Competitive Enterprise Institute v. United States Environmental Protection Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
COMPETITIVE ENTERPRISE
INSTITUTE,
Plaintiff,
v. Civil Action No. 12-1617 (JEB)
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Defendant.
MEMORANDUM OPINION
This Freedom of Information Act case began in controversy and ends in minutia.
Alarmed by revelations that Environmental Protection Agency officials had been using secret
email addresses to conduct government business, Plaintiff Competitive Enterprise Institute, a
think tank dedicated to regulatory and environmental policy, filed a FOIA request seeking
information related to former EPA Administrator Lisa Jackson’s use of a secondary email
account. EPA produced over 10,000 records in response to this request, provided two sample
Vaughn indices to justify its decision to withhold some materials, and has now moved for
summary judgment.
CEI opposes that Motion on multiple grounds; these run the gamut from broad claims of
bureaucratic conspiracy to nitpicking over EPA’s refusal to disclose the spelling of its staff’s
personal email addresses. It asks the Court to deny EPA summary judgment, to order the agency
to reprocess all of the documents it withheld, and to require it to provide full (rather than sample)
Vaughn indices. For the most part, however, CEI speaks loudly and carries a small stick.
Despite the group’s bold claims, the law and the record show that EPA has almost entirely
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complied with its obligations under FOIA and that it is entitled to summary judgment on nearly
every count. Still, CEI scores a few stray hits, and the Court will require EPA to polish off these
last details before it terminates the case.
I. Background
This dispute arose from the news that former EPA Administrator Lisa Jackson had used a
secondary email account under the alias “Richard Windsor” to conduct official government
business. See Senate Environment and Public Works Comm., Minority Report, A Call for
Sunshine: EPA’s FOIA and Federal Records Failures Uncovered (Sept. 9, 2013) at 9, available at
http://goo.gl/KmtqJT. It turns out that Administrator Jackson was not the only EPA official who
used an alternative email address, which has raised questions about the agency’s compliance
with federal record-keeping laws as well as the completeness of its responses to certain FOIA
requests. See id. at 8-12.
Appropriately concerned about these disclosures, CEI filed three separate FOIA requests
on May 8, 2012, seeking information related to Jackson’s secondary e-mail account. See
Compl., ¶¶ 25-31. Only one of those three requests is at issue in this case. 1 That request asked
EPA to provide the following information:
[A]ll emails sent from or to (including as “cc:’ [sic] or “bcc:”) the
secondary email account(s) assigned to Administrator Lisa Jackson
during the period January 20, 2009 to the date EPA processes this
Request, which include the words “climate”, “endanger” (which
includes in e.g., “endangerment”), “coal”, or “MACT” in the body,
“Subject”, “To”, “From”, “cc:”[,] or “bcc:” fields.
Compl., Exh. 1 (FOIA Request) at 1; Wachter Decl., ¶ 6. In response, EPA produced 11,782
responsive documents, of which 5,084 were produced in full, 4,983 were produced in part and
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As for CEI’s other two requests, the group has expressed satisfaction with EPA’s response to one and has
withdrawn its opposition to EPA’s Motion for Summary Judgment on the other. See Mot., Att. 4 (Search
Declaration of Eric E. Wachter), ¶ 5; ECF No. 22 (Notice of Withdrawal of Plaintiff’s Opposition to Defendant’s
Motion for Partial Summary Judgment).
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withheld in part, and 1,715 were withheld in full. See ECF No. 17 (Order Permitting Sample
Vaughn Index) at 1.
Ordinarily, EPA would have to justify each of its withholdings by providing CEI “with a
Vaughn index [that] . . . describe[s] each withheld document, state[s] which [FOIA] exemption
the agency claims for each withheld document, and explain[s] the exemption’s relevance.”
Johnson v. Exec. Office for U.S. Att’ys, 310 F.3d 771, 774 (D.C. Cir. 2002); see also Vaughn v.
Rosen, 484 F.2d 820 (D.C. Cir. 1973). Rather than force EPA to defend each of the thousands of
withholdings at issue in this case, however, the Court ordered that the agency should sample
“10% of the fully withheld documents and 1% of the partially withheld ones – i.e., 172 fully
withheld documents and 50 partially withheld documents” – and then produce a Vaughn index
focused on this smaller, representative collection of withholdings. See Order Permitting Sample
Vaughn Index at 1-2; see also Bonner v. Dep’t of State, 928 F.2d 1148, 1151 (D.C. Cir. 1991)
(approving sampling of approximately 5% of withheld documents); Meeropol v. Meese, 790
F.2d 942, 948, 956-57 (D.C. Cir. 1986) (approving sampling of approximately 1% of withheld
documents).
Before EPA sampled the withheld documents, the agency’s Office of General Counsel
reviewed the records and found that several hundred records had been “inadvertently categorized
to be withheld in full.” Wachter Decl., ¶ 14. The documents were therefore recategorized, and,
as a result, 251 were changed from “withheld in full” to “produced in part and withheld in part,”
and 48 were changed from “withheld in full” to “produced in full.” See id. The agency mailed
these 299 newly produced documents to CEI on August 7, 2013 – about two weeks before it filed
the instant Motion. See id., ¶ 14; ECF No. 24 (Motion for Summary Judgment) (Aug. 21, 2013).
EPA’s final response to CEI’s FOIA request therefore comprised 5,132 documents produced in
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full, 5,234 documents produced in part and withheld in part, and 1,416 documents withheld in
full. See Wachter Decl., ¶ 15. EPA has also created two sample Vaughn indices describing and
explaining the applicable exemptions for 10% of the fully withheld documents and 1% of the
partially withheld documents. See Mot., Exhs. 5 & 6 (Vaughn Indices).
The agency now moves for summary judgment. CEI has filed a brief in opposition,
which requires a momentary digression. CEI’s 44-page Opposition contains no fewer than 114
footnotes, many of which are quite lengthy and substantive. At best, this practice proves highly
distracting to the reader. At worst, it appears an effort to circumvent the page limitations of the
Local Rules. See LCvR 7(e). The Court trusts that it will not receive its like in the future.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine issue of material fact is one that would change the outcome of the litigation.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to
construe the evidence in the light most favorable to the non-moving party. See Sample v. Bureau
of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual assertions in the moving party’s
affidavits or declarations may be accepted as true unless the opposing party submits his own
affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453,
456 (D.C. Cir. 1992).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife v. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. U.S.
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Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency bears
the ultimate burden of proof. See U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3
(1989). The Court may grant summary judgment based solely on information provided in an
agency’s affidavits or declarations when they describe “the documents and the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a presumption
of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
III. Analysis
Congress enacted FOIA in order “to pierce the veil of administrative secrecy and to open
agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976) (citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to
the functioning of a democratic society, needed to check against corruption and to hold the
governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146,
152 (1989) (citation omitted). The statute provides that “each agency, upon any request for
records which (i) reasonably describes such records and (ii) is made in accordance with
published rules . . . shall make the records promptly available to any person.” 5 U.S.C. §
552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order
the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(3); Dep’t
of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).
