Case Detail

FOIA Project Annotation: Judge James Boasberg has ruled that the EPA properly withheld portions of a draft under Exemption 5 (deliberative process privilege) and assessed Hall & Associates $431 in fees. Hall & Associates represented the Great Bay Coalition, a group in New Hampshire dissatisfied with the EPA's National Pollutant Discharge Elimination System permit for the Great Bay Estuary. The Coalition accused the agency of "scientific fraud" in its decision and Hall & Associates submitted a total of 18 FOIA requests to the agency, ultimately agreeing to accept records concerning EPA Region 1's responses to the allegations of scientific misconduct. The agency located four responsive documents totaling 26 pages. Although Region 1 claimed that all four records contained deliberative material, the agency released three of them after determining that disclosure would not cause any foreseeable harm. However, it redacted portions of a draft letter prepared by a Region 1 attorney responding to the Coalition's accusations of misconduct. Since Hall & Associates was classified as a commercial requester, the agency assessed 1.5 hours of search time and 8.5 hours that a Region 1 attorney spent reviewing the records for responsiveness and for the application of exemptions. Hall & Associates claimed the $410 in review time was unreasonable. Boasberg noted that the agency attorney spent 8.5 hours "reviewing the documents collected from Region 1 managers and staff, determining whether any FOIA exemption applied, conferring with program staffâ€"through multiple rounds of discussionâ€"about whether materials deemed deliberative should nonetheless be disclosed on a discretionary basis, summarizing the agency's analysis in a memorandum, and coordinating the Region's response with EPA headquarters." He explained that "plaintiff offers no substantive response to EPA's argument" and pointed out that "a plaintiff's bare assertion that a fee assessment is unreasonable, however, is insufficient to avoid summary judgment." Hall & Associates argued that the records were not privileged because the redacted materials pertained to the agency's scientific misconduct and that the draft from Region 1 represented the agency's response to the allegations and did not go through any further review at EPA headquarters. Calling that claim "puzzling," Boasberg indicated that "it is unclear exactly what would be different if Region 1 had written the response" since "EPA already sent the final version of the letter to Plaintiff." Noting that Hall & Associates implied in passing that the redactions were not predecisional because they dealt with events that had already taken place, Boasberg observed that "deliberations over how to respond to allegations concerning a past event are without a doubt 'predecisional' to the actual responseâ€"in this case, the final response letter that EPA issued on September 27, 2012. . .That the letter was written after Region 1 had made its regulatory decisions is obviously irrelevant."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Fees

Date Filed	Doc #	Docket Text
2013-06-04	1	COMPLAINT against UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION 1 ( Filing fee $ 400 receipt number 0090-3348351) filed by HALL AND ASSOCIATES. (Attachments: # 1 Exhibit Exhs 1 - 46, # 2 Civil Cover Sheet, # 3 Summons Summons - EPA R1, AG, USAO)(Rosenman, Philip) (Entered: 06/04/2013)
2013-06-04		Case Assigned to Judge James E. Boasberg. (md, ) (Entered: 06/04/2013)
2013-06-04	2	ELECTRONIC SUMMONS Issued (3) as to UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent, # 2 Consent Form)(md, ) (Entered: 06/04/2013)
2013-06-13	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. HALL AND ASSOCIATES served on 6/6/2013 (Attachments: # 1 Exhibit Ex. 1 - Proof of Service EPA R1)(Rosenman, Philip) (Entered: 06/13/2013)
2013-06-13	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 6/7/2013. (Attachments: # 1 Exhibit Ex. 1 - Proof of Service AG)(Rosenman, Philip) (Entered: 06/13/2013)
2013-06-13	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/7/2013. Answer due for ALL FEDERAL DEFENDANTS by 7/7/2013. (Attachments: # 1 Exhibit Ex. 1 - Proof of Service USAO)(Rosenman, Philip) (Entered: 06/13/2013)
2013-06-13	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY served on 6/6/2013 (td, ) (Entered: 06/14/2013)
2013-06-14		NOTICE OF CORRECTED DOCKET ENTRY: re 3 Summons Returned Executed as to Federal Defendant was entered in error and entered as docket entry no. 6 .(td, ) (Entered: 06/14/2013)
2013-07-02	7	NOTICE of Appearance by Michelle Lo on behalf of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Lo, Michelle) (Entered: 07/02/2013)
2013-07-02	8	Consent MOTION for Extension of Time to File Answer re 1 Complaint, by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Lo, Michelle) (Entered: 07/02/2013)
2013-07-02		MINUTE ORDER granting Defendant's 8 Consent Motion for Extension of Time to Respond to Complaint. The Court ORDERS that Defendant shall now file its response to Plaintiff's 1 Complaint by August 7, 2013. Signed by Judge James E. Boasberg on 7/2/2013. (lcjeb2) (Entered: 07/02/2013)
2013-07-02		Set/Reset Deadlines: Answer to the Complaint due by 8/7/2013. (tg, ) (Entered: 07/03/2013)
2013-08-07	9	MOTION for Summary Judgment by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Declaration of Stephen Perkins, # 2 Declaration of Cristeen Schena, # 3 Text of Proposed Order)(Lo, Michelle) (Entered: 08/07/2013)
