Natural Resources Defense Council v. U.S. Environmental Protection Agency
Filing
57
OPINION AND ORDER re: 35 MOTION for Summary Judgment filed by U.S. Environmental Protection Agency. Summary judgment is GRANTED to the EPA on those issues and as to those records. By contrast, and as described throughout this Opinio n, the agency failed to justify its decision not to disclose the remaining records. For those records, summary judgment is DENIED. Finally, summary judgment is DENIED on the agency's segregability claims. In light of this Opinion and Orde r and the claims that remain, the parties shall meet and confer to discuss (1) how the litigation should proceed from here and (2) how this Opinion and Order applies to the records not addressed by the Vaughn index. No later than September 20, 2019 , the parties shall file letter-briefs, not to exceed four single-spaced pages, stating their views on those issues - mindful of the Court's desire to minimize further proceedings and the scope of any further judicial review. Finally, the part ies shall appear for a conference before the Court on October 3, 2019, at 4:30 p.m. to discuss their views on how to proceed. The Clerk of Court is directed to terminate Docket No. 35. (Status Conference set for 10/3/2019 at 04:30 PM before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 8/30/2019) (ne)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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NATURAL RESOURCES DEFENSE COUNCIL,
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Plaintiff,
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-v:
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U.S. ENVIRONMENTAL PROTECTION AGENCY,
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Defendant.
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17-CV-5928 (JMF)
OPINION AND ORDER
JESSE M. FURMAN, United States District Judge:
Plaintiff Natural Resources Defense Council (the “NRDC”) sues the United States
Environmental Protection Agency (the “EPA” or the “agency”) under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, seeking certain documents and records that the EPA
has withheld pursuant to one of FOIA’s enumerated “exemptions” — specifically, records
concerning a senior manager’s participation in certain agency policymaking activities. The EPA
now moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment.
For the reasons that follow, the Court grants the motion in part and denies it in part, orders the
production of certain records, and directs the parties to confer on next steps.
BACKGROUND
The relevant facts are drawn from the parties’ affidavits and are undisputed for purposes
of this motion. The NRDC is a “national, not-for-profit environmental and public health
membership organization” that “engages in research, advocacy, public education, and litigation
related to protecting the environment and public health,” including efforts to “eliminate health
risks posed by exposure to toxic chemicals.” ECF No. 41 (“Tallman Decl.”), ¶ 2. The EPA is a
federal agency charged with, among other things, regulating the use of commercial chemicals
and pesticides. See ECF No. 36 (“Myrick Decl.”), ¶¶ 24-31. Within the EPA, the Office of
Chemical Safety and Pollution Prevention (“OCSPP”) is specifically tasked with “protect[ing]
human health and the environment from potential risks from pesticides and toxic chemicals.” Id.
¶ 9. In 2017, Dr. Nancy Beck joined the EPA as the Deputy Assistant Administrator of OCSPP.
Id. ¶ 13. Prior to that, she had been the “Senior Director of Regulatory Science Policy” at the
American Chemistry Council, a group that “represents companies that are directly regulated by
EPA.” ECF No. 36-12, at 9. In her new role, Dr. Beck would participate in policymaking
processes — for example, implementing the amended TSCA — that would directly affect
industry participants she had previously represented. Id. at 10-11, 14.
In May 2017, the NRDC submitted a FOIA request to the EPA, seeking records relating
to Dr. Beck’s participation in agency rulemaking and other policy-making activities under the
amended Toxic Substances Control Act (“TSCA”), 15 U.S.C. §§ 2601 et seq. 1 On August 4,
2017, the NRDC filed suit for those records. Myrick Decl. ¶¶ 6, 11; see also 5 U.S.C.
§ 552(a)(4)(B). In November 2017, the parties agreed upon a scope for the agency’s records
search. Myrick Decl. ¶ 12; ECF No. 19, at 1-2. Specifically, the EPA agreed to search for
records relating to Dr. Beck’s participation in the following seven policymaking domains:
1. The TSCA “Framework Rules.” As amended in 2016, the TSCA required the EPA to
complete two rulemakings — namely, rules relating to “Procedures for Prioritization of
Chemicals for Risk Assessments under the TSCA” and “Procedures for Chemical Risk
Evaluations under the amended TSCA,” Myrick Decl. ¶ 24 — within one year of the
amendments, or June 22, 2017.
1
NRDC also sought “ethics related documents” relating to Dr. Beck, her hiring, and her
potential conflicts of interest. See, e.g., Myrick Decl. ¶¶ 6, 17-19. Those records are no longer
at issue, however, and thus are not addressed here. Compare ECF No. 40 (“NRDC Mem.”), at
22-23, with ECF No. 49 (“NRDC Surreply”), at 5 n.1.
2
2. Implementation of the “New Chemicals” program, including potential improvements to
the program and elimination of a backlog of chemical review submissions filed by
companies.
3. Rulemakings under TSCA Section 6(a) on the use of three chemicals: trichloroethylene,
methylene chloride, and N-methylpyrrolidone.
4. Pesticide actions relating to the pesticides chlorpyrifos and glyphosate.
5. The development of “scope” for the first ten chemicals to be evaluated under the
amended TSCA.
6. Potential changes to the “Chemical Data Reporting” rule under TSCA Section 8(a).
7. Evaluation of existing EPA regulations.
Myrick Decl. ¶¶ 12-13, 24-31. The agency also agreed to a timeline for reviewing the records
and producing those which it determined were not “exempt” under FOIA. Id. ¶ 15; see 5 U.S.C.
§ 552(b) (listing the categories of records that need not be disclosed by an agency).
Following its search and review, the EPA identified 1,350 responsive records. Of those
records, it has released 277 in full; released in part and withheld in part 920 records; and
withheld in full 153 records. Id. ¶ 16. For the records withheld in whole or in part, the agency
claims they need not be disclosed pursuant to either or both so-called Exemption 5 (which
incorporates civil discovery privileges such as the deliberative process and attorney-client
privileges) and Exemption 6 (which protects private personal information). See Myrick Decl.
¶¶ 22-23, 36-37; 5 U.S.C. § 552(b)(5), (b)(6). To evaluate the EPA’s exemption claims, the
NRDC selected a set of 120 records (reduced to 116 following additional disclosures by the
agency) for which the EPA would provide a “Vaughn index” — a document that describes nondisclosed records in enough detail for a requester (and, often, a reviewing court) to assess the
validity of an agency’s assertions that the withheld records are actually exempt from disclosure
under the statute. See Tallman Decl. ¶ 16; see also Vaughn v. Rosen, 484 F.2d 820, 826-28
(D.C. Cir. 1973); ACLU v. United States Dep’t of Justice, 844 F.3d 126, 129 n.4 (2d Cir. 2016).
3
The EPA now moves for summary judgment on the NRDC’s claims, contending that its
Vaughn index and affidavits establish that it properly withheld the challenged documents under
Exemptions 5 and 6. The NRDC does not challenge the EPA’s Exemption 6 claims. See NRDC
Mem. 6. Instead, it contends that the agency has failed to demonstrate that: (1) it conducted an
adequate search for responsive records; (2) its withholdings are justified under Exemption 5; (3)
it disclosed all reasonably segregable, non-privileged factual information, as required by FOIA;
and (4) it sufficiently articulated the reasonably foreseeable harms that disclosure would cause to
the agency’s exemption-related interests. The parties also disagree about whether documents
beyond the 116 at issue here remain in dispute: The EPA contends that by selecting 120 records,
the NRDC waived or abandoned its claims regarding the other approximately 950 records
withheld in full or in part, an argument to which the NRDC strenuously objects.
Based on an initial review, the Court ordered the EPA to submit a sample of ten records
in camera to assess its claim that it had disclosed all reasonably segregable, non-exempt
information. It further ordered the agency to submit a supplemental affidavit or Vaughn index
explaining with more specificity what harms to exemption-related interests the disclosure of the
challenged records would cause. See ECF No. 53. The EPA did both.
LEGAL STANDARDS
“The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of
a democratic society, needed to check against corruption and to hold the governors accountable
to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). To effectuate
this purpose, FOIA mandates disclosure of agency records unless those records fall within
certain enumerated exceptions, which “are to be interpreted narrowly in the face of the
overriding legislative intention to make records public.” Tigue v. U.S. Dep’t of Justice, 312 F.3d
4
70, 76 (2d Cir. 2002). Exemption 5 — the only exemption still at issue in this case — protects
“inter-agency or intra-agency memorandums or letters that 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). “By this
language, Congress intended to incorporate into the FOIA all the normal civil discovery
privileges,” including the attorney-client and deliberative process privileges. Hopkins v. U.S.
Dep’t of Hous. & Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991). To be protected by the
deliberative process privilege, “a document must be both ‘predecisional’ and ‘deliberative.’”
Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999).
The exemptions notwithstanding, an agency must produce any non-exempt portions of a
record that are “reasonably segregable” from portions that are exempt. 5 U.S.C. § 552(b).
