Center for Biological Diversity v. Office of Management and Budget

Filing 102

REPORT AND RECOMMENDATIONS Objections to R&R due by 9/9/2009. Signed by Magistrate Judge Bernard Zimmerman on 8/24/2009. (bzsec, COURT STAFF) (Filed on 8/25/2009)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff(s), v. OFFICE OF MANAGEMENT AND BUDGET, Defendant(s).

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No. C07-4997 MHP (BZ) REPORT AND RECOMMENDATION

On September 27, 2007, the Center for Biological Diversity ("plaintiff") filed suit against the Office of Management & Budget ("defendant"), alleging violations of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. On July

14, 2009, this matter was referred to me by the Honorable Marilyn H. Patel to conduct an in camera review of documents withheld by defendants under two claimed exemptions, the deliberative process privilege and the presidential communications privilege.1 The following is my report and

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recommendation concerning whether the exemptions claimed by defendant were properly asserted. In her first order on the parties' cross-motions for summary judgment, Judge Patel set forth the factual background of this case, as well as a comprehensive legal discussion of the exemptions claimed by defendant (see Doc. No. 59). Accordingly, I find no need to do so again here. In the

interests of efficiency, I have set forth below a list of the individuals, along with their respective titles, who drafted, sent, and received the emails and documents at issue. These

individuals' last names will be repeated throughout the following report and recommendation, but their respective titles will be omitted.2 ˇ Julie Abraham: Director, Office of International Policy, Fuel Economy and Consumer Programs, NHTSA ˇ ˇ ˇ ˇ Soren Anderson: CEA Donald Arbuckle: Deputy Administrator, OIRA John Asalone: OMB William Badger: Special Assistant to the President for Economic Policy, EOP, NEC ˇ ˇ ˇ ˇ ˇ Ben Bernanke: Chairman CEA Larry Blincoe: NHTSA Josh Bolton: OMB Director Noble Bowie: NHSTA Special Assistant to the Administrator Allison Boyd: Special Advisor to the Domestic Policy

If an individual's title was not provided, or if the individual was only included on one email, his or her name is provided in full. 2

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ˇ ˇ ˇ ˇ ˇ ˇ ˇ ˇ ˇ ˇ ˇ ˇ ˇ ˇ ˇ ˇ ˇ ˇ ˇ ˇ

Council of WHO Elizabeth Branch: Counselor to OIRA Administrator, OMB, OIRA Jason Burnett: EPA MaryAnne Calamas: Confidential Assistant to OIRA Administrator, OIRA Christopher Calamita: Chief Counsel, NHTSA Khary Cauthen: EOP, CEQ, Special Assistant to the Chair James Connaughton: Chairman of CEQ, CEQ David Conover: Department of Energy Stephen Cote: EOP, OMB Deputy Associate Director, House Cameron Cushman: Executive Assistant to the Assistant to the President Logan Dryden: OMB, Confidential Assistant to OMB Deputy Director Lisa Epifani: White House Office of Policy Development Robert Fairweather: Deputy Associate Director, OMB Peter Feather: Chief, Fuel Economy Division, NHTSA Barry Felrice: Director, Washington Regulatory Affairs, DaimlerChrysler Corporation Debbie Fiddelke: Special Assistant to the President for Legislative Affairs, WHO, EOP Jacqueline Glassman: Chief Counsel, NHTSA John Graham: Administrator, OIRA Maggie Grant: EOP, OIA Special Assistant to the President for Intergovernmental Affairs Kevin Green: VOLPE/DOT Bryan Hannegan: Assistant Director for Energy & 3

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Transportation, CEQ Michael Harrington: DOT David Haun: EOP, OMB Transportation Deputy Associate Director Eric Haxthausen: Economist, Environmental Defense Keith Hennessey: Assistant to the President for Domestic Policy, NEC, WHO Brian Hook: Special Assistant to the President for Policy, WHO, Office of the Chief of Staff, EOP Chase Hutto: Deputy Assistant to the Vice President for Domestic Policy (Energy) Diane Jones: Office of the Commissioner for Trademarks Intent to Use Supervisor Joel Kaplan: Deputy Director, OMB Ken Katz: Engineer, NHTSA Jeremy Katz: WHO Brett Kavanaugh: Assistant to the President and Staff Secretary, WHO William Kelley: EOP, Deputy Assistant to the President and Deputy Counsel Elissa Konove: Program Examiner, OMB, Transportation, Homeland, Justice & Service Branch; Counselor to OIRA Administrator, OMB, OIRA, General Government Services Programs John Knepper: Assistant General Counsel, OMB Steve Kratzke: Department of Transportation Elan Liang: EOP, Special Assistant to the President for Legislative Affairs 4

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ˇ ˇ ˇ

Dominic Mancini: Economist, OIRA Donald Marron: Member, Council on Economic Advisors, EOP Catherine Martin: EOP Deputy Assistant to the President and Deputy Director of Communications

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Mark Menchik: Policy Analyst, OMB, OIRA, EOP Steven Mertens: Chief, Energy Branch, OMB, Natural Resources Programs, EOP

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Charles McGrath: Deputy Chief of Staff to the Vice President, White House

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Stephen McMillin: Assistant Director for General Government Programs, OMB

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Christopher Michel: Deputy Assistant to the President and Deputy Director of Speechwriting, WHO, EOP

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Scott Milburn: OMB Press Officer Paul Noe: Counselor to the Administrator of OIRA Kevin O'Donovan: Deputy Assistant to the Vice President for Domestic Policy (Energy), WHO

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Neil Patel: EOP, OVP Assistant to the Vice President and Staff Secretary

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Dana Perino: Press Secretary, CEQ Joan Petrie: Attorney for DOT Don Pickrell: Economist, NHTSA Quesan Rice: EOP, CEQ Executive Assistant to the Chair Krista Ritacco: EOP, Executive Assistant to the Chairman Jeffrey A. Rosen: General Counsel, OGC, DOT Karl Rove: Deputy Chief of Staff, WHO, Office of the Chief of Staff, EOP

ˇ

Jeff Runge: Administrator, NHTSA 5

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ˇ

Richard Russell: Associate Director for Technology, Office of Science and Technology Policy, EOP

