UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
MARK L. SHURTLEFF, )
)
Plaintiff, )
)
v. ) Civil No. 10-2030 (EGS/DAR)
)
UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY, )
)
Defendant. )
___________________________________)
MEMORANDUM OPINION
Plaintiff Mark L. Shurtleff, Attorney General of the State
of Utah, requested information from the defendant, the
Environmental Protection Agency (“EPA” or “Agency”) under the
Freedom of Information Act (“FOIA”). In response to his
request, the EPA released some records to Plaintiff but withheld
other material. Plaintiff challenges the withholding of this
material in this case, and he also alleges that the defendant
failed to adequately search for material responsive to his
request.
Before the Court is the EPA’s motion for summary judgment.
On March 8, 2012, the Court referred this matter to United
States Magistrate Judge Deborah A. Robinson for a report and
recommendation. Magistrate Judge Robinson issued a report and
recommendation recommending that the motion be granted in part
and denied in part. More specifically, she recommended that the
Court grant EPA’s motion as to the adequacy of its search; its
withholding of documents pursuant to Exemption 5’s deliberative
process privilege and attorney work product doctrine; and its
withholding of documents pursuant to Exemption 6. She
recommended the Court deny the motion for summary judgment as to
one document withheld pursuant to Exemption 4 and documents
withheld pursuant to Exemption 5’s attorney-client privilege.
Both plaintiff and defendant timely filed objections to the
Report and Recommendation. Plaintiff objects to all of the
Magistrate Judge’s recommendations in favor of EPA. Plaintiff
also takes issue with certain segregability determinations and
EPA’s position that certain responsive documents were already
publicly available, and he also raises various general
objections to the Report and Recommendation. Pl.’s Objs. at 3-
5. The EPA objects to the Magistrate Judge’s recommendation
that summary judgment be denied with respect to documents
withheld under the attorney-client privilege.1 In addition,
after the objections had been fully briefed, Plaintiff filed a
motion to supplement the summary judgment record.
1
The EPA no longer seeks to withhold the single record it
previously withheld under Exemption 4; in fact, it has released
the record in full to Plaintiff. See Def.’s Reply in Support of
Objs. at 5-6, Ex. B. Accordingly, the Exemption 4 issue is now
moot. Ctr. for Auto Safety v. EPA, 731 F.2d 16, 19 (D.C. Cir.
1984).
2
Upon consideration of the Report and Recommendation, the
objections thereto, the entire record in this case, and for the
following reasons the Court accepts all of the Magistrate
Judge’s recommendations with the exception of the adequacy of
the search. The Court accepts the Magistrate Judge’s
recommendations regarding the adequacy of the search with
respect to certain portions of the FOIA request, but rejects the
recommendation with respect to other portions. The Agency will
be required to conduct another search for documents responsive
to these portions of the request, or, in the alternative, to
prove that its prior searches meet the adequacy standard.
Moreover, in accordance with the Magistrate Judge’s
recommendation regarding the documents withheld under the
attorney-client privilege, the EPA must either disclose the
records withheld pursuant to that privilege or file supplemental
submissions indicating in sufficient detail why withholding is
proper. Finally, the Court will deny Plaintiff’s Motion to
Supplement the Record.
I. BACKGROUND
The Court will not restate the full factual background of
this case, which is set forth in the Report and Recommendation.
See Report and Recommendation, Doc. No. 33 (“R&R”) at 1-7. By
way of very general overview, in 2009, the EPA promulgated the
Endangerment Finding, which found that certain greenhouse gases
3
taken in combination endanger the public health and welfare.
Declaration of Elizabeth Craig (“Craig Decl.”) ¶ 9. Among the
evidence considered, assessments conducted by the
Intergovernmental Panel on Climate Change (“IPCC”) served as the
“primary basis supporting the Endangerment Finding.” Id. ¶ 8.
The Endangerment Finding, in turn, serves as a basis for the
EPA’s ability to regulate gas emission standards for motor
vehicles and for stationary sources emitting greenhouse gases.
Id. ¶¶ 9-10.
On July 6, 2010, Plaintiff submitted a FOIA request to the
EPA. The request expressed “concerns about [the Endangerment]
finding” and sought documents in order “to evaluate more fully
the process by which the EPA developed the [] Finding.”
Complaint Ex. A. The request is extremely lengthy, consisting
of fourteen pages and thirty-seven subparts. Id. It is also
extremely broad, seeking, inter alia, all documents regarding
EPA’s review of relevant IPCC assessments, all communications
between any EPA employee and any individual regarding same, and
all documents regarding EPA analysis of human behavior as the
cause of rising global temperatures. Id. at 2, 9.
The EPA conducted a search for records, and collected over
19,000 potentially responsive records. Craig Decl. ¶ 35. The
agency then produced responsive documents on a rolling basis
from October 2010 to April 2011; in addition, the agency made
4
five supplemental productions from June to October 2011. Id. ¶
40. Ultimately, approximately 12,987 records were deemed
responsive, of which approximately 8,200 were released in part,
4,445 in full, and 342 withheld in full. Id. ¶ 61.
Plaintiff filed this suit in November 2010. On May 25,
2011, this Court granted Defendant’s Motion to Permit a Sample
Vaughn Index. Order, May 25, 2011. In accordance with the
Order, the EPA submitted a representative sample of records
withheld, including all records withheld in full, every seventy-
fifth record of the partially redacted records, and fifty
records of plaintiff’s choosing. Craig Decl. ¶¶ 54-60.
Thereafter, in October 2011, the EPA filed its summary judgment
motion. (Doc. No. 21). The Magistrate Judge issued her Report
and Recommendations on the motion in September 2012, and the
parties filed their objections thereafter. The parties’
objections, as well as Plaintiff’s Motion to Supplement the
Record, are ripe for review.
II. LEGAL STANDARDS
A. Summary Judgment in a FOIA Case
Summary judgment is granted when there is no genuine issue
of material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of
Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining
5
whether a genuine issue of fact exists, the court must view all
facts in the light most favorable to the non-moving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). Under FOIA, all underlying facts and inferences are
analyzed in the light most favorable to the FOIA requester; as
such, only after an agency proves that it has fully discharged
its FOIA obligations is summary judgment appropriate. Moore v.
Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v.
U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)).
FOIA cases are typically and appropriately decided on motions
for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd.
of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130
(D.D.C. 2011) (citations omitted).
In considering a motion for summary judgment under the
FOIA, the court must conduct a de novo review of the record. See
5 U.S.C. § 552(a)(4)(B) (2012). The court may award summary
judgment solely on the basis of information provided by the
department or agency in affidavits or declarations that 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); see also Vaughn v.
6
Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415
U.S. 977 (1974). Agency affidavits or declarations must be
“relatively detailed and non-conclusory.” SafeCard Servs. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). 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.” Id. (internal
citation and quotation omitted).
An agency may discharge its obligations under FOIA by
producing a Vaughn index, which is an affidavit that indexes and
specifically describes withheld or redacted records and explains
why each withheld record is exempt from disclosure. King v.
U.S. Dep’t of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987). When
a large number of responsive documents are involved,
“[r]epresentative sampling is an appropriate procedure to test
an agency’s FOIA exemption claims.” Bonner v. U.S. Dep’t of
State, 928 F.2d 1148, 1151 (D.C. Cir. 1991). “Representative
sampling allows the court and the parties to reduce a voluminous
FOIA exemption case to a manageable number of items that can be
evaluated individually through a Vaughn index. . . . If the
sample is well-chosen, a court can, with some confidence,
extrapolate its conclusions from the representative sample to a
larger group of withheld materials.” Id. (internal citations
and quotation marks omitted).
7
B. Magistrate Judge Recommendations
Pursuant to Federal Rule of Civil Procedure 72(b), once a
magistrate judge has entered her recommended disposition, a
party may file specific written objections. The district court
“must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to,” and “may
accept, reject or modify the recommended disposition.” Fed. R.
Civ. P. 72(b)(3). Proper objections “shall specifically
identify the portions of the proposed findings and
recommendations to which objection is made and the basis for
objection.” Local R. Civ. P. 72.3(b). As numerous courts have
held, objections which merely rehash an argument presented and
considered by the magistrate judge are not “properly objected
to” and are therefore not entitled to de novo review. See
Morgan v. Astrue, Case 08-2133, 2009 U.S. Dist. LEXIS 101092,
*7-10 (E.D. Pa. Oct. 30, 2009) (collecting cases). Likewise,
the Court need not consider cursory objections made only in a
footnote. Hutchins v. Dist. of Columbia, 188 F.3d 531, 539 n.3
(D.C. Cir. 1999); see also Potter v. Dist. of Columbia, 558 F.3d
542, 553 (D.C. Cir. 2009) (Williams, J. concurring) (“[J]udges
are not like pigs, hunting for truffles buried in briefs.”)
(citation omitted).
8
III. DISCUSSION
A. Adequacy of the Search
The Magistrate Judge recommends granting summary judgment
regarding the adequacy of EPA’s search. R&R 21-25. Plaintiff
objects on several grounds. His principal objection is that the
search itself was not adequate because the EPA “failed to
explain how [its] employees searched various paper and
electronic files (e.g., by file name, document description, a
list of keywords for each request, or a viable method of
electronic document retrieval).” Pl.’s Objs. at 6. Plaintiff
argues that the defendant “never provided [its employees]
instructions as to how to conduct the search beyond the text of
the [FOIA] requests.” Id. Defendant responds that it “provided
detailed and non-conclusory information as to the electronic
databases and hard copy filing systems that all relevant
employees were asked to search, and identified the relevant
employees deemed likely to have responsive records and the
guidelines and instructions that the Agency issued regarding the
searches they were to conduct.” Def.’s Opp’n to Pl.’s Objs.
(“Def.’s Opp’n”) at 5.
This statement by the EPA is only partially correct. The
agency provided detailed information as to the individuals
likely to have information, explained the filing systems they
were asked to search and the reasons those systems were
9
searched. See, e.g., Craig Decl. ¶¶ 26, 30-32; Supplemental
Decl. of Elizabeth Craig (“Suppl. Craig Decl.”) ¶¶ 13-15, 19.
However, the EPA only provided guidelines and instructions
regarding the search for records responsive to some subsections
of the FOIA request: specifically, the subsections which the
agency divided into three search “phases”. See, e.g., Craig
Decl. ¶¶ 29-32; Suppl. Craig Decl. ¶¶ 12-15, Exs. A-C. Other
subsections of the request, however, were not segregated into
search phases. Craig Decl. ¶¶ 27, 29; Suppl. Craig Decl. ¶ 17.
For several of these subsections, the EPA provided no
explanation beyond the names of the searchers and locations
being searched. For the reasons set forth below, the Court
finds that the search was adequate as to the subsections of the
request which were segregated into phases. The EPA has not,
however, demonstrated the search was adequate as to these other
subsections.2
2
This discussion omits the five remaining subsections in the
FOIA request: C, A(2)(a), A(4)(a), E(1)(a) and F(1)(c). EPA
addressed these subsections in its October 18, 2010 letter to
Plaintiff, explaining that the EPA had no records responsive to
Request C because the EPA “did not develop new science to
support the Endangerment Finding.” Craig Decl. Ex. O. The
Agency also explained that all documents responsive to the other
four subsections were publicly available within the official
record for the Endangerment Finding. Id. Although Plaintiff
claims the Agency had an obligation to direct him to specific
responsive documents within the publicly available record, see
infra at III.D, he does not otherwise challenge the adequacy of
the search with respect to these five subsections.
10
To prevail on a motion for summary judgment regarding the
adequacy of a search, an agency must show “beyond material doubt
. . . that it has conducted a search reasonably calculated to
uncover all relevant documents.” Weisberg, 705 F.2d at 1351.
“The issue is not whether any further documents might
conceivably exist but rather whether the government’s search for
responsive documents was adequate.” Id. (internal citations
omitted). The standard is one of reasonableness, and is
“dependent upon the circumstances of the case.” Id. To
establish the adequacy of its search, an agency may rely on
affidavits and declarations which are “relatively detailed and
nonconclusory and . . . submitted in good faith.” Id.
