PacifiCorp v. U.S. Environmental Protection Agency

Filing 50

ORDER granting in part and denying in part 37 Motion for Summary Judgment; granting in part and denying in part 43 Motion for Summary Judgment, as outlined in the attached order. by Judge Raymond P. Moore on 1/8/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 13BcvB02187BRM-CBS
PACIFICORP,
Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Defendant.
______________________________________________________________________________
ORDER RE
MOTIONS FOR SUMMARY JUDGMENT (ECF NO. 37 & NO. 43)
______________________________________________________________________________
THIS MATTER comes before the Court on the parties’ cross motions for summary
judgment (ECF Nos. 37 & 43). Plaintiff PacifiCorp’s Motion for Summary Judgment seeks an
order finding that Defendant United States Environmental Protection Agency (“EPA”) violated
the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, by improperly responding to two
FOIA requests; directing the EPA to certify it has now fully complied with the FOIA; directing
the EPA to submit any withheld information to the Court for an in camera review; and awarding
attorney’s fees and costs. The EPA’s Motion for Summary Judgment seeks an order finding it
conducted an adequate FOIA search and properly segregated, redacted, and released documents
as required by the FOIA. Upon consideration of the papers1 filed with the Court and the
applicable law: (1) PacifiCorp’s motion is granted in part, denied in part, and deferred for
consideration in part; and (2) the EPA’s motion is granted in part and denied in part.
1

The EPA’s Reply brief has not yet been filed but the Court finds the same issues are raised in both motions and are
completely briefed in light of the papers submitted to date. See D.C.COLO.LCivR 7.1C. (judicial officer may rule
on motion at any time after it is filed).

I. FACTUAL BACKGROUND
A.

PacifiCorp’s FOIA Requests.

PacifiCorp made two FOIA requests seeking information relating to WildEarth
Guardians v. Jackson, Civil Action No. 11-cv-00001-CMA-MEH (“WildEarth Guardians”),
pending before Judge Christine M. Arguello of this District. In WildEarth Guardians, the
plaintiffs alleged the EPA failed to undertake duties under the Clean Air Act relating to regional
haze implementation plan requirements for the state of Wyoming. By order dated September 27,
2011, Judge Arguello entered a Consent Decree proposed by the WildEarth Guardian parties,
retaining jurisdiction to enforce or modify such decree.
In December 2012, the EPA filed a motion to extend certain deadlines in the Consent
Decree. In a January 2013 FOIA request to the EPA, PacifiCorp identified six categories of
information it sought, with the first three directed to documents regarding the EPA’s
communications with the plaintiffs in the WildEarth Guardians litigation relating to
modifications of the Consent Decree. The other three categories consisted of documents
referenced in the EPA’s motion to extend deadlines.
In March 2013, the parties in the WildEarth Guardian litigation stipulated to extend the
deadlines in the Consent Decree further. In response, in April 2013, PacifiCorp filed a second
FOIA request, seeking all information the EPA relied on or otherwise utilized in entering into the
stipulation and communications about related modifications to the Consent Decree. PacifiCorp
specifically requested information concerning communications with two of the plaintiffs in the
WildEarth Guardians litigation.

2

PacifiCorp seeks the requested information in order to provide public comments, in
additional to those it has previously provided, on an EPA rule concerning the regional haze
program in Wyoming. Under the Consent Decree, as modified, the EPA’s rulemaking deadline
is January 10, 2014.
B.

The EPA’s Initial Search and Responses.

To locate information responsive to the first three categories of PacifiCorp’s first FOIA
request, ten EPA employees searched their records and the potentially responsive documents
were then reviewed for responsiveness and releasability. Through two responses, the EPA
released 41 documents in full but withheld 166 responsive documents under the attorney-client,
attorney work-product, and deliberative process privileges, making no effort to redact and release
nonexempt information from the withheld documents. As this Court has previously found after
hearing on PacifiCorp’s Motion for Preliminary Injunction (ECF No. 33, page 4), due to a
miscommunication between the parties, the EPA did not conduct a search for documents
responsive to the last three categories of documents requested. PacifiCorp filed two
administrative appeals of the EPA’s responses.
To address PacifiCorp’s second FOIA request, six EPA employees searched their records
for responsive documents. All but one of these employees were involved in responding to the
first FOIA request. The EPA released eight documents and withheld 46 documents based on the
attorney-client and deliberative process privileges, again making no effort to redact the withheld
documents to release any nonprivileged information. The EPA invoiced PacifiCorp for 1.25
hours of work even though it performed approximately 3.55 hours of billable work (and
additional time in nonbillable work) in responding to this request. PacifiCorp filed an
administrative appeal of the EPA’s responses.