2013-08-12	10	Consent MOTION for Extension of Time to Respond to EPA's Motion for Summary Judgment by HALL AND ASSOCIATES (Rosenman, Philip) (Entered: 08/12/2013)
2013-08-13		MINUTE ORDER: Plaintiff's 10 Consent Motion for Extension of Time is hereby GRANTED. Plaintiff shall file its Opposition to Defendant's 9 Motion for Summary Judgment on or before October 1, 2013. Signed by Judge James E. Boasberg on 8/13/13. (lcjeb4) (Entered: 08/13/2013)
2013-08-13		Set/Reset Deadline: Plaintiff shall file its Opposition to Defendant's 9 Motion for Summary Judgment on or before 10/1/2013. (ad) (Entered: 08/13/2013)
2013-09-30	11	Consent MOTION for Extension of Time to File Response/Reply as to 9 MOTION for Summary Judgment and Opposition to Plaintiff's Anticipated Cross-Motion for Summary Judgment by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Lo, Michelle) (Entered: 09/30/2013)
2013-10-01		MINUTE ORDER granting Defendant's 11 Consent Motion for Extension of Time to File. The Court ORDERS that Defendant shall file its Reply in further support of its Motion for Summary Judgment and its Opposition to Plaintiff's anticipated Cross-Motion for Summary Judgment on or before November 12, 2013. Signed by Judge James E. Boasberg on 10/1/13. (lcjeb1) (Entered: 10/01/2013)
2013-10-01		Set/Reset Deadlines: Defendant's Opposition to Cross Motion and Reply to Opposition to Motion for Summary Judgment due by 11/12/2013. (tg, ) (Entered: 10/01/2013)
2013-10-01	12	Memorandum in opposition to re 9 MOTION for Summary Judgment with Motion, Undisputed and Disputed Facts, and Order filed by HALL AND ASSOCIATES. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibits 2-9)(Rosenman, Philip) (Entered: 10/01/2013)
2013-10-01	13	Cross MOTION for Summary Judgment, MOTION for In Camera Review by HALL AND ASSOCIATES (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibits 2-9)(Rosenman, Philip). Added MOTION for In Camera Review on 12/24/2013 (jf, ). (Entered: 10/01/2013)
2013-11-07	14	Consent MOTION for Extension of Time to File Response/Reply as to 9 MOTION for Summary Judgment , 13 Cross MOTION for Summary Judgment with supporting Memorandum, Disputed and Undisputed Facts, and Exhibits by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Lo, Michelle) (Entered: 11/07/2013)
2013-11-08		MINUTE ORDER granting Defendant's 14 Consent Motion for Extension of Time to File Opposition/Reply. The Court ORDERS that Defendant shall file its consolidated Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment on or before November 19, 2013. Signed by Judge James E. Boasberg on 11/8/13. (lcjeb1) (Entered: 11/08/2013)
2013-11-08		Set/Reset Deadlines: Defendant shall file its consolidated Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment on or before 11/19/2013. (ad) (Entered: 11/08/2013)
2013-11-19	15	REPLY to opposition to motion re 9 MOTION for Summary Judgment filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Reply Ex. 1, # 2 Text of Proposed Order)(Lo, Michelle) . (Entered: 11/19/2013)
2013-11-19	16	Memorandum in opposition to re 13 Cross MOTION for Summary Judgment, MOTION for In Camera Review filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Reply Ex. 1, # 2 Text of Proposed Order)(Lo, Michelle) Modified on 12/24/2013 (jf, ). (Entered: 11/19/2013)
2013-11-22	17	Consent MOTION for Extension of Time to File Response/Reply to Cross Motion for Summary Judgment by HALL AND ASSOCIATES (Rosenman, Philip) (Entered: 11/22/2013)
2013-11-22		MINUTE ORDER granting Plaintiff's 17 Consent Motion for Extension of Time to File Response/Reply: The Court ORDERS that Plaintiff shall file its Reply on or before December 23, 2013. Signed by Judge James E. Boasberg on 11/22/13. (lcjeb1) (Entered: 11/22/2013)
2013-11-22		Set/Reset Deadlines: Plaintiff shall file its Reply on or before 12/23/2013. (ad) (Entered: 11/22/2013)
2013-12-23	18	REPLY to opposition to motion re 13 Cross MOTION for Summary Judgment, MOTION for In Camera Review filed by HALL AND ASSOCIATES. (Attachments: # 1 Exhibit Ex. Sedlacek Declaration)(Rosenman, Philip) Modified on 12/24/2013 (jf, ). (Entered: 12/23/2013)
2013-12-24		NOTICE OF ERROR re 18 Reply to opposition to Motion; emailed to prosenman@hall-associates.com, cc'd 1 associated attorneys -- The PDF file you docketed contained errors: 1. Two-part docket entry, 2. Please refile document, 3. same document usi (Entered: 12/24/2013)
2014-01-16		MINUTE ORDER: The Court ORDERS that by January 21, 2014, Defendant shall submit for in camera review both a redacted and an unredacted copy of the draft letter referred to in paragraphs 18-20 of the Declaration of Stephen Perkins (ECF No. 9-1). Signed by Judge James E. Boasberg on 1/16/14. (lcjeb1) (Entered: 01/16/2014)
2014-01-16		Set/Reset Deadline: By 1/21/2014, Defendant shall submit for in camera review both a redacted and an unredacted copy of the draft letter referred to in paragraphs 18-20 of the Declaration of Stephen Perkins (ECF No. 9-1). (ad) (Entered: 01/16/2014)
2014-01-17	19	NOTICE of Submission for In Camera Review by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY re Order, (Lo, Michelle) (Entered: 01/17/2014)
2014-02-04	20	ORDER: For the reasons set forth in the accompanying Memorandum Opinion, the Court ORDERS that: (1) Defendant's Motion is GRANTED; (2) Plaintiff's Cross-Motion is DENIED; and (3) Judgment is ENTERED in favor of Defendant. Signed by Judge James E. Boasberg on 2/4/14. (lcjeb1) (Entered: 02/04/2014)
2014-02-04	21	MEMORANDUM OPINION re 20 Order. Signed by Judge James E. Boasberg on 2/4/14. (lcjeb1) (Entered: 02/04/2014)
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