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“Unlike the review of other agency action that must be upheld if supported by substantial
evidence and not arbitrary or capricious,” the Freedom of Information Act “expressly places the
burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter
de novo.’” Reporters Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). “At all times
courts must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure’. . . .”
Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep’t of
State v. Ray, 502 U.S. 164, 173 (1991)).
The Court will first address the adequacy of EPA’s search for responsive documents, turn
next to the exemptions the agency invokes to justify withholding certain documents, and finish
by assessing the segregability of those documents. In the end, the Court concludes that
summary judgment for EPA is appropriate on almost every issue, although it will require the
agency to produce a few last bits of information.
A. Adequacy of EPA’s Search for Records
An agency “fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-
Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897
F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C.
Cir. 1994). “[T]he issue to be resolved is not whether there might exist any other documents
possibly responsive to the request, but rather whether the search for those documents was
adequate.” Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984).
The adequacy of an agency’s search for documents requested under FOIA “is judged by a
standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Id. To
meet its burden, the agency may submit affidavits or declarations that explain the scope and
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method of its search “in reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982)
(per curiam). The affidavits or declarations should “set [ ] forth the search terms and the type of
search performed, and aver[ ] that all files likely to contain responsive materials (if such records
exist) were searched.” Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Absent
contrary evidence, such affidavits or declarations are sufficient to show that an agency complied
with FOIA. See Perry, 684 F.2d at 127. “If, however, the record leaves substantial doubt as to
the sufficiency of the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d
at 542.
Attached to its Motion, EPA has provided the Declaration of Eric E. Wachter, Director of
the Office of the Executive Secretariat within EPA’s Office of the Administrator. Wachter’s
Declaration explains the agency’s prosecution of its search as follows: CEI’s FOIA request was
assigned for processing to EPA’s Office of the Administrator; the Office’s lead FOIA
coordinator contacted the EPA Administrator’s staff assistants in the Immediate Office of the
Administrator; those staff assistants searched Administrator Jackson’s secondary e-mail account
using the search terms in CEI’s request; and the search resulted in the identification of 11,782
potentially responsive records. See Wachter Decl., ¶¶ 7, 10, 11.
CEI devotes several pages of its Opposition to what is essentially an ad hominem attack
on EPA officials and Wachter. See Opp. at 4-12. The group hammers on three points, but it
never specifically challenges the actual scope or method of EPA’s search for records in this
particular case. See Perry, 684 F.2d at 127.
First, CEI argues that EPA officials’ use of secondary email accounts raises questions
about the agency’s compliance with FOIA and other federal record-keeping laws. While such
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use may well be concerning, this argument has no connection at all to the adequacy of the
agency’s search here.
Second, CEI invokes the recent FOIA case of Landmark Legal Foundation v. EPA, No.
12-1726, 2013 WL 4083285 (D.D.C. Aug. 14, 2013), where a court in this district denied EPA
summary judgment on the adequacy of its search due to the possibility that the agency had
“engaged in . . . bad faith interpretation” of the plaintiff’s request. Id. at *6. In this case,
however, CEI does not allege that the agency misinterpreted its rather straightforward request for
records. The search recounted in the Wachter Declaration appears fully consistent with the
group’s request, and CEI does not suggest otherwise.
Finally, CEI attacks EPA’s recategorization of 299 records from “withheld in full” to
either “withheld in part” or “produced in full,” claiming that in the Landmark case, the court
denied EPA summary judgment for having engaged in similar conduct. That argument,
however, misunderstands the problem identified in Landmark. There, “[o]n the eve of filing a
summary judgment motion, weeks after issuing its purportedly ‘final’ disclosures on the matter,
EPA apparently determined that these disclosures were inadequate, and subsequently disclosed
additional records . . . which had not previously been searched, and which roughly doubled the
volume of total disclosures.” Id. at *5 (emphasis added). Because EPA provided “no
explanation” for this error, the court found it possible that the agency had deliberately
misinterpreted the scope of the plaintiff’s FOIA request, and so denied EPA summary judgment
as to the adequacy of its search. See id. at *5-6. Here, by contrast, EPA merely recategorized
records that had already been located in its initial search, rather than producing records newly
uncovered. That recategorization had no connection to the adequacy of EPA’s search in
response to CEI’s FOIA request. EPA has also provided an explanation for its miscue in this
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case, which was apparently caused by a combination of technological error and a belated review
of the “withheld in full” records by agency counsel. See Reply, Att. 2 (Supplemental
Declaration of Eric E. Wachter), ¶¶ 5-17.
Hazy allegations of administrative malfeasance may sound incriminating, but the Court
requires concrete, specific challenges to the sufficiency of EPA’s search in order to deny the
agency summary judgment on this point. CEI has failed to provide them, and so the Court finds
summary judgment proper on the adequacy of the search.
B. Validity of EPA’s Sample Vaughn Indices
Another thrust of CEI’s Opposition are its attacks on the validity of the sample Vaughn
indices that EPA submitted along with its Motion for Summary Judgment.
1. Number of Sampled Documents
To begin, CEI argues that EPA’s sampling of 142 fully withheld documents fails to
comply with this Court’s order that the agency “sample 10% of the fully withheld documents . . .
i.e., 172 fully withheld documents.” Order Permitting Sample Vaughn Index at 2 (emphasis
added). Merely quoting that Order, however, is enough to undermine CEI’s claim. The Court’s
instruction was for EPA to sample “10% of the fully withheld documents.” The “172” figure
simply served to illustrate the meaning of the preceding percentage. Because the total number of
fully withheld documents fell following the agency’s belated recategorization of 299 records, it
was appropriate that the total number of sampled documents would also decrease. The sample of
142 fully withheld documents – 10% of the 1,416 fully withheld documents, see Wachter Decl.,
¶ 15 – therefore satisfies the Court’s Order.
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2. Violation of Bonner
CEI next claims that EPA’s last-minute recategorization of 299 documents initially
marked as “withheld in full” violates the D.C. Circuit’s decision in Bonner v. Dep’t of State, 928
F.2d 1148 (D.C. Cir. 1991). That argument, however, once again miscomprehends the relevant
precedent. In Bonner, the State Department had agreed to provide a sample Vaughn index
comprising 63 out of 1,033 partially withheld records. See Bonner, 928 F.2d at 1149. After the
Department created the sample, however, it determined that 19 of the selected documents could
be released in full, and so the Vaughn index that it furnished to the plaintiff only covered 44 of
the 63 sampled documents, without explaining the initial withholding of the 19 released
documents. See id. at 1149-50. On appeal, the D.C. Circuit found that the release of the 19
documents – in the absence of any explanation of why they had been initially withheld –
destroyed the representativeness of the selected sample. See id. at 1150-52.
