Public Employees for Environmental Responsibility v. Environmental Protection Agency Region 9

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PUBLIC EMPLOYEES FOR :
ENVIRONMENTAL RESPONSIBILITY, :
:
Plaintiff, : Civil Action No.: 14-2056 (RC)
:
v. : Re Document Nos.: 18, 20
:
ENVIRONMENTAL PROTECTION :
AGENCY, :
:
Defendant. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT; DENYING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

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

organization “dedicated to research and public education concerning the activities and operations

of federal, state and local governments.” Compl. ¶ 4, ECF No. 2. In this Freedom of

Information Act (“FOIA”) lawsuit, PEER seeks to compel the Environmental Protection Agency

(“EPA”) to release records related to EPA’s involvement with the “suspected or actual toxic

contamination at schools in the Santa Monica Malibu Unified School District” (“SMMUSD”).

Id. ¶ 5. Specifically, PEER objects to EPA’s decision to withhold or redact certain records

pursuant to certain FOIA exemptions.
 Before the Court are EPA’s Motion for Summary Judgment (ECF. No. 18) and PEER’s

Cross-Motion for Summary Judgment (ECF No. 20). The motions are ripe and fully briefed.1

Upon consideration of the parties’ submissions and the entire record, and for reasons explained

below, the Court will grant in part and deny in part EPA’s motion for summary judgment and

deny PEER’s cross-motion for summary judgment.

II. BACKGROUND

On August 19, 2014, PEER submitted a request for records to EPA Region 9, pursuant to

FOIA, 5 U.S.C. § 552. See Def.’s Statement of Material Facts (“EPA Statement”) ¶ 1, ECF No.

18-1; Pl.’s Statement of Material Facts (“PEER Statement”) ¶ 1, ECF No. 20. Specifically,

PEER requested:

[E]mails and other written communications and notes of all communications from
October 1, 2013 to the present concerning or referencing suspected or actual toxic
contamination with [polychlorinated biphenyls (“PCBs”)] between named EPA
employees and any other EPA employees and (1) Senator Barbara Boxer, any
member of her staff, or the staff of the Senate Environment and Public Works
Committee which she chairs; (2) named members of the SMMUSD School
Board; (3) named members of the Malibu City Council or the City Council as a
group.

EPA Statement ¶ 1; PEER Statement ¶ 1. PEER also sought a fee waiver, which was granted by

EPA. See Decl. of Steven Armann (“Armann Decl.”) ¶ 16, ECF No. 18-3; PEER Statement ¶ 2.

On December 5, 2014, PEER brought this suit, alleging that EPA had failed to provide any

records, as required by FOIA. See Compl. ¶¶ 1, 7. Soon after the Complaint was filed, EPA

responded to PEER’s request by releasing a group of responsive documents on December 22,

2014, but withholding others pursuant to Exemptions 5 and 6 of FOIA. See Armann Decl. ¶ 17;

1
See Def.’s Mot. Summ. J. (“EPA Mot.”), ECF No. 18; Pl.’s Cross-Mot. Summ. J., ECF
No. 20; Def.’s Mem. P. & A. in Supp. Reply (“EPA Reply”), ECF No. 24; Pl.’s Reply in Supp.
Cross-Mot. Summ. J. (“PEER Reply”), ECF No. 27.

2
EPA Statement ¶ 4; PEER Statement ¶ 4. Subsequent discussions between PEER and EPA led

to the release of additional documents—some produced in full, and others partially redacted. See

Armann Decl. ¶¶ 19–21; EPA Statement ¶¶ 5–7; PEER Statement ¶ 5. This Court ordered EPA

to produce a Vaughn index providing information on redacted and fully withheld records. See

Min. Order, Apr. 28, 2015. The Vaughn indices submitted with EPA’s motion for summary

judgment described 451 documents withheld in part and another set of documents withheld in

full.2 See Armann Decl. ¶ 22; EPA Statement ¶ 8; PEER Statement ¶ 6. During the briefing of

these motions, EPA filed amended Vaughn indices that corrected certain errors identified by the

parties and reflected EPA’s decision to release certain records that were not properly withheld.

See Notice of Filing Am. Vaughn Indices, ECF No. 26; see also Pl.’s Mem. Supp. Cross-Mot.

Summ. J. (“PEER Mem.”) at 22–23, ECF No. 20 (arguing that withheld records were not intra-

or inter-agency materials); Second Decl. of Steven Armann (“2d Armann Decl.”) ¶ 7, ECF No.

24-1 (releasing challenged documents). Now before the Court are cross-motions for summary

judgment filed by each of the parties. See generally Def.’s Mot. Summ. J. (“EPA Mot.”), ECF

No. 18; Pl.’s Cross-Mot. Summ. J., ECF No. 20.

2
The Court’s review of the parties’ filings reveals some confusion over the number of
documents withheld in full. EPA’s statement of undisputed facts refers to 2020 documents
withheld in full, while Mr. Armann, EPA’s declarant, refers to only 15. Compare EPA
Statement ¶ 8 (“451 documents withheld in part and 2020 withheld in full”) with Armann Decl. ¶
22 (“451 documents withheld in part and 15 withheld in full”). In light of EPA’s statement that
the agency “[i]nitially . . . identified . . . 224 documents that were withheld in full,” the 2020
figure appears to be an error. See EPA Statement ¶ 5. On the other hand, PEER’s statement of
undisputed facts refers to 202 documents. See PEER Statement ¶ 6 (“451 documents withheld in
part and 202 withheld in full”). The source of this figure is unclear.

3
 III. LEGAL STANDARD

A. Summary Judgment

“FOIA cases typically and appropriately are decided on motions for summary judgment.”

Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing

Bigwood v. U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). Summary

judgment is appropriate where “the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A

“material” fact is one capable of affecting the substantive outcome of the litigation. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is

enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott v.

Harris, 550 U.S. 372, 380 (2007).

The principal purpose of summary judgment is to streamline litigation by disposing of

factually unsupported claims or defenses and determining whether there is a genuine need for

trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial

burden of identifying portions of the record that demonstrate the absence of any genuine issue of

material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-

movant must point to specific facts in the record that reveal a genuine issue that is suitable for

trial. See Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must

“eschew making credibility determinations or weighing the evidence,” Czekalski v. Peters, 475

F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the

light most favorable to the non-movant, see Anderson, 477 U.S. at 255. Nevertheless,

conclusory assertions offered without any evidentiary support do not establish a genuine issue

for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).

4
 B. Freedom of Information Act

FOIA was enacted so that citizens could discover “what their government is up to.” U.S.

Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)

(quoting EPA v. Mink, 410 U.S. 73, 105 (1973)). “[D]isclosure, not secrecy, is the dominant

objective of [FOIA].” U.S. Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976).

“Consistent with this purpose, agencies may withhold only those documents or portions thereof

that fall under one of nine delineated statutory exemptions.” Elliot v. U.S. Dep’t of Agric., 596

F.3d 842, 845 (D.C. Cir. 2010) (citing 5 U.S.C. § 552(b)). “[T]he exemptions are ‘explicitly

exclusive.’” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989) (quoting FAA

Adm’r v. Robertson, 422 U.S. 255, 262 (1975)). And it is the agency’s burden to show that

withheld material falls within one of these exemptions. See 5 U.S.C. § 552(a)(4)(B); Elliott, 596

F.3d at 845.

When assessing a summary judgment motion in a FOIA case, a court makes a de novo

assessment of whether the agency has properly withheld the requested documents. See 5 U.S.C.

§ 552(a)(4)(B); Judicial Watch v. U.S. Dep’t of Homeland Sec., 598 F. Supp. 2d 93, 95 (D.D.C.

2009). To prevail on a motion for summary judgment, “the defending agency must prove that

each document that falls within the class requested either has been produced, is unidentifiable or

is wholly exempt from the Act’s inspection requirements.” Weisberg v. U.S. Dep’t of Justice,

627 F.2d 365, 368 (D.C. Cir. 1980) (internal quotation marks omitted) (quoting Nat’l Cable

Television Ass’n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)).

To meet its burden, a defendant may rely on declarations that are reasonably detailed and

non-conclusory. See Citizens for Ethics & Responsibility in Wash. v. U.S. Dep’t of Labor, 478 F.

