Case Detail

FOIA Project Annotation: A federal court in Ohio has ruled that the EPA properly withheld records under Exemption 5 (privileges) concerning the clean-up of CECOS International, a site located in Clermont County, Ohio, in response to a request from Clermont County. In response to the request, the EPA located approximately 2,000 responsive pages. The agency withheld sixty documents under Exemption 5, citing the deliberative process privilege. Clermont County filed an administrative appeal and the agency provided some documents but continued to withhold 40 documents in full and six in part. Clermont County told the EPA that it would withdraw its challenges to some documents, which left 22 documents withheld in full and 11 in part. The vast majority of the withheld documents were contained in two PowerPoint presentations. Addressing the PowerPoint presentations, the court noted that "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." The court pointed out that "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." The court also approved of a handful of redactions under the attorney-client privilege. The court observed that "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."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2017-06-08	1	COMPLAINT for Declaratory and Injunctive Relief against United States Environmental Protection Agency ( Filing fee $ 400 paid - receipt number: 0648-5990201), filed by Board of Commissioners of Clermont County, Ohio. (Attachments: # 1 Exhibit Exhibit 1 - March 18, 2016 FOIA Request to USEPA, # 2 Exhibit Exhibit 2 - May 6, 2016 USEPA Response to Clermont County FOIA, # 3 Exhibit Exhibit 3 - June 2, 2016 Clermont County Freedom of Information Act Appeal, # 4 Exhibit Exhibit 4 - January 24, 2017 USEPA Decision on Appeal, # 5 Exhibit Exhibit 5 - May 15, 2017 Privilege Log, # 6 Civil Cover Sheet, # 7 Summons Form, # 8 Summons Form, # 9 Summons Form) (Samuels, Stephen) (Entered: 06/08/2017)
2017-06-09	2	If this case is referred, it will be to Magistrate Judge Karen L. Litkovitz ***PLEASE DISREGARD PDF ATTACHED TO THIS ENTRY - FILED IN ERROR. THIS IS A TEXT ONLY ENTRY.**** (jlw) Modified on 6/12/2017 (eh). (Entered: 06/09/2017)
2017-06-09	3	Summons Issued as to United States Environmental Protection Agency, U.S. Attorney and U.S. Attorney General (jlw) (Entered: 06/09/2017)
2017-06-12	4	REQUEST for Issuance of Summons. Corrected Summons to USEPA (Attachments: # 1 Summons Form Corrected Summons, # 2 Summons Form Corrected Summons) (Samuels, Stephen) (Entered: 06/12/2017)
2017-06-13	5	Summons Issued as to United States Environmental Protection Agency, U.S. Attorney and U.S. Attorney General (jlw) (Entered: 06/13/2017)
2017-06-20	6	NOTICE of Appearance by William Bryan King, II for Defendant United States Environmental Protection Agency (King, William) (Entered: 06/20/2017)
2017-07-11	7	SUMMONS Returned Executed as to Defendant United States Environmental Protection Agency. United States Environmental Protection Agency served on 6/20/2017, answer due 8/21/2017. (Samuels, Stephen) (Entered: 07/11/2017)
2017-07-17	8	ANSWER to 1 Complaint,, filed by United States Environmental Protection Agency. (King, William) (Entered: 07/17/2017)
2017-08-21		NOTICE of Deadline: Rule 26(f) Report due by 9/21/2017; Please be aware that the Court has revised its Rule 26(f) report and joint final pretrial order forms as well as its trial procedures; visit www.ohsd.uscourts.gov/FPbarrett to obtain copies of those required forms; . (ba) (Entered: 08/21/2017)
2017-09-11	9	RULE 26(f) REPORT Joint Discovery Plan by Plaintiff Board of Commissioners of Clermont County, Ohio. (Samuels, Stephen) (Entered: 09/11/2017)
2017-09-28		Minute Entry for proceedings held before Judge Michael R. Barrett: Status Conference held on 9/28/2017; Stephen Samuels appeared for Plaintiff; William King appeared for Defendant; parties request additional time to establish a calendar; a follow up Status Conference is set for 11/6/2017 at 11:30 AM by teleconference before Judge Michael R. Barrett; NOTE: parties shall refer to the entry on 8/21/17 for conferencing instructions (ba) (Entered: 09/28/2017)
