Ameren Missouri v. United States Environmental Protection Agency
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs motion for summary judgment is DENIED. (Doc. No. 20.) IT IS FURTHER ORDERED that Defendants Motion for summary judgment is GRANTED. (Doc. No. 32.) IT IS FURTHER ORDERED that Plaintiffs request for attorneys fees is DENIED. A separate judgment will accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 9/25/12. (JWJ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES ENVIRONMENTAL
Case No. 4:11CV02051AGF
MEMORANDUM AND ORDER
Plaintiff Union Electric Company d/b/a Ameren Missouri (“Ameren”) brings this
action against Defendant, the United States Environmental Protection Agency (“EPA”)
seeking disclosure under the Freedom of Information Act, 5 U.S.C. §§ 552 et seq. (“FOIA”)
of records pertaining to certain Notices of Violation issued to Plaintiff (collectively, the
“NOVs”). The NOVs alert Plaintiff to the failure to obtain permits under and possible
violations of the Clean Air Act (“CAA”), 42 U.S.C. §§7470-92, related to “significant net
emissions increases,” within the meaning of the CAA, resulting from certain physical
changes and changes in methods of operation (“the Projects”) undertaken by Plaintiff at the
power plants it operates.1 Defendant has produced certain agency records responsive to
An owner or operator of a major stationary source of air pollution may be
required to obtain a construction permit if it undertakes a change that constitutes a “major
modification.” (Doc. No. 21 at 5.) The determination of whether a change constitutes a
“major modification” involves an assessment of whether the operator expects or projects
the change to cause a net increase in the emissions of a regulated pollutant above a
specified level. See, e.g., 42 U.S.C. § 7475(a)(1); 40 C.F.R. § 52.21(a)(2), (b)(2),
Plaintiff’s FOIA request, but asserts that other responsive records are exempt from disclosure
under 5 U.S.C. §552(b)(5) (“Exemption 5”) and § 552(b)(7)(A) (“Exemption 7(A)”) of the
On January 12, 2011, the United States Department of Justice (“DOJ”), acting on
behalf of Defendant, filed a lawsuit, United States v. Ameren Missouri, Case No.
4:11-CV-0077-RWS, against Plaintiff in the United States District Court for the Eastern
District of Missouri. In that case, pending before the Honorable Rodney W. Sippel, DOJ
seeks injunctive relief and civil penalties for violations of the CAA and alleges that Plaintiff
violated the CAA and other applicable laws when it undertook major modifications at its
Rush Island Plant in Festus, Missouri (“CAA Case”).2 On February 15, 2012, Judge Sippel
denied a motion to consolidate the CAA Case and the instant case because the dispute in this
case is broader than that in the CAA Case, dealing, as it does, with records related to 28
Projects at four power plants rather than alleged CAA violations arising from modifications
at a single power plant.
Now before the Court are the parties’ cross motions for summary judgment. (Doc.
Nos. 20 & 32.) Plaintiff seeks an order directing Defendant to release all documents
responsive to its request and an award of attorney’s fees and costs. In its cross motion,
Defendant seeks a determination that it has complied with its obligation under the FOIA
because the records withheld are exempt from disclosure under Exemptions 5 and 7(A). In
On May 27, 2011, Defendant issued an amended NOV, and on June 28, 2011,
DOJ filed an amended complaint in United States v. Ameren Missouri, Case No.
4:11-CV-0077-RWS, alleging additional violations regarding the Rush Island Plant.
the alternative, Defendant seeks an order staying this case until the close of discovery in the
pending CAA Case. The parties have fully briefed the issues and, at Plaintiff’s request, the
Court held oral argument on these motions.
On the record before it the Court finds the following undisputed facts:
Ameren operates four coal-fired electric generating power plants located in
Missouri, known as the Labadie, Meramec, Rush Island and Sioux plants (“the Plants”). On
January 26, 2010, October 14, 2010, and May 27, 2011, Defendant issued NOVs to Plaintiff
pursuant to Section 113(a)(1) of the CAA, 42 U.S.C. § 7413(a)(1). (Doc. Nos. 24-3-24-5.)