Upon receiving the FOIA request, the Agency held a number
of internal planning meetings to determine what offices were
likely to have responsive records, to identify individuals to
coordinate the search in different offices, and to develop
instructions for conducting the search. Craig Decl. ¶¶ 17, 23-
25. Because the FOIA request was wide-ranging and extensive,
the Agency then segregated many of the subsections of the
request into three search phases. Phase One focused on
information responsive to the following subsections of the FOIA
request: A(1)(a),(b),(c), A(2)(b),(c), D(1)(c), and G. Suppl.
Craig Decl. ¶ 13; Ex. A. Phase Two focused on subsections
11
B(1)(b),(c) and E(1)(b). Id. ¶ 14; Ex. B. Phase Three focused
on subsections A(3)(a),(b),(c), F(1)(b) and H. Id. ¶ 15; Ex. C.
For each phase, the EPA identified the individuals likely
to have responsive information. The Agency then sent
instructions to those individuals setting forth search
parameters, including (1) the subsections of the FOIA request at
issue; (2) files to be searched; (3) time period covered by the
search; (4) substantive search instructions for individual
subsections, including, inter alia, reference to specific
studies, models, data sets, and working groups; reference to
communications with specific groups of individuals, internal and
external, some listed by name; and suggested search terms; and
(5) instructions on how to upload potentially responsive
documents for further review. Suppl. Craig Decl. Exs. A–C.
The Court rejects Plaintiff’s argument that the search was
inadequate as it relates to the subsections of his request which
were segregated into phases. Plaintiff’s claim that the agency
did not explain the methods used by EPA employees to identify
and search for records responsive to these subsections does not
withstand scrutiny. As set forth above, the agency affidavits
“describe in . . . detail what records were searched, by whom,
and through what process.” Steinberg v. U.S. Dep’t of Justice,
23 F.3d 548, 552 (D.C. Cir. 1994). Plaintiff’s claim that the
phased instructions issued by the EPA are inadequate because
12
they only set forth specific search terms with respect to one
subsection of the request is unpersuasive. Pl.’s Objs. at 7. A
review of the instructions for all three phases reveals that the
agency provided specific search parameters, instructing
employees to restrict their searches by file type and by date,
and to focus on specifically identified people as well as
specifically identified data sets, climate change models, and
working groups. Suppl. Craig Decl. ¶¶ A-C. It would elevate
form over substance to deem a search inadequate because the
phrase “search term” or “keyword” is not used, particularly in a
situation such as this, where the request sought extensive
records regarding an enormous scientific and regulatory
undertaking, and required the participation of hundreds of
people with diverse roles, backgrounds, and expertise within the
agency. See, e.g., Johnson v. Exec. Office for U.S. Attorneys,
310 F.3d 771, 776 (D.C. Cir. 2002) (“FOIA, requiring as it does
both systemic and case-specific exercises of discretion and
administrative judgment and expertise, is hardly an area in
which the courts should attempt to micro manage the executive
branch.”); see also Physicians for Human Rights v. U.S. Dep’t of
Defense, 675 F. Supp. 2d 149, 164 (D.D.C. 2009) (“[I]n
responding to a FOIA request, an agency is only held to a
standard of reasonableness; as long as this standard is met, a
13
court need not quibble over every perceived inadequacy in an
agency’s response, however slight.”)
Other subsections of the FOIA request, however, do not
appear to have been included in the “phase” approach.
Specifically, subsections A(4)(b),(c), A(5)(a),(b),(c),(d),(e),
B(1)(a), D(1)(a),(b), E(2)(a) and (b), and F(1)(a) were not
included in any of the phases. Craig Decl. ¶ 29; Suppl. Craig
Decl. ¶ 17. It appears that eight members of the Agency’s
Climate Change Division (“CCD”) who had worked on the
Endangerment Finding searched their emails, calendar files,
electronic files in their personal drives and on network drives,
and paper files for responsive documents. Craig Decl. ¶¶ 26-27,
29; Suppl. Craig Decl. ¶ 17. No further details about these
searches were provided to the Court.
The agency has failed to demonstrate the adequacy of the
search with respect to these subsections of the FOIA request.
The Craig Declarations state “[i]n addition to the three phases
of search instructions, the CCD identified specific parts of the
FOIA requests that if EPA did possess any responsive records,
they would likely be found only within CCD’s files.” Suppl.
Craig Decl. ¶ 17. “[A]s the three search phases were
conducted,” certain CCD staff members “led the effort to search
records pertaining to” these additional subsections of the FOIA
Request not included in the phases. Craig Decl. ¶ 29. The
14
Craig Declarations fall far short of the adequacy standards set
forth by this Circuit, as they lack detail and make no reference
to the types of searches, search terms, methods or processes
used. Affidavits that “do not denote which files were searched
or by whom, do not reflect any systematic approach to document
location, and do not provide information specific enough to
enable the plaintiff to challenge the procedures utilized” are
“too conclusory to justify a grant of summary judgment” as to
the adequacy of the search. People for the American Way Found.
v. Nat’l Park Serv., 503 F. Supp. 2d 284, 293 (D.D.C. 2007)
(quoting Weisberg, 627 F.2d at 371). Therefore, the Court will
require the EPA to conduct another search for documents
responsive to subsections A(4)(b),(c), A(5)(a),(b),(c),(d),(e),
B(1)(a), D(1)(a),(b), E(2)(a) and (b), and F(1)(a), or in the
alternative, to prove that its prior searches meet the adequacy
standard.
Plaintiff’s other arguments that the search was inadequate
are unpersuasive. As an initial matter, the Court rejects
plaintiff’s argument that defendant’s delay in producing
documents is evidence of bad faith or an inadequate search.
Pl.’s Objs. at 3. Plaintiff requested an extensive search
encompassing an enormous amount of material. The record shows
that the agency began searching for responsive records shortly
after receiving the request, and made its first production of
15
documents only three months later. Craig Decl. ¶¶ 33, 40.
