Case Detail

FOIA Project Annotation: Judge Christopher Cooper has ruled that the EPA properly claimed Exemption 5 (privileges) to withhold factual findings written by agency investigators to agency attorneys in order to secure legal advice regarding the criminal liability of an outside party. PEER requested records of an OIG report on revolving-door allegations against a former member of the U.S. Chemical Safety and Hazard Investigation Board. OIG located nearly 900 pages of responsive records. The agency made redactions on 57 pages and withheld 86 pages entirely, including 23 pages withheld under the attorney-client privilege. PEER contested only portions of the records withheld under the attorney-client privilege, arguing that the privilege applied only "when agency communications concern 'the legal ramifications of [the agency's] action.' Since 'the EPA-OIG's investigation did not involve the conduct of any agency employee, but rather, an outside third party', PEER contends the withheld communications 'had no bearing on EPA's legal rights or responsibilities' and therefore the attorney-client privilege has no proper application." Indicating that "this argument rests on false premises," Cooper explained that "by seeking legal advice regarding the potential federal criminal liability of a former CSB member, the OIG investigators were acting in direct furtherance of the agency's statutory mandate." He pointed out that "courts have applied the attorney-client privilege in the FOIA context to protect legal advice from agency attorneys to agency investigators concerning the legal parameters of third-party conduct." PEER relied on Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854 (D.C. Cir. 1980), for the proposition that the attorney-client privilege did not apply when legal advice is used as the working law of the agency and is available widely throughout the agency. But Cooper pointed out that "this is a 'different case.' [T]he EPA-OIG has tagged the relevant records with 'restricted' and 'official use only' labels, and has stored them in a database accessible only to authorized EPA-OIG employees." PEER also argued that factual findings could be segregated from privileged material. Rejecting the claim, Cooper noted that "the attorney-client privilege protects not only legal advice, but the confidentially conveyed facts upon which that advice is based. Attorney-client communications are a two-way street."
Issues: Exemption 5 - Privileges - Attorney-client privilege

Date Filed	Doc #	Docket Text
2015-06-29	1	COMPLAINT against UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ( Filing fee $ 400 receipt number 0090-4155149) filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Dumais, Laura) (Entered: 06/29/2015)
2015-06-29		Case Assigned to Judge Christopher R. Cooper. (sth) (Entered: 06/30/2015)
2015-06-30	2	SUMMONS (3) Issued Electronically as to UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth) (Entered: 06/30/2015)
2015-07-20	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/16/2015. Answer due for ALL FEDERAL DEFENDANTS by 8/15/2015. (Dumais, Laura) (Entered: 07/20/2015)
2015-07-20	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 7/7/2015. (Dumais, Laura) (Entered: 07/20/2015)
2015-07-20	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY served on 7/6/2015 (Dumais, Laura) (Entered: 07/20/2015)
2015-07-30	6	NOTICE of Appearance by Jeremy S. Simon on behalf of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Simon, Jeremy) (Entered: 07/30/2015)
2015-08-04	7	Consent MOTION for Extension of Time to Answer or Otherwise Respond to Complaint by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 08/04/2015)
2015-08-05		MINUTE ORDER granting 7 Consent Motion for Extension of Time. The Defendant shall have up to, and including, September 14, 2015, to answer or otherwise respond to the Complaint. Signed by Judge Christopher R. Cooper on 8/5/2015. (lccrc1, ) (Entered: 08/05/2015)
2015-09-10	8	NOTICE OF SUBSTITUTION OF COUNSEL by April Denise Seabrook on behalf of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Substituting for attorney Jeremy Simon (Seabrook, April) (Entered: 09/10/2015)
2015-09-10	9	Consent MOTION for Extension of Time to Answer or Otherwise Respond to Complaint by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Seabrook, April) (Entered: 09/10/2015)
2015-09-10		MINUTE ORDER granting 9 Consent Motion for Second Extension of Time: It is hereby ORDERED that Defendant's time to respond to Plaintiff's Complaint is extended up to and including October 29, 2015. Signed by Judge Christopher R. Cooper on 9/10/15. (lccrc1) (Entered: 09/10/2015)
2015-10-29	10	Consent MOTION for Extension of Time to File Answer re 1 Complaint, by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Seabrook, April) (Entered: 10/29/2015)
2015-10-30		MINUTE ORDER granting 10 Motion for Extension of Time to Answer: It is hereby ORDERED that Defendant's motion for an extension of time to answer the complaint is GRANTED; Defendant's answer shall be due December 15, 2015. Signed by Judge Christopher R. Cooper on 10/30/15. (lccrc1) (Entered: 10/30/2015)
