UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
PUBLIC EMPLOYEES FOR )
ENVIRONMENTAL )
RESPONSIBILITY, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 12-748 (RMC)
)
U.S. ENVIRONMENTAL )
PROTECTION AGENCY, )
)
Defendant. )
_________________________________ )
OPINION
Dr. Richard David Hammer is a former employee of the United States
Environmental Protection Agency. While working for EPA in Corvallis, Oregon, he filed a
workplace complaint of harassment that was investigated by an outside contractor, Dr. Peter
Maida. Dr. Hammer’s efforts to obtain a copy of Dr. Maida’s report were unsuccessful. Public
Employees for Environmental Responsibility (PEER) filed a Freedom of Information Act request
for the same report and was similarly unsuccessful. PEER and Dr. Hammer now sue EPA to
obtain the report or at least the segregable findings of fact in it. The parties have filed cross-
motions for summary judgment. Having reviewed the report ex parte and in camera, the Court
will grant in part and deny in part the parties’ cross-motions for summary judgment.
I. FACTS
Dr. Hammer joined EPA in 2007 as a Supervisory Life Scientist at the EPA’s
Western Ecology Division (WED) in Corvallis, Oregon. His immediate supervisor was Dr.
Thomas Fontaine, and his second-line supervisor was Dr. Steven Hedtke. Dr. Hammer asserts
that he encountered problems at WED that created a hostile working environment and other
1
difficulties. Decl. Amy Battaglia, Def. Motion for Summary Judgment (“Def. MSJ”) Ex., Att. P
[Dkt. 5-1] (Oct. 1, 2009 Letter from Dr. Hammer to Dr. Hedtke (“10/1/09 Letter”)) at 1. When
he sought reassignment because of “an untenable management situation which is negatively
affecting my health,” id., EPA hired Dr. Peter Maida, a contractor, to conduct a fact-finding
investigation into the complaints, Battaglia Decl. ¶ 4. 1 Dr. Maida investigated and provided a
report on his investigation to Dr. Hedtke. Id.
As of December 2009, Dr. Hammer held the position of Branch Chief of
Ecosystem Effects Branch. 10/1/09 Letter at 1. By memo dated December 18, 2009, when Dr.
Hammer was on leave status because of an unspecified medical issue, Dr. Hedtke reported to
him:
I have received and reviewed the results of the fact finding
conducted in Corvallis. I did not find a definitive support for a
hostile work environment, in terms of how that is defined under
EEOC 2 guidelines. However, there was evidence of definite
communication and management style differences which have lead
[sic] to a breakdown of effective communication.
Pl. MSJ, Att. 1 [Dkt. 6-1] (Dec. 18, 2009 Letter from Dr. Steve Hedtke to Dr. Hammer
(“12/18/09 Letter”)) at 1. Dr. Hedtke told Dr. Hammer that he was considering “such options as
mediation, training, coaching and job reassignment.” Id. at 4. It is Dr. Maida’s report (Maida
Report), summarized very briefly by Dr. Hedtke in the 12/18/09 Letter, that Dr. Hammer sought
and that is the object of PEER’s request under the Freedom of Information Act (FOIA), 5 U.S.C.
§ 552.
1
According to the requisition order, EPA contracted with the Key Bridge Foundation for Dr.
Maida’s services. Battaglia Decl., Att. D [Dkt. 5-1], Doc. 1.
2
EEOC stands for the Equal Employment Opportunity Commission, which enforces, inter alia,
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) et seq.
2
During his employment with EPA, Dr. Hammer submitted two FOIA requests and
one request under the Privacy Act (“PA”), 5 U.S.C. § 552a, for a copy of Dr. Maida’s contract,
the Maida Report, and “[a]ll emails between Peter Maida and EPA that pertain to [Dr. Hammer]
in any way.” Battaglia Decl. ¶¶ 7–8. EPA released the contract and payment records related to
its contract with Dr. Maida; it withheld the Maida Report under FOIA Exemption 5 (deliberative
process). Id. ¶ 13. EPA reported that there were no emails between EPA and Dr. Maida. Id.
