 (D.D.C. 2007)). The agency is entitled to summary judgment if no material
facts are genuinely in dispute and the agency demonstrates “that its search for responsive records
was adequate, that any exemptions claimed actually apply, and that any reasonably segregable
non-exempt parts of records have been disclosed after redaction of exempt information.”
Competitive Enter. Instit. v. EPA, 232 F. Supp. 3d 172, 181 (D.D.C. 2017). “This burden does
not shift even when the requester files a cross-motion for summary judgment because ‘the
Government ultimately has the onus of proving that the documents are exempt from disclosure,’
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.’” Hardy v. ATF, 243 F. Supp.
3d 155, 162 (D.D.C. 2017) (brackets omitted) (quoting Pub. Citizen Health Research Grp. v.
FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999)).
To carry its burden, the agency must provide “a relatively detailed justification,
specifically identifying the reasons why a particular exemption is relevant and correlating those
claims with the particular part of the withheld document to which they apply.” Electronic
Privacy Info. Ctr. v. U.S. Drug Enforcement Agency, 192 F. Supp. 3d 92, 103 (D.D.C. 2016)
(quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)).
In conducting its review, a court may also rely on its own in camera examination of disputed
documents to determine whether they were properly withheld under the claimed statutory
exemptions. See 5 U.S.C. § 552; see also, e.g., Citizens for Responsibility and Ethics in
Washington v. Nat’l Archives and Records Admin., 715 F. Supp. 2d 134, 140–42 (D.D.C. 2010)
(relying on the Court’s in camera review to resolve whether documents had been properly
withheld). This Court reviews the agency’s explanations de novo, and will endorse an agency’s
decision to withhold information if the justification for invoking a FOIA exemption “appears
‘logical’ or plausible.’” Pinson v. U.S. Dep’t of Justice, 245 F. Supp. 3d 225, 239 (D.D.C. 2017)
(quoting Wolf v. CIA, 473 F.3d 370, 374–75)). Nonetheless, “exemptions from disclosure must
be narrowly construed . . . and conclusory and generalized allegations of exemptions are
unacceptable.” Morley v. CIA, 508 F.3d 1108, 1114–15 (D.C. Cir. 2007) (citation and internal
quotation marks omitted).
IV. ANALYSIS
EPA contends that all nineteen disputed documents are protected from disclosure under
FOIA Exemption 5’s deliberative process privilege. PEER disagrees, arguing that (1) EPA has
failed to justify its withholdings under Exemption 5 and (2) some of the documents contain
segregable factual material that is subject to disclosure.
i. Applicability of FOIA Exemption 5
Exemption 5 permits an agency to withhold “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). It incorporates the deliberative process privilege, which
“protects ‘documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which government decisions and policies are formulated.’”
Loving v. U.S. Dep’t of Def., 550 F.3d 32, 38 (D.C. Cir. 2008) (Dep’t of Interior v. Klamath
Water Users Protective Ass’n (“Klamath Water”), 532 U.S. 1, 8 (2001)). “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, and its
object is to enhance ‘the quality of agency decisions,’ by protecting open and frank discussion
among those who make them within the Government.’” Klamath Water, 535 U.S. at 8–9
(internal citation omitted) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1984)).
It also “helps to prevent premature disclosure of proposed policies and protects against public
confusion through the disclosure of documents suggesting reasons for policy decisions that were
ultimately not taken.” Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252, 258–59
(D.D.C. 2004).
“To fall within the deliberative process privilege, materials must bear on the formulation
or exercise of agency policy-oriented judgment.” Petroleum Info. Corp. v. U.S. Dep’t of Interior,
976 F.2d 1429, 1435 (D.C. Cir. 1992). A record only qualifies for withholding if it is both
“predecisional” and “deliberative.” Access Reports v. U.S. Dep’t of Justice, 926 F.2d 1192, 1194
(D.C. Cir. 1991). “A document is predecisional if it is generated ‘before the adoption of an
agency policy.’” McKinley v. FDIC, 744 F. Supp. 2d 128, 138 (D.D.C. 2010) (quoting Coastal
States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). Records are
“deliberative” if they reflect “the give-and-take of the consultative process.” Coastal States Gas
Corp., 617 F.2d at 866. “[T]o come within the privilege and thus within Exemption 5, the
document must be a direct part of the deliberative process in that it makes recommendations or
expresses opinions on legal or policy matters.” Vaughn, 523 F.2d at 1143–44. The key question
in determining whether the material is deliberative “is whether disclosure of the information
would ‘discourage candid discussion within the agency.’” Access Reports, 926 F.2d at 1195(quoting Dudman Commc’ns Corp. v. U.S. Dep’t of Air Force, 815 F.2d 1565, 1567–68 (D.C.
