Miccosukee Tribe of Indians of Florida v. United States

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 15, 2008
No.06-13309
________________________ THOMAS K. KAHN
CLERK

D. C. Docket No. 05-21023-CV-KMM

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,
a federally recognized Indian Tribe,
Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,
ENVIRONMENTAL PROTECTION AGENCY,
JIMMY PALMER, Regional Administrator of the
EPA, Region IV, STEPHEN L. JOHNSON, Acting Administrator of the EPA,

Defendants-Appellees.
________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(February 15, 2008)

Before DUBINA and MARCUS, Circuit Judges, and PROCTOR,* District Judge.

*
The Honorable R. David Proctor, United States District Judge for the Northern District
of Alabama, sitting by designation.
PROCTOR, District Judge:

The Miccosukee Tribe of Indians (the “Tribe”) appeals from an order

granting summary judgment in favor of the United States of America; the

Environmental Protection Agency; Stephen L. Johnson, Administrator of the

EPA; and Jimmy Palmer, Regional Administrator of EPA Region IV (collectively

the “EPA”) with respect to the Tribe’s claims pursuant to the Freedom of

Information Act (“FOIA”). The Tribe contends that the district court erred by

finding the EPA conducted an adequate search in response to the Tribe’s two

FOIA requests (an initial request on February 18, 2004, and a supplemental

request on June 3, 2004) for documents concerning the EPA’s Clean Water Act

review of Florida’s amendments to the Everglades Forever Act (“EFA”) and the

Phosphorus Rule for the Everglades Protection Area. It also challenges the district

court’s determination, after an in camera review, that all withheld documents were

properly designated by the EPA as privileged. After careful review, we affirm in

part and vacate in part, and remand this case to the district court for further

proceedings consistent with this opinion.

I. BACKGROUND

2
 On February 18, 2004, the Tribe submitted a FOIA request to the EPA

seeking documents concerning the EFA. On March 2, 2004, the EPA advised the

Tribe that it would not be able to respond until July 2004 due to the voluminous

nature of the records and the EPA’s policy of processing requests on a “first-in,

first-out basis.”

Shortly thereafter, on June 3, 2004, the Tribe wrote a supplemental letter to

the EPA, requesting documents “concerning the State of Florida’s so-called

default criterion for phosphorus,” a provision of the EFA that the EPA approved

subsequent to the Tribe’s February FOIA request. In this supplemental letter, the

Tribe contested the EPA’s characterization of the initial request as voluminous as

well as the EPA’s need to extend the time until July 2004 for it to respond.

Moreover, the Tribe stated “we [have] no desire to have EPA produce voluminous

publicly released documents that we already have.”

On July 20, 2004, the Tribe traveled to the EPA Regional Office in Atlanta,

Georgia, to review the produced documents deemed by the EPA to be

“voluminous” in nature. Two and one-half boxes containing approximately 3,255

pages of documents were presented to the Tribe for review. The Tribe made no

secret of the fact that it was disappointed by the small number of documents made

available for it to review.

3
 On August 2, 2004, the EPA sent the Tribe a list of the documents not

provided for review that the EPA maintained were exempt from disclosure under

FOIA Exemption 5. See 5 U.S.C. § 552(b)(5). The Tribe avers that the list was

too general and did not allow it to determine whether a privilege was properly

invoked.

On April 13, 2005, the Tribe filed a lawsuit in the Southern District of

Florida against the EPA alleging that the EPA failed to comply with FOIA.1 The

EPA answered on May 13, 2005, maintaining that the Tribe’s complaint failed to

state a claim upon which relief could be granted and that any withheld documents

were properly exempt from disclosure under Section 552(b)(5).

In July 2005, the Tribe sought to depose three EPA Region 4 employees:

Philip Mancusi-Ungaro, EPA Region 4 attorney advisor on Everglades water

quality issues; Daniel Scheidt, the EPA’s senior water quality scientist; and Gail

Mitchell, Deputy Division Director of the Water Management Division. On July

15, 2005, a magistrate judge granted the Tribe’s request by permitting it to depose

the EPA employee identified by the agency as having conducted the search for

1
On September 13, 2004, the Tribe filed an administrative appeal of the EPA’s FOIA
denial, which was still pending at the time the complaint in this case was filed. Pursuant to 5
U.S.C. § 552(a)(6)(A)(ii), the EPA had twenty days to respond to the Tribe’s administrative
appeal.

4
records in this matter. Thus, in lieu of the three employees originally requested by

the Tribe, the EPA produced for deposition on August 11, 2005, Randy Dominy,

Chief of the FOIA and Records Services Section in EPA Region 4. At that time,

Dominy was the chief responsible for supervising FOIA search efforts and

maintaining the records for Region 4.2

On August 31, 2005, shortly after Dominy’s deposition, the EPA produced a

supplemental release of 130 documents (some in whole and others in part)

responsive to the Tribe’s FOIA requests. The EPA stated that upon further review

of the previously withheld 130 documents, it had determined that 12 documents

could be released in full, and 118 more could be released in a redacted form.

After the supplemental document production, the Tribe sought the

deposition of Jennifer Pearce, the EPA FOIA Specialist that Dominy testified had

conducted the search, to gain more insight into the EPA’s FOIA search and

2
The Tribe complains that during the deposition, Dominy revealed that another EPA
employee, Jennifer Pearce, actually conducted the search for records in this matter, and that she
had the most knowledge of the search. Dominy testified that he was not even on board in his
current position when the search was conducted. After these revelations, the Tribe requested that
the EPA make Jennifer Pearce available for deposition consistent with Magistrate Judge Garber’s
ruling. The EPA declined to make Jennifer Pearce available and continued to insist that Randy
Dominy, who had testified that Pearce had the most knowledge of the search and that he was not
even in his position during that time, was the proper deponent.

5
withholdings. The EPA objected to Pearce’s deposition.3 On September 2, 2005,

during another discovery hearing, the district court ordered that the deposition of

Jennifer Pearce be taken regarding her knowledge of the search.

On September 6, 2005, the EPA moved for summary judgment which the

Tribe opposed. Attached to the EPA’s summary judgment motion were affidavits

from Randy Dominy and EPA Region 4 Assistant Regional Administrator Russell

L. Wright, Jr. The motion was also accompanied by a Vaughn4 Index of the

withheld documents. The Dominy Affidavit explained the process by which the

EPA had conducted its search for records responsive to the Tribe’s two FOIA

requests. The Wright Affidavit described the documents which were withheld, in

whole or in part, and explained the basis upon which the records deemed exempt

were withheld.

The EPA’s dispositive motion was filed while discovery was still pending;

therefore, on September 12, 2005, the Tribe requested additional time to file a

cross-motion for summary judgment and its opposition to the EPA’s motion for

summary judgment. Also on September 12, 2006, the EPA filed a motion for

3
The EPA declined to make Pearce available for deposition and continued to insist that
Dominy was the proper deponent, despite Dominy’s testimony that he was not in his position at
the time of the search and that Pearce had the most knowledge about the search.
4
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).

6
relief from the district court’s September 2, 2005 order regarding the deposition of

Jennifer Pearce. On October 3, 2005, the district court granted in part the Tribe’s

request for a continuance, denied the EPA’s motion for relief from the discovery

order, and ordered the EPA to make Jennifer Pearce available for deposition.

On October 7, 2005, the Tribe took Jennifer Pearce’s deposition. Her

testimony revealed that she had coordinated the EPA’s search for records

responsive to the Tribe’s February and June 2004 FOIA requests and had served

as a conduit by forwarding the Tribe’s requests to those EPA employees who

could locate and provide responsive records.

On October 21, 2005, the Tribe filed its opposition to the EPA’s motion for

summary judgment. Attached to its opposition were two affidavits purporting to

raise issues of material fact that would prevent judgment as a matter of law. First,

the Tribe relied on the affidavit of Dr. Terry L. Rice, its hydrology consultant, who

incorporated into his affidavit an e-mail forwarding a scientific article to EPA

Scientist Daniel Scheidt. Because the attached e-mail and article had not been

produced by the EPA in response to the Tribe’s FOIA requests, the Tribe argued

the existence of a genuine issue of material fact concerning the adequacy of the

EPA’s search. Second, the Tribe included with its opposition an affidavit by

Joette Lorion, an environmental consultant to the Tribe and paralegal to the law

7
firm representing the Tribe. Lorion maintained that: (1) certain consultants to the

EPA were, in fact, consultants to the Department of Interior; (2) she had

personally seen documents created by EPA attorney Philip Mancusi-Ungaro that

were neither produced nor listed as withheld; (3) she was led to believe that the

EPA Region 4’s number of responsive documents was far greater than the amount

produced; and (4) when she reviewed the State of Florida’s documents on the

amended EFA and the Phosphorus Rule, the State had produced a room full of

documents as opposed to the several boxes the EPA had produced. Among the

requests included in the Tribe’s opposition were additional discovery as well as an

in camera review by the court of the withheld documents.

When the Tribe re-articulated its concerns regarding the EPA’s FOIA search

and withholdings at the November 17, 2005 pre-trial conference, the district court

permitted the Tribe to take additional discovery prior to resolution of the motions

for summary judgment. Specifically, in its December 6, 2005 Order, the district

court directed the EPA to present the following employees for deposition as to

matters related to the scope and adequacy of the agency’s records search: Philip

Mancusi-Ungaro, EPA Region 4 attorney advisor on water quality issues; Daniel

Scheidt, EPA Region 4 senior water quality scientist; and Cecilia Harper,

environmental scientist who helped with the FOIA search. Moreover, in light of

8
the Tribe’s concerns that the EPA’s Vaughn Index was not specific enough, and

that the EPA was improperly invoking numerous privileges pursuant to Exemption

5 of FOIA, the district court agreed to conduct an in camera review of the

withheld documents. The district court also directed the parties to file

supplemental motions for summary judgment following the completion of the

additional discovery.

