Court: Court of Appeals for the D.C. Circuit; September 27, 2018; Federal Appellate Court
Plaintiff law firm Hunton, Williams LLP filed a FOIA lawsuit against the U.S. Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers (USACE), and the U.S. Department of the Army regarding nine FOIA requests related to Clean Water Act (CWA) and Rivers and Harbors Act (RHA) jurisdiction over an industrial site in Redwood City, California. Hunton's client sought an Approved Jurisdictional Determination (AJD) in 2012 to clarify federal jurisdiction over the site, which is crucial for permitting under the CWA and RHA for redevelopment plans. The Corps drafted an AJD in 2014, but the Army intervened for a legal review, after which the EPA exercised its authority to oversee the CWA determination. As of the Court's awareness, the EPA had not issued the CWA portion of the AJD. Hunton filed FOIA requests to understand the agencies' decision-making and subsequently challenged their responses in court. The agencies moved for summary judgment on their responses, while Hunton sought partial summary judgment regarding withheld information under FOIA Exemptions 5 and 6. The Court determined the agencies conducted adequate searches and justified some withholdings under FOIA exemptions. However, the Court found the agencies insufficiently justified certain withholdings under Exemption 5's deliberative process privilege and the Corps’ claims under attorney-work product and attorney-client privileges. Consequently, the Court ordered supplemental briefing and in camera review of selected documents. It granted the agencies summary judgment on most withholdings but denied it for a few unjustified redactions, ordering the release of improperly withheld information without requiring reprocessing of the records due to the low error rate observed in this review.
The Corps has exclusive authority to issue Approved Jurisdictional Determinations (AJDs) for jurisdiction under the Rivers and Harbors Act (RHA), while both the Corps and the Environmental Protection Agency (EPA) share authority for Clean Water Act (CWA) jurisdiction. In 2012, Saltworks requested the EPA to issue the CWA portion of an AJD due to the EPA's familiarity with the industrial site. However, the EPA initially declined, stating the Corps would handle both portions with some EPA involvement regarding the CWA. By early 2014, the Corps was nearing completion of its AJD review when the EPA and the Army intervened, with the Assistant Secretary of the Army instructing the Corps to withhold the AJD pending a legal and policy review that did not address the substantive jurisdictional questions.
After the Army concluded its review in November 2014, the Corps drafted an AJD addressing both RHA and CWA jurisdiction and submitted it to the EPA. In March 2015, the EPA invoked its 'special case' authority to take over the CWA portion, resulting in the Corps issuing an AJD that covered only RHA jurisdiction. As of now, the EPA has not issued a decision regarding CWA jurisdiction. To obtain information on the decision-making processes of the EPA, Corps, and Army, Hunton filed multiple Freedom of Information Act (FOIA) requests, seeking documents related to the DMB Redwood City Salt Plant since January 2014, including communications with various governmental entities and third parties. Hunton also requested the final CWA jurisdictional determination prepared for signature by Major General Peabody, regardless of whether it was signed.
In May 2014, Hunton submitted a document request to the Corps that mirrored a previous request to the EPA and subsequently expanded the date range of that request. In March 2015, a similar request was made to the Army without any temporal expansion. Dissatisfied with the responses from the agencies, Hunton initiated legal action. The Court found that all three agencies conducted adequate searches for responsive records. Summary judgment was granted to the Army regarding its withholdings under Exemption 5 for attorney-client privilege and under Exemption 6 for employee contact information. However, the Court denied summary judgment on the Army's withholding of employee names under Exemption 6, ordering their release, and also denied summary judgment for all agencies on Exemption 5 withholdings related to the deliberative process privilege due to insufficient justification. Additionally, the Corps was denied summary judgment on its Exemption 5 claims. The Court ordered supplemental briefing for the agencies to clarify their redactions and required submission of a representative selection of documents for in camera review. After reviewing the submitted documents and the agencies' updated Vaughn Indices, the Court granted summary judgment on most redactions while denying it for a few. The legal standard for FOIA emphasizes broad disclosure of government documents, with certain exemptions, and mandates the release of reasonably segregable information even when some parts are exempt. FOIA cases are typically resolved through summary judgment motions when there are no genuine disputes regarding material facts.