Cir. 1987)).
To meet its burden, an “agency must establish ‘what deliberative process is involved, and
the role played by the documents in issue in the course of that process.’” Senate of P.R. v. U.S.
Dep’t of Justice, 823 F.2d 574, 585–86 (D.C. Cir. 1987) (quoting Coastal States Gas Corp., 617
F.2d at 868). “In addition to explaining the ‘function and significance of the document(s) in the
agency’s decisionmaking process,’ the agency must describe ‘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.’” Elec. Frontier Found. v. U.S. Dep’t of
Justice, 826 F. Supp. 2d 157, 168 (D.D.C. 2011) (quoting Arthur Andersen & Co. v. IRS, 679
F.2d 254, 258 (D.C. Cir. 1982)). The Court may also rely on its own in camera inspection of
documents to discern whether the deliberative process privilege applies. See Phillippi v. CIA,
546 F.2d 1009, 1012–13 (D.C. Cir. 1976) (“It is clear that the FOIA contemplates that the courts
will resolve fundamental issues in contested cases on the basis of in camera examinations of the
relevant documents.”); see also, e.g., Citizens for Responsibility and Ethics in Wash., 715 F.
Supp. 2d at 142.
A. Documents Properly Withheld Under Exemption 5
EPA claims that all nineteen disputed documents contain deliberative communications
about possible approaches to the issue of PCBs at schools in the SMMUSD. See EPA Vaughn
Index 5/11/17, ECF No. 43-2. Having reviewed the records in camera, the Court agrees that
PRD 240, 642, 827, 890, 940, 954, 1033, 1167, 1352, 1378, 1449, 1836, 1888, 1890, and 1966
were properly withheld under the deliberative process privilege. The redacted material in each
document contains internal agency deliberations that evaluate proposed policy options, suggest
next steps for the agency, or seek advice from other EPA components about policy alternatives.
Based on a combination of EPA’s revised Vaughn index and supplemental declarations and the
Court’s in camera review of these documents, EPA has adequately supported its application of
FOIA Exemption 5 with respect to these documents. The Court grants summary judgment to
EPA as to these records. 3
B. Documents Improperly Withheld Under Exemption 5
Based on the Court’s consideration of the entire record, four disputed documents—
specifically, PRD 260, 1095, 1108, and 1617—are not properly withheld pursuant to the
3 PEER’s arguments in favor of disclosure of the disputed records primarily focus on
inadequacies in EPA’s justifications for withholding them. Because the Court personally
reviewed each document and verified the applicability of Exemption 5 to the aforementioned
records, no elaborate, individualized discussion of why each record is properly withheld is called
for. The Court will, however, explain its conclusion as to PRD 240, which was primarily
disputed on the grounds that drafting comments cannot be withheld unless explicitly linked to a
policy deliberation or decision. See PEER Mot. at 3–6.
According to EPA, redacted portions of PRD 240 “contain[] staff impressions and
recommendations concerning how to draft [a] field report,” which “would be used by EPA to
plan further action (if needed) at [SMMUSD].” See Vaughn Index 5/11/17, ECF No. 43-2. EPA
contends that disclosure of redacted portions of this record may stifle internal discussions
regarding “how reports are drafted and what is included in reports” and could cause public
confusion “by disclosure of reasons, rationales and conclusions that were not in fact ultimately
part of the Field Report.” Id. PEER disputes EPA’s application of Exemption 5, arguing
primarily that EPA has not shown that the record is deliberative in nature and that this sort of
document likely includes factual information that is not protected by the privilege. PEER Mot.
at 3–6.
Having reviewed the record, the Court confirms that it does not contain technical, factual
material, but rather offers editorial suggestions concerning how to present information in a
report. Generally, employee recommendations and suggestions are covered by the deliberative
process privilege. See Coastal States Gas Corp., 617 F.2d at 866. And our Circuit Court has
clarified that editorial recommendations are protected. In the context of draft agency histories,
for example, the Circuit has explained that Exemption 5 applies because “‘disclosure of editorial
judgments’ made during the agency’s deliberative process ‘would stifle the creative thinking and
candid exchange of ideas necessary to produce good historical work.’” Nat’l Sec. Archive v.
CIA, 752 F.3d 460, 466 (D.C. Cir. 2014) (quoting Dudman Commc’ns Corp v. Dep’t of Air
Force, 815 F.2d 1565, 1569 (D.C. Cir. 1987)); see also Russell v. Dep’t of the Air Force, 682
F.2d 1045, 1048–49 (D.C. Cir. 1980). These same observations apply to PRD 240. Discussions
regarding what information to include in a final report and how to present that information is
sufficiently predecisional and deliberative to justify withholding under Exemption 5.
deliberative process privilege. The Court will assess EPA’s claims regarding each document and
explain why the asserted exemption does not apply. 4
1. PRD 260
PRD 260 is a chain of emails entitled “2009 PCB Dose Estimate Tool Indoor Air.”
