Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pebble Limited Partnership v. United States Environmental Protection Agency

United States District Court, D. Alaska

June 14, 2016

PEBBLE LIMITED PARTNERSHIP, Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant.

          ORDER

          H. RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE.

         In Camera Review

         In this FOIA action, plaintiff alleged that defendant had not done an adequate search for responsive documents and that defendant had improperly asserted FOIA Exemptions 5 and 6 with respect to certain documents. Defendant moved for summary judgment and on August 24, 2015, the court granted the motion as to the adequacy of defendant's search and defendant's assertion of Exemption 6.[1] As to the Exemption 5 issue, defendant was ordered to submit to the court certain documents for in camera review and the parties were given leave to submit additional briefing on the Exemption 5 issue.[2] In its supplemental opening brief, defendant again moved for summary judgment that it had properly withheld documents pursuant to Exemption 5.[3]

         The court granted defendant's second motion for summary judgment in part and denied it in part.[4] Defendant's second motion for summary judgment was granted as to the "FACA documents", [5] which were 28 documents referenced in Appendix A of plaintiff's request for production in Pebble Limited Partnership v. EPA, Case No. 3:14-cv-00171-HRH. Defendant's second motion for summary judgment was denied as to the FOIA documents, [6] which were the Vaughn index documents. Defendant was order "to (1) reevaluate all of the documents that it withheld in full pursuant to FOIA Exemption 5 when responding to plaintiff's January 2014 FOIA request and (2) report the results of the reevaluation to the court on or before February 12, 2016."[7] After receiving and reviewing defendant's report, [8] the court ordered defendant to

1) reevaluate the 114 documents on its Vaughn index that were originally withheld in part and either release the unredacted documents to plaintiff or submit any documents that defendant continues to withhold in part to the court for in camera review, 2) submit to the court for in camera review, unredacted versions of the 42 documents it released in part after its secondary review, and 3) submit to the court for in camera review the ten documents that defendant continues to withhold in full.[9]

         Defendant reevaluated the Vaughn index documents[10] as ordered and released unredacted versions of 24 of these documents to plaintiff on April 14, 2016. Defendant then timely submitted the remaining documents for in camera review. The question before the court now is whether defendant properly asserted Exemption 5 as to these documents.

         Discussion

         "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 opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.'" Id. (quoting Jordan, 591 F.2d at 772). "Draft documents subject to revision or containing proposed changes fall well within the deliberative process privilege." Kortlander v. Bureau of Land Mgmt., 816 F.Supp.2d 1001, 1012 (D. Mont. 2011). Internal emails that contain substantive discussions would also fall within the deliberative process privilege.

         Communications between an agency and its contractors can be considered intra-agency communications "if the consultant ‘does not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it.'" Sakamoto v. U.S. Environmental Protection Agency, 443 F.Supp.2d 1182, 1191 (N.D. Cal. 2006) (quoting Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 9 (2001)). The contractors hired by defendant to perform certain tasks in connection with the Bristol Bay Watershed Assessment (BBWA) were used by defendant to inform its decision-making process. Thus, communications between these contractors and defendant are treated as intra-agency communications to which Exemption 5 could apply.

         Defendant bears the burden of proving that it properly asserted the deliberative process privilege. Yonemoto v. Dep't of Veterans Affairs, 686 F.3d 681, 688 (9th Cir. 2012). FOIA exemptions are to be "narrowly construed with doubts resolved in favor of disclosure." Church of Scientology Int'l v. U.S. I.R.S., 995 F.2d 916, 919 (9th Cir. 1993).

         Defendant's Group One

         Group One consists of the ten documents that defendant continues to withhold in full. The court has reviewed these ten documents and determined that defendant shall release the following two documents in full to plaintiff because they are not deliberative:

1) Document No. EPA-2963-0001885[11]
2) Document No. EPA-2963-0002107[12]

         Defendant's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.