RUDOLPH CONTRERAS, United States District Judge.
Plaintiff Hunton & Williams LLP (Hunton) filed this action seeking documents under the Freedom of Information Act (FOIA). Hunton requested records from three agencies—the U.S. Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers (Corps), and the U.S. Department of the Army (Army)—regarding the government's Clean Water Act (CWA) and Rivers and Harbors Act (RHA) jurisdiction over an industrial site in Redwood City, California. The developer of the site had requested an Approved Jurisdictional Determination (AJD) in 2012, in order to definitively establish the government's position on CWA and RHA jurisdiction. The Corps and the EPA share responsibility for issuing such AJDs.
In this case, after the Corps prepared a draft AJD addressing both CWA and RHA jurisdiction, the Army intervened to perform a "legal and policy review" in its role as the Corps' parent agency. After that legal and policy review was complete and the Corps had briefly returned to work on the AJD, the EPA stepped in and used its "special case" authority to take over the CWA portion of the AJD. As of August of 2016, the EPA had still not issued the CWA portion of the AJD.
Hunton, a law firm, submitted multiple FOIA requests for records from the EPA, the Corps, and the Army. Dissatisfied with the agencies' responses, Hunton filed this suit. Now pending before the Court are motions for summary judgment by the EPA, the Army, and the Corps, as well as Hunton's motion for partial summary judgment concerning the Corps, Hunton's motion for partial summary judgment concerning the Amy, and Hunton's motion for an order governing further proceedings against the EPA.
Hunton filed FOIA requests seeking information relating to the AJD for an industrial site in Redwood City, California.
Three agencies—the Corps, the EPA, and the Army—played a role in this lengthy process. Typically, the EPA and the Corps share responsibility for issuing AJDs. Compl. ¶ 9. For the AJD at issue, the Corps informed the developers that it would take the lead with the EPA providing the Corps with "technical support." Compl., Ex. A, ECF No. 1-1. The Corps began work, and in May of 2014 was apparently "on the verge" of issuing an AJD determining both RHA and CWA jurisdiction. Compl. ¶¶ 15-16.
But the AJD did not issue in May of 2014. Instead, the Assistant Secretary of the Army for Civil Works (ASA(CW)) used her "oversight responsibility" over the Corps to conduct a "legal and policy review" of the AJD process, with the effect of delaying the AJD's issuance. Decl. of Paul DeAgostino (DeAgostino Decl.) ¶ 21, ECF No. 36-2; Compl. ¶¶ 21, 24. According to the ASA(CW), this review "only considered the procedural aspects of the determination and did not in any way consider
On the eve of this planned issuance, the EPA used its "special case" authority to take over the CWA portion of the AJD. Brush Decl., Ex. E at 16, ECF No. 40-3; see also Mem. Agreement, Ex. 2, ECF No. 57-1. The Corps retained the authority to determine RHA jurisdiction, and issued an AJD with respect to the RHA on March 19, 2015. Compl. ¶ 27. The special case authority is typically used when "significant issues or technical difficulties are anticipated or exist, concerning the determination of the geographic jurisdictional scope of waters of the United States." Mem. Agreement. A few months later, in June of 2015, the agencies published a new rule altering the definition of "waters of the United States" in the CWA. See generally 33 C.F.R. § 328 (2015).
As of the briefing of these motions, the CWA portion of the Redwood City AJD had still not been issued by the EPA. EPA Reply at 18, ECF No. 57. Seeking insight into the EPA and the Corps' decisionmaking with respect to the Redwood City site, Hunton submitted multiple FOIA requests to the EPA, the Corps, and the Army. Nine of those requests are at issue here.
Four of Hunton's FOIA requests to the EPA are at issue in this suit. First, on May 30, 2014, Hunton submitted FOIA requests to the EPA seeking
Compl., Ex. E, ECF No. 1-5.
Next, Hunton sought the same records as in its initial request, but twice expanded the applicable date range to cover any documents created since the previous FOIA requests: on August 19, 2014, Hunton requested documents "since May 30, 2014,"
On March 23, 2015, Hunton submitted a fourth request to the EPA seeking:
Compl., Ex. N, ECF No. 1-14 (footnotes omitted). Hunton appealed each of the four requests administratively. Brush Decl. ¶ 29, ECF No. 40-2. The exhaustion of administrative remedies is not at issue here.
Between June 2014 and June 2015, the EPA produced documents relating to Hunton's first three FOIA requests. Compl. ¶¶ 30, 48. To do so, EPA searched specific employee's accounts in its email system using various search terms. Brush Decl. ¶ 16. "[C]ustodians" at EPA Region 9 and the EPA headquarters were also instructed "to search for and collect other responsive files that would not be contained in the email system" in response to these three requests. Brush Decl. ¶ 17. The EPA produced about 600 documents in full, withheld 12 documents in full, and withheld 320 documents in part. Brush Decl. ¶ 31. Of the withheld information, the information in 314 documents was withheld on the basis of the deliberative process privilege, the information in 23 documents was withheld on the basis of the attorney-client privilege, and the information in 23 documents was withheld on the basis of the attorney work-product privilege. Brush Decl. ¶ 31.
With respect to the fourth FOIA request, the EPA denied the March 23, 2015 request for the "final" AJD. Compl. ¶¶ 51-52. The EPA located the document using a manual search, but withheld it in its entirety
Four of Hunton's FOIA requests to the Corps are at issue here. First, on May 30, 2014, Hunton submitted a FOIA request to the Corps seeking:
15-cv-1207, Compl., Ex. E., ECF No. 1-5. As is evident from the request, Hunton sought the same information from the Corps as it did in its request to the EPA.
Next, Hunton sought the same records as in its initial request, but thrice expanded the applicable date range to cover any document created after the previous FOIA request: on August 19, 2014, Hunton requested documents "since May 30, 2014," 15-cv-1207, Compl., Ex. F, ECF No. 1-6;
Between April 2015 and April 2016, the Corps released 20,448 pages of documents. See Bartlett Decl. ¶ 8. The Corps identified a set of likely custodians within each office
Only one FOIA request to the Army is at issue here. On March 19, 2015, Hunton submitted a FOIA request to the Army seeking:
15-cv-1208, Compl., Ex. E, ECF No. 1-5.