¶ 16. Dr. Hammer appealed only the denial of release of the Maida Report, but that decision was
affirmed by EPA’s Office of General Counsel (“OGC”). Id. ¶¶ 14–15; see also id. Att. F (Sept.
8, 2011 Letter from EPA denying appeal). In response to his PA request for the Maida Report
and all supporting materials, EPA responded that the Maida Report was not maintained in a
system of records and was, therefore, not subject to the Privacy Act. Id. ¶¶ 17–19. Dr. Hammer
did not appeal the denial of his PA request. Id. ¶ 19.
Dr. Hammer filed an Equal Employment Opportunity complaint with the EPA
Office of Civil Rights on June 1, 2011, alleging employment discrimination based on mental
disability, harassment, failure to accommodate, and retaliation. Id. ¶ 5. After his discharge from
EPA on November 3, 2011, Dr. Hammer filed a complaint with the Merit Systems and
Protection Board (“MSPB”), alleging that his discharge lacked just cause. Id. Both complaints
were settled by EPA and Dr. Hammer on January 31, 2012. Id. ¶ 6; see also Battaglia Decl., Att.
A [Dkt. 5-1] (“Settlement Agmt.”). By the terms of the settlement, Dr. Hammer withdrew with
prejudice all appeals, complaints, grievances, claims, or civil actions against EPA “concerning
any incidents, personnel actions, Agency decisions or determinations, or terms or conditions of
employment” prior to January 31, 2012. Settlement Agmt. ¶ 4. He released EPA and its
employees and agents from all liability for “any acts, omissions, allegations, claims or charges
3
occurring prior to” January 31, 2012. Id. ¶ 5. Dr. Hammer also agreed not to file “any new
appeal, complaint, grievance, claim, or civil action” against EPA “concerning any incidents,
personnel actions, Agency decisions or determinations, or terms or conditions of employment”
prior to January 31, 2012. Id. ¶ 6. In return, EPA cancelled Dr. Hammer’s discharge and
recorded that Dr. Hammer had resigned. Id. ¶ 9. It also removed all references to his
termination and all disciplinary actions underlying it from his Official Personnel File. Id. ¶¶ 10–
11. Although the settlement was to be confidential, id. ¶ 13, the parties have agreed it can be,
and has been, filed with the Court. Dr. Hammer was represented by counsel in pursuing his
FOIA/PA rights administratively and in negotiating the settlement agreement.
Plaintiff PEER, a non-profit organization that works on behalf of EPA employees,
submitted a FOIA and PA request to EPA on December 19, 2011, requesting the Maida Report
and any supporting materials. Battaglia Decl. ¶ 21. EPA numbered the request HQ-FOI-00485-
12 and acknowledged its receipt by letter dated January 4, 2012. Id. ¶ 22. EPA denied PEER’s
FOIA request on February 14, 2012, stating that the Maida Report was an internal briefing
document for decision-making purposes and contained personal information of EPA employees
and was exempt from disclosure under FOIA Exemptions 5, 6 and 7(c). Id. PEER appealed on
March 5, 2012, and OGC denied the appeal on May 2, 2012. Id. ¶ 23. OGC informed PEER
that the Maida Report “reflects internal discussions and recommendations that were considered
during EPA’s decision-making process” and contained “personnel . . . medical files, and similar
files” relating to individuals other than Dr. Hammer and was, therefore, exempt from disclosure
under the exemptions already stated. Id. ¶¶ 24–25. The OGC also stated that there was no
reasonably segregable information that could be released. Id. ¶ 26.
4
This lawsuit promptly followed on May 10, 2012. PEER states that it filed its
FOIA/PA request in its own right and on Dr. Hammer’s behalf, as its letter had indicated. Mem.
Supp. Pl. MSJ (“Pl. MSJ Mem.”) [Dkt. 6] at 27–28; see also Battaglia Decl., Att. L [Dkt. 5-1]
(Dec. 19, 2011 Letter from PEER to EPA (“12/19/11 Letter”)). The only document at issue here
is the Maida Report itself. PEER does not contest EPA’s statement that the agency conducted a
reasonable search for records and could not find any supporting materials to the Maida Report.
E.g., Pl. MSJ Mem. at 4, 6 (stating only that “[t]he Maida Report is being improperly withheld”).
II. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must
be granted 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); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted
against a party who “after adequate time for discovery and upon motion . . . fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.
Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere
existence of a scintilla of evidence” in support of its position. Id. at 252.
FOIA cases are typically and appropriately decided on motions for summary
judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F.
Supp. 477, 481 n.13 (D.D.C. 1980). In a FOIA case, the Court may award summary judgment
solely on the basis of information provided by the department or agency in affidavits or
declarations when the affidavits or declarations describe “the documents and the justifications for
5
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. Rosen, 484 F.2d 820, 826–28 (D.C. Cir.
1973). An agency must demonstrate that “each document that falls within the class requested
either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act’s
inspection requirements.” Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation
and quotation marks omitted).
III. ANALYSIS
Two points are immediately clear. First, Dr. Hammer cannot sue EPA because he
settled all claims against the agency on January 31, 2012—after PEER submitted the FOIA/PA
request. Second, PEER has no Privacy Act rights. Any claims advanced here by Dr. Hammer
must be dismissed, including all PA claims made by him or PEER. The only claim properly
before the Court is PEER’s FOIA request for the Maida Report.
The settlement agreement is captioned with the MSPB case number, but its terms
are clearly all-encompassing to include the MSPB appeal “and any other appeal, complaint,
grievance, claim or civil action” filed by Dr. Hammer in the past or future, Settlement Agmt. ¶ 2,
as Dr. Hammer expressly promised not to institute any appeal, complaint, grievance, claim, or
civil action in the future, id. ¶ 6. Inasmuch as he had filed his own FOIA/PA requests for the
Maida Report, there can be no doubt that an identical FOIA/PA claim or civil suit by Dr.
Hammer was covered and precluded by the broad language of the settlement agreement. Dr.
Hammer is a highly educated man, and he was represented by counsel. A settlement agreement
is a contract, and Dr. Hammer is bound by the contract he signed. See, e.g., Shaffer v. Veneman,
325 F.3d 370, 372 (D.C. Cir. 2003) (citing and quoting United States v. ITT Cont’l Baking Co.,
6
420 U.S. 223, 238 (1975) for the proposition that a “settlement agreement should ‘be construed
for enforcement purposes basically as a contract’”); see also Gaines v. Cont’l Mortg. & Inv.
Corp., 865 F.2d 375, 378 (D.C. Cir. 1989) (observing that the enforceability of settlement
agreements is “governed by familiar principles of contract law” (internal citations and quotation
marks omitted)). The Court has no hesitancy in holding Dr. Hammer to the bargain he struck.
The Privacy Act requires that “upon request by any individual,” agencies must
allow that individual “to gain access to his record or to any information pertaining to him which
is contained in the system [of records].” 5 U.S.C. § 552a(d)(1). Dr. Hammer filed a request
under the Privacy Act for a copy of the Maida Report and was informed by EPA that it was not
maintained in a system of records. Battaglia Decl. ¶ 18. He did not appeal this determination.
Id. ¶ 19. He thereafter settled all claims against EPA and agreed not to make additional claims.
See Settlement Agmt. ¶¶ 2, 6. Accordingly, the Court will grant summary judgment to EPA as to
all claims advanced by Dr. Hammer.
PEER, the only remaining Plaintiff, has no rights under the Privacy Act to records
concerning Dr. Hammer. An “individual” under the PA is “a citizen of the United States or an
alien lawfully admitted for permanent residence.” 5 U.S.C. § 552a(a)(2). Unlike FOIA, the PA
extends no rights to organizations or corporations. SAE Prods., Inc. v. FBI, 589 F. Supp. 2d 76,
83 (D.D.C. 2008). Corporations and organizations lack standing to sue under the PA,
which creates a cause of action for “individuals” as defined in 5 U.S.C. § 552a(a)(2). 5 U.S.C.