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Robert Sandoli: EOP, OMB Program Examiner Eleanor Schiff: DPC &WHO Special Assistant to the President for Domestic Policy

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Suzanne Scruggs: DOT Director, Scheduling and Advance Jess Sharp: Deputy Assistant to the President for Domestic Policy, DPC

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Kristen Silverberg: Deputy Assistant to the President and Advisor to the Chief of Staff, Office of the Chief of Staff

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Jim Simons: Director of the Office of Policy Analysis, NHTSA

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Margaret Stewart: EOP, OMB Deputy Associate Director Elizabeth Sykes: Executive Assistant, WHO, DPC, EOP Richard Theroux: Economist, OIRA Edmond Toy: Engineer & Policy Analyst, OIRA Tevi Troy: Deputy Assistant to the President for Domestic Policy, DPC, WHO

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Jared Weinstein: EOP official Alice Williams: EOP, CEA Executive Assistant to the Chairman

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Candida P. Wolff: Assistant to the President for Legislative Affairs, WHO, Legislative Affairs, EOP

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Stephen Wood: Chief Counsel, NHTSA The Court recommends that private phone numbers and

email addresses not be disclosed, unless plaintiffs can demonstrate a particularized need. 6

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ARMS DOCUMENTS Document 78: This document, dated 9/12/03, is an email from Graham to Theroux and Toy. In this email, Graham describes

the potential employment impacts in the United States of more stringent light truck CAFÉ standards. The Court reviewed the

document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material.

Document 80: This document, dated 9/15/03, is an email from Graham to Theroux and Toy. In this email, Graham shares

various thoughts about the current structure of light truck CAFE standards and poses several questions to Toy and Theroux about how the statutory language defines light trucks in connection with the drafting of the ANPRM for NHTSA's CAFÉ regulation. The Court reviewed the document in camera and

recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material.

Document 117: The document, dated 9/26/03, is an email from Toy to Graham. In this email, Toy offers his observations and

opinions and poses several questions to Graham about the potential weight classification system in the draft CAFÉ ANPRM. The Court reviewed the document in camera and

recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material. 7

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Document 157: This document, dated 10/16/03, is an email from Toy to Graham. In this email Toy provides his analysis of the

potential safety implications of a change in the light truck CAFÉ standard. The Court reviewed the document in camera and

recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material.

Document 161: This document, dated 10/17/03, contains two emails, one from Theroux to Toy, and another that contains Toy's response to Theroux's initial email. In these emails,

Toy and Theroux discuss their thoughts about the potential safety implications of large pick-ups and whether they should be included as part of the CAFÉ standards. The Court reviewed

the document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material.

Document 209: This document, dated 11/04/03, is an email from Theroux to Graham containing a one page attachment. The email The

has been released, but the attachment is being withheld.

attachment is a draft assessing the effects of two potential CAFÉ reforms on light truck prices and weight. The Court

reviewed the document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material. /// 8

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Document 295: This document, dated 12/8/03, is an email from Hunt to Toy and Theroux. In this email, Hunt forwards the

comments and opinions of various Environmental Protection Agency staff members regarding aspects of the draft ANPRM on CAFÉ reform. This document was partially released. The

agency asserts that any withheld factual material is inextricably intertwined with deliberative opinions. The

Court reviewed the document in camera and recommends that the portions of the document that were not already released be found exempt from disclosure because those portions contain pre-decisional and deliberative content and no reasonably segregable factual material.

Document 296: This document, dated 12/8/03, is an email from Wood to Hunt, Eisner, Theroux, and Petrie. In this email,

with attachment, Wood forwards a draft of a CAFÉ request for technical information related to NHTSA's CAFÉ regulation. The

Court reviewed the document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material.

Document 299: This document, dated 12/11/03, is an email from Toy to Graham forwarding Document 295 (the EPA's comments on the draft ANPRM on CAFÉ reform). The agency has redacted the

EPA's comments, but has otherwise released Document 299 in full. The Court reviewed the document in camera and concludes

that for the reasons discussed under Document 295, the agency 9

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properly withheld the redacted portions of the document from disclosure. For these reasons, the Court recommends that the

redacted portions of the document be found exempt from disclosure.

Documents 375, 378: This document, dated 12/11/03, is an email from Theroux to Graham. In this email, Theroux relays a

comment from NHTSA regarding a correction to the draft ANPRM. Document 375 is embedded in Document 378, and has been redacted. Otherwise, Document 378 has been released. The

Court reviewed the documents in camera and recommends that Document 375 (as well as Document 378, to the extent that it contains the text from Doc. 375) be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material.

Documents 381, 383, 384: chain, dated 12/17/03.

These documents contain an email

The original email (Doc. 381) is from The next

Theroux to Graham, and has been partially released.

email is a response to Doc. 381 from Graham to Theroux, which has not been released. The final email is from Theroux to The

Toy, in which Theroux forwards Doc. 381 and 383 to Toy. text of the final email (Doc. 384) has been released.

The

redacted portions of the documents discuss whether to make changes to the CAFÉ ANPRM, and having reviewed the text of the redacted portions in camera, the Court recommends that the documents be found exempt from disclosure because they are pre-decisional and deliberative and contain no factually 10

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segregable material.

Document 400: This document, dated 12/17/03, is an email from Graham to Theroux. The document has been partially released.

In the redacted portions of this email, Graham offers his thoughts and comments regarding the December 17, of the CAFÉ ANPRM. 2003 draft

With the exception of Graham's opinions, The Court reviewed the

the email has been disclosed in full.

document in camera and recommends that the portion of the document that is redacted be withheld because it is predecisional and deliberative and contains no factually segregable material.

Documents 425, 426, 431: These documents, dated 12/18/03, contain an email chain that includes an original email from Hunt to Graham, Theroux, Vandersarl, and Calamas. initial email, Hunt forwards a draft WHHU on CAFÉ. In the The

attachment is not included in the Documents reviewed by the Court. This initial email contains no pre-decisional or

deliberative information, and the Court recommends that it be released. The next email, from Vandersarl to Hunt and Theroux

poses some recommendations and a question about the draft. The final email from Hunt to Theroux asks, in part, whether Hunt responded to Vandersarl's email. The Court reviewed

these documents in camera and concludes that the factual information is reasonably segregable and should therefore be released. The Court therefore recommends that the documents

be produced except for Vandersarl's email to Hunt and Theroux 11

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and the second line of Hunt's second email to Theroux, as these portions of the documents contains pre-decisional and deliberative comments.