Additionally, “purely factual” material is generally not exempt from disclosure. See Grand Cent.
P’ship, 166 F.3d at 482. Further, following amendments to the statute in 2016, “[a]n agency
shall withhold information under [FOIA] only if the agency reasonably foresees that disclosure
would harm an interest protected by an exemption described in subsection (b).” 5 U.S.C.
§ 552(a)(8)(A)(i) (roman numerals and dashes omitted). As discussed in detail later, this
provision imposes an independent and meaningful requirement on agencies before they may
withhold a record under one of FOIA’s exemptions. See Judicial Watch, Inc. v. U.S. Dep’t of
Commerce, 375 F. Supp. 3d 93, 100 (D.D.C. 2019) (“[E]ven if an exemption applies, an agency
must release the document unless doing so would reasonably harm an exemption-protected
interest.”); accord Rosenberg v. U.S. Dep’t of Def., 342 F. Supp. 3d 62, 72, 78 (D.D.C. 2018).
Summary judgment is the procedural vehicle by which most FOIA actions are resolved.
See, e.g., Grand Cent. P’ship, 166 F.3d at 478. “In resolving summary judgment motions in a
FOIA case, a district court proceeds primarily by affidavits in lieu of other documentary or
5
testimonial evidence.” Long v. Office of Pers. Mgmt., 692 F.3d 185, 190 (2d Cir. 2012). As the
Second Circuit has explained:
Summary judgment is warranted on the basis of agency affidavits when the
affidavits 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 faith.
Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009) (quoting Larson v. Dep’t of State,
565 F.3d 857, 862 (D.C. Cir. 2009)); accord Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812
(2d Cir. 1994) (“Affidavits or declarations supplying facts indicating that the agency has
conducted a thorough search and giving reasonably detailed explanations why any withheld
documents fall within an exemption are sufficient to sustain the agency’s burden.”). Although
the agency’s determination that requested information falls within a FOIA exemption is reviewed
de novo, see 5 U.S.C. § 552(a)(4)(B); Department of Air Force v. Rose, 425 U. S. 352, 379
(1976), the affidavits submitted by the agency in support of its determination “are accorded a
presumption of good faith,” Carney, 19 F.3d at 812 (internal quotation marks omitted).
Ultimately, “the agency’s justification is sufficient if it appears logical and plausible.” ACLU v.
U.S. Dep't of Def., 901 F.3d 125, 133-34 & n.9 (2d Cir. 2018), as amended (Aug. 22, 2018)
(emphasizing that the agency’s claim of privilege must be “logical and plausible”); accord
Wilner, 592 F.3d at 73.
DISCUSSION
The NRDC raises a handful of challenges to the EPA’s motion: to the adequacy of the
agency’s search for the records sought; its showing of reasonably foreseeable harms to its
deliberative process-related interests; its claims that Exemption 5 applies to the challenged
records; and to its claims that it released all reasonably segregable non-exempt material. The
Court addresses each in turn, spilling the most ink on whether Exemption 5 applies.
6
A. The Adequacy of the EPA’s Search for Responsive Records
In a FOIA case, “the defending agency has the burden of showing that its search was
adequate.” Carney, 19 F.3d at 812. On this score, “[a]ffidavits or declarations supplying facts
indicating that the agency has conducted a thorough search . . . are sufficient to sustain the
agency’s burden.” Id.; see also Grand Cent. P’ship, 166 F.3d at 489. Under this standard, a
“good faith effort to search for the requested documents, using methods reasonably calculated to
produce documents responsive to the FOIA request” will suffice. Adamowicz v. IRS, 672 F.
Supp. 2d 454, 461-62 (S.D.N.Y. 2009) (internal quotation marks and citations omitted), aff’d,
402 F. App’x 648 (2d Cir. 2010). Importantly, “[t]his standard does not demand perfection, and
thus failure to return all responsive documents is not necessarily inconsistent with
reasonableness: an agency is not expected to take extraordinary measures to find the requested
records, but only to conduct a search reasonably designed to identify and locate responsive
documents.” Id. (internal quotation marks omitted).
Applying those standards here, the Court concludes that the EPA has carried its burden of
showing that its search was adequate. The NRDC’s sole argument to the contrary is that the
EPA’s search terms were “too restrictive” — namely, they “omit[ted] numerous key search terms
[by] excluding common plain language or short-hand versions of many words, as well as
commonly-used trade names for chemicals.” NRDC Mem. 23-24. For example, the search
terms did not include “RoundUp” (which includes glyphosate, with respect to which the NRDC
seeks records); did not use abbreviations for the EPA’s Risk Evaluation rule such as “Risk Eval”
or “RE”; and did not include commonly used abbreviations like “PMN” (for “premanufacture
notice,” which EPA did search for). Id.; see also Myrick Decl. ¶ 13. But “[f]ederal agencies
have discretion to craft the search terms that they believe to be reasonably tailored to uncover
7
documents responsive to a FOIA request,” Brennan Ctr. for Justice at New York Univ. Sch. of
Law v. U.S. Dep’t of Justice, 377 F. Supp. 3d 428, 434 (S.D.N.Y. 2019), and, in general, “a
FOIA petitioner cannot dictate the search terms for his or her FOIA request,” Bigwood v. United
States Dep’t of Def., 132 F. Supp. 3d 124, 140 (D.D.C. 2015). Here, the EPA developed a
reasonably broad set of search terms in consultation with subject matter experts in Dr. Beck’s
office and the EPA’s Office of General Counsel. See Myrick Decl. ¶ 13. And, as the agency
explains, many of the acronyms and search terms proposed by the NRDC would have pulled in a
wide swath of records unrelated to its request for records or swept up every single email sent or
received by Dr. Beck. See, e.g., ECF No. 47, ¶ 4 (noting that “RE” and “MC,” which the NRDC
proposed, are ubiquitous in email headers and EPA signature blocks). Nor is the agency
mandated to search every variant or alternative name for a chemical or program, as the NRDC’s
long list of proposed additional search terms suggests. See ECF No. 41, at ¶ 14. (And, in any
event, the agency did search for several variants of most search terms.) Accordingly, the
agency’s choice of search terms was reasonable and “reasonably calculated to produce
documents responsive to the . . . request.” Adamowicz, 672 F. Supp. 2d at 461-62. The NRDC
raises no other objections to the search, which, judging by the agency’s affidavits, was more than
adequate. See Myrick Decl. ¶¶ 13-14.
B. Reasonably Foreseeable Harms to Disclosure-Related Interests
As noted, FOIA now provides that “[a]n agency shall . . . withhold information under this
section only if . . . the agency reasonably foresees that disclosure would harm an interest
protected by an exemption described in subsection (b).” 5 U.S.C. § 552(a)(8)(A)(i). In an earlier
order, the Court concluded that this provision “impose[s] an independent and meaningful burden
on agencies” and that, “to satisfy the ‘foreseeable harm’ standard, an agency must explain how a
8
particular Exemption 5 withholding would harm the agency’s deliberative process.” ECF No.
53, at 1-2 (internal quotation marks omitted) (quoting Rosenberg v. U.S. Dep’t of Def., 342 F.
Supp. 3d 62, 78 (D.D.C. 2018)). Finding that the EPA’s “generic, across-the-board articulations
of harm” were insufficient to make this showing, the Court ordered the agency to file
supplemental affidavits to describe with greater particularity the Exemption 5-related interests
that would be harmed by disclosure. ECF No. 53, at 2.
Assessing the agency’s showing requires an examination of the interests served by
Exemption 5 and the privilege in question. The deliberative process privilege is
designed to safeguard and promote agency decisionmaking processes in at least three
ways: It serves to assure that subordinates within an agency will feel free to provide the
decisionmaker with their uninhibited opinions and recommendations without fear of later
being subject to public ridicule or criticism; to protect against premature disclosure of
proposed policies before they have been finally formulated or adopted; and to protect
against confusing the issues and 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.
Grand Cent. P’ship, 166 F.3d at 481 (citing Coastal States Gas Corp. v. Dep’t of Energy, 617
F.2d 854, 866 (D.C. Cir. 1980)). More simply, the “efficiency of Government would be greatly
hampered if, with respect to legal and policy matters, all Government agencies were prematurely
forced to operate in a fishbowl.” EPA v. Mink, 410 U.S. 73, 87 (1973) (internal quotation marks
omitted).
The EPA’s supplemental affidavit generally identifies three interests related to the
deliberative process that, unsurprisingly, hew closely to the interests articulated in Grand Central
Partnership. See, e.g., ECF No. 56 (“Second Supp. Myrick Decl.”), ¶¶ 15-17 (listing those three
rationales with respect to pesticide reviews). Those interests are the same as the ones originally
identified by the agency, see Myrick Decl. ¶ 35, and which the Court found to be inadequately
articulated. In its supplemental affidavit, however, the agency has provided substantially more
9
context for the decisionmaking processes in question and the harms that would reasonably ensue
from disclosure of the material — which makes all the difference.
