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

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PUBLIC EMPLOYEES FOR
ENVIRONMENTAL RESPONSIBILITY,

Plaintiff,

v. Case No. 15-cv-1012 (CRC)

U.S. ENVIRONMENTAL PROTECTION
AGENCY – OFFICE OF THE
INSPECTOR GENERAL,

Defendant.

MEMORANDUM OPINION

Plaintiff Public Employees for Environmental Responsibility (“PEER”), a non-profit

organization broadly aimed at educating the public concerning the activities of government,

Compl. ¶ 1, sought records from the U.S. Environmental Protection Agency – Office of the

Inspector General (“EPA-OIG”) under the Freedom of Information Act, 5 U.S.C. § 552

(“FOIA”), concerning a potential violation of federal “revolving-door” prohibitions by a former

member of the U.S. Chemical Safety and Hazard Investigation Board (“CSB”). After PEER

filed suit in this Court, the EPA-OIG produced nearly nine hundred pages of responsive records,

but partially redacted or fully withheld certain pages under various FOIA exemptions. EPA-OIG

now moves and PEER cross-moves for summary judgment, disputing one central issue: Does the

attorney-client privilege allow an agency to withhold memoranda, including factual findings,

written by agency investigators to agency lawyers in order to secure legal advice regarding the

criminal liability of an outside party? The Court concludes that it does, and grants summary

judgment for the EPA-OIG.
 I. Background

PEER submitted a FOIA request to EPA-OIG in April 2014 seeking records related to a

February 2014 letter, submitted by the then-chair of the CSB, asking the EPA-OIG to investigate

a potential violation of the federal “revolving-door” statute, 18 U.S.C. § 207. Def.’s Mem. Supp.

Mot. Summ. J. (“Def.’s MSJ”), Ex. 1 (“Levine Decl.”), Ex. A. According to the FOIA request,

the letter included a “detailed allegation . . . involving a former CSB board member for his

interpleading before the CSB on behalf of his client, Chevron USA.” Id. More specifically,

PEER requested (1) the “Report of Investigation or other written memorialization of any EPA-

OIG inquiry into this allegation,” (2) “[a]ny decision memos of a decision not to conduct an

inquiry into this allegation”; and (3) “any communications after [the date of the letter] between

EPA-OIG personnel and any outside or non-OIG party concerning the subject matter of this

allegation.” Id.

In June 2015, PEER filed this action under FOIA, alleging that the EPA-OIG had not yet

produced documents responsive to its FOIA request. Compl. ¶ 6. The EPA-OIG then conducted

searches for relevant documents—including a targeted search of the email accounts for four

particular individuals, and a broader search of three EPA-OIG offices. Levine Decl. ¶¶ 8–16. In

October 2015, the EPA-OIG provided PEER with 899 pages of responsive documents, but 57 of

those pages were partially redacted and 86 were fully withheld under FOIA Exemptions 5, 6, and

7(C). Id. ¶ 20; see 5 U.S.C. § 552(b)(5), (b)(6), (b)(7)(C). As relevant here, 23 pages of

responsive records were fully or partially withheld on the basis of attorney-client privilege under

Exemption 5, 5 U.S.C. § 552(b)(5), either because those documents arose in a context where

“OIG Investigator(s) sought legal counsel regarding allegations of potential violations of a

criminal statute,” or where an agency attorney was “present[ing] information, opinion and legal

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advice to a federal official.” Levine Decl. ¶ 23. Of particular note to PEER were three redacted

pages of a “Complaint Summary Report,” which the agency’s Vaughn index1 describes as “an

investigative document compiled for law enforcement purposes . . . which summarizes the details

of a complaint and the investigative findings related to that complaint” and “states that the

[c]omplaint was determined to be unsupported and [recommended that it] be closed[.]” Levine

Decl. ¶ 23, Ex. D, at 2 (Tracking Number OIG-1-3).