2017-11-06		Minute Entry for proceedings held before Judge Michael R. Barrett: Status Conference held on 11/6/2017; Stephen Samuels appeared for Plaintiff; William King appeared for Defendant; the parties shall confer and follow up for a Status Conference set 1/4/2018 at 01:00 PM by teleconference before Judge Michael R. Barrett; NOTE: parties shall refer to the entry on 8/21/17 for conferencing instructions (ba) (Entered: 11/06/2017)
2018-01-04		Minute Entry for proceedings held before Judge Michael R. Barrett: Status Conference held on 1/4/2018 with Law Clerk; Stephen Samuels appeared for Plaintiff; William King appeared for Defendant; Plaintiff anticipates withdrawing certain FOIA requests by 1/16/2018; thereafter the parties will confer regarding the timing of supplemental Vaughn Index and summary judgment briefing; the parties agree to follow up for a status conference set for 1/30/2018 at 2:30 p.m. by telephone before Judge Michael R. Barrett; NOTE: parties to refer to the entry on 8/21/17 for conferencing instructions . (ba) (Entered: 01/04/2018)
2018-01-09	10	NOTICE by Plaintiff Board of Commissioners of Clermont County, Ohio FOLLOW-UP TO JANUARY 5, 2018 STATUS CONFERENCE (Samuels, Stephen) (Entered: 01/09/2018)
2018-01-29		NOTICE of Hearing: Please be aware that the Status Conference set for 1/30/18 is RESET to 2/14/2018 at 10:30 AM and remains set by teleconference before Judge Michael R. Barrett; NOTE: parties shall refer to the entry on 8/21/17 for conferencing instructions (ba) (Entered: 01/29/2018)
2018-02-14		Minute Entry for proceedings held before Judge Michael R. Barrett: Status Conference held on 2/14/2018; Stephen Samuels appeared for Plaintiff; William King appeared for Defendant; parties request a dispositive motion deadline be set: Motions due by 3/22/2018; Response due 4/23/18; reply due 5/7/18; the Court will review the filings and proceed as necessary. (ba) (Entered: 02/14/2018)
2018-03-22	11	MOTION for Extension of Time to File New date requested 4/20/2018. by Defendant United States Environmental Protection Agency. (King, William) (Entered: 03/22/2018)
2018-04-20	12	Second MOTION for Extension of Time New date requested 4/30/2018. Extention of Time to File Dispositive Motion by Defendant United States Environmental Protection Agency. (King, William) (Entered: 04/20/2018)
2018-04-30	13	Third MOTION for Extension of Time New date requested 5/7/2018. by Defendant United States Environmental Protection Agency. (King, William) (Entered: 04/30/2018)
2018-05-07	14	MOTION for Extension of Time New date requested 5/7/2018. to File Dispositive Motion by Defendant United States Environmental Protection Agency. (King, William) (Entered: 05/07/2018)
2018-05-09	15	MOTION for Summary Judgment by Defendant United States Environmental Protection Agency. (Attachments: # 1 Affidavit Declaration of Senticar, # 2 Exhibit A - Vaughn Index, # 3 Exhibit B - Signed FOIA Request, # 4 Exhibit C - Water Div Resp, # 5 Exhibit D - Superfund Div Resp, # 6 Exhibit E - R5 LCD email, # 7 Exhibit F - Extension, # 8 Exhibit G - Plaintiff Email) (King, William) (Entered: 05/09/2018)
2018-05-29	16	First MOTION for Extension of Time to File Response/Reply as to 15 MOTION for Summary Judgment New date requested 6/20/2018. by Plaintiff Board of Commissioners of Clermont County, Ohio. (Samuels, Stephen) (Entered: 05/29/2018)
2018-06-20	17	Second MOTION for Extension of Time to File Response/Reply as to 15 MOTION for Summary Judgment New date requested 6/27/2018. by Plaintiff Board of Commissioners of Clermont County, Ohio. (Samuels, Stephen) (Entered: 06/20/2018)
2018-06-26	18	RESPONSE in Opposition re 15 MOTION for Summary Judgment filed by Plaintiff Board of Commissioners of Clermont County, Ohio. (Samuels, Stephen) (Entered: 06/26/2018)