The Army did not release any documents to Hunton before the complaint in this action was filed. 15-cv-1208, Compl. ¶ 31, ECF No. 1; 15-cv-1203, Answer ¶ 31, ECF No. 16. After this lawsuit was initiated, the Army identified 3852 pages of responsive documents and released 2422 pages of materials between November 2015 and January of 2016. DeAgostino Decl. ¶¶ 5, 15, ECF No. 36-2.
The Army searched for responsive documents within the Office of the ASA(CW) and within the Office of General Counsel (OGC), the two locations it determined were likely to have responsive documents. DeAgostino Decl. ¶ 6. The Army identified likely custodians in each office and applied various search terms to their files. DeAgostino Decl. ¶¶ 7-11. The Army also used search terms to search those custodians' files with the Defense Information Systems Agency—the email provider for the OGC and ASA(CW). DeAgostino Decl. ¶ 12. The Army withheld a variety of documents from its disclosure under FOIA Exemptions 5 and 6. DeAgostino Decl. ¶¶ 17-18. The Army supplemented its initial search by searching the personal email of a particular employee who had used a personal email account to conduct agency business. Compare Pl.'s Reply Army at 3, ECF No. 54, with Schmauder Decl. ¶ 4, ECF No. 61. The Army searched the personal email account for the terms "Cargill," "Saltworks," and "Redwood City,"
All three agencies move for summary judgment on the grounds that they performed adequate searches, appropriately withheld information pursuant to FOIA exemptions, and released all reasonably segregable material. Army MSJ, ECF No. 36; EPA MSJ, ECF No. 40; Corps MSJ, ECF No. 52. Against the EPA, Hunton seeks an order denying summary judgment and granting in camera review of the material the EPA withheld. Pl.'s Mot. Order EPA, ECF No. 50. Against the Corps, Hunton moves for partial summary judgment, seeking an order documenting violations of FOIA, re-review and production of materials currently withheld as non-responsive, and either production or in camera review of materials withheld under Exemption 5. Pl.'s MPSJ Corps, ECF No. 56. Against the Army, Hunton moves for partial summary judgment seeking an order documenting violations of FOIA, release of the names redacted under Exemption 6, and either production or in camera review of materials withheld under Exemption 5. Pl.'s MPSJ Army, ECF No. 46. Those motions are now ripe for decision.
The Court reviews the applicable legal standard before analyzing the merits of the parties' positions.
"FOIA cases typically and appropriately are decided on motions for summary judgment." Def. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A "material" fact is one capable of affecting the substantive outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" if there is enough evidence for a reasonable jury to return a verdict for the non-movant. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In considering a motion for summary judgment, a court must "eschew making credibility determinations or weighing the evidence," Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most favorable to the non-movant, see Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
When assessing a summary judgment motion in a FOIA case, a court makes a de novo assessment of whether the agency has properly withheld the requested information. See 5 U.S.C. § 552(a)(4)(B); Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec., 598 F.Supp.2d 93, 95 (D.D.C. 2009). To prevail on a motion for summary judgment, "the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements." Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980) (internal quotation marks omitted) (quoting Nat'l Cable Television Ass'n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)). To meet its burden, a defendant may rely on declarations that are reasonably detailed and non-conclusory. See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Labor, 478 F.Supp.2d 77,
Even if the nonmovant does not respond to the motion for summary judgment, the court cannot grant the motion for the reason that it was conceded. See Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) ("Under the Federal Rules of Civil Procedure, a motion for summary judgment cannot be `conceded' for want of opposition. `The burden is always on the movant to demonstrate why summary judgment is warranted. The non-moving party's failure to oppose summary judgment does not shift that burden.' The District Court `must always determine for itself whether the record and any undisputed material facts justify granting summary judgment.'" (quoting Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring) and citing Fed. R. Civ. P. 56(e)(3))).
Hunton disputes the adequacy of the agencies' searches, as well as the agencies' use of FOIA Exemptions 5 and 6. The Court addresses adequacy first, and concludes that the agencies' searches were adequate. The Court then turns to the agencies' withholdings, and concludes that no agency has fully justified its withholdings, and thus in camera review and further briefing will be appropriate.
Hunton argues that the agencies' searches were inadequate in two ways—first, because the agencies did not sufficiently search employees' personal communications, such as personal email accounts and text messages; and second, because the Corps artificially limited the number of custodians that it searched.
Although Hunton does not, in general, challenge the adequacy of the agencies' searches, the Court nonetheless conducts an independent evaluation to determine whether the record and undisputed material facts justify granting summary judgment. Under FOIA, an adequate search is one that is "reasonably calculated to uncover all relevant documents." Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (internal quotation mark omitted) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The agency need not search "every record system" for the requested documents, but it "must conduct a good faith, reasonable search of those systems of records likely to possess the requested records." Marino v. Dep't of Justice, 993 F.Supp.2d 1, 9 (D.D.C. 2013) (citing Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). When an agency seeks summary judgment on the basis that it conducted an adequate search, it "may rely on a `reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to
In general, the agencies' searches are adequate. Each agency has provided a declaration describing its search in reasonable detail and explaining how that search was reasonably calculated to uncover all responsive documents. For example, the EPA provided a declaration describing its search process for records responsive to request EPA-R9-2014-006943. The EPA "focused on e-mail correspondence as the location most likely to contain the majority of responsive records" and therefore used a "centralized tool" to search the EPA's email system using the keywords "Cargill," "Redwood City," "salt pond," "DMB," and "Saltworks." Brush Decl. ¶ 16, ECF No. 40-2. In addition, "custodians [ ] search[ed] for and collect[ed] other responsive files that would not be contained in the email system (such as word processing documents or hard copy documents)."
Having concluded that the agencies' searches were generally adequate, the Court addresses Hunton's specific objections. First, Hunton argues that the Corps and the Army did not adequately search non-official channels of communication. Second, Hunton asserts that the Corps improperly limited the number of custodians that it searched.
Hunton disputes the adequacy of the Corps' and the Army's searches on the
The D.C. Circuit has suggested that a requester can satisfy its burden to present "countervailing evidence" in the context of personal email accounts by identifying evidence that a specific private email address has been used for agency business. See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 146 (D.C. Cir. 2016). Mere speculation, however, that private email accounts were used does not require the agency to perform a search. See Wright v. Admin. for Children & Families, No. 15-218, 2016 WL 5922293, at *8-9 & n.5 (D.D.C. Oct. 11, 2016) (rejecting "the plaintiff's purely speculative contentions" that personal email was used because "[t]he plaintiff misconstrues the nature of his burden to submit `countervailing evidence' to raise a `substantial doubt' as to the adequacy of the agency's search" and "the plaintiff has not overcome the presumption that agency records are unlikely to exist on the agency employees' personal accounts").