§ 552a(g)(1) (providing that “the individual may bring a civil action against the
agency”); see Cell Assocs., Inc. v. Nat’l Insts. of Health, Dept. of Health, Ed. & Welfare, 579
F.2d 1155, 1157 (9th Cir. 1978) (dismissing non-individual plaintiff for lack of standing under
Privacy Act). Thus, while Dr. Hammer may, and did, provide written consent allowing EPA to
7
disclose records pertaining to him to a third party, such as PEER, only Dr. Hammer would have a
cause of action under the PA. As the Court has already stated, Dr. Hammer waived that right,
and PEER cannot assert it for him. With or without Dr. Hammer’s explicit request, PEER’s
claim under the PA must be dismissed.
Which leads us to PEER’s FOIA request for the Maida Report, the only document
at issue. PEER has no complaint about the scope of EPA’s search, which the Court finds was
reasonable. See Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (requiring a
search that was “reasonably calculated to uncover all relevant documents”). Instead, PEER
assails EPA’s reliance on FOIA Exemptions 5 and 6 and EPA’s position that, even if part of the
Maida Report is nonexempt, those parts are non-segregable. 3 The Court addresses those three
issues in turn.
A. Exemption 5
Exemption 5 provides that FOIA does not apply to “inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than an agency in
litigation with the agency[.]” 5 U.S.C. § 552(b)(5). Exemption 5 encompasses materials which
would be protected under the attorney-client privilege, the attorney work-product privilege, or
the executive deliberative process privilege. Formaldehyde Inst. v. Dep’t Health & Human
Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989), overruled on other grounds by Nat’l Inst. of
Military Justice v. Dep’t of Def., 512 F.3d 677 (D.C. Cir. 2008); see also NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 149 (1975) (Exemption 5 includes all documents “normally
privileged in the civil discovery context.”).
3
EPA also cited Exemption 7(C) in its administrative responses, but it does not rely on that
exemption here. Def. MSJ Mem. at 10 n.2.
8
EPA relies on the deliberative process privilege, which exempts from disclosure
documents “reflecting advisory opinions, recommendations and deliberations comprising part of
a process by which governmental decisions and policies are formulated.” Sears, 421 U.S. at 150.
Further, Exemption 5 “covers recommendations, draft documents, proposals, suggestions, and
other subjective documents which reflect the personal opinions of the writer rather than the
policy of the agency.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C.
Cir. 1980). Such documents are protected in order to promote “the quality of agency decisions
by protecting open and frank discussion among those who make them within the Government.”
Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 9 (2001); accord Tax
Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir. 1997) (the quality of decision-making would be
seriously undermined if agencies were forced to operate in a “fish bowl” since open and frank
discussion regarding legal or policy matters would be impossible).
To qualify for withholding, material must be both predecisional and deliberative.
Judicial Watch, Inc. v. Dep’t of Energy, 412 F.3d 125, 129 (D.C. Cir. 2005).
A document is predecisional if it was prepared in order to assist an
agency decisionmaker in arriving at his decision, rather than to
support a decision already made. Material is deliberative if it
reflects the give-and-take of the consultative process. [The D.C.
Circuit’s] recent decisions on the deliberativeness inquiry have
focused on whether disclosure of the requested material would
tend to discourage candid discussion within an agency.
Petroleum Info. Corp. v. Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (citations and
internal quotation marks omitted).
EPA describes the Maida Report as an “aid to the EPA decision-making process
with regard to how it would respond to the October 1, 2009, memorandum from Dr. Hammer, in
which he requested an administrative reassignment and asserted allegations of a hostile work
9
environment.” Def. MSJ Mem. at 12–13. EPA’s FOIA officer, Amy Battaglia, describes the
Maida Report as containing “opinions on the credibility of facts provided by the interviewees,
findings of issues related to the allegations, recommended options and advice from Dr. Maida
about Dr. Hammer’s allegations of a hostile work environment.” Battaglia Decl. ¶ 31.
According to EPA, the factual information presented by Dr. Maida in the report is only Dr.
Maida’s version of the facts, related in conjunction with his opinions. To this extent, the “facts”
as stated in the Maida Report really represent Dr. Maida’s opinions and thus form part of the
deliberative process. See Def. MSJ Mem. at 13 (citing Ancient Coin Collectors Guild v. Dep’t of
State, 641 F.3d 504, 513 (D.C. Cir. 2011) (“[T]he legitimacy of withholding does not turn on
whether the material is purely factual in nature . . . but rather on whether the selection or
organization of facts is part of an agency’s deliberative process.”)). Moreover, the Maida Report
was neither adopted nor incorporated into the final decision reached by EPA, making
inapplicable the rule requiring disclosure of deliberative material adopted as an agency’s final
position. Id. Thus, EPA insists that the Maida Report is predecisional and deliberative and
protected by Exemption 5.
