Ecological Rights Foundation v. United States Environmental Protection Agency

Background

Ecological Rights Foundation (ERF) and the United States Environmental Protection Agency (EPA) filed cross-motions for summary judgment in a Freedom of Information Act (FOIA) dispute. The court had previously criticized the parties’ submissions, including EPA’s 1,172-page Vaughn index, which is an agency document describing withheld records and the reasons for withholding them. The court was particularly concerned that EPA relied on general, boilerplate explanations instead of identifying specific harms that disclosure would cause, as required by the FOIA Improvement Act of 2016.

To evaluate the parties’ positions, the court ordered EPA to provide 20 documents that EPA said were obviously sensitive and to provide 10 documents selected by ERF as examples of improper withholding or inadequate harm explanations. EPA lodged all 30 documents for in camera review, meaning the court reviewed them privately rather than as part of the public record. The court stated that its rulings on these documents would guide the parties’ treatment of the remaining withheld records.

Exemption 5 and the deliberative-process privilege

EPA relied on FOIA Exemption 5 for 23 of the 30 documents, asserting the deliberative-process privilege. That privilege generally protects predecisional and deliberative communications related to an agency’s formulation of policy. The court held that EPA had not shown that many documents involving human-resources decisions, staffing, employee-separation programs, responses to congressional or inspector-general inquiries, media responses, and public statements were connected to policy formulation or an identifiable future agency decision.

The court concluded that EPA could not withhold the cited documents on the deliberative-process basis. This included documents involving general staffing and workforce decisions; the Voluntary Early Retirement Authority and Voluntary Separation Incentive Payment programs, where the documents concerned implementation logistics rather than the decision to offer the programs; and communications prepared to explain past actions or respond to Congress, investigators, or the media.

Attorney-client privilege

EPA also invoked the attorney-client privilege for two documents concerning union notice requirements related to the Voluntary Early Retirement Authority and Voluntary Separation Incentive Payment programs. The court found that the documents were confidential communications between an EPA attorney and EPA employees concerning legal advice, so the privilege itself applied.

However, the court held that EPA still had to show that disclosure would harm the interest protected by the exemption under the FOIA Improvement Act. EPA’s declarations and Vaughn-index entries did not describe the foreseeable harm from disclosing the legal advice. As a result, EPA could not withhold those documents on the current record.

Presidential communications privilege

EPA withheld portions of a calendar belonging to former Administrator Pruitt under the presidential communications privilege. The court found that the redacted portions reflected a communication directly involving former President Trump and therefore fell within that privilege. But EPA did not show what foreseeable harm disclosure would cause. Without that showing, EPA could not withhold the portions under FOIA.

Exemption 6 and personal privacy

EPA invoked FOIA Exemption 6, which protects personal information when disclosure would be a clearly unjustified invasion of privacy. The court upheld EPA’s withholding of personal and identifying information in Exemplar 19, an employee’s resignation-related email, because disclosure could cause embarrassment or harassment.

The court rejected or could not evaluate EPA’s other Exemption 6 claims in the reviewed documents. It held that the phone numbers of a reporter who had contacted EPA professionally were not shown to have sufficient privacy protection where the reporter’s name, organization, and email address had already been disclosed. It also held that EPA had not justified withholding information other than the name and contact information in another resignation letter, or the names of restaurants in former Administrator Pruitt’s calendar. For ERF Exemplar 10, the document submitted for review did not match the Vaughn-index description, so the court could not evaluate the claimed exemption.

Disposition and further proceedings

The court concluded that EPA had failed to establish that it properly withheld the 30 reviewed documents, except for Exemplar 19 and ERF Exemplar 10. It ordered EPA to produce the other 28 exemplars to ERF by June 8, 2021.

The court also directed EPA to re-review all remaining documents withheld under FOIA exemptions using the rulings in the order as guidance. EPA had to produce, within 14 days of the order, any documents for which it withdrew its exemption claims. Within 21 days of the order, EPA had to provide ERF with a revised Vaughn index containing individually numbered entries and identifying which documents and pages EPA continued to withhold. After the revised index, the parties had to meet and confer and submit a joint letter proposing how to resolve any remaining disputes within 21 days of EPA’s production of the revised index.