The Bonner court explained that agencies were permitted to use representative sampling
in FOIA cases because “[i]f the sample is well-chosen, a court can, with some confidence,
extrapolate its conclusions from the representative sample to the larger group of withheld
materials.” Id. at 1151 (internal quotation marks omitted). The court emphasized, however, that
a representative sample “will yield satisfactory results only if the sample employed is sufficiently
representative [of the whole], and if the documents in the sample are treated in a consistent
matter.” Id. The Department had therefore tainted its sample index by releasing 19 of the
documents contained therein, which “undermine[s] the confidence one can have that the
Department correctly invoked FOIA to shield information contained in the . . . documents not
described in the Vaughn index.” Id.
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Here, by contrast, the 299 belatedly released records were never a part of the sample
Vaughn index, but rather came from the total collection of withheld documents. Only after their
release did EPA take a sample of the remaining documents that it still intended to withhold.
There is therefore no connection between the release of these records and the representativeness
of the sample EPA has provided, and no reason to doubt that the sample accurately reflects the
remainder of the documents withheld. The Bonner court itself emphasized the importance of
this distinction:
Had Bonner . . . simply requested 63 documents and received 19
without deletions, the district court would have been entirely right
that, with respect to those 19, it had ‘no role to play.’ But the 19
documents here were part of a representative sample. They count
not simply for themselves, but for presumably similar non-sample
documents still withheld.
Id. at 1152 (emphasis added) (citations omitted). CEI finds itself in the former scenario. It
requested 11,782 documents, received 10,067 in whole or in part, and later received an additional
299. EPA then produced a sample of the documents that it had not handed over. According to
Bonner, therefore, because the 299 recategorized records were not “part of a representative
sample,” the Court has “no role to play” in regard to them. Id. (internal quotation marks
omitted).
3. Final Lists
Finally, CEI has offered several challenges to the integrity of EPA’s full lists of withheld
documents, which, if correct, could impugn the validity of the Vaughn indices sampled from
those lists. See Opp. at 17-21. Inferring that at least some of CEI’s objections might be due to
confusion between the agency’s “draft” lists of withheld documents and its “final” lists (which
CEI did not receive prior to filing its Opposition), compare Reply at 10-11 with Opp. at 17-21,
the Court issued a Minute Order instructing EPA to file its final lists and then directing CEI to
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submit a pleading informing the Court of whether it still maintained those objections. See
Minute Order (Dec. 20, 2013). Both parties have complied, and though CEI has abandoned
some of its arguments, it still maintains several challenges to the final lists.
First, CEI notes that some of the partially withheld documents originally listed by EPA
are unnumbered and that there is no indication that those documents were included when the
agency took its sample of every 100th partially withheld document. EPA concedes that the 25
documents in question, see Opp. at 19-20 n.47 (listing the unnumbered documents), were
“inadvertently excluded from the sample pool,” explaining that it had initially intended to release
them in full, but that at the last minute, it had identified personal information in the records that
should have been redacted under FOIA Exemption 6. See Reply at 9; Supp. Wachter Decl., ¶¶ 7,
11. The agency explains that the documents were edited to remove the personal information,
otherwise released in full, and then included unnumbered in the list of partially withheld
documents. See Reply at 9; Supp. Wachter Decl., ¶¶ 7, 11.
Because this Court ordered EPA to sample every 100th redacted document, see Order
Permitting Sample Vaughn Index at 3, it is possible – indeed, probable – that even if these 25
records had been included in the full list from which that sample was taken, none of them would
have been among the ones selected. Nevertheless, the Court’s Order was clear and EPA offers
no justification for this mistake. In order to ensure full compliance with its sampling Order,
therefore, the Court will require EPA to justify its withholding of one out of the 25 documents in
question. To guarantee that such document is selected at random, the Court instructs that EPA
should justify its withholding of the 10th such document listed in footnote 47 of CEI’s
Opposition brief (counting from the left). See Opp. at 19 n.47.
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Second, CEI observes that both the final list of fully withheld documents and the final list
of partially withheld documents both begin with records numbered “-0.” ECF No. 35, Exh. 1
(List of Withheld In Full Documents) at 1; ECF No. 35, Exh. 2 (List of Redacted Documents) at
1. CEI finds this numeration suspicious because the rest of the listed records have numbers
beginning with the appellation “01268-EPA-” and also because the two “-0” records are out of
chronological order with the other documents on the lists. According to CEI, EPA may have
inserted these two extra “-0” records in order to manipulate which documents from the lists
would be sampled. In other words, CEI alleges that EPA added these extra documents to the
beginning of each list in order to change the sequencing of the subsequent records – the “10th”
document became the “11th,” the “100th” became the “101st,” and so on – and thereby avoid
including certain damaging records in its sample Vaughn indices.
This imaginative conspiracy theory is brought back to Earth by EPA’s explanation of the
“-0” records: the two “-0” documents in question did not receive tracking numbers – one because
it was initially categorized to be released and the other because it was determined to be non-
responsive – and “documents without a tracking number appear in the database as ‘-0.’”
Defendant’s Reply to Plaintiff’s January 13, 2014, Filing at 3. That settles the strange
numeration of the two records. EPA also explains that it organized the lists based on tracking
number, not based on chronology, and that, as a result, the documents numbered “-0” appear
first. That settles the strange ordering of the lists. For those still hungry for information about
these two records – or perhaps suffering from insomnia – EPA has provided an even more in-
depth explanation in an appendix attached to its most recent filing. See Defendant’s Reply to
Plaintiff’s January 13, 2014, Filing, Appx. A (Table of “Non-Responsive” and “-0” Documents).
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Next, CEI points out that four documents included in the final list of fully withheld
documents were not assigned a particular FOIA exemption, but were instead labeled “non-
responsive.” See List of Withheld In Full Documents at 1, 26, 167. CEI argues that EPA is
limited to the nine enumerated FOIA exemptions and that an agency may not justify a
withholding on the ground that a document is “non-responsive.” See American Immigration
Council v. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 248 (D.D.C. 2013). CEI also
complains that it never before received any information about these non-responsive documents.
EPA explains that the four documents were labeled “non-responsive” because they “do
not contain any of the keywords required by Plaintiff’s request.” Wachter Dec., ¶ 27; see also
Table of “Non-Responsive” and “-0” Documents (explaining why each of the four documents
was not responsive to CEI’s request). These documents nevertheless appear on the final list
because, when the agency performed the sampling ordered by the Court, it created the sample
pool by using records “that had been categorized with a FOIA exemption and marked “WIF,”
[withheld in full] or that were not produced (i.e. not responsive).” Reply, Exh. 1 (Declaration of
Timothy Mallon), ¶ 14 (emphasis added). The agency then included those four “non-responsive”
records in its final list in order to “account for all documents initially collected, but not provided
to plaintiff for any reason.” Defendant’s Reply to Plaintiff’s January 13, 2014, Filing at 4.