Document 596: This document, dated 1/31/04, is an email from Graham to Vandersal. The email is a one-line email that

relates to Vandersarl's 12/18/03 email (contained in Documents 426 and 431). The Court reviewed the document in camera and

because the Court finds that the email simply requests clarification from Vandersal without revealing any information in the deliberative process, the Court recommends that the document be released.

Document 599: This document, dated 2/2/04, is an email chain that begins with the text from Document 596, but includes two additional emails, one from Vandersal, which responds to Graham's 1/31/04 request for clarification, and another email that contains Graham's response to Vandersal's email. The

emails concern CAFÉ data that is being prepared to be sent to the WW. The Court reviewed the document in camera and

recommends that with the exception of the text that mirrors Document 596, the document be found exempt because it contains pre-decisional and deliberative comments and contains no reasonably segregable factual material.

Document 607: This document, dated 2/2/04, is an email from Wood to Hunt, and includes a response from Hunt back to Wood. In this email, plus attachment, Hunt provides his comments in 12

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response to an email regarding NHTSA's significant rulemakings. The Court reviewed the document in camera and

recommends that the document be found exempt from disclosure because it contains pre-decisional and deliberative comments and contains no reasonably segregable factual material.

Document 609: This document, dated 2/3/04, is an email from Feather to Toy in which Feather forwards an email that was originally sent from Green to Maples. an attachment. The document includes

The substance of the email is in the original

email from Green to Maples, which sets forth a list of the documents that are attached to the email. The email and the

documents concern materials related to light-truck CAFÉ standards. The Court reviewed the document in camera and

recommends that the email and the attached documents be found exempt from disclosure because the documents contain predecisional and deliberative content and no reasonably segregable factual material.

Document 634: This document, dated 2/3/04, is an email chain. The chain initiates with an email from Graham to Silverberg and contains three other emails wherein Silverberg and Graham respond to one another. sheets on CAFÉ reforms. The emails concern a draft of fact The Court reviewed the document in

camera and concludes that the presidential communications privilege applies and recommends that the document be withheld. /// 13

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Documents 694, 695, 696: These documents, dated 2/10/04, contain an email chain that begins with an email from Boyd to Graham (Doc. 694). Although privilege is claimed as to

Document 694, the Court notes that the text of Document 694 appears to have been released, as the text of that Document appears in full in Document 695, which was redacted in part and released in part. As to Documents 695 and 696, the Court

reviewed the document in camera and concludes that the redacted portions of these documents do not reveal any deliberative opinions and the Court therefore recommends that the document should be released, as the information contained therein is merely factual information related to the scheduling of meetings.

Documents 698, 702: Document 698 is embedded in Document 702. Document 702 is an email chain, dated 2/11/04, with an initial email from Boyd to Graham wherein Boyd asks Graham several questions about NHTSA's CAFÉ regulation and offers her thoughts and opinions on a memo on the CAFÉ regulations that had been circulated. The next email, from Graham to Boyd, The

responds to the questions posed by Boyd in Document 698.

Court reviewed the documents in camera and recommends that the documents be found exempt from disclosure because they are pre-decisional and deliberative and contain no reasonably segregable factual information.

Documents 735, 736, 737: Documents 735 and 736 are embedded in Document 737. Document 737 is an email chain, dated 3/8/04, 14

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that begins with an email from Graham to Toy, asking for clarification from Toy about the various options available to firms for them to meet CAFÉ compliance standards (Doc. 735). The next email (Doc. 736) contains a response to Graham's email from Toy and Document 737 completes the email chain with a response from Graham back to Toy. The Court reviewed the

documents in camera and recommends that because the information in these documents is pre-decisional and deliberative and contains no reasonably segregable factual information, they be exempt from disclosure.

Documents 766, 767: Document 766 is embedded in Document 767. Document 767 is an email chain, dated 3/29/04, beginning with Document 766, which is an email from Graham to Calamas. chain ends with a response from Calamas to Graham and Hannegan. The Court reviewed the documents in camera and The

concludes that neither the presidential communications privilege nor the deliberative process privilege have been properly asserted because the emails merely contain logistical information. Therefore, the Court recommends that the

documents be released.

Document 770: This document, dated 3/30/04, is an email from Theroux to Graham that forwards an email from Weinstein. The

email discusses Weinstein's comments and opinions on an Auto Fuel Economy Power Point presentation. In this one page

email, Theroux both forwards Weinstein's thoughts about the power point, and also includes his own observations about 15

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Weinstein's comments.

The Court reviewed the document in

camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material.

Documents 784, 789, 791: These documents contain an email chain. Documents 784 and 789 are embedded in Document 791. Document 784, dated 3/31/04, is an email from Graham to Kaplan that discusses the impact of gasoline prices. Document 789

(which embeds Doc. 784), also dated 3/31/04, is an email from Kaplan to Graham, responding to Graham's email (Doc. 784). Document 789 has been released (the portions of Doc. 789 that contain Doc. 784 have been redacted). Document 791, also

dated 3/31/04, is an email from Frankfurt to Calamas. Document 791 has been released, with only the portions of Doc. 784 redacted and withheld. The Court reviewed the documents in camera and recommends that the portions of the documents that were withheld previously be found exempt from disclosure because they are pre-decisional and deliberative and contain no reasonably segregable factual information.