Here, the Corps initially searched the personal email account of one particular employee because that employee "appeared to have conducted . . . business using a personal email account."
The Army did not initially perform any searches for personal emails, but did perform a supplemental search after Hunton identified emails in the Army's releases that had been sent from a personal email account. Pl.'s Reply Army at 3, ECF No. 54. The Army's supplemental search covered that particular account and used the search terms "Cargill," "Saltworks," and "Redwood City." Schmauder Decl. ¶ 4, ECF No. 61. That search discovered only the previously released emails. See Schmauder Decl. ¶ 4 (indicating that Mr. Schmauder "do[es] not routinely use [his] personal emails to conduct professional business"); see generally Schmauder Decl.
Both agencies have thus performed searches when specific facts indicated that a particular employee had used a personal email account for agency business. Hunton identifies no other particular employees whose accounts it asserts should be searched, or other specific facts in the record indicating that personal email accounts were used. Hunton seeks to require the agencies to search other personal email accounts—presumably those for all employees identified as having been involved with the Saltworks issues—even in the absence of any indication that any such personal accounts were used for agency business. This goes too far. Unlike the requestor in Competitive Enterprise Institute, Hunton is unable to identify any "countervailing evidence" of personal email use. Cf. 827 F.3d at 146. Indeed, Hunton states merely that that "it is plausible that non-formal channels may have been utilized
Next, Hunton argues that the agencies should be required to search for responsive text messages. Pl.'s MPSJ Army at 23-24, ECF No. 46; Pl.'s MPSJ Corps at 19-20. However, as with emails, Hunton does not present countervailing evidence to overcome the presumption inherent in the agency's declarations that all sources of responsive records were searched. Hunton does not point to any evidence indicating that text messages were used for agency business or otherwise show that searching text messages would be likely to lead to responsive documents. Unlike email messages, no evidence in the record suggests that any agency employees used text messages to conduct official business. The Court therefore finds that Hunton's speculative arguments about the possible existence of text messages are insufficient, and the undisputed facts in the record—including the agency's declarations—demonstrate that the agencies are entitled to summary judgment as to the adequacy of their search.
Finally, Hunton's requests for discovery regarding personal communications channels are denied as to both the Army and the Corps. "Discovery is the exception, not the rule, in FOIA cases." Landmark Legal Found. v. EPA, 959 F.Supp.2d 175, 183 (D.D.C. 2013) (noting that "discovery is an extraordinary procedure in a FOIA action" (quoting Thomas v. FDA, 587 F.Supp.2d 114, 115 (D.D.C. 2008))). Here, the Court has determined that the agency's declarations are sufficient to support a finding that their search of personal communication channels was adequate, and discovery is thus not appropriate.
Hunton objects that the Corps wrongfully limited the number of custodians whose records it searched. Pl.'s MPSJ Corps at 20. However, the Court finds that Hunton agreed to a limited list of custodians—subject to Hunton's right to suggest additional custodians, which it never exercised.
The three agencies applied FOIA Exemptions 5 and 6 to withhold records. Hunton objects to the agencies' use of these exemptions. In addition to Hunton's challenges to the general application of each exemption, Hunton also argues that three specific types of records were wrongfully withheld by the agencies under Exemption 5—the "final draft" AJD created by the Corps, documents relating to the EPA's use of its special case authority, and documents relating to the Army's legal and policy review. The Court concludes that the agencies' Vaughn indices
"[D]isclosure, not secrecy, is the dominant objective of [FOIA]." Dep't of the Air Force v. Rose, 425 U.S. 352, 361 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). "Consistent with this purpose, agencies may withhold only those documents or portions thereof that fall under one of nine delineated statutory exemptions." Elliott v. USDA, 596 F.3d 842, 845 (D.C. Cir. 2010) (citing 5 U.S.C. § 552(b)). "[T]he exemptions are `explicitly exclusive.'" U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) (quoting FAA Adm'r v. Robertson, 422 U.S. 255, 262, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975)). The agency bears the burden of showing that an exemption applies. Elliott, 596 F.3d at 845 (citing 5 U.S.C. § 552(a)(4)(B)). "If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." ACLU v. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted).
Hunton challenges the agencies' use of Exemptions 5 and 6. The Court addresses each exemption in turn, beginning with Exemption 5. Exemption 5 protects "inter-agency or intraagency memorandums or letters that would not be available by law to a party . . . in litigation with the agency." 5 U.S.C. § 552(b)(5). This exemption protects documents "normally privileged in the civil discovery context," Judicial Watch, Inc. v. U.S. Dep't of Justice, 365 F.3d 1108, 1113 (D.C. Cir. 2004), such as materials shielded by the attorney-client privilege, the attorney work-product privilege and "what is sometimes called the `deliberative process' privilege," U.S. Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001). In other words, Exemption 5 covers "those documents, and only those documents, normally privileged in the civil discovery context." Loving v. U.S. Dep't of Defense, 550 F.3d 32, 37 (D.C. Cir. 2008) (citations omitted). All three of these aspects of Exemption 5 are at issue here.
Hunton challenges all three agencies' withholdings based on the deliberative process privilege. The Court agrees that all three agencies have not provided sufficiently detailed explanations of their withholdings under the privilege.
The deliberative process privilege "covers documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated." Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975)). The purpose of the exemption is to protect the decisionmaking process within the agency. See Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). In order to withhold information pursuant to the privilege, an agency must demonstrate that the information is both (1) predecisional, or "generated before the adoption of an agency policy," and also (2) deliberative, or "reflect[ing] the give-and-take of the consultative process." Id.