Supp. 2d 77, 80 (D.D.C. 2007) (quoting Military Audit Project v. Casey, 656 F.2d 724, 738

5
(D.C. Cir. 1981)). The agency’s justification is typically contained in a declaration or affidavit,

referred to as a “Vaughn index” after the case Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).

An agency’s affidavits or declarations are presumed to be submitted in good faith. See SafeCard

Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). The purpose of a Vaughn index is “to

permit adequate adversary testing of the agency’s claimed right to an exemption,” Nat’l Treasury

Emps. Union v. U.S. Customs Serv., 802 F.2d 525, 527 (D.C. Cir. 1986) (citing Mead Data

Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)), and therefore the

index must contain “an adequate description of the records” and “a plain statement of the

exemptions relied upon to withhold each record,” id. at 527 n.9.

“Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it

appears ‘logical’ or ‘plausible.’” Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007) (quoting

Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). Generally, a reviewing court should

“respect the expertise of an agency” and not “overstep the proper limits of the judicial role in

FOIA review.” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C. Cir.

1979). Nonetheless, “exemptions from disclosure must be narrowly construed . . . and

conclusory and generalized allegations of exemptions are unacceptable.” Morley v. CIA, 508

F.3d 1108, 1114–15 (D.C. Cir. 2007) (citation and internal quotation marks omitted).

IV. ANALYSIS

As EPA correctly notes, PEER has made no objection to the sufficiency of EPA’s search

for responsive documents. See Def.’s Mem. P. & A. in Supp. Reply (“EPA Reply”) at 2 n.1,

ECF No. 24; see also Def.’s Mem. P. & A. Supp. Mot. Summ. J. (“EPA Mem.”) at 5–7, ECF

No. 18 (arguing that EPA’s search was adequate). Similarly, EPA has not disputed PEER’s

assertion that it constructively exhausted its administrative remedies, as required by FOIA. See

6
Compl. ¶ 8; see generally EPA Mot. (failing to raise issue of exhaustion); EPA Mem. (same).

The only issue before the Court is whether EPA’s decision to withhold certain documents, in

whole or in part, was appropriate.

Specifically, EPA has withheld documents pursuant to FOIA Exemptions 5 and 6, and

PEER argues that EPA has failed to meet its burden of proof that information has been properly

withheld under those provisions. Because of inadequacies with EPA’s Vaughn indices, the Court

will deny EPA’s motion for summary judgment with regard to the deliberative process privilege.

The Court will grant EPA’s motion for summary judgment for certain withholdings pursuant to

the attorney-client privilege, but deny the motion for documents, including all communications

that do not appear to include an attorney. Finally, the Court will grant summary judgment for

EPA on the single remaining Exemption 6 withholding.

A. Exemption 5

EPA has withheld the vast majority of the records at issue in this case pursuant to FOIA

Exemption 5. Exemption 5 permits 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). This exemption protects documents “normally

privileged in the civil discovery context,” Judicial Watch, Inc. v. U.S. Dep’t of Justice, 365 F.3d

1108, 1113 (D.C. Cir. 2004), such as materials shielded by the attorney-client privilege, the

attorney work-product privilege and “what is sometimes called the ‘deliberative process’

privilege,” U.S. Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8

(2001). In other words, Exemption 5 covers “those documents, and only those documents,

normally privileged in the civil discovery context.” Loving v. U.S. Dep’t of Defense, 550 F.3d

7
32, 37 (D.C. Cir. 2008) (citations omitted). The two Exemption 5 privileges at issue in this case

are the deliberative process privilege and the attorney-client privilege.

1. Threshold Issue

As a threshold issue, Exemption 5 only covers records that are “inter-agency or intra-

agency memorandums or letters.” 5 U.S.C. § 552(b)(5). In other words, the Supreme Court has

stated that, for Exemption 5 to apply to a document, the “source [of the withheld document] must

be a government agency.” Klamath Water Users, 532 U.S. at 8. PEER identified four withheld

records—PRD 634, 926, 956, and 15833—that it argued are not covered by Exemption 5 because

they involve communications with outside consultants to SMMUSD. See PEER Mem. at 22–23.

In response, EPA acknowledged PEER’s argument and stated that the agency “re-examined [the]

four documents,” determined that they were “mistakenly redacted based on the belief that they

were communications with EPA consultants,” and decided to release them in full. See EPA

Reply at 3 n.2; see also 2d Armann Decl. ¶ 7 (describing the release of the four documents that

were mistakenly redacted). PEER has not asserted that any other documents fail to pass over the

Exemption 5 threshold. In light of the parties’ resolution of the threshold issue, there is no

genuine dispute that the remaining documents withheld pursuant to Exemption 5 are intra- or

inter-agency records for the purposes of Section 552(b)(5). Thus, the Court can turn to the

question of whether EPA properly withheld materials under the deliberative process and

attorney-client privileges incorporated by Exemption 5.

3
The Court notes that the parties use both PRD and PROD as prefixes for documents at
issue in this case. The difference is not material, but the Court will use PRD, which both parties
use in their later filings and which corresponds more closely to the document identifiers found in
the Vaughn indices.

8
 2. Deliberative Process

EPA relies on the deliberative process privilege to justify the vast majority of its

withholdings, but PEER makes several arguments challenging that reliance. Because the Court

finds that EPA’s Vaughn indices are inadequate, it cannot reach the question of whether the

material has been properly withheld under the deliberative process privilege. Instead, the Court

will direct EPA to revise its Vaughn indices, taking into account the issues addressed here.

The deliberative process privilege “covers ‘documents reflecting advisory opinions,

recommendations, and deliberations comprising part of a process by which governmental

decisions and policies are formulated.’” Klamath Water Users, 532 U.S. at 8 (quoting NLRB v.

Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)). The privilege is intended “to enhance the

quality of agency decisions by protecting open and frank discussion among those who make

them within the Government.” Id. at 9 (internal citation and quotation marks omitted). The

privilege “rests on the obvious realization that officials will not communicate candidly among

themselves if each remark is a potential item of discovery and front page news.” Id. at 8–9; see

also Dow Jones & Co. v. U.S. Dep’t of Justice, 917 F.2d 571, 573–74 (D.C. Cir. 1990).

For the deliberative process privilege to apply, a court must first determine whether the

exempt document is both predecisional and deliberative. Access Reports v. U.S. Dep’t of Justice,

926 F.2d 1192, 1194 (D.C. Cir. 1991). “A document is predecisional if it is generated ‘before

the adoption of an agency policy.’” McKinley v. FDIC, 744 F. Supp. 2d 128, 138 (D.D.C. 2010)

(quoting Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)).

“A document is deliberative if it ‘reflects the give-and-take of the consultative process,’” id.

(quoting Coastal States, 617 F.2d at 866), “by which the decision itself is made,” Jowett, Inc. v.

U.S. Dep’t of the Navy, 729 F. Supp. 871, 875 (D.D.C. 1989) (quoting Vaughn v. Rosen, 523

9
F.2d 1136, 1144 (D.C. Cir. 1975)). The “key question” in determining whether the material is

deliberative in nature “is whether disclosure of the information would ‘discourage candid

discussion within the agency.’” Access Reports, 926 F.2d at 1195 (quoting Dudman Commc’ns

Corp. v. U.S. Dep’t of Air Force, 815 F.2d 1565, 1567–68 (D.C. Cir. 1987)).

“The need to describe each withheld document when Exemption 5 is at issue is

particularly acute because ‘the deliberative process privilege is so dependent upon the individual

document and the role it plays in the administrative process.’” Animal Legal Def. Fund, Inc. v.