3

The documents responsive to the FOIA requests contained the names of 23 other
employees who potentially had responsive information, but these employees were not asked to
conduct a responsive search. Moreover, apparently no search was conducted for hard copies of
information. As of May 29, 2013, the EPA found approximately 261 records responsive to the
two FOIA requests, of which 49 were released in full and 212 (166 from the first request and 46
from the second request) were withheld in full.
C.

The EPA’s Subsequent Search and Responses.

On November 19, 2013, subsequent to the filing of PacifiCorp’s Motion for Summary
Judgment, the EPA conducted another search for responsive documents. In that search, all but
one (Laurel Dygowski) of the original employees were requested to search2 for not only
electronic but also hard copies of records. Also at or about that time, the EPA “re-reviewed” the
responsive records from the initial searches which showed the additional 23 employees and
asked them to search as well. Also on November 19, 2013, the EPA searched Jim Martin’s, the
Regional Administrator during the time period raised by PacifiCorp’s request(s), personal email
accounts, finding no responsive documents.
The EPA’s November 2013 search disclosed approximately 454 responsive documents,
including the initial 212 responsive documents. Ultimately, the EPA determined there were a
total of 148 additional responsive documents. Of those 148 additional documents, on December
9, 2013,3 approximately 11 months after the first FOIA request and eight months after the second
FOIA request, the EPA: (i) released approximately 53 records (184) pages entirely; (ii) released
parts of approximately 95 records (231 pages), withholding the remainder as exempt under
exemption 5 (the attorney-client, attorney work-product, and/or deliberative process privileges)

2
3

A few employees are no longer with the EPA and those employees’ records were search by other employees.
The Court is aware of the short government shutdown in October 2013.

4

and/or exemption 6 (personal privacy); and (iii) provided a 73-page Vaughan index. 4
Declarations in support of the Vaughan index were also submitted.
D.

The Redacted Documents and Vaughan Index.

Except for two5 of the 95 records listed in the Vaughan index, the following are disclosed
in the index: (i) date; (ii) author; (iii) recipient(s); (iv) some subject identification; (v) factual
description of the record (e.g., EXE-1 is described as an email from one EPA attorney to other
EPA attorneys transmitting legal counsel and advice about potential and proposed actions
regarding Consent Decree deadlines, and providing attorney analysis of potential legal and
policy effects of different decision options under consideration); (vi) exemption(s) claimed and
the bases/rationale for the same; and (vii) except for attorney work-product privilege material,
whether segregable material has been reviewed and released. For documents in which the
attorney work-product privilege was claimed, the EPA’s evidence is conflicting as to whether
each has been reviewed for segregable material and non-exempt material has been released.
II. ANALYSIS
A.

The FOIA.

“[T]he FOIA is designed to pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Anderson v. Dept. of Health & Human Serv., 907 F.2d
936, 941 (10th Cir. 1990) (citation and internal quotation marks omitted). Accordingly, the FOIA
is to be broadly construed in favor of disclosure and its exemptions are to be narrowly construed.
Id.

4

A Vaughan index is an agency’s compilation listing each withheld document and explaining the asserted basis for
its nondisclosure. Anderson v. Dep’t. of Health & Human Serv., 907 F.2d 936, 940, n.3 (10th Cir. 1990); see
Vaughan v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).
5
EXE-3 and EXE-61, which are discussed infra.