2015-12-15	11	Joint MOTION for Briefing Schedule , Joint MOTION for Extension of Time to File Responsive Pleading by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Seabrook, April) (Entered: 12/15/2015)
2015-12-16	12	ORDER granting 11 Joint Motion for Briefing Schedule. Signed by Judge Christopher R. Cooper on 12/16/15. (lccrc1) (Entered: 12/16/2015)
2016-01-21	13	Consent MOTION for Extension of Time to File Dispositive Motion by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Seabrook, April) (Entered: 01/21/2016)
2016-01-28		MINUTE ORDER granting 13 Motion for Extension of Time: It is hereby ORDERED that Defendant's dispositive motion be due January 29, 2016; that Plaintiff's opposition and, if applicable, cross-motion for summary judgment be due March 7, 2016; that Defendant's reply and, if applicable, opposition be due April 6, 2016; and that, if applicable, Plaintiff's reply be due April 20, 2016. Signed by Judge Christopher R. Cooper on 1/28/16. (lccrc1) (Entered: 01/28/2016)
2016-01-29	14	MOTION for Summary Judgment by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Statement of Facts, # 2 Exhibit, # 3 Memorandum in Support, # 4 Text of Proposed Order)(Seabrook, April) (Entered: 01/29/2016)
2016-02-03	15	NOTICE of Change of Address by Laura Marie Colangelo Dumais (Dumais, Laura) (Entered: 02/03/2016)
2016-03-07	16	Cross MOTION for Summary Judgment by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Dumais, Laura) (Entered: 03/07/2016)
2016-03-07	17	ENTERED IN ERROR. . . . .REPLY to opposition to motion re 14 MOTION for Summary Judgment filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Attachments: # 1 Statement of Facts Response to Def's Statement of Facts, # 2 Text of Proposed Order)(Dumais, Laura) Modified on 3/8/2016 (ztd). (Entered: 03/07/2016)
2016-03-07	18	Memorandum in opposition to re 14 MOTION for Summary Judgment previously filed in error as "reply to opposition" filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Dumais, Laura) (Entered: 03/07/2016)
2016-03-08		NOTICE OF CORRECTED DOCKET ENTRY: re 17 Reply to opposition to Motion, was entered in error and counsel refiled said pleading as docket entry no. 18 . (td) (Entered: 03/08/2016)
2016-04-03	19	Unopposed MOTION for Extension of Time to File Response/Reply as to 14 MOTION for Summary Judgment by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Seabrook, April) (Entered: 04/03/2016)
2016-04-05		MINUTE ORDER granting 19 Motion for Extension of Time to File Response/Reply: It is hereby ORDERED that Defendant's reply in support of its motion for summary judgment and any response to Plaintiff's cross-motion for summary judgment be due April 19, 2016, and that Plaintiff's reply in support of its cross-motion for summary judgment be due May 3, 2016. Signed by Judge Christopher R. Cooper on 4/5/16. (lccrc1) (Entered: 04/05/2016)
2016-04-19	20	MOTION for Extension of Time to File Motion for Summary Judgment Reply by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Seabrook, April) (Entered: 04/19/2016)
2016-04-20	21	NOTICE of consent to extension of time by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY re 20 MOTION for Extension of Time to File Motion for Summary Judgment Reply (Dumais, Laura) (Entered: 04/20/2016)
2016-04-20		MINUTE ORDER granting 20 Motion for Extension of Time to File Reply: It is hereby ORDERED that Defendant's summary judgment reply and any opposition to Plaintiff's cross-motion for summary judgment be due April 21, 2016, and that Plaintiff's reply in support of its cross-motion for summary judgment be due May 5, 2016. Signed by Judge Christopher R. Cooper on 4/20/16. (lccrc1) (Entered: 04/20/2016)
2016-04-21	22	REPLY to opposition to motion re 14 MOTION for Summary Judgment filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Statement of Facts, # 2 Exhibit 4-8)(Seabrook, April) (Entered: 04/21/2016)
2016-04-21	23	Memorandum in opposition to re 16 Cross MOTION for Summary Judgment filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Statement of Facts, # 2 Exhibit)(Seabrook, April) (Entered: 04/21/2016)
2016-05-05	24	REPLY to opposition to motion re 16 Cross MOTION for Summary Judgment filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Dumais, Laura) (Entered: 05/05/2016)
2016-05-06	25	NOTICE of filing of exhibit by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY re 24 Reply to opposition to Motion (Attachments: # 1 Exhibit Exhibit A)(Dumais, Laura) (Entered: 05/06/2016)
2016-09-21	26	NOTICE of Appearance by Daniel Patrick Schaefer on behalf of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Schaefer, Daniel) (Entered: 09/21/2016)
2016-09-30	27	MEMORANDUM OPINION re: 14 Defendant's Motion for Summary Judgment and 16 Plaintiff's Cross-Motion for Summary Judgment. Signed by Judge Christopher R. Cooper on 9/30/2016. (lccrc1) (Entered: 09/30/2016)
2016-09-30	28	ORDER granting 14 Defendant's Motion for Summary Judgment and denying 16 Plaintiff's Cross-Motion for Summary Judgment. Signed by Judge Christopher R. Cooper on 9/30/2016. (lccrc1) (Entered: 09/30/2016)
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