While it would have been preferable for EPA to leave these non-responsive documents
off its final list of fully withheld documents, the Court will not deny the agency summary
judgment on this point. The exemptions enumerated in FOIA permit agencies to refuse to
release information that they would otherwise be required to disclose in response to an outside
request. See 5 U.S.C. § 552(a) & (b). Documents that are “non-responsive” to a FOIA request,
conversely, are simply not subject to the statute’s disclosure requirements, and agencies may
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thus decline to release such material without invoking a statutory exemption. See 5 U.S.C. §
552(a)(3)(A) (“[E]ach agency, upon any request for records which . . . reasonably describes such
records . . . shall make the records promptly available to any person.”). In other words, while
most FOIA cases deal with documents that are produced and then withheld under a particular
exemption, non-responsive records need never be produced at all. American Immigration
Council dealt with the very different scenario in which an agency had produced an apparently
responsive record and then retroactively attempted to justify redacting that document by claiming
that it was a “non-responsive duplicate.” See American Immigration Council, 950 F. Supp. 2d at
248. In sum, although EPA, out of an abundance of caution that borders on confusion, included
non-responsive documents on its final list of withheld documents, the agency was not required to
release them nor further justify their withholding.
There is still a problem, however, because by including these “non-responsive” records in
its sample pool, EPA risked polluting the final sample with irrelevant documents. The sampling
procedure was intended to allow the Court to evaluate the propriety of EPA’s claimed FOIA
exemptions, and the inclusion of non-responsive documents undermines that purpose. Indeed,
one of the entries on the sample index of fully withheld documents is labeled “non-responsive,”
see Vaughn Index – Every 10th (Withheld in Full Documents), at 83, although CEI has chosen
not to object to that specific entry. Nevertheless, because the relative number of documents in
question here is minuscule – four out of a total 1,420 records – because the agency has gone to
great lengths to explain the situation, and because CEI has not objected to the single Vaughn
entry labeled “non-responsive,” the Court will not hold up the case on this relatively minor point.
Two last objections to the final lists remain. First, CEI complains that the final lists
“bear[] the date December 27, 2013, well after the date of any sampling in this case, and after all
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of the parties’ briefs on summary judgment.” Plaintiff’s Response to Notice of Filing at 3.
Second, CEI objects that EPA “has not submitted any declaration or sworn affidavit to explain
when, or how, this new list was generated. The only list confirmed to exist at the time of the
sampling (and [D]efendant’s motion for summary judgment) is the ‘Draft Index of Withheld
Documents.’” Id. at 3.
It should be obvious from the docket record that the final lists are dated “December 27,
2013” because EPA produced them on that date. See ECF No. 35 (Dec. 27, 2013) (Notice of
Filing). It should also be clear that EPA did not submit evidence explaining the circumstances
under which it created the final lists because the agency produced them in response to this very
Court’s Minute Order. See Minute Order (Dec. 20, 2013). Despite CEI’s strange nostalgia for
the draft list of withheld documents, that list was inaccurate, as CEI itself pointed out in its
Opposition. See Opp. at 21. By ordering EPA to submit a correct version of the final list, the
Court had hoped (perhaps naively) to resolve the confusion and assuage some of CEI’s concerns.
Now that CEI has seen the list, the Court will not tarry here any longer.
C. Exemptions Claimed by EPA
Much of the dispute here centers on the propriety of EPA’s claimed FOIA Exemptions.
After considering CEI’s threshold complaint regarding the language that EPA uses to justify its
Exemptions, the Court serially examines the agency’s invocations of Exemptions 4, 5, and 6.
1. Boilerplate Exemption Explanations
As an initial matter, CEI complains that EPA used boilerplate language when it explained
how each relevant FOIA Exemption applied to the sampled withholdings. The group notes, for
example, that EPA provided a word-for-word identical explanation for why Exemption 5 applied
to several different documents that were withheld in full or withheld in part. See Opp. at 23 nn.
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55 & 56. CEI objects to this copy/paste job, declaring that “[i]t is blackletter law that an agency
cannot rely on ‘boilerplate’ privilege claims, or provide ‘identical justifications’ for withholding
each of a series of withheld documents.” Opp. at 22.
Despite CEI’s apparent confidence, however, no such prohibition exists in the law of this
circuit. On the contrary, the Court of Appeals has made clear that, “[e]specially where the
agency has disclosed and withheld a large number of documents, . . . repetition provide[s] [an]
efficient vehicle[] by which a court can review withholdings that implicate the same exemption
for similar reasons.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 147 (D.C. Cir. 2006). The
alternative, after all, would force agencies to engage in “a sort of phony individualization
(meaningless variations of language at each invocation of a specific exemption).” Keys v. DOJ,
830 F.2d 337, 349 (D.C. Cir. 1987). In short, ”[n]o rule of law precludes [an agency] from
treating common documents commonly.” Judicial Watch, 449 F.3d at 147.
The main case that CEI cites in support of its argument, King v. DOJ, 830 F.2d 210 (D.C.
Cir. 1987), dealt with a very different set of circumstances. There, DOJ used a “new method of
presentation” to explain its withholdings, “depart[ing] from the practice of . . . separately
describing each withheld document, and . . . submit[ing] instead copies of the documents
released pursuant to [the plaintiff’s] FOIA demand with each deletion annotated by means of a
four-character code referring in turn to an accompanying code-catalogue.” Id. at 219-20. The
accompanying catalogue contained a list of generic statements keyed to the various code
characters, so that by looking up the four-digit code annotating each deletion, the district court
could find both a description of the material withheld and an explanation of the FOIA Exemption
asserted. See id. at 220.
17
The D.C. Circuit rejected this new system, not only because it shifted the administrative
burden of FOIA compliance from the agency to the court (never a good idea), but also because it
contained “no contextual description for documents or substantial portions of documents
withheld in their entirety.” Id. at 221. In other words, because “a reproduction of the redacted
documents can only show . . . the context from which an item has been deleted,” and because
“the coded commentary . . . [was] so general in nature as to be of little or no help,” DOJ had not
given the court enough information to “assess[] the character of the excised material and the
grounds for its deletion.” Id. The King court concluded: “Categorical description of redacted
material coupled with categorical indication of anticipated consequences of disclosure is clearly
inadequate.” Id. (citing Dellums v. Powell, 642 F.2d 1351, 1360 n.29 (D.C. Cir. 1980)).