First, the EPA explains in some detail how disclosure of records relating to the Section
6(a) rulemakings, the pesticide registration reviews, the Chemical Data Reporting rules, and the
evaluation of existing regulations could prematurely disclose agency rulemakings or policies that
have not been finalized. See Second Supp. Myrick Decl. ¶¶ 13, 15 22, 25; id. ¶¶ 14-15 (relating
that OCSPP is “currently engaged in the registration review for glyphosate and chlorpyrifos” and
that disclosure of records relating to this “ongoing” review could prematurely reveal the
agency’s decision on these reviews or rationales underlying possible decisions). Preventing such
disclosures is a core aim of the privilege. See Grand Cent. P’ship, 166 F.3d at 481. Second, the
affidavit lays out, for example, that Dr. Beck exchanged emails and working drafts of scope
documents with OSCPP staff and EPA attorneys and that those records contain “unvetted,
incomplete and subjective opinions and rationales of [the staff] who shared the information with
Dr. Beck for internal discussion.” Second Supp. Myrick Decl. ¶ 20. Disclosure of those
rationales and opinions could risk “confusing the issues and misleading the public.” Grand Cent.
P’ship, 166 F.3d at 481; see also, e.g., Fox News Network, LLC v. U.S. Dep’t of The Treasury
(“Fox News I”), 739 F. Supp. 2d 515, 541 (S.D.N.Y. 2010) (“[D]isclosure of the various drafts . .
. would reveal . . . alternatives that were not adopted and discussions regarding the rationale for
provisions that were adopted which may not accurately reflect the ultimate rationale for their
adoption.”). Finally, the agency describes how staff members’ “[c]andid, even blunt, staff
considerations and assessments” of programs like New Chemicals are important to improving the
agency’s processes and that disclosure of frank opinions about “existing approaches” and ways
to improve could discourage such candor in the future. Second Supp. Myrick Decl. ¶ 8. While
10
some of the EPA’s discussion still verges on boilerplate, the Court finds overall that the agency
has adequately articulated “the link between this harm and the specific information contained in
the material withheld.” Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 375 F. Supp. 3d 93, 101
(D.D.C. 2019). In short, because the agency has demonstrated a logical relationship between the
specific decisionmaking processes involved and the harms that the privilege guards against, it
has shown that it “reasonably fores[aw] that disclosure would harm” its Exemption 5-related
interests. 5 U.S.C. § 552(a)(8)(A)(i). It follows that summary judgment must be and is granted
to the agency on this issue.
C. Information Withheld Under the Deliberative Process Privilege
Next, the Court turns to the most substantial issue in dispute: the applicability of the
deliberative process privilege by way of Exemption 5. The EPA withheld the lion’s share of the
records at issue on that basis. After laying out the relevant legal principles, the Court assesses
the adequacy of the agency’s claims of exemption, grouping the records by rough category.
Some categories pertain to the type of document (e.g., drafts of agency rules, “messaging”
documents, “briefing” documents); others relate to the substantive subject matter of the records
(e.g., records relating to the agency’s “New Chemicals” program).
1. Applicable Legal Principles
The deliberative process privilege is designed to protect the “process by which
governmental decisions and policies are formulated.” Tigue, 312 F.3d at 76 (internal quotation
marks omitted). It does so “by preserving and encouraging candid discussion between officials.”
Nat’l Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 356 (2d Cir. 2005). Under the
privilege, the Government may withhold “an inter- or intra-agency document . . . if it is: (1)
predecisional, i.e., prepared in order to assist an agency decisionmaker in arriving at his decision,
11
and (2) deliberative, i.e., actually related to the process by which policies are formulated.” Id.
(alterations and internal quotations marks omitted). “[W]hile the agency need not show ex post
that a decision was made” based on the document, “it must be able to demonstrate that, ex ante,
the document for which [the] privilege is claimed related to a specific decision facing the
agency.” Tigue, 312 F.3d at 80. Considerations informing whether a record is “deliberative”
include “whether the document (i) formed an essential link in a specified consultative process,
(ii) reflects the personal opinions of the writer rather than the policy of the agency,” and “(iii) if
released, would inaccurately reflect or prematurely disclose the views of the agency.” Grant
Cent. P’ship, 166 F.3d at 482 (internal quotation marks and alterations omitted). Accordingly,
the privilege “focus[es] on documents ‘reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and policies are
formulated.’” Hopkins, 929 F.2d at 84-85 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 150 (1975)). It generally does not cover “purely factual” material. Grand Cent. P’ship, 166
F.3d at 482. Nor does it cover records that are “merely peripheral to actual policy formation; the
record[s] must bear on the formulation or exercise of policy-oriented judgment.” Id.
Finally, in assessing a claim of deliberative process privilege, it is important “to
understand ‘the function of the documents in issue in the context of the administrative process
which generated them.’” Lead Indus. Ass’n, Inc. v. OSHA, 610 F.2d 70, 80 (2d Cir. 1979)
(Friendly, J.) (quoting Sears, Roebuck & Co., 421 U.S. at 138). Ultimately, “[w]hether a
particular document is exempt under [Exemption 5] depends not only on the intrinsic character
of the document itself, but also on the role it played in the administrative process.” Id.
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2. Drafts of Agency Rules, Formal Guidance, and Scoping Documents
A large fraction of the records at issue are draft rules or agency guidance, or documents
integral to the rulemaking and guidance drafting processes. For example, the records include “a
63-page working draft of the preamble portion to [a] draft final rule,” which was later published
in the Federal Register; a “draft response to public comments received” regarding the EPA’s
proposed “prioritization rule,” also published later in final form; and a “draft flowchart” that laid
out “options for EPA’s consideration as part of developing . . . [a] rulemaking” on chemical data
reporting. See Vaughn Index I, ECF No. 36-1 (“VI”), at 87-89, 107-08; see also, e.g., id. at 109
(working draft of a formal agency guidance document later published in the Federal Register).
These records were properly withheld. “Internal deliberation on a final agency rule
clearly falls within the traditional scope of the deliberative process privilege.” Fox News I, 739
F. Supp. 2d at 549 (collecting cases); see also, e.g., Lead Indus. Ass’n, 610 F.2d at 86 (affirming
the agency’s withholding of “drafts of the preamble to . . . standards that appeared in the Federal
Register”); NRDC v. Fox, No. 94-CV-8424 (PKL) (HBP), 1998 WL 158671, at *4 (S.D.N.Y.
Apr. 6, 1998) (“Drafts of final agency decisions . . . have consistently been held to be within the
deliberative process privilege.”). That principle encompasses not only drafts of the rule or
regulation in question, but also “any communications regarding [the] drafting and revision” of
the rule. Fox News I, 739 F. Supp. 2d at 549. After all, such documents are plainly
predecisional with respect to the rule being crafted and, almost by definition, deliberative — not
merely “related to the process by which policies are formulated,” but constituting the process
itself. See Nat’l Council of La Raza, 411 F.3d at 356. Here, the draft rules and guidance
documents, the inter- and intra-agency comments and responses to such drafts, and the other
documents created to assist EPA staff in developing formal agency policy were central to the
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development of those formal rules and guidance documents — that is, paradigmatically part of
the “deliberative process.” Fox News I, 739 F. Supp. 2d at 549 (finding drafts of Department of
Treasury guidelines and “a proposed interim final rule” to be covered by the deliberative process
privilege); New York Legal Assistance Grp., Inc. v. United States Dep’t of Educ., No. 15-CV3818 (LGS), 2017 WL 2973976, at *7 (S.D.N.Y. July 12, 2017) (same, regarding “draft
guidance” drafted by the Department of Education and “an email chain discussing the draft
guidance”). Accordingly, the forty-four records that the Court concludes fall within this
category — which are listed in full in the Appendix to this Opinion and Order under the category
“Drafts of agency rules, formal guidance, etc.” — were properly withheld, and summary
judgment is granted as to them.
3. Drafts of Agency Issue Papers, Reports, and Internal Guidance
For similar reasons, the Court concludes that seven records containing drafts of policy
papers, reports, and internal agency guidance are protected by the deliberative process privilege.
Three records are drafts of policy (or “white”) papers regarding, for example, interim methods
for evaluating pesticide assessments under the Endangered Species Act. See VI 113-114. Those
three records are obviously predecisional with respect to the draft policies in question, and
“reflect[] advisory opinions, recommendations and deliberations comprising part of a process” of
crafting those policies, which did not represent the final views of the EPA and might
“inaccurately reflect” the views of the agency if disclosed. Grand Cent. P’ship, 166 F.3d at 482
(internal quotation marks omitted); see also Nat’l Day Laborer Org. Network v. U.S.
Immigration & Customs Enf’t Agency, 811 F. Supp. 2d 713, 756 (S.D.N.Y. 2011), amended on
reconsideration (Aug. 8, 2011) (approving the withholding of an issue paper that “discusse[d] a
proposed change” in policy and “reflect[ed] comments and deletions” from other commenters).