In the NOVs, Defendant found, in part, that Plaintiff undertook forty-eight Projects at its
Plants between 1985 and 2010 that caused “significant net emissions increases” in S02,
NOx, PM, ozone, and/or PM2.5. The NOVs further stated that Plaintiff failed to apply for
or obtain a permit from Defendant prior to commencing the Projects and that the Projects
resulted in ongoing violations of certain provisions of the CAA. 42 U.S.C. §§ 7470-92.
The NOVs are not final agency actions3 and do not specify particular emissions levels
or the calculations, methods, or data that Defendant used to make its administrative findings
that the Projects resulted in significant emissions increases.
NOVs are not final agency actions. Union Electric Co. v. EPA, 593 F.2d 299
(8th Cir. 1979). “[N]o legal consequences flow from the issuance of the NOV because it
merely notifies plaintiffs of their existing obligations under the CAA.” Royster-Clark
Agribusiness, Inc. v. Johnson, 391 F. Supp. 2d 21,28 (D.D.C. 2005).
On July 1, 2011, Plaintiff submitted a FOIA Request4 (the “Request”) seeking “all
documents and information that discuss or memorialize the emission calculations performed
or used in connection with . . . the NOVs.” (Doc. No. 24-6.)
Plaintiff asserts that the
Request sought only factual data and information that supported the allegations made in the
NOVs and explicitly excluded the work product or mental impressions of Defendant’s
counsel. By letter dated July 28, 2011, Defendant denied the initial request, confirming only
that it possessed responsive information in “approximately 100 spreadsheets and 45 other
documents,” exempt from mandatory disclosure under Exemptions 5 and 7(A) of FOIA (“the
First Response”),5 5 U.S.C. § 552(b)(5), (b)(7)(A). (Doc. No. 24-7.) Defendant did not
Plaintiff requested that Defendant produce: “[A]ll documents and information
that discuss or memorialize the emission calculations performed or used in connection
with [Defendant’s] findings that the physical changes or changes in the method of
operation identified in the NOVs constituted major modifications that caused a significant
emissions increase and a significant net emissions increase of sulfur dioxide, nitrogen
oxide, particulate matter, particulate matter less than 2.5 micrometers in diameter and/or
ozone.” (Doc. No. 24-6 at 1.)
The full text of EPA’s First Response read:
The documents you requested clearly meet both exemptions 5 and 7(A).
Exemption 5 applies because these documents are attorney-client privileged
communications. Furthermore, they are also documents that were prepared
at the time at the direction of EPA and DOJ attorneys in anticipation of
litigation and are therefore attorney work-product. Exemption 7(A) applies
because these records were compiled for the enforcement purposes of
investigating the compliance status of a facility with the New Source
Review requirements of the Clean Air Act. The documents you request
contain confidential information, the release of which will prematurely
reveal evidence or strategy in an ongoing case. Therefore, the production
of these documents could reasonably be expected to interfere with ongoing
(Doc. No. 24-7.)
provide a Vaughn index6 or specific description of any of the documents. On August 16,
2011, Plaintiff filed a timely administrative appeal from the First Response. Defendant
responded by letter dated September 16, 2011, granting the request “with respect to the
requested records and portions of records that contain only factual information not subject
to exemption under FOIA” and “with regard to some portions of the records because there
are reasonably segregable, non-exempt portions of the records requested.” (Doc. No. 24-9
Defendant denied the request “with respect to the remaining records and information,”
claiming Exemptions 5 and 7(A) of FOIA authorized Defendant to withhold certain
documents and information responsive to Plaintiff’s Request.
Defendant informed Plaintiff that 275 documents were responsive to the Request and
agreed to provide all “reasonably segregable and non-exempt records.” On October 19,
2011, Defendant produced7 48 entire documents (the “Disclosed Documents”) and 136
Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir.1973), cert. denied, 415
U.S. 977 (1974).
A Vaughn index provides a specific factual description of each document
sought by the FOIA requester. Specifically, such an index includes a
general description of each document’s contents, including information
about the document’s creation, such as date, time, and place. For each
document, the exemption claimed by the government is identified, and an
explanation as to why the exemption applies to the document in question is
In re DOJ, 999 F.2d 1302, 1306 (8th Cir. 1993) (quotation omitted).
