Board of Commissioners of Clermont County, Ohio v. United States Environmental Protection Agency

Filing 30

OPINION AND ORDER granting 15 EPA's Motion for Summary Judgment. Signed by Judge Douglas R. Cole on 2/4/21. (sct)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BOARD OF COMMISSIONERS OF
CLERMONT COUNTY, OHIO
Plaintiff,

Case No. 1:17-cv-389
JUDGE DOUGLAS R. COLE

v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Defendants.

OPINION AND ORDER
This action under the Freedom of Information Act (“FOIA”) comes before the
Court on Defendant United States Environmental Protection Agency’s (“EPA”)
Motion for Summary Judgment (“Motion”) (Doc. 15). In the FOIA request underlying
this action, Plaintiff Board of Commissioners of Clermont County (“Clermont
County”) sought EPA documents relating to the CECOS International, Inc., facility
at 5092 Aber Road, Williamsburg, Ohio 45176 (which is located in Clermont County)
(the “CECOS Site”). In the Motion, EPA claims that all of the remaining unproduced
documents relating to the FOIA request are protected from disclosure under
Exemption 5 to FOIA, which 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). The Supreme Court has construed this
language as exempting any documents that would be privileged in the civil litigation
context. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Here, EPA

claims that the undisputed facts show the requested documents are subject either to
the deliberative-process privilege, the attorney-client privilege, or both. For the
reasons set forth below, the Court GRANTS the Motion.
BACKGROUND
Clermont County sent its FOIA request to EPA in the form of a letter dated
March 18, 2016. In the letter, Clermont County sought “[a]ny and all information
pertaining to the [CECOS Site] for the time period of February 1, 2015 through
[March 18, 2016].” (Doc. 1-1, Compl. Ex. 1, #81). The CECOS Site is a now-closed
hazardous waste disposal facility. Clermont County explains it sought the documents
because Harsha Lake is located downstream from the site and serves as a principal
source of drinking water for 90,000 citizens as well as an important recreation and
economic resource to the County. (Plaintiff’s Opposition to Summ. J. (“Pl.’s Opp.),
Doc. 18, #257). Clermont County claims it is concerned that contamination may leak
from the CECOS Site into Harsha Lake, and that the requested documents would
help it investigate those concerns.
In response to the request, EPA produced approximately 2,900 pages of
documents, but withheld sixty documents, citing FOIA Exemption 5 and, in
particular, the deliberative-process and attorney-client privileges. (Doc. 15, #151). As
to the sixty withheld documents, EPA provided a list in which it separately described
each document (title, author, recipients, date, and number of pages), as well as the
basis on which EPA was withholding that document.

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Clermont County filed an administrative appeal challenging EPA’s withheld
documents. The ALJ granted-in-part and denied-in-part that appeal. As a result, EPA
released-in-full three of the sixty withheld documents, released-in-part six other
withheld documents, and found that eleven documents were not responsive to the
request. That left forty documents withheld-in-full, and six withheld-in-part.
Clermont County then brought suit as to these remaining documents. But,
since the time of filing suit, the parties have reached further accommodations as to
some of the documents. In particular, Clermont County informed the EPA that
Clermont County would no longer challenge EPA’s withholding of seventeen of the
documents (including the eleven that EPA claims are not responsive). As to four other
documents that EPA had withheld-in-full, it is now releasing the documents in their
entirety. And there are three other documents that EPA withheld-in-full that it will
now release-in-part. As a result of these additional events, EPA is now withholding
twenty-two unique records in full, and eleven unique records in part.2
As to these remaining documents, EPA has now filed for summary judgment,
asserting that the undisputed facts show that FOIA Exemption 5 applies to the
documents as a matter of law. It supports its motion with an affidavit from Mary
Setnicar, who is the Chief of the Resource Conservation and Recovery Act/Toxic
Substances Control Act Programs Section, Land and Chemicals Division, in EPA