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Two others are draft responses by the EPA as part of inter- or intra-agency review —
specifically, in providing feedback on a Department of Commerce report with respect to
reducing regulatory burdens and in crafting an EPA report in response to an executive order
mandating evaluation of existing agency regulations. See VI 120, 121. The Vaughn index and
declarations adequately establish that these drafts were prepared by staff “to assist . . . agency
decisionmaker[s]” in formulating policy with respect to the EPA and Commerce policies on
regulatory burdens and regulation review, see Hopkins, 929 F.2d at 84 (internal quotation marks
omitted) — that is, were predecisional — and that the records represent the views and
recommendations of agency staff rather than an official agency policy— that is, were
deliberative. See Grand Cent. P’ship, 166 F.3d at 482.
Finally, Documents 19359 and 21475 2 — which are draft internal guidelines for EPA
staff to be used in (1) evaluating companies’ submissions for new chemicals and (2) developing
risk assessments for chemicals, see VI 80-81, 119-20 — were properly withheld by the EPA.
These records reflect “advisory opinions, recommendations and deliberations” about how the
agency should carry out specific aspects of its statutory mandate. Tigue, 312 F.3d at 76 (internal
quotation marks omitted). And “if released,” they “would inaccurately reflect or prematurely
disclose the views of the agency,” as the staff (and especially, in the case of the first record, the
outside contractor) who drafted them were “not the final decisionmaker.” Brennan Ctr. for
Justice at New York Univ. Sch. of Law v. U.S. Dep’t of Justice, 697 F.3d 184, 202 (2d Cir. 2012)
(internal quotation marks omitted); see also VI 80-81 (“The draft document . . . was developed
by an EPA contractor and then circulated for internal discussion and review by EPA staff and
2
The Vaughn Index lists records using long alphanumeric strings. For convenience, the
Court refers to records using only their unique terminal digits. For example, “ED_001338_
00019359” becomes “Document 19359.”
15
managers.”); id. at 119-20 (draft risk assessment handbook “continues to be . . . in
development”). Summary judgment is thus granted to the EPA as to these seven records. 3
4. “Messaging” Records
The next category of records at issue reflects internal deliberations by EPA staff about
how the agency should communicate its policies to people outside the agency. These records fall
into three rough categories: (1) “talking points” for the Administrator and senior agency staff
about various agency policies; (2) discussions about how to respond to inquiries from the press,
along with draft responses; and (3) discussions about how to respond to questions and requests
from members of Congress, along with draft responses.
The EPA claims these records are protected by the deliberative process privilege,
although the precise claim of privilege is somewhat unclear and inconsistent. For instance, the
agency contends that “early drafts of . . . public statements” were withheld because EPA staff
“were still developing the Agency’s policies and public statements regarding those policies.”
ECF No. 37 (“EPA Mem.”), at 19 (emphasis added); see also Myrick Decl. ¶ 35 (“The records at
issue reflect [internal] discussions . . . at a time when EPA’s policymaking processes . . . were
still ongoing and had not been finalized.”). These statements indicate that disclosure of these
“messaging” records would compromise the agency’s deliberative processes about the
substantive agency policies to which the messaging documents relate. But in other submissions,
particularly the Vaughn entries for each of these records and the EPA’s reply memorandum, the
agency appears to argue that the deliberative processes that necessitate shielding these records
from public view surround the messaging decisions themselves, not the underlying substantive
3
The records are Documents 5211, 18740, and 26423 (VI 112, 113, 114); 15277 and 9731
(VI 120, 121); and 19359 and 21475 (VI 80, 119).
16
policymaking decisions. See, e.g., ECF No. 46 (“EPA Reply”), at 5-6 (regarding the “talking
points” records, “[t]he relevant decisions are whether and how the agency should publicly
present and/or prepare for public debate or questioning about a previously-decided policy”
(emphasis added)); VI 65 (22782) (“The withheld information demonstrates the give-and-take
exchange of ideas and opinions that occurred in developing the Agency’s response to the . . .
reporter’s inquiry.”). For its part, the NRDC argues that these records are not protected because
they are not predecisional — that is, they are “post-deliberative material” because they discuss
“how EPA should present actions the agency already has taken.” NRDC Mem. 15-16 (emphasis
added). 4
This Court has previously held “that ‘messaging’ communications can be protected by
the deliberative process privilege.” New York v. United States Dep’t of Commerce, No. 18-CV2921 (JMF), 2018 WL 4853891, at *2 (S.D.N.Y. Oct. 5, 2018) “After all,” the Court explained,
“an agency’s decisions about what and how to communicate with Congress, the press, or the
public can, in and of themselves, involve substantive policymaking (or at least substantive policy
refinement) of the type that Congress has delegated to the agency, and the purposes of the
privilege are served by protecting the deliberations leading to those decisions.” Id.
“Additionally, even (otherwise unprotected) simple ‘messaging’ communications ‘are properly
withheld if their release would reveal the status of internal deliberations’ about other, substantive
decisions falling within the agency’s statutory ambit.” Id. at *2 n.2 (quoting Fox News I, 739 F.
Supp. 2d at 545). At the same time, “not all ‘messaging’ decisions are so intimately bound up
with an agency’s central policy mission.” Id. at *2. Thus, not “all deliberations over what to say
4
NRDC makes this argument only with respect to the “draft talking points,” but as the
Court will explain, the argument applies to most, if not all, of the records in this category.
17
are protected by the privilege.” Id. “The key inquiry” in determining whether a messaging
document is protected by the deliberative process privilege “is whether the drafts or
communications reflect deliberations about what ‘message’ should be delivered to the public
about an already-decided policy decision, or whether the communications are of a nature that
they would reveal the deliberative process underlying a not-yet-finalized policy decision.”
Citizens Union of City of New York v. Attorney Gen. of New York, 269 F. Supp. 3d 124, 164
(S.D.N.Y. 2017); accord New York, 2018 WL 4853891, at *2; Fox News Network, LLC v. U.S.
Dep’t of Treasury, 911 F. Supp. 2d 261, 276 (S.D.N.Y. 2012).
Applying those standards here, the Court concludes that the EPA has, with one exception,
failed to demonstrate that the “messaging” records have been properly withheld under the
deliberative process privilege.
a. Talking Points
First, several of the records are described as “talking points” — for example, draft talking
points about “how to present the EPA program for reviewing new chemicals under the Toxic
Substances Control Act” and “how to respond to the potential questions on glyphosate” (a
pesticide then under review by the EPA) “if it should come up during [a] press conference.” VI
1, 65-66 (401, 22970). According to the agency, these documents concern “whether and how the
agency should publicly present . . . previously-decided polic[ies].” EPA Reply 5-6 (emphasis
added); see also VI 96-97 (23178), and Myrick Decl. ¶ 24 (draft speech “to present and discuss
[a] final rule” that had been published several days earlier). 5 That acknowledgement is fatal to
5
Three other records contain “talking points,” but for two of them (Documents 17682 and
25605, VI 98, 118), the talking points are part of internal briefing materials, rather than publicfacing messaging documents, and so are analyzed later with other records in that category. The
third (Document 2177, VI 6) is clearly exempt from disclosure because the talking points
concerned a proposed agency rule that at the time had not been finalized.
18
the EPA’s position: “[B]ecause they merely ‘reflect deliberations about what “message” should
be delivered to the public about an already-decided policy decision’ and, thus, their disclosure
would not ‘reveal the deliberative process underlying a not-yet-finalized policy decision,’” these
records are not protected under Exemption 5. New York, 2018 WL 4853891, at *3 (quoting
Citizens Union, 269 F. Supp. 3d at 164). Nor does the EPA give any indication that it was “was
exercising its essential policymaking role in [making] those routine messaging decisions.” Id.