U.S. Dep’t of Air Force, 44 F. Supp. 2d 295, 299 (D.D.C. 1999) (quoting Coastal States, 617

F.2d at 867). Under the deliberative process privilege, “unlike other exemptions where the

agency declaration and Vaughn index may be read in conjunction to provide an adequate

justification for application of an exemption to a class or category of records, to sustain its

burden of showing that records were properly withheld under Exemption 5, an agency must

provide in its declaration and Vaughn index precisely tailored explanations for each withheld

record at issue.” Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 188 (D.D.C. 2013). “The

agency must establish ‘what deliberative process is involved, and the role played by the

documents in issue in the course of that process.’” Senate of P.R. v. U.S. Dep’t of Justice, 823

F.2d 574, 585–86 (D.C. Cir. 1987) (quoting Coastal States, 617 F.2d at 868). “In addition to

explaining the ‘function and significance of the document(s) in the agency’s decisionmaking

process,’ the agency must describe ‘the nature of the decisionmaking authority vested in the

office or person issuing the disputed document(s), and the positions in the chain of command of

the parties to the documents.’” Elec. Frontier Found. v. U.S. Dep’t of Justice, 826 F. Supp. 2d

157, 168 (D.D.C. 2011) (quoting Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C. Cir.

1982)).

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 a. Adequacy of the Vaughn Indices

PEER argues that (1) EPA’s declaration and Vaughn indices are inadequate because they

do not identify specific deliberative decisions or decisionmaking processes, (2) EPA’s

declaration and Vaughn indices are inadequate because they fail to identify the nature of the

author’s decisionmaking authority or the relative positions in the chain of command of the author

and recipients, (3) the Vaughn indices are inadequate because they provide only meaningless

boilerplate descriptions of the claimed harm of disclosure, (4) EPA has failed to justify its

withholding of draft documents, (5) EPA has withheld factual or technical material that is not

deliberative, (6) EPA has withheld material that is post-decisional, and (7) many entries in the

Vaughn indices do not correspond with the redacted documents. See PEER Mem. at 7–24. EPA

responds that PEER’s arguments “are based upon inaccurate, ill-informed, or legally incorrect

conclusions.” EPA Reply at 3. EPA argues that withheld documents do not need to be limited to

a particular decision or policy, that duplicative justifications may be appropriate so long as

factually distinct descriptions are provided, and that EPA has appropriately withheld

deliberations related to factual and technical material. See id. at 3–15.

PEER’s primary argument—that EPA’s Vaughn indices are inadequate because they fail

to tie withheld material to an agency decision or decisionmaking process—alone succeeds in

defeating summary judgment for EPA with respect to the deliberative process privilege. See

PEER Mem. at 7. Several of PEER’s other arguments also stem from this basic idea. Id. at 17

(“A lot of the problem with EPA’s claims about harm stems from the fact that it has not

identified particular actions or decisions or decision-making processes . . . .”). EPA counters that

it has, “where possible, identified the final agency decision associated with the document; but

where this is not possible, an agency must merely establish ‘what deliberative process is

11
involved, and the role played by the documents at issue in the courts of that process.’” EPA

Reply at 9 (citing Coastal States, 617 F.2d at 866).

EPA’s statement of the law is correct. The Supreme Court has explained that “the need

to protect pre-decisional documents does not mean that the existence of the privilege turns on the

ability of an agency to identify a specific decision in connection with which a memorandum is

prepared.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 n.18 (1975). The Court

recognized that some deliberate processes would not ripen into agency decisions, and did not

want to interfere with that process. See id. Instead, an agency may establish what deliberative

process is involved, and the role that the withheld documents played in that process. See

Formaldehyde Inst. v. U.S. Dep’t of Health & Human Servs., 889 F.2d 1118, 1123 (D.C. Cir.

1989).

The problem with EPA’s argument is not its understanding of the law, but the application

of the law to this case. EPA states that each entry in its Vaughn indices “clearly states the

function of each document, the decision at issue, and the ability of the author or the author’s

authority to make the decision.” EPA Reply at 10. As an example, EPA quotes language that

appears in nearly every entry in the Vaughn indices:

At the time of this discussion, the Agency had not acted, and EPA was still
deliberating on the best Agency-wide approach for coordinating its response. The
author does not have decision-making authority with respect to providing the final
response related to PCBs. The withheld information is deliberative because EPA
employees and managers were still internally discussing issues concerning how to
best coordinate the Agency’s response, and were providing advice to the decision
makers.

Id.

As stated above, the requirement that an agency describe all withheld material “when

Exemption 5 is at issue is particularly acute because ‘the deliberative process privilege is so

dependent upon the individual document and the role it plays in the administrative process.’”

12
Animal Legal Def. Fund, 44 F. Supp. 2d at 299 (quoting Coastal States, 617 F.2d at 867). At

the very least, EPA is required to provide the following information for each document at issue:

“(1) the nature of the specific deliberative process involved, (2) the function and significance of

the document in that process, and (3) the nature of the decisionmaking authority vested in the

document’s author and recipient.” Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 189

(D.D.C. 2013) (citing Senate of P.R., 823 F.2d at 585–86; Arthur Andersen, 679 F.2d at 257–58;

Coastal States, 617 F.2d at 867–68). EPA’s Vaughn indices, including the language quoted

above, fail to meet that burden for each of the three requirements identified above.

First, the agency is required to adequately describe the nature of the deliberative process

involved and the function and significance of the document in that process. See Taxation with

Representation Fund v. IRS, 646 F.2d 666, 678 (D.C. Cir. 1981) (requiring an agency to show

the “function and significance of the documents in the agency’s decisionmaking process”);

Coastal States, 617 F.2d at 868 (“[T]he agency has the burden of establishing what deliberative

process is involved . . . .”). Although EPA is correct that it is not required to identify a specific

agency decision, see Sears, 421 U.S. at 151 n.18, it is required to show that the document was

“generated as part of a definable decision-making process.” Gold Anti-Trust Action Comm., Inc.

v. Bd. of Governors of the Fed. Reserve Sys., 762 F. Supp. 2d 123, 135-36 (D.D.C. 2011)

(emphasis added) (citing Petroleum Info. Corp. v. U.S. Dep’t of the Interior, 976 F.2d 1429,

1434 (D.C. Cir. 1992)). EPA has failed to meet this burden with regard to a number of the

documents it has withheld. PRD 954 provides a useful example. See Am. Vaughn Index, vol. 2,

at 13, ECF No. 26-2.4 The full rationale for withholding material in the document states:

4
EPA submitted its amended Vaughn indices as two separate attachments. See Notice of
Filing Amended Vaughn Indices (attaching amended Vaughn indices as ECF Nos. 26-1 and 26-

13
 The withheld redacted email discussion reflects pre decisional deliberations
between EPA employees about EPA’s response to the emerging issue at the
beginning of EPA involvement. At the time of this discussion, the Agency had
not acted, and EPA was still deliberating on the best Agency-wide approach for
coordinating its response. The author does not have decisionmaking authority
with respect to providing the final response related to PCBs. The withheld
information is deliberative because EPA employees and managers were still
internally discussing issues concerning PCBs in the schools and how to best
coordinate the Agency’s response, and were providing advice to the decision
makers. The record reflects analysis, recommendations, and opinions that were
considered as part of the Agency’s decision making process prior to its actions
regarding the school. The emails do not constitute a final Agency action. Release
would discourage open and frank discussions among its staff about the Agency’s
ongoing review of issues related to its response to the PCBs at the school.
Release would also have a chilling effect on agency decision-making processes,
and on the Agency’s ability to have internal discussions and consultations
concerning the school. Furthermore, release would cause public confusion by
disclosing rationales and reasons that were not in fact ultimately the grounds for
EPA’s final actions. The withheld information was not circulated outside the
Agency.

Id. at 13–14.

EPA has helpfully provided separate descriptions and privilege claims for each document

withheld in full or in part, but necessary information is missing from this extended explanation.

Crucially, it is not clear from this description “what deliberative process is involved.” Coastal

States, 617 F.2d at 868. Does EPA believe the deliberative process is “EPA’s response to the

emerging issue?” Am. Vaughn Index, vol. 2, at 14. Or “deliberating on the best Agency-wide

approach for coordinating its response?” Id. Or, discussions “prior to its actions regarding the

school?” Id. The answer is not clear. Nor is it clear that any one of these descriptions is

sufficiently “definable” to allow the Court to determine whether the communications at issue

were predecisional. See Gold Anti-Trust Action Comm., 762 F. Supp. 2d at 135-36.

Furthermore, the repeated language suggests that the withheld communications were considered

2). For clarity, the Court refers to the separate attachments as Volume 1 (ECF No. 26-1) and
Volume 2 (ECF No. 26-2).