Document 785, 788, 790, 795, 796, 797, 798, 802, 805, 807, 808: These documents contain various iterations of an email chain. Each email is dated 3/31/04. The chain begins with

Document 785, which is an email from Graham to Silverberg, discussing the impact of gasoline prices. Document 788 is an

email from Connaughton to Silverberg and Graham, responding to Doc. 785 with a follow up question. 16 Document 790 is an email

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from Silverberg to Connaughton, Graham and Hannegan wherein Silverberg responds to Document 788 and offers a follow up question. Document 795 is an email from Hannegan to

Connaughton, Graham, and Silverberg, in which Hannegan responds to Document 790 by offering his thoughts and comments about CAFÉ's rulemaking process. Document 796 is an email

from Connaughton to Graham and Silverberg wherein Connaughton responds to Document 790 and offers to meet. Document 797 is

an email from Silverberg to James Connaughton, wherein Silververg suggests a meeting time. Document 798 is an email

from Silverberg to Connaughton, Graham, and Hannegan wherein Silverberg responds to Document 795 by offering her thoughts and comments about NHTSA's CAFÉ rulemaking and its relationship to gas prices. Document 802 responds briefly to Document 805 is an

Document 797's request for a meeting.

email from Graham to Silverberg, responding to Document 798 by offering thoughts and opinions on CAFÉ rulemaking. Document

808 is an email from Calamas to Graham and also concerns scheduling issues. The Court reviewed the documents in camera

and recommends that Documents 785, 788, 790, 795, 798, and 805 be found exempt from disclosure because they are predecisional and deliberative and contains no reasonably segregable factual information. The Court further recommends

that the original text contained in Documents 796, 797, 802, 807, and 808 be released, as the text of those emails contain only logistical information, but that insofar as those Documents contain embedded portions of Docs. 785, 788, 790, 795, 798, and 805, those portions of the Documents be left 17

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redacted.

Document 786: This document, dated 3/31/04, is an email from Bowie to Theroux. In this email, Bowie responds to an email

(Document 783, which has been released) and offers his comments and thoughts regarding agency coordination in the context of NHTSA's CAFÉ rulemaking. The Court reviewed the

document in camera and recommends that the document be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual information.

Document 801, 804: This document, dated 3/31/04, is email chain between Hannegan and Schiff. In this email chain,

Hannegan and Schiff discuss a draft memorandum for a briefing of the President concerning fuel economy. The Court reviewed

the document in camera and recommends that the document be found exempt from disclosure due to the presidential communications privilege. Document 804, also dated 3/31/04,

is an email from Dr. Graham to Hannegan, in which Dr. Graham responds to Document 801. OMB has redacted Document 801 from The

804, but has otherwise released Document 804 in full.

Court reviewed the documents in camera and recommends that the redacted material be found exempt from disclosure due to the presidential communications privilege.

Documents 823, 824: This document, dated 4/1/04, is an email from Graham to Silverberg seeking comments on an internal CAFE 18

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reform meeting that was held.

Document 824, also dated The Court reviewed

4/1/04, contains Silverberg's response.

the documents in camera and recommends that the documents be found exempt from disclosure because they are pre-decisional and deliberative and contains no reasonably segregable factual information.

Document 825, 839, 840: Document 825, dated 4/1/04, is an email from Graham to Hennessey seeking comments on an internal CAFÉ reform meeting that was held. Document 839, dated

4/4/04, is Hennessey's email response to Graham wherein Hennessey responds by offering his observations and opinions on the reform meeting. Document 840, dated 4/4/04, is an email from Graham to Hennessey, giving feedback to Hennessey's observations. The Court reviewed the documents in camera and

recommends that the documents be found exempt from disclosure because they are pre-decisional and deliberative and contain no reasonably segregable factual information.

Document 837, 838: Document 837, dated 4/2/04, is an email from Hannegan to Silverberg. Document 838, also dated 4/2/04, In these

is an email from Silverberg back to Hannegan.

emails, both Silverberg and Hannegan responds to Document 837 and offers her own thoughts and opinions regarding CAFÉ rulemaking. In this email, Hannegan responds to Document 798

and offers his thoughts and opinions about CAFE rulemaking in relation to gas prices. /// 19

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Document 853: This document, dated 4/15/04, is an email from Graham to Bolton and Kaplan. In this email, Graham forwards

his thoughts and comments about issues that arose in a CAFE briefing with the President regarding advancements in technologies for cars and light trucks. The Court reviewed

the document in camera and recommends that the document be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual information.

Document 858, 859: This document is an email chain, dated 4/21/04, that contains three emails. The first email is from The next

Hannegan to Connaughton, and has been released.

email is from Graham to Hannegan, and the final email is from Hannegan back to Graham. The last two emails have been withheld. The redacted emails discuss the original email,

which contains the text of a published article on evolving emissions standards. The redacted emails offer comments and

observations in response to the article and a question posed by Graham. Document 859, also dated 4/21/04, is an email from OMB has

Graham to Toy in which Graham forwards Document 858.

redacted Document 858 from Document 859 but has otherwise released Document 859 in full. The Court reviewed the

redacted material in camera and recommends that the withheld material be found exempt from disclosure because it is predecisional and deliberative and contains no reasonably segregable factual information. /// 20

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EXCHANGE DOCUMENTS Document 14: This email, dated 12/04/04, is from Toy to Graham. The only information redacted from the chain consists

of personal email addresses and telephone numbers, which were withheld on privacy grounds. The email also contains an

attachment, which was not provided to the Court for review. Accordingly, the Court recommends that the redacted portions of the document be withheld on privacy grounds, but that the remainder of the document, if it has not already been released, be released, as the document only contains factual material.

Document 22: This email chain, dated 12/20/04-12/22/04, is between Graham and Toy and consists of follow-up questions to Document 21 (not provided for review) regarding CAFE calculations and standards. The Court reviewed the redacted

portions of the document in camera and recommends that the redacted portions of the document be found exempt from disclosure because they are pre-decisional and deliberative and contain no reasonably segregable factual material.

This email chain, dated 12/22/04-12/27/04 is This chain concerns the

among Theroux, Toy, and Graham.

agency's thoughts on cost savings from better fuel economy; cost-effectiveness of different kinds of cars; and improvements in performance and safety. The Court reviewed

the redacted portions of the document in camera and recommends that the redacted portions of the document be found exempt 21

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from disclosure because they are pre-decisional and deliberative and contain no reasonably segregable factual material.

Document 24:

This email chain, dated 12/22/04-12/27/04, is This chain discusses increase in fuel

between Graham and Toy.

efficiency and cost-effectiveness of different kinds of cars. The Court reviewed the redacted portions of the document in camera and recommends that the redacted portions of the document be found exempt from disclosure because they are predecisional and deliberative and contain no reasonably segregable factual material.

