United States District Court, D. Alaska
ORDER MOTION FOR MISCELLANEOUS RELIEF
H. RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE
Defendant moves for summary judgment that it properly withheld documents in response to plaintiff’s FOIA request pursuant to FOIA Exemption 5 and for an order that it properly asserted the deliberative process privilege in response to plaintiff’s discovery request in Case No. 3:14-cv-0171-HRH. This motion is opposed. Oral argument was requested but is not deemed necessary.
Plaintiff is the Pebble Limited Partnership. Defendant is the United States Environmental Protection Agency.
In the -171 case, plaintiff alleged the defendants formed three advisory committees to assist the EPA “in developing and implementing an unprecedented plan to assert EPA’s purported authority under Section 404(c) of the federal Clean Water Act ... in a manner that will effectively preclude [p]laintiff from exercising its right through the normal permit process to extract minerals from the Pebble Mine deposit in Southwest Alaska.” Plaintiff alleged that these three committees were formed in violation of the Federal Advisory Committee Act (FACA), 5 U.S.C. app. 2 §§ 1-16. In response to plaintiff’s request for production, the defendants produced 118 documents in redacted form, claiming a deliberative process privilege as to some of the documents. Plaintiff contends that the defendants should have produced the documents in unredacted form.
The instant action is brought pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. In its January 22, 2014 FOIA request, plaintiff sought information having to do with its plans to develop the Pebble Deposit. Plaintiff alleges that defendant improperly withheld documents pursuant to FOIA Exemption 5, the deliberative process exemption. Defendant contends that it properly asserted the deliberative process exemption.
In order to resolve the deliberative process issues in both the instant case and the -171 case, the court ordered defendant to
submit ... for in camera review, in both redacted and unredacted form, the 118 documents referenced in Appendix A of plaintiff’s request for production in Pebble Ltd. P’ship v. EPA, No. 3:14-cv-00171, as well as a random sample of 50% of the documents listed in defendant’s Vaughn index as being withheld in full.
On September 16, 2015, defendant made a discretionary release of documents and portions of documents that it had previously withheld. Also on September 16, 2015, defendant submitted documents for the court’s in camera review. Because of defendant’s discretionary release, of the 118 Appendix A documents (the FACA documents), defendant submitted only 28 documents for in camera review. As for the Vaughn index documents (the FOIA documents), defendant selected 65 of the 130 documents withheld in full but then submitted only 40 of those 65 documents for in camera review because of its discretionary release.
Defendant now moves for summary judgment that it properly asserted the deliberative process exemption in response to plaintiff’s January 2014 FOIA request and for an order that it properly asserted the deliberative process privilege as to the 28 FACA documents.
The FOIA Documents
“Exemption 5 permits nondisclosure of ‘inter-agency or intra-agency memorandums [sic] or letters which would not be available by law to a party other than an agency in litigation with the agency.’” Carter v. U.S. Dep’t of Commerce, 307 F.3d 1084, 1088 (9th Cir. 2002) (quoting 5 U.S.C. § 552(b)(5)). “This provision shields ‘those documents, and only those documents, normally privileged in the civil discovery context.’” Id. (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)). “Accordingly, it includes a ‘deliberative process’ privilege.” Id. at 1088-89 (quoting Dep’t of Interior v. Klamath Water Users Protective Assoc., 532 U.S. 1, 8 (2001)). “The purpose of this privilege is ‘to allow agencies freely to explore possibilities, engage in internal debates, or play devil’s advocate without fear of public scrutiny.’” Id. at 1089 (quoting Assembly of State of Cal. v. U.S. Dept’ of Commerce, 968 F.2d 916, 920 (9th Cir. 1992)).
“To qualify for exemption 5 under the ‘deliberative process’ privilege, a document must be both (1) ‘predecisional’ or ‘antecedent to the adoption of agency policy’ and (2) ‘deliberative, ’ meaning ‘it must actually be related to the process by which policies are formulated.’” Nat’l Wildlife Federation v. U.S. Forest Service, 861 F.2d 1114, 1117 (9th Cir. 1988) (quoting Jordan v. United States Dep’t of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978)). “These twin requirements recognize that the underlying purpose of this privilege is to ‘protect the consultative functions of government by maintaining the confidentiality of advisory ...