In Clermont County’s opposition, Plaintiff asserts that thirty-six documents are at issue.
(Pl.’s Opp., #258). The difference between the two counts appears to arise from EPA counting
based on “unique records,” while Clermont County counts documents, as some of the
documents or records on the list appear to be duplicates. In any event, as further described
above, based on the Vaughn index, the parties appear to be in agreement on the documents
at issue here, even if not in agreement as to how to count them.
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Region 5. In addition to explaining why each of the documents falls within FOIA
Exemption 5, she attaches to her affidavit what is typically referred to as a Vaughn
index. This index lists each withheld document, and, as to each, identifies the
document’s subject or title, author/sender, recipients, date, claimed exemption, and a
description of the document’s content and the rationale for withholding.
The asserted rationales fall into two camps. As to some documents, EPA relies
exclusively on the deliberative-process privilege. As to the rest of the withheld
documents, EPA asserts both the deliberative-process privilege and the attorneyclient privilege.
Because the remaining universe of documents described in the Vaughn index
is relatively small, the Court ordered EPA to provide those documents for in camera
review, which EPA did. The Court has thus had an opportunity to review the
documents in connection with considering EPA’s arguments, as well as Clermont
County’s objections to those arguments.
LEGAL STANDARD
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The burden is on the moving party to conclusively show
that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). Once the
movant presents evidence to meet its burden, the nonmoving party may not rest on

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its pleadings, but must come forward with significant probative evidence to support
its claim. Celotex, 477 U.S. at 324; Lansing Dairy, 39 F.3d at 1347.
This Court is not obliged to sua sponte search the record for genuine issues of
material fact. Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1087 (6th Cir. 1996);
Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 404–06 (6th Cir. 1992). Rather, the
burden falls upon the nonmoving party to “designate specific facts or evidence in
dispute.” Jordan v. Kohl’s Dep’t Stores, Inc., 490 F. App’x 738, 741 (6th Cir. 2012)
(quotation omitted). If the nonmoving party fails to make the necessary showing for
an element upon which it bears the burden of proof, then the moving party is entitled
to summary judgment. Celotex, 477 U.S. at 323.
Granting summary judgment depends upon “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.” Amway Distribs. Benefits Ass’n v.
Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251–52 (1986)). In sum, the nonmoving party, at this stage,
must present some “sufficient disagreement” that would necessitate submission to a
jury. See Moore v. Phillip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993) (quoting
Anderson, 477 U.S. at 251–52). In making that determination, though, this Court
must view the evidence in the light most favorable to the nonmoving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Cox v.
Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (“In arriving at a resolution, the

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court must afford all reasonable inferences, and construe the evidence in the light
most favorable to the nonmoving party.”).
LAW AND ANALYSIS
“[W]hen Congress enacted FOIA, it sought a workable balance between
disclosure and other governmental interests ….” Food Marketing Inst. v. Argus
Leader Media, ___ U.S. ___, 139 S. Ct. 2356, 2366 (2019) (quotation omitted); see also
Ctr. For Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003)
(“FOIA represents a balance struck by Congress between the public’s right to know
and the government’s legitimate interest in keeping certain information
confidential.”) (citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)).
The balance “generally favor[s] disclosure, subject only to a handful of specified
exemptions.” Milner v. Dep’t of Navy, 562 U.S. 562, 571 n.5 (2011). Consistent with
that, under FOIA “an agency must disclose all records requested by any person,
unless the information sought falls within one of the nine numerated exemptions
listed in section 552(b).” Vaughn v. United States, 936 F.2d 862, 865 (6th Cir. 1991).
And, given the “Act’s goal of broad disclosure,” the exemptions are to “be given a
narrow compass.” Milner, 493 U.S. at 152 (quoting U.S. Dep’t of Justice v. Tax
Analysts, 492 U.S. 136, 151 (1989)); see also Rugiero v. U.S. Dep’t of Justice, 257 F.3d
534, 543 (6th Cir. 2001) (“These exceptions are to be narrowly construed.”). Moreover,
“the burden is on the agency to justify its action.” Rugiero, 257 F.3d at 543.
Courts typically resolve FOIA cases on summary judgment. That is true
notwithstanding that it “creates a situation in which a plaintiff must argue that the

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agency’s withholdings exceed the scope of the statute, although only the agency is in
a position to know whether it has complied with the FOIA,” as the plaintiff of course
has not seen the documents. Rimmer v. Holder, 700 F.3d 246, 255 (6th Cir. 2012)
(quoting Rugiero, 257 F.3d at 544).
Here, EPA is relying solely on one of the nine enumerated exemptions—
Exemption 5. This provision exempts from disclosure “inter-agency or intra-agency
memorandums or letters that would not be available by law to a party … in litigation
with the agency.” 5 U.S.C. § 552(b)(5). In other words, it exempts documents that fall
within one of the recognized privileges that typically apply to civil litigation. Thus, if
a document falls within a litigation privilege, it is also exempt from production under
FOIA. EPA relies on two such privileges here: the deliberative-process privilege and
the attorney-client privilege. The Court addresses each in turn.
A.

