Sierra Club v. U.S. Envtl. Prot. Agency

505 F.Supp.3d 982

Sierra CLUB, Plaintiff,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant.

Case No. 3:18--cv-03472-JCS

United States District Court, N.D. California.

Signed December 8, 2020

Andrea S. Issod, Elena Kathryn Saxonhouse, Sierra Club Enviornmental Law Program, Oakland, CA, for Plaintiff.

Adrienne Zack, United States Attorney's Office Northern District of California, San Francsico, CA, for Defendant.

ORDER REGARDING MOTION FOR CLAWBACK AND SUMMARY JUDGMENT

Re: Dkt. No. 80

JOSEPH C. SPERO, Chief Magistrate Judge

I. INTRODUCTION

This case arose from Plaintiff Sierra Club's request for documents from Defendant the Environmental Protection Agency (the "EPA") under the Freedom of Information Act ("FOIA"). Most of the parties’ disputes have been resolved by the Court or by the parties’ themselves, and the EPA has produced a large number of documents to Sierra Club. Among those documents was a series of emails exchanged among an EPA employee, a White House official, and several individuals who work in government affairs—in other words, as lobbyists—for the petroleum industry, discussing plans to meet for drinks. The EPA inadvertently produced those emails without redacting all instances of the lobbyists’ names and email addresses. The only remaining dispute in the case is the EPA's present motion to claw back the documents lacking those intended redactions.

The Court finds the matter suitable for resolution without oral argument and VACATES the hearing previously set for December 11, 2020. For the reasons discussed below, the EPA's motion is DENIED.¹

II. BACKGROUND

The emails at issue included Jeff Freeland (a Special Assistant to the President), Aaron Ringel (at the time, an EPA official),² and individuals whose names are not included in the record before the Court, but whose email addresses use the domain names of Valero, Marathon Petroleum, and the trade association American Fuel and Petrochemical Manufacturers. White Decl. (dkt. 80-1) Ex. 1. According to the EPA, those individuals "held mid-level management positions in the government relations departments of these organizations." White Decl. ¶ 4. The emails discuss plans to meet for drinks and to watch a hockey game, using a consistently informal tone suggesting that all individuals involved were friends. While Decl. Ex. 1. The emails do not indicate that the gathering would be for any purpose other than socializing; to the contrary, the Marathon Petroleum employee expressed interest in joining only "as long as we don't talk about RFS" (presumably, the EPA's "renewable fuel standards" program), to which Ringel and the Valero employee quickly and enthusiastically agreed. See id.

Sierra Club submitted a wide-ranging request under FOIA for communications by a number of EPA officials, including Ringel, with any person outside of the EPA. See Order Granting Pl.’s Mot. for Partial Summ. J. (dkt. 39) at 1–2.³ Sierra Club selected those officials based on its view that they "have a history of close ties with industries regulated by EPA or anti-environmental politicians or political groups." Opp'n (dkt. 81) at 2. The EPA initially withheld the emails now at issue entirely, but after Sierra Club filed this action, the Court ordered production of documents, and the parties conferred regarding their disagreements, the EPA produced the emails with many names, email addresses, locations, and other details redacted based on FOIA's Exemption 6, governing personal privacy. Stip. (dkt. 78) at 2. The EPA inadvertently failed to redact all instances of the petroleum lobbyists’ names and all instances of the first portions their email addresses⁴ in that production of documents. Id. ; see also White Decl. Ex. 1 (copies of the emails with additional redactions added to obscure the information presently in dispute). Sierra Club's counsel circulated the emails to "internal stakeholders within Sierra Club," and requested that the EPA disclose additional names and email addresses based on its failure to redact some such information. Stip. at 2. That request caused the EPA to realize that it had failed to redact the emails as intended, and the EPA informed Sierra Club of the error and provided corrected versions with further redactions. Id.

Sierra Club "agreed as a courtesy to not further share the inadvertently produced documents until the dispute over them was resolved." Id. The parties were unable to resolve their disagreement as to whether the information at issue was properly subject to withholding under FOIA, and Sierra Club took the position that it need not seek an order for production of the material because it already possessed the information and saw no "legal or ethical barriers to releasing the information should it come up." Id. at 2–3. After Sierra Club informed the EPA that Sierra Club would not agree to keep the information confidential indefinitely if no ruling was sought from the Court, the EPA filed the present motion. Id. at 3.