5

The agency must demonstrate that it made a good faith effort to conduct a search for the
FOIA records requested, using methods which are reasonably calculated to uncover all relevant
documents. Schwarz v. FBI, No. 98-4036, 1998 WL 667643, at *1 (10th Cir. Sept. 17, 1998);
Information Network for Resp. Mining (“INFORM”) v. Bureau of Land Mgmt., 611 F.Supp.2d
1178, 1184 (D.Colo. 2009) (“INFORM v. BLM”). “To show reasonableness at the summary
judgment phase, an agency must set forth sufficient information in its affidavits for a court to
determine if the search was adequate.” Schwarz v. FBI, supra at *1 (citation and quotation
marks omitted). “The affidavits must be reasonably detailed, setting forth the search terms and
the type of search performed, and averring that all files likely to contain responsive materials (if
such records exist) were searched.” Id. at *1 (citation and quotation marks omitted). The
reasonableness of the agency’s search depends on the facts of each case. INFORM v. BLM,
supra at 1184.
A search is not unreasonable simply because it failed to produce all relevant material.
“The fundamental question is not whether there might exist any other documents possibly
responsive to the request, but rather whether the search for those documents was adequate.”
Schwarz v. FBI, supra at *2 (citation and quotation marks omitted; italics in original). See also
James T. O’Reilly, Federal Information Disclosure, § 7.8 (“Records search disagreements –
Reasonableness”) (2013).
In order to withhold responsive information uncovered, the government agency must
prove the requested information falls within one, or more, of the nine specific exemptions from
disclosure. Hull v. I.R.S., 656 F.3d 1174, 1177 (10th Cir. 2011); 5 U.S.C. § 552(a)(4)(B) & (b).
“Any reasonably segregable portion of a record shall be provided to any person requesting such
record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b).

6

The Court may enjoin the agency from withholding records or order the production of any
documents improperly withheld. 5 U.S.C. § 552(a)(4)(B).
The Court reviews the government’s refusal to release requested information de novo.
Hull v. I.R.S., supra at 1177; 5 U.S.C. § 552(a)(4)(B). The Court has a variety of options it may
utilize to determine whether a sufficient factual basis exists for evaluating the correctness of the
agency’s action, including ordering the production of the withheld information, or some sample
thereof, for an in camera review; reviewing detailed affidavits/ declarations; or reviewing a
Vaughan index. See Hull v. I.R.S., supra at 1177-1178; Anderson v. Dep’t. of Health & Human
Serv., supra at 942. “If the government agency’s Vaughn index and affidavits are reasonably
clear, specific, and detailed, the court normally affords agency determinations substantial
weight.” Public Emp. for Envir. Resp. (PEER), Rocky Mtn. Chapter v. U.S. EPA, 978 F.Supp.
955, 960 (D.Colo. 1997). If the information provided is insufficient, the Court may issue further
orders to ensure it has an adequate foundation for its review. Anderson v. Dep’t. of Health &
Human Serv., supra at 942.
B.

The EPA’s Initial Search.

PacifiCorp argued that, as to the EPA’s initial search and response, it failed to produce
any redacted material or suggest it attempted to redact any privileged material and produce the
remainder of the document. PacifiCorp further asserted that the EPA’s subsequent November
2013 search and its results constitutes an admission that it did not conduct an adequate search or
produced all responsive documents in the timeframe mandated by the FOIA. The Court agrees
there was an initial failure to comply, but not for all the reasons asserted by PacifiCorp.
As argued by PacifiCorp, the EPA was required provide any reasonably segregable
portion of a record after redaction of the portions which are exempt but failed to do so. The

7

EPA’s declarations confirm this fact, as to the EPA’s initial release of information. However,
the fact that the EPA conducted a subsequent search and found additional documents subject to
disclosure does not, by itself, establish it failed to conduct a reasonable search in the first
instance. Instead, the method by which the EPA conducted its initial search demonstrates it was
not reasonably calculated to produce the requested information.
Here, the EPA – reasonably – asked employees they knew or believed were likely to have
responsive material to conduct a search. The reasonableness of its search, however, dissipates
thereafter. The EPA provided no information as to the search terms used or the type of search
performed. However, it is apparent that no search was conducted of hard copies of records.
Further, the responsive documents revealed an additional 23 employees may have responsive
information but they were not asked to conduct a search. Under the facts and circumstances
here, any argument by the EPA that such employees were not asked because it was unaware of
their involvement would be futile. A simple review of the initial responsive documents would
have revealed the need to expand the inquiry. (See ECF No. 42-2, ¶7 [a “re-review” of
responsive records from original searches showed 23 additional employees’ involvement].) See
INFORM v. BLM, supra at 1184-1185 (agency cannot limit its search to one record system or
single file where there is indication that responsive records are likely to be located in other
systems or files). This finding is buttressed by the EPA’s detailed November 2013 methodology
in conducting its second search, requesting those additional 23 employees to search for
potentially responsive records and, ultimately, producing redacted materials responsive to
PacifiCorp’s requests.
The EPA’s search also did not include information responsive to the last three categories
of information requested by PacifiCorp in its first FOIA request. Nonetheless, the Court finds no