On January 9-10, 2006, the Tribe deposed the three EPA employees–

Harper, Scheidt, and Mancusi-Ungaro. During his deposition, Scheidt testified

that he possessed many responsive documents, including e-mail messages, copies

of presentations and personal notes, that he had failed to produce in response to

the Tribe’s FOIA requests. Thereafter, the EPA conducted a supplemental search

of Scheidt’s files only and on February 13, 2006, produced thirty additional

documents responsive to the Tribe’s 2004 FOIA requests.5

5
The thirty additional documents from Scheidt’s files consisted of his personal notes on
documents of public meetings of the State of Florida Environmental Regulation Committee
(ERC), various notes and copies of public ERC presentations on which he made notes, and some
additional e-mail messages in his ERC files. Portions of the e-mails were redacted, but the
remaining documents were provided in their entirety on February 12, 2006. The redacted
portions were subsequently produced to the district court for an in camera review, and the court
found that they had been properly withheld under the deliberative process privilege and the
attorney-client privilege.

9
 On January 17, 2006, following the in camera review, the district court

determined that all of the EPA documents reviewed by the court had been properly

designated as privileged.

On February 21, 2006, both the Tribe and the EPA filed supplemental

summary judgment briefs to the district court addressing new developments

including newly discovered evidence. In its supplemental filing, the EPA

announced that it was withholding three additional documents that it discovered

subsequent to the Scheidt deposition. The EPA also relied on, and filed copies of,

the depositions of Mancusi-Ungaro, Scheidt, and Harper6 and affidavits from

Scheidt and EPA Assistant General Counsel Byron R. Brown. The EPA further

supplemented its motion with a copy of the Tribe’s December 23, 2005 FOIA

request seeking additional records that had been produced since the February 2004

FOIA request.

In its supplemental filing, the Tribe asserted that additional discovery had

revealed factual discrepancies that compelled the denial of the EPA’s motion for

summary judgment. The Tribe also requested that the district court grant summary

judgment in its favor and order the EPA to conduct a new search for responsive

documents to the February 18, 2004 and June 3, 2004 FOIA requests.

6
The depositions of Dominy and Pearce had already been filed.

10
 On March 7, 2006, after an in camera review of the withheld documents

identified as privileged after the Scheidt deposition, the court held those

documents had also been properly withheld.

On April 5, 2006, the district court granted summary judgment to the EPA

holding that the EPA’s FOIA search was adequate. The Tribe filed a timely notice

of appeal. The Tribe appeals from the district court’s April 5, 2006 Final Order

regarding the adequacy of the search, as well as the court’s two previous orders

regarding the exempt status of those documents on the basis of privilege.

II. ISSUES PRESENTED

We must address two questions in this case. First, did the district court

properly grant the EPA’s motion for summary judgment regarding the

reasonableness and adequacy of its search for, and disclosure of, responsive

documents to the Tribe’s February and June 2004 FOIA requests? Second, did the

district court err in sustaining the EPA’s assertion of privileges and consequent

withholding of responsive documents under FOIA Exemption 5?

III. STANDARD OF REVIEW

A. Review of Summary Judgment Regarding Adequacy of FOIA Search

This court reviews a district court’s grant of summary judgment in a FOIA

case de novo, viewing all facts and reasonable inferences in the light most

11
favorable to the non-moving party, and applying the same standard used by the

district court. Office of Capital Collateral Counsel, N. Region of Fla. v. U.S. Dep’t

of Justice, 331 F.3d 799, 802 (11th Cir. 2003); Tullius v. Albright, 240 F.3d 1317,

1319-20 (11th Cir. 2001). “Generally, FOIA cases should be handled on motions

for summary judgment, once the documents in issue are properly identified.”

Miscavige v. I.R.S., 2 F.3d 366, 369 (11th Cir. 1993). Summary judgment is

appropriate if the pleadings, depositions, admissions on file, together with the

affidavits, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). A

factual dispute between the parties will not defeat summary judgment unless it is

both genuine and material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986). A factual dispute is “material” if it would affect the outcome of the suit

under the governing law, and “genuine” if a reasonable trier of fact could return

judgment for the non-moving party. Id.

B. Review of Sustainment of Section 5 Privileges Claim

This Court has held that in reviewing a finding of privilege for exemptions,

we have the duty to determine whether: (1) the district court “had an adequate

factual basis for the decision it rendered;” and (2) the decision reached by the

12
district court was clearly erroneous. Ely v. F.B.I., 781 F.2d 1487, 1490 (11th Cir.

1986) (citations omitted); Currie v. I.R.S., 704 F.2d 523, 528 (11th Cir. 1983).

IV. DISCUSSION

A. Summary Judgment Regarding Adequacy of FOIA Search

The purpose of FOIA “is to encourage public disclosure of information so

citizens may understand what their government is doing.” Office of the Capital

Collateral Counsel, 331 F.3d at 802. Congress enacted FOIA to “enable the

public to have access to government information that is unnecessarily shielded

from public view.” Nadler v. U.S. Dep’t of Justice, 955 F.2d 1479, 1484 (11th

Cir. 1992), overruled on other grounds by U.S. Dep’t Of Justice v. Landano, 508

U.S. 165 (1993).

The Tribe’s arguments on appeal, organized in their logical progression, are

as follows: (1) as a threshold matter, the evidence presented by the EPA was

simply not sufficient to even permit the district court to make a determination on

the merits regarding the adequacy and reasonableness of the search; (2) even if the

EPA’s evidence was sufficient, the trial court improperly resolved disputed issues

of fact by granting summary judgment when it should have denied summary

judgment and conducted an evidentiary hearing to resolve “numerous

inconsistencies in the testimony;” and (3) even if the Rule 56 evidence was

13
sufficient and undisputed, the summary judgment record demonstrates that the

search was not adequate or reasonable to warrant a grant of summary judgment.

Each argument is addressed below in turn.

1. Sufficiency of the Evidence Before the Trial Court

The Tribe first argues that the evidence presented by the EPA was simply

not sufficient for the district court to determine on the merits whether the search

was adequate and reasonable. This is a threshold issue. Setting aside the question

of whether the search was reasonable based upon the Rule 56 record, the court

must determine whether the Rule 56 record before the trial court was adequate for

it to make a summary judgment determination. The Tribe’s argument is two-fold:

(1) the Dominy Affidavit alone is not sufficient evidence of the reasonableness of

the search because he did not participate in it; and (2) the testimony before the trial

court did not contain the requisite level of detail regarding the specifics of the

search to allow the court to ascertain its reasonableness.

a. The EPA’s Rule 56 Evidence

Before the court can address the Tribe’s arguments, however, it is important

to review the principal Rule 56 evidence presented by the EPA regarding its

searches.

14
 i. Affidavit of Randy Dominy and Deposition of
Jennifer Pearce

The EPA’s primary testimony regarding the searches incident to the Tribe’s

February and June FOIA requests arose from two sources. First, the EPA relied on

the affidavit of Randy Dominy, the current Region 4 Chief of the EPA FOIA and

Records Services Division. Dominy, who was the representative designated by the

EPA to demonstrate that the search was adequate in response to the magistrate

judge’s July 15, 2005 discovery order, testified concerning the scope and process

of EPA FOIA searches in general and the February and June FOIA searches in

particular. Second, the EPA proffered the deposition testimony of Region 4

Records Section FOIA specialist Jennifer Pearce, to whom the Tribe’s requests

were routed when they came through the Records Section.

According to Dominy, with respect to the February request, Pearce

contacted Mancusi-Ungaro, an EPA attorney adviser on Everglades water issues,

and Harper, an environmental scientist who had reviewed State of Florida water

quality standards, and asked them to search for records responsive to the Tribe’s

FOIA request and to identify other personnel who would also have responsive

records. Additional EPA Region 4 employees conducted searches of their files,

including Fritz Wagener and Gail Mitchell. Moreover, documents were produced

15
by Jim Keating from EPA Headquarters in Washington, D.C. After a number of

additional personnel were identified as persons who may also have responsive

documents (sixteen in all), those EPA employees were provided with the Tribe’s

February FOIA request and asked to search all “correspondence, electronic

transmissions, draft documents, briefing materials, and other relevant materials in

any hard copy and electronic files to which they had access.” Dominy also

averred that a similar search was performed for the supplemental June FOIA

request.

ii. Cecilia Harper Testimony

Pearce testified that upon receipt of the Tribe’s February FOIA, she

contacted Mancusi-Ungaro. Additionally, Pearce asked Cecilia Harper, an

environmental scientist in the Water Management Division, for names of

personnel who would have responsive records. Pearce began searching all EPA

programs for information about the February FOIA request. Once she found

programs that might have responsive documents, she sent a copy of the February

FOIA request to the EPA employees she thought might have documents and

delivered a copy to a coordinator in each division.

According to Cecilia Harper, she reviewed her e-mails for documents

responsive to the Tribe’s FOIA request and gathered all of her relevant hard copy

16
documents which she had arranged in binders by subject. Harper testified that she

provided to Pearce all responsive e-mails, in both her archives and her electronic

inbox, in addition to all of her hard copy binders.

iii. Daniel Scheidt Testimony

Daniel Scheidt, a senior water quality scientist at the EPA, testified with

respect to the February request that he conducted a similar search of his electronic

and hard copy documents. Scheidt indicated that he read the entire document

request, number-by-number, looked at each numbered request to determine

whether or not he had any documents in his possession that may be responsive,

and if he did have any responsive documents, copied them and produced them.

Scheidt indicated that he did not produce “publicly available documents” because

his understanding was that the Tribe did not seek documents in that category.

However, during his deposition, Scheidt testified that he realized there may have

been some internal EPA notations on certain publicly available documents that

would be responsive to the Tribe’s request because they would not be in the public

domain. Accordingly, after his deposition, Scheidt again reviewed his files and

produced thirty additional documents. While Scheidt could not recall personally

receiving the Tribe’s June FOIA request, he stated in his affidavit that any

17
documents in his possession that were responsive to the June request would have

been produced in response to the February FOIA request.

iv. Phillip Mancusi-Ungaro Testimony

Finally, Mancusi-Ungaro said that he searched his electronic and hard copy

files and produced all documents he believed were responsive. Like Scheidt,

Mancusi-Ungaro did not consider publicly available documents to be responsive.