To justify its application of the deliberative process privilege, an agency must address the following areas: "(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." Nat'l Sec. Counselors v. CIA, 960 F.Supp.2d 101, 189 (D.D.C. 2013) (citing Senate of P.R. v. U.S. Dep't of Justice, 823 F.2d 574, 585-86 (D.C. Cir. 1987); Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257-58 (D.C. Cir. 1982); Coastal States, 617 F.2d at 867-68). In addition, other courts in this jurisdiction have held, and the D.C. Circuit has suggested, that "the agency must make the additional showing that disclosure would cause injury to the decisionmaking process." Nat'l Sec. Archive v. CIA, 859 F.Supp.2d 65, 70 (D.D.C. 2012), aff'd, 752 F.3d 460 (D.C. Cir. 2014) (citing Army Times Publ'g Co. v. Dep't of the Air Force, 998 F.2d 1067, 1071 (D.C. Cir. 1993)); see also Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977) ("An agency cannot meet its statutory burden of justification by conclusory allegations of possible harm. It must show by specific and detailed proof that disclosure would defeat, rather than further, the purposes of the FOIA."); Judicial Watch, Inc. v. U.S. Postal Serv., 297 F.Supp.2d 252, 259 (D.D.C. 2004) ("The deliberative process privilege exists to prevent injury to agency decisionmaking.... [s]uch harm can not be merely presumed..." (internal citation omitted)).
Each of these areas must be addressed with reasonable specificity—a "broad and opaque description of the deliberative process involved does not provide the Court with enough detail about whether these documents are deliberative and predecisional." Trea Senior Citizens League v. U.S. Dep't of State, 923 F.Supp.2d 55, 68 (D.D.C. 2013). Courts in this jurisdiction have rejected agency descriptions that did not adequately describe the deliberative process at issue. See, e.g., Nat'l Sec. Counselors, 960 F.Supp.2d at 189 (rejecting a description of the deliberative process as "the process by which the [CIA] comes to a final determination in response to FOIA requests" (alteration in original)); Trea Senior Citizens League, 923 F.Supp.2d at 68 (rejecting a description of the deliberative process as "the overall process of negotiating and signing the [totalization] agreement" (alteration in original)); Judicial Watch, Inc. v. U.S. Postal Serv., 297 F.Supp.2d at 264 (rejecting a description of the deliberative process as "actions taken or proposed in response to the discovery of anthrax in the
Hunton argues that the EPA's Vaughn index is insufficient to justify its withholding of information pursuant to the deliberative process privilege. E.g., Pl.'s Mot. Order EPA at 18-22, ECF No. 50. Because EPA does not sufficiently describe the particular decisionmaking process or the function of the records in that process, the Court agrees.
The EPA's Vaughn index begins with the following description for DOC-001:
EPA's Vaughn index at 1, ECF No. 40-4. An attentive reader would detect only modest variation from this initial theme as the EPA's Vaughn index continues for several hundred pages. The precise quotation above is also found in the descriptions for, inter alia, DOC-002, DOC-003, DOC-079, DOC-156, DOC-225, DOC-279, and DOC-321.
This language
Mindful of the heightened requirement for specificity in the context of the deliberative process privilege, the Court cannot grant the EPA summary judgment because the EPA's disclosures, like others rejected in this jurisdiction, are insufficiently specific about the deliberative process at issue and the function and significance of each record in that process.
Hunton also argues that the Corps' Vaughn index provides insufficient detail to justify the Corps' withholding of information under the deliberative process privilege, and the Court agrees.
Many of the entries in the Corps' Vaughn index for records withheld under the deliberative process privilege are sparse, and do not describe either the specific deliberative process, the function of the particular record, or the nature of the decisionmaking authority. The entries in the Corps' Vaughn index are varied and defy easy summation, but many share the common feature of providing very little
As these examples demonstrate, the Corps' Vaughn index
Finally, Hunton argues that the Army's Vaughn index is insufficient to demonstrate that the Army correctly withheld information under the deliberative process privilege, and the Court agrees.
Although the Army's Vaughn index contains some variation, many of its entries do not adequately describe why the deliberative process privilege was applied to certain records. For example, the entire entry for document 334 reads: "Email contains pre-decisional information related to legal advice between attorney and client regarding AJD legal and policy review"—in a similar vein, the entry for 213 reads "Emails contain pre-decisional information for agency official regarding information for AJD legal and policy review." Army's Vaughn index at 35, 48, ECF No. 36-3. These descriptions are just as broad and vague as those previously rejected by courts in this jurisdiction. They provide only the fuzziest description of the deliberative process, and also omit entirely to describe the "function or significance" of the particular record or the decisionmaking authority vested in the author. Nor does the Army address the possible harms that could result from releasing the withheld information, except to argue in general
Because the Army's disclosures do not provide "`the minimal information necessary to make a determination' concerning applicability of the deliberative process privilege" the Court denies the Army's request for summary judgment as to the propriety of its withholdings.
The Court has thus determined that none of the three agencies has provided "`the minimal information necessary to make a determination' concerning applicability of the deliberative process privilege" and the Court will thus deny the agencies summary judgment as to the deliberative process privilege. See Elec. Frontier Found., 826 F.Supp.2d at 173 (quoting Coastal States, 617 F.2d at 861). The Court has several options for an appropriate remedy. "If the agency fails to provide a sufficiently detailed explanation to enable the district court to make a de novo determination of the agency's claims of exemption, the district court then has several options, including inspecting the documents in camera, requesting further affidavits, or allowing the plaintiff discovery." Spirko v. USPS, 147 F.3d 992, 997 (D.C. Cir. 1998); see also Dickstein Shapiro LLP v. Dep't of Def., 730 F.Supp.2d 6, 9 (D.D.C. 2010) ("Title 5, United States Code, Section 552, provides that the court `may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions.'").
In this case, as described with more specificity in the accompanying Order, the Court will entertain supplemental briefing and order in camera review of representative documents. See Pinson v. U.S. Dep't of Justice, 177 F.Supp.3d 56, 90 (D.D.C. 2016) ("In camera inspection may be appropriate ... when agency affidavits are insufficiently detailed to permit meaningful review of exemption claims...." (quoting Lam Lek Chong v. U.S. Drug Enf't Admin., 929 F.2d 729, 735 (D.C. Cir. 1991))). Ordering such review is at the discretion of the district court. Dickstein Shapiro, 730 F.Supp.2d at 9.
However, in order to assist the parties moving forward, the Court will briefly address the specific issues concerning the application of the deliberative process privilege to withhold particular categories of documents. As a preliminary matter, the Court notes that both parties create unnecessary confusion by treating the entire chain of events here as one long decisionmaking process. That is not the case. The Court identifies at least three separate decisionmaking processes, namely: (1) the Corps' development of the "final" draft AJD; (2) the EPA's decision to exercise its special case authority; and (3) the Army's legal and policy review. In the future, both parties' briefing would be clarified by considering separately each decisionmaking process.