8

violation by the EPA in light of the parties’ miscommunication concerning the EPA’s request for
authorization to proceed as to this information requested.
Finally, as for the timeliness of its responses, the EPA did not contend that its responses
were not untimely but, instead, argued this claim was not pled and was also not a basis for
summary judgment. The Court notes that, depending on the facts and circumstances, there is
legal support for the proposition that an untimely response under FOIA may be a basis for
granting relief, see INFORM v. BLM, supra at 1183, but need not reach the issue as it agrees
PacifiCorp did not pled any claim for relief based on untimeliness and therefore it cannot serve
as a basis for summary judgment. 6
C.

The EPA’s Subsequent Search.

PacifiCorp did not argue the EPA’s November 2013 search was deficient and the Court
finds the EPA has shown that it was not. Instead, PacifiCorp asserted the EPA’s redactions are
overbroad and not supported by the explanation in the Vaughan index.
1. Documents Under Exemption 6.
The Vaughan index, along with other supporting evidence, substantiates the EPA’s
withholding of documents claimed under exemption 6. Under this exemption, the agency need
not disclose “personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). “Similar
files” “has a broad, rather than a narrow, meaning and encompasses all information that applies
to a particular individual.” Forest Guardians v. U.S. F.E.M.A., 410 F.3d 1214, 1217 (10th Cir.
2005) (internal quotation marks omitted). Here, the limited information segregated and withheld
through redaction contains personal email addresses, an individual’s health and leave, and the

6

For the same reason, PacifiCorp’s request for relief based on the timeliness of the EPA’s response to PacifiCorp’s
administrative appeals cannot be sustained.

9

EPA’s conference call and code numbers. (ECF No. 42-6, e.g., EXE-69 to -70 & -74 to -93.)
Such information is not only personal but also non-responsive to the FOIA requests. Although
PacifiCorp requested the Court to order that all withheld information be submitted for an in
camera review, it provided no factual or legal basis to support such request as to those
documents claimed under exemption 6. Indeed, PacifiCorp’s papers are devoid of any
discussion concerning exemption 6. Accordingly, the Court finds the EPA properly withheld the
information claimed under exemption 6.
2. Documents Under Exemption 5.
Exemption 5 excepts from disclosure “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.” 5 U.S.C. § 552(b)(5). “[T]he federal agency resisting disclosure bears the burden
of justifying withholding.” Stewart v. U.S. Dep’t. of Interior, 554 F.3d 1236, 1244 (10th Cir.
2009). Whether an exemption justifies withholding a record is a question of law. Trentadue v.
Integrity Committee, 501 F.3d 1215, 1226 (10th Cir. 2007).
“To qualify under this exemption, a document must be the product of a government
agency, and must ‘fall within the ambit of a privilege against discovery under judicial standards
that would govern litigation against the agency that holds it.’” Stewart v. U.S. Dep’t. of Interior,
supra at 1239 (quoting Dep’t of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S.
1, 8 (2001)). Exemption 5 allows the withholding of public documents which a private party
could not discover in litigation with the agency. See Trentadue v. Integrity Committee, supra at
1226.