EPA Has Shown That The Deliberative-Process Privilege Applies To
The Documents For Which It Is Claimed.
The Supreme Court has explained that “[t]he deliberative process privilege

rests on the obvious realization that officials will not communicate candidly among
themselves if each remark is a potential item of discovery and front page news, and
its object is to enhance the quality of agency decisions, by protecting open and frank
discussion among those who make them within the Government.” Dep’t of Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–9 (2001) (quotations omitted).
To that end, the deliberative-process privilege “aims to protect documents that are
both ‘predecisional’ and ‘deliberative.’” U.S. ex rel. Williams v. Renal Care Grp., Inc.,
696 F.3d 518, 527 (6th Cir. 2012) (quoting Norwood v. FAA, 993 F.2d 570, 576 (6th
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Cir.1993)). “A document is predecisional when it is received by the decisionmaker on
the subject of the decision prior to the time the decision is made, and deliberative
when it reflects the give-and-take of the consultative process.” Renal Care Grp., 696
F.3d at 527 (quoting Norwood, 993 F.2d at 576).
“Although this privilege covers recommendations, draft documents, proposals,
suggestions, and other subjective documents that reflect the opinions of the writer
rather than the policy of an agency, the key issue in applying this exception is
whether disclosure of the materials would ‘expose an agency’s decisionmaking process
in such a way as to discourage discussion within the agency and thereby undermine
the agency’s ability to perform its functions.’” Rugiero, 257 F.3d at 550 (quoting Schell
v. U.S. Dep’t of Health and Human Servs., 843 F.2d 933, 940 (6th Cir. 1988) (in turn
quoting Dudman Commc’ns Corp. v. Dep’t of the Air Force, 815 F.2d 1565, 1568 (D.C.
Cir. 1987))). Accordingly, “[p]urely factual and investigative matters that are
severable without compromising the confidentiality of other documents do not enjoy
the privilege.” Renal Care Grp., 696 F.3d at 527.
Here, EPA asserts the deliberative-process privilege as to thirty-six records
which, EPA claims, fall into three general categories: draft PowerPoint presentations
about the site; (2) EPA staff-level geologist notes and opinions; and (3) internal emails
among EPA staff. For its part, Clermont County does not appear to contest that the
documents at issue are “predecisional.” Rather, Clermont County focuses its efforts
on identifying facts that show that the documents are not “deliberative,” that is, that

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the documents do not reflect the “give and take of the consultative process,” but rather
involve “factual and investigative matters.”
A difficulty for the Court in addressing EPA’s arguments is that EPA’s category
identifiers do not correspond to the contours of the FOIA exemption on which EPA
relies. For example, many types of documents could fall into the descriptive category
“emails among EPA staff,” some of which undoubtedly would be exempt from
disclosure under the deliberative-process privilege, and some of which clearly would
not. The same is largely true of the other two categories of documents that EPA
asserts. To be sure, “draft” documents (i.e., the category “draft PowerPoint
presentations”) are more likely to be predecisional, but that element is not disputed.
And, as to whether a document is deliberative, it seems to the Court that either draft
or final PowerPoint presentations could satisfy (or could not satisfy) that element.
That is, either a “draft” presentation or a “final” presentation could be used as part
of an agency’s internal deliberative process.
Luckily, though, while the documents are grouped in this manner for briefing
purposes, the Vaughn index is far more detailed on a document-by-document basis.
In other words, EPA is not relying on a document’s mere status as a “PowerPoint
presentation” to substantiate the claimed exemption, but rather on EPA’s description
of the particular document itself. And, as also noted, at Clermont County’s request,
the Court ordered EPA to produce the documents for in camera review, which the
Court has undertaken on a document-by-document basis.

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But even with that review, the case presents a difficult line-drawing exercise.
The Court must attempt to distinguish between “deliberative documents,” which are
exempt from production, and “purely factual or technical” documents, which are not.
The problem with that proposed dichotomy, though, is that in many areas, “factual
or technical documents” may reflect a government scientist’s or policymaker’s
preliminary view on the “facts,” rather than a neutral presentation and assessment
of agreed facts. Still, the Court will do its best to draw the required line as to each of
the documents within the three identified categories.
1.

The PowerPoint Presentations.