That is not the situation in this case. First, CEI does not claim, nor could it, that EPA’s
descriptions of its sampled withholdings are impermissibly vague or repetitive. Indeed, as EPA
notes in its Reply, the Vaughn entries that CEI cites as examples of boilerplate exemption
justifications also contain quite specific, and individualized, descriptions of the redacted
information, see Reply at 11-12, sufficient for the Court to “assess[] the character of the excised
material.” King, 830 F.2d at 221. Second, while CEI has pointed out a great deal of duplication
in EPA’s justifications for its redactions, such repetition is permissible under the law of this
circuit. See Judicial Watch, 449 F.3d at 147. In fact, King itself suggests the same, explaining
that when the reasons for non-disclosure “are identical for several documents,” the agency may
provide “a single” justification, “accompanied by identifying references to the documents . . . at
issue.” King, 830 F.2d at 224.
18
In sum, EPA was allowed to use the same language to justify multiple different
withholdings when the FOIA Exemptions applied for the same reasons. The Court will not deny
EPA summary judgment on this basis.
2. Exemption 4
EPA says that it redacted one document under Exemption 4, which protects “trade secrets
and commercial or financial information . . . [that is] privileged or confidential.” 5 U.S.C. §
552(b)(4). The agency’s pleadings, however, do not indicate the identity or the content of the
document withheld under this Exemption, nor do its sample Vaughn indices ever mention
Exemption 4. In any event, because CEI has not raised any dispute as to the applicability of
Exemption 4 to the mystery document in question, the Court believes it has conceded the issue
and will thus grant summary judgment in favor of the agency on this point. See Hopkins v.
Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003).
3. Exemption 5
EPA withheld several thousand records in full and in part under Exemption 5, which
protects from disclosure “inter-agency or intra-agency memorandums or letters which would not
be available by law to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5).
Exemption 5 incorporates three traditional civil-discovery privileges: (1) the deliberative-process
privilege; (2) the attorney-client privilege; and (3) the attorney work-product privilege. See
Cuban v. SEC, 744 F. Supp. 2d 60, 75 (D.D.C. 2010).
EPA invoked all three privileges in its withholdings: 5,473 assertions of the deliberative-
process privilege, see Wachter Decl., ¶ 18, 491 assertions of the attorney-client privilege, see id.,
¶ 20, and 103 assertions of the attorney work-product privilege. See id., ¶ 22. Because CEI’s
Opposition does not challenge EPA’s assertions of the latter two privileges, the Court will treat
19
the appropriateness of those as conceded, see Hopkins, 284 F. Supp. 2d at 25, and will address
only EPA’s invocations of the deliberative-process privilege.
This particular privilege is intended “to enhance the quality of agency decisions by
protecting open and frank discussion among those who make them within the Government.”
Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 9 (2001) (internal
quotation marks omitted). The 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.” Id.; see also Dow Jones & Co. v. DOJ, 917 F.2d 571, 573-74 (D.C. Cir. 1990).
To fall under the protection of the deliberative-process privilege, withheld material must be both
“predecisional” and “deliberative.” Mapother v. DOJ, 3 F.3d 1533, 1537 (D.C. Cir. 1993).
Material is “predecisional” if it was “generated before the adoption of an agency policy.”
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). It is
“deliberative” if it “reflects the give-and-take of the consultative process.” Id.
a. Scheduling Matters
In taking aim at a number of EPA’s claimed withholdings under this privilege, CEI first
challenges three documents that, it says, merely involved matters of scheduling. The first is a
chain of 10 email messages between Administrator Jackson and her senior advisors “about the
White House scheduling a call with various other federal agencies concerning legislation
pending in the Senate.” Mot., Exh. 6 (Vaughn Index – Every 100th) at 24. The second is a
single email message from the Senior Policy Counsel to Jackson relating to “the expected
schedule for a particular rulemaking.” Id. at 31. The third is an email from the Associate
Administrator for the Office of Congressional and Intergovernmental Affairs to Jackson
regarding “potential upcoming travel plans and public events.” Mot., Exh. 5 (Vaughn Index –
20
Every 10th) at 50. CEI argues that scheduling matters such as these are not “deliberative” and so
are not covered by the privilege.
Such an argument sweeps too broadly. “The deliberative character of agency documents
can often be determined through the simple test that factual material must be disclosed but
advice and recommendations may be withheld.” Mapother, 3 F.3d at 1537 (internal quotation
marks omitted). This fact/opinion distinction applies to scheduling matters just as it does to any
other aspect of the agency’s deliberative process: in the ordinary case, factual scheduling
material must be disclosed and advice about scheduling may be withheld. While it is true,
therefore, that courts have previously ordered disclosure of “proposed work schedule[s].” Elkem
Metals Co. v. United States, 24 C.I.T. 1395, 1402 (C.I.T. 2000), and “scheduling requests,”
Judicial Watch, Inc. v. Comm’n on U.S.-Pacific Trade and Inv. Policy, No. 97-0099, 1999 WL
33944413, *6 (D.D.C. Sept. 30, 1999), those cases involved documents primarily containing
factual material – “filing and scheduling dates” – which “d[id] not reflect the give-and-take” of
the agencies’ decisionmaking processes. Elkem Metals, 24 C.I.T. at 1402. Here, by contrast, the
documents at issue “involved decisions about whether to hold, and who to send to, meetings on
topics of pending legislation, rulemakings, and other discussions.” Reply at 17. These materials,
then, fell on the “advice and recommendations” side of the line, Mapother, 3 F.3d at 1537, and
were appropriately withheld under the deliberative-process privilege.
b. Media Coverage
CEI also objects to EPA’s withholding of communications regarding media coverage of
the agency’s actions – debates over whether to accept certain interview requests, discussions of
media reports, and so on. According to CEI, agency communications related to media coverage
“are not protected by Exemption 5 when they pertain primarily to past developments or agency
21
actions, rather than to developing agency policies,” because Exemption 5 protects “discussion of
policy, not PR.” Opp. at 29.
The precedent, unsurprisingly, does not support such a broad position. In past cases,
Exemption 5 has indeed been found to cover agency deliberations about how to respond to media
inquiries regarding prior agency actions, see Judicial Watch, Inc. v. Dep’t of Homeland Sec., 736
F. Supp. 2d 202, 208 (D.D.C. 2010), as well as discussions about press coverage of existing
agency policies, see Citizens for Responsibility and Ethics in Washington v. Dep’t of Labor, 478
F. Supp. 2d 77, 83 (D.D.C. 2007), and suggested talking points about how to answer questions
regarding the duties assigned to agency employees. See Judicial Watch, Inc. v. Dep’t of
Commerce, 337 F. Supp. 2d 146, 174 (D.D.C. 2004). These deliberations are considered
“predecisional” so long as they were “generated as part of a continuous process of agency
decision making, viz., how to respond to on-going inquiries.” Judicial Watch, 736 F.3d, at 208;
see also Judicial Watch v. Dep’t of the Treasury, 796 F. Supp. 2d 13, 31 (D.D.C. 2011) (“Post-
decisional documents properly fall under the deliberative process privilege when they recount or
reflect pre-decisional deliberations.”).