14
“prior to [EPA’s] actions regarding the school,” but does not specify what those actions were or

who authorized them. See Am. Vaughn Index, vol. 2, at 14. That context would help the Court

to understand the decisions and decisionmaking processes at issue here.

The explanation provided by EPA’s declarant is no more helpful. Mr. Armann explains

that the withheld materials “pertain to myriad EPA decision-making processes.” Armann Decl.

¶ 23. In fact, the three “categories” of withheld information he describes are just that—broad

subject matter categories—not decisionmaking processes related to agency action. Id.

(describing communications discussing the handing of PCB issues generally in schools,

communications discussing the specific handling of PCB issues related to the SMMUSD, and

emails discussing responses to stakeholders interested or involved in issues related to the Malibu

schools). Although EPA is not required to link each document to a specific action, it must do

more to tie the materials to some definable process. See Nat’l Sec. Counselors, 960 F. Supp. 2d

at 189 (“The individual entries in the CIA’s Vaughn index, however, do not elaborate on the

‘specific deliberative process to which the withheld [document] contributed.’”) (quoting Elec.

Frontier Found., 826 F. Supp. 2d at 168); Trea Senior Citizens League v. U.S. Dep’t of State,

923 F. Supp. 2d 55, 68 (D.D.C. 2013) (“Such a broad and opaque description of the deliberative

process involved does not provide the Court with enough detail about whether these documents

are deliberative and predecisional.”); cf. Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp.

2d 252, 264 (D.D.C. 2004) (“It is not enough to say that the documents relate, in some way, to

‘actions taken or proposed in response to the discovery of anthrax in the mail,’ for if they did not,

the documents would not be before the court at all.” (citations omitted)). Armed only with these

vague descriptions of the deliberative process involved, the Court does not have sufficient detail

15
to determine whether the material withheld in many of the documents at issue is both

deliberative and predecisional. See Trea Senior Citizens League, 923 F. Supp. 2d at 68.

Second, for many documents withheld by EPA, the Vaughn indices fail to describe with

any amount of detail the “function and significance of the document(s) in the agency’s

decisionmaking process.” Arthur Andersen, 679 F.2d at 258 (quoting Taxation with

Representation, 646 F.2d at 678). This context is necessary for the Court to evaluate whether

material is predecisional, because “if documents are not a part of a clear ‘process’ leading to a

final decision on the issue, . . . they are less likely to be properly characterized as predecisional.”

Coastal States, 617 F.2d at 868. The withholding rationale for PRD 954, quoted in full above, is

illustrative on this point as well. See Am. Vaughn Index, vol. 2, at 13–14. The closest the entry

comes to explaining the function and significance of the document is to state that the “record

reflects analysis, recommendations, and opinions that were considered as part of the Agency’s

decision making process.” Id. This language appears to be repeated for every entry in the

Vaughn indices. A general statement of this sort is not sufficient to carry the agency’s burden to

explain the function and significance of a document in the agency’s decisionmaking process.

See Taxation with Representation, 646 F.2d at 678.

Finally, for many of the documents at issue here, EPA’s Vaughn indices and supporting

declarations, taken as a whole, do not adequately describe the “nature of the decisionmaking

authority vested in the office or person issuing the disputed document(s), and the positions in the

chain of command of the parties to the documents.” Arthur Andersen, 679 F.2d at 258 (internal

quotation marks and citation omitted). The D.C. Circuit has instructed that the “identity of the

parties to the memorandum is important” to evaluating the withholding of material pursuant to

the deliberative process privilege, because the relative position of the author and recipient aids

16
the court in determining whether a document is predecisional. Coastal Sates, 617 F.2d at 868.

EPA’s Vaughn indices do generally reveal the author and recipient of each document, but it

appears that every entry simply repeats the boilerplate statement that “the author does not have

decision-making authority with respect to providing the final response related to PCBs.” See,

e.g., Am. Vaughn Index, vol. 1, at 1 (PRD 209), ECF No. 26-1; id. at 1–2 (PRD 211); id. at 3

(PRD 221); see also PEER Mem. at 15; EPA Reply at 10. This vague, repeated statement fails

to describe the “relative positions in the agency’s ‘chain of command’ occupied by the

document’s author and recipient.” Senate of P.R., 823 F.2d at 586 (quoting Arthur Andersen,

679 F.2d at 258).

Conclusory statements that every author does not have decisionmaking authority—

without providing additional context, identifying the authority of the recipient, or tying the

record to a particular decisonmaking process—do not give the Court enough information to

determine whether the deliberative process privilege applies. The repeated assertion, which

raises the question of who at EPA Region 9 does have decision-making authority, is further

undermined by the Vaughn index entries related to EPA Region 9 Regional Administrator, Jared

Blumenfeld. PEER points to the multiple emails that Mr. Blumenfeld sent to subordinates, and

the corresponding Vaughn indices contain the same conclusory statement that the “author does

not have decision-making authority with respect to providing the final response related to PCBs.”

See e.g., Am. Vaughn Index, vol. 1, at 22–23 (PRD 421); id. at 47–48 (PRD 1861); id. (PRD

1871); Am. Vaughn Index, vol. 2, at 55 (PRD 1884); see also PEER Mem. at 16. Surprisingly,

EPA has not responded to this point. Presumably, as head of EPA Region 9, Mr. Blumenfeld

had some decision-making authority, but the Vaughn indices indicate otherwise. In fact, some of

the decisions at issue in this case were made under Mr. Blumenfeld’s signature. See, e.g.,

17
Armann Decl. ¶ 12 (describing EPA’s October 31, 2014 “formal approval to the District

covering certain clean-up activities”); PEER Mem. at 16 (noting that Mr. Blumenfeld signed the

October 31, 2014 letter). Without more information regarding the “the nature of the

decisionmaking authority vested in the document’s author and recipient,” the Court is unable to

determine whether the deliberative process privilege applies to the withheld documents. Nat’l

Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 189 (D.D.C. 2013) (citations omitted).

Because of the inadequacy of the documentation provided by EPA in support of its

deliberative process privilege withholdings, the Court concludes “‘not that the documents are not

exempt as a matter of law, but that the agency has failed to supply’ in its Vaughn submissions

‘the minimal information necessary to make a determination’ concerning applicability of the

deliberative process privilege.” Elec. Frontier Found., 826 F. Supp. 2d at 173 (quoting Coastal

States, 617 F.2d at 861).5 Therefore, the Court will deny summary judgment to EPA on the issue

of its withholding determinations pursuant to the deliberative process privilege.

b. Supplemental Vaughn Indices

The Court has several options for how to proceed now that it has found EPA’s current

Vaughn indices are insufficient for many of the documents withheld in full or in part. Federal

courts have the authority to order agencies to produce any records that have been withheld

improperly. See 5 U.S.C. § 552(a)(4)(B); see also Vaughn v. Rosen, 484 F.2d 820, 824 (D.C.

Cir. 1973) (“If the factual nature of the documents were so clearly established on the record, then

the court would inquire no further and would make the legal ruling as to whether they fit within

5
Because EPA has failed to justify the withholding of many of the documents at issue,
the Court is unable to reach several of PEER’s other arguments, such as whether EPA has
withheld post-decisional material or whether EPA has withheld factual or technical material that
is not deliberative. The Court will, however, provide additional guidance on these issues in light
of EPA’s option to file supplemental Vaughn indices. See infra Part IV.A.2.b.

18
the defined exemption or exemptions.”). If a court finds that an “agency fails to provide a

sufficiently detailed explanation to enable the district court to make a de novo determination of

the agency’s claims of exemption, the district court then has several options, including inspecting

the documents in camera, requesting further affidavits, or allowing the plaintiff discovery.” See

Spirko v. U.S. Postal Serv., 147 F.3d 992, 997 (D.C. Cir. 1998). The D.C. Circuit has also

explained that “a district court should not undertake in camera review of withheld documents as

a substitute for requiring an agency’s explanation of its claimed exemptions.” Id. Therefore, the

Court finds that the best approach is to direct the agency to revise its Vaughn submissions,

addressing the issues noted by the Court.

