Public Employees for Environmental Responsibility v. United States Environmental Protection Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PUBLIC EMPLOYEES FOR
ENVIRONMENTAL RESPONSIBILITY,
Plaintiff,
v. Case No. 15-cv-1012 (CRC)
U.S. ENVIRONMENTAL PROTECTION
AGENCY – OFFICE OF THE
INSPECTOR GENERAL,
Defendant.
MEMORANDUM OPINION
Plaintiff Public Employees for Environmental Responsibility (“PEER”), a non-profit
organization broadly aimed at educating the public concerning the activities of government,
Compl. ¶ 1, sought records from the U.S. Environmental Protection Agency – Office of the
Inspector General (“EPA-OIG”) under the Freedom of Information Act, 5 U.S.C. § 552(“FOIA”), concerning a potential violation of federal “revolving-door” prohibitions by a former
member of the U.S. Chemical Safety and Hazard Investigation Board (“CSB”). After PEER
filed suit in this Court, the EPA-OIG produced nearly nine hundred pages of responsive records,
but partially redacted or fully withheld certain pages under various FOIA exemptions. EPA-OIG
now moves and PEER cross-moves for summary judgment, disputing one central issue: Does the
attorney-client privilege allow an agency to withhold memoranda, including factual findings,
written by agency investigators to agency lawyers in order to secure legal advice regarding the
criminal liability of an outside party? The Court concludes that it does, and grants summary
judgment for the EPA-OIG.
I. Background
PEER submitted a FOIA request to EPA-OIG in April 2014 seeking records related to a
February 2014 letter, submitted by the then-chair of the CSB, asking the EPA-OIG to investigate
a potential violation of the federal “revolving-door” statute, 18 U.S.C. § 207. Def.’s Mem. Supp.
Mot. Summ. J. (“Def.’s MSJ”), Ex. 1 (“Levine Decl.”), Ex. A. According to the FOIA request,
the letter included a “detailed allegation . . . involving a former CSB board member for his
interpleading before the CSB on behalf of his client, Chevron USA.” Id. More specifically,
PEER requested (1) the “Report of Investigation or other written memorialization of any EPA-
OIG inquiry into this allegation,” (2) “[a]ny decision memos of a decision not to conduct an
inquiry into this allegation”; and (3) “any communications after [the date of the letter] between
EPA-OIG personnel and any outside or non-OIG party concerning the subject matter of this
allegation.” Id.In June 2015, PEER filed this action under FOIA, alleging that the EPA-OIG had not yet
produced documents responsive to its FOIA request. Compl. ¶ 6. The EPA-OIG then conducted
searches for relevant documents—including a targeted search of the email accounts for four
particular individuals, and a broader search of three EPA-OIG offices. Levine Decl. ¶¶ 8–16. In
October 2015, the EPA-OIG provided PEER with 899 pages of responsive documents, but 57 of
those pages were partially redacted and 86 were fully withheld under FOIA Exemptions 5, 6, and
7(C). Id. ¶ 20; see 5 U.S.C. § 552(b)(5), (b)(6), (b)(7)(C). As relevant here, 23 pages of
responsive records were fully or partially withheld on the basis of attorney-client privilege under
Exemption 5, 5 U.S.C. § 552(b)(5), either because those documents arose in a context where
“OIG Investigator(s) sought legal counsel regarding allegations of potential violations of a
criminal statute,” or where an agency attorney was “present[ing] information, opinion and legal
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advice to a federal official.” Levine Decl. ¶ 23. Of particular note to PEER were three redacted
pages of a “Complaint Summary Report,” which the agency’s Vaughn index1 describes as “an
investigative document compiled for law enforcement purposes . . . which summarizes the details
of a complaint and the investigative findings related to that complaint” and “states that the
[c]omplaint was determined to be unsupported and [recommended that it] be closed[.]” Levine
Decl. ¶ 23, Ex. D, at 2 (Tracking Number OIG-1-3).