Plaintiff initially asserted that Defendant failed to repond to the request within
twenty working days as required under the FOIA and applicable regulations. 40 C.R.F. §
2.104(K), (1). In its motion for summary judgment, Plaintiff apparently abandoned this
argument. (Doc. No. 24 ¶¶ 14-21.)
redacted documents (the “Redacted Documents”) and withheld 91 documents (the
The Disclosed Documents include: spreadsheets with “pure data,” involving no
analyses, projections or exercise of judgment by EPA enforcement staff, and related to
parameters such as “Gross Load, Heat Input, and NOx rate”; graphical depictions of these
pure data, and spreadsheets containing information obtained from Ameren in response to EPA
information requests. (Declaration of Mark Smith, Doc. No. 34-8, ¶ 30.) Defendant asserts
that it used the information in the Disclosed Documents to make its calculations regarding
Plaintiff’s CAA compliance, and agreed to their full disclosure because they contain
information generally available to the public. See id.
Defendant asserts that the “Redacted Documents” contained EPA’s analyses of
Plaintiff’s emissions trends for SO2, NOx, and Plant heat input over time (52 documents);
EPA’s analyses of data reported to the Generating Availability Data System (GADS) (12
documents); and EPA’s projections and estimations, based upon EPA engineering
enforcement staff’s judgment, of the projected emissions increases resulting from the Projects
referenced in the NOVs (72 documents). Id. ¶ 32.
Citing FOIA Exemptions 5 and 7(A), the privileged nature of the documents, and the
pending enforcement proceeding in the CAA case pending before Judge Sippel as grounds for
these exemptions, Defendant withheld the remaining documents. (Doc. No. 24-10.) The
There are discrepancies in the record regarding the number of documents in
each category, but at the hearing the parties agreed that there are 78 documents or files in
dispute, all of similar nature.
“Withheld Documents” “generally include memoranda and other documents written by EPA
enforcement staff at the direction of EPA and/or DOJ attorneys. These documents were
prepared to support the issuance of the NOV and to refer the case to DOJ, and therefore were
prepared in anticipation of litigation. They include EPA staff’s analysis [sic] of Ameren’s
compliance with the CAA for the Projects noted in the . . . NOVs.” (Doc. No. 34-8,¶ 33.)
The withheld documents were created by environmental scientists and engineers of the EPA
enforcement staff under the direction and supervision of counsel. They were then shared with
EPA Regional Counsel and/or DOJ prior to the issuance of the NOVs and the filing of the
Complaint in the CAA case. See id.
On October 31, 2011, Plaintiff requested an itemized index of the withheld documents
and the exemptions claimed for each. (Doc. No. 24-11.) Defendant denied this request.
(Doc. No. 24-12.) Plaintiff then filed this action under FOIA as an appeal from the final
agency action asserting that Defendant failed to meet its burden of establishing the
applicability of the FOIA exemption to these documents.
“Congress intended FOIA to permit access to official information long shielded
unnecessarily from public view.” Milner v. Dept. of Navy, 131 S.Ct. 1259, 1262 (2011)
(quotation omitted). “FOIA thus mandates that an agency disclose records on request, unless
they fall within one of nine exemptions. These exemptions are explicitly made exclusive and
must be narrowly construed.” Hulstein v. Drug Enforcement Admin., 671 F.3d 690, 694 (8th
Cir. 2012) (quotations omitted).
FOIA is designed, however, to benefit the public, not specific litigants. NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 143 n.10 (1975) (recognizing that a requester’s “rights under
the Act are neither increased nor decreased by reason of the fact that [he or she] claims an
interest in the [requested records] greater than that shared by the average members of the
public”); see also NLRB v. Robbins Tire & Rubber Company, 437 U.S. 214, 242 (1978)
(noting that the “FOIA was not intended to function as a private discovery tool”).
Summary Judgment under the FOIA
The FOIA provides for de novo review by a district court of an agency decision to
withhold requested information, and places the burden on the agency to demonstrate that a
claimed exemption applies. 5 U.S.C. § 552(a)(4)(B). “[S]ummary judgment is available to
a defendant agency where ‘the agency proves that it has fully discharged its obligations under
FOIA, after the underlying facts and the inferences to be drawn from them are construed in
the light most favorable to the FOIA requester.’” Missouri Coalition for Env’t Found. v. U.S.