Here, the two media-related withholdings to which CEI objects reflected EPA’s ongoing
decisionmaking about “how the agency’s activities should be described to the general public,”
Nat’l Sec. Archive v. FBI, No. 88-1507, 1993 WL 128499, at *2 (D.D.C. Apr. 15, 1993), and so
they appropriately fall under the protection of Exemption 5. See Vaughn Index – Every 10th at 1
(document withheld that “discuss[ed] the outcome of a call with the White House Press office
related to an interview request from a New York Times reporter” and “reflect[ed] the
decisionmaking process related to whether to accept the interview request, and how and when to
communicate with the public about developing [a]gency actions”); id. at 19 (document withheld
22
that “relate[d] to [officials’] scheduling and availability for several EPA events” and “reflect[ed]
the advice and deliberations of EPA’s management in formulating a decision about public
representation of the [a]gency”).
CEI also notes, correctly, that EPA must identify a “definable decisionmaking process” to
which withheld documents contributed in order to invoke the deliberative-process privilege. See
Opp. at 34 (citing Access Reports v. DOJ, 926 F.2d 1192, 1196 (D.C. Cir. 1991)). But the group
nowhere specifically challenges any of the withholdings listed in EPA’s sample Vaughn indices
for failure to comply with this rule. Instead, the only specific challenge that CEI offers is that
EPA withheld material “without explaining how producing the communication would reveal any
deliberations about developing agency policies,” citing EPA’s redaction of a chain of emails
related to an interview request from a journalist. Opp. at 28-29 (citing Vaughn Index – Every
100th at 11). The index entry for that withholding, however, contains precisely such an
explanation:
Document EPA-2243 contains an internal email chain, among staff
in the Office of External Affairs and Environmental Education, the
Director of Operations, and Administrator Lisa Jackson discussing
the an [sic] interview request from a US News and World Report
reporter. Internal portions of the e-mail discussing the request,
including recommended options and approaches, have been
withheld. . . . The withheld information is protected under
Exemption 5’s deliberative process privilege because it is an
internal conversation which reflects the analyses, advice, and
deliberations of EPA’s management when deliberating about
official public responses. These communications were
predecisional because they reflect the decisionmaking process
related to whether to accept the interview request, and how and
when to communicate with the public about developing Agency
actions. The email string represents staff opinions and judgments
that were under consideration by EPA. Release would have a
chilling effect on the Agency’s ability to have open and frank
discussions among its staff and may harm the Agency’s
decisionmaking by chilling the open discussion of issues and
approaches to communicating with the press, and the ability to
23
coordinate with the White House. Furthermore, release could
cause public confusion by disclosure of reasons, rationales, and
conclusions that were not in fact ultimately the position of the EPA
or the U.S. Government.
Vaughn Index – Every 100th at 11.
CEI never says why this justification should fail to satisfy the agency’s obligations under
FOIA, and, indeed, the Court finds that it is sufficient to support the redaction. CEI also
annotates this bit of its brief with several lengthy footnotes comprised of string cites to the
sample Vaughn indices, presumably in an attempt to suggest that additional Vaughn entries may
also have failed to describe a connection with agency policy. See Opp. at 27-28 nn.73, 74, 75.
As these footnotes are bare citations unaccompanied by any explanation, they provide no
argument for the Court to address.
c. Interactions with Congress
CEI next challenges EPA’s withholding of several communications related to the
agency’s interactions with Congress. The group argues that an agency’s communications in
response to Congressional queries are not protected when they “reflect decisions that had already
been made,” and claims that EPA “does not show the communications about Congressional
hearings it withheld or redacted in its sample Vaughn index went beyond such run-of-the-mill
unprivileged communications.” Opp. at 30-31 (internal quotation marks omitted). CEI, once
again, annotates this bald assertion with several extended footnote references otherwise lacking
in explanation. See id. at 31 nn.84-85.
To the extent that the Court can discern an argument here, however, it seems belied by
the very Vaughn entries that CEI cites, which make clear that the withheld materials preceded
decisions about whether and how to respond to phone calls from individual Senators and how
best to handle testimony before Congress. See Vaughn Index – Every 10th at 12 (withheld
24
document “relat[ed] to a proposed call to the Administrator from Senator Diane [sic] Feinstein . .
. [;] [t]he information and advice provided were predecisional because they reflect the
decisionmaking process related to whether to accept the call, and how to prepare for potential
points of debate or discussion”); id. at 20-21 (withheld document “related to proposed upcoming
meeting with Senator Jack Reed . . . [;] [t]he information and advice provided were predecisional
because they reflect the decisionmaking process related to planning for the meeting, and how to
prepare for potential points of debate or discussion”); Vaughn Index – Every 100th at 15
(redacted document “contain[ed] three messages related to testimony in a hearing . . . [;] it is part
of an internal conversation reflecting the commentary of an EPA senior official”).
CEI specifically attacks EPA’s withholding of three Congress-related communications.
First, it claims that EPA’s redaction of an email chain between several senior staff and
Administrator Jackson concerning testimony in a Congressional hearing, which EPA described
as “part of an internal conversation reflecting the commentary of an EPA senior official,”
Vaughn Index – Every 100th at 15, was not protected “absent a direct connection to actual policy
formulation by the agency.” Opp. at 31 (internal quotation marks omitted). The Supreme Court
has made clear, however, that the deliberative-process privilege does not “turn[] on the ability of
an agency to identify a specific decision in connection with which a memorandum is prepared.
Agencies are, and properly should be, engaged in a continuing process of examining their
policies; this process will generate memoranda containing recommendations which do not ripen
into agency decisions.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 n.18 (1975). EPA
did not have to provide the specifics that CEI seeks.
CEI makes a similar argument with respect to EPA’s withholding of a document authored
by a Deputy Associate Administrator for legislative affairs, which contained “information and
25
advice regarding issues related to [a] proposed upcoming meeting with Senator Jack Reed.”
Vaughn Index – Every 10th at 20. CEI claims that this document could not be withheld under
the deliberative-process privilege because it was not sufficiently tied to the development of
agency policies, citing a decision that the group claims stands for the proposition that “briefing
papers [are] not protected.” Opp. at 32 (citing Nat’l Sec. Archive, 1993 WL 128499, at *2-3).
CEI’s citation, however, reflects a misreading of that case, in which the court ordered disclosure
of papers used by an agency official to prepare for testifying before Congress because their
“focus was upon reporting facts, not weighing policies.” Nat’l Sec. Archive, 1993 WL 128499,
at *2 (internal quotation marks omitted). That is not the situation here, since the communication
at issue involved “how to communicate with members of Congress . . . and how to prepare for
potential points of debate or discussion.” Vaughn Index – Every 10th at 20-21 (emphasis
added). The challenged redaction was therefore proper. Cf. Judicial Watch, 736 F. Supp. 2d at
208 (deliberative-process privilege covers agency emails involving recommendations and
evaluations for how to respond to Congressional requests for information).