Accordingly, summary judgment is denied as to these three records.
b. Draft Responses to Press Inquiries
Next, three of the records are email strings between EPA staff about how to respond to
press inquiries — specifically, to questions about (1) “asbestos,” (2) “an update on the TSCA
New Chemicals program and clearing the backlog of EPA’s review of PMNs,” and (3) “the
Science Advisory Panel’s postponed meeting on glyphosate.” VI 13, 15, 64 (7169, 8309,
22782). As with the draft talking points, the EPA’s justification for withholding these records is
primarily that, if disclosed, they would shed light on internal deliberative processes with respect
to communicating the agency’s policies — here, to the press. See, e.g., VI 14 (7169) (“The
withheld portions of the [July 2017] email string reflect pre-decisional deliberations . . . about
responding to a request from a reporter about asbestos.”); VI 16 (8309) (“The withheld
information reflects the give-and-take process for discussing EPA’s response to a reporter’s
inquiry.”). That is, the EPA claims only that these records are predecisional with respect to the
“messaging” decisions, not the underlying policy decisions that are being communicated. See,
e.g., Myrick Decl. ¶ 30 (policy to which the asbestos inquiry related was finalized one month
before the asbestos-related emails were exchanged). As discussed above, however, deliberations
about messaging decisions are generally not protected unless an agency is “exercising its
19
essential policymaking role in [making] those routine messaging decisions, or that [those
messaging decisions] are of the type that Congress has (even impliedly) authorized [the agency]
to make in the exercise of its statutory discretion.” New York, 2018 WL 4853891, at *3. Here,
the EPA makes no attempt to show that these seemingly routine responses to reporters — about
an interview request to discuss asbestos or a postponed meeting, VI 16, 65 — are, in fact,
exercises of the EPA’s essential policymaking functions in and of themselves. See New York,
2018 4853891, at *3 (finding that “draft responses to the Washington Post” were not exempt
from disclosure); Fox News I, 739 F. Supp. 2d at 548 (determining that a “Q&A” sheet to help
agency staff answer press inquiries was “neither predecisional with respect to a substantive
policy decision nor deliberative,” but rather “gave . . . staff members guidelines for responding to
questions about a decision already made”). Accordingly, summary judgment is denied as to
these records. 6
c. Draft Responses to Congress
Finally, ten records withheld concern how the EPA should respond to questions or
requests for documents from members of Congress. Representative records include:
Draft responses to two “Questions for the Record [“QFRs”] from the [House
Appropriations Committee] . . . about ‘Rewriting Several Rules per Executive Orders,’”
VI 17 (9765); see also VI 72 (25096) (draft responses to other QFRs);
6
It is worth emphasizing that the EPA does not contend — at least, not in any
comprehensible way — that disclosure of these email threads “would reveal the deliberative
process underlying a not-yet-finalized policy decision,” Citizens Union, 269 F. Supp. 3d at 164,
even though, for instance, the question about the postponed glyphosate meeting did relate to a
not-yet-finalized policy decision: the ongoing “registration review” for that pesticide. See
Myrick Decl. ¶¶ 27-28; VI 65 (22782) (“Release of the withheld information would have a
chilling effect on the Agency’s ability to have open and frank discussions . . . about developing
the Agency’s response to press inquiries.” (emphasis added)).
20
a string of emails “about EPA’s response to Senator Tom Udall’s June 29, 2017 letter to
EPA regarding the chemical substance chlorpyrifos,” VI 18-19 (11126); 7 and
three versions of “a draft letter responding to Senator Udall’s statements on TSCA
implementation at an Environmental Law Institute event,” VI 59-60 (21815, 18846,
18932).
Once again, the EPA argues that these records must be exempt from disclosure to protect the
agency’s deliberations regarding how to respond to Congress, not its deliberations regarding any
of the underlying agency policies. See, e.g., VI 17 (9765) (“Release of the withheld information
would discourage open and frank discussions . . . about responding to congressional inquiries.”);
id. at 19 (11126) (“The withheld information reflects pre-decisional deliberations between EPA
staff and managers about how to respond to Senator Udall’s letter to EPA about chlorpyrifos.”
(emphasis added)). And once again, this argument fails to persuade the Court that the records
are exempt from disclosure. With one exception, the EPA does not sufficiently demonstrate that
these decisions on how to respond to congressional inquiry about agency policy (1) are actually
exercises of the EPA’s “essential policymaking role” in and of themselves, see New York, 2018
WL 4853891, at *3, or (2) would “reflect[] internal agency deliberation on matters of substantive
policy prior to . . . public announcement of those decisions,” Fox News I, 739 F. Supp. 2d at 546.
Based on the Vaughn index, there is no basis to conclude, for example, that developing a
response to one congresswoman’s request for peer-reviewed science about chlorpyrifos
“involve[d] substantive policymaking” or even “substantive policy refinement” regarding that
pesticide, New York, 2018 WL 4853891, at *2, or that disclosure of such discussions would
reveal the agency’s deliberations about the ongoing registration review. See VI 61-62 (19639).
7
Other records in this category also relate to Congressional queries regarding chlorpyrifos.
See VI 25 (13150), 28 (13257), 61 (19639), 68 (23588), 73 (25349).
21
The one exception is a “one-page draft response” to a senator’s question for the record
that “sought EPA analysis and recommendations that was presented to EPA as part of
considering a petition to take action on chlorpyrifos.” VI 68-69 (23588). On its face, this record
contains intra-agency discussions that are both predecisional (with respect to the EPA’s decision
on the petition) and deliberative (the agency’s “analysis and recommendations” regarding the
petition). That those deliberations are embedded within other deliberations — namely, how to
respond to a senator’s request for such deliberative material — does not change the fact that
disclosure of the document “would reveal the deliberative process underlying a not-yet-finalized
policy decision.” Citizens Union, 269 F. Supp. 3d at 164. Accordingly, summary judgment is
granted as to this record; it is denied with respect to the other nine records in this category. 8
5. Briefing Documents
Another significant category of records at issue is internal briefing materials. Broadly
stated, these are records — including papers, presentations, graphs, and email threads — created
to brief senior agency staff about various topics within the agency’s purview.
a. Pesticide Registration Review
First, the briefing documents relating to the registration reviews of glyphosate and
chlorpyrifos were appropriately withheld by the agency. See Myrick Decl. ¶¶ 27-29. For
example, Document 15910 is an email thread among managers and agency staff discussing “the
status of certain pesticides matters, including chlorpyrifos” — which was undergoing review by
the EPA at the time, see id. ¶¶ 27, 29 — and included the participants’ “opinions and
recommendations for future action,” VI 55-56. Other records similarly included the opinions
8
Notwithstanding this conclusion, as discussed below, Documents 18846 and 18932 were
properly withheld pursuant to Exemption 5 and the attorney-client privilege.
22
and advice of agency staff regarding future action on pesticides with ongoing reviews. See, e.g.,
VI 3-4 (1743). These records and the others like it were “prepared in order to assist . . . agency
decisionmaker[s] in arriving at [their] decision[s]” regarding the pesticide reviews, and thus
predecisional; and they formed a link in a “specified consultative process” and “reflect[ed]
advisory opinions, recommendations and deliberations comprising part of [the] process” for
determining the outcome of the registration reviews, and thus deliberative. See Grand Cent.
P’ship, 166 F.3d at 482. Summary judgment is therefore proper as to these records (Documents
1743, 14507, 15910, 18487, 26227, and 2460, see VI 3, 39, 55, 59, 77, 115).
b. TSCA Framework Rules
Four of the briefing documents are records or emails created “to help [a senior EPA
manager] understand the role of epidemiology data” in human health risk assessments; at the
time the records were created, “the [office] was briefing the . . . manager on such issues.” VI 45
(14935); see also VI 40-41 (14518, 14561, 25173). It is far from clear, however, that the records
“relate[] to a specific decision facing the agency,” Tigue, 312 F.3d at 80, or that they “formed an
essential link in a specified consultative process,” Grand Cent. P’ship, 166 F.3d at 482. The
agency claims that the documents relate to its decisions about the Framework Rules, see Myrick
Decl. ¶ 24, but nothing in the Vaughn index entries provides a basis for that connection, see VI
40-41, 45; see also EPA Reply 2-3 (stating, without more, that the records “are predecisional
because they played a role in the ongoing development of two regulations”). Because the EPA
has failed to carry its burden of demonstrating that these records are predecisional or
deliberative, the Court cannot find them protected under Exemption 5. 9
9
The same goes for Documents 5427, 25605, and 25606, which were created to help
prepare the EPA Administrator for meetings with an industry group and with Congress. See VI
10-11, 110, 118; Myrick Decl. ¶¶ 24, 25, 32. The Vaughn Index entries for these records make
23
By contrast, the EPA has adequately demonstrated that two of the records relate to thenongoing processes for developing the Framework Rules, the disclosure of which would have
revealed the opinions and recommendations of agency staff before those processes had run their
course. See Fox News I, 739 F. Supp. 2d at 549 (reiterating that drafts of final agency
regulations, along with “any communications regarding their drafting and revision, [are] properly
withheld under the deliberative process privilege”). These documents were properly withheld.
See VI 57, 98 (16046, 17682). And although the specific decisionmaking process in question is
not described in any detail, Document 7028 apparently contains deliberative material relating to
an agency decision on a certain class of insecticides and is thus protected by Exemption 5. See
id. at 117-18. Summary judgment is thus granted as to these three records.
6. New Chemicals Program
Next are numerous records relating to the EPA’s “New Chemicals Program,” which
“helps manage the potential risk to human health and the environment from chemicals new to the
marketplace.” Myrick Decl. ¶ 25. Pursuant to the TSCA, a company wishing to bring a new
chemical to market must submit the chemical for review by the EPA. See id.; 15 U.S.C. § 2604.