Army Corps of Eng’rs, 542 F.3d 1204, 1209 (8th Cir. 2008) (quoting Miller v. U.S. Dep’t of
State, 779 F.2d 1378, 1382 (8th Cir. 1985)). The district court must evaluate the record,
including pleadings, affidavits, or declarations on file, in the light most favorable to the
nonmoving party to determine whether “there is no genuine dispute as to any material fact and
the movant party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Missouri
Coalition, 542 F.3d at 1209. Once the moving party has met its burden, the non-moving party
may not rest on the allegations of his pleadings but must set forth specific facts, by affidavit
or other evidence, showing that a genuine issue of material fact exists. Gannon Intern., Ltd.
v. Blocker, 684 F.3d 785, 792 (8th Cir. 2012) (holding that unrebutted evidence “can (and
should)” form the basis for summary judgment).
In considering a motion for summary judgment under the FOIA:
[a] court’s primary role . . . is to review the adequacy of the affidavits and
other evidence presented by the Government in support of its position . . . .
If the Government fairly describes the content of the material withheld and
adequately states its ground for non-disclosure, and if those grounds are
reasonable and consistent with the applicable law, the district court should
uphold the Government’s position. The court is entitled to accept the
credibility of the affidavits, so long as it has no reason to question the good
faith of the agency.
Barney v. IRS, 618 F.2d 1268, 1272 (8th Cir. 1980) (quotation omitted).
“Boilerplate affidavits,” without more, are insufficient to show that no genuine issue
of fact exists, but a court may rely on affidavits “giving reasonably detailed explanations why
any withheld documents fall within an exemption.” ACLU v. DOJ, 681 F.3d 61, 69 (2d Cir.
2012); see also Wilner v. NSA, 592 F.3d 60, 73 (2d Cir. 2009) (holding that affidavits are
sufficient if they “describe the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed exemption, and
are not controverted by either contrary evidence in the record nor by evidence of agency bad
FOIA Exemption 59 protects from disclosure “inter-agency or intra-agency
memorandums 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). Exemption 5 is designed to assure that
agencies do not have to “operate in a fishbowl” and to “allow full and frank discussion while
preserving the goal of an open government.” Missouri Coalition, 542 F.3d at 1209 (quotation
omitted). To qualify for this exemption, a document “must fall within the ambit of a privilege
against discovery under judicial standards that would govern litigation against the agency that
holds it.” Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8
Civil discovery privileges such as the attorney-work product, attorney-client
privilege, and the “deliberative process” privilege are incorporated in Exemption 5. Id.; see
also Nat’l Day Laborer Org. Network v. U.S. Immigration and Customs Enforcement Agency,
811 F. Supp. 2d 713,735 (S.D.N.Y. 2011). Exemption 5 is applied narrowly and reaches
“only those documents normally privileged in the civil discovery context.’” United States v.
Weber Aircraft Corp., 465 U.S. 792, 800 n.16 (1964) (quoting Sears, Roebuck & Co., 421
U.S. at 149). To qualify, a document must thus satisfy two conditions: “its source must be
Defendant does not assert that the other privilege engrafted to Exemption 5,
the deliberative process privilege, applies here. “Work product protects mental processes
of the attorney, while the deliberative process privilege covers documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated. Dep’t of the Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. at 8 (quotations omitted). In order to
fall within the deliberative process exemption, a document must be both predecisional
and deliberative. State of Missouri ex rel. Shorr v. U.S. Army Corps of Eng’rs, 147 F.3d
708, 710 (8th Cir. 1998).
a Government agency, and it must fall within the ambit of a privilege against discovery under
judicial standards that would govern litigation against the agency that holds it.” Klamath
Water Users Protective Ass’n, 532 U.S. at 8.
To establish attorney-client privilege in the context of Exemption 5, an agency must
show that the document withheld (1) involves “confidential communications between an
attorney and his [or her] client” and (2) relates to a “legal matter for which the client has
sought professional advice.” Mead Data Central, Inc. v. U.S. Dept. of Air Force, 566 F.2d
242, 252 (D.C. Cir. 1977). The agency also must demonstrate that the information was
intended to be confidential and was not disclosed to a third party. Id. at 253.
To establish work-product privilege in the context of Exemption 5, an agency must
show that the requested information constitutes “mental impressions, conclusions, opinions,
or legal theories of an attorney . . . concerning the litigation” ordinarily protected by the
attorney work-product privilege. Fed. R. Civ. P. 26(b)(3)(B). “Exemption 5 withholds from
a member of the public documents which a private party could not discover in litigation with
the agency.” Weber Aircraft Corp., 465 U.S. at 799-800.