EPA-OIG now moves for summary judgment on the grounds that it has “produced all
reasonably segregable, non-exempt portions of responsive records, and properly asserted [FOIA
Exemption 5].” Def.’s MSJ 4. PEER cross-moves for summary judgment, making clear that it
challenges only those “specific redactions” EPA-OIG justified on the basis of attorney-client
privilege. Pl.’s Mem. Supp. Cross-Mot. Summ. J. (“Pl.’s Cross-MSJ”) 4, 6. The motions are
ripe for consideration.
II. Legal Standards
FOIA cases are generally resolved at summary judgment, see Brayton v. Office of U.S.
Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011), which is appropriately granted when the movant
has established that “there is no genuine dispute as to any material fact,” warranting “judgment
as a matter of law.” Fed. R. Civ. P. 56(a). In deciding a motion for summary judgment, the
1
Under FOIA, an agency asserting a disclosure exemption must submit a “Vaughn
index,” see Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), describing each withheld document
and explaining the agency’s nondisclosure. Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172,
1176 (D.C. Cir. 1996).
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Court assumes the truth of the non-movant’s evidence and draws all reasonable inferences in the
non-movant’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
FOIA imposes a general obligation on the government to provide records to the public,
but with explicit exceptions. 5 U.S.C. § 552(a)–(b). At issue here is FOIA’s Exemption 5,
which provides for the withholding of “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). The scope of Exemption 5 is properly “determined by reference to the
protections available to litigants in civil discovery; if material is not ‘available’ in discovery, it
may be withheld from FOIA requesters.” Burka v. U.S. Dep’t of Health & Human Servs., 87
F.3d 508, 516 (D.C. Cir. 1996). Consequently, although it is not limited to these categories, the
exemption protects “predecisional deliberative memoranda,” “attorney work product,” and—as
relevant here—“attorney-client communications.” Id.The attorney-client privilege protects confidential communications from client to
attorney, and from attorney to client. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854,
862 (D.C. Cir. 1980) (“While its purpose is to protect a client’s disclosures to an attorney, the
federal courts extend the privilege also to an attorney’s written communications to a client[.]”);
Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 254 n.25 (D.C. Cir. 1977)
(“[T]he [attorney-client] privilege has consistently included communications of the attorney to
the client as well as vice versa.”). Without protections for attorney-client communications,
agency officials might not share information with their counsel in the first place, and would
consequently be deprived of sound legal advice. This very policy concern grounds FOIA’s
Exemption 5. As the D.C. Circuit has explained:
Exemption [5] is intended to protect the quality of agency decision-making by
preventing the disclosure requirement of the FOIA from cutting off the flow of
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information to agency decision-makers. Certainly this covers professional advice
on legal questions which bears on those decisions. The opinion of even the finest
attorney, however, is no better than the information which his client provides. In
order to ensure that a client receives the best possible legal advice, based on a full
and frank discussion with his attorney, the attorney-client privilege assures him that
confidential communications to his attorney will not be disclosed without his
consent. We see no reason why this same protection should not be extended to an
agency’s communications with its attorneys under exemption five.
Mead Data, 566 F.2d at 252.
Of course, the attorney-client privilege is not an all-purpose FOIA evasion mechanism:
The privilege applies only to “[c]onfidential disclosures by a client to an attorney made in order
to obtain legal assistance,” Fisher v. United States, 425 U.S. 391, 403 (1976), and to an
attorney’s “communication [to the client] based on confidential information provided by the
client,” Schlefer v. United States, 702 F.2d 233, 245 (D.C. Cir. 1983). See also Mead Data, 566
F.2d at 252 (describing the privilege as covering “confidential communications between an
attorney and his client relating to a legal matter for which the client has sought professional
advice”). In this context, the “client” is the agency and its officials. Tax Analysts v. IRS, 117
F.3d 607, 618 (D.C. Cir. 1997). And those officials may be either “high-level agency personnel”
or “lower-echelon employees.” Judicial Watch v. Dep’t of the Army, 466 F. Supp. 2d 112, 121
(D.D.C. 2006).
In a FOIA case, “[t]he burden is on the agency to demonstrate . . . that the materials
sought . . . have not been improperly withheld.” DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989).
