Pebble Limited Partnership v. United States Environmental Protection Agency
ORDER re In Camera Review of 61 Briefing re deliberative process privilege; remaining portion of def's 2nd mot for SJ denied in part & granted in part; def to provide notice to crt following compliance w/ord; crt to then enter fnl judg. Signed by Judge H. Russel Holland on 6/14/16. (PRR, COURT STAFF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
PEBBLE LIMITED PARTNERSHIP,
UNITED STATES ENVIRONMENTAL
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
Order re Motion for Summary Judgment; Partial Disposition at 7, Docket No. 53.
Order re In Camera Review of Documents at 1-2, Docket No. 56.
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
Docket No. 61.
Order re Motion for Miscellaneous Relief at 13, Docket No. 71.
Docket No. 72.
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.
Defendant reevaluated the Vaughn index documents10 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.
“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
Order re Status Report at 4-5, Docket No. 79.
Defendant contends that there were 117 Vaughn index documents, not 114.
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 intraagency 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-2963-000188511
2) Document No. EPA-2963-000210712
Defendant’s Group Two
Group Two consists of the 42 documents that defendant released in part to plaintiff
on September 16, 2015. The court has reviewed these 42 documents and determined that
Tab 4 in the Group One binder that defendant submitted to the court for in camera
Tab 5 in the Group One binder that defendant submitted to the court for in camera
defendant shall release the following document in full to plaintiff because it is not
1) Attachment 1 to Document No. EPA-2963-000211313
Defendant’s Group Three
Group Three consists of the remaining 93 Vaughn index documents that defendant
originally withheld in part. The court has reviewed these 93 documents and defendant is
ordered to make the following releases:
1) Document No. EPA-2963-0000039.14 This document shall be released without any
Exemption 5 redactions because defendant has released the redacted information in other
Document No. EPA-2963-0000045; Document No. EPA-2963-0000052; and
Document No. EPA-2963-0000919.15 These documents shall be released without any
Exemption 5 redactions because the portions of the documents that defendant has redacted
are no different from the portions that defendant has released.
Tab 18 in the Group Two binders that defendant submitted to the court for in
Tab 1 in the Group Three binders that defendant submitted to the court for in
Tab 2, Tab 3, and Tab 66 respectively in the Group Three binders that defendant
submitted to the court for in camera review.
3) Document No. EPA-2963-0000081.16 Defendant shall release pages one through
the last paragraph on page nine because this portion of the document is not deliberative.
From “Items of Note” to the end, the document was appropriately redacted under
4) Document No. EPA-2963-0000112; Document No. EPA-2963-0000185; Document
No. EPA-2963-0000205; Document No. EPA-2963-0000224; and Document No. EPA-29630000296.17 These documents shall be released without the Exemption 5 redactions because
the redacted portions are not deliberative.
5) Document No. EPA-2963–0000335; Document No EPA-2963-0000347; Document
No. EPA-2963-0000484; Document No. EPA-2963-0000497; Document No. EPA-29630000540; Document No. EPA-2963-0000556; Document No. EPA-2963-0000694; and
Document No. EPA-2963-0000706.18 Defendant shall release these documents with the
“Media Outlet” section unredacted because that section is not deliberative. The other
Exemption 5 redactions in these documents were appropriate.
Tab 6 in the Group Three binders that defendant submitted to the court for in
Tab 7, Tab 9, Tab 10, Tab 11, and Tab 17 respectively in the Group Three binders
that defendant submitted to the court for in camera review.
Tab 21, Tab 22, Tab 37, Tab 39, Tab 44, Tab 46, Tab 60, and Tab 62 respectively in
the Group Three binders that defendant submitted to the court for in camera review.
6) Document No. EPA-2963-0000381; Document No. EPA-2963-0000391; Document
No. EPA-2963-0000400; Document No. EPA-2963-0000627; and Document No. EPA-29630000736.19 Defendant shall release these documents with the “Media Outlet” section
unredacted because that section is not deliberative. The other Exemption 5 redactions in
these documents were appropriate.
7) Document No. EPA-2963-0000649.20 Defendant shall release the last paragraph
of this document involving an October 7-11 Summit as this paragraph is not deliberative.
The other Exemption 5 redactions in this document were appropriate.
8) Document No. EPA-2963-0002059 and Document No. EPA-2963-0002703.21 These
documents shall be released in full because the redacted portions are not deliberative.
Based on the foregoing, the remaining portion of defendant’s second motion for
summary judgment22 is denied in part and granted in part. By agreement of the parties,23
Tab 26, Tab 28, Tab 30, Tab 54, and Tab 63 respectively in the Group Three binders
that defendant submitted to the court for in camera review.
Tab 56 in the Group Three binders that defendant submitted to the court for in
Tab 80 and Tab 85 respectively in the Group Three binders that defendant
submitted to the court for in camera review.
Docket No. 61.
Order re Case Status, Scheduling at 2, ¶ 4, Docket No. 30.
defendant’s motion for summary judgment was the vehicle employed by the parties for
resolving plaintiff’s complaint for compliance with FOIA. As a consequence of this order,
the court has resolved all remaining disagreements between plaintiff and defendant as
regards defendant’s FOIA obligations to plaintiff, with the result that a few additional
documents (or portions of documents) have now been ordered released to plaintiff. This
order resolves all of plaintiff’s claims in this matter.
Defendant shall provide notice to the court once it has complied with this order,
which the court expects defendant to do promptly. The court will then enter a final
judgment in this case.
DATED at Anchorage, Alaska, this 14th day of June, 2016.
/s/ H. Russel Holland
United States District Judge
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