Document 55: This email chain, dated 03/02/05, is between Theroux and Hannegan. This chain discusses approaches on

setting CAFE standards made in the context of the development of NHTSA's light truck CAFE rule. The Court reviewed the

redacted portions of the document in camera and recommends that the redacted portions of the document be found exempt from disclosure because they are pre-decisional and deliberative and contain no reasonably segregable factual material.

Document 121:

This email chain, dated 05/13/05, is among In this chain,

Kavanaugh, Graham, Hannegan, and Michel.

Kavanaugh asks questions of Graham related to CAFE reform and rulemaking in preparation for a briefing for the President. This email and attachment relate to a memorandum for the 22

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President and his top domestic policy advisors on the subject of the development of NHTSA's light truck CAFE regulations. The Court reviewed the documents in camera and recommends that the documents be found exempt from disclosure because they are pre-decisional and deliberative and contain no reasonably segregable factual information and because they contain information provided to the President or his top domestic advisors at the President's request.

Documents 131-136:

This email chain, dated 05/18/05-05/19/05,

is among Graham, Hannegan, Kaplan, Silverberg, Hennessey, and Troy. The chain contains content regarding timing for talking

to interagency deputies and principals regarding the development of NHTSA's light truck CAFE rule, stringency levels, and economic/environmental impacts, and a plan for presenting NHTSA's light truck CAFÉ rule to the President and his top domestic advisors. The Court reviewed the documents

in camera and recommends that the documents be found exempt from disclosure because they are pre-decisional and deliberative and contain no reasonably segregable factual information and because they contain information provided to the President or his top domestic advisors at the President's request.

Document 138: This email chain, dated 05/19/05, is among Theroux, Toy, Feather, and Green. The chain discusses changes

in CAFE calculations in the context of NHTSA's proposed CAFE rulemaking for light trucks and includes attachments (the 23

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attachments were not provided to the Court for review).

The

Court reviewed the document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual information.

Document 141: This email chain, dated 05/18/05-05/23/05, is among Hannegan, Connaughton, Silverberg, Kaplan, Hennessey, and Troy. This chain discusses timing for conferring with

interagency deputies and principals about the development of NHTSA's light truck CAFE rule and the plan for presenting it to the President and his top domestic advisors. It

specifically outlines time frames for the recipients to turn in their edits. This email chain contains reasonably

segregable factual material and the Court therefore recommends that the portion of the chain discussing time frames for editing should be disclosed.

Document 150: This email chain, dated 05/26/05, is among Sharp, Graham, and Calamas. The email relates to edits made

to a CAFE memo for a meeting (the memo was not provided to the Court for review). The Court reviewed the document in camera

and recommends that the document be disclosed because it contains only factual material.

Document 154:

This email chain, dated 05/31/05, is among The chain discusses an EOP

Graham, Hannegan, and Connaughton.

deputies' meeting on the subject of the development of NHTSA's 24

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light truck CAFE rule.

It outlines views of administrative The Court

reform held by the recipients of the email chain.

reviewed the document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual information.

Document 158: This email, dated 06/02/05, is from Graham to Hennessey, Kaplan, and Troy and discusses the pros and cons for approaches to size-based CAFE reforms. The Court reviewed

the document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual information and because the document contains information conveyed to the President or his immediate advisors at the President's request.

Document 159:

This email, dated 06/02/05, is from Graham to The email discusses the issue of The Court

O'Donovan, Kaplan, and Troy.

how size-based CAFE reform should be decided.

reviewed the document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual information and because the document contains information conveyed to the President or his immediate advisors at the President's request. /// /// 25

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Document 161:

This email chain, dated 06/02/05, is between The chain relates to SAP's proposed

Hannegan and Graham.

language for the "quasi-CAFE" provision and includes the proposed language. The Court reviewed the document in camera

and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual information and because the document contains information conveyed to the President or his immediate advisors at the President's request.

Document 163: This email, dated 06/06/05, is from Hannegan to Sykes. The email attaches a revised draft memorandum for

senior domestic policy advisors to the President on the subject of the development of NHTSA's light truck CAFE rule (but the attachment itself was not provided to the Court for review). The Court reviewed the document in camera and

recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual information and because the document contains information conveyed to the President or his immediate advisors at the President's request.

Document 164:

This email chain, dated 06/05/05-06/06/05, is

among Hannegan, Sykes, Troy, Sharp, Hook, O'Donovan, and Branch. This chain discusses time availability to meet about

a draft memorandum on CAFE reform and fuel economy standards. The memorandum was attached to the email and was provided to the Court for review. The Court reviewed the document (and 26

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attached memorandum) in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative; however, scheduling information in the email chain should be disclosed because it is reasonably segregable factual material.

Document 172: This email, dated 06/07/05, is from Graham to Kaplan and Branch. The email provides comments regarding a

meeting with senior domestic policy advisors to the President on the subject of the development of NHTSA's light truck CAFE rule in the context of fuel prices. The Court reviewed the

document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual information and because the document contains information conveyed to the President or his immediate advisors at the President's request.

Document 173:

This email chain, dated 06/07/05, is among

Graham, Troy, Sharp, Hook, Hennessey, Hannegan, Martin, Perino, Marron, Kelley, Badger, McGrath, and Sykes. This

email chain concerns a deputies' meeting on CAFE reform and discusses options for gauging support of the reforms. The

Court reviewed the document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual information and because the document contains information conveyed to the President or his immediate advisors at the 27

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President's request.

Document 180:

This email chain, dated 06/08/05-06/09/05, is This chain The

among Hook, Troy, Graham, Kaplan, and Calamas.

concerns scheduling a Principals' meeting on CAFE reform.

document also includes an attachment, which is a June 16 draft memorandum from Hannigan to the White House that explores proposals to amend CAFE. The Court reviewed the document in

camera and finds that the email chain contains reasonably segregable factual material. The Court therefore recommends

that the portions of the chain discussing scheduling information should be disclosed but that the email chain and attachment otherwise be found exempt from disclosure because they are pre-decisional and deliberative and because the documents contain information conveyed to the President or his immediate advisors at the President's request.