A dispute is considered 'genuine' if sufficient evidence exists for a reasonable jury to favor the non-movant. In summary judgment motions, courts must avoid credibility assessments and focus on facts favorable to the non-movant. Agencies seeking summary judgment must provide detailed justifications for claimed exemptions, correlating these to specific withheld documents. Courts may conduct in camera reviews of disputed documents to assess the legitimacy of exemptions. Agencies' explanations are reviewed de novo, with courts endorsing decisions when justifications are deemed logical or plausible. However, exemptions must be narrowly construed, and vague claims are insufficient. A non-movant's lack of response does not automatically concede the motion for summary judgment; the burden remains with the movant. The District Court must evaluate whether undisputed facts warrant summary judgment independently, reviewing all redactions, even unchallenged ones. The Court, after granting summary judgment on agencies' search adequacy and some withholdings, is tasked with determining the validity of Exemption 5 claims concerning the deliberative process privilege and attorney-related privileges, as well as reviewing Exemption 6 claims. Ultimately, the Court grants summary judgment to the EPA and Army for their Exemption 5 claims, partially grants the Corps' Exemption 5 claims, and assesses Exemption 6 claims accordingly.
Exemption 5 safeguards inter-agency or intra-agency communications that are not legally accessible to parties involved in litigation with the agency, reflecting privileges typical in civil discovery. This includes the attorney-client privilege, attorney work product privilege, and deliberative process privilege. In the current case, the Court previously determined that the agencies did not adequately justify their withholding of documents under Exemption 5, specifically related to the deliberative process privilege. In the renewed motion for summary judgment, the plaintiff challenges only one Vaughn Index entry and requests an in camera review to verify the appropriateness of redactions. The Court has reviewed the withheld documents and grants summary judgment in favor of the Army and EPA regarding their withholdings but only partially in favor of the Corps. The deliberative process privilege protects documents that reflect advisory opinions and deliberations integral to governmental decision-making, allowing for unfettered discussion within agencies. To invoke this privilege, an agency must show that the withheld information is both predecisional (created prior to policy adoption) and deliberative (reflecting consultative discourse). Agencies must provide specific details about the deliberative process, the importance of the document, and the decision-making authority of its author and recipient to justify withholding under this privilege. If an agency fails to supply sufficient information to evaluate the applicability of the privilege, the court may deny summary judgment.
The court in Nat'l Sec. Counselors v. CIA emphasized that for an agency to invoke the deliberative process privilege under FOIA exemptions, it must demonstrate that disclosure would harm the decision-making process, rather than merely alleging potential harm. Specific and detailed evidence is required to justify withholding documents, and the agency must connect individual records to a specific decision-making process. In evaluating the Environmental Protection Agency's (EPA) claims, the court found that the EPA had not adequately detailed its decision-making processes or the role of withheld records within those processes. Consequently, the court ordered the EPA to provide a sample of the withheld documents for in camera review to assess whether they were both predecisional and deliberative. The court acknowledged that the EPA's supplemental Vaughn Index generally supported the argument that the redacted materials were predecisional and deliberative, primarily relating to EPA Region 9's request to place the Cargill AJD on a special case list, as well as the coordination with other agencies like the Army and the Corps on this matter.
Each entry in the Vaughn Index clarifies the decision-making process relevant to the withheld documents. The EPA has effectively shown that the withheld portions are either deliberative or detail a deliberative process. The withheld documents include drafts, talking points, suggested edits, handwritten notes, emails requesting advice, and summaries of non-finalized documents. All of these were appropriately withheld under the deliberative process privilege, which protects documents that reflect personal opinions rather than agency policy, as established in Coastal States Gas Corp. The 'final' draft AJD, a draft containing jurisdictional determinations under the RHA and CWA, was particularly noted and was prepared for release just before the EPA decided to take over jurisdictional determinations. The Court had previously agreed with the EPA that this draft could be protected under the deliberative process privilege, as it was never finalized or adopted by any agency. The Corps justified withholding this draft by stating it was never signed or issued, a position echoed by the EPA in its Vaughn Index. While the Court found it plausible that this draft was exempt from disclosure, it required clarification on how such decisions are made and documented. Upon review, the Court determined that the draft did not represent a final decision in the CWA AJD process; rather, it was a proposal allowing the EPA to choose to finalize it or provide its own analysis.
