Shurtleff v. United States Environmental Protection Agency , 991 F. Supp. 2d 20 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
SEAN D. REYES, )
Attorney General, State of Utah,1 )
)
Plaintiff, )
)
v. ) Civil No. 10-2030 (EGS/DAR)
)
UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY, )
)
Defendant. )
___________________________________)
MEMORANDUM OPINION
Pending before the Court is [46] the U.S. Environmental
Protection Agency’s (“EPA”) Renewed Motion for Summary Judgment.
Upon consideration of the motion, response, reply, the relevant
caselaw and the record as a whole, and for the reasons that
follow, the Renewed Motion is GRANTED.
I. BACKGROUND
This matter arises from Plaintiff’s Freedom of Information
Act (“FOIA”) request to EPA seeking information on the EPA’s
Endangerment Finding, which found that certain greenhouse gases
taken in combination endanger the public health and welfare. The
request was lengthy, consisting of fourteen pages and thirty-
seven subparts, and broad, seeking a tremendous amount of
1
By operation of Federal Rule of Civil Procedure 25(d), Sean D.
Reyes, the Attorney General of the State of Utah, has been
automatically substituted for Mark Shurtleff.
information about the finding. See Compl., Ex. A. The EPA
ultimately located about 13,000 responsive records, of which
approximately 8,200 were released in part, 4,445 were released
in full, and 342 were withheld in full. See Decl. of Elizabeth
Craig (“Craig Decl.”) ¶ 61.
In September 2013, the Court issued a Memorandum Opinion
granting in part and denying in part the EPA’s Motion for
Summary Judgment. Shurtleff v. EPA, No. 10-2030, 2013 U.S.
Dist. LEXIS 140433 (D.D.C. Sept. 30, 2013) (“2013 Opinion”).
Familiarity with the 2013 Opinion is assumed. With regard to
the partial denial of the motion, the Court directed EPA (1)
either to disclose documents withheld under the attorney-client
privilege or file supplemental submissions indicating in
sufficient detail why withholding is proper; and (2) either to
conduct another search for documents responsive to subparts
A(4)(b),(c), A(5)(a),(b),(c),(d),(e), B(1)(a), D(1)(a),(b),
E(2)(a),(b), and F(1)(a) of Plaintiff’s FOIA request, or, in the
alternative, prove that its prior searches meet the adequacy
standard. Id. at *45.
Subsequently, EPA filed the instant Renewed Motion for
Summary Judgment. In support of its Renewed Motion, the EPA
relies upon the Second Supplemental Declaration of Elizabeth
Craig (“Second Supp. Craig Decl.”). Craig is the Director of
the Climate Protection Partnership Division of the Office of
2
Atmospheric Programs in the EPA’s Office of Air and Radiation,
and former Acting Director of the Office of Atmospheric
Programs. Second Supp. Craig Decl. ¶ 1. The EPA’s Renewed
Motion is ripe for review.
II. LEGAL STANDARD
The court may grant a motion for summary judgment if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits or declarations,
show that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c). In a FOIA case, the burden of proof is
on the agency to demonstrate that it has fully discharged its
obligations under the FOIA. See U.S. Dep’t of Justice v. Tax
Analysts, 492 U.S. 136, 142 n.3 (1989) (citations omitted).
III. DISCUSSION
A. Attorney-Client Privilege
FOIA exempts from disclosure “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 attorney-client privilege protects confidential
communications from clients to their attorneys made for the
purpose of securing legal advice or services. The
privilege also protects communications from attorneys to
their clients if the communications “rest on confidential
information obtained from the client.” In the governmental
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context, the “client” may be the agency and the attorney
may be an agency lawyer.
Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997)(citing
Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d
242, 254 (D.C. Cir. 1977)). The agency bears the burden to show
that information exchanged between an agency and its attorneys
is confidential. Privilege only extends to “those members of
the organization who are authorized to act or speak for the
organization in relation to the subject matter of the
communication.” Mead Data, 566 F.2d at 253 n.24.