“[I]n view of the well-publicized problems created by the
statute’s . . . time limit[] for processing FOIA requests and
appeals, the [agency’s] delay alone cannot be said to indicate
an absence of good faith.” Goland, 607 F.2d at 355. Any delay
in the response is not grounds for denying the EPA’s motion for
summary judgment. AFGE Local 812 v. Broad. Bd. of Governors,
711 F. Supp. 2d 139, 148 (D.D.C. 2010).
Next, Plaintiff objects to the EPA’s decision not to search
its Office of Science Policy, Office of Science Advisor, Science
Advisory Board, and Regional Offices. Pl.’s Objs. at 9-10. He
also objects to the EPA’s decision to search the files of only
certain employees, and not others, at the Agency’s facility in
Research Triangle Park, North Carolina. Id. Plaintiff’s claims
appear to rest on twenty four records provided by EPA. See
Pl.’s Suppl. 7(h) Statement Exs. H-EE. All of these records are
email chains or portions of email chains which include an
employee from one of the above mentioned offices. Id.
Plaintiff argues that the existence of these emails proves that
the EPA’s search was inadequate.
When a FOIA request “does not specify the locations in
which an agency should search, the agency has discretion to
confine its inquiry . . . if additional searches are unlikely to
produce any marginal return.” Campbell v. U.S. Dep’t of
16
Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) (quoting Oglesby v.
U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); see
also Truesdale v. U.S. Dep’t of Justice, 803 F. Supp. 2d 44, 51
(D.D.C. 2011) (agency is “under no obligation to search every
system of records which might conceivably hold responsive
records.”) Nonetheless, “an agency ‘cannot limit its search to
only one record system if there are others that are likely to
turn up the information requested.’” Campbell, 164 F.3d at 28
(quoting Oglesby, 920 F.2d at 68).
Here, the EPA did not search only one database – hundreds
of employees in well over a dozen different offices and sub-
offices searched their files. Craig Decl. ¶¶ 23-32; Suppl.
Craig Decl. ¶¶ 8-19. The agency declarations explain in detail
why those offices and individuals were likely to have responsive
information to Plaintiff’s request. Id. They also explain in
detail why the Office of Science Policy, Office of the Science
Advisor, Science Advisory Board, and Regional Offices were
unlikely to have responsive materials: although they all do
work that relates in some way to climate change and greenhouse
gases, these offices were not directly involved in any portion
of the Endangerment Finding or the underlying IPCC reports.
Suppl. Craig Decl. ¶¶ 20-26; Def.’s Reply in Support of Mot.
Summ. J. at 8-12. The Court agrees with the Magistrate Judge
that the supporting affidavits are sufficiently detailed and
17
non-conclusory on this issue to warrant a grant of summary
judgment.
The handful of records plaintiff identifies do not raise a
genuine issue of material fact as to whether the EPA failed “to
follow through on obvious leads” in the retrieved records –
e.g., clear references to other relevant documents, files, or
individuals which were not disclosed. Valencia-Lucena v. U.S.
Coast Guard, 180 F.3d 321, 324 (D.C. Cir. 1999) (citing
Campbell, 164 F.3d at 28). The documents Plaintiff cites are
principally long email strings involving dozens of individuals,
including multiple people who were included in EPA’s search for
responsive documents. See Pl.’s Suppl. 7(h) Statement Exs. H-
EE; Def.’s Suppl. Reply to Pl.’s Suppl. 7(h) Statement at 4-8.
As the Agency points out, “[g]iven that 140 EPA staff members
searched and identified 19,000 potentially responsive records, a
few individuals who were not reasonably likely to possess
responsive records may nevertheless appear in responsive records
due to their communication with a staff member who was
reasonably likely to possess responsive records.” Def.’s Suppl.
Reply to Pl.’s Suppl. 7(h) Statement at 7. Notably, Plaintiff
does not point to anything within the emails that suggests the
existence of documents that the EPA could not have located
without expanding the scope of its search. Rather, he seems to
argue that the inclusion of people from other offices in the
18
email chains must mean the EPA did not conduct an adequate
search.3 Pl.’s Objs. at 9-10. The Court disagrees. The fact
that a few EPA employees who were not instructed to search their
files were involved in a total of twenty four email chains
(among nearly 13,000 documents produced) is insufficient,
without more, to raise a “substantial doubt” about the adequacy
of the search that was performed.
Accordingly, the Court accepts the recommendation from the
Magistrate Judge with respect to these remaining objections to
the adequacy of the search.
The Court will also address at this juncture Plaintiff’s
Motion to Supplement the Summary Judgment Record, filed after
briefing on the objections was complete. Plaintiff seeks to
supplement the record with correspondence between the U.S. House
of Representatives Committee on Science, Space and Technology
and the EPA regarding allegations that then-Administrator Lisa
P. Jackson used “alias email accounts” to conduct official
3
Plaintiff provides slightly more detailed argument with respect
to four emails including employees from EPA’s regional offices
which, he claims, indicate these offices’ involvement in the
Endangerment Finding. Pl.’s Objections at 10; Suppl. 7(h)
Statement at 6; Exs. S-V. The Agency responds, however, that
these emails were only included “as a result of Plaintiff’s
refusal to narrow the scope” of his FOIA request subsection
F(1)(b), which resulted in collection of “a voluminous amount
of records that were” technically responsive to Plaintiff’s
request, but were “unrelated to the review of the IPCC reports,
the Endangerment Finding, or climate models.” Reply to Suppl.
7(h) Statement at 5, Craig. Decl. ¶ 20.
19
business. Mot. to Supplement at 2. Plaintiff argues that it is
unclear whether the EPA searched these alleged alias email
accounts in responding to his FOIA request, which further
undermines the adequacy of the search. Id. at 3. The EPA
opposes the motion, arguing that the letters Plaintiff seeks to
add do not contain admissible evidence. The Agency also argues
that the letters do not undermine the adequacy of the search.