CEI also challenges EPA’s withholding of an email to Administrator Jackson from the
Associate Administrator for the Office of Congressional and Intergovernmental Affairs, related
to a proposed phone call from Senator Dianne Feinstein. See Vaughn Index – Every 10th at 12.
CEI describes the email as merely a discussion of “whether to accept the call,” and therefore too
peripheral to actual policy formulation to justify exemption. Opp. at 31-32. That
characterization of the document is hardly fair, since the Vaughn entry also states that “[t]he
information and advice provided” in the document “related to . . . how to prepare for potential
points of debate or discussion.” Vaughn Index – Every 10th at 12. That more substantive
26
discussion was not “peripheral” to agency policy and was appropriately withheld. Cf. Judicial
Watch, 736 F. Supp. 2d at 208.
d. Past Events
CEI also complains that EPA fully withheld documents that pertained in part to past
events, rather than developing policies. Once again, however, CEI fails to tie its argument to any
specific entry in the agency’s sample Vaughn index. Instead, the group simply punctuates each
clause in this section of its brief with a footnote containing a list of citations, see Opp. at 32
nn.89-91, apparently inviting the Court to do the hard work of figuring out how each of the cited
Vaughn entries might have violated the principle of law at issue. To the extent the Court can
decipher an argument from the meager substantive content in CEI’s footnotes, the group seems
to object to EPA’s withholding of a draft document relating to the development of public
statements to commemorate the agency’s 40th anniversary, see Vaughn Index – Every 10th at 8,
perhaps because the founding of the agency was a past event. That argument, if it is the one CEI
intended, is difficult to take seriously. Deliberations over how to commemorate a past event are
obviously “predecisional” to the actual commemoration – they bear little, if at all, on the event
itself, especially if the event took place four decades prior to the discussion.
e. Final Objections
CEI offers two last points. First, it expresses doubt about the “predecisional” nature of
several of the EPA’s withheld documents. But the group makes absolutely no substantive
argument as to why the Court should not consider those documents predecisional and thus
unprotected under the deliberative-process privilege. Instead, it simply observes that “EPA
withheld a remarkable variety of information as ‘pre-decisional’” and then proceeds to list them.
27
Opp. at 26-27. Where Plaintiff has failed to argue its case, the Court cannot do the group’s job
for it.
In addition, CEI calls the Court’s attention to what it says were improper withholdings
and redactions of documents other than those listed in the sample Vaughn indices. See Opp. at
37 nn.98-99. Such an argument ignores why the Court ordered sampling in the first place. This
case involved well over 5,000 documents that were either withheld or redacted. The whole point
of representative sampling is “to reduce a voluminous FOIA exemption case to a manageable
number of items that can be evaluated individually,” in recognition of “the limitations of time
and resources that constrain agencies, courts, and FOIA requesters alike.” Bonner, 928 F.2d at
1151; see also Meeropol, 790 F.2d at 958; Weisberg, 745 F.2d at 1490. Once the agency
describes and justifies its sampled withholdings, the Court “extrapolate[s] its conclusions from
the representative sample to the larger group.” Bonner, 928 F.2d at 1151 (internal quotation
marks omitted). An attack on withholdings outside the sample, which EPA has not had the
chance either to describe or to explain, is therefore outside the scope of the Court’s review.
4. Exemption 6
EPA withheld information 2,695 times under FOIA Exemption 6, see Wachter Decl., ¶
24, which protects “personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The
statute’s reference to “similar files” is key; indeed, the Supreme Court has made clear that the
applicability of Exemption 6 “was not intended to turn upon the label of the file” in question, and
that it “cover[s] detailed [g]overnment records on an individual which can be identified as
applying to that individual.” Dep’t of State v. Washington Post Co., 456 U.S. 595, 601-02
(1982). Whether disclosure of a covered record would constitute “a clearly unwarranted
28
invasion of personal privacy” depends on balancing the “individual’s right of privacy” against
“the public’s right to government information.” Dep’t of the Air Force v. Rose, 425 U.S. 352,
371-72 (1976); see also NARA v. Favish, 541 U.S. 157, 172 (2004).
To begin, CEI directs several of its objections to documents outside the sample Vaughn
indices submitted with EPA’s Motion. According to CEI, EPA must justify dozens of redactions
in unsampled documents by showing that the private interest in each redaction outweighs the
public’s interest in disclosure. See Opp. at 38 & nn.100-02; see id. at 41-42 & n.110. The Court,
however, again reminds Plaintiff that the entire point of the sampling procedure was to limit to a
reasonable number the withholdings that EPA needed to explain and defend. See Bonner, 928
F.2d at 1151. The Court, therefore, will not consider these objections.
Turning to the sample Vaughn indices actually at issue here, CEI complains that EPA
redacted the personal, non-official email addresses of EPA employees who sent or received
work-related emails using their private email accounts. See, e.g., Vaughn Index – Every 10th at
31-32, 38, 51. CEI argues that these employees have no private interest in their personal email
addresses because the use of personal email accounts for work-related correspondence violates
EPA policy. CEI cites no authority for this proposition, and the Court does not see why an
agency official’s personal email address – in which he or she would obviously have a powerful
privacy interest – would become any less private by dint of the fact that it was used when it
should not have been.
More persuasive is CEI’s argument that there is a strong public interest in these
addresses, both because future FOIA requesters may seek access to the employees’ non-official
email accounts and because the use of those accounts may have violated agency policy. On the
first point, however, the Court does not believe that FOIA requesters will be impeded without
29
disclosure of the employees’ actual email addresses, since they can simply ask for work-related
emails and agency records found in the specific employees’ personal accounts; requesters need
not spell out the email addresses themselves. On the second point, the Court does not see any
additional value in releasing the private email addresses used by EPA employees. The public
interest in exposing potential violations of agency policy has already been satisfied by the
Vaughn entries in question, which both name the employee and explain that his or her “personal
email address . . . [has been] withheld on the basis of Exemption 6.” E.g., Vaughn Index – Every
10th at 51-52. Beyond that, there is no public interest in knowing, for example, whether EPA
employees used Hotmail or Yahoo for their personal email correspondence.
Finally, CEI challenges two instances where EPA withheld the email address of former
EPA Administrator and White House advisor Carol Browner. See Vaughn Index – Every 100th
at 21, 26-27. In one case, the Vaughn entry makes clear that the agency redacted Browner’s
“White House email address” in order to “avoid potential unsolicited communications.” Id. at
26-27. According to CEI, however, because Browner has left her position at the White House,
EPA has no reason to redact her presumably inactive work email address. In the second
instance, the Vaughn entry in question does not specify whether the redacted email address was
Browner’s personal email account or her official account. See Vaughn Index – Every 100th at
21 (“The only information withheld [is] . . . the email address[] of Carol Browner.”).