The Court denied EPA’s first Motion for Summary Judgment as
to records withheld pursuant to the attorney client privilege
for two reasons: (1) EPA failed to specify who received the
documents, thus it did not establish the communications were
confidential; and (2) EPA failed to explain the recipients’
responsibilities, thus, it did not establish that the recipients
were authorized to act or speak for the government in relation
to the subject matter of the communication. Shurtleff, 2013
U.S. Dist. LEXIS 140433, at *34-35. It directed EPA to either
disclose the records, or indicate in sufficient detail why
withholding is proper. Id.Elizabeth Craig’s Second Supplemental Declaration addresses
each of the nine documents withheld or partially withheld
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pursuant to attorney-client privilege.2 See Second Supp. Craig
Decl. ¶¶ 5, 11-18. Additionally, Ms. Craig provides the
redacted documents as Exhibit A to her Declaration. Id. Ex. A.
The documents are email chains between agency counsel and other
agency staff.
Plaintiff claims the EPA fails to establish that the
documents contained legal advice. Opp’n to Renewed Mot. at 9-
10. The Court disagrees. While “[t]he privilege does not
allow the withholding of documents simply because they are the
product of an attorney-client relationship,” Mead Data, 566 F.2d
at 553, it does apply to communications “made for the purpose of
securing primarily . . . an opinion on law.” In re Lindsey, 158
F.3d 1263, 1270 (D.C. Cir. 1998) (citation omitted). As the
most recent Declaration explains, each document pertains to an
2
EPA asserted attorney client privilege as to fourteen
documents; however, as it pointed out in its Renewed Motion,
five of the fourteen were also withheld on the basis of either
deliberative process or attorney work product privilege. See
Renewed Mot. at 4 n.1. Because the Court upheld EPA’s
application of the deliberative process and work product
privilege in the 2013 Opinion, EPA argues, these five documents
have already been deemed properly withheld. Id. Plaintiff
concedes this issue by failing to address it in his opposition
brief. “It is well established that if a [party] fails to
respond to an argument raised in a motion for summary judgment,
it is proper to treat that argument as conceded.” Wilkins v.
Jackson, 750 F. Supp. 2d 160, 162 (D.D.C. 2010) (citations
omitted). Accordingly, since the Court already concluded these
records were properly withheld under FOIA, it need not
separately determine whether they could also be withheld on an
alternative basis. See, e.g., Martin v. U.S. Dep’t of Justice,
488 F.3d 446, 456 (D.C. Cir. 2007).
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issue for which EPA sought the legal advice of its lawyers: (1)
reviewing the EPA’s draft response to public comments on the
Endangerment Finding in order to provide legal advice on how to
respond to certain comments; see EPA2-6968, EPA2-2413, EPA-105;
(2) requesting information from the client in order to provide
legal interpretation and defense of the Endangerment Finding in
response to questions from the White House, petitions for
reconsideration, and congressional inquiries, see EPA2-3150,
EPA2-4349, EPA2-7374, EPA2-7384; (3) reviewing agency
solicitations and providing guidance on legal compliance before
publication, see EPA2-6158; and (4) providing legal advice
regarding then-unreleased air quality standards, resting on
confidential information from client regarding then-ongoing
development of standards, see EPA2-1076. See generally Second
Supp. Craig Decl. ¶¶ 5, 11-18, Ex. A.
Plaintiff also claims that the EPA has not met its burden
to demonstrate that the documents remained confidential. Opp’n
to Renewed Mot. at 9. Again, the Court disagrees. The
declaration and attachment provide the name, job title and
responsibilities of the sender and recipient of each document.
See Second Supp. Craig Decl. ¶¶ 5, 11-18, Ex. A. The senders
and recipients were limited to EPA attorneys, scientists,
analysts, support staff, or senior executives who were
responsible for developing EPA’s position on the underlying
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3
environmental issues. Id. These representations satisfy EPA’s
burden to show the documents were limited to people “authorized
to act or speak for the organization in relation to the subject
matter of the communication.” Mead Data, 566 F.2d at 253, n.24.
Under FOIA, “[i]f a document contains exempt information,
the agency must still release any reasonably segregable portion
after deletion of the nondisclosable portions.” Oglesby v. U.S.
