Case Detail

FOIA Project Annotation: Judge Amy Berman Jackson has ruled that the EPA properly withheld 67 records under Exemption 5 (privileges) after finding that they qualified under the consultant corollary, that the agency had determined that factual material was inextricably intertwined with deliberative material, and that the agency had also concluded that information could not be segregated and released. The Center for Biological Diversity filed a FOIA request for records concerning the agency's decision to revise its aquatic life water quality criteria for cadmium. The agency contracted with Great Lakes Environmental Center to help with its review. After identifying 654 responsive records, the agency disclosed 287 records in full, 87 in part, and withheld 280 records entirely CBD eventually narrowed its challenge to 67 records that had been withheld under the deliberative process privilege, arguing primarily that based on GLEN's website it is "clear that the organization represents the interests of the regulated community" and were adverse to those of the agency, meaning that records shared with the contractor did not qualify for the privilege. Jackson disagreed, noting that GLEN had signed a conflict of interest certification requiring it to report to the agency if it had any conflict of interest regarding the water quality criteria for cadmium. She pointed out that "because there is no indication in the records that GLEN represented its own interests, or outside interests, during its consulting work for EPA, and there is no evidence of bad faith, the Court finds that the agency's detailed declarations justify withholding its deliberative communications with GLEN under Exemption 5." CBD argued that much of the information included scientific data, research and statistical figures that were purely factual and not deliberative. Again, Jackson disagreed with CBD's claim that factual data could not be deliberative. She observed that "these documents also contain draft responses to public comments and work planning discussions. The limited factual information that appears in these documents is selected, organized, and presented in such a way that requires 'the exercise of discretion and judgment calls,' and does not amount to an 'essentially technical' recitation of scientific data or other facts." Jackson added that "while the ultimate decision must be grounded in science, that does not mean that there is no place in the decision-making process for discretion and judgment calls. . .The facts that appeared in the documents were inextricably intertwined with the deliberative discussions and process itself." CBD also faulted the agency for its failure to segregate and disclose non-exempt information. Finding the agency had conducted an adequate segregability analysis, Jackson indicated that "the Vaughn Index supplied by EPA provides a document-by-document justification for each of the 67 records in dispute, describing the deliberative processes involved and justifying the agency's position that no reasonably segregable material could be released."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Waiver of privilege

Date Filed	Doc #	Docket Text
2017-06-28	1	COMPLAINT against UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ( Filing fee $ 400 receipt number 0090-5010232) filed by CENTER FOR BIOLOGICAL DIVERSITY. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Connor, Hannah) (Entered: 06/28/2017)
2017-06-28	2	Corporate Disclosure Statement by CENTER FOR BIOLOGICAL DIVERSITY. (Connor, Hannah) (Entered: 06/28/2017)
2017-06-28	3	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Emily Jeffers, :Firm- Center for Biological Diversity, :Address- 1212 Broadway, Suite 800, Oakland, CA 94612. Phone No. - (510) 844-7109. Fax No. - n/a Filing fee $ 100, receipt number 0090-5010291. Fee Status: Fee Paid. by CENTER FOR BIOLOGICAL DIVERSITY (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Connor, Hannah) (Entered: 06/28/2017)
2017-06-30		Case Assigned to Judge Amy Berman Jackson. (zsb) (Entered: 06/30/2017)
2017-06-30	4	SUMMONS (3) Issued Electronically as to UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Form)(zsb) (Entered: 06/30/2017)
2017-06-30		MINUTE ORDER granting 3 Motion for Leave of Emily Jeffers to Appear Pro Hac Vice only upon condition that the lawyer admitted, or at least one member of the lawyer's firm, undergo CM/ECF training, obtain a CM/ECF username and password, and agree to file papers electronically. No court papers will be mailed to any lawyer. Signed by Judge Amy Berman Jackson on 6/30/17. (DMK) (Entered: 06/30/2017)