Having summarized the relevant EPA evidence before the district court on

summary judgment, we now turn to the Tribe’s two arguments that the above-

described evidence was insufficient for the district court to even consider the issue

of reasonableness.

b. Sufficiency of the Dominy Affidavit

The Tribe first contends that the affidavit of Dominy, the representative

designated by the EPA to demonstrate that the search was adequate, is insufficient

evidence by which to judge the search’s reasonableness because he was not the

person who conducted the search and was not even in his position at the time the

search was conducted. It is true that Dominy is the current Region 4 Chief of the

EPA FOIA and Records Services Division. However, it is also undisputed that

Dominy did not personally perform the search regarding the Tribe’s FOIA

requests; Jennifer Pearce was the employee who coordinated those efforts.

18
 The EPA points to at least two other Circuits that have held that the agency

employee who actually performed a search need not be the one to supply an

affidavit or sworn testimony describing the adequacy of the search so long as an

official responsible for supervising the search efforts has provided testimony in

one form or another. See Maynard v. C.I.A., 986 F.2d 547, 560 (1st Cir. 1993)

(holding that affidavits of officials responsible for supervising search efforts are

sufficient to fulfill the personal knowledge requirement of Fed. R. Civ. P. 56(e));

Patterson v. I.R.S., 56 F.3d 832, 840-41 (7th Cir. 1995) (holding that declarant’s

reliance on a standard search form completed by his predecessor was appropriate).

Although this Circuit has not pronounced a rule requiring testimony from the

person who performed the search in order to demonstrate its adequacy under Rule

56, it need not do so in this case. Because the district court below granted

depositions of other agents who actually performed the search, and because those

depositions were submitted in the Rule 56 record, this court need not reach the

issue of whether the Dominy Affidavit, in isolation, would be sufficient to

demonstrate the adequacy of the FOIA search. Here, the Tribe not only deposed

Dominy, but also Pearce who undisputedly participated in the search. As the

district court correctly noted in its summary judgment order in favor of the EPA,

19
whether that affidavit was adequate, in isolation, was irrelevant because “the Court

. . . granted wide latitude to the Plaintiff in conducting additional discovery.”

c. Sufficiency of the Level of Detail in the Testimony

Thus, the court turns to the second layer of the Tribe’s sufficiency

argument—the level of search detail outlined by the testimony as a whole. The

Rule 56 record includes five depositions that were taken in this case. In each of

those depositions, the Tribe questioned the deponent regarding how he or she

conducted a search, which files were reviewed, what search terms were used, how

the documents were produced to Pearce, whether any documents were withheld

from production, who made the decisions about withholding, and other relevant

questions. Pearce testified that she was asked specific questions about the

substance of Dominy’s Affidavit, including who searched for responsive

documents. She corroborated the points in Dominy’s Affidavit regarding the

people and offices that were contacted.

Thus, the Tribe’s singular focus on the Dominy Affidavit is misguided. It is

irrelevant that Dominey failed to aver that “all files likely to contain responsive

materials were searched” and did not detail the exact procedures used by each

individual involved to search for records, including how the records were searched

and the search terms used, the type of search performed, or which files were

20
searched. Although Dominy described only in general terms how the EPA logged

and filtered the request to various employees throughout the agency (i.e.,

Dominy’s office contacted sixteen EPA employees regarding the Tribe’s FOIA

requests, that is only one part of the complete picture. The deposition testimony

from other individuals who actually performed the search fills in any missing

blanks about the specifics of how the search was conducted.

To be sure, the Tribe did not have the opportunity to depose all sixteen

employees involved in the search in order to ask each and every one of them

specific questions about their searches. But that is not the issue here. The Tribe

does not contend on appeal that it was erroneously denied adequate discovery.

Rather, the question is whether the district court needed testimony before it from

each of the sixteen employees that the EPA identified in order to consider the

adequacy of the search – as the Tribe puts it, to have testimony from each

individual involved regarding whether they searched the same kinds of records or

whether some performed one kind of search and others performed a different kind

of search, or even whether all sixteen employees actually searched.7

7
In other words, the Tribe complains that while the testimony provides renditions of how
each of those employees individually searched their files, neither the Dominy Affidavit nor the
Scheidt deposition support the proposition that all of the thirteen other employees who
participated in the search, including Fritz Wagner, Jim Keating, and Gail Mitchell, actually
searched their files, nor does that evidence describe the search method each employee used.

21
 The Tribe maintains that such exacting testimony from each person

involved is called for in light of decisions such as the D.C. Circuit’s opinion in

Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57 (D.C. Cir. 1990), which requires

“reasonable detail, that the search method . . . was reasonably calculated to

uncover all relevant documents.” Oglesby, 920 F.2d at 68. Specifically, Oglesby

held that:

[a] reasonably detailed affidavit, setting forth the search
terms and the type of search performed, and averring that
all files likely to contain responsive materials (if such
records exist) were searched, is necessary to afford a
FOIA requester an opportunity to challenge the adequacy
of the search and to allow the district court to determine
if the search was adequate in order to grant summary
judgment.

Oglesby, 920 F.2d at 68. Later in Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548

(D.C. Cir. 1994), the D.C. Circuit reiterated that “agency affidavits that ‘do not

denote which files were searched, do not reflect any systematic approach to

document location, and do not provide information specific enough to enable [the

requestor] to challenge the procedures utilized’ are insufficient to support

summary judgment.” Steinberg, 23 F.3d at 552.

This Circuit has not imposed the specific requirements set forth in the D.C.

Circuit. Nor has it even come close to adopting a more exacting rule like that

22
suggested by the Tribe here -- a rule that would extend beyond Oglesby and

Steinberg to require not just one reasonably detailed affidavit on behalf of the EPA

setting forth the required details, but testimony from every participant in the search

setting forth terms used, the type of search performed, and averring that all files

likely to contain responsive materials (if such records exist) were searched. This

Circuit has only stated that “the agency must show beyond a material doubt…that

it has conducted a search reasonably calculated to uncover all relevant

documents.” Ray v. U.S. Dep’t of Justice, 908 F.2d 1549, 1558 (11th Cir. 1990).

To pronounce a rule in this Circuit setting forth the Tribe’s requested

extension of the D.C. Circuit rule would place too heavy a burden on an agency

responding to a FOIA request to provide testimony from each individual involved

in the FOIA search. Implicit in the Tribe’s argument is its disapproval of the fact

that the employees involved in the search maintain their files in individual

manners and, hence, went about their searches in individual methods. No one,

however, testified that they held back documents that they thought were

responsive with the exception of the now disputed “publicly available documents”

(addressed infra). Thus, the better course here is to ask whether, based upon this

court’s prior precedent and the plethora of evidence in this case, the Dominy

Affidavit, in conjunction with the other deposition testimony provided, provided

23
sufficient evidence for the trial court to determine whether the EPA “conducted a

search reasonably calculated to uncover all relevant documents.” Ray v. U.S. Dep’t

of Justice, 908 F.2d 1549, 1558 (11th Cir. 1990) (quotations omitted), rev’d on

other grounds, U.S. Dep’t of State v. Ray, 502 U.S. 164 (1991). We answer this

threshold question in the affirmative.

2. Whether Disputed Issues of Fact Preclude Summary Judgment

The Tribe next maintains that even assuming the evidence provided a

sufficient basis upon which the court could judge the reasonableness of the search,

rather than granting summary judgment, the district court should have conducted

an evidentiary hearing to resolve “numerous inconsistencies in the testimony.”

This argument again sets aside the merits question of whether the search was

adequate, and instead challenges the district court’s definition of certain factual

discrepancies as “irrelevant.”8 According to the Tribe, the district court

inappropriately relied on a sister case from its district for the proposition that an

agency is entitled to summary judgment “if no material facts are in dispute and if it

demonstrates ‘that each document that falls within the class requested either has

been produced…or is wholly exempt from the Act’s inspection requirements.’”

8
Notably, with regard to the Tribe’s assertions that there are discrepancies in the record,
the district court concluded that the Tribe engaged in a game of “gotcha” by pointing to
discrepancies that were “clearly irrelevant.”

24
Florida Immigrant Advocacy Ctr. v. Nat’l Sec. Agency, 380 F. Supp. 2d 1332,

1336-37 (S.D. Fla. 2005). Instead, the Tribe believes that, given the number of

relevant disputed facts, the district court should have looked to a different case

from the Southern District of Florida that advocates conducting an evidentiary

hearing to resolve the disputed factual issues. Sun-Sentinel Co. v. U.S. Dep’t of

Homeland Sec., 431 F. Supp. 2d 1258, 1276 (S.D. Fla. 2006) (disputed issues of

material fact made summary judgment in FOIA case inappropriate and the court

must hold an evidentiary hearing to resolve the factual issues).

The Tribe’s argument regarding factual disputes in the Rule 56 record

focuses primarily on alleged inconsistencies between the averments in Dominy’s

Affidavit and the Rule 56 testimony provided by other deponents. In his affidavit,

Dominy claimed that, upon receipt of the Tribe’s February 18, 2004 FOIA request,

his office contacted Mancusi-Ungaro and Harper and asked them to identify

other personnel who might have records responsive to the Tribe’s request. The

Tribe asserts that the district court only considered that portion of the Rule 56

evidence that supported its conclusion that the search was adequate.9 Specifically,

9
For example, the Tribe notes that the district court cited to the Dominy Affidavit for its
conclusion that after additional EPA personnel were identified, they searched “correspondence,
electronic transmissions, draft documents, briefing materials, and other relevant materials in any
hard copies and electronic files to which they had access.” Nonetheless, the cited paragraph from
Dominy’s Affidavit states only that certain personnel were “requested” to search for records, and
it was merely his “belief and understanding” that they “searched for responsive records.”

25
the Tribe points to three categories of disputed evidence that it believes should

have prevented the grant of summary judgment: (1) evidence from Scheidt that he

did not recall responding to the June request; (2) deposition testimony that

contradicts Dominy’s Affidavit that responsive documents were produced, and

demonstrates that certain documents were not produced even though they were

responsive; and (3) evidence regarding who should have been contacted for

records and who actually coordinated the search. The court will address each

argument in turn.

a. Evidence that Scheidt Did Not Recall Responding to the
June Request

The Tribe points again and again to evidence that at least one employee on

Dominy’s list - Dan Scheidt, the lead scientist on the phosphorus criterion -

appears to have been overlooked with respect to the search in response to the June

3rd FOIA request concerning the default phosphorus criterion. Dominy claimed

that each person listed in his Affidavit received a copy of the February 18th FOIA

request and was again contacted about the Tribe’s June 3rd FOIA request.