Vaughn Index 5/11/17 at 2–3. EPA claims that redacted portions of the document “deliberate
about the EPA’s position on the IRIS reference dose posed by PCBs due to indoor air exposure.”
Id. The document is predecisional, EPA claims, because it communicates about proposed testing
and “the appropriate reference dose level of PCBs,” for a tool that may be used for testing in
SMMUSD. Id. Furthermore, EPA states that “release of this information would have a chilling
effect on the Agency’s ability to have open and frank discussions among its staff and other
Agency personnel concerning how best to address PCBs in schools” and that release could cause
public confusion. Id.The Court’s in camera review of PRD 260 reveals that it contains only clarifications and
internal explanation about why the IRIS reference tool had been designed a certain way. The
record features no discussion about future use or modification of the tool. Indeed, the email
exchange reveals no present challenge for agency employees to attempt to solve. Nor does the
document expose prior communications or information about the deliberative process within the
agency at the time the tool was created. This Court has explained that “[t]he most basic
requirement of the [deliberative process] privilege is that a document be antecedent to the
4 EPA withholds portions of these records as nonresponsive. Our Circuit Court has
explained that FOIA does not permit an agency to parse a responsive record to redact specific
information within it as non-responsive. Rather, all information within a responsive record is
subject to disclosure unless one of the FOIA exemptions specifically shields it. Am. Immigration
Lawyers Assoc. v. Exec. Office of Immigration Review, 830 F.3d 667, 677–79 (D.C. Cir. 2016).
Because PEER does not challenge EPA’s withholdings on this basis, the Court will not address
that issue sua sponte.
adoption of an agency policy.” Judicial Watch, Inc., 297 F. Supp. 2d at 260; see also Sears,
Roebuck & Co., 421 U.S. at 152 (explaining the public interest in release of postdecisional
communications). As this record explains design choices that had already been made, it cannot
be called predecisional and it therefore cannot be shielded under Exemption 5.
2. PRD 1095
PRD 1095 is an email exchange among EPA staff which “discuss[es] and comment[s] on
Toronto PCB study and SFEI studies on PCB caulk and the studies[’] applicability to Bay Area
buildings.” Vaughn Index 5/11/17 at 9, ECF No. 43-2. EPA argues that the withheld
information is protected because “it contains staff impressions and recommendations concerning
the studies and their applicability to PCB found in the grout at Malibu.” Id. Further, EPA claims
the record is predecisional because “the Agency had not yet responded to the questions posed by
the reporter and was seeking information in order to respond to the question.” Id. The document
bears no apparent connection to any agency decisionmaking process. Even the unredacted
record does not reveal anything about “the reporter” who was “seeking information” that EPA
mentioned in its Vaughn Index. The Court cannot readily assume that the document is
nonetheless related to some agency decision even though EPA relies on only this conclusory
claim to demonstrate the purportedly predecisional nature of this record. As the Court cannot tie
the EPA’s staff members’ comments on the external report to any internal policy decision or
decisionmaking process, it cannot condone EPA’s application of the deliberative process
privilege with regard to this document.
3. PRD 1108
According to EPA’s Vaughn Index, the two sentences redacted from PRD 1108 “contain
questions related to [a] study and its conclusions.” Vaughn Index 5/11/17 at 10, ECF No. 43-2.
More precisely, the Vaughn Index states that the two sentences “contain [] staff impressions and
recommendations concerning exposure to PCBs and its relationship to cancer as discussed” in
the study. Id. PEER disputes EPA’s statements, contending that the asserted rationales do not
appear to apply to this record. PEER Mot. at 14, ECF No. 38. Having reviewed the record in
camera, the Court discerns no relationship to any decisionmaking process and no connection
between these communications and any policy or proposed policy of the agency. Because these
communications are neither predecisional nor deliberative, the deliberative process privilege is
inapplicable to PRD 1108.
4. PRD 1617
PRD 1617 is an email exchange entitled “Emission Rates from Caulk.” Vaughn Index
5/11/17 at 15–16, ECF No. 43-2. EPA’s Vaughn Index explains that this record features
communications among EPA scientists and managers about “emission rates from caulks.” Id. at
15. In particular, EPA staff discuss a caulk study and how to analyze the results of the study,
including ways to calculate PCB values in caulk. See id. EPA contends that this record is
predecisional because “[t]hese discussions were held prior to any decision regarding the dust
samples at Malibu and contain back-and-forth on the proper way to interpret [the] study.” Id. at
16. EPA adds that it “had not yet made a final position based on the test results.” Id. For its
part, PEER asserts that EPA has not identified any decisionmaking process to which these
communication are associated “other than the cryptic and uninformative ‘final position based on
the test results.’” PEER Mot. at 18 (quoting Vaughn Index 5/11/17 at 16), ECF No. 43-2.