During the relevant time period, the agency was (1) working to reduce a backlog of New
Chemicals cases under review by the EPA and (2) attempting more generally to “develop[]
strategies to be more transparent in how EPA makes decisions on new chemicals” and “support[]
the continued improvement of the . . . program.” Myrick Decl. ¶ 25. Pursuant to its
Memorandum Opinion and Order of July 25, 2019, the Court reviewed a number of these
no effort to explain how these materials relate to the Framework Rules decisions (5427), the New
Chemicals program (25606), or the evaluation of existing regulations (25605), and, by extension,
what roles the records played in those decisions, if any. To the extent the EPA is arguing that
these documents are protected as “messaging” decisions, the Court rejects the claim for
substantially the reasons it rejected the other claims of privilege made on that basis.
24
documents in camera. Although that review was focused on the question of segregability —
discussed in more detail later — it also informed the Court’s assessment of the EPA’s privilege
claims.
a. Statistics and Factual Information Related to the New Chemicals Webpage
Based on the in camera review, the Court concludes that many of the New Chemicals
records in question consist wholly or substantially of nonprivileged factual material. See Grand
Cent. P’ship, 166 F.3d at 482 (“The privilege does not . . . , as a general matter, cover ‘purely
factual’ material.”); accord New York, 2018 WL 4853891, at *3. More specifically, the records
provide numerical breakdowns of cases under review; the status of those cases in the review
process; and the agency’s historical and projected progress in eliminating the backlog. See, e.g.,
VI 2 (1350); 5-6 (2026, 2234). This material is not itself deliberative, as the EPA itself
implicitly acknowledges. See EPA Reply 9 (“Statistics and data bearing on the status of various
reviews were ‘inextricably intertwined’ with deliberations about how backlogs of such reviews
should be cleared, and how the program could be improved . . . .”); see also, e.g., Nat’l Cong. for
Puerto Rican Rights ex rel. Perez v. City of New York, 194 F.R.D. 88, 94 (S.D.N.Y. 2000)
(finding that statistical information about street-level arrests was not deliberative). Nor is it
“inextricably intertwined” with protected deliberative material. For that claim to succeed,
disclosure of the information here would have to “compromise the confidentiality of deliberative
information that is entitled to protection,” Lead Indus. Ass’n, 610 F.2d at 85 (internal quotation
marks omitted) (emphasis added), such that probing the factual information “would be the same
as probing the decision-making process itself,” Montrose Chem. Corp. of California v. Train,
491 F.2d 63, 68 (D.C. Cir. 1974). Having reviewed the records, the Court cannot agree that the
statistical information about New Chemicals reviews is “inextricably intertwined” with
25
deliberative material about “how backlogs . . . should be cleared” or “how the program could be
improved,” EPA Reply 9 (emphasis added), or that its disclosure would reveal anything at all
about the agency’s decisionmaking on these fronts. The EPA’s conclusory assertions to the
contrary — that, among other things, the records “reflect[] a give-and-take discussion on
potential actions geared towards improving the New Chemicals program” — are inaccurate or
unpersuasive. Accordingly, the statistical information is not exempt from disclosure. 10
Applying that reasoning to other, similar records, the statistics, graphs, and tabular
material in Documents 15046 and 15111 — draft webpages about the New Chemicals program
— are not exempt from disclosure either. By contrast, the proposed language contained in those
records, which is predecisional and reflects the agency’s deliberations about improving the
review process, was properly withheld. Along similar lines, the bullet-pointed statistics in
Documents 1350 and 18234 — emails about the backlog — are not protected by the privilege.
The discussions that follow, on the other hand, concern the agency’s attempts to address the
backlog, and need not be disclosed. 11 Finally, Document 14496, an email thread summarizing
the content and layout of the draft webpage, is manifestly not exempt from disclosure. It is
absurd to suggest that this information — including, for example, a one-line email from Dr. Beck
asking, “How do we make numbers align?” on the home page — would reveal policy-oriented
deliberations. See VI 38 (14496); see also Tigue, 312 F.3d at 80 (“[T]he privilege does not
10
This applies to Documents 2026, 2234, 2354, and 2490 in full. As noted, the Court
discusses the EPA’s segregability claims further below.
11
Documents 15472, 15854, 24116, and 14467, which the Court did not review in camera,
appear to be similar to the records just discussed. Absent a basis to distinguish them, therefore,
the Court’s ruling would apply to them as well. Further, to the extent that withheld portions of
Document 14125 (an internal draft weekly report) contain segregable, factual information about
“the status of chemical determinations and important deadlines,” VI 35, the EPA should
reevaluate its privilege assertion in light of this Opinion and Order.
26
protect a document which is merely peripheral to actual policy formation; the record must bear
on the formulation or exercise of policy-oriented judgment.” (internal quotation marks omitted)).
b. Other documents
The EPA has also failed to demonstrate that the two New Chemicals meeting agendas
(Documents 2025 and 2353) are exempt from disclosure. While arguably predecisional, the
agency has not shown that the agendas are deliberative material — that is, that they “form[] an
essential link in a specified consultative process” relating to improving the New Chemicals
Program. Grand Cent. P’ship, 166 F.3d at 482; see MacNamara v. City of New York, 249 F.R.D.
70, 81 (S.D.N.Y. 2008) (finding that meeting agendas that disclose only “broadly-defined issues
discussed at . . . meetings” were not deliberative); In re MTBE Prods. Liab. Litig., 898 F. Supp.
2d 584, 591 (S.D.N.Y. 2012) (“[M]eeting agendas . . . are not protected by the deliberative
process privilege, as they only list topics to be discussed at a future time. Agendas are not
themselves deliberative documents.”). For substantially the same reasons, summary judgment is
denied as to Document 2048, a draft agenda for a “Chemical Data Reporting (CDR) Inorganic
Byproducts meeting.” See VI 86.
Document 15213 (VI 50) — consisting of emails by senior managers “responding to the
Chief of Staff’s question regarding issues being addressed in the New Chemicals program,” and
including “recommendations and opinions” about those issues, VI 50 — is insufficiently
described to compel a “logical and plausible” conclusion that the emails relate to a specific New
Chemicals decisionmaking process or that they played a role in those decisions. Wilner, 592
F.3d at 73. Without knowing what the “issues” were, how they related to the EPA’s process for
improving the New Chemicals program, and what role the emails played in that process,
summary judgment is not appropriate. See, e.g., Grand Cent. P’ship, 166 F.3d at 483 (holding
27
that emails “directly related to . . . three agency decisions” and containing “information [that] . . .
formed an important, if not essential, in [an agency’s] consultative process” were predecisional
and deliberative). For substantially similar reasons, Document 12641 (VI 23) is also not exempt.
By contrast, Document 2233 — material that provided a senior manager with
recommendations and proposals on “how to improve the New Chemicals program,” VI 7-8 — is
exempt. Contrary to the NRDC’s suggestion, the agency’s initiative to improve the New
Chemicals program, while somewhat hazily described, is a specific decisionmaking process
rather than a “routine and ongoing process of agency self-evaluation.” Tigue, 312 F.3d at 80
(internal quotation marks omitted); see, e.g., Myrick Decl. ¶ 25 (describing the agency’s attempts
to improve the program). Document 2233 reflects options, recommendations, and proposals —
that is, paradigmatic deliberative material — for senior leaders to consider in connection with
that initiative. Document 7657 is a closer call, but also exempt; the Vaughn index indicates that
the agency was considering certain chemical registration review actions (making it
predecisional) and discussing the effects of those proposed policies on one specific company, as
an exemplar, whose products were affected by such actions (making it deliberative).
7. Miscellaneous Records
That leaves a handful of records, which the Court will address in summary fashion. First,
the Court concludes that the following records are exempt:
Document 6842 (VI 12-13). A draft document setting out components of the EPA’s
Strategic Plan for fiscal years 2018-22 is clearly predecisional with respect to the
strategic planning process, and the EPA has logically and plausibly demonstrated that the
record was deliberative, as it was created to assist senior managers in “determining what
should be included in [one office’s] contributions to the . . . strategic plan.” Id. at 13.
Document 9370 (VI 111). The determination of proposed milestones for executing the
agency’s statutorily prescribed review of chlorpyrifos is not a “routine operating
decision[]” or a merely “process-oriented” discussion, NRDC Mem. 15, but deliberation
28
over carrying out a substantive policymaking responsibility committed to the agency by
statute.
By contrast, the Court concludes that the following records are not protected by the privilege:
Document 23777 (VI 69). Nothing in the Vaughn index indicates that the emails here,
which concern “the status of the [proposed rule] in the regulatory development process”
and “the process for OMB’s review,” VI 70, are deliberative rather than simply logistical
or operational. See, e.g., E.B. v. New York City Bd. of Educ., 233 F.R.D. 289, 293
(E.D.N.Y. 2005) (observing that discussions about “database management” and other
“logistical issues” are “not the type of policy oriented judgment the deliberative process
privilege is designed to protect,” and collecting cases).
Document 8777 (VI 122). The EPA’s vague assertions regarding this record — that it
“provides a list of ongoing issues” and “the status of the issues and any potential
timelines” — fail to explain how it relates to the pesticide reviews or what role it played
in actual deliberations regarding those decisionmaking processes. See Grand Cent.
