United States District Court, D. Alaska
RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE.
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. 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. In its supplemental opening brief,
defendant again moved for summary judgment that it had
properly withheld documents pursuant to Exemption
court granted defendant's second motion for summary
judgment in part and denied it in part. Defendant's
second motion for summary judgment was granted as to the
"FACA documents",  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,
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." After receiving and reviewing
defendant's report,  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.
reevaluated the Vaughn index documents 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.
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)).
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.
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.
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).
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
1) Document No. EPA-2963-0001885
2) Document No. EPA-2963-0002107