The Court grants summary judgment to the EPA regarding the withholding of a document under the deliberative process privilege, as it confirms the document's role in the AJD process. In prior evaluations, the Court indicated it would look for any 'secret law'—orders and interpretations applied by the agency that should not be concealed under privilege. Upon reviewing the EPA's documents, the Court found no evidence of secret law, determining that all redactions were predecisional and deliberative.
For the Army, the Court also grants summary judgment on its withholdings under the deliberative process privilege. The Army's Vaughn Index and declarations were deemed insufficiently detailed to justify the application of the privilege, lacking clarity on the deliberative process and potential harms from disclosure. The Court noted that before assessing whether the Army's legal and policy review constituted a deliberative process, it needed to discern the nature of this review. The Army contended that its review was not a reexamination of past behaviors but an assessment of current procedures used by the Corps for an AJD. It argued that this review was part of an ongoing deliberative process, asserting that the documents reflected the consultative nature of decision-making and were thus protected by the privilege.
The Court reviewed the Army's supplemental Vaughn Index and sample documents, agreeing that many submitted documents, primarily emails, pertain to the Army's review process, including discussions about the review's necessity, logistics, and decision-making. The documents consist of emails coordinating with external agencies and drafts of the review, all deemed to fall under the deliberative process privilege, as they are predecisional and contribute to the Army's decision-making. Consequently, the Court granted the Army’s motion for summary judgment regarding its redactions based on this privilege.
Regarding the Corps, the Court previously denied summary judgment due to insufficient detail in the Vaughn index. However, after the Corps provided additional information and documents for in camera review, the Court found that most documents were appropriately redacted under the deliberative process privilege. The supplemental Vaughn Index clarified the deliberative processes being protected, allowing the Court to rule that most emails fit within Exemption 5. However, three emails, including one from Corps Major General John Peabody to Brigadier General Mark Toy and others, were not protected as they contained directives to subordinates, which do not qualify for the privilege.
Instructions to staff do not qualify for the deliberative process privilege, yet the Corps seeks to justify redactions by claiming the guidance is based on legal advice from the Chief Counsel. However, the Corps only cites 'deliberative' and 'opinion' as reasons for redaction, without invoking attorney-client privilege. The absence of clear legal advice in the email content undermines this justification. Since the emails are directives, they cannot be withheld under the deliberative process privilege, which is the sole basis for the agency's redactions, necessitating their release.
Hunton argues that the three defendant agencies have not adequately demonstrated that the redacted portions of the documents meet the deliberative process privilege criteria. Specifically, Hunton contests one entry regarding HQ USACE007348-51, claiming the description of the document as an "editorial conversation" is too vague and does not clarify its role in the deliberative process. Upon in camera review, the Court concludes that this email exchange does relay a Corps attorney's candid opinion about the legal and policy review outcomes and their impact on adjudicating the Cargill JD. This type of communication is protected under the deliberative process privilege as it reflects personal opinions rather than agency policy.
The Court grants summary judgment to the Corps on its deliberative process privilege claims, except for the documents previously mentioned. Regarding the attorney-client privilege, the Court previously granted summary judgment to the Army but denied it to the Corps due to insufficient detail in its Vaughn Index. The Corps' prior index failed to identify the client and lawyer or confirm whether legal advice was sought. In this round, the Court finds that most documents claimed under the attorney-client privilege by the Corps now meet the criteria for such protection.
The attorney-client privilege safeguards confidential communications between clients and attorneys aimed at obtaining legal advice or services. This privilege extends to communications from attorneys to clients that rely on confidential information from the client. In governmental contexts, the agency acts as the client, and the agency's lawyer serves as the attorney. The government must provide detailed proof that withheld information falls under this privilege, demonstrating four key points: (1) the privilege holder is a client, (2) the recipient is a licensed attorney or subordinate acting in a legal capacity, (3) the communication pertains to facts shared by the client for legal advice, and (4) the privilege has been claimed by the client.