This is a close question. It is clear that White House staff have a powerful privacy
interest in their work email addresses while they are employed, see Shurtleff v. EPA, No. 10-
2030, 2013 WL 5423963, at *10-11 (D.D.C. Sept. 30, 2013), but it is less certain whether much
interest remains after they have left the government. At the same time, although the public
interest in the specific spelling of an inactive address might seem minor, this entire case began
30
because an EPA official was using an alternative work email address under a previously
unknown alias. There is a public interest, therefore, in knowing whether Browner used her
personal or official email address to communicate with EPA and whether the official email
address she used reflected her real name or an alias, both for the sake of future FOIA requesters
and for those curious about White House compliance with federal record-keeping laws.
The balance, in the end, weighs in favor of disclosure. As for the first entry – number
5530 – EPA must disclose the White House email address that Browner used to communicate
with EPA. As for the second – number 4860 – EPA must clarify whether it withheld Browner’s
personal or official email address. If it is the former, EPA need not say more, since, as explained
above, Browner has a powerful privacy interest in her own personal email address. If it is the
latter, then EPA must release the email address itself, since there is a public interest in knowing
whether Browner was using an official account under her own name or under an alias.
D. Segregability
The last issue that the Court must address is segregability. FOIA requires that “[a]ny
reasonably segregable portion of a record . . . be provided to any person requesting such record
after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). Accordingly, “non-exempt
portions of a document must be disclosed unless they are inextricably intertwined with exempt
portions.” Mead Data Central, Inc. v. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).
Still, an agency is not obligated to segregate non-exempt material if “the excision of exempt
information would impose significant costs on the agency and produce an edited document with
little informational value.” Neufeld v. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981), overruled on
other grounds by Church of Scientology of California v. IRS, 792 F.2d 153 (D.C. Cir. 1986).
31
While the Government is “entitled to a presumption that [it] complied with the obligation
to disclose reasonably segregable material,” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013),
this presumption of compliance does not obviate its obligation to carry its evidentiary burden and
fully explain its decisions on segregability. See Mead Data Cent., 566 F.2d at 261. The agency
must provide “a detailed justification and not just conclusory statements to demonstrate that all
reasonably segregable information has been released.” Valfells v. CIA, 717 F. Supp. 2d 110,
120 (D.D.C. 2010) (internal quotation marks omitted); see also Armstrong v. Exec. Office of the
President, 97 F.3d 575, 578 (D.C. Cir. 1996) (determining Government affidavits explained
nonsegregability of documents with “reasonable specificity”). “In making a determination as to
segregability . . . a district court judge ‘may examine the contents of . . . agency records in
camera’ . . . . This Circuit has interpreted this language to give district court judges broad
discretion in determining whether in camera review is appropriate.” Id. at 577-78 (citations
omitted).
CEI complains that EPA’s segregability analysis for each entry in the sample Vaughn
index of fully withheld documents is insufficiently thorough or specific. The group observes that
many of EPA’s explanations for why it could not segregate discloseable information in these
records appear boilerplate, repeating again and again:
The withheld information does not contain reasonably segregable
factual information. To the extent any of the withheld information
contains facts, the facts reflect Agency deliberations. The
selection of those facts was an integral part of the deliberations,
and the factual information contained therein is inextricably
intertwined with the deliberative discussion concerning this
document.
E.g., Vaughn Index – Every 10th at 1, 2, 4, 5, 6, 7, 8, 9, 10, 12. CEI argues that “a blanket
declaration that all facts are so intertwined to prevent disclosure . . . does not constitute a
32
sufficient explanation of non-segregability . . . [;] for each entry the defendant is required to
‘specify in detail which portions of the document are disclosable and which are allegedly
exempt.’” Opp. at 34 (quoting Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83,
90 (D.D.C. 2009)).
In order to ensure that EPA complied with its disclosure obligations and properly
segregated all non-exempt information, the Court ordered the agency to “produce in camera
every tenth document listed on the sample Vaughn index of fully withheld documents.” Minute
Order (Jan. 10, 2014). Perhaps because it misunderstood the Order, or perhaps in a fit of
generosity, EPA instead provided the Court with all of the documents listed on the sample
Vaughn index of fully withheld documents. See ECF No. 37 (Notice of In Camera, Ex Parte
Submission). The Court has reviewed these records. It has also considered the assurances of
Wachter, whose Declaration maintains that “EPA performed a document-by-document and line-
by-line review of documents for any reasonable segregable information,” and that “[t]here is no
additional segregable factual information that could be released without revealing protected
information.” Wachter Decl., ¶ 28.
Having done so, the Court is satisfied that there are no segregability problems in this
case. If the fully withheld documents had instead been redacted, CEI would have only found
“disjointed words, phrases, or . . . sentences which taken separately or together have minimal or
no information content.” Mead Data, 566 F.2d at 261 n.55. Coupled with the evident good faith
in which EPA undertook its segregation of non-exempt material – nearly 80% of the documents
withheld were redacted, rather than withheld in full, see Reply at 15 n.5 – the Court finds that
despite EPA’s rather generic segregability analyses, the agency has demonstrated that all
reasonably segregable information has been released. See Acosta v. FBI, 946 F. Supp. 2d 53, 59
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(D.D.C. 2013) (“Although some of [the agency’s segregability analysis] may appear generic,
having reviewed the redacted documents and the Hardy Declaration, the Court finds that no
segregability problem exists here.”); cf. Armstrong, 97 F.3d at 577-78 (“Summary judgment may
not be appropriate without in camera review when agency affidavits in support of a claim of
exemption are insufficiently detailed or there is evidence of bad faith on the part of the agency.”)
(emphasis added). The Court will therefore grant EPA summary judgment on this point.
IV. Conclusion
For the foregoing reasons, the Court will grant in part and deny in part EPA’s Motion for
Summary Judgment. Summary judgment will be entered in favor of EPA on all counts, save for
(1) EPA shall justify its withholding – i.e., produce a separate Vaughn entry – of the 10th
unnumbered document listed in footnote 47 of CEI’s Opposition brief (counting from the left),
see Opp. at 19 n.47; (2) EPA shall disclose the official email address Browner used to
communicate with EPA in Vaughn entry number 5530, see Vaughn Index – Every 100th at 26-
27; and (3) EPA shall disclose whether the redaction in Vaughn entry number 4860 withheld
Browner’s personal or official email address. See Vaughn Index – Every 100th at 21. If it is the
latter, EPA must disclose that email address. A separate Order consistent with this Opinion will
be issued this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 29, 2014
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