The first bone of contention is the "final" draft AJD developed by the Corps and withheld under the deliberative process
First, the "final" draft AJD may be predecisional because it was created before the final decision was reached on the AJD.
To argue that the "final" draft AJD is not predecisional, Hunton argues that it represents the Corps' final position, regardless of the EPA's decision to take over the determination. Pl.'s Mot. Order EPA at 23 (asserting that "the Corps had reached its final agency position" and "[t]he fact that EPA chose to make a decision on its own ... does not convert the Corps' decision into a pre-decisional deliberative document"). This argument confuses the temporal sense of "final" with the sense required by FOIA. Hunton presents no evidence that the Corps, or any other agency, has ever relied on, referred to, or treated as precedential the "final" draft AJD. As in other circumstances where agencies have ceased to work in an area, that cessation does not convert the Corps' last-in-time position to a legally final one:
Exxon Corp. v. Dep't of Energy, 585 F.Supp. 690, 699-700 (D.D.C. 1983) (emphasis added); see also Ashley v. U.S. Dep't of Labor, 589 F.Supp. 901, 908 (D.D.C. 1983) ("Similarly, an agency's rejection of the recommendations in a withheld document, either explicitly or implicitly through agency inaction, does not make otherwise predecisional documents final and disclosable." (citing Common Cause v. IRS, 646 F.2d 656, 659 (D.C. Cir. 1981), Brinton v. Dep't of State, 636 F.2d 600, 600 (D.C. Cir. 1980), and Lead Industries Ass'n., Inc. v. OSHA, 610 F.2d 70, 84 (2d Cir. 1979))).
Second, the "final" draft may be deliberative because it represents the back and forth of the decisionmaking process. This is ultimately a functional analysis—a document is "part of the deliberative process if its disclosure would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Judicial Watch of Florida, Inc. v. U.S. Dep't of Justice, 102 F.Supp.2d 6, 13 (D.D.C. 2000) (citing Formaldehyde Inst. v. Dep't of Health and Human Servs., 889 F.2d 1118, 1122 (D.C. Cir. 1989) and Mobil Oil Corp. v. EPA, 879 F.2d 698, 703 (9th Cir. 1989)). The deliberative process can—as it did here—span between two different agencies. This set-up is particularly common when one agency serves a secondary function to a supervising agency. See Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 187-88, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975) ("By including inter-agency memoranda in Exemption 5, Congress plainly intended to permit one agency possessing decisional authority to obtain written recommendations and advice from a separate agency not possessing such decisional authority without requiring that the advice be any more disclosable than similar advice received from within the agency.").
For example, another court in this jurisdiction considered the applicability of the deliberative process exemption to documents transmitted between the Office of Government Ethics (OGE) and the Department of the Interior (DOI). The OGE "relies upon agencies to conduct inquiries into ethics violations and to report their findings" because of its "limited resources," but, "the results of the agency's investigations and [the agency's] own conclusions about whether ethics violations actually occurred are not the final word if the OGE finds that more needs to be done." Defs. of Wildlife v. U.S. Dep't of Interior, 314 F.Supp.2d 1, 19 (D.D.C. 2004). That court therefore concluded that the DOI's letters to OGE discussing DOI's inquiry into an ethics violation were protected by the deliberative process privilege—they "did not constitute final decisions just waiting to be implemented" because "the OGE had the authority to disagree with the conclusions contained therein, and it did so.... OGE, in effect, overrode DOI's initial conclusions." Id. at 20-21.
This case fits the same pattern. Here, the EPA has the ultimate authority to decide questions of CWA jurisdiction. The agreement between the Corps and the EPA describing the special case authority begins from this premise. See Mem. Agreement at 1, ECF No. 57-1 ("The Attorney General of the United States issued
For these reasons, the Court finds it highly plausible that the "final" draft AJD created by the Corps is exempt from disclosure.
Second, Hunton challenges the EPA's withholding of records related to its decision to use its special case authority.
Hunton and the EPA dispute whether or not the documents are predecisional. According to the EPA, they are because it did not exercise the special case authority until March of 2015. According to Hunton, the decision had actually been made prior to that, as evidenced by a dramatic reduction in the number of documents. Pl.'s Mot. Order EPA at 16-17. Even if the documents were predecisional, the parties also dispute whether some of the withheld documents constitute the "working law" of the agency that must be disclosed. To make
Hunton also seeks documents from the Army relating to its legal and policy review.
The parties' briefing of this issue reflects confusion among the several separate decisionmaking processes. See, e.g., Pl.'s MPSJ Corps at 10, ECF No. 56 (arguing that the legal and policy review was not predecisional because it "did not affect the decision that the Corps initially made in 2014," presumably, the Corps' "final" draft AJD). For example, Hunton argues that it should be entitled to documents relating to the legal and policy review because the "relevant decision" was the Army's choice to "undertake the vague `legal and policy review'" which was complete when the review began. Pl.'s Reply Army at 5-6, ECF No. 54. While this may be an accurate statement, the documents generated during the legal and policy review should be analyzed in relation to the decisionmaking process of that review—culminating in the completion of the review—not in the context of the earlier, separate decision to perform the review.
Before it can consider whether the documents were predecisional or deliberative, the Court must determine whether the legal and policy review was a deliberative process at all. In some situations, an agency's reexamination of its own behavior does constitute a deliberative process. See Sears, 421 U.S. at 151 n.18, 95 S.Ct. 1504 ("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; and the lower courts should be wary of interfering with this
Hunton challenges the Corps' use of Exemption 5 to withhold information on the basis of the attorney work-product privilege. Because the Corps has not adequately shown that the records in question were prepared "because of" potential litigation, the Court denies the Corps summary judgment.