2017-07-26	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/13/2017. Answer due for ALL FEDERAL DEFENDANTS by 8/12/2017. (Attachments: # 1 Exhibit Certified Mail Return Receipts)(Connor, Hannah) (Entered: 07/26/2017)
2017-07-26	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 07/13/2017. (Attachments: # 1 Exhibit Certified Mail Return Receipts)(Connor, Hannah) (Entered: 07/26/2017)
2017-07-26	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY served on 7/11/2017 (Attachments: # 1 Exhibit Certified Mail Return Receipts)(Connor, Hannah) (Entered: 07/26/2017)
2017-08-11	8	ANSWER to Complaint by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.(Peterson, Benton) (Entered: 08/11/2017)
2017-08-11		MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. The requirements of Local Civil Rule 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure appear to be inapplicable. Defendant shall file a dispositive motion or, in the alternative, a report setting forth the schedule for the completion of its production of documents to plaintiff on or before September 11, 2017. SO ORDERED. Signed by Judge Amy Berman Jackson on 8/11/2017. (lcabj3) (Entered: 08/11/2017)
2017-09-11	9	STATUS REPORT Setting Forth Proposed Production Scedule by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Peterson, Benton) (Entered: 09/11/2017)
2017-09-12		MINUTE ORDER. The parties shall file a joint status report by November 1, 2017, to inform the Court whether further proceedings are necessary in this matter, and to propose a briefing schedule, if necessary. SO ORDERED. Signed by Judge Amy Berman Jackson on 9/12/2017. (lcabj3) (Entered: 09/12/2017)
2017-10-17	10	Joint MOTION for Extension of Time to File by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 10/17/2017)
2017-10-17		MINUTE ORDER granting 10 parties' motion for an extension of time to file a joint status report by November 8, 2017. SO ORDERED. Signed by Judge Amy Berman Jackson on 10/17/2017. (lcabj3) (Entered: 10/17/2017)
2017-11-08	11	NOTICE of Appearance by Catherine Cain Ware Kilduff on behalf of CENTER FOR BIOLOGICAL DIVERSITY (Kilduff, Catherine) (Entered: 11/08/2017)
2017-11-08	12	STATUS REPORT AND PROPOSED BRIEFING SCHEDULE by CENTER FOR BIOLOGICAL DIVERSITY. (Connor, Hannah) (Entered: 11/08/2017)
2017-11-09		MINUTE ORDER. Since transmitting a Vaughn index to plaintiff prior to filing a motion for summary judgment may narrow the issues, the Court will include it in the schedule. Based on the proposals in the status report and defense counsel's representations concerning scheduling demands, the schedule will be as follows: defendant must provide plaintiff with its Vaughn index on December 18, 2017; plaintiff must identify those withholdings to which it objects by January 3, 2018; the parties will submit a proposed schedule for further proceedings, if any, by January 5, 2018. Signed by Judge Amy Berman Jackson on 11/09/2017. (lcabj3) (Entered: 11/09/2017)
2018-01-05	13	STATUS REPORT AND PROPOSED BRIEFING SCHEDULE by CENTER FOR BIOLOGICAL DIVERSITY. (Kilduff, Catherine) (Entered: 01/05/2018)
2018-01-08		MINUTE ORDER. The parties are ordered to meet and confer and to submit a joint status report by February 14, 2018, which should include a proposed schedule for further proceedings if necessary. Signed by Judge Amy Berman Jackson on 01/08/2018. (lcabj3) (Entered: 01/08/2018)
2018-02-14	14	Joint STATUS REPORT and Proposed Briefing Schedule by CENTER FOR BIOLOGICAL DIVERSITY. (Jeffers, Emily) (Entered: 02/14/2018)
2018-02-15		MINUTE ORDER. It is hereby ordered that defendant shall file its motion for summary judgment by March 16, 2018. Plaintiff's opposition (and cross motion, if any, supported by the same memorandum of points and authorities) will be due April 16, 2018. Defendant's reply (combined with its cross opposition, if necessary) will be due May 22, 2018. Plaintiff's cross reply, if any, will be due June 22, 2018. Signed by Judge Amy Berman Jackson on 02/15/2018. (lcabj3) (Entered: 02/15/2018)
2018-03-16	15	MOTION for Summary Judgment by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Statement of Facts, # 2 Exhibit, # 3 Text of Proposed Order)(Peterson, Benton) (Entered: 03/16/2018)
2018-04-16	16	Cross MOTION for Summary Judgment by CENTER FOR BIOLOGICAL DIVERSITY (Attachments: # 1 Text of Proposed Order Text of Proposed Order, # 2 Statement of Facts Statement of Facts, # 3 Declaration Declaration of Catherine Kilduff, # 4 Declaration Declaration of Brett Hartl, # 5 Exhibit Ex. A to Decl. of Brett Hartl, # 6 Exhibit Ex. B to Decl. of Brett Hartl, # 7 Exhibit Ex. C to Decl. of Brett Hartl, # 8 Exhibit Ex. D to Decl. of Brett Hartl, # 9 Exhibit Ex. E to Decl. of Brett Hartl, # 10 Exhibit Ex. F to Decl. of Brett Hartl, # 11 Exhibit Ex. G to Decl. of Brett Hartl)(Connor, Hannah) (Entered: 04/16/2018)