EPA-OIG now moves for summary judgment on the grounds that it has “produced all

reasonably segregable, non-exempt portions of responsive records, and properly asserted [FOIA

Exemption 5].” Def.’s MSJ 4. PEER cross-moves for summary judgment, making clear that it

challenges only those “specific redactions” EPA-OIG justified on the basis of attorney-client

privilege. Pl.’s Mem. Supp. Cross-Mot. Summ. J. (“Pl.’s Cross-MSJ”) 4, 6. The motions are

ripe for consideration.

II. Legal Standards

FOIA cases are generally resolved at summary judgment, see Brayton v. Office of U.S.

Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011), which is appropriately granted when the movant

has established that “there is no genuine dispute as to any material fact,” warranting “judgment

as a matter of law.” Fed. R. Civ. P. 56(a). In deciding a motion for summary judgment, the

1
Under FOIA, an agency asserting a disclosure exemption must submit a “Vaughn
index,” see Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), describing each withheld document
and explaining the agency’s nondisclosure. Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172,
1176 (D.C. Cir. 1996).

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Court assumes the truth of the non-movant’s evidence and draws all reasonable inferences in the

non-movant’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

FOIA imposes a general obligation on the government to provide records to the public,

but with explicit exceptions. 5 U.S.C. § 552(a)–(b). At issue here is FOIA’s Exemption 5,

which provides for the withholding of “inter-agency or intra-agency memorandums or letters that

would not be available by law to a party other than an agency in litigation with the agency.” 5

U.S.C. § 552(b)(5). The scope of Exemption 5 is properly “determined by reference to the

protections available to litigants in civil discovery; if material is not ‘available’ in discovery, it

may be withheld from FOIA requesters.” Burka v. U.S. Dep’t of Health & Human Servs., 87

F.3d 508, 516 (D.C. Cir. 1996). Consequently, although it is not limited to these categories, the

exemption protects “predecisional deliberative memoranda,” “attorney work product,” and—as

relevant here—“attorney-client communications.” Id.

The attorney-client privilege protects confidential communications from client to

attorney, and from attorney to client. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854,

862 (D.C. Cir. 1980) (“While its purpose is to protect a client’s disclosures to an attorney, the

federal courts extend the privilege also to an attorney’s written communications to a client[.]”);

Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 254 n.25 (D.C. Cir. 1977)

(“[T]he [attorney-client] privilege has consistently included communications of the attorney to

the client as well as vice versa.”). Without protections for attorney-client communications,

agency officials might not share information with their counsel in the first place, and would

consequently be deprived of sound legal advice. This very policy concern grounds FOIA’s

Exemption 5. As the D.C. Circuit has explained:

Exemption [5] is intended to protect the quality of agency decision-making by
preventing the disclosure requirement of the FOIA from cutting off the flow of

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 information to agency decision-makers. Certainly this covers professional advice
on legal questions which bears on those decisions. The opinion of even the finest
attorney, however, is no better than the information which his client provides. In
order to ensure that a client receives the best possible legal advice, based on a full
and frank discussion with his attorney, the attorney-client privilege assures him that
confidential communications to his attorney will not be disclosed without his
consent. We see no reason why this same protection should not be extended to an
agency’s communications with its attorneys under exemption five.

Mead Data, 566 F.2d at 252.

Of course, the attorney-client privilege is not an all-purpose FOIA evasion mechanism:

The privilege applies only to “[c]onfidential disclosures by a client to an attorney made in order

to obtain legal assistance,” Fisher v. United States, 425 U.S. 391, 403 (1976), and to an

attorney’s “communication [to the client] based on confidential information provided by the

client,” Schlefer v. United States, 702 F.2d 233, 245 (D.C. Cir. 1983). See also Mead Data, 566

F.2d at 252 (describing the privilege as covering “confidential communications between an

attorney and his client relating to a legal matter for which the client has sought professional

advice”). In this context, the “client” is the agency and its officials. Tax Analysts v. IRS, 117

F.3d 607, 618 (D.C. Cir. 1997). And those officials may be either “high-level agency personnel”

or “lower-echelon employees.” Judicial Watch v. Dep’t of the Army, 466 F. Supp. 2d 112, 121

(D.D.C. 2006).

In a FOIA case, “[t]he burden is on the agency to demonstrate . . . that the materials

sought . . . have not been improperly withheld.” DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989).