One category of records exempted from disclosure by Exemption 5 of FOIA is attorney work-product. The work-product privilege "shields materials `prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative.'" Judicial Watch, Inc. v. Dep't of Justice, 432 F.3d 366, 369 (D.C. Cir. 2005) (quoting Fed. R. Civ. P. 26(b)(3) and Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir. 1997)). The privilege protects "the mental impressions, conclusions, opinions, or legal theories of an attorney," as well as "factual materials prepared in anticipation of litigation." Tax Analysts, 117 F.3d at 620 (internal quotation marks omitted). The work-product privilege originates from the longstanding recognition that "materials prepared by one's attorney in anticipation of litigation are generally privileged from discovery by one's adversary." Nat'l Ass'n of Criminal Def. Lawyers v. U. S. Dep't of Justice Exec. Office for U.S. Attorneys, 844 F.3d 246, 250 (D.C. Cir. 2016) (citing Hickman v. Taylor, 329 U.S. 495, 510-12, 67 S.Ct. 385, 91 S.Ct. 451 (1947) and In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998)).
In order to establish that it has properly withheld information under the work-product privilege, the agency must: "(1) provide a description of the nature of and contents of the withheld document, (2) identify the document's author or origin, (3) note the circumstances that surround the document's creation, and (4) provide some indication of the type of litigation for which the document's use is at least foreseeable." Ellis v. U.S. Dep't of Justice, 110 F.Supp.3d 99, 108 (D.D.C. 2015), aff'd, No. 15-5198, 2016 WL 3544816 (D.C. Cir. June 13, 2016); see also FTC v. Boehringer Ingelheim Pharms. Inc., 778 F.3d 142, 149 (D.C. Cir. 2015) (holding that records qualify for protection under the attorney work-product privilege when "in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation" (quoting United States v. Deloitte LLP, 610 F.3d 129, 137 (D.C. Cir.2010))); In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (requiring the agency to demonstrate that the records were created with a "subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable").
The Corps' descriptions of information withheld in the Corps' Vaughn index
First, the Corps justified its withholding of draft versions of the AJD by applying the work-product privilege. See, e.g., Corps' Vaughn index at 115-22, ECF No. 52-4 (entries for 9994-9998, 10022-10029, 10045-10052, 10154-10162, 11305-11312 including descriptions such as "Draft, nonfinal JD under the Rivers and Harbors Act and Clean Water Act"). Second, the Corps used the privilege to withhold draft versions of letters to members of Congress. See, e.g., Corps' Vaughn index at 123-26 (entries for 11871-11873, 11965-11966, 12086-12087 including descriptions such as "Draft letter to member of Congress regarding status of Cargill JD").
The work-product privilege does not cover "any document prepared by any person in the Government with a law degree simply because litigation might someday occur" or else "the policies of the FOIA would be largely defeated." Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 865 (D.C. Cir. 1980). The Court must apply a "`because of' test, asking whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." United States v. Deloitte LLP, 610 F.3d 129, 137 (D.C. Cir. 2010) (emphasis added) (quoting In re Sealed Case, 146 F.3d at 884).
The "because of" test demonstrates the flaw in the Corps' reasoning. Drafts of the AJD were not prepared because of possible litigation. The Corps was required to prepare the AJD, and thus drafts of the AJD, even if it knew that no litigation would ever result. Similarly, the Corps' replies to Congress about the AJD process were not created "because of" the possibility of future litigation—unless the Corps would have ignored Congressional inquiries into a less controversial case. The Corps does not attempt to explain how drafts of the AJD constitute attorney work-product. As to the draft letters, the Corps argues that because the parties seeking the AJD were "contentious" and "litigious[ ]," the Corps expected that its letters to Congress would "find [their] way into litigation." Corps Reply at 17, ECF No. 59. This misunderstands the nature of the privilege. The mere fact that a document might find its way into litigation does not suffice unless the litigation was the reason for the creation of the document. See Coastal States, 617 F.2d at 865.
Although the Corps has not yet established that these records were created because of reasonably expected litigation, such a showing remains possible in the future. For example, an agency performing a statutory duty with a reasonable anticipation of litigation might have additional counsel edit the documents or draft plans for litigation strategy because of that reasonable expectation, and those edits or plans could then qualify for the attorney work-product privilege. However, the Corps has not provided sufficient explanation to conclude that similar circumstances existed here. The Corps' motion for summary judgment is thus denied as to its use of the work-product portion of Exemption 5.
Hunton challenges the Corps' and the Army's use of the attorney-client privilege portion of Exemption 5.
"The attorney-client privilege protects confidential communications from clients to their attorneys made for the purpose of securing legal advice or services. The privilege also protects communications from attorneys to their clients if the communications `rest on confidential information obtained from the client.'" Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997) (quoting In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984)). "In the governmental context, the `client' may be the agency and the attorney may be the agency lawyer." Tax Analysts, 117 F.3d at 618. The government bears the burden of proving, through "detailed and specific information," that the withheld information falls within the attorney-client privilege. See Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998). To succeed on a motion for summary judgment, the government must show:
Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec., 841 F.Supp.2d 142, 153-54 (D.D.C. 2012) (citing In re Sealed Case, 737 F.2d at 98-99). With this standard in mind, the Court addresses each agency's withholdings.
Hunton argues that the Corps has failed to justify its application of the attorney-client privilege because it does not sufficiently describe the context of withheld information, and appears to apply the exemption to correspondence where the lawyer was merely carbon-copied, rather than an active participant. The Court agrees that the Corps' explanations are insufficient.
Nor can the information missing from the Corps' Vaughn index be drawn from its declaration.
Bartlett Decl. ¶ 32, ECF No. 52-2. However, these broad and vague statements, in conjunction with a bare Vaughn index, are insufficient. The agency may not "offer[ ] nothing more than conclusory assertions and blanket affirmations" to support its
Unlike the Corps' Vaughn index, the Army's Vaughn index is adequate to justify its use of the attorney-client privilege. Although Hunton advances three arguments challenging the adequacy of the Army's Vaughn index, none is successful.