The privilege also includes attorneys' opinions based on client information and communications reflecting client-supplied data. Most withheld documents from the Corps consist of emails among Corps attorneys and officials, or between officials with attorneys copied, all of which fall under the privilege when discussing legal advice related to the AJD process. However, the Corps has challenged previous court findings about inadequate explanations for including emails where attorneys were only carbon copied. They argue that carbon copying an attorney is essential for providing legal advice, asserting that it would be inconsistent to protect a conversation if forwarded to an attorney but not if the attorney was merely copied.
The Court rejects the analogy presented by the Corps regarding email communications and attorney-client privilege, clarifying that while forwarded emails may be privileged, original communications without the intent to seek legal advice are not. The Court asserts that neither of the examined email exchanges qualifies for attorney-client privilege, though both fall under the deliberative process privilege. Citing the D.C. Circuit in *In re Kellogg Brown Root, Inc.*, the Court emphasizes that a communication can be privileged if obtaining legal advice is one of its primary purposes.
Upon reviewing the Corps' Vaughn Index, the Court identifies instances where the Corps improperly sought to withhold documents under attorney-client privilege despite legal advice not being a primary reason for the communications. In Document 1263, an email from Jane Hicks to LTC Morrow and others discusses what documents could be shared with the EPA, lacking engagement with legal counsel and thus not qualifying for attorney-client privilege; however, it is protected under the deliberative process privilege due to its advisory nature.
Similarly, two emails on Bates Nos. HQUSACE002210-11, including one from Corps Director Steve Stockton to Chief of Engineers Tom Bostick, contain suggestions for future actions but do not convey privileged legal advice, thus also falling under the deliberative process privilege. The second email from Mr. Stockdale reiterates expected future actions without privileged content. Additionally, Hunton's motion for summary judgment included objections to the Corps' claims of attorney-client privilege for attorney notations on documents, also based on Exemption 5.
The Court has reserved judgment on the appropriateness of certain redactions made by the Corps, pending an in camera review. It indicated that redaction is typically allowed in this jurisdiction unless it undermines the privilege. The Corps claims the redactions are justified under the attorney-client privilege, asserting that the highlights were used for internal communications among agency counsel concerning the jurisdictional determination (AJD). However, the Court is not convinced of the validity of these redactions, noting that the highlighted material consists solely of factual information and statistics—elements that are generally not protected by attorney-client privilege. The markings are described as basic annotations like "excerpts," arrows, and circles, which do not indicate privileged communication aimed at obtaining legal advice.
Furthermore, the Court indicates a lack of clarity regarding how the highlighted portions facilitate communication for legal advice. The Corps failed to demonstrate that the highlighted markings are covered by attorney-client privilege. Conversely, the documents fall under deliberative process privilege, as they contain recommendations from Corps attorneys to staff about which sections were pertinent to the Cargill AJD process. The highlighted portions represent the attorney's selection of relevant facts, and if released with redactions, could reveal the attorneys' assessments based on the location of the redactions. The deliberative process privilege protects the internal advice and opinions of the agency, allowing disclosure of underlying facts only if they do not indirectly expose the agency's deliberative communications. Courts in this jurisdiction recognize that even acknowledged information remains protected under certain conditions.
A known datum's context or frequency may constitute information the government can withhold, as established in *ACLU v. CIA*, 105 F.Supp.3d 35, 52 (D.D.C. 2015). In this case, similar to *ACLU v. CIA*, the documents include judgments made by their authors regarding the importance of certain facts. Revealing which facts were chosen for inclusion or the topics selected for review could expose the internal thought processes of agency officials. Although the highlights in these documents are not protected by attorney-client privilege, they were rightly withheld under the deliberative process privilege.
Regarding the attorney work product privilege under Exemption 5, the Court initially ruled against the Corps as it failed to demonstrate that the records were prepared due to potential litigation. However, the Corps later provided an email indicating that agency attorneys had advised clients on protective measures as early as 2007, suggesting litigation was anticipated. Hunton contended that this email did not sufficiently prove that the documents were created in anticipation of litigation. The Court determined that most of the documents were appropriately redacted under Exemption 5 and the work product privilege, which shields materials prepared in anticipation of litigation. The privilege protects an attorney's mental impressions, conclusions, opinions, and legal theories, as well as factual materials prepared for litigation. The privilege is not absolute; it does not apply to documents created solely because litigation is possible, as this would undermine FOIA policies. The Court applies a "because of" test to ascertain whether documents were prepared due to the prospect of litigation, requiring the agency to describe the nature and contents of withheld documents and identify their authors.