It may very well be the case that many of the redacted documents are covered by the

deliberative process privilege. Indeed, prior decisions have determined that the privilege protects

from disclosure documents resembling some of the materials at issue here. See, e.g., Access

Reports v. Dep’t of Justice, 926 F.2d 1192, 1196–97 (D.C. Cir. 1991) (protecting memorandum

written to prepare senior agency officials for Congressional testimony); Competitive Enter. Inst.

v. EPA, 12 F. Supp. 3d 100, 120 (D.D.C. 2014) (protecting internal agency communications

discussing “how to communicate with members of Congress . . . and how to prepare for potential

points of debate or discussion [in upcoming congressional testimony]” (citation omitted));

Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 880 F. Supp. 2d 105, 111–12 (D.D.C. 2012)

(protecting email exchanges discussing draft responses to press inquiries); Exxon Corp. v. U.S.

Dep’t of Energy, 585 F. Supp. 690, 698 (D.D.C. 1983) (protecting documents marked as “draft”).

But EPA must do more to show that the withholdings are proper.

PEER argues that EPA fails to demonstrate the harm that each disclosure would cause

and “merely repeats the same boilerplate language” for each withholding, PEER Mem. at 17,

19
instead of providing a “specific and detailed proof” of harm, id. (quoting Mead Data Cent., Inc.

v. U.S. Dep’t of Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977)). Going forward, however, EPA

is not prohibited from relying on repetitive language, as long as the agency describes the nature

of the deliberative process involved and the function and significance of the withheld material in

that process. See Judicial Watch, Inc. v. FDA, 449 F.3d 141, 147 (D.C. Cir. 2006) (explaining

that “categorization and repetition provide efficient vehicles by which a court can review

withholdings” and that “particularity may actually impede court review and undermine the

functions served by a Vaughn index”). PEER connects its objection to EPA’s articulation of the

harm of disclosure to the agency’s failure to identify “particular actions or decisions or decision-

making processes, which makes it impossible to identify the harm that would stem from

revealing the deliberations leading to them.” PEER Mem. at 17. Thus, to the extent EPA’s

supplemental submissions do show “(1) the nature of the specific deliberative process involved,

(2) the function and significance of the document in that process, and (3) the nature of the

decisionmaking authority vested in the document’s author and recipient,” Nat’l Sec. Counselors,

960 F. Supp. at 189 (citations omitted), repetitive language that logically connects disclosure

with the threat of harm may constitute the necessary “specific and detailed proof” of harm.

Mead Data, 566 F.2d at 258. Presumably, clarifying the nature of the deliberative process at

issue in each document will also allow EPA to address PEER’s argument that EPA has withheld

post-decisional documents. See PEER Mem. at 21–23; see also Judicial Watch, Inc. v. U.S.

Postal Serv., 297 F. Supp. 2d 252, 260 (D.D.C. 2004) (“The most basic requirement of the

privilege is that a document be antecedent to the adoption of an agency policy.”).

Although the inadequacy of EPA’s current Vaughn indices prevents the Court from

evaluating the particular documents, the Court briefly addresses the parties’ disagreement over

20
technical data. See PEER Mem. at 18–21; EPA Reply 14–15. Generally, severable and purely

factual material should be disclosed. See Wolfe v. Dep’t of Health & Human Servs., 839 F.2d

768, 774 (D.C. Cir. 1988) (en banc). However, factual information must also be examined “in

light of the polices and goals that underlie the deliberative process privilege” and the “context in

which the documents were used.” Id. at 775; see also Nat’l Wildlife Fed’n v. U.S. Forest Serv.,

861 F.2d 1114, 1119 (9th Cir. 1988) (avoiding a “semantics debate” and focusing on “the

ultimate objective of exemption 5” to protect the deliberative process). Thus, to the extent EPA

establishes that the privilege applies to its withholdings, the privilege may also extend to factual

matter which is used by the agency to develop policy. See, e.g., Reliant Energy Power

Generation, Inc. v. Fed. Energy Regulatory Comm’n, 520 F. Supp. 2d 194, 206 (D.D.C. 2007);

Brannum v. Dominguez, 377 F. Supp. 2d 75, 83 (D.D.C. 2005). But the agency must specify

how the release of the purely technical data, in this particular context, would cause the type of

harm the deliberative process is designed to avoid.

Finally, EPA is reminded that the D.C. Circuit has stated that, “FOIA litigants are entitled

to assume that the agency’s Vaughn index is accurate in every detail” and that “[t]here is no

excuse for submitting a Vaughn index that contains errors, even minor ones.” Schiller v. NLRB,

964 F.2d 1205, 1209 (D.C. Cir. 1992), abrogated on other grounds, Milner v. Dep’t of Navy, 562

U.S. 562 (2011).6

Some of EPA’s current Vaughn index entries do a better job of meeting the agency’s

burden. For example, the rationale for withholding PRD 1986 reads, in relevant part:

6
The Court also notes that some of the fields in EPA’s amended Vaughn indices appear
to be cut off by the edge of the page in certain locations. EPA should ensure that any
supplemental Vaughn indices are easily readable and searchable, even after being converted to
PDF format.

21
 The withheld redacted email discussion reflects pre-decisional deliberations
between EPA employees and managers about EPA’s concerns regarding the
presence of PCBs at Malibu High School/Middle School. The withheld language
is from an e-mail from Tanya Mottley, Office of Pollution Prevention and Toxics,
OCSPP to Region 9 concerning the appropriate response to Cami Winikoff.

At the time of this discussion and the draft email, the Agency had not decided on
its position regarding the PCBs, and EPA was still deliberating on the best
Agency-wide approach for coordinating its response. Here, the draft email was
being circulated for review and comment. The author does not have decision-
making authority with respect to providing the final response related to PCBs.

Am. Vaughn Index, vol. 2, at 81–82 (emphases added). This description does a far better job of

identifying a specific decisionmaking process (deciding how to respond to a request from a

particular individual) and what role the communication at issue played in that process

(circulating a draft response for review and comment).7 Id.

At this time, the Court does not dictate the format of EPA’s supplemental Vaughn

indices. However, if EPA provides supplemental declarations or Vaughn indices, they must

show, at the least: “(1) the nature of the specific deliberative process involved, (2) the function

and significance of the document in that process, and (3) the nature of the decisionmaking

authority vested in the document’s author and recipient.” Nat’l Sec. Counselors v. CIA, 960 F.

Supp. 2d 101, 189 (D.D.C. 2013) (citing Senate of P.R., 823 F.2d at 585–86; Arthur Andersen,

679 F.2d at 257–58; Coastal States, 617 F.2d at 867–68).

7
The Court also notes that this entry includes boilerplate language related to the
purported harm of disclosure. See Am. Vaughn Index, vol. 2, at 82 (“Release would discourage
open and frank discussions . . . related to [EPA’s] response to the PCBs at the school,” “would
also have a chilling effect on agency decision-making processes,” and “would cause public
confusion . . . .”). Although the language is repetitive, it will be read in the context of EPA’s
description of the role the document played in the deliberative process.

22
 3. Attorney-Client Privilege

EPA has withheld material in a much smaller collection of documents pursuant to the

attorney-client privilege. PEER challenges all of EPA’s withholdings under this privilege as

well. To the extent EPA seeks summary judgment related to communications that do not appear

to include an attorney, the motion will be denied. Next the Court turns to a smaller subset of

documents that include an attorney in some portion of the communication. Upon consideration

of EPA’s Vaughn indices, Mr. Armann’s declaration, and the redacted documents presented by

PEER, the Court will grant summary judgment to EPA with regard to four of the documents, but

deny EPA’s motion with regard to the remainder.