In its production of separate emails more clearly addressing the EPA's official business, the EPA did not redact the names or email addresses of petroleum lobbyists. See Zack Decl. (dkt. 80-3) Exs. A–C. The EPA has also released other emails containing the names and email addresses of non-government employees who corresponded with EPA personnel on matters unrelated related to EPA business. Saxonhouse Decl. (dkt. 81-1) Exs. A, B.⁵

The EPA now moves for an order requiring Sierra Club to destroy the emails inadvertently produced with incomplete redactions. See Mot. (dkt. 80) at 12. The EPA contends that the lobbyists’ names and email addresses fall within Exemption 6 because the lobbyists have a nontrivial privacy interest in that sort of personal information and there is no significant public interest in learning which individuals had been planning the happy hour. Id. at 7–11. Elizabeth White, director of the EPA office responsible for FOIA requests, states that Sierra Club has in the past provided records it obtained under FOIA to the press, and that "disclosure would expose these individuals to potential harassment from the media or potential harassment from individual actors." White Decl. ¶ 5. White notes that "[o]nline harassment or ‘doxxing’ is a reality," citing articles describing generally the practice of disseminating personal information to facilitate targeted harassment, but not linking that practice to Sierra Club disclosures, and providing no evidence or explanation of why the lobbyists at issue might be expected to receive such treatment. See id. ¶ 5 & n.3. The EPA cites a handful of district court decisions ordering FOIA plaintiffs to return or destroy inadvertently produced documents based on those courts’ inherent authority. Mot. at 11–12.

Sierra Club contends that Exemption 6 does not apply because the public interest in understanding government regulators’ relationships with industry lobbyists outweighs any de minimis privacy interest in the lobbyists’ names, and because the EPA has not shown any non-speculative risk of harm from disclosure. Opp'n at 6–12. Sierra Club argues that courts have rarely issued orders to claw back documents inadvertently produced under FOIA, and that even if the Court were to apply the standard for nonwaiver of privilege due to inadvertent production of documents from Rule 502(b) of the Federal Rules of Evidence —which Sierra Club contends is more permissive than is appropriate here—clawback would not be warranted because the EPA has not shown that it took reasonable efforts to prevent its own mistake. Id. at 4–6.

III. ANALYSIS

A. Overview of FOIA

"FOIA ‘was enacted to facilitate public access to Government documents.’ " Lahr v. Nat'l Transp. Safety Bd. , 569 F.3d 964, 973 (9th Cir. 2009) (quoting U.S. Dep't of State v. Ray , 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) ). Congress intended 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.’ " Id. (quoting John Doe Agency v. John Doe Corp. , 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) ). Thus, FOIA "provides public access to official information ‘shielded unnecessarily’ from public view and establishes a ‘judicially enforceable public right to secure such information from possibly unwilling official hands.’ " Id. (quoting Dep't of the Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ).

Under FOIA, "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). There is a "strong presumption in favor of disclosure." Ray , 502 U.S. at 173, 112 S.Ct. 541. Congress also recognized, however, that government agencies can have legitimate reasons for withholding information from the public. Id. Hence, FOIA "requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material." Milner v. Dep't of the Navy , 562 U.S. 562, 564, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). The nine exemptions are "explicitly made exclusive and must be narrowly construed." Id. at 565, 131 S.Ct. 1259. Further, under amendments to FOIA enacted in 2016, "even if information falls within the scope of a discretionary exemption, it cannot be withheld from the public unless the agency also shows that disclosure will harm the interest protected by that exemption." Ctr. for Investigative Reporting v. U.S. Dep't of Labor , 424 F. Supp. 3d 771, 780 (N.D. Cal. 2019) (citing 5 U.S.C. § 552(a)(8)(A)(i) ), appeal docketed , No. 20-16416 (9th Cir. July 23, 2020).

B. Exemption 6

Under Exemption 6—the only exemption asserted by the EPA in the present motion—FOIA "does not apply to ... personnel and medical files and similar...