Under Exemption 7(A) an agency may withhold from disclosure information compiled
for “law enforcement purposes, but only to the extent that the production . . . could reasonably
be expected to interfere with enforcement proceedings.” Shannahan v. IRS, 672 F.3d 1142,
1145-46 (9th Cir. 2012). Two questions commonly arise in the application of Exemption
7(A). The first is whether the requested information was “compiled for law enforcement
purposes.” See John Doe Agency v. John Doe Corp., 493 U.S. 146, 153 (1989) (“Before it
may invoke [Exemption 7], the Government has the burden of proving the existence of ... a
compilation for such a purpose.”); see also Milner v. Dep’t of Navy, 131 S. Ct. at 1272 (Alito,
J., concurring). The Supreme Court has given a broad interpretation to the use of the term
“compiled” under Exemption 7(A), holding that information need not have been originally
“compiled for law enforcement purposes” to satisfy Exemption 7’s threshold requirement.
Rather, “even though . . . documents were put together at an earlier time for a different
purpose,” they may fall within Exemption 7 if they are later assembled for law enforcement
purposes. John Doe Agency, 493 U.S. at 154-55; see also Milner, 131 S. Ct. at 1273 (Alito,
The second question is whether disclosure of the documents “could reasonably be
expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). Pending
administrative and civil actions under the CAA for penalties and injunctive relief such as
those at issue here are deemed “enforcement proceedings” within the ambit of Exemption
7(A). See Barney, 618 F.2d at 1273 n.10 (applying Exemption 7 to protect disclosure of
documents that may be used later in civil or criminal IRS proceedings); General Elec. Co. v.
EPA, 18 F. Supp. 2d 138, 143 (D. Mass. 1998) (noting it is well established that Exemption
7 applies to civil and regulatory proceedings).
With respect to the question of interference,10 in Robbins Tire & Rubber Company, the
Supreme Court explained that Exemption 7 was designed to protect the legitimate needs of
law enforcement agencies to keep certain records confidential and to conduct investigations
and pursue enforcement without undue hindrance. 437 U.S. at 223-24. (“One of the primary
purposes of Exemption 7 was to prevent harm to the Government’s case in court by not
allowing litigants earlier or greater access to agency investigatory files than they would
otherwise have.”). In light of the important interests protected by Exemption 7(A), an agency
is entitled to summary judgment if it can make a showing that: “(1) a law enforcement
proceeding is pending or prospective, and (2) release of the requested information could
generally be expected to cause some articulable harm.” Barney, 618 F.2d at 1272-73.
“Articulable harm” is demonstrated if disclosure would give the requester “advance access
to the government’s case,” or allow a “suspected violator” to “construct defenses which
would permit violations to go unremedied.” Robbins Tire & Rubber Company, 437 U.S. at
236-37, 240-241 (quotations omitted); see also Shannahan, 672 F.3d at 1149. Exemption
7(A) implicates obstruction of justice concerns like witness tampering, but the legal test is
“broader and less stringent than such examples suggest.” Barney, 618 F.2d at 1273.
“Articulable harms” include the possibility of witness intimidation, destruction of evidence,
or the creation of false alibis. Goodrich Corp. v. EPA, 593 F. Supp. 2d 184, 193-94 (D.D.C.
Under exemption 7(A) the government is not required to make a specific
factual showing with respect to each withheld document that disclosure would actually
interfere with a particular enforcement proceeding. Robbins Tire & Rubber Co., 437 U.S.
at 234-35. Courts may make generic determinations that, “with respect to particular kinds
of enforcement proceedings, disclosure of particular kinds of investigatory records while
a case is pending would generally ‘interfere with enforcement proceedings.’” Id. at 236.
2009). However, courts also recognize that examples of “interference” include “prematurely
revealing the Government’s case” before formal discovery in law enforcement proceedings
or revealing the direction, scope, and limits of the investigation. Barney, 618 F.2d at 1273;
see also Kanter v. IRS, 433 F. Supp. 812, 818 (N.D. Ill. 1977).