The excerpt addresses the legal considerations surrounding the withholding of documents under various privileges during litigation involving the U.S. Army Corps of Engineers. It specifies that the agency's counsel was involved early in the document creation process to enhance the agency's legal stance in potential litigation. Most documents reviewed, including attorney consultations and drafts, were related to strengthening the agency's position regarding the AJD process in anticipation of challenges from entities like Saltworks or environmental organizations. Some documents were labeled as attorney work product without adequate justification for that classification, which the court found insufficient, leading to the conclusion that they could not be withheld based on that privilege. However, these drafts were appropriately protected under the deliberative process privilege. Additionally, the agency invoked FOIA Exemption 6 to withhold certain information, specifically contact details of personnel, while the names of personnel were not exempted from disclosure. The court affirmed the agency's right to withhold documents under the deliberative process privilege but noted the lack of justification for withholding others under the work product doctrine.
The Court allowed the Corps to redact personal contact details and conference call numbers of its personnel, finding that Hunton failed to demonstrate how public interest in disclosing this information outweighed the personnel's privacy interests. The Court did not address the EPA's Exemption 6 redactions at this stage. All three agencies submitted documents for in camera review that included Exemption 6 redactions, which the Court assessed for appropriateness. Under FOIA, personal information must be released unless a significant privacy interest is at stake, defined as anything exceeding a de minimis privacy interest. If a substantial privacy interest exists, it must be weighed against the public’s interest in disclosure, specifically regarding the agency’s performance and transparency.
In reviewing the EPA's redactions, the Court noted that it had not required the EPA to provide a Vaughn Index for all Exemption 6 redactions, only for those challenged by Hunton, who contested one redaction concerning an employee's health—falling under Exemption 6's medical files exception. The documents under review contained other redactions, including an employee's work email and mobile phone number, which Hunton did not challenge. As Hunton failed to identify any public interest in disclosing this information, the Court granted the EPA summary judgment on these redactions. The EPA also redacted information about vacation hours for two employees, which the Court found to involve more than a de minimis privacy interest, leading to a similar summary judgment in favor of the EPA. The Court then planned to review the Army's Exemption 6 redactions next.
The Court previously granted the Army summary judgment for redacting the contact information of personnel below general officer or senior executive service levels but ordered the disclosure of their names due to public interest. Despite this, the Army has continued to redact these names in documents submitted for in camera review, without justification or inclusion in its Vaughn Index. The Court anticipates compliance with the order post-final judgment. Regarding the Corps, the Court had previously upheld its redactions of conference call numbers but found unsubstantiated redactions of names in two specific documents, necessitating their disclosure.
The Court emphasized that under the Freedom of Information Act (FOIA), agencies must release any reasonably segregable non-exempt portions of records. It confirmed that the three defendant agencies had released all reasonable non-exempt text, but noted the need for a remedy for erroneous redactions. Courts require agencies to reprocess documents when a significant misapplication of FOIA exemptions is found. Here, although the error rate in a sample was low, the Court noted that two specific documents were wrongfully withheld under Exemption 5.
Mislabeled documents that were withheld under attorney-client or work product privilege were appropriately withheld under the deliberative process privilege. The role of Corps attorneys in the AJD process, as revealed by in camera review, suggests that any records involving them would likely be deliberative in nature. Courts do not require agencies to reprocess all records if a negligible error rate in sample documents is identified. In this case, with only two errors out of 168 documents (an error rate of over one percent), and two emails in 120 documents withheld under Exemption 5, the court concluded the error rates were too low to necessitate reprocessing. The court ordered the release of only the improperly withheld portions of sample documents, granting the agencies summary judgment otherwise. The agencies must release a small amount of previously withheld information but will not be required to reprocess thousands of pages of records. The court also noted that objections to the use of Exemption 6 were insufficiently developed and therefore deemed waived. Additionally, specific documents claimed under work product privilege were determined to be properly withheld under deliberative process or attorney-client privilege. The court retains the authority to enter summary judgment sua sponte, provided the parties are notified to present their evidence.