Here, that means the agency “must prove that [the withheld] document[s]” fall within the scope
of the attorney-client privilege. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). The Court
now turns to considering whether the EPA-OIG has discharged this burden with respect to the
documents here withheld.
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III. Analysis
As described above, EPA-OIG has cited attorney-client privilege under Exemption 5 to
justify the withholding of 23 pages of emails and investigative memoranda, most of them written
by OIG investigators for the purpose of seeking legal advice from either OIG or EPA attorneys
in connection with an identified, potential revolving-door violation. EPA-OIG describes these
documents as “quintessential attorney-client privilege materials because they (1) reflect
communications between an attorney and a client; and (2) . . . reflect communications of facts
and advice regarding a legal issue, namely an investigation into [the] potential violation(s) of a
criminal statute.” Def.’s MSJ 15.
PEER insists otherwise, arguing that the attorney-client privilege does not apply “when
agency communications do not concern ‘the legal ramifications of [the agency’s] action.’” Pl.’s
Cross-MSJ 8 (citing Vento v. IRS, 714 F. Supp. 2d 137, 151 (D.D.C. 2010)).2 Since “the EPA-
OIG’s investigation did not involve the conduct of any agency employee, but rather, an outside
third party,” PEER contends the withheld communications “had no bearing on EPA’s legal rights
or responsibilities,” and therefore the attorney-client privilege has no proper application. Pl.’s
Cross-MSJ 8–9.
This argument rests on false premises. First, as EPA-OIG points out, it is inaccurate to
say that the withheld communications “had no bearing” on the agency’s “responsibilities”: The
Inspector General (“IG”) Act of 1978, provides that “[i]n carrying out the duties and
2
Vento used this “legal ramifications” language, which actually derives from Mead Data,
566 F.2d at 253, but in context, the phrase means something along the lines of “legal advice.”
Vento therefore did not narrow the scope of the attorney-client privilege in the way PEER
suggests. And the Vento court followed the relevant language with the unremarkable statement
that “the mere fact that an attorney is listed as a recipient or author does not make a document
protected under [the attorney-client] privilege.” 714 F. Supp. 2d at 151.
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responsibilities established under this Act, each [IG] shall report expeditiously to the Attorney
General whenever the [IG] has reasonable grounds to believe there has been a violation of
Federal criminal law.” 5 U.S.C. § APP. 3 § 4(d) (emphasis added). In other words, by seeking
legal advice regarding the potential federal criminal liability of a former CSB member, the OIG
investigators were acting in direct furtherance of the agency’s statutory mandate.
Another defect in PEER’s argument is the exceedingly narrow conception of the
attorney-client privilege it advances. PEER’s rule—that the attorney-client privilege under
Exemption 5 covers only communications regarding “the legal ramifications of [an agency’s]
action,” meaning that the communication implicates information “damaging” to the agency or
involves a “potential [agency] misdeed,” Pl.’s Cross-MSJ 8–9—simply cannot be squared with
the relevant cases. Courts have applied the attorney-client privilege in the FOIA context to
protect legal advice from agency attorneys to agency investigators concerning the legal
parameters of third-party conduct. See, e.g., Touarsi v. DOJ, 78 F. Supp. 3d 332, 345 (D.D.C.
2015) (affirming the DOJ’s assertion of “the attorney-client privilege to withhold legal advice
from FBI attorneys to government agents and employees concerning investigation strategies and
a potential prosecution”); Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 736 F. Supp. 2d
202, 209 (D.D.C. 2010) (applying attorney-client privilege to protect the withholding of “email
messages from a [Department of Homeland Security (“DHS”)] special agent to a DHS OIG
attorney seeking confidential legal advice regarding the way in which [a Mexican national]
entered into the United States”).