Dep’t of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (internal
quotation marks and citation omitted). Though not specifically
raised by Plaintiff, the Court has “an affirmative duty to
consider the segregability issue sua sponte.” Trans-Pacific
Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028
(D.C. Cir. 1999). The Court is satisfied that EPA has fulfilled
this burden based on Ms. Craig’s most recent Declaration. She
provides the redacted documents as attachments to her
Declaration, and, more importantly, describes the information
that was redacted or withheld in detail.
3
One of the withheld documents involved a communication between
EPA counsel and Counselor for Energy and Climate Change in the
White House. See Second Supp. Craig. Decl., Ex. A, EPA2-4349
(inquiry from White House to EPA attorney seeking legal guidance
related to Endangerment Finding). The Court agrees with EPA --
and plaintiff does not dispute -- that because the White House
official “was seeking advice on a matter within the scope of her
official duties and was authorized to act or speak for the
Federal Government in relation to the subject matter of her
communication with [the EPA attorney], the EPA’s application of
the attorney-client privilege to redact EPA 2-4349 was proper.”
Renewed Mot. at 5-6.
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B. Adequacy of the Search
In response to a challenge to the adequacy of its search
for requested records, “the agency may meet its burden by
providing ‘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 . . . were
searched.’” Iturralde v. Comptroller of the Currency, 315 F.3d
311, 313-14 (D.C. Cir. 2003) (citations omitted). In addition,
“[a]ny factual assertions contained in affidavits and other
attachments in support of motions for summary judgment are
accepted as true unless the nonmoving party submits affidavits
or other documentary evidence contradicting those assertions.”
Wilson v. U.S. Dep’t of Transp., 730 F. Supp. 2d 140, 148
(D.D.C. 2010) (citations omitted).
In the 2013 Opinion, the Court denied EPA’s motion for
summary judgment as to the adequacy of the search for documents
responsive to the subparts of Plaintiff’s FOIA request that did
not appear to be included in EPA’s three search phases:
A(4)(b),(c), A(5)(a),(b),(c),(d),(e), B(1)(a), D(1)(a),(b),
E(2)(a),(b), and F(1)(a). Shurtleff, 2013 U.S. Dist. LEXIS
140433, at *16-18 (noting that the Agency provided almost no
details about searches for documents responsive to these
subparts). Accordingly, the Court directed EPA to conduct new
8
searches or prove that its prior searches meet the adequacy
standard. Id.In a previous declaration by Elizabeth Craig, she explained
that EPA held several planning meetings immediately after
receiving plaintiff’s FOIA request “to clarify and interpret the
broad and ambiguous aspects of the 37-part FOIA request,
identify relevant individuals throughout the Agency who may have
responsive documents, and develop instructions for conducting
the search.” Supplemental Craig Decl. ¶ 17. During these
planning meetings, it was determined that the Climate Change
Division (“CCD”) was the only office likely to have documents
responsive to the subparts at issue in the Renewed Motion for
Summary Judgment, because these subparts requested records
pertaining to work being performed by CCD on the Endangerment
Finding. Id.In support of its Renewed Motion for Summary Judgment, the
EPA submitted the Second Supplemental Declaration of Elizabeth
Craig. The Declaration describes the specific steps taken in
response to plaintiff’s requests for the remaining subparts.
EPA determined that it possessed no responsive documents with
respect to several of plaintiff’s requests, or that responsive
documents were publicly available. Second Supp. Craig Decl. ¶¶
20-27. With respect to other requests, the agency conducted
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searches but found no responsive documents. Id. ¶¶ 28. Finally,
EPA produced records as to other requests. Id. ¶¶ 29-33.
Plaintiff raises two arguments in response. First, he
argues that EPA’s decision not to conduct searches responsive to
certain requests was inadequate. Opp’n to Renewed Mot. at 4.
Second, he argues that the searches conducted failed to
adequately explain the methodology of the search and were
unreasonably limited to certain offices and individuals. Id.
The Court considers each in turn.