Def.’s Opp’n to Mot. to Supplement. Specifically, Defendant
responds that Administrator Jackson has two email addresses, an
official address and an internal address, and that the
declarations provided by the EPA consistently demonstrate that
both were searched in response to Plaintiff’s FOIA request. Id.
at 2 (collecting citations from the Craig Declarations). The
EPA also attaches to its Opposition a letter from the Agency to
the House Committee on Science, Space and Technology which
provides the same explanation. Id. Ex. 1.
Plaintiff’s motion to supplement, and the exhibits attached
to it, do not create a genuine issue of material fact. In the
face of detailed agency declarations to the contrary, Plaintiff
has provided nothing beyond pure speculation to support his
claims. See SafeCard Servs., Inc. v. SEC, 926 F.2d at 1200
(agency 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
20
documents”) (internal quotation marks omitted). Accordingly,
Plaintiff’s Motion to Supplement the Record is DENIED. To the
extent Plaintiff requests discovery on this issue, the request
is likewise denied.
B. FOIA Exemption 5
The EPA withheld documents pursuant to three privileges
encompassed within Exemption 5: deliberative process, attorney
client, and attorney work product. The Magistrate Judge
recommends granting summary judgment with respect to the
withholdings pursuant to deliberative process and attorney work
product but denying summary judgment for the documents withheld
pursuant to the attorney client privilege. R&R 25-36. Each
party objects to the portion of the Report and Recommendation
not in its favor.
1. Deliberative Process Privilege
The EPA has withheld from disclosure three categories of
documents pursuant to the deliberative process privilege: (1)
email deliberations and draft comments on the IPCC reports; (2)
internal review, e-mails and drafts of the Endangerment Finding;
and (3) briefing materials and talking points about issues
related to the Endangerment Finding and the University of East
Anglia’s emails relating to the IPCC reports. The Magistrate
Judge agreed that these records are protected from disclosure by
Exemption 5’s deliberative process privilege. Id. at 26-28.
21
Plaintiff has properly objected to only the first category.4 He
contends that the documents related to the IPCC reports were not
“predecisional” as required under Exemption 5 because “they did
not relate to formulation of policy by a U.S. government agency.
Rather, the records . . . were the product of a multi-nation,
‘peer review’ exercise, which culminated in a report on the
climate issued by an international body.” Pl.’s Objs. at 11.
EPA responds that the decision at issue was the “U.S.
Government’s official comments on the IPCC assessment reports.”
Def.’s Opp’n to Pl.’s Objs. at 9. The EPA explains that the
government was “required to send one integrated set of comments
through its focal points, the U.S. State Department and the U.S.
Office of Science and Technology Policy. EPA was a key
participant in the U.S. Government’s official review process
and, in this role, engaged in internal as well as intra-agency
4
Plaintiff only mentions the other two categories in a single
footnote in his opening brief and a single footnote in his
reply. Pl.’s Objs. at 11, n.4; Pl.’s Reply in Support of Objs.
at 9, n.7. In those footnotes, he states only that his
arguments are set forth in his opposition to EPA’s motion to
summary judgment. These cursory references, which merely refer
the reader to arguments already made to and considered by the
Magistrate Judge, are not “properly objected to” and are
therefore not entitled to de novo review. See Morgan v. Astrue,
2009 U.S. Dist. LEXIS 101092, *7-10 (collecting cases); see also
Potter, 558 F.3d at 553 (Williams, J. concurring) (“[J]udges are
not like pigs, hunting for truffles buried in briefs.”)
(citation omitted); Hutchins, 188 F.3d at 539 n.3 (D.C. Cir.
1999) (court need not consider cursory arguments made only in a
footnote). As the Court finds no clear error or manifest
injustice regarding these withholdings in the Report and
Recommendation, the Court will accept her recommendations.
22
deliberations in the form of emails and draft comments to
develop the U.S. government’s position.” Id. at 8; Craig Decl.
¶¶ 69-70.
The Court finds that the documents are properly withheld
under the deliberative process privilege. This privilege
“reflect[s] the legislative judgment that the quality of
administrative decision-making would be seriously undermined if
agencies were forced to operate in a fishbowl because the full
and frank exchange on legal or policy matters would be
impossible.” Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir.
1997) (internal quotation marks omitted). The fact that the
decision-making activity did not relate to a particular EPA
policy decision does not remove the documents from the
protection of Exemption 5.
In Judicial Watch v. Dep’t of Energy, 412 F.3d 125 (D.C.
Cir. 2005), this Circuit considered whether the deliberative
process privilege could shield records involving the National
Energy Policy Development Group (“NEPDG”), an office which
President George W. Bush established for the purpose of
developing a national energy policy. The Circuit deemed it
“inconceivable” that the documents would not be protected by
Exemption 5, because the exemption protects all of the
“decision-making processes of the Executive Branch,” whether the
decision results in agency policy or Administration policy. Id.
23
at 130. “That the President, rather than an agency, initiated
the policy development process is of no moment; what matters is
whether a document will expose the pre-decisional and
deliberative processes of the Executive Branch.” Id. at 131.
In this case, the deliberative process involved is the U.S.
Government’s official policy position regarding international
reports of global climate change. Craig Decl. ¶¶ 7-8, 69-70.
The IPCC assessments are clearly much more than purely
scientific findings, as Plaintiff suggests. As the EPA
explains, the IPCC “provide[s] a comprehensive and objective
assessment of the state of knowledge on climate change and its
potential environmental and socio-economic impacts.” Id. ¶ 7.
It not only assesses “the physical scientific aspects of the
climate system and climate change,” but also the “vulnerability
of socio-economic and natural systems to climate change,
negative and positive impacts of climate change, and options for
adapting to it,” including “mitigating climate change through
limiting or preventing [greenhouse gas] emissions.” Id. ¶ 8.
The State Department and the U.S. Office of Science and
Technology Policy led the development of the Government’s
official comments responding to the IPCC report. Id. ¶¶ 69-70.
