Tobias v. U.S. Dep’t of Interior, No. 22-167, 2024 WL 894925 (D.D.C. Mar. 1, 2024) (Howell, J.)

Tobias v. U.S. Dep’t of Interior, No. 22-167, 2024 WL 894925 (D.D.C. Mar. 1, 2024) (Howell, J.)

Re:  Request for records concerning white paper titled “The Proper Scope of Environmental Analysis of Roadway Impacts”

Disposition:  Granting defendants’ motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The court relates that “[t]he withheld records include (1) ‘portions of email discussions among Service employees (including these Service employees’ reference to a draft agency document)’; (2) ‘a document created by Service employees to facilitate intra-agency discussions’; and (3) ‘comment bubbles added by Service employees while reviewing the white paper at issue,’ all of which, according to defendants, reflect ‘discussions and considerations of several different issues and projected impacts related to’ a ‘final Agency determination’ on the Owner’s Permit Application and Plan.”  “Without disputing that the records are deliberative, plaintiff argues only that defendants have failed to identify, with sufficient specificity, the deliberative process that is linked to the withheld documents and thus that certain records are not predecisional.”  “For the reasons below, plaintiff’s arguments fail to persuade, and defendants’ explanation of its invocation of the deliberative process privilege is sufficient.”  “Defendants explain that the withholdings involve discussions regarding whether to issue the requested permits to the Owners.  Specifically, they contain discussions about:  ‘the proper scope of analysis for the take and environmental review required as part of the process to determine whether to issue the Incidental Take Permit to [the Owners].  In particular, [U.S. Fish and Wildlife Service (“FWS”)] employees are considering how to analyze the extent to which increased vehicle traffic from the multi-faceted project proposed by [the Owners] would result in additional vehicular strikes of the Federally listed Florida Panther beyond the habitat conservation plan area but within the project's action area.’”  “For certain records, defendants further identify subsidiary decisions.”  The court finds that “Defendants have . . . ‘identif[ied] a number of smaller decisions with specificity’ and have ‘properly pinpointed “sub-decisions” which the record[s] informed and illustrated that these records are predecisional.’”  “Plaintiff counters that the withheld information is not pre-decisional because defendants’ explanation ‘conflates two distinct sub-decisions the agency needs to make:  (1) as a matter of law, how to define the standards for issuing an incidental take permit – here, primarily, whether to apply but-for or proximate causation to determine the effects of the proposed action – and (2) as a matter of fact, whether the Owners’ application satisfies those standards.’”  “As to the first sub-decision, plaintiff contends that discussions of whether but-for or proximate causation applies to the Permit Application are not predecisional because the decision that but-for causation applies ‘was already made.’”  “As to the second sub-decision, plaintiff contends that any discussion of whether the Permit Application satisfies proximate causation is similarly not predecisional because applying proximate causation ‘was never on the table.’”  “Plaintiff’s reasoning is predicated on a mischaracterization of defendants’ declaration.”  “Contrary to plaintiff’s suggestion, defendants do not contend that they were debating, generally, whether proximate cause applies to determine the effects of a proposed action, but, instead, that they were debating how to respond to the specific arguments in the Owners’ White Paper.”  “Defendants’ Vaughn Index confirms this understanding.”  “Thus, the decision at issue was how to respond to the Owners’ White Paper and whether to issue an incidental take permit to Owners – not whether FWS should take an agency-wide position on what the appropriate legal standard to apply when evaluating permit applications, or what this position should be.”  “Plaintiff may be right that FWS ‘had settled on but-for causation well before the Owners submitted their application’ or even that the FWS ‘was not contemplating changing the standard.’”  “Even so, consideration by FWS of the arguments in the Owners’ White Paper urging application of a proximate causation standard when evaluating the Owners’ Permit Application, as well as assessing how to respond to such arguments, would have been perfectly appropriate – and that is precisely what defendants claim to have done.”
   
• Exemption 5, Foreseeable Harm and Other Considerations:  The court holds that “defendants’ foreseeable harm analysis is sufficient.”  The court finds that “defendants specifically focused on the redacted information at issue and concluded that disclosure of this information ‘would’ chill future internal discussion necessary to aid decisions about whether to issue incidental take permits and to produce the documentation required by the Endangered Species Act.”  “They further explained that disclosure of the redacted information, which included initial reactions of individual FWS subordinate employees to the Owners’ White Paper and draft proposed responses, ‘would’ generate confusion to the Owners, other permit applicants, and outside parties, such as by suggesting that these initial reactions were the agency’s final position on specific issues.”  “Defendants’ predicted results of disclosure are ‘exactly what the [deliberative process] privilege seeks to prevent.’”  “That defendants used similar reasoning to show foreseeable harm for each of its redactions is of no concern here, where all the redactions involve responses to and discussions about the same White Paper, and defendants have described their assertations of foreseeable harm with specificity and with adequate context.”
   
• ​​​​​​​Litigation Considerations, “Reasonably Segregable” Showing:  The court relates that “plaintiff does not challenge segregability, and defendants have averred that they ‘review[ed] the records’ to ‘determine[ ] whether any information could be segregated,’ ‘revisited its previous determinations’ while its motion for summary judgment was pending, and released ‘all reasonably segregable factual material.’”  The court finds that “Defendants’ declarations and Vaughn Indexes, credited with being made in good faith, are sufficient to establish the non-segregability of the disputed exempt records.”