2018-04-16	17	Memorandum in opposition to re 15 MOTION for Summary Judgment , Local Rule 7(h) Statement and Accompanying Memorandum filed by CENTER FOR BIOLOGICAL DIVERSITY. (Attachments: # 1 Text of Proposed Order, # 2 Statement of Facts Plaintiff's Response to Defendant's Statement of Facts)(Connor, Hannah) (Entered: 04/16/2018)
2018-05-16	18	Unopposed MOTION for Extension of Time to File Oppositions and Replies by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 05/16/2018)
2018-05-18		MINUTE ORDER granting 18 Motion for Extension of Time. Defendant's reply, combined with its cross opposition, will be due June 1, 2018. Plaintiff's cross reply will be due July 9, 2018. Signed by Judge Amy Berman Jackson on 05/18/2018. (lcabj3) (Entered: 05/18/2018)
2018-05-31	19	Unopposed MOTION for Extension of Time to File Response/Reply as to 16 Cross MOTION for Summary Judgment by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 05/31/2018)
2018-06-01		MINUTE ORDER granting 19 Motion for Extension of Time. Defendant's reply, combined with its cross opposition, will be due June 7, 2018. SO ORDERED. Signed by Judge Amy Berman Jackson on 06/01/2018. (lcabj3) (Entered: 06/01/2018)
2018-06-04		Set/Reset Deadlines: Defendant's Cross-Motion and Reply due by 6/7/2018. (tg) (Entered: 06/04/2018)
2018-06-07	20	Memorandum in opposition to re 16 Cross MOTION for Summary Judgment and Reply in Support of Defendant's Motion for Summary Judgment filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Declaration, # 2 Exhibit)(Peterson, Benton) (Entered: 06/07/2018)
2018-06-07	21	REPLY in support re 15 MOTION for Summary Judgment filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (See Docket Entry 20 to view document) (jf) (Entered: 06/11/2018)
2018-06-22	22	Unopposed MOTION for Extension of Time to File Response/Reply by CENTER FOR BIOLOGICAL DIVERSITY (Attachments: # 1 Text of Proposed Order)(Jeffers, Emily) (Entered: 06/22/2018)
2018-06-25		MINUTE ORDER granting 22 Motion for Extension of Time. Plaintiff's cross-reply must be filed by July 20, 2018. Signed by Judge Amy Berman Jackson on 06/25/2018. (lcabj3) (Entered: 06/25/2018)
2018-07-20	23	REPLY to opposition to motion re 16 Cross MOTION for Summary Judgment filed by CENTER FOR BIOLOGICAL DIVERSITY. (Jeffers, Emily) (Entered: 07/20/2018)
2018-07-24	24	ENTERED IN ERROR.....Memorandum in opposition to re 15 MOTION for Summary Judgment and Reply in Support of Plaintiff's Motion for Summary Judgment filed by CENTER FOR BIOLOGICAL DIVERSITY. (Connor, Hannah) Modified on 7/24/2018 (zjf). (Entered: 07/24/2018)
2018-07-24		NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 24 Memorandum in Opposition, was entered in error as a duplicate filing. ( See Docket Entry 23 to view document). (jf) (Entered: 07/24/2018)
2018-08-14	25	ERRATA by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 15 MOTION for Summary Judgment filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Exhibit)(Peterson, Benton) (Entered: 08/14/2018)
2019-02-12		MINUTE ORDER. Defendant is directed to deliver to chambers unredacted versions of 17 of the records in dispute for in camera inspection, as this will assist the Court in making a responsible de novo determination. See Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). Specifically, by February 15, 2019, defendant must deliver the records that correspond to Vaughn index pages 8, 9, 10, 11, 13, 15, 23, 27, 31, 32, 36, 37, 38, 45, 47, 55, and 66, and it must docket a notice indicating that it has done so. SO ORDERED. Signed by Judge Amy Berman Jackson on 02/12/2019. (lcabj3) (Entered: 02/12/2019)
2019-02-15	26	NOTICE OF SUBSTITUTION OF COUNSEL by Derek S. Hammond on behalf of All Defendants Substituting for attorney Benton G. Peterson (Hammond, Derek) (Entered: 02/15/2019)
2019-02-15	27	NOTICE of Delivery of Documents for In Camera Inspection by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Hammond, Derek) (Entered: 02/15/2019)
2019-03-27	28	ORDER. Pursuant to Federal Rules of Civil Procedure 56 and 58, and for the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that defendant's motion for summary judgment 15 is GRANTED. It is FURTHER ORDERED that plaintiff's cross-motion for summary judgment 16 is DENIED. This is final appealable order. SO ORDERED. Signed by Judge Amy Berman Jackson on 03/27/2019. (lcabj3) (Entered: 03/27/2019)
2019-03-27	29	MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 03/27/2019. (lcabj3) (Entered: 03/27/2019)
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