Dominy also stated that all employees working on the EPA’s phosphorus criterion

- presumably including Scheidt - searched for responsive records. However,

Moreover, the cited paragraph appears to relate only to the June FOIA request.

26
Scheidt testified that he did not recall providing documents responsive to the

Tribe’s June 3rd FOIA request which targeted documents concerning his area of

expertise.

The district court’s order recognized that “Scheidt [] indicated he did not

recall responding to Plaintiff’s second request.” The Tribe contends that whether

Scheidt received the June 3rd request, and whether he ever responded it to it, are

issues of material fact that are relevant to the adequacy of the search and that the

district court should have ordered a new search so that Scheidt could determine

whether he had additional documents responsive to Plaintiff’s requests. The EPA

maintains that the Tribe is simply mistaken and that there is not an issue of

material fact regarding whether Scheidt was ever sent the June 2004 FOIA request

given his testimony that no new documents would have been produced after the

February FOIA.

The undisputed testimony indicates the following: (1) Scheidt testified at his

deposition that he had other documents responsive to the Tribe’s FOIA requests

that he did not produce because he assumed the Tribe had them; (2) Scheidt

further testified that he excluded from his disclosure scientific publications,

agency reports, journal articles and Florida Environmental Regulation

Commission (“ERC”) testimony; (3) after the deposition, the EPA provided to the

27
Tribe more than 30 documents from Scheidt; and (4) Scheidt later provided a

sworn Affidavit stating that any documents in his possession that would have been

responsive to the June 2004 FOIA request were also responsive to the February

2004 FOIA request that he did receive and to which he did respond.10 Even now,

after having received additional documents from Scheidt, the Tribe still believes

that the EPA’s search was not adequate to uncover all Scheidt’s documents based

solely on the fact that he did not recall seeing or responding to the Tribe’s June

3rd request.

Scheidt has admitted that he did not recall the request specifically, but he

has also explained his efforts to locate responsive documents and produce them

after the time that the request was made. Even if he did not lay eyes on the request

in written form, his post-request search would have covered any documents

responsive thereto. Therefore, his admission does not create a disputed fact. The

10
The EPA argues that the truth of Scheidt’s assertion is corroborated by Harper’s
testimony that she found no more documents responsive to the June 2004 FOIA request. The
EPA further avers that Harper’s testimony that she remembered delivering only her own
documents to Pearce, despite the fact that she was the coordinator for the water division, does not
undercut the fact that Scheidt said that he delivered his own documents to Pearce. Pearce agreed
that she received Scheidt’s documents because she said that the majority of the responsive
documents came from the Water Division where Scheidt worked. Harper, who had never been
deposed before, could not remember several facts after the elapse of one and one-half to two
years between the Tribe’s FOIA and her deposition, but she did remember that she had delivered
all the responsive documents in her possession to Pearce.

28
undisputed evidence indicates that Scheidt was deposed and asked questions about

what documents he had and what he did to search for documents that would have

satisfied both requests. We find that the district court did not err in finding that

Scheidt’s testimony was undisputed and that his testimony did not create a

material issue of fact regarding his search.

b. Deposition Testimony Indicating that Specific Responsive
Documents Were Not Produced

Next the Tribe points to several alleged inconsistencies between what the

deponents thought they had provided and what was actually provided. For

example, Scheidt testified that he had produced documents responsive to the

Tribe’s FOIA request concerning effects on the Tribe as a downstream user. The

Tribe believes, however, that based upon a review of the document list and

Vaughn Index, those documents were not provided. Additionally, Scheidt

admitted that he failed to produce notes of ERC meetings—notes that the Tribe

believes were clearly requested by the February 18th request and should have been

produced. Finally, Mancusi-Ungaro admitted at his deposition that the EPA had

failed to produce a document he had faxed to the State of Florida that was

29
responsive to the Tribe’s FOIA requests. Mancusi-Ungaro also said that he could

not recall whether he sent other documents to the State of Florida that would have

been responsive to the FOIA requests. Based principally on these examples, the

Tribe points to inconsistencies between what the EPA averred was provided and

what the testimony shows should have been provided but was not.

The EPA does not offer a specific response to each of the documents

identified by the Tribe above, opting instead to argue generally that an agency is

not required to prove that every single responsive document was produced to

demonstrate the adequacy of the search. See Nation Magazine, Washington

Bureau v. U.S. Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995).

Accordingly, the EPA maintains that a search is not presumed unreasonable

simply because an agency failed to produce all relevant documents. Nation

Magazine, 71 F.3d at 892 n.7.

c. Evidence Regarding Other Employees Who Had Records
Who Were Not Contacted and Who Actually Coordinated
the Search

The Tribe next highlights what it considers to be contradictory evidence

regarding how the search was conducted. First, the Tribe notes that even though

Dominy lists Richard Harvey (Director of the EPA’s South Florida office in West

Palm Beach and an employee of Region 4 Water Division) as a person who

30
received both requests, there is no documented proof in the record that Harvey

ever received or responded to the requests. Mancusi-Ungaro testified that he does

not recall giving Harvey’s name to Pearce, and Harper said she did not coordinate

with Harvey to gather documents. Nevertheless, despite the Tribe’s arguments,

testimony from Pearce indicates that she gave Harvey the FOIA requests. Further,

in a search of this magnitude, the lack of witness recollection of specific contact

with Harvey does not create a material disputed fact.11

The Tribe also accuses Dominy and Pearce of misrepresenting that

Mancusi-Ungaro had a more active role in coordinating the search, while

Mancusi-Ungaro testified that he merely searched for documents in his possession,

but had no role in contacting employees or conducting the search. Moreover, the

Tribe asserts that the EPA’s claim (through the testimony of Pearce) that Harper

was the “coordinator” chosen to filter the FOIA requests and gather documents

from other employees was contradicted by Harper’s own testimony that, with

regard to the February request, she delivered only her own documents to Pearce.

11
The Tribe also suggests that because Jimmy Palmer (the Regional Administrator of the
EPA), and Bill Walker and Bob Kadlec (identified as the EPA consultants in the privilege log),
should have been on Dominy’s list but were not, we must conclude that they did not provide
responsive documents. The evidence demonstrates, however, that even if Walker and Kadlec
were not contacted directly for documents, any responsive documents in their possession would
have been produced by others on their behalf. Scheidt, who was the project manager for Walker
and Kadlec’s consultation contracts, established that he had produced all documents they had
sent him on the requested FOIA issues.

31
Indeed, contrary to both the Dominy Affidavit and Pearce deposition, other

evidence in the record suggests that, as to the June request, Harper did not provide

names or act as a coordinator.

Again, the EPA does not specifically respond to any of the Tribe’s

assertions or the supporting evidence, averring only generally that “the Tribe

repeatedly mischaracterizes Pearce’s role as having searched for responsive

records when, in fact, Pearce coordinated the search for responsive records.” The

EPA’s failure to address these issues head on is not only troubling, but fatal to its

position on this appeal. The evidence to which the Tribe points goes beyond

suggesting that the EPA failed to produce a stray document or two. Rather, the

inconsistencies in the testimony indicate that the process employed by the EPA

was defective, thereby rendering its FOIA search and response inadequate.

Accordingly, we find there are material issues of fact regarding whether those

conducting the search reasonably made an effort to contact all employees who had

responsive records and whether the search efforts were properly coordinated. For

this reason alone, the district court’s grant of summary judgment in favor of the

EPA on the adequacy of the search was inappropriate.

3. Whether the Undisputed Facts Demonstrate that the EPA’s
Search Was Adequate and Reasonable

32
 In the final alternative, the Tribe maintains that even if the evidence before

the district court was sufficient to determine the adequacy of the search and was

undisputed, it did not demonstrate that the search was adequate and reasonable to

warrant the granting of summary judgment. Specifically, the Tribe takes issue

with the EPA’s explanations for: (1) not producing any documents in the “publicly

available” category; and (2) belatedly producing 160 documents as a supplemental

FOIA response.

a. Whether the EPA’s Exclusion of Voluminous Publicly
Available Documents Was Reasonable

The main - and perhaps best - argument presented by the Tribe is that the

EPA inappropriately excluded from its FOIA production all documents they

deemed to be “publicly available,” and that the district court improperly found the

evidence on this issue to be undisputed and the exclusion to be reasonable. We

have reviewed this evidence de novo, and find that a material issue of fact exists

with respect to that exclusion of documents.

The undisputed evidence indicates the following. When the EPA began the

process of responding to the Tribe’s February FOIA request, both Scheidt and

Mancusi-Ungaro told Pearce that the responsive documents might be voluminous.

In light of this suggestion and the sheer number of EPA sectors and employees

33
initially contacted about the request, the EPA wrote to the Tribe on March 2, 2004

requesting additional time until July 2004 to respond. In its June 2004 reply to the

EPA, the Tribe stated: “we [do] not agree the request [is] voluminous . . . and . . .

we [have] no desire to have EPA produce voluminous publicly released documents

which we already have.” (emphasis added).

The EPA “interpreted”12 the Tribe’s desire not to receive voluminous

publicly released documents it already had to be license for the EPA to exclude all

publicly available documents in addition to all duplicate documents. EPA

witnesses alluded to an e-mail issued by Pearce to those who had been asked to

produce documents indicating that certain voluminous and publicly available

documents should be excluded from their production.13 The Tribe’s February 18th

12
As the Tribe notes in its reply brief on appeal, the EPA’s appellee brief conveniently
omitted language from the Tribe’s June 2004 letter, making it appear as if the purported agreed-
upon exclusion was broader than actually stated. The EPA selectively quotes the Tribe as stating
it had “no desire to have EPA produce voluminous publicly released documents.” This
characterization by the EPA ignores the context of the statement, which was the result of a
conversation with EPA representatives: “We spoke to EPA representatives to clarify our
request…” The EPA also excludes the qualifying words at the end of the sentence limiting the
permitted exclusion to “documents which we already have.”
13
The elusive Pearce e-mail allegedly instructing the exclusion of all publicly available
documents was never produced by the EPA nor mentioned in Pearce’s deposition. However, both
Scheidt and Mancusi-Ungaro testified that an e-mail from Pearce caused them not to produce
broad categories of documents responsive to the Tribe’s February 18th FOIA Request. Scheidt
testified “but there again, there’s certain things I did not produce based on guidance I got from
Jennifer by e-mail.” Based on the suggestion in Pearce’s e-mail, Scheidt excluded scientific
publications, agency reports, journal articles, and ERC testimony. Mancusi-Ungaro also testified
that Pearce’s e-mail affected his production of documents, even though he admitted that the

34
FOIA request on its face seeks “any and all records,” and even the Tribe’s June

3rd FOIA request, which contains the operative statement about “voluminous”

publicly available documents, also asks for “all records.”