First, Hunton accuses the Army of "simply redact[ing] all communications between attorneys" because "there is nothing in either the DeAgostino declaration or the Vaughn index to support the conclusory assertion that these communications contain legal advice." Pl.'s MPSJ Army at 19-20, ECF No. 46. However, the Army's Vaughn index does specify the nature of the legal advice involved in each document. For example, Entry 423, which was partially withheld based on the attorney-client privilege, states that the record contains a "[d]raft response ... prepared [ ] by attorney to advise client regarding responding to requester." Army's Vaughn index at 57, ECF No. 36-3. While not a model of specificity, that description makes sense in the context of the document and informs Hunton about the type of legal advice provided. This description rises to the level of being "logical or plausible," which the D.C. Circuit has explained suffices. Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007) (internal quotation marks and citations omitted). Here, the Army has described "the documents and the justifications for nondisclosure with reasonably specific detail" and "demonstrate[d] that the information withheld logically falls within the claimed exemption." Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Labor, 478 F.Supp.2d 77, 80
Second, Hunton claims that the Army did not sufficiently establish that the communications were kept confidential between the attorney and client. Pl.'s MPSJ Army at 18-19. But in fact the Army's supplemental declaration states that "[t]he documents withheld in accordance with the Attorney-Client Privilege were internal documents only and were not released to third parties." 2d DeAgostino Decl ¶ 3, ECF No. 51-1. Hunton does not challenge this declaration in its reply, nor has it identified any indicia on the redacted documents that they were distributed to out-side entities. See Pl.'s Reply Army at 7-9, ECF No. 54.
Finally, Hunton criticizes the particular application of the attorney-client privilege to the record described at entry 104 of the Army's Vaughn index. Army's Vaughn index at 19, ECF 36-3. According to Hunton, the Army did not "differentiat[e] which privilege is supposed to apply to which document," within the email chain. Pl.'s MPSJ Army at 19. Contrary to Hunton's assertion, the Army's Vaughn index specifies that the chain contains "[t]wo emails between agency counsel," and that "[t]here are also two emails between Earl Stockdale [counsel for the Corps] and Craig Schmauder [counsel for the Army]." Army's Vaughn index at 19, entry 104. Hunton appears to object that the two lawyers involved are counsel for different agencies. Pl.'s MPSJ Army at 19. Contrary to Hunton's implication, courts in this district have recognized that the attorney-client privilege may apply between counsel for different agencies. See Hollar v. IRS, No. 95-1882, 1997 WL 732542, at *5 (D.D.C. 1997) ("Communications between one agency's attorneys and another agency's attorneys are also covered by both Exemption 5 and the attorney-client privilege as `inter-agency' memoranda so long as those communications reflect the facts given by agency decision-makers to elicit legal advice." (citing Schlefer v. United States, 702 F.2d 233, 245 (D.C. Cir. 1983))). For these reasons, the Army's motion for summary judgment as to its use of the attorney-client privilege is granted.
Hunton challenges the Army's use of Exemption 6 to redact personal information from the released records.
Exemption 6 permits an agency to withhold "personnel and medical files and similar files," when disclosure "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).
FOIA requires the release of personal information "if no significant privacy interest is implicated." Multi Ag Media LLC v. Dep't of Agric., 515 F.3d 1224, 1229 (D.C. Cir. 2008) (brackets and internal quotation marks omitted) (quoting Nat'l Ass'n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989)). This standard, however, "means less than it might seem," for a substantial privacy interest is "anything greater than a de minimis privacy interest." Id. at 1229-30. Here, the Army employees do clearly have a substantial privacy interest in avoiding potential harassment, and Hunton does not assert that they do not have a privacy interest.
The Court must thus determine whether releasing the information would be a "clearly unwarranted invasion of personal privacy," Wash. Post Co. v. U.S. Dep't of Health & Human Servs., 690 F.2d 252, 260 (D.C. Cir. 1982) (internal quotation marks omitted) (quoting 5 U.S.C. § 552(b)(6)), by balancing "the privacy interest that would be compromised by disclosure against any public interest in the requested information," Multi Ag Media, 515 F.3d at 1228. "The only relevant public interest in the FOIA balancing analysis is the extent to which disclosure of the information sought would `shed light on an agency's performance of its statutory duties' or otherwise let citizens know `what their government is up to.'" Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999) (brackets and internal quotation marks omitted) (quoting U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 497, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994)).
First, the Court finds that, as to their contact information, the privacy interest of the Army employees outweighs the public interest in disclosure. Hunton does not identify any public interest in this information. See Consumers' Checkbook Ctr. for the Study of Servs. v. U.S. Dep't of Health & Human Servs., 554 F.3d 1046, 1056 (D.C. Cir. 2009) ("We have been shown no public interest in .... disclosure.... We need not linger over the balance; something, even a modest privacy interest, outweighs nothing every time." (quoting Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989))).
Next, the Court turns to the withholding of the names of Army employees. On the privacy side of the balancing equation, government employees have a privacy interest in keeping their names from the public spotlight. The Army notes that its employees could "become targets of harassing inquiries for unauthorized access to information if their identities are released" because they have access to sensitive information. DeAgostino Decl. ¶ 24. Further, the Army is concerned about "hazards ... evidenced by the recent attacks on service members and installations in recent years."
In balancing these interests, the Court finds that the public interest in understanding what the government is up to outweighs the interest of the Army employees in privacy as to the names of the involved employees. Although there is a privacy interest, it is likely small. The Army has already named several individuals in its briefing as custodians, reducing their remaining privacy interest in the remaining documents. See, e.g., DeAgostino Decl. ¶ 12 (naming nine custodians). Furthermore, the Army does not give any reason to believe that individuals involved in this AJD determination face particular risks such as harassment. Hunton has identified a public interest in understanding the agency's functioning that will be served by identifying the employees involved and permitting observers to understand the progress of the various released documents.
Nor do the cases cited by the Army, in which other courts permit it to withhold names, control the outcome of this case. In each cited case the court considered the balancing test of Exemption 6 and found that the privacy interests outweighed the public interest articulated by the requester, often because the requesters did not articulate a public interest in the employees' names.
Hunton also objects to the Corps' use of a "non-responsive" label to withhold certain records. Both parties agree that the D.C. Circuit's recent decision established that there is "no statutory basis [in FOIA] for redacting ostensibly non-responsive information from a record deemed responsive." Am. Immigration Lawyers Assoc. v. Exec. Office for Immigration Review, 830 F.3d 667, 670 (D.C. Cir. 2016). Hunton has requested that the Corps re-review these records and release them unless they fall under an enumerated FOIA exemption, Pl.'s MPSJ Corps at 18-19, ECF No. 56, and the Corps has stated that it intends to "release the information [marked as non-responsive] to Plaintiff that is not otherwise subject to a FOIA exemption.," Corps Reply at 18, ECF No. 59. Hunton's motion for partial summary judgment is thus granted to the extent that the Corps is ordered to re-review and, if appropriate, release the records previously labelled as non-responsive.