The mandate of the Office of Science and Technology is to
“advise the President and others within the Executive Office of
the President on the effects of science and technology on
24
domestic and international affairs . . . to lead interagency
efforts to develop and implement sound science and technology
policies and budgets, and to work with . . . other nations
toward this end.” The White House,
http://www.whitehouse.gov/administration/eop/ostp/about (last
visited September 20, 2013). Although the EPA may not have
initiated the policy development process, there can be no
serious dispute that the comments relate to the formulation of
climate change policy by the Executive Branch. Accordingly, the
email deliberations and draft comments on the IPCC reports are
protected by the deliberative process privilege.
The Court also rejects Plaintiff’s objection to the
Magistrate Judge’s recommendation that the agency met its
obligation to detail whether segregable factual content could
have been disclosed. Pl.’s Objections 4-5, 12-13. “Agencies
are entitled to a presumption that they complied with the
obligation to disclose reasonably segregable material,” which
must be overcome by some “quantum of evidence” by the requester.
Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir.
2007). “[A]n agency may satisfy its segregability obligations
by (1) providing a Vaughn index that adequately describes each
withheld document [or portion of a document] and the exemption
under which it was withheld; and (2) submitting a declaration
attesting that the agency released all segregable material.”
25
Nat’l Security Counselors v. CIA, Case Nos. 11-443 et al., 2013
U.S. Dist. LEXIS 115184, *286 (D.D.C. Aug. 15, 2013) (citing
Loving v. Dep’t of Defense, 550 F.3d 32, 41 (D.C. Cir. 2008);
Johnson, 310 F.3d at 776). The Court agrees with the Magistrate
Judge that the EPA has met its burden. Contrary to Plaintiff’s
assertion that the agency’s Vaughn index is inadequate, see
Pl.’s Objs. at 4-5, 12, the Court finds the agency provided a
comprehensive sample Vaughn index, which describes with
specificity each document or partial document withheld,
including its factual content, and explains the reason for
asserting the exemption under which it was withheld. See, e.g.,
Craig Decl. Ex. BB (Doc 21-4, p. 143 of 278) (EPA-27, describing
in detail slide presentation containing analysis for draft
comments to IPCC report, and explaining how it related to
process of developing comments to the report); Ex. CC (Doc. 21-
5, p. 5 of 141) (EPA-207, describing email chain discussing form
of comments to IPCC report before they were finalized, including
who sent and received emails). In addition, Ms. Craig submitted
an affidavit attesting that EPA released all segregable, non-
exempt material. Craig Decl. ¶¶ 37, 66, 73, 79, 82, 86, 89.
The combination of the Vaughn index and the agency affidavits
are “sufficient to fulfill the agency’s obligation to show with
reasonable specificity why [the] document[s] cannot be further
segregated.” Johnson, 310 F.3d at 776 (citations omitted).
26
2. Attorney Client Privilege
EPA has withheld portions of approximately seventeen
records from disclosure pursuant to the attorney client
privilege. Def.’s Objs. at 2 n.1, Pl.’s Response to Def.’s
Objs. at 2-3, Def.’s Reply in Support of Objs. at 2 n.1.5 The
Magistrate Judge recommends that the Court deny EPA’s summary
judgment motion on this issue because the EPA has not
demonstrated that the communications were made in confidence.
R&R at 33. Defendant objects, asserting that it has properly
invoked the attorney-client privilege.
In the context of Exemption 5, the attorney-client
privilege “functions to protect communications between
government attorneys and client agencies or departments.” In re
Lindsey, 158 F.3d 1263, 1269 (D.C. Cir. 1998). Where a client
is an organization, including a government organization, the
5
The number of records withheld under this privilege has been
the subject of some dispute due to mistakes in coding in EPA’s
database, and has been variously represented as low as 14 and as
high as 18. Def.’s Objs. at 1 n.1; Def.’s Reply in Support of
Objs. at 2. While this is obviously less than ideal, it appears
to be a numbers error only. The records were all partially
withheld, and therefore produced to Plaintiff in part and
redacted in part. Def’s Objs. at Ex. 1; Pl.’s Opp’n to Def.’s
Objs. at 2, Exs. 1-4. The redacted records produced
“unambiguously reflected that the Agency was asserting a claim
of attorney-client privilege.” Def.’s Reply in Support of Objs.
at 2, n.1. Although the errors are unfortunate, the Court
cannot agree with Plaintiff that they “cast doubt on the
validity of Defendant’s account of how it gathered, reviewed and
processed all responsive records.” Pl.’s Opp’n to Def.’s Objs.
at 3.
27
privilege extends “no further than among those members of the
organization who are authorized to speak or act for the
organization in relation to the subject matter of the
communication.” Coastal States Gas Corp. v. Dep’t of Energy,
617 F.2d 854, 863 (D.C. Cir. 1980)(quoting Mead Data Central v.
U.S. Dep’t of the Air Force, 566 F.2d 242, 253 n.24 (D.C. Cir.
1977)). The exemplar document listed in the Agency affidavits
is described as a communication between an EPA attorney and “CCD
staff . . . including EPA staff members who were working on the
Endangerment Finding.” Craig Decl. ¶ 80; see also Suppl. Craig
Decl. ¶ 36 (communication was between attorney and “her clients
in the CCD. The communication was confidential, shared only
with those with a need-to-know, and provides legal advice based
on the information provided by her clients. This communication
was not circulated outside the Agency.”)
The Plaintiff maintains that the EPA’s representations do
not satisfy its burden of establishing that the records are
properly withheld because the Agency has failed to establish
that the communications were confidential when created or have
remained confidential since. Pl.’s Opp’n to Def.’s Objs. at 4-5
(noting that the declaration’s “ambiguous use of ‘including’ ...
could potentially refer to recipients in addition to EPA
employees working on the Endangerment Finding.”). In a related
argument, Plaintiff claims that the agency has not provided
28
sufficient information about the responsibilities of the staff
to which the declarations refer for the Court to determine
whether the staff who received the document are limited to those
with a need-to-know. Id. at 6.