Sufficiency of the Declaration
Defendant offers the Declaration of Mark Smith, the EPA Region 7 Air Permitting and
Compliance Branch Chief, in support of its motion for summary judgment. The sworn
declarations from Smith provide adequate additional information to explain why the
documents should be exempt. See Miller, 779 F.2d at 1387 (holding that an agency carries
its burden of proof by providing affidavits to explain why documents are subject to an
exemption); Gannon Intern., Ltd., 684 F.3d at 792 (holding “[s]imply dismissing unrebutted
evidence as ‘self-serving’ is precisely the sort of ‘metaphysical doubt’ that will not suffice
to oppose summary judgment.”) (citation omitted).
Plaintiff has offered no evidence of agency bad faith with respect to Defendant’s
overall response to the FOIA request or the contents of the declaration. In the absence of a
“reason to question the good faith of the agency,” the Court is entitled to accept the credibility
of the declaration and will do so here. Barney, 618 F.2d at 1272. In addition, the Court finds
that the declaration is sufficient because it contains reasonably detailed explanations and
logical bases for the application of the claimed exemptions. Id. at 1272-73; see also Wilner
v. NSA, 592 F.3d at 73. Further, there appears to be no dispute as to the nature of the
documents and information withheld, and Defendant’s asserted basis therefor. Essentially,
the withheld documents reflect Defendant’s application and analysis of formulas applied by
the EPA to data reported by Plaintiff, the results of which are used to assess whether to issue
an NOV or take other enforcement action. Disclosure of the document and spreadsheets
would necessarily disclose the formulas and analysis used.
Application of the Exemptions
Upon review of the record, the Court concludes that Plaintiff has not succeeded in
demonstrating a genuine issue of material fact that would preclude the application of either
Exemption 5 or Exemption 7(A) in this case. In addition, Defendant has established the
predicates for the application of Exemptions 5 and 7(A) to all of the documents at issue.
Exemption 5/ Attorney-Client Privilege
With respect to the attorney-client privilege prong of Exemption 5, Defendant has
shown that the Redacted and Withheld Documents contain confidential communications
between attorney and client related to a “legal matter for which the client has sought
professional advice.” Mead Data Central, Inc., 566 F.2d at 252. The record further
establishes that these records were “intended to be confidential and were not disclosed to a
third party.” Id. at 253.
By way of the Smith Declaration, Defendant has established that preliminary,
“screening level” emissions analyses, were conducted at the direction of EPA or the DOJ
attorneys in anticipation of enforcement proceedings or litigation. (Doc. No. 34-8, ¶¶ 48, 50.)
Smith’s declaration also indicates that information and data corresponding to the Disclosed
Documents were analyzed pursuant to EPA methodologies at the direction of counsel,
assessed in conjunction with counsel, and ultimately used to support Defendant’s decision
made in consultation with counsel, to refer Plaintiff to DOJ for potential enforcement action
under the CAA. Id. ¶ 47. Apart from consultation with DOJ counsel representing Defendant,
the Withheld Documents have not been disclosed to anyone outside of the EPA. Id. ¶¶ 48,
52. Defendant also has established that the Redacted and Withheld Documents consist of the
aforementioned preliminary screening-level emissions analyses prepared by EPA staff with
the assistance of counsel to determine whether Plaintiff should have expected emissions to
increase as a result of undertaking one or more projects at each emissions-producing unit. Id.
Exemption 5/ Work Product Privilege
In addition, Defendant has established that the information Plaintiff seeks is subject
to the attorney work-product privilege11 under Exemption 5 because Defendant’s assessment
of CAA compliance for each Project is a highly fact-specific inquiry that involves legal and
technical judgments, an understanding of the statutory and regulatory provisions at issue, and
an application of those regulations to the facts. Id. The Redacted and Withheld Documents
constitute internal analyses of emissions data carried out by EPA scientists and engineers
acting under the supervision of, or in consultation with, EPA and DOJ attorneys, and were
compiled in reasonable anticipation of litigation and possible enforcement actions. Id. ¶¶ 4548. As noted above, apart from consultation with DOJ counsel representing Defendant, the
As noted above, Defendant does not assert that the other privilege engrafted to
Exemption 5, the deliberative process privilege, applies here. Nonetheless, the Court’s
review of the record persuades it that this verison of Exemption 5 also may be applicable
as the Smith Declaration supports a conclusion that the disputed documents are
predecisional and deliberative. See, (Id. ¶¶ 38, 40, 47; see also MSD v. EPA, No.