Exemption 5 extends to documents protected by the attorney-client privilege, meaning

agencies are not required to disclose privileged material. “The attorney-client privilege protects

confidential communications from clients to their attorneys made for the purpose of securing

legal advice or services,” as well as “communications from attorneys to their clients if the

communications rest on confidential information obtained from the client.” Tax Analysts v. IRS,

117 F.3d 607, 618 (D.C. Cir. 1997) (quotation marks and citations omitted). “In the

governmental context, the ‘client’ may be the agency and the attorney may be an agency

lawyer.” Id. Where an agency lawyer serves in a mixed capacity that involves responsibilities

both within and “outside the lawyer’s sphere,” the agency employee’s communications will only

be protected to the extent that they involve his or her professional, legal capacity. In re Sealed

Case, 737 F.2d 94, 99 (D.C. Cir. 1984). The government bears the burden of proving, through

“detailed and specific information,” that the withheld information falls within the attorney-client

privilege. See Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998). For the

23
government to succeed on a motion for summary judgment, it must marshal its supporting

documentation to prove:

(1) [T]he holder of the privilege is, or sought to be, a client; (2) the person to
whom the communication is made is a member of the bar or his subordinate and,
in connection with the communication at issue, is acting in his or her capacity as a
lawyer; (3) the communication relates to a fact of which the attorney was
informed by his client, outside the presence of strangers, for the purpose of
securing legal advice; and (4) the privilege has been claimed by the client.

Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 841 F. Supp. 2d 142, 153–54 (D.D.C. 2012)

(citing In re Sealed Case, 737 F.2d at 98–99). Furthermore, a “fundamental prerequisite to the

assertion of the privilege” is “confidentiality both at the time of the communication and

maintained since.” Coastal States, 617 F.2d at 863.

EPA has withheld 17 records pursuant to the attorney-client privilege. See EPA

Statement ¶ 16–17; Armann Decl. ¶¶ 30–31; PEER Statement ¶ 6. In its motion for summary

judgment, EPA argued that each of the redacted portions “contained communications between an

EPA attorney and a client office relating to a legal matter, for which the client office sought legal

advice, as well as facts divulged by the client in order to obtain legal counsel.” EPA Mem. at 16.

EPA relies on its declarant, Steven Armann, to support this statement. Id. Mr. Armann declares

that the 17 redacted documents “contain email conversations with [Office of Regional Counsel]

and [Office of General Counsel] attorneys concerning issues related to the handling of PCBs at

the Malibu schools.” Armann Decl. ¶ 30. Mr. Armann describes two records—PRD 834 and

838—in greater detail, but does not provide any additional specific description of the other 15

records. Id. ¶ 31. PEER challenges the withholding of all 17 records, pointing to deficiencies in

EPA’s Vaughn indices and arguing that “the justifications for withholding generally do not meet

the requirements of Exemption 5.” PEER Mem. at 25. PEER identifies and addresses each of

24
the 17 documents that it believes EPA is withholding pursuant to the attorney-client privilege.

Id. at 25–28.8

a. Withheld Records that Do Not Include an Attorney on the Communication

The Court will first turn to records withheld pursuant to the attorney-client privilege that

do not appear to include an attorney on the communication. PEER has identified 11 email

communications withheld under the attorney-client privilege that it argues do not include any

attorney: PRD 595, 597, 1037, 1340, 1346, 1473, 1443,9 1645, 1936, 1948, and 1986. Id.

Following review of the redacted documents and their respective entries in the Vaughn indices,

the Court finds that one of the records—PRD 1645—does, in fact, appear to at least copy an

attorney on the last email in the chain. See PEER Mot. Ex. 103, ECF No. 20-102. The Court

agrees, however, that the remaining ten records do not include an attorney. PRD 595 provides a

particularly clear example. The relevant entry in the Vaughn index refers to “legal advice

provided by an attorney, Ivan Lieben, to his EPA program clients,” see Am. Vaughn Index,

vol. 1, at 34, but the redacted email chain itself contains no reference to Mr. Lieben, including in

any of the “To:” or “From:” fields. See PEER Mot. Ex. 100, ECF No. 20-99. Following the

Court’s review of the ten emails in this category, none appear to include an attorney as either the

author or recipient of the communication.

It goes without saying that the attorney-client privilege only covers “confidential

communications between an attorney and his client.” Mead Data Cent., Inc. v. U.S. Dep’t of Air

8
PEER has identified the following records that it believes EPA has withheld pursuant to
the attorney-client privilege: PRD 538, 595, 597, 834, 838, 935, 1037, 1340, 1346, 1438, 1443,
1473, 1575, 1645, 1936, 1948, and 1986. See PEER Mem. at 25–28. EPA has not provided its
own list of the 17 records withheld pursuant to the attorney-client privilege nor has it objected to
PEER’s list.
9
The amended Vaughn indices appear to remove the reference to attorney-client privilege
in the entry for PRD 1443. See Am. Vaughn Index, vol. 2, at 59–60.

25
Force, 566 F.2d 242, 260 (D.C. Cir. 1977) (emphasis added). The government bears the burden

to prove that the “person to whom the communication is made is a member of the bar or his

subordinate and, in connection with the communication at issue, is acting in his or her capacity

as a lawyer.” Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 841 F. Supp. 2d 142, 154

(D.D.C. 2012) (citing In re Sealed Case, 737 F.2d at 98–99).

Here, EPA relies only on a brief paragraph found in Mr. Armann’s Declaration that refers

to the 17 records, but identifies and describes only two. See Armann Decl. ¶¶ 30–31. The

entries in the Vaughn indices appear to be incorrect (as in the case of PRD 595). PEER has

provided the redacted records, which appear to show that no attorney was included on these

documents. See PEER Mem. at 25–28. In light of this evidence, EPA has failed to carry its

burden to show that the withheld communications were made to a member of the bar, acting in

his or her capacity as a lawyer. See Judicial Watch, Inc., 841 F. Supp. 2d at 154. For this

reason, the Court will deny EPA’s motion for summary judgment to the extent that it seeks a

ruling that information has been appropriately withheld from PRD 595, 597, 1037, 1340, 1346,

1473, 1443, 1936, 1948, and 1986 on the basis of the attorney client privilege.

Where the agency’s description of the records fails to establish the elements of the

claimed privilege, “the district court has the discretion to order disclosure or to afford the agency

an additional opportunity to fully discharge its burden.” Id. at 155. Given the apparent problems

with the Vaughn indices and the fact that it is not entirely clear that the parties are discussing the

same documents, the Court believes affording EPA another opportunity is the most appropriate

outcome. Accordingly, the Court will exercise its discretion to permit EPA a further and final

opportunity to establish the applicability of the attorney-client privilege to these ten records.

26
 b. Withheld Records that Include an Attorney on the Communication

The remaining seven records withheld by EPA pursuant to the attorney-client privilege

appear to include an attorney as either an author or recipient of at least one link in the email

chain: PRD 538, 834, 838, 935, 1438,10 1575, and 1645. PEER objects to these withholdings on

several grounds. The Court will first address the documents that EPA has failed to show are

protected by the attorney-client privilege, before turning to the four documents that EPA has

shown are privileged.

The Court first considers PRD 834 and 838, the only documents explicitly addressed in

Mr. Armann’s declaration. See Armann Decl. ¶ 31. PEER argues that “the actual withheld

documents only contain communications from EPA staff, not from attorneys” and that, although

Mr. Lieben is on the distribution list, “there is no response from him, providing legal advice or

otherwise.” PEER Mem. at 25. EPA’s Vaughn index states that PRD 834 and 838, which are

part of the same chain of emails, include language that “pertains to legal advice provided by an

attorney, Ivan Lieben, to his EPA program clients about how to proceed in regard to questions

related to EPA’s position concerning the activities at the school.” See Vaughn Index at 216–217,

ECF No. 18-2.11 Mr. Armann’s declaration, however, seems to state a different rationale for the

withholding. Mr. Armann declares that the “[l]anguage redacted from [PRD 834 and 838]

contains legal advice provided by an ORC [Office of Regional Counsel] attorney to his EPA

10
The initial Vaughn index entry for PRD 1438 failed to include an explanation of the
attorney-client privilege. See Vaughn Index at 292–93, ECF No. 18-2. The Amended Vaughn
indices corrected this error, and explained EPA’s rationale for withholding material protected by
the attorney-client privilege. See Am. Vaughn Index, vol. 2 at 59.
11
Confusingly, the Court was not able to find any reference to these two documents in
the amended Vaughn indices.