PEER could not disagree more. It contends that the deliberative process privilege
“protects advice, recommendations and opinions which are part of the decision-making process
of the government.” Pl. MSJ Mem. at 6 (citing Coastal States Gas Corp., 617 F.2d at 866). The
“key question,” notes PEER, is “whether disclosure of the information would discourage candid
discussion with the agency.” Id. at 7 (quoting Access Reports v. Dep’t of Justice, 926 F.2d 1192,
1195 (D.C. Cir. 1991) (internal quotations omitted by PEER)). PEER asserts that the Court must
distinguish between “materials reflecting deliberative or policy-making processes on the one
hand, and purely factual, investigative matters on the other.” Id. (quoting EPA v. Mink, 410 U.S.
10
73, 89 (1975) (stating that Exemption 5 applies only to “opinion” and “recommendatory”
portions of advisory documents, not factual information)).
The dispute here boils down to whether the Maida Report contains some
information that is subject to FOIA disclosure even though some of it contains opinion and
recommendations that are protected by Exemption 5. For this reason, the Court adopted PEER’s
suggestion and reviewed the Maida Report ex parte and in camera. Having conducted that
review, the Court concludes that the Maida Report is protected by Exemption 5 as deliberative-
process material except for the first three sections of the document, which comprise roughly the
first page and a half of the report and are segregable factual background paragraphs that do not
fall within the exemption. The Court discusses those first three sections separately below,
addressing first whether Exemption 5 pertains to the Maida Report generally.
PEER argues that the Maida Report has not been shown to be predecisional or
deliberative. It accurately cites Coastal States, 617 F.2d at 866, 868, and Senate of P.R. v. Dep’t
of Justice, 823 F.2d 574, 585–86 (D.C. Cir. 1987), for the proposition that an agency must
establish what deliberative process is involved and the role played by the document at issue in
that process. Pl. MSJ Mem. at 8. However, the record is clear that the deliberative process to
which the Maida Report contributed was Dr. Hedtke’s determination of the nature of the
management issues at WED and what options he might consider. Since Dr. Hammer was away
from work on his doctor’s advice due to the circumstances of his workplace, his complaints
obviously were serious, and Dr. Hedtke specifically noted that. See 12/18/09 Letter at 4 (“The
allegation you have presented is serious and I want to ensure that we do what is best for you and
the organization.”). The Maida Report contained recommendations on ways to respond to Dr.
Hammer’s complaints, and Dr. Hedtke specifically notified Dr. Hammer what options he was
11
considering. Id. at 4–5 (discussing possible resolutions in section of letter titled “Next Steps”).
None of these facts is contested.
While PEER correctly refers to “[t]he general rule that facts must be disclosed,”
even if opinions and recommendations may be withheld, Pl. MSJ Mem. at 13, that rule is almost
entirely inapplicable to the Maida Report. The Court’s ex parte, in camera review has confirmed
that, as EPA argues, this is not a case in which there is a separate section of objectively presented
and unvarnished facts falling outside the scope of Exemption 5. There is no “factual summary”
or “findings of fact” section of the Maida Report. To the contrary, to the extent that facts are
discussed regarding Dr. Hammer’s allegations, they are considered in more analytical contexts,
tied inextricably to Dr. Maida’s opinions and discussions. See Playboy Enters., Inc. v. Dep’t of
Justice, 677 F.2d 931, 935 (D.C. Cir. 1982) (holding that Exemption 5 “does not protect ‘purely
factual material appearing in . . . documents in a form that is severable without compromising the
private remainder of the documents’” (quoting Mink, 410 U.S. at 91)).