1) No Search Conducted: Subparts A(4)(b),(c), A(5)(a)-(e),
B(1)(a), and D(1)
The EPA argues that it reasonably concluded it possessed no
documents responsive to subparts A4(b),(c) and D(1) of
plaintiff’s request.4 Subparts A4(b) and (c) sought information
pertaining to any EPA “investigation” of the scientific
credibility of reports prepared by the Intergovernmental Panel
on Climate Change (“IPCC”). Second Supp. Craig Decl., Ex. B,
FOIA Request at 5. The EPA’s Climate Change Division considered
the request and concluded it had no responsive records because
4
In its Renewed Motion and supporting Declaration, EPA also
explains the basis for its determination that it possessed no
responsive information with respect to subparts A(5)(a)-(e) and
B(1)(a). See Second Supp. Craig Decl. ¶¶ 22-25. Plaintiff
failed to contest these arguments in his response. See Reply in
Support of Renewed Mot. at 5. The Court will therefore treat
any challenges to the adequacy of Defendant’s search as to these
subsections as conceded. See Judicial Watch, Inc. v. U.S. Dep’t
of Hous. And Urban Dev., Case No. 12-1785, 2014 U.S. Dist. LEXIS
25882, at *14 n.5 (D.D.C. Feb. 28, 2014) (citations omitted).
10
EPA did not conduct an investigation of the scientific
credibility of the reports. Second Supp. Craig Decl. ¶¶ 20-21.
Subpart D(1)(a) sought raw temperature data developed by the
United Kingdom’s Hadley Centre. Because the EPA did not create,
possess, or control the raw temperature data, it determined that
it had no records responsive to subpart D(1)(a). Id. ¶¶ 26-27.
In his opposition, plaintiff argues that the Agency’s
interpretation of 4(b) and (c) was too narrow, and led to “the
self-serving result that no search was even attempted.” Opp’n
to Renewed Mot. at 5. Plaintiff does not, however, explain the
basis for his argument, or offer an alternative interpretation
of his request. He also argues, perplexingly, that EPA’s
“decision to limit the FOIA request to what it created or
currently possesses” was unreasonable with respect to subpart
D(1). Id. Again, he does not explain the basis for his
argument or indicate how EPA could produce documents it did not
possess.
“The adequacy of an agency’s search for responsive records
‘is measured by the reasonableness of the effort in light of the
specific request.’” McKinley v. FDIC, 807 F. Supp. 2d 1, 4
(D.D.C. 2011) (quoting Larson v. Dep’t of State, 565 F.3d 857,
869 (D.C. Cir. 2009)). An agency is not required to expend its
limited resources on searches for which it is clear at the
outset that no search will produce the records sought. Sack v.
11
U.S. Dep’t of Def., No. 12-1754, 2013 U.S. Dist. LEXIS 173317,
at *22 (D.D.C. Dec. 9, 2013). The Court finds that the EPA’s
explanation, derived from multiple planning meetings by EPA and
CCD staff to determine how to respond to Plaintiff’s broad and
complex request, demonstrates that EPA appropriately approached
Plaintiff’s requests, and that searches for documents that it
never had or no longer possessed would be futile. “Where . . .
the Government’s declarations establish that a search would be
futile . . . the reasonable search required by FOIA may be no
search at all.” Amnesty Int’l USA v. CIA, No. 07-Civ.-5435,
2008 U.S. Dist. LEXIS 47882, at *34 n.17 (S.D.N.Y. June 19,
2008).
2) Search Methodology, Offices and Individuals: Subparts
D(1)(b), E(2)(a),(b), and F(1)(a)
Ms. Craig’s Second Supplemental Declaration explains that
EPA searched for documents responsive to subparts D(1)(b) and
E(2)(a)-(b). In subpart D(1)(b), Plaintiff requested documents
showing how raw temperature data developed by the United
Kingdom’s Hadley Centre “were adjusted to create the HadCRUT
data set . . . [including] specific calculations that were made
in adjusting the data.” Second Supp. Craig Decl., Ex. B, FOIA
Request at 10. In subparts E(2)(a) and (b), Plaintiff requested
documents regarding EPA’s analysis of a study relating to
temperature records (“Easterling and Wehner study”). Id. at 11.