Nevertheless, the district court concluded that “it is entirely reasonable to

exclude documents available to the public from a FOIA request, especially where

the Plaintiff specifically exclaims that it has ‘no desire to have EPA produce

voluminous publicly released documents.’” In essence, the court drew its own

conclusion about what the Tribe could reasonably request – it saw “no reason why

it should require the EPA to produce documents that are available to the general

public.”

Pearce testified that upon receipt of the Tribe’s February FOIA, she

contacted Mancusi-Ungaro. Additionally, Pearce asked Cecelia Harper, an

environmental scientist in the Water Management Division for names of personnel

who would have responsive records. Pearce began searching all EPA programs

for information about the February FOIA request. Once she found programs that

might have responsive documents, she sent a copy of the February FOIA request

actual FOIA request did not permit exclusion of State ERC documents, which he failed to
produce.

35
to the EPA employees she thought might have documents and delivered a copy to

a coordinator in each division.

The fallacy of the EPA’s logic, however, is that it focuses on what the Tribe

could have, or should have, reasonably requested – not on what the EPA should

have reasonably found or produced in response to what was actually sought by the

FOIA requests as written. The question of whether the Tribe’s FOIA requests

were reasonable as written was not before the trial court. Rather, the focus should

have been on whether the EPA’s interpretation of, and efforts to fulfill, those

requests were reasonable and adequate. Here the undisputed evidence –

highlighted by the EPA’s own omission of critical language from the Tribe’s

request – demonstrates that the EPA’s self-imposed limitations on its search were

unreasonable and inaccurately depicted what the Tribe really sought. Indeed, the

conclusion that it is entirely reasonable to exclude documents available to the

public from a FOIA request comes dangerously close to taking on a legislative

role – i.e., establishing a new FOIA wholesale exemption for all public, or

publicly available, documents that does not exist in the statute as one of the nine

exemptions legislated by Congress. Moreover, the conclusion that it seems

reasonable to exclude publicly available documents when responding to a FOIA

36
request begs the question. Unless a document falls into one of the nine recognized

exemptions from disclosure under FOIA, it is due to be disclosed.14

Additional evidence before the district court also indicated that the EPA’s

limited “interpretation” of the June FOIA request was unreasonable in the Rule 56

record, but that evidence was not mentioned in the district court’s summary

judgment opinion. Apparently, after the June request was issued, the Tribe

clarified its earlier instruction not to produce voluminous publicly available

documents the Tribe already possessed. In fact, the Tribe and EPA agreed that

only certain specifically-identified documents should be excluded as part of that

category. Joette Lorion, the Tribal representative who actually participated in the

conversation with the EPA (at that agency’s request) regarding which documents

could be excluded from production, filed an Affidavit in the district court stating

that she never told the EPA it could exclude all publicly released or available

documents. Lorion claimed that the only documents the Tribe agreed that the EPA

did not have to produce were “voluminous” documents publicly available on the

EPA web site, such as the EPA’s Water Quality Standards Handbook. Lorion

14
As an aside, we question whether, in fact, most public agency documents are publicly
available in one form or another. That alone would not excuse disclosure of the document.
More importantly, Congress has not established such a blanket exclusion for documents in the
public arena, and perhaps rightly so given the illogic of such an exclusion.

37
specifically disputed the testimony of EPA employees that suggested the Tribe’s

FOIA request did not seek State of Florida documents in the possession of the

EPA. Lorion also disputed that the scientific documents the EPA admittedly failed

to provide were “voluminous,” were publicly available, or could be found on the

EPA or State of Florida web sites.15

The district court’s summary judgment analysis does not even mention the

Lorion Affidavit or her denial that the Tribe told the EPA that it could exclude

broad categories of documents. Moreover, the EPA’s brief to this Court does not

directly address the district court’s omission of the Lorion Affidavit in its

recitation of the evidence, nor does it challenge Lorion’s statement that she met

with EPA officials and specifically told them what publicly available documents to

exclude. Rather, the EPA takes issue with Lorion’s conclusion regarding which

scientific documents were publicly available, maintaining that it was perfectly

reasonable for the EPA to have excluded many of those documents.16 These

15
The Tribe also notes that the testimony of Scheidt supports Lorion’s conclusion that
these scientific documents were not readily available EPA public documents. Scheidt testified
that the hundreds of scientific documents that were responsive but not produced were not
available on the EPA web site and required a subscription to scientific journals or, in some cases,
contact with certain consultants to obtain.
16
For example, the EPA maintains that it was reasonable for Scheidt to have assumed the
Tribe’s scientists had many of the documents he withheld given the fact that testimony from
Scheidt and Mancusi-Ungaro indicated that the Tribe’s representatives had been present with
them in the public fora. Both Mancusi-Ungaro and Scheidt believed that those documents were

38
arguments simply do not diminish the effect of the Lorion affidavit on the Rule 56

record.

In addition to Lorion’s Affidavit, there is Rule 56 record evidence

indicating that the timing of the EPA’s decision to exclude “publicly available”

documents was somewhat dubious. The Tribe’s supplemental request that

mentioned, for the first time, the phrase “publicly available documents” was not

submitted to the EPA until June 2004. Even assuming that the Tribe’s “desire”

was an instruction to the EPA not to produce documents in that category, that

instruction undisputedly did not apply to the first February 2004 FOIA request.

Thus, it makes no logical sense that all of the EPA deponents could have

concluded “that the Tribe was not seeking publicly available documents at the

time of the February and June FOIA requests.” Because the “publicly available

documents” language made its first appearance in June 2004, the EPA had no

basis upon which to exclude publicly available documents of any kind from the

February 2004 search. These facts not only demonstrate a disputed issue of

publicly available on the web or easily obtained from scientific sources. Additionally,
Mancusi-Ungaro suggested that any failure to produce those documents was remedied by the
production to the Tribe of scientific documents supporting the Phosphorus Rule during the latter
part of 2004 as part of the litigation production of the EPA administrative record.

39
material fact, but also raise substantial concerns about the manner in which the

EPA responded to the Tribe’s requests.

We also question whether the EPA properly interpreted the Tribe’s “desire”

regarding voluminous publicly available documents in light of the need to

“construe a FOIA request liberally.” Florida Immigrant Advocacy Ctr. v. National

Security Agency, 380 F. Supp. 2d 1332, 1345 (S.D. Fla. 2006) (quoting LaCedra v.

Executive Office for U.S. Attorneys, 317 F.3d. 345, 348 (D.C. Cir. 2003)). Even if

the EPA found the scope of the Tribe’s June 3rd request to be ambiguous, it was

obliged under FOIA to interpret both that request, and certainly the unambiguous

February request before it, liberally in favor of disclosure. In light of this

obligation, the EPA could not, consistent with its statutory responsibilities under

FOIA, equate the Tribe’s statement that it had “no desire [for the EPA] to produce

voluminous publicly released documents which we already have” (emphasis

added) with tacit permission to blanketly exclude from production “all publicly

available documents” regardless of whether they were voluminous and regardless

of whether the Tribe already had them. As the Tribe notes, there is a significant

40
difference between the omission of “voluminous publicly available documents that

we already have” and disregarding any and all “publicly available documents.”17

For all of these reasons, after a de novo review and under the circumstances

presented here, we find that the EPA’s self-imposed limitation to blanketly

exclude all publicly available documents from its FOIA disclosures raises at least

a material issue of fact.

b. Whether the EPA’s Supplemental Late Production of 160
Documents Was Reasonable

Next, the Tribe points to the 160 additional documents that were found after

Dominy and Pearce had averred that all responsive documents had been produced

or properly withheld under a FOIA exception as evidence that the search was

inadequate. On two occasions after this litigation ensued, the EPA provided

additional documents to the Tribe – 130 documents previously withheld from

17
The EPA itself acknowledged that the elimination of all publicly available documents
had a profound impact on the volume of records produced to the Tribe. Scheidt testified that he
gave the Tribe a list of the publicly available documents used to determine its numeric criterion
in 1999. Scheidt updated the list in 2001, and that 2001 list was provided in various public fora
such as the ERC meetings. Scheidt completed a third list of such documents in January 2005 but
that list was not responsive to the Tribe’s FOIA because it post-dated the requests. Mancusi-
Ungaro corroborated Scheidt’s testimony regarding these lists of documents as either being
already given to the Tribe or publicly available. Moreover, Mancusi-Ungaro testified that the
vast majority of the 700 documents which were part of the EPA administrative record in support
of the Tribe’s numeric phosphorous criterion were produced electronically to the Tribe several
months prior to his deposition. Mancusi-Ungaro was informed, as apparently were all the
deponents, that the Tribe was not seeking publicly available documents at the time of the
February and June FOIA requests. Pearce testified that if she had not eliminated duplicate
documents, there would have been five to six boxes of documents produced.