4:10–CV–2103 (CEJ), 2012 WL 685334, at*7 (E.D. Mo. Mar. 2, 2012 ).
withheld and redacted documents have not been disclosed to anyone outside of the EPA. Id.
¶¶ 48, 52. Defendant has further established that disclosure of the Redacted and Withheld
Documents would reveal Defendant’s enforcement practices and strategies, which could in
turn allow Plaintiff other regulated entities to avoid detection and interfere with enforcement
by providing Plaintiff with advance notice of Defendant’s analytical approach and the weight
to be accorded various factors. Id. ¶¶ 43, 44.
Plaintiff asserts that the records at issue involve data and calculations or are
spreadsheets (“Numerical Information”) used by Defendant in its civil and administrative
actions under the CAA, and that the Numerical Information is “purely factual” and may not
therefore, be shielded from disclosure under the attorney client or work product privileges.
Plaintiff’s characterization of the Numerical Information as “purely factual” fails to take into
account that the seemingly straightforward numeric results of Defendant’s assessments of
Plaintiff’s compliance with the CAA are not “purely factual,” but rather derive from raw
data (that has been disclosed to Plaintiff) selected and analyzed pursuant to its own formulas
by Defendant’s technical staff, scientists, and engineers, working in conjunction with or at
the direction of attorneys. Id. ¶¶ 38, 46-47, 52. Therefore, the Numerical Information, albeit
numeric, constitutes “mental impressions, conclusions, opinions, or legal theories” so as to
satisfy the requirements of the work product privilege. See, e.g., Missouri Coalition, 542 F.3d
at 1211 (holding that “purely factual material” may be withheld from disclosure under
Exemption 5 if that material would expose the deliberative process of an agency) (quotation
omitted); MSD, 2012 WL 685334, at *7 (holding that “[a] document does not become
nondeliberative if facts are included in the deliberations”).
Moreover, the record indicates that agency attorneys, on the basis of their
understanding of the applicable law, direct staff to consider various factors and apply certain
variables to assist in refining their analyses, and these analyses form the basis for the issuance
of NOVs and inform EPA and DOJ’s decision about whether to file a civil judicial complaint.
Id. ¶¶ 46-47. Thus, the Redacted and Withheld Documents satisfy the requirement of the
work product privilege that they be created in reasonable anticipation of litigation.
Upon further review of the record the Court concludes that Defendant also has
established that the Redacted and Withheld Documents are exempt from disclosure under
Exemption 7(A). Defendant’s declaration adequately demonstrates that the information was
“compiled” for law enforcement purposes and that its disclosure will result in “articulable
harm” to Defendant’s enforcement activities.
It is undisputed that Defendant performs a law enforcement function as a result of its
statutory responsibility for “permitting, enforcement, and compliance activities under the
Clean Air Act,” and that such activity applies to the Plaintiff’s power plants. Id. ¶ 2. The
information Plaintiff requests, “all documents and information that discuss or memorialize”
Defendant’s emissions calculations performed in conjunction with Defendant’s findings of
violations identified in the NOVs, was, pursuant to Plaintiff’s own description, compiled as
part of Defendant’s investigation of Plaintiff’s possible violations of the CAA. (Doc. No. 246 at 1.) Therefore, the record establishes that this information was compiled for law
The record further establishes that disclosure of this information would result in an
articulable harm and could reasonably be expected to interfere with law enforcement
proceedings, the CAA Case, as well an any enforcement action Defendant may undertake in
relation to the NOVs.
Defendant also asserts that disclosure of the emissions and
accompanying legal conclusion to a party under current investigation and ongoing litigation
would contravene the very purpose of Exemption 7(A) to protect the government from
advance disclosure of its enforcement and litigation strategies.
Plaintiff objects to the notion that Defendant may protect information relating to its
enforcement strategies and the direction, scope, and limits of its investigations as contrary to
Defendant’s obligation to encourage compliance with environmental laws and regulations.
This argument ignores another of Defendant’s obligations – the enforcement of those laws
and regulations. Disclosure of enforcement strategies and the direction, scope, and limits of
investigations interferes with this law enforcement activity by permitting Plaintiff and other
regulated entities to violate the CAA, but evade detection. See id. ¶¶ 43-44. It is not for
Plaintiff to decide the best method for Defendant to fulfill its enforcement obligations.