The Court agrees with Plaintiff and with the Magistrate
that the declarations are too conclusory to grant summary
judgment to the Agency. The EPA has not provided information
which clearly delineates either (1) the individuals who received
the communication, or (2) whether those individuals, by virtue
of their responsibilities, “are authorized to act or speak for
the organization in relation to the subject matter of the
communication.” Mead Data Cent., Inc., 566 F.2d at 253 n.24.
Accordingly, the EPA must either disclose the records withheld
pursuant to the attorney-client privilege or, in the
alternative, indicate in sufficient detail why withholding is
proper.
3. Work Product Doctrine
The Magistrate Judge recommends that the EPA’s motion for
summary judgment be granted with respect to its withholding of
fourteen documents under the work product doctrine. R&R at 34-
36. Plaintiff objects, arguing that the exemplar document, EPA-
368, that EPA submitted in support of its withholding, “does not
in any way suggest that Defendant’s attorneys were, in fact,
preparing for litigation.” Pl.’s Objs. at 14. Rather, he
29
argues that “it is not clear whether the attorneys were
assisting Defendant in preparing an explanation of the agency’s
legal obligations for public consumption or, as Defendant
contends, preparing for litigation,” and states that the
document must be reviewed in camera in order to make a
determination. Id. Defendant responds that the circumstances
surrounding the preparation of the document make clear that it
was prepared in anticipation of litigation. The exemplar
document is an email written by an EPA attorney, and sent to EPA
staff members working on the Endangerment Finding. Craig Decl.
¶ 83. It was created on November 19, 2009, after the proposed
Endangerment Finding was issued and the comment period had
closed, but before the final Endangerment Finding was signed by
the Administrator. Suppl. Craig Decl. ¶¶ 37-38. During the
comment period, the EPA received more than 380,000 comments,
many of which strongly opposed the Finding. Id. ¶ 37. Because
of the strong opposition to the proposed Finding, the agency had
ample reason to anticipate litigation. Id. Accordingly, the
EPA attorney provided “his edits and revisions to the Response
to Comments document of the Endangerment Finding in anticipation
of the litigation.” Id.
In assessing whether the proponent of the work product
doctrine has carried its burden to show a document is protected,
the relevant inquiry is “whether, in light of the nature of the
30
document and the factual situation in the particular case, the
document can fairly be said to have been prepared . . . because
of the prospect of litigation.” EEOC v. Lutheran Soc. Servs.,
186 F.3d 959, 968 (D.C. Cir. 1999). Although the agency need
not have a specific claim in mind when preparing the documents,
there must exist some articulable claim that is likely to lead
to litigation in order to qualify the documents as work product.
Coastal States Gas Corp., 617 F.2d at 865. As another judge on
this Court recently observed:
The Circuit has drawn a line between neutral, objective
analyses of agency regulations and more pointed documents
that recommend how to proceed further with specific
investigations or advise the agency of the types of legal
challenges likely to be mounted against a proposed program,
potential defenses available to the agency, and likely
outcome. Neutral, objective analysis is like an agency
manual, fleshing out the meaning of the law, and thus is
not prepared in anticipation of litigation. More pointed
advice, however, anticipates litigation.
Am. Immigration Council, 905 F. Supp. 2d 206, 221-22 (D.D.C.
2012) (citations and quotation marks omitted).
The Court agrees with the Magistrate Judge that the
documents were properly withheld under the work product
doctrine. The agency affidavits set forth, in a detailed,
consistent, and non-conclusory manner, the circumstances under
which the exemplar document was prepared – specifically, to help
the EPA prepare its response to a flood of comments attacking
the proposed Endangerment Finding. Craig Decl. ¶ 83; Suppl.
31
Craig Decl. ¶¶ 37-38. In such a situation, the Agency’s
response to comments is the type of document that clearly
anticipates legal challenges to the Agency’s finding and seeks
to pre-emptively defend against them by crafting the strongest
possible counter arguments in the Response to Comments. Am.
Immigration Council, 905 F. Supp. 2d at 221-22. Accordingly,
the EPA has met its burden to show that the exemplar document
falls within the work-product doctrine. As a result, in camera
inspection of the email is unnecessary. See Elec. Privacy Info.
Center v. U.S. Dep’t of Justice, 584 F. Supp. 2d 65, 83 (D.D.C.
2008) (finding in-camera review appropriate where agency
affidavits in support of claim of exemption were insufficiently
detailed); Mehl v. EPA, 797 F. Supp. 43, 46 (D.D.C. 1992) (in-
camera review warranted because publicly available report
describing the documents contradicted the agency’s affidavit
describing the same documents).
C. FOIA Exemption 6
Plaintiff concedes that the EPA’s withholding of cell phone
numbers, home phone numbers, home addresses, medical
information, and personal email addresses is proper under
Exemption 6. Pl.’s Opp’n to Mot. Summ. J. at 30-32; Pl.’s Objs.
at 15. He challenges only EPA’s withholding of (1) the official
internal email address of then-EPA Administrator Lisa P.
Jackson, and (2) the official email addresses of staff members
32
within the Executive Office of the President (“EOP”). Pl.’s
Opp’n to Mot. Summ. J. at 30-32; Pl.’s Objs. at 15; see Suppl.
Craig Decl. ¶ 39. The Magistrate Judge recommends granting
summary judgment to the EPA regarding these withholdings. The
Court agrees.
Exemption 6 allows an agency to withhold personal
identifying information, such as email addresses, if disclosure
of such information “would constitute a clearly unwarranted
invasion of personal privacy.” U.S. Dep’t of State v.
Washington Post Co., 456 U.S. 595, 600 (1982). The EPA has
proffered a substantial privacy interest at stake in disclosing
the official internal email address of the EPA Administrator and
the work email address of employees at the EOP: these few
individuals have “a significant personal interest in preventing
the burden of unsolicited emails and harassment.” Suppl. Craig
Decl. ¶ 40. Plaintiff does not dispute this privacy interest;
rather, he claims that the public interest in disclosure
outweighs any privacy interest at stake. Specifically, he
claims that “the work email addresses are the only way for
Plaintiff to identify which government offices and agencies were
involved in the relevant events.” Pl.’s Objs. 15.