2018-06-28	19	Affidavit of Paul Braasch by Plaintiff Board of Commissioners of Clermont County, Ohio re 18 Response in Opposition to Motion (Samuels, Stephen) Modified to correct docket text on 6/29/2018 (sct). (Entered: 06/28/2018)
2018-06-29		NOTICE re 19 Affidavit: The document was filed without a certificate of service which is required pursuant to S.D. Ohio Civ. R. 5.2. To correct the filing use the Certificate of Service event found under Civil Events-Initial Pleadings and Service-Service of Process and link the event to the Affidavit when prompted. (sct) (Entered: 06/29/2018)
2018-06-29	20	CERTIFICATE OF SERVICE by Plaintiff Board of Commissioners of Clermont County, Ohio re 19 Notice (Other) Affidavit of Paul Braasch (Samuels, Stephen) (Entered: 06/29/2018)
2018-07-02	21	ORDER granting 11 Motion for Extension of Time to File; granting 12 Motion for Extension of Time; granting 13 Motion for Extension of Time; granting 14 Motion for Extension of Time; granting 15 Motion for Summary Judgment; granting 16 Motion for Extension of Time to File Response/Reply; granting 17 Motion for Extension of Time to File Response/Reply re 15 MOTION for Summary Judgment ; Responses due by 6/27/2018. Signed by Judge Michael R. Barrett on 7/2/18. (ba) (Entered: 07/02/2018)
2018-07-10	22	MOTION for Extension of Time to File Response/Reply as to 18 Response in Opposition to Motion New date requested 7/24/2018. by Defendant United States Environmental Protection Agency. (King, William) (Entered: 07/10/2018)
2018-07-19	23	ORDER granting 22 Motion for Extension of Time to File Response/Reply; Replies due by 7/24/2018. Signed by Judge Michael R. Barrett on 7/19/18. (ba) (Entered: 07/19/2018)
2018-07-25	24	MOTION for Extension of Time to File Response/Reply as to 18 Response in Opposition to Motion New date requested 8/7/2018. by Defendant United States Environmental Protection Agency. (King, William) (Entered: 07/25/2018)
2018-07-27	25	ORDER granting 24 Motion for Extension of Time to File Response/Reply; Replies due by 8/7/2018. Signed by Judge Michael R. Barrett on 7/27/18. (ba) (Entered: 07/27/2018)
2018-08-07	26	Third MOTION for Extension of Time to File Response/Reply as to 18 Response in Opposition to Motion New date requested 8/14/2018. by Defendant United States Environmental Protection Agency. (King, William) (Entered: 08/07/2018)
2018-08-13	27	ORDER granting 26 Motion for Extension of Time to File Response/Reply re 15 MOTION for Summary Judgment; Replies due by 8/14/2018. Signed by Judge Michael R. Barrett on 8/13/18. (ba) (Entered: 08/13/2018)
2018-08-14	28	REPLY to Response to Motion re 15 MOTION for Summary Judgment filed by Defendant United States Environmental Protection Agency. (King, William) (Entered: 08/14/2018)
2020-11-20	29	ORDER REASSIGNING CASE. Case reassigned to Judge Douglas R. Cole for all further proceedings. Signed by Chief Judge Algenon L. Marbley on 11/20/2020. (ss) (Entered: 11/22/2020)
2020-12-15		NOTATION ORDER as to 15 Defendant's Motion for Summary Judgment. Based on the Court's review of the briefing, and the small volume of documents remaining at issue, the Court ORDERS Defendant to provide the Court, in camera, a complete copy of the 21 unique records, withheld in whole or in part, under the deliberative privilege process and the 12 unique records, withheld in whole or in part, under both the deliberative process privilege and the attorney-client privilege. Defendant shall provide the documents in electronic form in single indexed pdf file organized in the same fashion as the Vaughn index, and shall submit the documents for in camera review to chambers at cole_chambers@ohsd.uscourts.gov on or before December 31, 2020. SO ORDERED. Signed by Judge Douglas R. Cole on 12/15/20. (sct) (Entered: 12/15/2020)
2021-02-04	30	OPINION AND ORDER granting 15 EPA's Motion for Summary Judgment. Signed by Judge Douglas R. Cole on 2/4/21. (sct) (Entered: 02/04/2021)
2021-02-04	31	CLERK'S JUDGMENT affirming 30 OPINION AND ORDER. (sct) (Entered: 02/04/2021)
Hide Docket Events