Hunton & Williams LLP v. EPA, No. 15-1207, 2018 WL 4637355 (D.D.C. Sept. 27, 2018) (Contreras, J.)

Hunton & Williams LLP v. EPA, No. 15-1207, 2018 WL 4637355 (D.D.C. Sept. 27, 2018) (Contreras, J.)

Re:  Requests for records concerning response to plaintiff's client's 2012 request for Approved Jurisdictional Determination on industrial site

Disposition:  Granting in part and denying in part defendants' motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  Regarding EPA, "[a]ll in all, the Court finds that the EPA's supplemental Vaughn Index accurately describes how most of the redacted text is both predecisional and deliberative."  "The Court . . . finds that the EPA has sufficiently demonstrated how the withheld portions of each document are either deliberative or describe the details of a deliberative process."  Concerning one specific record, "[b]ecause the Court is now able to directly observe . . . the role the document played in the AJD process, it is able to grant summary judgment to the EPA on its withholding of this document under the deliberative process privilege."  Finally, "[w]hen reviewing the EPA's documents in camera, the Court did not identify any portion of the EPA's documents that contained what appeared to be secret law concerning its decision to exercise its special case authority."
  
  Regarding the Army, "the Court grants the Army's motion for summary judgment for its redactions based on the deliberative process privilege."  The court finds that "[e]ach document was predecisional and contributed to one of the Army's decision-making processes:  either deciding how best to communicate and work with outside actors, be they personnel in other agencies or the public, in light of the Army's decision to conduct the review, or the ultimate result of the review itself."
  
  Regarding the Corps of Engineers, "[n]ow that the Corps has submitted a sampling of documents for in camera review, and has greatly expanded upon the information included in its Vaughn Index, the Court is able to conclude that the majority of these documents were properly redacted pursuant to the privilege."  However, the court finds that, "[b]ecause [certain] emails are directives, they cannot be redacted pursuant to the deliberative process privilege, the only withholding basis identified by the agency, and therefore must be released."
   
• Exemption 5, Attorney-Client Privilege:  The court rejects several of defendant's withholdings under this privilege "because it does not appear that the pursuit of legal advice was one of the primary reasons it was sent."  "However, these documents are covered by the deliberative process privilege because they contain suggestions from Corps attorneys to other Corps personnel regarding which portions of the documents the attorney believed were important[.]"
   
• Exemption 5, Attorney Work-Product Privilege:  "[T]he Court finds that several documents were either erroneously withheld pursuant to the work product privilege, and that their withholding pursuant to the privilege was insufficiently justified."  "However, because each document that does not qualify as work product was permissibly withheld pursuant to the deliberative process privilege, they need not be released."  The court explains that "several documents were labeled as attorney work product without any justification as to why those documents should be considered work product."
   
• Exemption 6:  The court holds that the "redaction[] of text concerning the health of an EPA employee" was appropriate because "[plaintiff]has not identified any public interest in the disclosure of this information."  Regarding the withhold of employee vacation information, the court finds that the "two employees [at issue] have more than a de minimis privacy interest in this information, and [plaintiff] has not articulated any public interest in the release of this information."  Finally, the court finds that "[w]ithout any explanation for why [two] names are being redacted, the Corps must disclose them."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "Having reviewed a large sample of responsive records, the Court can confirm that, apart from the types of erroneous redactions listed above, the three defendant agencies have released all reasonably segregable non-exempt text."  Additionally, "[b]ecause the Corps error rate was similarly miniscule – two emails in 120 documents withheld in error under Exemption 5, and names in 15 out of 120 documents withheld in error under Exemption 6 – the Court will only order the release of the improperly withheld portions of the sample documents, and will not order the Corps to reprocess the thousands of pages of responsive records that were not submitted for in camera review."