The Court starts with the referenced PowerPoint presentations, which reflect
the difficulty with the deliberative/factual divide. For example, many of the slides in
the presentations appear to consist of maps, which are largely factual, but the maps
are then coupled with an EPA geologist’s assessment of additional geological features
that he or she believes may be present. The fact that these slides are being presented
to others within the agency as “drafts” would suggest that the author may be seeking
deliberative input as to whether his or her initial conclusions, as referenced on the
drawings, are accurate, or should be revised. These seem to be exactly the type of
“frank discussions” that the deliberative-process privilege is designed to protect.
To be a little more granular in the analysis, the slides fall into three separate
presentations. The first is a five-slide group that is directed at the paleotopography
of the site. The second is a 582-slide presentation regarding technical and regulatory

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review for closure and post-closure approval. And the third is a thirty-six-slide
presentation, once again directed at closure and post-closure analysis of the site.
As to the paleotopography presentation, it begins with a diagram of the site,
coupled with a geologist’s opinions regarding likely geographic features. That is then
supplemented with draft findings and opinions about “potential problems.” All of that
falls, at least in large part, on the deliberative side of the deliberative/factual divide.
Identifying “potential problems” with a site is a subjective, opinion-based endeavor,
and coming to internal agency consensus about what does—or does not—constitute a
“problem” strikes the Court as very much part of the deliberative process.
The 582-slide presentation, not surprisingly, covers a host of issues. Many of
the slides are maps (factual) with notes containing agency geologists’ initial
impressions (deliberative). Other slides reflect preliminary views on conclusions that
could be drawn from the information depicted on the maps. Yet further aspects of the
PowerPoint presentation seem to reflect the geologist author’s view on what are apt
points of comparison between the CECOS site, on the one hand, and geological
formations at other sites, on the other. As to that, while the information that the
PowerPoint presents regarding the other sites is likely not privileged or confidential
in and of itself, the geologist’s decisionmaking process in selecting which sites to
include, and why, would likely reflect his or her deliberative process. Moreover,
whether these other sites represent apt comparisons is also a likely deliberative topic
of conversation among those who internally review the draft PowerPoint at EPA.

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Still other aspects of the presentation highlight which attributes, in this one
geologist’s view, create “potential problems.” That again strikes the Court as
“opinion,” more than “fact,” and once again as an opinion that is subject to review and
“frank discussion” with others at EPA as part of the deliberative process.
That also raises an additional issue that supports applying the deliberativeprocess privilege. In particular, courts have noted that the privilege not only protects
an agency’s ability to have frank internal discussions as part of an internal give and
taken, but is also designed “to minimize public confusion about agency rationales and
actions.” Broward Bulldog, Inc. v. U.S. Dep’t of Justice, 939 F.3d 1164, 1194 (11th
Cir. 2019). This includes the confusion that would arise “from premature disclosure
of ideas that are not—or not yet—final policy.” Judicial Watch, Inc. v. U.S. Dep’t of
Def., 847 F.3d 735, 739 (D.C. Cir. 2017). Here, much of the material on the PowerPoint
slides, which themselves were marked “Draft for Discussion Purposes Only,” strike
the Court as information that may well have been changed or updated based on
internal agency discussions. Thus, releasing the draft document, at least to the extent
that it might reflect differences from the same document’s final form, potentially
would create confusion over the Agency’s actual position on various issues.
Moreover, although this document is admittedly long (582 slides), the Court
finds that one or more of the issues raised above arise on all or virtually all of those
slides. That is, the Court finds that there is no meaningful subset of pages that EPA
could produce from the overall document. Nor would redactions be effective. To the
extent that notes or observations are coupled with purely factual matters, they tend

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to be presented in an intertwined fashion that would make redaction difficult or
impossible.
Finally, as to the thirty-six-slide presentation, the Court agrees that the EPA
aptly described that document in the Vaughn index. Based on the Court’s review of
that document, the Court concludes that, for many of the same reasons that applied
to the 582-slide presentation, this document falls within the deliberative-process
privilege. Again, it appears to reflect one geologist’s analyses, assumptions, and
assessments, which are being presented for review and consideration by others at
EPA.
In short, the Court agrees with EPA that the draft PowerPoint presentations
included in the Vaughn index—which collectively encompass 623 of the roughly 800
pages of documents provided for the Court’s review—fall within the deliberativeprocess privilege. Moreover, based on the Court’s review, it appears that the protected
material is so interwoven with the document as a whole that redaction would be
impossible. Thus, the Court agrees that EPA is entitled to withhold the entirety of
these documents.
2.