10

At issue in this case are the attorney work-product, attorney-client and deliberative
process privileges, all of which fall under the ambit of this exemption. See NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 149, 154 (1975); Stewart v. U.S. Dep’t. of Interior, supra at 1239.
In examining the withheld materials and the EPA’s descriptions in the Vaughan index, the Court
is mindful that PacifiCorp’s requests involve the EPA’s activities concerning the WildEarth
Guardians litigation and the Wyoming regional haze implementation plan which, by the very
nature of its requests, may implicate the privileges claimed.
i. The Work-Product Privilege.
The attorney work-product covers information reflecting the mental processes of counsel.
Stewart v. U.S. Dep’t. of Interior, supra at 1239. At issue is whether factual information
contained in a document that is claimed exempt under the work-product privilege must be
disclosed. PacifiCorp argued the segregation and release of purely factual material was required
while the EPA argued the privilege protects both factual and legal material. The parties cited to
no controlling case law but the Court is persuaded by the reasoning in Fine v. U.S. Dep’t of
Energy, 830 F.Supp. 570 (D.N.M. 1993), and finds that purely factual material must be
disclosed.
First, the Court is heedful that the FOIA is to be broadly construed in favor of disclosure,
its exemptions are to be narrowly construed, and it requires no showing of need. See EPA v.
Mink, 410 U.S. 73, 92 (1973), superseded by statute on other grounds. Further, the FOIA
specifically requires “[a]ny reasonably segregable portion of a record shall be provided to any
person requesting such record after deletion of the portions which are exempt under this
subsection,” which, on its face, applies to all FOIA exemptions. 5 U.S.C. § 552(b).

11

Next, the U.S. Supreme Court and the Tenth Circuit have recognized a distinction
between deliberative and factual information. EPA v. Mink, supra at 87-88; Trentadue v.
Integrity Committee, supra at 1229. The Tenth Circuit allows discovery of factual information if
it is not “inextricably intertwined” with or would reveal deliberative materials. Trentadue v.
Integrity Committee, supra at 1229. It has also noted that Exemption 5 does not protect
“‘memoranda consisting only of compiled factual material or purely factual material contained in
deliberative memoranda and severable from its context,’” Trentadue v. Integrity Committee,
supra at 1227 (quoting EPA v. Mink, supra at 87-88), and acknowledged that factual materials
are generally not privileged unless they are inextricably intertwined with policy-making
processes, while non-factual materials that express opinions or recommendations are protected.
Id. at 1227.
Finally, pursuant to Fed.R.Civ.P. 26(b)(3)(A), factual material contained within a workproduct document may be available to a party in litigation with the EPA. Specifically, Rule 26
allows the discovery of documents which are prepared in anticipation of litigation by a party’s
attorney if certain requirements are met, such as need – a requirement inapplicable to the FOIA.
Discovery is not permitted, however, for “the mental impressions, conclusions, opinions, or legal
theories of a party’s attorney or other representative concerning the litigation” (collectively,
“mental impressions”). Fed.R.Civ.P. 26(b)(3)(B). Based on the foregoing considerations, the
Court finds that purely factual information which does not disclose such mental impressions
and/or are not “inextricably intertwined” with such mental impressions are subject to disclosure.
The EPA argued it was not required to segregate factual information from work-product
documents and its evidence is conflicting as to what actions it took with respect to such
documents. The Declaration of Carl Daly stated “all reasonably segregable factual material has

12

been released to PacifiCorp” but that facts “intertwined with and used by the attorney” do not
have to be segregated and disclosed, implying that, perhaps, “intertwined” facts were not
disclosed. (ECF No. 42-3, ¶24.) The Vaughan index, however, showed, at best, it is unclear
and, at the other spectrum, that the EPA deemed all factual material as intertwined with the
attorney’s mental processes and that no attempted redaction occurred. For example, in EXE-1,
the EPA claimed exemptions under all three of the privileges at issue but represented that
segregable material had been released only as to exemptions claimed under the attorney-client
and deliberative process privileges.7 (ECF No. 42-6, pages 2-3.) In addition, throughout the
index, in paragraphs describing materials claimed under the attorney-client privilege the EPA
repeatedly represented that all segregable materials have been released, in stark contrast to
paragraphs describing materials claimed under the work-product privilege in which no such
representation is present. (ECF No. 42-6, passim.) Further, in EXE-61, the privilege was
claimed but no explanation was given in support and no information was provided as to what
was redacted. As such, the Court finds the Vaughan index, coupled with the record before the
Court, fail to show the EPA properly withheld materials claimed under the attorney workproduct privilege.
ii. The Attorney-Client Privilege.
“The attorney-client privilege is the oldest of the privileges for confidential
communications known to the common law. Its purpose is to encourage full and frank
communication between attorneys and their clients and thereby promote broader public interests
in the observance of law and administration of justice. The privilege serves the client’s need for
legal advice, but it also serves the attorney’s need to receive complete information in order to
7