Plaintiff’s claim is without merit for two reasons. First,
the Vaughn index clearly states the identity of individuals –
including the office or agency where they work – whose email
33
addresses were redacted. See, e.g., Craig Decl. Ex. CC at EPA2-
4494 (p. 70-71) (stating that redactions “relate to personal
contact information of White House employees”). Second, EPA
only redacted email addresses for the EPA Administrator and
individuals who work at the EOP; their names have been
disclosed, and, more important, the work emails of employees
from all other agencies have been disclosed. Therefore, because
Plaintiff knows that redacted email addresses must belong to the
former Administrator, who he knows by name, or to employees at
the EOP, he can identify exactly which government offices and
agencies were involved. Accordingly, the Court concludes that
disclosure of the email address would not “shed light on an
agency’s performance of its statutory duties or otherwise let
citizens know what their government is up to.” U.S. Dep’t of
Defense v. FLRA, 510 U.S. 487, 497 (1994) (citations and
internal quotation marks omitted). Plaintiff’s objection is
denied.
D. Publicly Available Records
The Magistrate Judge recommended that the Court find that
the EPA discharged its duty under FOIA by directing Plaintiff to
publicly available documents in response to Requests A(2)(a),
A(4)(a), E(1)(A), and F(1)(c). Pl.’s Objs. at 5; Craig Decl.
Ex. O. The requests seek documents “on which EPA relie[d]” or
documents reflecting “EPA’s analysis” regarding certain
34
statements in EPA’s Response to Comments document for the
Endangerment Finding. Craig Decl. Ex. A. The EPA responded
that these documents are available in the record for the
Endangerment Finding (“Record”), which contains the documents on
which EPA relied for the Finding. Id. Ex. O. The Agency
informed Plaintiff that the Record is available in several
places on line, as well as at the EPA docket office in
Washington D.C. Id.
Plaintiff concedes that an agency may direct a FOIA
requester to materials that have been previously published or
made available by the agency instead of producing them again.
However, he claims that the EPA had an obligation to direct him
to the materials within the Record which are specifically
responsive to his request. Pl.’s Objs. at 5-6. The Court
disagrees. As this Circuit has made clear, when an agency has
provided an alternative form of access, it has satisfied its
requirement under FOIA to make records available to the public.
Oglesby, 920 F.2d at 70; see also U.S. Dep’t of Justice v. Tax
Analysts, 492 U.S. 136, 151-53 (1989) (discussing the public
disclosure provisions of 5 U.S.C. § 552(a)). While an agency
may not send the FOIA requester on a “scavenger hunt,” Oglesby,
920 F.2d at 70, it may fulfill its obligations by, inter alia,
making records available in a reading room, posting the
information at a customshouse, pointing the requestor to
35
previously published reports containing copies of records, or
making available daily compilations of newspaper and magazine
articles in an agency’s public document room. See id.
(collecting cases). Plaintiff has cited no cases, and the Court
is aware of none, that impose the additional requirement that
the agency then search through those available records to
pinpoint the specific documents of most use to the requestor.
The EPA has fulfilled its obligation by directing plaintiff to
publicly available records which specifically relate to the
Endangerment Finding and are responsive to four subsections of
his request. The Court will therefore accept the Magistrate
Judge’s recommendation with respect to this objection.
E. Plaintiff’s General Arguments
Finally, the Plaintiff raises a series of general
objections to the R&R which can only be characterized as
wholesale attacks on the Magistrate Judge’s approach to the
facts and the law, accusing the Magistrate Judge of acting in a
manner biased towards Defendant and against Plaintiff. Pl.’s
Objs. at 3-5. Plaintiff also implies that the Magistrate Judge
failed to carefully analyze the Vaughn index. Id. The Court
finds these claims puzzling in light of Plaintiff’s strenuous
defense of the Magistrate Judge’s reasoning and analysis in the
portions of her Report & Recommendation which recommend denying
EPA’s Motion for Summary Judgment. See generally Pl.’s Opp’n to
36
Def.’s Objs. More to the point, such indiscriminate objections
are not properly before the Court. See supra Sections II.B,
III.B.1, and cases cited therein. Where Plaintiff has pointed
to a specific error in the Magistrate Judge’s analysis, the
Court has addressed it, as contemplated by Federal Rule of Civil
Procedure 72.2(b) and Local Rule 72.3(b). However, “providing a
complete de novo determination where only a general objection to
the report is offered would undermine the efficiency the
magistrate system was meant to contribute to the judicial
process.” Goney v. Clark, 749 F.2d 5, 6 (3d Cir. 1984).
Accordingly, as the Court finds no clear error or manifest
injustice in the Report and Recommendation with respect to these
claims, Plaintiff’s objections are overruled.
IV. CONCLUSION
For the foregoing reasons, the Court accepts the Magistrate
Judge’s recommendations regarding (1) the adequacy of the search
for the subsections of the FOIA request encompassed in EPA’s
phased searches; (2) EPA’s withholding of documents under
Exemption 5’s deliberative process privilege and the work
product doctrine; (3) EPA’s withholding of documents under
Exemption 6; (4) EPA’s segregability determinations; and (5)
EPA’s approach to publicly available documents responsive to
Plaintiff’s request. No further action is required on these
matters. The Court accepts the Magistrate Judge’s
37
recommendation regarding EPA’s withholding of documents under
the attorney-client privilege; accordingly, EPA must either
disclose those documents or file supplemental submissions
indicating in sufficient detail why withholding is proper. The
Court rejects the Magistrate Judge’s recommendation with respect
to the adequacy of the search for certain subsections of the
FOIA request not subject to the EPA’s phased review process,
specifically subsections A(4)(b),(c), A(5)(a),(b),(c),(d),(e),
B(1)(a), D(1)(a),(b), E(2)(a) and (b), and F(1)(a). The Agency
shall either conduct another search for documents responsive to
these portions of the request, or in the alternative prove that
its prior searches meet the adequacy standard. Finally,
Plaintiff’s Motion to Supplement the Record is denied. An
appropriate order accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
September 30, 2013
38