The Court denies Hunton's requests for orders documenting violations by the Corps and Army. "FOIA does not create a cause of action for an agency's untimely response to a FOIA request" beyond the ability to seek an injunction from the district court. Bangoura v. U.S. Dep't of Army, 607 F.Supp.2d 134, 143 n.6 (D.D.C. 2009). Nor is declaratory relief appropriate. Compare id. (holding that defendant's response to plaintiff's FOIA request "without more, does not present a `cognizable danger of recurrent violation' or `an illegal agency policy'" sufficient to justify declaratory judgment), with Nat'l Sec. Archive Fund, Inc. v. U.S. Dep't of Air Force, No. 05-571, 2006 WL 1030152, at *1 (D.D.C. Apr. 19, 2006) (granting declaratory judgment against an agency that failed to answer numerous requests over a period of more than ten years).
For the foregoing reasons, the EPA's motion for summary judgment (ECF No. 40) is
With respect to the Corps:
With respect to the Army:
Although the EPA asserts that Hunton failed to exhaust its administrative remedies on the adequacy of the EPA's search for responsive records, EPA MSJ at 12, ECF No. 40, Hunton does not appear to challenge the adequacy of the EPA's search and the Court thus need not resolve this issue.
For the Army's search, the Army "determined that all responsive documents would reasonably be found within the office of the ASA(CW) or the Office of the Army General Counsel (OGC)." DeAgostino Decl. ¶ 6, ECF No. 36-2. Custodians within the OGC were identified, and their "emails, hard-drives and network drives" were searched for records. DeAgostino Decl. ¶ 7. Search terms used included "Cargill" and "Redwood City." DeAgostino Decl. ¶ 8. Custodians were also identified within the ASA(CW), and their files were searched. DeAgostino Decl. ¶ 13. The ASA(CW) shared drive was also searched for the terms "Hunton," "Williams," "Cargill," "Redwood," and "salt." DeAgostino Decl. ¶ 14. The Army's email system was also searched for the terms "Redwood City," "saltworks," "Pacific Ventures," "Westpoint Slough," "Cargill," and "salt plant" for a specific list of custodians. DeAgostino Decl. ¶ 12.
If the EPA does adopt part of the Corps' reasoning, then the extent of that adoption will control whether the EPA must disclose the "final" draft AJD as part of that final decision. See Trans Union LLC v. Fed. Trade Comm'n, 141 F.Supp.2d 62, 70-71 (D.D.C. 2001) ("[W]here it is unclear whether a recommendation provided the basis for the regulation, the recommendation is exempt from disclosure."); De Sousa v. CIA, No. 14-1951, 239 F.Supp.3d 179, 200-01, 2017 WL 943898, at *13 (D.D.C. Mar. 9, 2017) ("[A]doption requires that an agency `make an "express[ ]" choice to use a deliberative document as a source of agency guidance.'" (quoting Sears, Roebuck & Co., 421 U.S. at 161, 95 S.Ct. 1504)). The Court need not decide this at this time, as it does not appear that the EPA has issued a final decision.
The classic secret law cases deal with "orders and interpretations which [the agency] actually applies in cases before it," Sterling Drug, Inc. v. FTC, 450 F.2d 698, 708 (D.C. Cir. 1971), or which are "routinely used by agency staff as guidance," Coastal States, 617 F.2d at 869. For example, the documents at issue in Coastal States were "regional counsel opinions" that "were routinely used by agency staff as guidance in conducting their audits, and were retained and referred to as precedent." Coastal States, 617 F.2d at 869. Here, however, Hunton does not argue that the Corps has been using the "final" draft AJD in any way or explain how the "final" draft AJD "reflect[s] the law the government is actually applying in its dealings with the [ ] public." Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997). Such manuals or policy guidance are also typically sent down the chain of command, distributed from the top down to those responsible for implementing a policy. Here, the "final" draft AJD was sent from the top of the Corps to the EPA, in the EPA's supervisory capacity. Hunton does not argue that the "final" draft AJD has been distributed downward to those who implement the Corps' policies.
To the extent that the Corps' argument is simply that the "final" draft AJD represents one stage of the Corps' reasoning, this argument proves too much. Allowing the public access to all stages of agency decisionmaking would no doubt reveal something about the agencies' reasoning, but Congress has determined that such unfettered disclosure would be damaging to the agencies' ability to deliberate.
Similarly, it is unclear if Hunton seeks records related to the Corps' internal review, which was undertaken at nearly the same time. See Mem. for the Chief of Engineers at 2, Ex. 2, ECF No. 45-2. To the extent that Hunton does, the Court is also open to considering these documents during its in camera review.
Although the Vaughn index entry does not name the lawyer, the email addresses in the document itself are not redacted. One message was sent from Jo-Ellen Darcy—the ASA(CW)—to Thomas Bostick—the commanding general of USACE—with Craig Schmauder—a lawyer at the Army's OGC—as a carbon-copy. Pl.'s MPSJ Corps, Ex. D, ECF No. 56-4. The second email was sent back from Thomas Bostick to Jo-Ellen Darcy with Craig Schmauder again as a carbon-copy. Pl.'s MPSJ Corps, Ex. D, ECF No. 56-4. The Corps does not dispute Hunton's characterization of the roles of the three participants.
However, it is not clear from the briefing if the affected records were withheld in their entirety or redacted, and the Court notes that redaction—where it will not render the privilege futile—is the typical remedy in this jurisdiction. See, e.g., A.N.S.W.E.R. Coal. v. Salazar, No. 05-0071, 2011 WL 2516419, at *2 (D.D.C. June 23, 2011); Gen. Elec. Co. v. Johnson, No. 00-2855, 2007 WL 433095, at *21 (D.D.C. Feb. 5, 2007) (concluding after an in camera review that handwritten comments by an attorney should be redacted, but "those redactions should leave in tact [sic] as much text as possible" because "except for the two annotated comments, the underlining and other markings are only very marginally protected by the work-product doctrine"). Because the Court denies the Corps summary judgment and will review a selection of documents in camera, it does not further address the issue here.
Finally, in response to Hunton's challenges to the Corps' assertion of the attorney-client privilege the Corps again objects that Hunton has waived other possible objections by failing to individually rebut each exemption claimed by the Corps. See, e.g., Corps Reply at 14, ECF No. 59. This goes too far. See supra note 39.