27
clients.”12 See Armann Decl. ¶ 31. The redacted language, however, appears in an email drafted

and sent by Mr. Armann, not an attorney. See id.; see also PEER Mot. Ex. 98, ECF No. 20-97;

PEER Mot. Ex. 99, ECF No. 20-98. In other words, the rationale for withholding the language

seems to be that it encompasses previously provided legal advice even though it was drafted by a

non-lawyer, not that Mr. Armann was providing information for the purposes of seeking legal

counsel. If that is EPA’s argument, the agency has put forth no authority in support of its

position. The Court also notes that each of the document’s redactions are designated as

deliberative process privilege withholdings, further obscuring EPA’s rationale. In light of the

confusion created by EPA’s filings, the Court finds that the agency has not met its burden to

show that these two documents are privileged at this time. See Judicial Watch, Inc., 841 F.

Supp. 2d at 153–54 (citing In re Sealed Case, 737 F.2d at 98–99) (setting forth the standard for

the application of the attorney-client privilege).

Next the Court turns to PRD 1645. PEER argues that EPA withheld this document under

the attorney-client privilege despite the fact that no attorney is included on the communication.

PEER Mem. at 26. In fact, the last email in the chain appears to at least copy Mr. Lieben.

Nevertheless, the Court finds that EPA has failed to show that this document was properly

withheld. EPA’s Vaughn index again states that the “redacted language pertains to legal advice

provided by an attorney, Ivan Lieben, to his EPA program clients.” Vaughn Index at 122–123.

The document includes a series of emails, many of which are redacted in whole or in part.

Crucially, however, only one of the redactions is designed as withheld under the attorney-client

privilege, and all others designations refer to the deliberative process privilege. See PEER Mot.

12
Mr. Armann’s declaration does not make clear whether the ORC attorney he refers to is
also Mr. Lieben.

28
Ex. 103, ECF No. 20-102. The single redaction made under the attorney-client privilege is found

in an email that was sent before Mr. Lieben was included in the communication. See id. Thus,

based on the record before the Court, it seems impossible that the language in question was

communicated to Mr. Lieben for the purpose of seeking legal counsel. See Judicial Watch, Inc.,

841 F. Supp. 2d at 153–54. Although the Court will deny EPA’s motion for summary judgment

with regard to these documents, for the reasons previously explained, see supra Part IV.A.3.a,

the Court will exercise its discretion to permit EPA a further and final opportunity to establish

the applicability of the attorney-client privilege to PRD 834, 838, and 1645.

The Court is convinced, however, that EPA properly withheld the remaining four

documents—PRD 538, 935, 1438, and 1575—and thus grants summary judgment for EPA on

that issue. PEER makes a range of arguments in opposition to these withholdings.

For instance, PEER objects to the withholding of PRD 538 because “the email chain

contains only an email from Steve Armann, a program person, to Mr. Lieben,” an attorney.

PEER Mem. at 26. PEER’s argument is misplaced. The application of the attorney-client

privilege does not turn on a formalistic rule requiring the attorney to respond to a client with

legal advice in the same series of communication. The privilege protects “confidential

communications between an attorney and his client relating to a legal matter for which the client

has sought professional advice,” Mead Data, 566 F.2d at 252, based on the rationale that

lawyers can only provide effective advocacy and advice when they are “fully informed by the

client.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Although PEER seems to object

to the withholding of email chains where an attorney is only a recipient, it has provided no

authority to support that position. While it is clear that the privilege may also protect an

attorney’s communication to a client, the privilege “principally applies to facts divulged by a

29
client to his attorney.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 384 F. Supp. 2d

100, 114 (D.D.C. 2005). PEER appears to acknowledge this point when it argues that:

[A]lthough it is possible for a communication from the client to the attorney to be
privileged, this would only be the case if the communication seeks legal advice
and if it contains “private information concerning the agency.” EPA has provided
no information which could demonstrate that the withheld material meets either of
these requirements.

Peer Mem. at 24–25 (citations omitted).

In fact, EPA has provided evidence, by declaration and in its Vaughn index, that these

withholdings meet those requirements. The Vaughn indices contain an entry for each of the

remaining four documents that briefly describes the contents of the record, and states that

“redacted language pertains to legal advice provided by an attorney.” See, e.g., Am. Vaughn

Index, vol. 1, at 34–35 (stating, with regard to PRD 538, that the “redacted language pertains to

legal advice provided by an attorney, Ivan Lieben, to his EPA program clients about how to

proceed in regard to a request for information and documents from a member of the public

. . . .”). EPA’s declarant has also stated that the “redacted material in these records was kept

confidential and not transmitted to third parties.” Armann Decl. ¶ 31. The D.C. Circuit has held

that confidentiality should be inferred between an attorney and a client when the

communications suggest that “the government is dealing with its attorneys as would any private

party seeking advice to protect personal interests.” Coastal States Gas Corp. v. U.S. Dep’t of

Energy, 617 F.2d 854, 863 (D.C. Cir. 1980). That is the case here. Thus, upon consideration of

EPA’s Vaughn indices, Mr. Armann’s declaration, and the redacted documents presented by

PEER, the Court finds that EPA has shown that the attorney-client privilege applies to each of

the four documents described here. PEER also argues that certain records—specifically PRD

935 and 1575—include neutral, objective analyses of agency regulations and thus are not

protected by the attorney-client privilege. See PEER Mem. at 27. It is true that the D.C. Circuit

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has stated that “neutral, objective analyses of agency regulations” are not protected by the

privilege. Coastal States, 617 F.2d at 863. Subsequent decisions from the D.C. Circuit have

emphasized, however, that the reason for that rule is to ensure the openness of an otherwise

hidden body of “private law,” where a government counsel “rendering [a] legal opinion in effect

is making law.” Tax Analysts v. IRS, 117 F.3d 607, 619 (D.C. Cir. 1997) (interpreting Coastal

States). In other words, it “is this [law-making] quality, not the objective character of the legal

analyses in the documents” that is significant. Id. After considering these issues, the court

concluded that it would be inappropriate for Exemption 5 and the attorney-client privilege to “be

used to protect this growing body of agency law from disclosure to the public.” Id.

That is simply not the case here. The two documents at issue contain “explanations of

certain Agency policies” (PRD 1575), and concern “legal interpretation of EPA regulations”

(PRD 935), but they are not “law-making” or authoritative, nor do they contribute to a body of

“secret law.” The facts being provided, and the legal advice sought, appear to relate to internal

decisionmaking regarding PCB cleanup at Malibu (PRD 935) and general policies with regard to

PCBs in schools (PRD 1575), not an authoritative statement of “working law.” See Elec.

Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 10 (D.C. Cir. 2014) (“The OLC Opinion

does not provide an authoritative statement of the FBI’s policy. It merely examines policy

options available to the FBI. Therefore, the OLC Opinion is not the ‘working law’ of the FBI.”).

Thus, the Court finds that EPA has met its burden of establishing the essential elements

of the attorney-client privilege for these four documents. See In re Sealed Case, 737 F.2d at 98–

99. Accordingly, the Court grants summary judgment with respect to EPA’s withholding of

PRD 538, 935, 1438, and 1575 based on Exemption 5 and the attorney-client privilege.

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 B. Segregable Factual Material

The next issue that the Court must address is segregability. FOIA requires that “[a]ny

reasonably segregable portion of a record . . . be provided to any person requesting such record

after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). Under FOIA, “non-exempt

portions of a document must be disclosed unless they are inextricably intertwined with exempt

portions.” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).

An agency is not, however, required to segregate non-exempt material if “the excision of exempt

information would impose significant costs on the agency and produce an edited document with

little informational value.” Neufeld v. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981), overruled on

other grounds by Church of Scientology of California v. IRS, 792 F.2d 153 (D.C. Cir. 1986).

The agency is “entitled to a presumption that [it] complied with the obligation to disclose

reasonably segregable material,” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013), but that does

not excuse the agency from carrying its evidentiary burden to fully explain its decisions on

segregability. See Army Times Pub. Co. v. U.S. Dep’t of Air Force, 998 F.2d 1067, 1068 (D.C.

Cir. 1993).