P’ship, 166 F.3d at 482; Myrick Decl. ¶ 27.
The Appendix to this Opinion and Order provides a comprehensive list of the records at issue
and whether they were properly withheld on account of the deliberative process privilege.
D. Information Withheld Under the Attorney-Client Privilege
Moving beyond the deliberative process privilege, the EPA has withheld thirteen records
(also pursuant to Exemption 5) based on the attorney-client privilege. See Myrick Decl. ¶¶ 13,
36. Of those, nine (Documents 12385, 12489, 13607, 12661, 14737, 24243, 13626, 14947, and
14626) were properly withheld under the deliberative process privilege as drafts of agency rules,
formal guidance, or scoping documents, see Appendix, so the Court need not determine whether
they were also properly withheld as attorney-client privileged material. Of the other four, two
(Documents 6783 and 11031) were withheld on the basis of attorney-client privilege alone, while
two (18846 and 18932) were also withheld under the deliberative process privilege, a claim of
privilege that the Court rejected. Accordingly, the Court will address those four documents.
The attorney-client privilege is “one of the oldest recognized privileges for confidential
communications,” and “promote[s] broader public interests in the observance of law and the
29
administration of justice.” Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998) (internal
quotation marks omitted). “The privilege . . . serve[s] both to protect the attorney-client
relationship and to permit attorneys to carry out their duties fully.” In re Gen. Motors LLC
Ignition Switch Litig., No. 14-MD-2543 (JMF), 2015 WL 7574460, at *3 (S.D.N.Y. Nov. 25,
2015). The party invoking the attorney-client privilege — here, the EPA — “must show (1) a
communication between client and counsel that (2) was intended to be and was in fact kept
confidential, and (3) was made for the purpose of obtaining or providing legal advice.” In re
Cty. of Erie, 473 F.3d 413, 419 (2d Cir. 2007); accord In re Gen. Motors LLC Ignition Switch
Litig., 80 F. Supp. 3d 521, 526 (S.D.N.Y. 2015). In general, the privilege protects
communications between a government attorney and her client to the same extent it would
protect those of an attorney and private party in civil litigation. See Cty. of Erie, 473 F.3d at 419;
In re Grand Jury Investigation, 399 F.3d 527, 534-35 (2d Cir. 2005). In all cases, however,
“courts apply the privilege only where necessary to achieve its purpose and construe the
privilege narrowly because it renders relevant information undiscoverable.” United States v.
Krug, 868 F.3d 82, 86 (2d Cir. 2017) (internal quotation marks omitted).
Applying those standards here, all four records — Documents 6783, 18846, 18932, and
11031 — were properly withheld by the EPA. Document 6783 is an email from an EPA attorney
to OCSPP, his client; was intended to be and was kept confidential; and was made “for the
purpose of . . . providing legal advice” on a “matter for which the client has sought professional
advice” — here, the implications, for other matters before the agency, of a recent court decision
about mandamus relief as to a pesticide action. See VI 11-12. Likewise, Documents 18846 and
18932 were letter drafts reviewed and edited by Office of General Counsel attorneys for their
OCSPP clients; were kept confidential; and reviewed and commented upon a “TSCA legal
30
matter within the draft letter for which the client has sought legal review and recommendation.”
Id. at 60-61. Contrary to the NRDC’s assertion, EPA attorneys did not merely review the letters,
see NRDC Mem. 19-20; they also “provided recommendations pertaining to legal issues in the
draft letter.” VI 61. Accordingly, the attorneys’ drafts were “made for the purpose of . . .
providing legal advice.” Cty. of Erie, 473 F.3d at 419. And finally, Document 11031 — a “draft
agenda” for a meeting between OCSPP and the Office of General Counsel — is protected
because it includes “identified legal matters” relating to OCSPP’s policymaking function and
within the attorney-client relationship, including legal matters relating to chlorpyrifos and the
TSCA Framework Rules. VI 18; see, e.g., AIU Ins. Co. v. TIG Ins. Co., No. 07-CV-7052 (SHS)
(HBP), 2009 WL 1953039, at *6 (S.D.N.Y. July 8, 2009) (finding privileged a meeting agenda
that “indicate[d] the focus of an attorney-client conversation related to the legal representation in
th[e] case”); cf. Diversified Grp., Inc. v. Daugerdas, 304 F. Supp. 2d 507, 514 (S.D.N.Y. 2003)
(distinguishing between documents that indicate “the general purpose of the work performed,”
and are not privileged, and those that “reveal . . . the specific nature of the services provided,”
which are). Accordingly, the EPA’s motion is granted as to all four of those documents. 12
12
The parties dispute whether a communication from an attorney to a client is privileged to
the same extent as a communication from a client to an attorney, or only to the extent that an
attorney communication would reveal confidential facts communicated by the client. Compare
NRDC Mem. 18-19, with EPA Reply 11. The issue appears to be somewhat unsettled in the
Second Circuit. Compare ACLU v. Dep’t of Def., No. 15-CV-9317 (AKH), 2017 WL 4326524,
at *4 & n.3 (S.D.N.Y. Sept. 27, 2017) (observing that “in the Second Circuit, legal advice
divorced from confidential facts supplied by a client probably is not protected by the attorneyclient privilege,” and collecting authorities (emphasis added)), and United States v. Silverman,
430 F.2d 106, 122 (2d Cir. 1970), with Cty. of Erie, 473 F.3d at 421-23 (discussing the
applicability of the privilege to advice from government lawyers without reference to any
confidential-facts limitation). But the Court need not and does not resolve that dispute here.
Only one of the records is even arguably not based on confidential client facts — Document
11031 — and the Court is satisfied that the EPA has made a “logical and plausible” showing that
the draft meeting agenda, which discusses “ongoing” and “identified” legal issues, is based in
some measure on confidential information from OCSPP. See Wilner, 592 F.3d at 75; VI 18.
31
E. The Disclosure of Reasonably Segregable, Non-Privileged Material
Last but not least, the NRDC contends that the EPA failed to disclose reasonably
segregable, non-privileged material. An agency is obligated to disclose any reasonably
segregable, non-privileged material, including — as already discussed at some length — “purely
factual” material. Grand Cent. P’ship, 166 F.3d at 482; see also 5 U.S.C. § 552(b). In its earlier
order, the Court directed the EPA to submit a sample of records for ex parte, in camera
inspection to aid the Court’s determination of “whether their factual and privileged contents
are . . . ‘inextricably intertwined.’” Hopkins, 929 F.2d at 85-86. That order was prompted by (1)
the agency’s sweeping, conclusory assertion that it had conducted a segregability analysis and its
declaration that any non-disclosed factual material was “inextricably intertwined” with
privileged material and (2) the NRDC’s colorable argument that at least some segregable factual
material was improperly withheld. See Myrick Decl. ¶ 43; ECF No. 53, at 3-4.
As discussed above, upon review of the ten records in camera, the Court concludes that
five were not exempt from disclosure at all; four contained some segregable factual information
that should have been disclosed; and one was properly withheld in its entirety. Based on that
sample — admittedly, perhaps an unrepresentative one, see ECF No. 53, at 4 — the Court is not
persuaded by the EPA’s across-the-board claims that it has appropriately disclosed all of the
reasonably segregable, non-exempt material from its records. It follows that judgment cannot be
granted in the EPA’s favor on the issue. See, e.g., Hopkins, 929 F.2d at 85-86 (reversing a
district court’s grant of summary judgment where the agency “only asserted in a conclusory
fashion that any factual observations contained in the reports [were] ‘inextricably intertwined’
with . . . privileged opinions and recommendations”); El Badrawi v. Dep’t of Homeland Sec.,
583 F. Supp. 2d 285, 316 (D. Conn. 2008) (finding summary judgment inappropriate where the
32
court could not “determine the propriety of [the agency’s] segregability determinations” because
its Vaughn index lacked sufficient detail); Ferrigno v. U.S. Dep’t of Homeland Sec., No. 09-CV5878 (RJS), 2011 WL 1345168, at *11 (S.D.N.Y. Mar. 29, 2011) (Sullivan, J.) (granting
summary judgment “on all issues except segregability” and ordering submission of the records
for in camera review).
CONCLUSION
To summarize the Court’s many conclusions: The EPA’s search for responsive records
was adequate, and it has established that it withheld information only where it reasonably
foresaw that disclosure would “harm an interest protected by” Exemption 5. Beyond that, the
agency justified its withholdings pursuant to Exemption 5 and the attorney-client privilege, and
justified the non-disclosure of those records listed in the Appendix pursuant to Exemption 5 and
the deliberative process privilege. Summary judgment is GRANTED to the EPA on those issues
and as to those records. By contrast, and as described throughout this Opinion, the agency failed
to justify its decision not to disclose the remaining records. For those records, summary
judgment is DENIED. As to the documents reviewed by the Court in camera and found to
include segregable, non-privileged factual material, which are also listed in the Appendix, the
EPA shall promptly produce the records or the segregable, non-exempt portions thereof to the
NRDC. 13 Finally, summary judgment is DENIED on the agency’s segregability claims.