Document 181:

This email chain, dated 06/09/05, is between

Graham, Troy, Sharp, McGrath, Connaughton, Martin, Marron, Hennessey, Badger, and Hutto. The email discusses the costs

of the existing DOT CAFE program and options that the Secretary proposed to the Principals in a previous meeting concerning costs. The email also includes the June 16 draft The

memorandum for DPC Principals (contained in Doc. 180).

Court reviewed the document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual information and because the document contains information 28

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conveyed to the President or his immediate advisors at the President's request.

Document 187:

This email chain, dated 06/08/05-06/16/05, is

among Graham, Branch, Denise Sick, Cushman, Sykes, Cauthen, Hannegan, Taylor Hughes, Jeremy Katz, Lee Simmons, Ritacco, Aimee Violette, Carmen Ingwell, Williams, Heather Roebke, Lindley Kratovil, Christian Woelk, Calamas, Sharp, Rice, Karla Carnemark, Jessica Bennett, and Hook. This email chain

relates to scheduling the DPC meeting on CAFE and includes the June 16 draft memorandum for DPC Principals (included in Doc. 180). The Court reviewed the document in camera and

recommends that, as stated above, the memorandum be found exempt from disclosure because it contains information conveyed to the President or his immediate advisors at the President's request, and that the email chain also be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual information, except for scheduling information, which should be disclosed.

Document 188:

This email chain, dated 06/16/2005, is among This email chain relates

Graham, Sharp, Hannegan, and Troy.

to the preparation of briefing materials for a presentation for the President's most senior domestic policy advisors on the subject of the development of NHTSA's light truck CAFE rule. There is an attachment referenced in the text of the The Court

emails, but it was not provided for review. 29

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reviewed the document in camera and recommends that the email be disclosed because all it contains is logistical information.

Document 189: This email, dated 06/16/05, is from Hannegan to Sharp and Graham. The body of the email contains a revised

draft of the June 16 Memorandum for DPC Principals (see Doc. 180) and relates to DOT's CAFE reform proposal. The Court

reviewed the document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual information and because the document contains information conveyed to the President or his immediate advisors at the President's request.

Document 192:

The email chain, dated 06/17/05-06/20/05, is

among Marron, Graham, Hannegan, Hennessey, Hutto, McGrath, Sharp, Kelley, Troy, Badger, Martin, and Perino. chain has been partially released. The email

The redacted portions of The Court

the chain discuss options for reforming CAFE.

reviewed the document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material.

Document 194: This email chain, dated 06/16/050-06/21/05, is among Graham, Hannegan, and Troy. The chain comments on a

revised draft of the CAFE Principals' memorandum and includes 30

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a draft of the June 16 memorandum.

The Court reviewed the

document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual information and because the document contains information conveyed to the President or his immediate advisors at the President's request.

Document 195:

This email chain, dated 06/21/05, is among

Graham, Hannegan, Silverberg, Troy, McGrath, and Connaughton. The email chain discusses reaching consensus on CAFE reform, a four-year time horizon, and suggests various proposals. The

Court reviewed the document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual information and because the document contains information conveyed to the President or his immediate advisors at the President's request.

Document 215:

This email chain, dated 06/22/05, is among This email chain discusses policy The Court

Graham, Troy, and McGrath.

options for CAFE in the context of gas prices.

reviewed the document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and because the document contains information conveyed to the President or his immediate advisors at the President's request; however, the mileage data for the four manufacturers is reasonably segregable factual information, 31

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which should disclosed.

Document 229: This email chain, dated 06/23/05, is among Graham, Marron, and Hannegan. This chain discusses the

difference between "range" and "no range" as well as an opinion on the state of the industry. The Court reviewed the

document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual.

Document 234: This email chain, dated 06/22/05-06/23/05, is among Hannegan, Graham, Theroux, Toy, and Haxthausen. document has been partially released. The

The redacted portion

discusses Hannegan's thoughts about the merits of certain points in a white paper submitted by Environmental Defense and made in the context of the development of NHTSA's light truck CAFE rule. The Court reviewed the redacted portions of the

document in camera and recommends that the redacted portion be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material.

Document 296:

This email chain, dated 06/27/05-06/28/05, is The redacted portions of this chain

between Graham and Toy.

discuss the issue of upsizing in the context of the development of NHTSA's proposed CAFE rulemaking for light trucks and consumer demand. The Court reviewed the document

in camera and recommends that it be found exempt from 32

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disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material, except for paragraph (1) of the June 26, 2005 email from Toy to Graham, which is logistical scheduling information.

Document 305:

This email chain, dated 06/29/05, is among

Kaplan, Graham, McGrath, Hennessey, Marron, Hannegan, Connaughton, Troy, and Silverberg. The emails discuss how

current events would effect the CAFE policies and how members of the email chain think CAFE standards should be set for 2008-2011. The Court reviewed the document in camera and

recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material, except for the first half of Graham's June 29, 2005 email, which contains factual information from newspapers disclosed as part of Document 315.

Document 306:

This email chain, dated 06/29/05, is among

Marron, Hennessey, Graham, McGrath, Hannegan, Connaughton, Troy, and Silverberg. The emails discuss how current events

would effect the CAFE policies and what the purpose of CAFE should be regarding negative externalities. The Court

reviewed the document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable, except for the first half of Graham's June 29, 2005 email, which contains factual information from newspapers disclosed as part of Document 315. 33

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Document 308:

This email chain, dated 06/29/05, is between The emails discuss technologies and the

Theroux and Feather.

percent of each manufacturers' fleet that complies with the NHTSA standard. The Court reviewed the document in camera and

recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual.

Documents 309, 310:

This email chain, dated 06/29/05, is This

among Theroux, Feather, Glassman, Calamita, and Wood.

chain discusses technology net social benefits and how to set unreformed CAFE standards. Document 309 is embedded in Document 310 and is redacted, but Document 310 has otherwise been released. The Court reviewed the document in camera and

recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual.