The adequacy of an agency’s Vaughn index is a crucial factor when a district Court

undertakes a segregability analysis. See, e.g., Loving v. U.S. Dep’t of Defense, 550 F.3d 32, 41

(D.C. Cir. 2008) (stating that “the description of the document set forth in the Vaughn index and

the agency’s declaration that it released all segregable material” are “sufficient for [the

segregability] determination”); Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776

(D.C. Cir. 2002) (upholding agency’s segregation efforts based on “comprehensive Vaughn

index” and “the affidavits of [agency officials]”). Here, EPA argues that it is impossible to

further segregate and release purely factual material from withheld documents without disclosing

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deliberative communications. See EPA Mem. at 16; Armann Decl. ¶ 32; EPA Reply at 18.

However, in light of the problems with EPA’s Vaughn index identified above, the Court

concludes that, at this time, EPA’s segregability efforts do not meet the standard articulated in

Loving and Johnson.

C. Exemption 6

Under Exemption 6, an agency may withhold “personnel and medical files and similar

files” when the disclosure of such information “would constitute a clearly unwarranted invasion

of personal privacy.” 5 U.S.C. § 552(b)(6). The Supreme Court has interpreted the term

“similar files” broadly so as “to cover detailed Government records on an individual which can

be identified as applying to that individual.” U.S. Dep’t of State v. Wash. Post Co., 456 U.S.

595, 602 (1982) (internal quotation mark omitted) (quoting H.R. Rep. No. 1497, at 11 (1966)).

Therefore, not only does the exemption protect files, “but also bits of personal information, such

as names and addresses, the release of which would ‘create a palpable threat to privacy.’” Prison

Legal News v. Samuels, 787 F.3d 1142, 1147 (D.C. Cir. 2015) (brackets and internal quotation

mark omitted) (quoting Judicial Watch, Inc. v. FDA, 449 F.3d 141, 152 (D.C. Cir. 2006)). “The

information in the file ‘need not be intimate’ for the file to satisfy the standard, and the threshold

for determining whether information applies to a particular individual is minimal.” Milton v.

U.S. Dep’t of Justice, 783 F. Supp. 2d 55, 58 (D.D.C. 2011) (quoting N.Y. Times Co. v. Nat’l

Aeronautics & Space Admin., 920 F.2d 1002, 1006 (D.C. Cir. 1990)).

Once this threshold determination is met, a court must next ask whether disclosure would

compromise a “substantial” privacy interest, since FOIA requires the release of information “[i]f

no significant privacy interest is implicated.” Multi Ag Media LLC v. U.S. Dep’t of Agric., 515

F.3d 1224, 1229 (D.C. Cir. 2008) (alteration in original) (internal quotation marks omitted)

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(quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989)). This

standard, however, “means less than it might seem,” as a substantial privacy interest is “anything

greater than a de minimis privacy interest.” Id. at 1229–30. If a substantial privacy interest

exists, a court next tests whether release of such information would constitute a “clearly

unwarranted invasion of personal privacy,” Wash. Post Co. v. U.S. Dep’t of Health & Human

Servs., 690 F.2d 252, 260 (D.C. Cir. 1982) (internal quotation marks omitted) (quoting 5 U.S.C.

§ 552(b)(6)), by balancing “the privacy interest that would be compromised by disclosure against

any public interest in the requested information,” Multi Ag Media, 515 F.3d at 1228. “[T]he only

relevant public interest in the FOIA balancing analysis [is] the extent to which disclosure of the

information sought would ‘she[d] light on an agency’s performance of its statutory duties’ or

otherwise let citizens know ‘what their government is up to.’” Lepelletier v. FDIC, 164 F.3d 37,

46 (D.C. Cir. 1999) (internal quotation marks omitted) (alterations in original) (quoting U.S.

Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 497 (1994)). “Information that

‘reveals little or nothing about an agency’s own conduct’ does not further the statutory purpose.”

Beck v. U.S. Dep’t of Justice, 997 F.2d 1489, 1493 (D.C. Cir. 1993) (quoting U.S. Dep’t of

Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)).

PEER has waived its right to challenge all Exemption 6 withholdings, except for a single

document. PEER’s only remaining Exemption 6 challenge relates to document PRD 367, which

it claims “discuss[es] the activities of Hugh Kaufman, an EPA employee involved with the issues

in Malibu.” PEER Statement ¶ 7; see also EPA Statement ¶ 19; Armann Decl. ¶ 33; Pl.’s

Statement of Disputed Material Facts ¶ 19 (“PEER Statement of Disputed Facts”), ECF No. 20.

EPA states that PRD 367 is “an e-mail between two EPA employees [c]oncerning Hugh

Kaufman, an EPA employee involved in actions at Malibu.” EPA Mem. at 17. According to

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EPA, the agency “weighed the substantial privacy interest in [PRD 367] against the minimal or

non-existent public interest in disclosure,” and determined that releasing the record would be an

unwarranted invasion of personal privacy. Id. at 18. In support of its argument, EPA relies on

Mr. Armann’s Declaration, which states that “[r]elease of [PRD 367] would constitute a clearly

unwarranted invasion of personal privacy and would not reveal the operations or activities of the

Federal government in any meaningful way.” Armann Decl. ¶ 33. Similarly, the original

Vaughn indices state that “[t]here is no public interest in the individual’s personal information or

other employees’ personal opinion of the employee.” Vaughn Index at 94–95.13

PEER agrees with EPA’s general characterization of PRD 367 as an email regarding Mr.

Kaufman, see PEER Statement ¶ 7, but it “dispute[s] that PRD 367 is properly withheld under

Exemption 6.” PEER Statement of Disputed Facts ¶ 19. The remainder of PEER’s briefing,

however, including its motion and all supporting filings, never addresses the Exemption 6 issue

again. The Court found no further discussion, argument, or even mention of PRD 367 or

Exemption 6. Undeveloped arguments may be deemed waived. Johnson v. Panetta, 953 F.

Supp. 2d 244, 250 (D.D.C. 2013) (“[I]t is not the obligation of this Court to research and

construct the legal arguments available to the parties. To the contrary, perfunctory and

undeveloped arguments, and arguments that are unsupported by pertinent authority, are deemed

waived.” (internal quotation marks and citations omitted)); see also Schneider v. Kissinger, 412

F.3d 190, 200 n.1 (D.C. Cir. 2005) (“It is not enough merely to mention a possible argument in

the most skeletal way, leaving the court to do counsel’s work.”) (quoting United States v.

13
For clarity, when referring to the original Vaughn indices, the Court will use the page
numbers created by the Court’s electronic filing system.

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Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). Thus, to the extent PEER seeks summary judgment on

the Exemption 6 issue, that portion of the motion is denied.

The Court cannot, however, grant summary judgment in favor of EPA based solely on

PEER’s failure to respond to EPA’s arguments. See Grimes v. District of Columbia, 794 F.3d

83, 95 (D.C. Cir. 2015) (discussing the need for the district court’s independent assessment that

summary judgment is warranted); see also id. at 97 (Griffith, J., concurring) (“[M]otions for

summary judgment may not be conceded for want of opposition. . . . The burden is always on the

movant to demonstrate why summary judgment is warranted. The nonmoving party’s failure to

oppose summary judgment does not shift that burden.”). Instead, the Court must rely on its

“independent scrutiny” of the moving party’s evidence. Id. at 95. On the question of whether

Exemption 6 applies to PRD 367, the Court finds that EPA, relying on the Declaration of Steven

Armann and the accompanying Vaughn indices, has borne its initial burden to demonstrate the

absence of a genuine issue of material fact. EPA has presented evidence showing that PRD 367

implicates Mr. Kaufman’s privacy interest, and that the document reveals nothing of relevance

about the agency’s actions. See Armann Decl. ¶ 33; Vaugh Index at 94–95. Aside from the

unsupported factual conclusion that Exemption 6 does not apply, see PEER Statement of

Disputed Facts ¶ 19, PEER has done nothing to designate “specific facts showing that there is a

genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Therefore, the

Court finds there is no genuine issue of material fact and will grant summary judgment for EPA

on this issue.

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 V. CONCLUSION

For the foregoing reasons, EPA’s Motion for Summary Judgment (ECF No. 18) is

GRANTED IN PART AND DENIED IN PART, and PEER’s Cross-Motion for Summary

Judgment (ECF No. 20) is DENIED. An order consistent with this Memorandum Opinion is

separately and contemporaneously issued.

Dated: September 30, 2016 RUDOLPH CONTRERAS
United States District Judge

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