13
Although NRDC did not cross-move for summary judgment, ordering production of these
records is nevertheless appropriate. Because the Court reviewed them in camera, it is able to
definitively state that the factual material within them is (1) not protected by the deliberative
process privilege and (2) segregable from any material that is privileged. See 5 U.S.C.
§ 552(a)(4)(B) (on de novo review and “[o]n complaint, the district court . . . has jurisdiction to
enjoin the agency from withholding agency records and to order the production of any agency
records improperly withheld from the complainant); see also, e.g., ING Bank N.V. v. M/V
TEMARA, IMO No. 9333929, 892 F.3d 511, 524 (2d Cir. 2018) (noting that, while “notice-free,
sua sponte entry of summary judgment is” discouraged, it may be granted “when there is no
33
That raises the question of next steps. On that front, one question looms large: Whether
the NRDC agreed to limit any relief to the 120 documents as to which the EPA agreed to provide
a Vaughn index or, put differently, whether it abandoned its requests for disclosure of the 950some odd responsive records that the Vaughn index does not address. The EPA contends that the
NRDC agreed to abandon its claims as to all records beyond those included in the Vaughn index.
See EPA Mem. 1 & n.1 (describing “the remaining 116 records . . . subject to challenge in this
case” and asking for summary judgment “with respect to all claims asserted in this action”); EPA
Reply 1 n.1. The NRDC strenuously objects. See NRDC Mem. 5-6; NRDC Surreply 6-8. Upon
review of the parties’ emails, see ECF No. 48-1, at 1-2, the Court concludes that the NRDC has
the better of the argument, substantially for the reasons stated in its memoranda of law. In brief,
the EPA offered the NRDC two options, the latter of which provided that the agency would
provide a Vaughn index for 120 records selected by the NRDC “with the express understanding
that the 120 records comprise all of the documents that NRDC is most interested in and seeks to
challenge on summary judgment.” Id. at 2. But the NRDC made a counterproposal that
conspicuously deleted that “express understanding,” see id. at 1, compelling the conclusion that
the NRDC did not agree, let alone clearly agree, to limit its challenge to those documents alone.
Accordingly, the Court agrees with the NRDC that it has not waived or abandoned its claims as
to the other, as-yet-unaddressed records and that the non-disclosure of those records remains at
issue.
In light of this Opinion and Order and the claims that remain, the parties shall meet and
confer to discuss (1) how the litigation should proceed from here and (2) how this Opinion and
indication that the party against whom summary judgment would be entered could present
evidence that would affect the summary judgment determination” (italics omitted)).
34
APPENDIX
Document
Vaughn
Category
Exempt?
ED_001338_00012489
22
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00013626
32
Drafts of agency rules, formal guidance, etc.
YES
Document File 27
89
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00012661
93
Drafts of agency rules, formal guidance, etc.
YES
Document File 37
97
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00013223
100
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00002177
6
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00011801
19
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00012385
21
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00013188
26
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00013283
29
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00013607
30
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00013660
33
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00014763
42
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00014822
43
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00015448
44
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00015038
46
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00015120
48
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00015339
51
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00015879
54
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00016774
54
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00024303
70
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00025624
74
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00025793
76
Drafts of agency rules, formal guidance, etc.
YES
Document File 6
81
Drafts of agency rules, formal guidance, etc.
YES
Document File 14
82
Drafts of agency rules, formal guidance, etc.
YES
Document File 38
83
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00016105
84
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00016107
85
Drafts of agency rules, formal guidance, etc.
YES
APPENDIX
Document File 9
88
Drafts of agency rules, formal guidance, etc.
YES
Document File 25
90
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00010159
92
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00015083
94
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00016981
95
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00011721
99
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00025501
101
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00014483
102
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00014737
104
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00024243
105
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00014947
106
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00014626
107
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00012315
109
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00018994
87
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00015260
116
Drafts of agency rules, formal guidance, etc.
YES
ED_001338_00005211
112
Drafts of agency issue papers, reports, etc.
YES
ED_001338_00018740
113
Drafts of agency issue papers, reports, etc.
YES
ED_001338_00026423
114
Drafts of agency issue papers, reports, etc.
YES
ED_001338_00015277
120
Drafts of agency issue papers, reports, etc.
YES
ED_001338_00009731
121
Drafts of agency issue papers, reports, etc.
YES
ED_001338_00019359
80
Drafts of agency issue papers, reports, etc.
YES
ED_001338_00021475
119
Drafts of agency issue papers, reports, etc.
YES
ED_001338_00000401
1
Messaging (talking points)
NO
ED_001338_00022970
65
Messaging (talking points)
NO
ED_001338_00023178
96
Messaging (talking points)
NO
ED_001338_00007169
13
Messaging (draft responses to press)
NO
ED_001338_00008309
15
Messaging (draft responses to press)
NO
ED_001338_00022782
64
Messaging (draft responses to press)
NO
ED_001338_00009765
17
Messaging (draft responses to Congress)
NO
ED_001338_00025096
72
Messaging (draft responses to Congress)
NO
APPENDIX
ED_001338_00011126
18
Messaging (draft responses to Congress)
NO
ED_001338_00013150
25
Messaging (draft responses to Congress)
NO
ED_001338_00019639
61
Messaging (draft responses to Congress)
NO
ED_001338_00025349
73
Messaging (draft responses to Congress)
NO
ED_001338_00013257
28
Messaging (draft responses to Congress)
NO
ED_001338_00021815
59
Messaging (draft responses to Congress)
NO
ED_001338_00023588
68
Messaging (draft responses to Congress)
YES
ED_001338_00001743
3
Briefing (pesticide review)
YES
ED_001338_00014507
39
Briefing (pesticide review)
YES
ED_001338_00015910
55
Briefing (pesticide review)
YES
ED_001338_00018487
59
Briefing (pesticide review)
YES
ED_001338_00026227
77
Briefing (pesticide review)
YES
ED_001338_00002460
115
Briefing (pesticide review)
YES
ED_001338_00014935
45
Briefing (TSCA Framework Rules)
NO
ED_001338_00014518
40
Briefing (TSCA Framework Rules)
NO
ED_001338_00014561
40
Briefing (TSCA Framework Rules)
NO
ED_001338_00025173
41
Briefing (TSCA Framework Rules)
NO
ED_001338_00016046
56
Briefing (TSCA Framework Rules)
YES
ED_001338_00017682
98
Briefing (TSCA Framework Rules)
YES
ED_001338_00007028
117
Briefing (TSCA Framework Rules)
YES
ED_001338_00005427
10
Briefing (TSCA Framework Rules)
NO
ED_001338_00025605
118
Briefing (New Chemicals)
NO
ED_001338_00025606
110
Briefing (existing regulations)
NO
ED_001338_00001350
2
New Chemicals program
PARTLY
ED_001338_00002026
5
New Chemicals program
NO
ED_001338_00002234
5
New Chemicals program
NO
ED_001338_00002354
79
New Chemicals program
NO
ED_001338_00002490
9
New Chemicals program
NO
ED_001338_00015046
47
New Chemicals program
PARTLY
ED_001338_00015111
47
New Chemicals program
PARTLY
APPENDIX
ED_001338_00018234
58
New Chemicals program
PARTLY
ED_001338_00015472
52
New Chemicals program
*
ED_001338_00015854
53
New Chemicals program
*
ED_001338_00024116
36
New Chemicals program
*
ED_001338_00014467
36
New Chemicals program
*
ED_001338_00014125
35
New Chemicals program
*
ED_001338_00014496
38
New Chemicals program
NO
ED_001338_00002025
4
New Chemicals program
NO
ED_001338_00002353
8
New Chemicals program
NO
ED_001338_00002048
86
Chemical Data Reporting rule
NO
ED_001338_00015213
50
New Chemicals program
NO
ED_001338_00012641
23
New Chemicals program
NO
ED_001338_00002233
7
New Chemicals program
YES
ED_001338_00007657
14
New Chemicals program
YES
ED_001338_00006842
12
Miscellaneous
YES
ED_001338_00009370
111
Miscellaneous
YES
ED_001338_00023777
69
Miscellaneous
NO
ED_001338_00008777
122
Miscellaneous
NO
ED_001338_00006783
11
Attorney-client privilege
YES
ED_001338_00018846
60
Attorney-client privilege
YES
ED_001338_00018932
60
Attorney-client privilege
YES
ED_001338_00011031
18
Attorney-client privilege
YES
ED_001338_00023303
67
Privacy (not challenged)
YES
ED_001338_00021669
62
Privacy (not challenged)
YES
ED_001338_00022457
63
Privacy (not challenged)
YES
ED_001338_00023152
66
Privacy (not challenged)
YES
ED_001338_00026735
78
Privacy (not challenged)
YES
NOTES
Documents marked with an asterisk should be reevaluated in light of the Court’s Opinion and
Order, as discussed above.
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