Document 315:

This email chain, dated 06/30/05-07/01/05, is

among Theroux, Neyland, Graham, Connaughton, Marron, McGrath, Hennessey, Hannegan, Troy, and Silverberg. This chain

discusses what effects CAFE would have on gasoline prices and oil consumption. The Court reviewed the document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual. /// /// 34

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Document 319:

This email, dated 07/05/05-07/07/05, is from The email analyzes GM's financial

McGrath to Graham.

situation in the context of discussions about CAFE rulemaking. The Court reviewed the document in camera and recommends that it be found exempt from disclosure because it is predecisional and deliberative and contains no reasonably segregable factual.

Document 330: This email, dated 07/05/05, is from McGrath to Graham. The email transmits Document 319 to Graham. The

portion that is document 319 is exempt from disclosure; the remainder should be disclosed because it is logistical information that is neither pre-decisional nor deliberative.

Documents 348-352:

These are a series of email chains which

discuss answers to the questions posed by Graham in Document 353. The Court reviewed the documents in camera and recommends that it be found exempt from disclosure because it is predecisional and deliberative and contains no reasonably segregable factual.

Document 353:

In an email to Theroux and Toy, dated July 11,

2005, Graham questioned some statistical date about GM and Ford's fuel efficiency. The Court reviewed the document in

camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual. /// 35

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Document 354: This email chain, dated 07/08/05-07/11/05, is among Knuffman, Graham, Morrall, Theroux, Hunt, Mancini and Toy. The emails exchange opinions on statistical data for a

certain car manufacturer in the context of CAFE standards. The Court reviewed the document in camera and recommends that it be found exempt from disclosure because it is predecisional and deliberative and contains no reasonably segregable factual.

Documents 355, 356, 363, 364, 365: This email chain, dated 07/11/05, is among Kratzke, Abraham, Katz, Dominic Mancini, Graham, Theroux, Feather, Petrie, Toy, Hunt, and Wood. of the documents have been released. Most

The agency has withheld

email addresses and personal phone numbers on the ground of privacy. The other redacted portions discuss statistical data

from 2002-2004, concerning various automakers and whether they are in CAFE compliance. Questions are posed about whether the

data is correct, and the data is eventually explained and corrected. The Court reviewed the document in camera and

recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material.

Document 368: This email chain, dated 07/14/05, is among Graham, Knepper, and Connaughton. partially released. The email has been

The redacted portion discusses the policy The Court

rationale of CAFE in relation to carbon intensity.

reviewed the document in camera and recommends that it be 36

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found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material.

Documents 372, 375: In this email, dated 07/14/05, Graham, Hannegan and Connaughton discuss NHTSA's final CAFE rule for model years 2005-2007 regarding NHTSA's treatment of greenhouse gases. Document 375, also dated 07/14/05, contains The

Graham forwarded this discussion to Knepper and Noe.

Court reviewed the document in camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material.

Documents 373, 374: In these emails, dated 07/14/05, Graham, Hannegan, and Knuffman discuss whether the RIA mentions or contains sections dealing with greenhouse gases or climate change issues. The Court reviewed the documents in camera and

recommends that they be released because they contain only factual information.

Documents 376-379, 381, 384: This email chain, dated 07/14/05, is among Graham, Hunt, Knuffman, Theroux, Toy, Hannegan, Morrall, and Connaughton. Document 376, which is an email

from Graham to Knuffman, Theroux, Toy, and Hannegan is consistently redacted throughout Documents 374, 377-379, 381, and 384 but otherwise, the documents have been released in full. Document 376 provides Graham's opinion of where 37

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greenhouse gases, carbon emissions, and issues about climate change are mentioned in the text of the RIA. Document 381

also redacts a comment made by Hannegan pertaining to his thoughts on the agency's position on these issues. The Court

reviewed the documents in camera and recommends that the redacted portions be released because they contain purely factual material, except for the last sentence of Document 376, which is deliberative and pre-decisional.

Document 383: This email, dated 07/14/05, is from Graham to Theroux. The email has been partially released. In the

redacted portion, Theroux answers the question posed by Graham (that text has been released), explaining the context of an inter-agency disagreement. The Court reviewed the document in

camera and recommends that it be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material.

Documents 385, 392: This email chain, dated 07/14/05-07/15/05, is among Graham, Calamas, Toy, Theroux, Mancini, Knuffman, Hannegan, Knepper, and Hunt. The emails make suggestions on

the draft of CAFE RIA by proposing edits and rewrites to the draft, including how to emphasize certain key points. Document 385 is embedded in Document 392, and has been redacted. Document 392 has otherwise been fully released.

The Court reviewed the document in camera and recommends that it be found exempt from disclosure because it is predecisional and deliberative and contains no reasonably 38

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segregable factual material.

Documents 389-391: This email chain, dated 07/20/05, is among Morrall, Knuffman, Toy, Hunt, Mancini, and Wood. The emails

discuss opinions and rewrites on sections of the NPRM and PRIA related to CAFE rulemaking. The Court reviewed the documents

in camera and recommends that the documents be found exempt from disclosure because they are pre-decisional and deliberative and contain no reasonably segregable factual material.

Documents 395, 396, 397, 399: This is an email chain, dated 07/22/05-07/26/05, among Graham, Calamas, Toy, Knuffman, Mancini, Morrall, and Hunt, wherein Toy sends emails discussing NHTSA's formal submittal and what edits NHTSA staff did not include in the final submitted version. The Court

reviewed the documents in camera and recommends that the documents be found exempt from disclosure because they are pre-decisional and deliberative and contain no reasonably segregable factual material.

Document 398: This is an email chain, dated 07/22/05-07/26/05, among Graham, Knepper, Hannegan, Newell, Conover, Burnett, and Toy. The documents have been partially released; however, the

agency has withheld email addresses and phone numbers on the ground of privacy. The portion of the email that has been

withheld discusses thoughts on why the CAFE reform package was structured in a particular manner. 39 The Court reviewed the

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document in camera and recommends that the document be found exempt from disclosure because it is pre-decisional and deliberative and contains no reasonably segregable factual material.

