Nat. Res. Def. Council v. U.S. Envtl. Prot. Agency, 17-CV-5928 (JMF)

OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

Plaintiff Natural Resources Defense Council (the "NRDC") sues the United States Environmental Protection Agency (the "EPA" or the "agency") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking certain documents and records that the EPA has withheld pursuant to one of FOIA's enumerated "exemptions" — specifically, records concerning a senior manager's participation in certain agency policymaking activities. The EPA now moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment. For the reasons that follow, the Court grants the motion in part and denies it in part, orders the production of certain records, and directs the parties to confer on next steps.

The relevant facts are drawn from the parties' affidavits and are undisputed for purposes of this motion. The NRDC is a "national, not-for-profit environmental and public health membership organization" that "engages in research, advocacy, public education, and litigation related to protecting the environment and public health," including efforts to "eliminate health risks posed by exposure to toxic chemicals." ECF No. 41 ("Tallman Decl."), ¶ 2. The EPA is a

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federal agency charged with, among other things, regulating the use of commercial chemicals and pesticides. See ECF No. 36 ("Myrick Decl."), ¶¶ 24-31. Within the EPA, the Office of Chemical Safety and Pollution Prevention ("OCSPP") is specifically tasked with "protect[ing] human health and the environment from potential risks from pesticides and toxic chemicals." Id. ¶ 9. In 2017, Dr. Nancy Beck joined the EPA as the Deputy Assistant Administrator of OCSPP. Id. ¶ 13. Prior to that, she had been the "Senior Director of Regulatory Science Policy" at the American Chemistry Council, a group that "represents companies that are directly regulated by EPA." ECF No. 36-12, at 9. In her new role, Dr. Beck would participate in policymaking processes — for example, implementing the amended TSCA — that would directly affect industry participants she had previously represented. Id. at 10-11, 14.

In May 2017, the NRDC submitted a FOIA request to the EPA, seeking records relating to Dr. Beck's participation in agency rulemaking and other policy-making activities under the amended Toxic Substances Control Act ("TSCA"), 15 U.S.C. §§ 2601 et seq.¹ On August 4, 2017, the NRDC filed suit for those records. Myrick Decl. ¶¶ 6, 11; see also 5 U.S.C. § 552(a)(4)(B). In November 2017, the parties agreed upon a scope for the agency's records search. Myrick Decl. ¶ 12; ECF No. 19, at 1-2. Specifically, the EPA agreed to search for records relating to Dr. Beck's participation in the following seven policymaking domains:

1. The TSCA "Framework Rules." As amended in 2016, the TSCA required the EPA to complete two rulemakings — namely, rules relating to "Procedures for Prioritization of Chemicals for Risk Assessments under the TSCA" and "Procedures for Chemical Risk Evaluations under the amended TSCA," Myrick Decl. ¶ 24 — within one year of the amendments, or June 22, 2017.

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2. Implementation of the "New Chemicals" program, including potential improvements to the program and elimination of a backlog of chemical review submissions filed by companies.

3. Rulemakings under TSCA Section 6(a) on the use of three chemicals: trichloroethylene, methylene chloride, and N-methylpyrrolidone.

4. Pesticide actions relating to the pesticides chlorpyrifos and glyphosate.

5. The development of "scope" for the first ten chemicals to be evaluated under the amended TSCA.

6. Potential changes to the "Chemical Data Reporting" rule under TSCA Section 8(a).

7. Evaluation of existing EPA regulations.

Myrick Decl. ¶¶ 12-13, 24-31. The agency also agreed to a timeline for reviewing the records and producing those which it determined were not "exempt" under FOIA. Id. ¶ 15; see 5 U.S.C. § 552(b) (listing the categories of records that need not be disclosed by an agency).