EPA Staff-Level Geologist Notes, Opinions, and Memoranda.

The “notes and opinions” category consists of roughly thirteen documents,
comprising a total of 131 pages, consisting of notes and draft memoranda. Based on
the Court’s review of the documents, the Court concludes that they are accurately
described in the Vaughn index. As that index suggests, some of these documents
consist of handwritten or typed notes or memoranda regarding a geologist’s

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impressions or opinions regarding aspects of the CECOS site. These materials appear
designed to contribute to an “open and frank discussion among” EPA regulators about
closure processes for the site. See Klamath Water Users Protective Ass’n, 532 U.S. at
9. Other documents (see, e.g., Doc. ID 20160921144941941) consist of publicly
available materials, but marked up with handwritten notes from an EPA geologist.
EPA has indicated where the publicly available materials may be obtained, meaning
all that is left is the handwritten notes, which the Court concludes, based on its
review, are predecisional and deliberative. In other circumstances (see Doc. ID
0017_Bloomington_IN_PCP_Sites; 022_cecos monitoring 2007-2008 part annot), EPA
is releasing the publicly available portion and redacting the geologist’s notes. The
Court agrees that is a permissible approach, and that the redacted materials fall
withing the deliberative privilege.
In sum, the Court concludes that the materials included in the category notes
and opinions are predecisional and deliberative, and accordingly fall within
Exemption 5.
3.

Internal Emails Among EPA Staff.

That leaves the category of internal emails. EPA claims that some of the emails
on the Vaughn index are covered, in whole or in part, by the deliberative-process
privilege. The Court has reviewed each of the identified emails, and compared it to
the corresponding description for that email in the Vaughn index. The descriptions
accurately reflect the email contents. And the Court agrees with EPA that these
contents are both predecisional and deliberative. Indeed, perhaps unsurprisingly, as

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they are email exchanges among EPA personnel involved in making regulatory
decisions relating to the CECOS site, they expressly reflect the kind of frank
discussions and exchanges among regulators that are often essential to agencies’
internal deliberative processes. Disclosing these documents would almost certainly
“expose an agency’s decisionmaking process in such a way as to discourage discussion
within the agency and thereby undermine the agency’s ability to perform its
functions.” Rugiero, 257 F.3d at 550 (quotation omitted).
B.

The Attorney-Client Privilege Applies To The Documents Or Portions
Of Documents As To Which It Is Invoked.
In addition to the deliberative-process privilege, FOIA Exemption 5 also

includes the attorney-client privilege. As one court of appeals recently explained, the
“attorney-client privilege protects confidential communications between client and
counsel made for the purpose of obtaining or providing legal assistance. The privilege
functions to encourage attorneys and their clients to communicate fully and frankly
and thereby to promote broader public interests in the observance of law and
administration of justice.” Am. Civil Liberties Union v. Nat'l Sec. Agency, 925 F.3d
576, 589 (2d Cir. 2019) (quotation omitted). As that language suggests, the privilege
does not apply merely because an attorney is included in a communication. Rather,
the question is whether the communication is confidential and aimed at seeking or
conveying legal advice. EPA has invoked that exemption with regard to a few of the
documents on its Vaughn index.
Having reviewed those materials, the Court concludes that EPA appropriately
invoked the privilege. In each instance in which EPA asserted the privilege, the
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materials were either seeking, providing, or conveying legal advice that an EPA
attorney provided in connection with the CECOS site review. To be sure, one of the
documents as to which the privilege is invoked is an email between two non-lawyer
EPA employees (cc’d to an attorney), but the contents of that communication include
a portion that conveys legal advice that one of the two employees had received from
the copied EPA attorney. (As noted above, the email was also covered by the
deliberative-process privilege, so the non-attorney-client-privileged portions are also
exempt from disclosure.)
In short, based on the Court’s review of the materials, EPA has carried its
burden of demonstrating that the materials are exempt from disclosure under FOIA
Exemption 5 on the bases asserted by EPA, whether deliberative-process privilege,
or attorney-client privilege, or both.
CONCLUSION
For the foregoing reasons, the Court GRANTS EPA’s Motion for Summary
Judgment (Doc. 15). The Court DIRECTS the Clerk to enter judgment accordingly.

SO ORDERED.
February 4, 2021
DATE

DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE

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