PEER further complains that the Maida Report “was commissioned to, and
presumably did, address additional questions, such as Dr. Hammer’s allegations of threats
against him by management when he attempted to ensure WED complied with federal laws and
allegations of hostility (which may not have fit under EEOC guidelines), which [Dr.] Hedtke’s
[December 18, 2009] memo did not address and have not been shown to be part of any agency
decision-making process.” Pl. MSJ Mem. at 8 (emphasis added). PEER’s assertions on the
scope of work for Dr. Maida are based entirely on hearsay and contradict the Scope of Work in
the EPA/Maida contract. Battaglia Decl., Att. D, Doc. 2 [Dkt. 5-1] (“Scope of Work”) (“The
National Health and Environmental Effects Research Laboratory has been asked to conduct a
fact finding session to elicit facts that will support, or not, an allegation of a ‘hostile work
12
environment’ in the Western Ecology Division, Corvallis, Oregon.”). After Dr. Maida’s
interviews, Dr. Hedtke advised Dr. Hammer that he doubted that a hostile work environment
under EEO laws had existed, and PEER appears to agree—or at least it does not press the point
here. Further, Dr. Hedtke spoke generally of the failures of communication at WED, while not
attributing blame to either Dr. Hammer or his supervisors. See 12/18/09 Letter at 1 (“I did not
find a [sic] definitive support for a hostile work environment . . . . [T]here was evidence of
definite communication and management style differences . . . .”). PEER only hypothesizes that
portions of the Maida Report were not part of Dr. Hedtke’s decision process, but its
hypotheticals do not undercut EPA’s reliance on Exemption 5.
As PEER argues, investigative and evaluative reports regarding personnel matters
are not exempt under Exempt 5 when an agency fails to identify the final decision that was, or
could have been, reached. Pl. MSJ Mem. at 9 (citing Vaughn, 523 F.2d at 1146). However, the
lack of a final decision is not dispositive when an agency can establish that there was a
deliberative process of which the withheld material was a part. EPA has clearly established in
this record that it was considering options to reduce the hostility and other problems Dr. Hammer
perceived in his workplace and that Dr. Maida’s Report contributed to that process.
Additionally, PEER complains that EPA has not shown that release of the Maida
Report would “defeat, rather than further, the purposes of FOIA,” characterizing EPA’s
allegations of possible harm as “conclusory.” Pl. MSJ Mem. at 10 (citing Hall v. Dep’t of
Justice, 552 F. Supp. 2d 23, 29 (D.D.C. 2003) and Mead Data Cent., Inc. v. Dep’t of the Air
Force, 566 F.2d 242, 258 (D.C. Cir. 1977)). EPA responds that release of the Maida Report
“would have a chilling effect on the Agency’s ability to have frank, internal discussions on
personnel matters between subordinates and their supervisors” and “would create confusion
13
surrounding the reasons and rationales that were not” the ultimate grounds for a final decision.
Battaglia Decl. ¶ 31. In reply, PEER asserts that Ms. Battaglia merely parrots the statutory
language and offers no substance to support her conclusion. Pl. MSJ Mem. at 10. It also
contends that there were no internal discussions between subordinates and superiors because
employees spoke to Dr. Maida, not an EPA superior. Id. at 11. But this latter argument ignores
reality: Dr. Maida interviewed employees in Corvallis, subordinates and superiors alike, as a
direct agent of Dr. Hedtke and as a non-EPA person to elicit more candor. Dr. Hedtke used this
procedure for the protection of Dr. Hammer, who had alleged that subordinates and superiors
were complicit in creating the alleged hostile work environment. See 12/18/09 Letter at 1 (“I
obtained the services of an independent fact-finder to gather facts pursuant to your allegation and
requested the results be provided to me.”).
Having reviewed the Maida Report in camera and ex parte, the Court finds that
release of more of the Maida Report than previously stated would pose a significant threat to the
ability of the Agency to have frank internal discussions on personnel matters. See Petroleum
Info. Corp., 976 F.2d at 1434 (D.C. Cir. 1992) (noting that the deliberative-process inquiry
“focuse[s] on whether disclosure of the requested material would tend to discourage candid
discussion within an agency”). In this particular situation, Dr. Hammer challenged the
supervision at WED and expressed grave concerns for his health and the prospects of retaliation.
Dr. Maida was retained from outside EPA to investigate Dr. Hammer’s allegations. His
interviews required candor from those to whom he spoke, and his report contains his conclusions
from those interviews, with varying degrees of attributed truth. Obviously, although Dr.