Following its search and review, the EPA identified 1,350 responsive records. Of those records, it has released 277 in full; released in part and withheld in part 920 records; and withheld in full 153 records. Id. ¶ 16. For the records withheld in whole or in part, the agency claims they need not be disclosed pursuant to either or both so-called Exemption 5 (which incorporates civil discovery privileges such as the deliberative process and attorney-client privileges) and Exemption 6 (which protects private personal information). See Myrick Decl. ¶¶ 22-23, 36-37; 5 U.S.C. § 552(b)(5), (b)(6). To evaluate the EPA's exemption claims, the NRDC selected a set of 120 records (reduced to 116 following additional disclosures by the agency) for which the EPA would provide a "Vaughn index" — a document that describes non-disclosed records in enough detail for a requester (and, often, a reviewing court) to assess the validity of an agency's assertions that the withheld records are actually exempt from disclosure under the statute. See Tallman Decl. ¶ 16; see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973); ACLU v. United States Dep't of Justice, 844 F.3d 126, 129 n.4 (2d Cir. 2016).

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The EPA now moves for summary judgment on the NRDC's claims, contending that its Vaughn index and affidavits establish that it properly withheld the challenged documents under Exemptions 5 and 6. The NRDC does not challenge the EPA's Exemption 6 claims. See NRDC Mem. 6. Instead, it contends that the agency has failed to demonstrate that: (1) it conducted an adequate search for responsive records; (2) its withholdings are justified under Exemption 5; (3) it disclosed all reasonably segregable, non-privileged factual information, as required by FOIA; and (4) it sufficiently articulated the reasonably foreseeable harms that disclosure would cause to the agency's exemption-related interests. The parties also disagree about whether documents beyond the 116 at issue here remain in dispute: The EPA contends that by selecting 120 records, the NRDC waived or abandoned its claims regarding the other approximately 950 records withheld in full or in part, an argument to which the NRDC strenuously objects.

Based on an initial review, the Court ordered the EPA to submit a sample of ten records in camera to assess its claim that it had disclosed all reasonably segregable, non-exempt information. It further ordered the agency to submit a supplemental affidavit or Vaughn index explaining with more specificity what harms to exemption-related interests the disclosure of the challenged records would cause. See ECF No. 53. The EPA did both.

"The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). To effectuate this purpose, FOIA mandates disclosure of agency records unless those records fall within certain enumerated exceptions, which "are to be interpreted narrowly in the face of the overriding legislative intention to make records public." Tigue v. U.S. Dep't of Justice, 312 F.3d

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70, 76 (2d Cir. 2002). Exemption 5 — the only exemption still at issue in this case — 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). "By this language, Congress intended to incorporate into the FOIA all the normal civil discovery privileges," including the attorney-client and deliberative process privileges. Hopkins v. U.S. Dep't of Hous. & Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991). To be protected by the deliberative process privilege, "a document must be both 'predecisional' and 'deliberative.'" Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999).

The exemptions notwithstanding, an agency must produce any non-exempt portions of a record that are "reasonably segregable" from portions that are exempt. 5 U.S.C. § 552(b). Additionally, "purely factual" material is generally not exempt from disclosure. See Grand Cent. P'ship, 166 F.3d at 482. Further, following amendments to the statute in 2016, "[a]n agency shall withhold information under [FOIA] only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection (b)." 5 U.S.C. § 552(a)(8)(A)(i) (roman numerals and dashes omitted). As discussed in detail later, this provision imposes an independent and meaningful requirement on agencies before they may withhold a record under one of FOIA's exemptions. See Judicial Watch, Inc. v. U.S. Dep't of Commerce, 375 F. Supp. 3d 93, 100 (D.D.C. 2019) ("[E]ven if an exemption applies, an agency must release the document unless doing so would reasonably harm an exemption-protected interest."); accord Rosenberg v. U.S. Dep't of Def., 342 F. Supp. 3d 62, 72, 78 (D.D.C. 2018).

Summary judgment is the procedural vehicle by which most FOIA actions are resolved. See, e.g., Grand Cent. P'ship, 166 F.3d at 478. "In resolving summary judgment motions in a FOIA case, a district court proceeds primarily by affidavits in lieu of other documentary or

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testimonial evidence." Long v. Office of Pers. Mgmt., 692 F.3d 185, 190 (2d Cir. 2012). As the Second Circuit has explained:

Summary judgment is warranted on the basis of agency affidavits when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.

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