Here, that means the agency “must prove that [the withheld] document[s]” fall within the scope

of the attorney-client privilege. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). The Court

now turns to considering whether the EPA-OIG has discharged this burden with respect to the

documents here withheld.

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 III. Analysis

As described above, EPA-OIG has cited attorney-client privilege under Exemption 5 to

justify the withholding of 23 pages of emails and investigative memoranda, most of them written

by OIG investigators for the purpose of seeking legal advice from either OIG or EPA attorneys

in connection with an identified, potential revolving-door violation. EPA-OIG describes these

documents as “quintessential attorney-client privilege materials because they (1) reflect

communications between an attorney and a client; and (2) . . . reflect communications of facts

and advice regarding a legal issue, namely an investigation into [the] potential violation(s) of a

criminal statute.” Def.’s MSJ 15.

PEER insists otherwise, arguing that the attorney-client privilege does not apply “when

agency communications do not concern ‘the legal ramifications of [the agency’s] action.’” Pl.’s

Cross-MSJ 8 (citing Vento v. IRS, 714 F. Supp. 2d 137, 151 (D.D.C. 2010)).2 Since “the EPA-

OIG’s investigation did not involve the conduct of any agency employee, but rather, an outside

third party,” PEER contends the withheld communications “had no bearing on EPA’s legal rights

or responsibilities,” and therefore the attorney-client privilege has no proper application. Pl.’s

Cross-MSJ 8–9.

This argument rests on false premises. First, as EPA-OIG points out, it is inaccurate to

say that the withheld communications “had no bearing” on the agency’s “responsibilities”: The

Inspector General (“IG”) Act of 1978, provides that “[i]n carrying out the duties and

2
Vento used this “legal ramifications” language, which actually derives from Mead Data,
566 F.2d at 253, but in context, the phrase means something along the lines of “legal advice.”
Vento therefore did not narrow the scope of the attorney-client privilege in the way PEER
suggests. And the Vento court followed the relevant language with the unremarkable statement
that “the mere fact that an attorney is listed as a recipient or author does not make a document
protected under [the attorney-client] privilege.” 714 F. Supp. 2d at 151.

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responsibilities established under this Act, each [IG] shall report expeditiously to the Attorney

General whenever the [IG] has reasonable grounds to believe there has been a violation of

Federal criminal law.” 5 U.S.C. § APP. 3 § 4(d) (emphasis added). In other words, by seeking

legal advice regarding the potential federal criminal liability of a former CSB member, the OIG

investigators were acting in direct furtherance of the agency’s statutory mandate.

Another defect in PEER’s argument is the exceedingly narrow conception of the

attorney-client privilege it advances. PEER’s rule—that the attorney-client privilege under

Exemption 5 covers only communications regarding “the legal ramifications of [an agency’s]

action,” meaning that the communication implicates information “damaging” to the agency or

involves a “potential [agency] misdeed,” Pl.’s Cross-MSJ 8–9—simply cannot be squared with

the relevant cases. Courts have applied the attorney-client privilege in the FOIA context to

protect legal advice from agency attorneys to agency investigators concerning the legal

parameters of third-party conduct. See, e.g., Touarsi v. DOJ, 78 F. Supp. 3d 332, 345 (D.D.C.

2015) (affirming the DOJ’s assertion of “the attorney-client privilege to withhold legal advice

from FBI attorneys to government agents and employees concerning investigation strategies and

a potential prosecution”); Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 736 F. Supp. 2d

202, 209 (D.D.C. 2010) (applying attorney-client privilege to protect the withholding of “email

messages from a [Department of Homeland Security (“DHS”)] special agent to a DHS OIG

attorney seeking confidential legal advice regarding the way in which [a Mexican national]

entered into the United States”).