Hammer was himself interviewed, much of Dr. Maida’s attention and the ensuing report
14
reflected on the words and actions of others. Dr. Maida’s insight into troubles at WED is exactly
what Dr. Hedtke sought and obtained.
The Court’s conclusion that Exemption 5 protects most of the report does not
extend to one segment thereof. The first three sections of the document, titled “Introduction,”
“Methodology,” and “Documents That Were Reviewed,” are not protected by Exemption 5
because they represent “purely factual material” that can be severed “without compromising” the
rest of the report. See Playboy Enters., 677 F.2d at 935 (internal quotation marks and citation
omitted). These three sections describe Dr. Maida’s general methodology. However, Exemption
6 requires redaction of certain identifying personnel information. Subject to such redaction, the
three sections must be disclosed, as the Court discusses further in its segregability analysis.
B. Exemption 6
Exemption 6 permits an agency to withhold from disclosure “personnel and
medical files and similar files” if their disclosure would “constitute a clearly unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(6). If there is a FOIA request for such
information, an agency must conduct a balancing test to determine if releasing the information
would constitute a “clearly unwarranted invasion of personal privacy” by weighing the privacy
interest in non-disclosure against any qualifying public interest in disclosure. Dep’t of State v.
Wash. Post Co., 456 U.S. 595, 596 n.1, 601–02 (1982); see also Morley v. CIA, 508 F.3d 1108,
1127 (D.C. Cir. 2007) (noting that the government bears a “heavy burden” under Exemption 6
(internal citation omitted)).
In contesting EPA’s reliance on Exemption 6, PEER clarifies that it “does not
seek disclosure of names mentioned in the report, but rather seeks disclosure of the facts relating
to Dr. Hammer’s allegations.” Pl. MSJ Mem. at 17. EPA no longer relies on Exemption 6 to
withhold the entire Maida Report; instead, it “maintains that much of the Report is exempt”
15
under Exemption 6. Def. MSJ Mem. at 15 n.3. Without additional specificity, EPA asserts that
“Exemption 6 covers the information in the Maida Report that would identify the individuals
mentioned or interviewed.” Def. Reply [Dkt. 9] at 8. The persons interviewed offered their
perspectives on management and inter-personal issues at WED, and Dr. Maida assured them of
privacy so that they could and would speak freely without fear of harassment or retaliation. As a
result, EPA contends that disclosing the names or comments of those interviewed would not
serve any general public interest in “shedding light on an agency’s performance of its statutory
duties.” Def. MSJ Mem. at 14 (quoting Dep’t of Justice v. Reporters’ Comm. for Freedom of
Press, 489 U.S. 749, 750 (1989)). EPA also argues that any segregable portions of the Maida
Report under Exemption 6 are nonetheless protected from release because the entire Maida
Report is exempt under Exemption 5. Id. at 15 n.3.
The Court finds that Exemption 6 privileges withholding significant portions of
the Maida Report. The Court reiterates that the report contains no separate recounting of facts.
Instead, such facts are only presented through the lens of Dr. Maida’s opinions, analysis, and
recommendations. To the extent that the report contains information revealed by interviewees
who spoke candidly so that Dr. Hammer’s allegations could be addressed, those persons have a
compelling privacy interest in non-disclosure. Thus, the PEER’s reliance on Fortson v. Harvey,
407 F. Supp. 2d 13, 17 (D.D.C. 2005), for the proposition that “witness statements” are not
protected by Exemption 6 is of no relevance here. Pl. MSJ Mem. at 19. The Court does not rely
on Fortson because at issue here are not witness statements but, rather, Dr. Maida’s condensation
of what he learned from a variety of witnesses, what he did and did not credit wholly, and the
reasons for his recommendations to address the issues.
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The Court further concludes that PEER establishes no particular public interest in
the Maida Report. The record is clear that Dr. Hammer has an abiding interest in reading the
report, but he has waived any and all rights he might have had to obtain the document under
FOIA or the PA. PEER generally assists EPA employees and therefore asserts a “public
interest” in the Maida Report, but the privacy interests of the particular EPA employees who
were interviewed outweigh this asserted general interest on the part of non-participating EPA
employees.