41
production for a claimed privilege that the EPA later reconsidered18 and thirty

additional documents produced after Scheidt’s deposition which included e-mail

messages and copies of presentations in addition to handwritten notes.19

The Tribe notes both the significant number of supplemental documents

(especially when compared to the two and one-half boxes initially provided) and

the timing of the productions as indicative of the search’s inadequacy. It is true

that the first supplemental production of 130 documents occurred nearly twenty

months after the Tribe’s initial FOIA request, and almost five months after

litigation ensued. Nonetheless, the Tribe has not specifically argued that any of

the 130 documents (released at the discretion of the EPA OGC and Assistant

Regional Administrator Wright) fail to qualify for a privilege. Instead, the Tribe

asserts only generally that those documents “should” have been produced with the

18
As explained by EPA Region 4 Assistant Regional Administrator Wright in his sworn
Affidavit, out of 163 documents that he examined, the EPA upon reconsideration decided (after
consultation with the OGC in Washington, D.C.) to release 12 documents in full and 118
documents in redacted part.
19
The thirty additional documents from Scheidt’s files consisted of personal notes on
documents of public meetings of the State of Florida Environmental Regulation Committee
(ERC), some notes and copies of public ERC presentations on which he made notes and some
additional e-mail messages in his ERC files. Portions of the e-mails were redacted and the
remaining documents were provided in their entirety on February 12, 2006. The redacted
documents were subsequently produced to the district court for an in camera review, and the
court found that they had been properly withheld under the deliberative process privilege and the
attorney-client privilege.

42
EPA’s initial disclosure, and focuses on the timing of the EPA’s determination

that the 130 documents are privileged.20

It is true, of course, that an agency generally has discretion to disclose

exempt information if it sees fit to do so. Chrysler Corp. v. Brown, 441 U.S. 281,

293-94 (1979). The Tribe has not challenged the basis for that claim of

exemption, but instead - ironically - criticizes the EPA for changing its mind about

the claimed exemption at such a late date. This does not change the fact, however,

that the decision to assert or withdraw a proper claim of exemption is solely within

an agency’s discretion.

With respect to his production of the thirty documents, Scheidt testified that

he genuinely believed that the Tribe said it had “no desire to have EPA produce

voluminous publicly released documents” and therefore, when the Tribe indicated

in Scheidt’s deposition that it was interested in his personal notes on public

documents, mostly ERC public meeting handouts, Scheidt searched for them.

20
The Tribe notes that the EPA’s initial privilege log of withheld documents, which was
provided to the Tribe in August 2004 (shortly after the initial July 2004 document production),
listed a total of only 29 privileged documents and therefore, based on simple mathematics, did
not include the 130 documents at issue here. The Tribe’s apparent suggestion is that because the
130 documents were not listed on the initial privilege log, the EPA must have fabricated their
status as documents that could have been withheld as privileged when it later decided to produce
them. The court reiterates, however, that the Tribe has not asserted that any one of the 130
documents would not have qualified for a privilege. Therefore, regardless of the timing of the
EPA’s pronouncement that a privilege could have been asserted for those documents, the Rule 56
record indicates that reconsideration by the EPA was the reason for their release.

43
Although the Tribe complains that the Scheidt supplemental production contained

e-mails that were not personal notes, the EPA maintains that the fact that some de

minimus number of documents were overlooked in the initial FOIA search does

not prove that the search was in bad faith or inadequate.

This Circuit has not established a rule regarding the inference to be drawn

from the late discovery and late release of additional documents responsive to a

FOIA request. Relying on Goland v. CIA, 607 F.2d 339, 370 (D.C. Cir. 1978), the

Tribe contends that the “‘[d]iscovery of additional documents is more probative

that the search was not thorough than if no other documents were found to exist.’”

The Tribe further contends that a requestor may support an allegation of bad faith

by presenting evidence that additional, reasonable documents exist. See Ground

Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). Citing a different

case from a district court in the D.C. Circuit, the EPA casts a different light on the

late document productions, theorizing that the further search and additional release

are not an indication of the inadequacy of its search but further evidence of the

agency’s dedication to fully complying with its FOIA obligations. See Western

Center For Journalism v. I.R.S, 116 F. Supp. 2d 1, 10 (D.D.C. 2000) (finding that

an agency’s release of additional responsive records mistakenly omitted from its

initial response did not demonstrate bad faith since “it is unreasonable to expect

44
even the most exhaustive search to uncover every responsive file; what is expected

of a law-abiding agency is that the agency admit and correct error when error is

revealed”). The EPA also reiterates that FOIA requires an agency to conduct a

reasonable search, but that search need not be perfect in order to be reasonable.

See Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986) (“[A] search need not

be perfect, only adequate, and adequacy is measured by the reasonableness of the

effort in light of the specific request.”).21

Thus, a valid question before this court is what inference, if any, can be or

should be drawn from the late production or disclosure of FOIA documents. We

are not certain that a “one size fits all” answer to that question exists. Rather than

announcing that a certain inference can always be drawn from such a late

production, we believe that the better course is to evaluate the reasoning behind

the delay. In this case, because the EPA has offered a reasonable explanation for

the late production of the two categories of documents in this case, the court finds

that the district court did not err when it failed to draw any adverse interest against

the EPA due to its late disclosure of the documents in question.

21
In reaching its conclusion that the late disclosures in this case were not evidence of the
search’s inadequacy, the district court relied on Hornbeck Offshore Transp., LLC v. U.S. Coast
Guard, No.Civ.A. 04-1724, 2006 WL 696053 at *8 (D.D.C. Mar. 20, 2006), which determined
that “at most three documents identified by Plaintiff which could have reasonably been in
[agency’s] possession” was a “minor failure” in light of totality of the search results.

45
B. The Section 5 Privileges Claim

Section 552(b)(5) exempts from FOIA disclosure any “inter-agency or

intra-agency memorandums or letters which would not be available by law to a

party other than an agency in litigation with the agency.” 5 U.S.C. § 552 (b)(5).

The statutory provision, known as Exemption 5, incorporates into FOIA the

statutory and common law privileges normally available to a party in civil

discovery. Here, the EPA withheld documents pursuant to the Section 5

Exemption in three categories of privilege – deliberative process, attorney-client,

and attorney work product. Although privileged portions of documents may be

withheld, “[a]ny reasonably segregable portion of a record shall be provided to any

person requesting such record after deletion of the portions which are exempt

under this subsection.” 5 U.S.C. § 552(b) (sentence following the exemptions).22

Based upon FOIA’s statutory language and Congressional intent, courts

have expounded upon the level of information required from an agency to support

its claimed privileges under Exemption 5. The D.C. Circuit23 observed in Vaughn

22
“[N]on-exempt portions of a document must be disclosed unless they are inextricably
intertwined with exempt portions.” Mead Data Central, Inc. v. U.S. Dep’t of Air Force, 566
F.2d 242, 260 (D.C. Cir. 1977).
23
Because there are a number of federal government agencies located in Washington,
D.C., it is not surprising that the majority of the caselaw interpreting FOIA has been decided by
the D.C. Circuit.

46
v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), that because the nature of FOIA

“seriously distorts the traditional adversary nature of our legal system’s form of

dispute resolution,” 484 F.2d at 824, the agency must give the requester of

information “adequate specificity . . . to assur[e] proper justification by the

governmental agency,” id. at 827. The Vaughn decision marked the beginning of

a tool (and in some Circuits, a requirement) that is widely referred to as the

“Vaughn Index” – i.e., a list containing the information claimed as exempt and the

corresponding exemption under which it is claimed. The D.C. Circuit later

clarified that a Vaughn Index required “a relatively detailed justification,

specifically identifying the reasons why a particular exemption is relevant and

correlating those claims with the particular part of a withheld document to which

they apply.” Mead Data Central, Inc., 566 F.2d at 251; see also Dellums v.

Powell, 642 F.2d 1351, 1361 (D.C. Cir. 1980).

This Circuit has held that in FOIA litigation, an agency has the burden of

proving that it properly invoked any FOIA exemptions when it decided to

withhold information. Ely v. F.B.I., 781 F.2d 1487, 1489-90 (11th Cir. 1986). In

reviewing a district court’s finding of privilege for exemptions, we have two

duties: we must determine (1) whether the district court had an adequate factual

basis for the decision rendered; and (2) whether, upon this basis, the decision

47
reached was clearly erroneous. A trial court may utilize alternate methods by

which to make the adequate factual basis determination: in camera review and the

so-called Vaughn Index. Under the terms of the statute, the decision to conduct an

in camera review of the documents and/or resort to the Vaughn Index is

discretionary. See N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 224

(1978) (in camera review); 5 U.S.C. § 552(a)(4)(B) (in camera review); Ely, 781

F.2d at 1491 (Vaughn Index). In addition, the agency may rely on affidavits (in

lieu of a Vaughn Index) to meet its burden so long as they provide an adequate

factual basis for the district court to render a decision. Miscavige v. I.R.S., 2 F.3d

366, 368 (11th Cir. 1993). Accordingly, in this Circuit, an adequate factual basis

may be established, depending on the circumstances of the case, through

affidavits, a Vaughn Index, in camera review, or through a combination of these

methods. Id.

In accordance with Ely, our analysis of the district court’s Section 5 rulings

in this case begins first with the question of whether the court had before it

sufficient evidence supporting the EPA’s claimed exemptions to render a decision

on the validity of those exemptions.

1. Whether the Evidence Provided by the EPA Contained Sufficient
Detail for the District Court to Make a Ruling on Summary
Judgment

48
 The Tribe, relying principally on cases from the D.C. Circuit establishing

exacting standards for the level of detail required in a Vaughn Index, asserts that

the EPA failed to submit evidence supplying “relatively detailed justification[s for

exempting documents], specifically identifying the reasons why a particular

exemption is relevant and correlating those claims with the particular part of the

withheld document to which they apply.” Mead Data Central, 566 F.2d at 251.

Crucial to our analysis of the Tribe’s arguments is the appropriate standard for

reviewing the factual support provided for the exemption under Section 5.

a. Appropriate Standard for Determining the Level of Detail
Required to Establish a Factual Basis for the Exemption

The Tribe asserts that “the requester and the trial judge must be able to

derive from the index a clear explanation of why each document or portion of a

document withheld is putatively exempt from disclosure.” Campaign For

Responsible Transplantation v. U.S. Food and Drug Admin., 180 F. Supp. 2d 29,

32 (D.D.C. 2001) (internal quotation marks and citation omitted). The Tribe urges

this court to reject what it characterizes as the EPA’s “only conclusory language

that parrots the exemption” and instead adopt the D.C. Circuit’s requirement of

two factors that can assist the court in determining
whether this [deliberative-process] privilege is available:

49
 “the nature of the decision making authority vested in the
officer or person issuing the disputed document,” and the
relative positions in the agency’s chain of command
occupied by the document’s author and recipient.