Document 410: This is an email chain, dated 07/29/05-08/01/05, among Graham, Newell, and Toy. The email forwards attachments

(not included in Document 410) and a thank-you is sent by the receiver of the documents. The content of the emails is The Court reviewed the document

logistical, not deliberative.

in camera and recommends that the document be disclosed because it contains no deliberative or pre-decisional content.

Document 411: In an email chain dated 07/29/05-08/01/05, Theroux, Newell, and Toy. The email forwards attachments (not

included in Document 411) and a thank-you is sent by the receiver of the documents. The content of the emails is The Court reviewed the document

logistical, not deliberative.

in camera and recommends that the document be disclosed because it contains no deliberative or pre-decisional content.

Document 424: This email, dated 08/05/05, sent from Toy to Abraham forwards attachments (not included in Document 424) and requests to speak about the attachments at a later date. The content of the emails is logistical, not deliberative. The Court reviewed the document in camera and recommends that the document be disclosed because it contains no deliberative or pre-decisional content. 40

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Documents 426, 428, 429: This email chain, dated 08/08/0508/09/05, is among Newell, Feather, Pickrell, Abraham, Green, Theroux, and Toy. The agency is withholding phone numbers on The other portions of the documents

the grounds of privacy.

that have been withheld discuss CAFE discounting in the context of auto financing. The Court reviewed the documents

in camera and recommends that the documents be found exempt from disclosure because they are pre-decisional and deliberative and contain no reasonably segregable factual material.

Document 427: This email chain, dated 08/08/05, is among Newell, Toy, Graham and Theroux, and discusses the CAFE-Volpe Model peer reviews, providing thoughts and comments about specific statements contained in those reviews. The Court

reviewed the documents in camera and recommends that the documents be found exempt from disclosure because they are pre-decisional and deliberative and contain no reasonably segregable factual material.

Document 434: This email, dated 08/10/05, is from Blincoe to Toy. The 8/10 email has been fully disclosed, however, the

document also contains an email, sent on 07/22/05 from Blincoe to Toy, which has been redacted and withheld. The redacted

portion sets forth Blincoe's opinions on single and multiplevehicle crashes in the context of CAFE analysis. The Court

reviewed the document in camera and recommends that the document be found exempt from disclosure because it is pre41

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decisional and deliberative and contain no reasonably segregable factual material.

Document 441: This email chain, dated 08/12/05, is among Feather, Toy, Simons, and Abraham. The emails send drafts of

CAFE PRIA, which were not submitted for in camera review, and discuss the changes in the drafts. The Court reviewed this

email chain in camera and recommends it be disclosed since the information is factual.

Documents 442, 443: This email chain, dated 08/12/05, is among Toy, Calamas, Hannegan, Newell, Feather, and Theroux. The

emails forward drafts of CAFE uncertainty analysis, which were not submitted for in camera review. is logistical, not deliberative. The content of the emails

The Court reviewed the

emails in camera and recommends that they be disclosed because they contain no deliberative or pre-decisional content.

Document 444: In an email chain dated 08/12/05, Toy, Hannegan, Newell, Burnett, Conover, Bowers, Feather and Theroux discussed the changes in the drafts of CAFE. drafts were not submitted for in camera review. The

The agency

asserts that the document contains intra-agency/inter-agency pre-decisional, deliberative communications. However, the

Court reviewed the email chain in camera and recommends that it be disclosed because it does not contain deliberative content. /// 42

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Document 445: This email chain, dated 08/12/05, is among Calamas, Toy, Feather, Simons, and Abraham. The emails

circulate NHTSA's drafts of CAFE PRIA, but do not discuss the substance of the drafts. The Court reviewed the document in

camera and recommends that the document be disclosed because it contains no deliberative or pre-decisional content.

Document 449: This email chain, dated 08/12/05-08/15/05, is among Toy, Hannegan, Newell, Simons, Abraham, Feather, and Theroux. The emails circulate NHTSA's drafts of CAFE PRIA, but do not discuss the substance of the drafts. The Court

reviewed the document in camera and recommends that the document be disclosed because it contains no deliberative or pre-decisional content.

Document 455: This email, dated 08/17/05, was sent by Toy Arbuckle. In the email, Toy forwards a draft of the CAFE The Court reviewed

reform, but does not discuss the draft.

the document in camera and recommends that the document be disclosed because it contains no deliberative or predecisional content.

Document 463: This email, dated 08/18/05, is from Newell to Toy. The email discusses whether NHSTA should adjust

assumptions in some of its price models as they relate to CAFE reform. The Court reviewed the document in camera and

recommends that the document be found exempt from disclosure because it is pre-decisional and deliberative and contains no 43

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reasonably segregable factual material.

Document 485: This email chain, dated 08/18/05-08/19/05, is among Toy, Feather, Simons, Abraham, Theroux, Wood, Calamita and George Feygin. The emails forward a draft version of CAFÉ

PRIA and briefly discuss the difference between the sent draft and an earlier draft. The Court reviewed the document in

camera and recommends that the document be disclosed because it contains no deliberative content.

Document 486: This email chain, dated 07/29/05-08/19/05, is among Toy, Theroux, and Newell. The email forwards a draft of

the CAFÉ preamble and other documents (not included for review). The Court reviewed the document in camera and

recommends that the document be disclosed because it contains no deliberative content.

Document 513: This email chain, dated 08/18/05-08/19/05, is among Simons, Toy, Theroux, Feather, Abraham, Wood, Calamita, and George Feygin. The emails have been partially released.

The redacted portions of the emails suggest edits and rewrites to specific sections of the CAFÉ regulations. The Court

reviewed the document in camera and recommends that the redacted portions of the document be found exempt from disclosure because they are pre-decisional and deliberative and contain no reasonably segregable factual material. /// /// 44

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Document 518: This email, dated 08/22/05, was sent by Wood to Toy, Theroux, Glassman, Rosen, and Runge. In the email, Wood

sends copies of a draft of the CAFÉ regulations and of the EA (the attachments were not provided for review). With the

exception of the personal email address of Wood, which the agency has withheld on privacy grounds, the email has been released. The email does not contain any deliberative

content, as the drafts themselves were not attached to Document 518.

Documents 519, 521: This email chain, dated 08/23/05, is among Branch, Graham, and Harrington. In this email,