Athletics Investment Group, LLC v. Schnitzer Steel Industries, Inc.

Background

This Clean Air Act citizen-enforcement action concerns Schnitzer Steel Industries, Inc.’s operations at a metal-shredding facility in West Oakland. Athletics Investment Group, LLC served a subpoena on the Bay Area Air Quality Management District, a California state agency, seeking 17 categories of documents. The District produced approximately 5,000 documents and withheld nearly 9,000 responsive documents.

AIG challenged the sufficiency of the District’s privilege log, its assertion of deliberative process privilege over approximately 9,000 documents, its withholding of documents shared under two interagency agreements, and its redactions for relevance in 127 documents. The court ordered the parties to select representative documents and conducted an in camera review of 48 documents, five redacted documents, and the two interagency agreements.

Deliberative process privilege

The deliberative process privilege protects certain government-agency decision-making materials. The court explained that a document must be both predecisional—prepared before and to assist an agency decision—and deliberative—reflecting the agency’s policy-formulation process, such as opinions, recommendations, or analysis. The agency bears the burden of establishing the privilege, and purely factual material ordinarily is not protected unless its disclosure would reveal a decision-maker’s mental process.

The court concluded that the District established the privilege for Exemplars 1, 4a, 7a, 7b, 8a, 8b, 10a, 10b, 10c, 12a, 12l, 13, 14, 15, 16, and 17. In the court’s view, those materials involved internal District communications or staff-created materials reflecting opinions, deliberations, preliminary studies, analyses, or evaluations concerning regulation of the facility and were predecisional under Carol Allen’s declaration.

Exemplars 18a through 18d might be privileged, but the District had to clarify whether Allen forwarded the attachments to herself or to a different person outside the District. The court ordered a supplemental declaration addressing that factual question.

The court held that Exemplars 3, 4b, 4d, 6b, 11a, 11b, 12e, 12g, 12h, 12i, 12j, 12k, and 20 were not privileged because they consisted of communications shared with third parties or materials submitted by third parties and did not show the personal opinions or mental processes of District decision-makers. The court also found Exemplar 4c unprotected because it appeared to have been authored by the West Oakland Environmental Indicators Project and provided to the District.

Exemplars 6a and 6c, which concerned a Public Records Act request and a proposed response, were not protected because the record did not show that they involved the type of agency policy formulation covered by the privilege. Exemplar 2, an email chain concerning a third party’s request for the District’s response to Schnitzer’s settlement announcement, was also not privileged because deliberations about public-relations matters are outside the privilege’s intended scope.

The District did not meet its burden for Exemplars 5a, 5b, 12b, 12c, 12f, and 19a through 19c. The court found that the privilege log and present record did not clearly connect those materials to the District decisions identified by the District. The court also noted that deliberative process privilege is not absolute and allowed AIG to brief whether the need for particular properly withheld documents outweighed the government’s interest in confidentiality under the applicable factors.

Redactions

The District redacted information about other facilities from otherwise responsive documents, asserting that the information was not relevant or responsive. The court held that it was generally improper to redact portions of otherwise responsive documents solely because the producing party considered them irrelevant or nonresponsive. Because a protective order was in place and the District did not explain why it was insufficient, the court ordered the District to produce unredacted versions of all nonprivileged responsive documents by May 17, 2024.

Interagency agreements and other privileges

The District withheld documents under two interagency agreements and asserted the law-enforcement or official-information privilege and, for documents covered by one agreement, the common-interest doctrine. The court explained that the common-interest doctrine is not an independent privilege; it can prevent waiver only when the underlying communication was privileged in the first place.

The District had not submitted the declaration required to support its law-enforcement or official-information privilege claim. The court did not finally resolve those claims. Instead, it allowed the District to submit detailed declarations for specific documents by May 20, 2024, and allowed AIG to respond by May 24, 2024.

Ruling and next steps

Judge Maxine Chesney granted in part AIG’s motion to compel and challenge to the sufficiency of the District’s privilege logs. The District had to produce all improperly withheld exemplars and unredacted versions of nonprivileged responsive documents by May 17, 2024; file a supplemental declaration concerning Exemplars 18a through 18d; and re-review documents withheld under the deliberative process privilege using the court’s benchmark rulings. Documents for which the District withdrew its privilege claims were due to AIG by May 21, 2024, with updated privilege logs. If disputes remained after the parties met and conferred, they were to submit a follow-up joint letter by May 31, 2024.