Ultimately, PEER leans for support on a single case, Coastal States, 617 F.2d 854, but it

is readily distinguishable. Coastal States concerned the applicability of various FOIA

exemptions, including the attorney-client privilege, to certain “memoranda from [the Department

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of Energy’s (“DOE’s”)] regional counsel to auditors working in DOE’s field offices, issued in

response to requests for interpretations of regulations.” Id. at 858. The court highlighted that

that these audits were “not investigations,” and that when conducted, “no charge had been

made[,] nor was a violation necessarily suspected.” Id. Moreover, the legal advice had broad,

even precedential, applicability, giving rise to the court’s concern that the agency was

developing a body of “secret law.” Id. The advice “was regularly and consistently followed by

the non-legal staff”; “in some of the offices the documents were indexed by subject matter and

used as precedent in later cases”; and “on at least one occasion a regional counsel memorandum

involving the audit of a different firm was cited to a member of the public as binding precedent.”

Id. at 860. As might be expected of precedent-like legal advice, there was also “no attempt

whatsoever to protect these memoranda within the agency”; in fact, the agency conceded it did

“not know who ha[d] had access to the documents.” Id. at 863. Under these circumstances, the

court declined to apply the attorney-client privilege to protect the legal memoranda, but it noted

that “[i]f DOE were able to establish that some attempt had been made to limit disclosure of the

documents to the agency personnel responsible for the audit under discussion in the

memorandum, we would have a different case.” Id. at 863–64.

This is a “different case.” As detailed in a declaration submitted by the agency, the EPA-

OIG has tagged the relevant records with “restricted” and “official use only” labels, and has

stored them in a database accessible only to authorized EPA-OIG employees.3 Reply Supp.

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PEER finds it significant that “[t]he responsive records and Vaughn index appear to
suggest that the [investigator’s] report was not a document that was itself sent to an attorney, but
rather a summary prepared for submittal to his or her chain of command.” Pl.’s Cross-MSJ 11.
But confidentiality is preserved in the agency context so long as “the [relevant] documents, and
therefore the confidential information contained therein, were circulated no further than among
those members ‘of the organization who are authorized to speak or act for the organization in

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MSJ, Ex. 8 (Suppl. Levine Decl.) ¶¶ 4–6. This case also differs because it involves advice given

in response to a particular complaint regarding a specific suspicion of illegal misconduct, and

there is no contention that the advice contained in these withheld documents has been applied in

some precedential way beyond those particular circumstances. In other words, there is no

concern that the withheld documents constitute a shadowy body of “secret law.”

As an alternative argument, PEER suggests that even if the attorney-client privilege is

applicable to the withheld documents, the factual findings in those documents are “reasonably

segregable” from the remainder, and therefore as “[n]on-privileged factual material . . . must still

be disclosed” under FOIA. Pl.’s Cross-MSJ 10. That argument, too, is unavailing. As discussed

above, the attorney-client privilege protects not only legal advice, but the confidentially

conveyed facts upon which that advice is based. Attorney-client communications are a two-way

street. See Coastal States, 617 F.2d at 862; Mead Data, 566 F.2d at 254 n.25. Indeed, “[f]actual

information provided by the client to the attorney is the essence of the privilege.” Vento, 714 F.

Supp. 2d at 151. And although it is far from clear that the information at issue here itself derived

from a third party (as opposed to EPA-OIG and CSB employees), it is established that the

attorney-client privilege may apply even where the relevant “legal advice concern[s] information

originating with a third party.” Judicial Watch, Inc. v. U.S. Dep’t of Treasury, 802 F. Supp. 2d

185, 201 (D.D.C. 2011).

In sum, PEER’s conception of the attorney-client privilege is unduly narrow, at odds

with the case law, and mainly grounded in a single case that is easily distinguished here. The

relation to the subject matter of the communication.’” Coastal States, 617 F.2d at 863 (quoting
Mead Data, 566 F.2d at 253 n.24). Those in an investigator’s “chain of command” would surely
fit that bill.

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Court finds that the investigative memoranda at issue were properly withheld under FOIA’s

Exemption 5.

IV. Conclusion

For the foregoing reasons, the Court will grant Defendant’s Motion for Summary

Judgment, and will deny Plaintiff’s Cross-Motion for Summary Judgment. An Order

accompanies this Memorandum Opinion.

CHRISTOPHER R. COOPER
United States District Judge

Date: September 30, 2016

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