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During the agency’s multiple planning meetings to determine
how to respond to Plaintiff’s FOIA request, only two individuals
were identified who might possess any responsive records to
D(1)(b), E(2)(a) or E(2)(b): CCD Climate Change Analysts Marcus
Sarofim and James Samenow, the two employees responsible for the
temperature record portions of the Endangerment Finding. Second
Supp. Craig Decl. ¶¶ 28, 30. Dr. Sarofim and Mr. Samenow
attended the planning meetings. Id. ¶ 30. Upon discussion with
these individuals, it was determined that they had done no work
with the raw Hadley Centre data or made any calculations to
adjust them; they worked only with the fully processed data.
Id. ¶ 28. Nevertheless, they searched their emails, calendar
files, electronic files in their personal drives and on network
drives, and paper files, using the search term “HadCRUT.” They
found no responsive records. Id. With respect to the Easterling
and Wehner study, Sarofim and Samenow searched the same
electronic and paper files using the search terms “Easterling”
and “Wehner” and submitted responsive documents to the
collection database. Id. ¶ 30.
Finally, in subpart F(1)(a), Plaintiff requested all
communications between EPA employees and twelve federal experts
who conducted peer review of the Endangerment Finding. Second
Supp. Craig Decl. Ex. B, FOIA Request at 12. In determining how
to respond to this portion of the request, EPA identified a very
13
similar FOIA request submitted just a few months earlier, for
“the entire EPA Peer Review Record . . . detailing the peer
review process conducted in connection with the Endangerment
Finding.” Second Suppl. Craig Decl. ¶ 32. In response to that
request, EPA identified thirty one employees who might have
responsive records, and these individuals searched all of their
electronic and paper files for records related to the peer
review process. Id. ¶ 33. Accordingly, EPA determined that a
new search would not turn up any additional records and produced
to Plaintiffs the records it had produced in response to the
earlier FOIA request. Id. ¶ 32.
Plaintiff claims that EPA’s searches were inadequate for a
variety of reasons: lack of detail, unexplained methodology,
and failure to search all relevant locations and/or the files of
all relevant individuals. Opp’n to Renewed Mot. at 5-7. None
of these claims are persuasive. Taken together, the Craig
Declarations provide detailed descriptions of the EPA’s search
for documents responsive to subparts D(1)(b), E(2)(a),(b),
F(1)(a), including the methodology used for determining how to
respond to the FOIA request, the manner in which relevant
individuals and offices were identified as possessing responsive
documents and the reasons for such identification, the filing
systems and files searched, and the search terms used. See,
e.g., Craig Decl. ¶¶ 17, 23-27, 29-30, 32; Supp. Craig Decl. ¶¶
14
13-15, 17, 19, Second Supp. Craig Decl. ¶¶ 28-33. The
Declarations “describe in . . . detail what records were
searched, by whom, and through what process.” Steinberg v. U.S.
Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994) (citation
omitted). Moreover, plaintiff does not identify other files,
search terms, documents, offices, or individuals which would
likely possess responsive records to these subparts. Rather, he
argues that “the EPA offers no evidence for the Court to
conclude that no other departments within EPA possess documents
or information responsive to the FOIA request.” Opp’n to
Renewed Mot. at 6 (emphasis in original). Plaintiff
misunderstands the standard for adequacy of a search under FOIA.
As this Circuit has made clear, “[t]he issue is not whether any
further documents might conceivably exist but rather whether the
government’s search for responsive documents was adequate.”
Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (per curiam).5
5
The cases on which Plaintiff relies, Defenders of Wildlife
v. U.S. Border Patrol, 623 F. Supp. 2d 83 (D.D.C. 2009) and
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir.
1999), are easily distinguishable. See Opp’n to Renewed Mot. to
Summ. J. 6. In Defenders of Wildlife, the agency declarations
contained no explanation of what methods were used to conduct
the searches, the rationale for searching the selected
locations, or what files were searched. 623 F. Supp. 2d at 91-
92. In Valencia-Lucena, the agency informed the requester that
responsive records were likely located in a different office,
but declined to search that office. 180 F.3d at 327.
15
Taken together, the detailed, non-conclusory affidavits
submitted by Ms. Craig satisfy this standard of reasonableness.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Renewed Motion for
Summary Judgment will be GRANTED. A separate order accompanies
this Memorandum Opinion.
SIGNED: Emmet G. Sullivan
United States District Judge
June 13, 2014
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