Animal Legal Def. Fund, Inc. v. Dep’t of the Air Force, 44 F. Supp. 2d 295, 300

(quoting Senate of the Commonwealth of Puerto Rico v. U.S. Dep’t of Justice, 823

F.2d 574, 586 (D.C. Cir. 1987) (internal quotation marks and citations omitted)).

Moreover, specifically with respect to e-mails, the Tribe points to a decision of the

Southern District of Florida which says that the agency must describe each e-mail,

its author and recipient, and the e-mail contents withheld. St. Andrews Park, Inc. v.

U.S. Dep’t of the Army Corps of Eng’rs, 299 F. Supp. 2d 1264, 1271 (S.D. Fla.

2003).

In response to the Tribe’s arguments, the EPA notes that, despite the wealth

of caselaw from other courts on this issue, the appropriate standard of review in

this case is supplied by the law of this Circuit (and not the D.C. Circuit). In the

Eleventh Circuit, we have distilled the review of a district court’s finding of

privilege for exemptions into two levels: (1) determine whether the district court

had an adequate factual basis for the decision rendered; and (2) whether, upon this

basis, the decision reached was clearly erroneous. Ely, 781 F.2d at 1490. Despite

the Tribe’s reliance on the exacting standards of the D.C. Circuit, an adequate

50
factual basis can be established in this Circuit by affidavits alone, in lieu of a

Vaughn Index or an in camera review. See Miscavige, 2 F.3d at 368 (holding that

in certain cases, affidavits can be sufficient for summary judgment purposes in a

FOIA case if they provide an accurate basis for a decision). Indeed, depending on

the circumstances, an adequate factual basis may be provided through a singular

method – such as affidavits, a Vaughn Index, or an in camera review, or a

combination of these methods. Miscavige, 2 F.3d at 368. As the EPA notes, it is a

rare case, however, where the government provides all three – affidavits, a Vaughn

Index, and in camera review – as was done by the agency here.

The EPA criticizes the Tribe’s attempt to require information regarding the

role of each specific document in the decision-making process and the role of each

sender and receiver in the decision-making process for the withheld documents,

which were factors described as helpful to the district court in making its decision

in Animal Legal Defense Fund, Inc., 44 F. Supp. 2d at 300. An analysis of Animal

Legal Defense Fund, Inc. reveals that nothing in that case indicates that all three

factors should be required in every case where a deliberative process,

attorney-client, or attorney work product privilege is claimed by an agency. In

fact, in Animal Legal Defense Fund, Inc., the Air Force had not provided one

single description of any of the documents withheld. 44 F. Supp. 2d at 299.

51
Likewise, in St. Andrews Park, Inc., the Southern District of Florida had no

descriptive affidavit or Vaughn Index upon which to base its factual

determination. 299 F. Supp. 2d at 1272. Thus, both of these cases, upon which the

Tribe relies, lacked the elaborate statement of facts outlined in supporting

affidavits, the detailed index entries, and the underlying documents themselves

presented to the district court for in camera inspection – all of which were present

in this case.

Based upon the applicable case law, it is readily apparent that the Tribe

seeks to impose upon the EPA a burden of factual specificity that is not only not

part of this Circuit’s precedent, but that is not even mandatory according to the

other courts that have opined that additional tools may be “helpful” to the court’s

analysis. Moreover, the Tribe has not pointed to a single case in which a district

court looked to three independent factual sources supporting the claimed

exemption (as was done here) but nonetheless rejected the agency’s reliance on

that privilege. Against this backdrop, the court turns to the Tribe’s specific

criticisms of the three methods utilized in this case.

b. Adequacy of Vaughn Index and Affidavits Standing Alone24

24
The Tribe further complains that the EPA did not submit anything resembling a Vaughn
Index until more than one year after the EPA’s initial production of documents responsive to the
Tribe’s FOIA requests. Although the EPA’s FOIA response was allegedly complete as of July

52
 The Tribe contends that the EPA’s Vaughn Index and supporting affidavits

are inadequate to establish a factual basis for the claimed exemptions because they

fail to: (1) specifically note why each withheld or partially withheld document’s

release would have a “chilling effect” on the EPA’s decision-making process; and

(2) describe the role of each specific document in the decision-making process.

Contrary to the Tribe’s assertions, this Circuit has not established a set formula or

pattern for what will suffice as a Vaughn Index. The index usually consists of a

listing of each withheld document, or portion thereof, indicating the specific FOIA

exemption applicable and the specific agency justification for the non-disclosure.

Vaughn, 484 F.2d at 827.

The Tribe complains that the EPA’s Vaughn Index and the accompanying

affidavits also incorporate the same conclusory language as part of the explanation

given for many of the documents withheld: “Release would have a chilling effect

on the Agency’s decision-making processes and cause public confusion about the

reason for an Agency decision.” The Tribe notes this general language provides

no true explanation why withholding those documents would have a chilling effect

or cause public confusion. Moreover, the Tribe argues that the documents are not

2004, the EPA waited until September 2005 to submit some semblance of a Vaughn Index in this
case.

53
sufficiently described in either the Vaughn Index or in the accompanying

affidavits and that the EPA never identifies the title or position of most of the

authors and recipients of the withheld documents. For instance, many of the

withholdings in the Vaughn Index refer only to “EPA Staff.”

The EPA maintains their burden as to the index was satisfied, especially

when the index is read in conjunction with the two affidavits offered in support

thereof. Assistant Regional Administrator Wright’s Affidavit states that

documents 1 and 2 on the Vaughn Index, for example, are draft bills of the EFA,

which reflect the back-and-forth discussions and mental impressions of the EPA

staff. Those drafts include analysis of the EFA amendments and any policy

implications for agency actions ongoing at the time of the documents’ creation.

Wright goes on to explain that the information contained in those documents was

predecisional and deliberative as comments on possible approaches for the agency

to consider regarding the EFA amendments. He notes that release of the

documents would have a chilling effect on the agency’s decision-making

processes and would cause public confusion about the reason for the EPA’s

decision. Wright also asserts that no segregable information could be released

without also revealing exempt information – i.e., any factual information in the

documents is inextricably intertwined with the exempt information.

54
 From the Vaughn Index and supporting affidavits, it is fair to say that both

the Tribe and the district court were able to understand why each document or

portion of a document was withheld as exempt from disclosure, even without the

in camera review. As noted by the district court in its January 17, 2006 order on

the in camera viewing, the EPA did “an admirable and thorough job of disclosing

as much information in the withheld documents as possible without waiving the

privilege.” However, in an effort to grant the Tribe the relief it sought regarding

withheld documents, and in light of the Tribe’s concerns that the Vaughn Index

was not specific enough, the district court went even beyond the paperwork

submitted and conducted a complete in camera review of the withheld documents

to determine the applicability of the privileges.

c. In Camera Review

The Tribe maintains that the district court’s in camera review also was

inadequate because, even in camera, the district court could not have had the

necessary factual basis, or the appropriate context, to make its determination that

the documents were properly withheld.

Pointing to the e-mail description requirements imposed by the Southern

District of Florida in St. Andrews Park, Inc., the Tribe avers that the absence of

detail regarding the content, author, and recipient of each withheld e-mail rendered

55
the court’s in camera review pointless. In other words, the record is devoid of

evidence that all of the documents lumped together as an e-mail chain were

provided for in camera review and even if they were, the district court lacked the

proper factual foundation to uphold the exemption. Finally, the Tribe maintains

that without a detailed description for each of the documents withheld, it was

impossible for the district court to determine whether each section of documents

was properly segregated. For the reasons stated below, we reject the Tribe’s

arguments and find that the district court correctly found that the documents

before it in camera were exempt from disclosure.

The principal problem with the Tribe’s e-mail chain argument is that it

assumes, on the one hand, that documents were missing from the chains submitted

to the court, and, on the other hand, that even if all of the documents were before

the district court, the court still lacked adequate information to rule on the

exemptions. The undisputed evidence indicates that neither of the Tribe’s

scenarios is accurate. For example, as illustrated by document 102 (upon which

the Tribe relies above), the court had more than an adequate basis for determining

the propriety of the exemption. In addition to the Vaughn Index description25 and

25
Document 102, cited by the Tribe in its brief is described in the Vaughn Index as
follows:

56
Assistant Regional Administrator Wright’s Affidavit explaining why document

102 was redacted, the district court received three separate documents in support

of the exemption claimed for document 102 - a cover sheet that contained only the

information listed on the Vaughn Index for document 102; a redacted copy of

document 102 that was identical to the Tribe’s redacted copy; and the unredacted

copy of the full e-mail chain. The Tribe’s argument that the district court lacked an

adequate basis to determine whether the exemptions were appropriate is simply off

the mark. The district court viewed everything that the EPA withheld from the

Tribe and was able to determine that the actual substance of the documents

matched the descriptions listed in the Wright Affidavit and Vaughn Index. When

Description [e-mail w/o attachment] e-mail chain discussing issues to be
discussed at next EFA Workgroup meeting. Exemption 5 - deliberative process
privilege - the e-mail provides an analysis of the EFA default criterion
phosphorous rule challenge and legal and policy implications for certain agency
action. The withheld information is predecisional and deliberative, because it
comments on possible approaches for the agency to consider regarding the
challenges. Policy evaluation related to the implementation of the EFA
amendments was ongoing when this e-mail was written, the source lacked
decisionmaking authority, and the e-mail contains variables to be considered in
the Agency’s policy analysis. Release would have a chilling effect on the
Agency’s decision-making processes and cause public confusion about the reason
for an Agency decision. No other reasonably segregable information may be
released without also revealing exempt information. Any factual information
continuing to be withheld is inextricably intertwined with the exempt information.
To the best of our knowledge, document has not been shared outside of the federal
government or one of its contractors.

57
the supporting documentation is viewed as a whole, as the district court did, the

reasons and support for the exemptions are readily established.26

2. Whether, Even If the District Court Had Sufficient Evidence to
Make a Ruling on Summary Judgment, Summary Judgment Was
Properly Granted as to the FOIA Exemptions Claimed by the
EPA

Having determined that the district court had an adequate factual basis

before it to judge the validity of the claimed exemptions, the court now turns to its

analysis of the district court’s decision to uphold the exemptions. The EPA’s

brief on appeal sets forth reasons why it withheld documents according to both the

deliberative process, attorney-client, and attorney work product privileges

pursuant to the Section 5 exemption.