Plaintiff also contends that as a litigant in the CAA Case and the possible target of
enforcement action arising from the NOVs, it has a right to the disclosure of the Redacted and
Withheld Documents in order adequately to defend itself. Defendant asserts that the
Redacted and Withheld Documents are not the evidence that Defendant or DOJ would present
in an enforcement case to “support its prima facie case or rebut an affirmative defense.” Id.
¶ 52. Whether or not this is so, Plaintiff has not cited and the Court has not identified any
authority entitling the subject of a civil enforcement action to use the FOIA to obtain advance
notice of the evidence against it. As noted above, the very purpose of Exemption 7(A) is to
protect against such disclosures. Moreover, the FOIA is not intended as a substitute for civil
discovery and the Court’s determination here in no way affects Plaintiff’s ability to employ
civil discovery tools in any proceeding against it.
The FOIA provides that “[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.” 5 U.S.C. § 552(b).” An entire document may not be withheld simply
because some of the material in the document is subject to an exemption.
Coalition, 542 F.3d at 1212. Non-exempt portions of documents must be disclosed unless
they are “inextricably intertwined” with exempt portions. Id. Defendant is required to
demonstrate that the exempt portions of the documents are not segregable from the
non-exempt material. Id. And, in every case, the district court must make an express finding
on the issue of segregability. Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007); Rugiero
v. DOJ, 257 F.3d 534, 553 (6th Cir. 2001); Church of Scientology of Cal. v. U.S. Dep't of the
Army, 611 F.2d 738, 744 (9th Cir. 1979).
The record indicates that 184 of 275 documents were disclosed in whole or in part.
With respect to the 136 Redacted Documents, Defendant has provided specific, detailed
designations indicating the types of information redacted. (Doc. No. 34-8, ¶ 32.) With
respect to the Withheld Documents, Defendant’s sworn statement indicates that “factual
information . . . was determined to be inextricably intertwined with privileged information
and . . . could not be reasonably segregated to be released under FOIA from the attorney20
work product, attorney-client and law enforcement information.” Id. ¶ 34. On the basis of
this record, the Court finds that Defendant has satisfied its obligation to disclose all
reasonably segregable information in the records responsive to Plaintiff’s Request.
Vaughn Index and In Camera Review
Plaintiff has requested that the Court review a representative sample of documents in
camera and order Defendant to provide a “Vaughn index” for the Redacted and Withheld
Documents. The Court will not require either of these measures. In camera review is not
required where the Court is satisfied that the agency has adequately supported their exemption
claims. See Rugiero, 257 F.3d at 544. In addition, under Eighth Circuit law, no Vaughn
index may be required where Exemption 7, the law enforcement exemption, forms a basis for
withholding documents. In re DOJ, 999 F.2d at 1311 (error to require agency to provide
Vaughn index detailing documents withheld when the basis for exemption was law
enforcement purposes); see also Barney, 618 F.2d at 1273-74 (holding that no Vaughn index
would be required since the record clearly demonstrated that the FOIA requestor was subject
to an ongoing law enforcement investigation).
The Court turns to Plaintiff’s request for attorney’s fees. A FOIA claimant who has
“substantially prevailed” on its claim may recover attorney’s fees. 5 U.S.C. § 552(a)(4)(E);
Miller, 779 F.2d at 1389. A favorable judgment is not required for such an award, but absent
such a judgment, a plaintiff must show: “(1) that prosecution of the action could reasonably
be regarded as necessary to obtain the information; and (2) that the existence of the lawsuit
had a causative effect on the release of the information.” Id. The Court, having found that
Defendant’s assertion of Exemptions 5 and 7(A) is proper and that no further disclosure of
information is required, also finds that Plaintiff cannot demonstrate either of these elements,
and concludes that an award of attorney’s fees is not appropriate here.
In conclusion, based upon its review of record, the Court finds that the Defendant
agency has fully discharged its duties under FOIA and is entitled to summary judgment on
IT IS HEREBY ORDERED that Plaintiff’s motion for summary judgment is
DENIED. (Doc. No. 20.)
IT IS FURTHER ORDERED that Defendant’s Motion for summary judgment is
GRANTED. (Doc. No. 32.)
IT IS FURTHER ORDERED that Plaintiff’s request for attorney’s fees is DENIED.
A separate judgment will accompany this Memorandum and Order.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 25th day of September, 2012.
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