The Court agrees with PEER that EPA did not identify in its Vaughn Index and
declarations any particular decisionmaking process for which PRD 1617 was prepared. EPA’s
reference to a “final position based on the test results” is untethered to any decisionmaking
process and is insufficient by itself to demonstrate that these communications are predecisional.
EPA’s suggestion that this document played some role in decisions regarding dust samples at
Malibu is also insufficient. A document is not predecisional under Exemption 5 unless it was
“generated as part of a definable decision-making process.” Gold Anti-Trust Action Comm., Inc.
v. Bd. of Governors of the Fed. Reserve System, 762 F. Supp. 2d 123, 136 (D.D.C. 2011). An
agency’s post hoc realization that past deliberations might bear on new questions does not satisfy
this requirement.
Having inspected the record in camera, the Court finds that the redacted materials contain
explanations and clarifications relating to published EPA studies. As the Court explained above,
“the deliberative process privilege does not protect “documents that merely state or explain
agency decisions.” Judicial Watch, Inc. v. Dep’t of Health and Human Servs., 27 F. Supp. 2d
240, 245 (D.D.C. 1998); see also Nat’l Labor Relations Bd., 421 U.S. at 152 (explaining that
post-decisional communications not protected by FOIA Exemption 5). PRD 1617 may not be
withheld pursuant to the deliberative process privilege as the communications are neither
predecisional nor deliberative.
ii. Segregability
Because “the focus of FOIA is information, not documents . . . an agency cannot justify
withholding an entire document simply by showing that it contains some exempt material.”
Mead Data Cent., Inc., 566 F.2d at 260. Rather, FOIA requires the agency to release “[a]ny
reasonably segregable portion of a record . . . after deletion of the portions which are exempt.” 5
U.S.C. § 552(b); see also Mead Data Cent., Inc., 566 F.2d at 260 (“It has long been a rule in this
Circuit that non-exempt portions of a document must be disclosed unless they are inextricably
intertwined with exempt portions.”). “Before approving the application of a FOIA exemption,
the district court must make specific findings of segregability regarding the documents to be
withheld.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007).
PEER speculates that several disputed documents contain purely factual material that can
likely be segregated from properly withheld information. Cf. Army Times Publ’g Co. v. U.S.
Dep’t of Air Force, 998 F.2d 1067, 1071 (D.C. Cir. 1993) (“Exemption 5 applies only to the
deliberative portion of a document and not to any purely factual, non-exempt information the
document contains.”). PEER also challenges the adequacy of EPA’s explanations for non-
segregability. The Court agrees with PEER that EPA used boilerplate, conclusory language to
describe its efforts to segregate nonexempt, factual material from exempt material. Nearly every
Vaughn Index entry includes the exact same language on the question of segregability. To meet
its burden, “[a]n agency must provide a ‘detailed justification’ and not just make ‘conclusory
statements’ to support its segregability determination.” Goldstein v. IRS, 2017 WL 4358674, at
*12 (D.D.C. Sept. 29, 2017) (quoting Mead Data Cent., Inc., 566 F.2d at 261). EPA’s Vaughn
Index and declarations fall well short of this hurdle.
When an agency has failed to support its segregability determination, a court may
conduct its own in camera search for segregation non-exemption information. See Mead Data
Cent., Inc., 566 F.2d at 262. This Court’s inspection of the documents disputed in this case
confirms that most of the records do not feature reasonably segregable factual information. The
sparse factual material present in most of the documents “reflects an ‘exercise of discretion and
judgment calls’” and its “exposure would enable the public to probe an agency’s deliberative
process.” Leopold v. CIA, 89 F. Supp. 3d 12, 21 (D.D.C. 2015). Two documents—PRD 940 and
PRD 1449—however, contain some segregable factual material that must be released. Save for
the first, second, and final two redacted sentences from PRD 940, EPA must release this
document. EPA must also release the final two sentences currently redacted from PRD 1449.
V. CONCLUSION
For the foregoing reasons, EPA’s Renewed Motion for Summary Judgment is granted
with respect to PRD 240, 642, 827, 890, 954, 1033, 1167, 1352, 1378, 1836, 1888, 1890, and
1966 and denied with regard to the other disputed documents. PEER’s cross-motion for
summary judgment is granted in full with respect to PRD 260, 1095, 1108 and 1617 and in part
with respect to PRD 940 and 1449, which contain reasonably segregable factual information. An
order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: December 11, 2017 RUDOLPH CONTRERAS
United States District Judge