There is no reason for this court to conclude that the district court erred

when it upheld the EPA’s assertion of the attorney-client privilege and the work-

product privilege. The attorney-client privilege applies to “confidential

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

26
Finally, this court notes that it has conducted its own in camera review of the
documents in question and has independently verified the district court’s conclusions. This court
undertook the extraordinary task of conducting a de novo in camera review of the documents not
as a substitute for the district court’s review but, in light of the Tribe’s strenuous arguments in its
briefs and at oral argument. Our review confirms that the district court correctly analyzed the
exemption issue here. We emphasize that the panel has elected to exercise its discretion under
the facts of this case and this case alone to conduct such a review, and we do not suggest that an
appellate in camera review is appropriate in any other case.

58
which the client has sought professional advice.” Mead Data Central, Inc., 566

F.2d at 252. The Supreme Court has broadly construed this privilege in support of

the underlying policy “that sound legal advice or advocacy serves public ends and

that such advice or advocacy depends upon the lawyer’s being fully informed by

the client.” Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981). The EPA states that it

withheld confidential communications between government attorneys and their

clients.

The attorney work product privilege generally protects documents prepared

by an attorney in anticipation of litigation. See Hickman v. Taylor, 329 U.S. 495,

509-10 (1947). Factual attorney work product enjoys sweeping exemption

protection because it is not “routinely” or “normally” discoverable through civil

discovery but likewise requires a showing of “substantial need” and “undue

hardship” by the party seeking discovery. See F.T.C. v. Grolier, Inc., 462 U.S. 19,

27-28 (1983). It is undisputed that some of the documents responsive to the

Tribe’s requests were prepared by attorneys and analyzed the defensibility of

alternative courses of action under consideration by the EPA. To the extent that

those documents contained legal discussions and analyses prepared by an attorney

in anticipation of litigation, the documents or portions thereof were withheld

pursuant to FOIA exemption 5 as attorney work product.

59
 Turning next to the issue of deliberative process, two requirements must be

met for that privilege to apply. First, the material must be pre-decisional, i.e.,

“prepared in order to assist an agency decision maker in arriving at his decision.”

Renegotiation Bd. v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184

(1975); Nadler v. United States Dep’t of Justice, 955 F.2d 1479, 1490-91 (11th

Cir. 1992). Second, it must be deliberative, “a direct part of the deliberative

process in that it makes recommendations or expresses opinions on legal or policy

matters.” Vaughn, 523 F.2d at 1144; Nadler, 955 F.2d at 1490-91. The purpose of

the deliberative process privilege is to protect the quality of the agency’s decision-

making process. Even factual material contained in a “deliberative” document may

be withheld pursuant to the privilege where disclosure of the factual material

would reveal the deliberative process or where the factual material is so

inextricably intertwined with the deliberative material that meaningful segregation

is not possible. See Nadler, 955 F.2d at 1490.

In opposition to summary judgment, the Tribe contended that many

documents in the Vaughn Index bore the name of Scheidt (a scientist), and

concerned either e-mail correspondence between Scheidt and technical consultants

Bill Walker and Bob Kadlec, or Scheidt’s dissemination of Walker and Kadlec’s

comments. The Tribe maintains that, in light of its arguments raised concerning

60
the improper withholding of scientific and technical material, summary judgment

should not have been granted because the documents in the scientific or technical

information category were not properly withheld nor properly segregated for the

court to review.

The EPA responds that, as is indicated in the Wright and Brown affidavits

and the Vaughn Index, the documents (both full and redacted versions) withheld

pursuant to this privilege were pre-decisional and deliberative in nature. Many of

those were draft documents including memoranda, issue papers, briefing papers,

e-mails and other communications, that contained or incorporated comparisons,

analyses, and evaluations of legal and policy considerations. Based upon the

Wright and Brown affidavits and the Vaughn Index, distribution of these

documents was internal – limited only to agency employees and contractors. The

EPA emphatically maintains that release of any of those documents would have a

chilling effect on the agency’s decisionmaking process and would cause public

confusion as to the reasons for agency decisions. The EPA avers that any

non-exempt information contained within the documents which was reasonably

segregable was released. Thus, with regard to the portions of three e-mails which

were withheld in the EPA’s supplemental response and about which the Tribe

complains above, the EPA maintains that the redacted portions were protected

61
under the deliberative process privilege and/or the attorney-client privilege (as

outlined in the Brown Affidavit).

The EPA provided the redacted portions of the three e-mails to the district

court for in camera review, and the court held that the documents were properly

exempt from disclosure. The district court found in its January 17, 2006 order:

Upon review of the documents, the Court is able to conclude without
reservation that each of the documents withheld by the EPA was done
so properly and pursuant to an appropriate privilege – either the
deliberative process privilege, the attorney-client privilege, or the
work product doctrine. Indeed, the Court notes that the EPA did an
admirable and thorough job of disclosing as much information in the
withheld documents as possible without waiving a privilege. The
Court is aware of the Plaintiff’s concern that the Defendant has
withheld scientific and technical factual documents under the guise of
“deliberative process” or “attorney-client privilege” but based on its
review of each document, this is not the case. Each document that the
EPA withheld pursuant to the deliberative process privilege is
pre-decisional and deliberative in nature. Furthermore, with respect to
the applicability of the attorney-client privilege/work product
doctrine, after reviewing the content of the documents that assert
these privileges, the Court finds that the privileges were properly
invoked.

Likewise, following the viewing of three redacted Scheidt documents, the district

court held in March 2006: “Upon viewing these documents, once again, the Court

finds that the Defendant acted properly in withholding portions of these e-mails

pursuant to the deliberative process privilege and the attorney-client privilege.

Defendant has explained its reasons for withholding portions of these three e-

62
mails in an affidavit attached to its Supplement to Motion for Summary

Judgment.” We find no basis on which to reverse the district court’s findings.

Finally, in what appears to be a new argument articulated for the first time

in its reply brief, the Tribe contends (relying on cases from the Ninth Circuit) that

the district court’s lack of findings “stat[ing] in reasonable detail the reasons for

its decision as to each document in dispute” requires remand in this case. Weiner

v. FBI, 943 F.2d 972, 988 (9th Cir. 1991) (internal quotation marks and citation

omitted). The Tribe asserts that the district court’s opinion fails to explain the

reasoning behind its rulings or delineate the specific exemption appropriate for

each withheld document, instead simply setting forth its belief that the EPA’s

three claimed exemptions – the deliberative process privilege, the attorney-client

privilege, or the work product doctrine – were applicable.27 The Tribe further

argues that because FOIA requires segregability and limits claims of exemption to

discrete units of information (so that to withhold an entire document all units must

fall within the statutory exemption 5 U.S.C. § 552 (b)), the district court’s failure

to enunciate specific findings of segregability for each of the withheld documents

27
In the D.C. Circuit, such a limited ruling from the district court may be found
inadequate because it denies the appellate court an opportunity to conduct the requisite review
and undermines the legislative mandate of FOIA. See Founding Church of Scientology of
Washington D.C., Inc. v. Bell, 603 F.2d 945, 950 (D.C. Cir. 1979) (noting that district court’s
findings of fact and conclusions of law are required to be “sufficiently detailed to establish that
the careful de novo review prescribed by Congress has in fact taken place.”).

63
at the least requires remand so that the district court can make clear its findings as

to whether any segregable portions of the withheld documents should have been

disclosed. Krikorian v. Department of State, 984 F.2d 461, 467 (D.C. Cir. 1993)(It

is reversible error not to make “specific findings of segregability regarding each of

the withheld documents.”).

Even if we were to consider the Tribe’s eleventh hour argument regarding

the inadequacy of the district court’s findings in its order, the Tribe’s contentions

are, again, based on requirements established by other Circuits that have not been

adopted by our court. In this Circuit, exacting requirements have not been placed

on the district court’s articulation of its reasons for sustaining a claim of

exemption: Again, in the Eleventh Circuit, the review of a district court’s finding

of privilege for exemptions consists of two levels: (1) determine whether the

district court had an adequate factual basis for the decision rendered; and (2)

whether upon this basis the decision reached was clearly erroneous. Ely v. F.B.I.,

781 F.2d at 1490. In light of the in camera review by the district court (a review

that we find was correctly conducted), this case does not present us with the

appropriate occasion to consider whether to require additional levels of analysis

and more detailed findings when reviewing a claim of privilege under FOIA.

64
 For all these reasons, we find that contrary to the Tribe’s arguments, the

district court had more than an adequate basis to determine the propriety of the

EPA’s asserted privileges under Exemption 5 for the documents withheld. Just as

there was extraordinary discovery in this case, there was extraordinary

substantiation of the privileges. The EPA produced affidavits from Assistant

Regional Administrator Wright and Assistant General Counsel Brown regarding

the reasons for withholding documents. A detailed Vaughn Index was compiled,

and at the Tribe’s insistence, the district court conducted an in camera viewing of

all of the withheld information. And while the Tribe insists that the district court

should have compelled the EPA to describe the role of each specific document

withheld in the decision making process, including the role of each author and

recipient, the standard in this Circuit is whether the district court had an adequate

basis to determine the exemption and whether this basis was clearly erroneous.

Given the availability of affidavits and the Vaughn Index, combined with the in

camera viewing, the district court had an adequate basis to determine the

privileges asserted, and the Tribe has failed to demonstrate clear error in that

decision.

V. CONCLUSION

65
 For the reasons stated above, we vacate the district court’s grant of summary

judgment because genuine issues of material fact exist regarding the

reasonableness and adequacy of the EPA search for, and disclosure of, responsive

documents to the Tribe’s 2004 FOIA request. We affirm, however the district

court’s sustaining of the EPA’s assertion of privileges and consequent withholding

of responsive documents under FOIA Exemption 5. We remand this case to the

district court for further proceedings consistent with this opinion.

AFFIRMED in part, VACATED in part, and REMANDED.

66