As noted above, PEER contends that it seeks only disclosure of the facts related to
Dr. Hammer’s allegations, not the names or particulars of the interviewees, and thus it suggests
that redaction of all names is a well-trod path to the release of these kinds of materials. Pl. MSJ
Mem. at 18 (citations omitted). In essence, this is another argument for segregability, repeated
throughout PEER’s brief, and it is addressed in two ways. First, for the reasons set forth above,
the Court finds that, with the exception of the first three sections of the report, there is no factual
information that can be severed from otherwise exempt material, and thus redaction of names is
not a solution. Second, the Court does not find that Exemption 6 applies to the entire Report. As
discussed below in the Court’s segregability analysis, redaction of Exemption 6 information is an
appropriate tool that allows for the first three sections of the Maida Report to be disclosed to
PEER.
C. Segregability
FOIA requires that “[a]ny reasonably segregable portion of a record shall be
provided to any person requesting such record after deletion of the portions which are exempt.”
5 U.S.C. § 552(b)(9); see also Oglesby v. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996).
An agency must produce any “reasonably segregable” information—that is, information that can
be separated from the exempt portions of a document—unless the exempt and non-exempt
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portions are “inextricably intertwined with exempt portions.” Trans–Pacific Policing Agreement
v. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999); Mead Data Cent., 566 F.2d at 260. An
agency must provide a “detailed justification” and not just “conclusory statements” to prove that
it has released all reasonably segregable information. Mead Data Cent., 566 F.2d at 261.
One preliminary legal matter is clear—contrary to its argument, EPA is not
entitled to withhold the entirety of the Maida Report on the basis that the deliberative process
privilege under Exemption 5 protects some of the report. While such automatic exemption is
possible when the work-product doctrine of Exemption 5 is at issue, “[f]actual material is not
protected under the deliberative process privilege [of Exemption 5] unless it is inextricably
intertwined with the deliberative material.” Judicial Watch, Inc. v. Dep’t of Justice, 432 F.3d
366, 370–72 (D.C. Cir. 2005) (internal citations and quotation marks omitted). There is, of
course, some difficulty in demonstrating that protected and non-protected information are
“inextricably intertwined” without examples that would, perforce, release the protected
information. Thus, EPA has struggled to submit an affidavit to show this necessity without
actually revealing it.
The Court has now reviewed the Maida Report and agrees in the main with EPA.
Other than the first three sections of the report, Exemptions 5 and/or 6 protect the report from
disclosure. The material is inextricably intertwined with Dr. Maida’s analysis and opinions,
cannot be segregated, and is protected by the Exemption 5 deliberative process privilege and/or
Exemption 6. The first three sections of the report, for the reasons discussed above, are not
protected by Exemption 5, and the Court finds that they are “purely factual” material that can be
reasonably segregated and must be disclosed. See In re Sealed Case, 121 F.3d 729, 737 (D.C.
Cir. 1997) (per curiam). However, PEER does not object to the redaction of the personal
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identifying information in those three sections, see Pl. MSJ Mem. at 18, which the Court also
finds to be separately protected by Exemption 6 and segregable.
Accordingly, the Court upholds EPA’s decision to withhold the Maida Report
under FOIA except as to the first three sections of the report—i.e., “Introduction,”
“Methodology,” and “Documents That Were Reviewed.” EPA shall produce to PEER only these
sections of the Maida Report, with the personal identifying information (including names and
titles) of all persons in the “Methodology” section redacted. See 5 U.S.C. § 552(a)(4)(B)
(providing that a United States district court has jurisdiction “to order the production of any
agency records improperly withheld from the complainant”).
IV. CONCLUSION
The parties’ cross-motions for summary judgment will be granted in part and
denied in part. EPA will be directed to provide to PEER the first three sections of the Maida
Report with personal identifying information redacted, and to this extent, PEER’s motion for
summary judgment will be granted. In all other respects, the Court will grant EPA’s motion for
summary judgment. A memorializing Order accompanies this Opinion.
DATE: February 26, 2013
/s/
ROSEMARY M. COLLYER
United States District Judge
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