The EPA stated, in relevant part: “The reasonably segregated portions of this email exchange not containing
attorney advice or deliberative content were segregated and released … while the deliberative content and protected
attorney-client and attorney work-product information was redacted.”

13

give the proper advice.” In re Qwest Communications Int’l, Inc. Securities Litigation, 450 F.3d
1179, 1185 (10th Cir. 2006) (internal quotation marks and citations omitted).
For those documents withheld under this privilege, PacifiCorp also argued factual
materials are subject to disclosure. The EPA has not argued otherwise but represented that it has
released segregable, non-confidential factual information. PacifiCorp has not pointed to any
specific deficiencies in the Vaughan index as to this privilege and, except for EXE-3, the Court’s
independent review of the factual bases on which such privilege was claimed revealed none. For
example, the index supported the claimed exemption by disclosing the involvement of an
attorney as sender or responder of an email, identifying the subject matter covered (e.g., the
drafting of a stipulation in pending litigation), and providing some specific factual basis (e.g.,
transmitting a request for legal advice related to the drafting of materials for a case in litigation).
(ECF No. 42-6, e.g., EXE-39, -43, -52.) Under the facts and circumstances of this case, the
Court finds the index’s repeated references to matters such as advice or counsel concerning
strategy, deadlines and extensions for the Consent Decree or the WildEarth Guardian litigation
are not vague or conclusory in light of the requests to which the documents are responsive.
The document identified as EXE-3, however, is a different matter. Here, the information
is claimed exempt only under the deliberative process privilege but “protected attorney-client
information” was redacted. (ECF No. 42-6, page 3.) Moreover, the description of the
information shows it was a communication between nonlawyers, but the “cc’d” included an
attorney, Robert Ward. The fact that an attorney was copied on a communication, without more,
is insufficient to establish the communication is covered by the attorney-client privilege.

14

In summary, as to this privilege, the Court finds the Vaughan index is not vague,
conclusory or categorical and does not merely parrot the FOIA exemption. Instead, except for
EXE-3, the index, in conjunction with the EPA’s declarations, sufficiently identify each
document withheld under the claimed exemption, state the statutory exemption claimed, and
explain how the withheld information falls within such exemption. As such, except for EXE-3,
the EPA has demonstrated it properly withheld information under this privilege.
iii. The Deliberative Process Privilege.
“[T]he deliberative-process privilege protects documents, such as advisory opinions,
recommendations, and deliberations, that reflect how government decisions are made.” Stewart
v. U.S. Dep’t. of Interior, supra at 1239. The privilege may include materials generated by
agency employees as well as consultants. Id. Its object is to enhance the quality of agency
decisions “by protecting open and frank discussion among who make them within the
government.” Dep’t of the Interior v. Klamath Water Users Protective Ass'n, supra at 8. “It
further serves to prevent the premature disclosure of proposed policies, and avoids misleading
the public by dissemination of documents suggesting reasons and rationales for a course of
action which were not in fact the ultimate reasons for the agency’s action.” Trentadue v.
Integrity Committee, supra at 1226 (quotation marks omitted).
In order to fall within the scope of this privilege, the documents must be predecisional
and deliberative. Trentadue v. Integrity Committee, supra at 1227. Further, factual materials
are not privileged from disclosure unless: “(1) they are inextricably intertwined with deliberative
materials; or (2) their disclosure would reveal deliberative material.” Id. at 1229 (internal
citations omitted). Factual information may be protected “when disclosure would so expose the