Ultimately, PEER leans for support on a single case, Coastal States, 617 F.2d 854, but it
is readily distinguishable. Coastal States concerned the applicability of various FOIA
exemptions, including the attorney-client privilege, to certain “memoranda from [the Department
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of Energy’s (“DOE’s”)] regional counsel to auditors working in DOE’s field offices, issued in
response to requests for interpretations of regulations.” Id. at 858. The court highlighted that
that these audits were “not investigations,” and that when conducted, “no charge had been
made[,] nor was a violation necessarily suspected.” Id. Moreover, the legal advice had broad,
even precedential, applicability, giving rise to the court’s concern that the agency was
developing a body of “secret law.” Id. The advice “was regularly and consistently followed by
the non-legal staff”; “in some of the offices the documents were indexed by subject matter and
used as precedent in later cases”; and “on at least one occasion a regional counsel memorandum
involving the audit of a different firm was cited to a member of the public as binding precedent.”
Id. at 860. As might be expected of precedent-like legal advice, there was also “no attempt
whatsoever to protect these memoranda within the agency”; in fact, the agency conceded it did
“not know who ha[d] had access to the documents.” Id. at 863. Under these circumstances, the
court declined to apply the attorney-client privilege to protect the legal memoranda, but it noted
that “[i]f DOE were able to establish that some attempt had been made to limit disclosure of the
documents to the agency personnel responsible for the audit under discussion in the
memorandum, we would have a different case.” Id. at 863–64.
This is a “different case.” As detailed in a declaration submitted by the agency, the EPA-
OIG has tagged the relevant records with “restricted” and “official use only” labels, and has
stored them in a database accessible only to authorized EPA-OIG employees.3 Reply Supp.
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PEER finds it significant that “[t]he responsive records and Vaughn index appear to
suggest that the [investigator’s] report was not a document that was itself sent to an attorney, but
rather a summary prepared for submittal to his or her chain of command.” Pl.’s Cross-MSJ 11.
But confidentiality is preserved in the agency context so long as “the [relevant] documents, and
therefore the confidential information contained therein, were circulated no further than among
those members ‘of the organization who are authorized to speak or act for the organization in
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MSJ, Ex. 8 (Suppl. Levine Decl.) ¶¶ 4–6. This case also differs because it involves advice given
in response to a particular complaint regarding a specific suspicion of illegal misconduct, and
there is no contention that the advice contained in these withheld documents has been applied in
some precedential way beyond those particular circumstances. In other words, there is no
concern that the withheld documents constitute a shadowy body of “secret law.”
As an alternative argument, PEER suggests that even if the attorney-client privilege is
applicable to the withheld documents, the factual findings in those documents are “reasonably
segregable” from the remainder, and therefore as “[n]on-privileged factual material . . . must still
be disclosed” under FOIA. Pl.’s Cross-MSJ 10. That argument, too, is unavailing. As discussed
above, the attorney-client privilege protects not only legal advice, but the confidentially
conveyed facts upon which that advice is based. Attorney-client communications are a two-way
street. See Coastal States, 617 F.2d at 862; Mead Data, 566 F.2d at 254 n.25. Indeed, “[f]actual
information provided by the client to the attorney is the essence of the privilege.” Vento, 714 F.
Supp. 2d at 151. And although it is far from clear that the information at issue here itself derived
from a third party (as opposed to EPA-OIG and CSB employees), it is established that the
attorney-client privilege may apply even where the relevant “legal advice concern[s] information
originating with a third party.” Judicial Watch, Inc. v. U.S. Dep’t of Treasury, 802 F. Supp. 2d
185, 201 (D.D.C. 2011).
In sum, PEER’s conception of the attorney-client privilege is unduly narrow, at odds
with the case law, and mainly grounded in a single case that is easily distinguished here. The
relation to the subject matter of the communication.’” Coastal States, 617 F.2d at 863 (quoting
Mead Data, 566 F.2d at 253 n.24). Those in an investigator’s “chain of command” would surely
fit that bill.
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Court finds that the investigative memoranda at issue were properly withheld under FOIA’s
Exemption 5.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendant’s Motion for Summary
Judgment, and will deny Plaintiff’s Cross-Motion for Summary Judgment. An Order
accompanies this Memorandum Opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: September 30, 2016
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