15

deliberative process within an agency that it must deemed exempted.” Id. at 1228 (quotation
marks omitted).
As with the attorney-client privilege, PacifiCorp did not identify any specific deficiencies
in the Vaughan index as to the documents claimed under the deliberative process privilege. The
EPA acknowledged it was required to segregate factual information under the Trentadue
standard and represented it has done so. The Court finds the index sufficient to permit review of
the EPA’s withholding decision and, accordingly, as with the attorney-client privilege, affords
the EPA’s determinations under the deliberative process privilege substantial weight.
The index describes the documents individually, identifying the type of document; the
author; the recipients or persons involved; and the justification for claiming the exemption and
what was redacted. For example, EXE-21 is described as an email between agency attorneys
concerning a draft email to be sent to a Department of Justice attorney; that it involved
requesting an extension of the Consent Decree deadline and included advice and
recommendations as to the risks and benefits of the agency’s proposed approach; and that it was
withheld because it was an internal predecisional communication concerning the proposed
extension request. As similarly indicated for other materials withheld under this privilege, the
EPA stated the information does not represent an official agency decision or policy, but reflects
analysis and recommendations on issues still in development, and release would have a chilling
effect on the agency’s ability to have open and frank discussions. From such descriptions, along
with the EPA’s declarations, the Court finds the materials claimed to fall within this exemption
were appropriately withheld.

16

The Court finds, however, that no deliberative process privilege was claimed for EXE-61
but the EPA stated information within this document is subject to such privilege and redacted the
same. In the absence of a claim of privilege, the withholding of such information on this basis
was improper.
iv. In Camera Review.
The Court has reviewed the parties’ submissions and finds a few inconsistencies but no
evidence of bad faith on the part of the EPA. In light of the Court’s determination that the EPA’s
Vaughan index and declarations contain detailed explanations of the information withheld and
supporting exemptions, an in camera inspection is unnecessary.
III. CONCLUSION
Based on the foregoing, it is therefore ORDERED as follows:
1.

PacifiCorp’s Motion is GRANTED in part, DENIED in part, and DEFERRED in
part as stated in paragraphs three through six below; and

2.

The EPA’s Motion is GRANTED in part and DENIED in part as stated in
paragraphs three through six below; and

3.

PacifiCorp’s Motion is GRANTED and the EPA’s Motion is DENIED insofar as
follows:
a. For all documents/materials claimed under the attorney work-product
privilege, the EPA must disclose the following: in light of the January 10,
2014 rulemaking deadline, upon the receipt of this Order, the EPA is directed
to redact all segregable factual material as set forth herein and to produce to
PacifiCorp all nonexempt materials forthwith daily on a rolling basis;

17

b. For document EXE-3, in light of the January 10, 2014 rulemaking deadline,
the EPA must either disclose any material redacted as exempt under the
attorney-client privilege or file a declaration with the Court claiming the
privilege and providing sufficient justification for such claim no later than
3:00 p.m. on Thursday, January 9, 2014;
c. For document EXE-61, to the extent the EPA has withheld any material as
exempt under the attorney work-product privilege, in light of the January 10,
2014 rulemaking deadline, the EPA must either release the material withheld
or file a declaration with the Court justifying such exemption no later than
3:00 p.m. on Thursday, January 9, 2014;
d. For EXE-61, if the EPA is claiming the deliberative process privilege, in light
of the January 10, 2014 rulemaking deadline, it must file a declaration with
the Court of such claim, and justifying the same, or release any material
withheld under such privilege no later than 3:00 p.m. on Thursday, January
9, 2014; and
e. Within five (5) business days of the completion of any disclosure ordered
under this paragraph 3, the EPA is directed to file a declaration confirming
such completion with the Court; and
4.

PacifiCorp’s Motion is DENIED insofar as it seeks the EPA to produce further
materials beyond that ordered herein; and

5.

PacifiCorp’s Motion is DENIED insofar as it seeks an order for the EPA to
produce all documents for an in camera review; and

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6.

PacifiCorp’s Motion is DEFERRED insofar as it seeks attorney’s fees and costs.
The Court will issue a ruling on this issue after the EPA has filed its declaration in
compliance with this Order and may order the parties to file papers in
conformance with Fed.R.Civ.P. 54(d).

DATED this 8th day of January, 2014.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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