Pebble Limited Partnership v. United States Environmental Protection Agency

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
PEBBLE LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
vs. )
)
UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY, )
) No. 3:14-cv-0199-HRH
Defendant. )
_______________________________________)
O R D E R
Motion for Summary Judgment; Partial Disposition
Defendant moves for summary judgment pursuant to Rule 56, Federal Rules of
Civil Procedure.1 The motion is opposed. Oral argument has not been requested. The
court sought and has received and considered the parties’ comments2 on a tentative
disposition of defendant’s motion for summary judgment, which was distributed
August 4, 2015.3
This is an action brought pursuant to the Freedom of Information of Act (FOIA),
5 U.S.C. § 552. Plaintiff’s FOIA request seeks information having to do with its plans
for a very large mining project: development of the Pebble Deposit or Pebble Project. In
Pebble Ltd. Partnership v. Environmental Protection Agency, No. 3:14-cv-00171-HRH,
1Docket No. 34.
2Docket Nos. 51 and 52.
3Docket No. 50.
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the “-0171 case,” Pebble and the EPA disagree sharply over the EPA’s initiation of
proceedings pursuant to 33 U.S.C. § 404(c) in advance of any application by Pebble for a
Title 33 dredge-and-fill permit. In particular, in the -0171 case, Pebble contends that the
defendants have violated the Federal Advisory Committee Act (“FACA”), 5 U.S.C.
App. II, § 1, et seq. In its motion for summary judgment in this case, EPA contends that it
has complied with its FOIA obligations. Plaintiff disagrees. There are two, over-arching
issues presented by EPA’s motion for summary judgment: first, the adequacy of EPA’s
search for responsive documents and, second, the assertion by EPA of FOIA
Exemptions 5 and 6 with respect to certain documents. 5 U.S.C. § 552(b)(5) and (b)(6).
Adequacy of Search
The search undertaken by the EPA is fully described in the affidavit of David
Allnutt,4 EPA’s Director of the Office of Ecosystems, Tribal and Public Affairs.
Appended to his declaration is voluminous documentation supporting his description of
the search the EPA undertook. Mr. Allnutt amplifies his explanation of EPA’s search by
a supplemental declaration.5 After the EPA’s initial disclosures and interaction between
the parties, additional documents were discovered and the additional documents were
produced. Negotiations between the parties continued, and a possible source of further
records was located.6
Plaintiff contends that EPA’s search parameters were inadequate. The court is
unpersuaded. The interactions between plaintiff and various EPA personnel were broad
and extensive. EPA had no central or uniform regime for the perpetuation of the kind of
4Docket No. 36.
5Docket No. 43.
6Id., ¶¶ 9-11.
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records plaintiff seeks. The Allnutt declarations show that EPA’s search was
appropriately designed to retrieve relevant information from the various files maintained
by EPA employees who were the subject of plaintiff’s request. The fact that EPA’s
Mr. North may have rendered some of his communications inaccessible due to encryption
may require further attention in the -0171 case; but that circumstance does not render
EPA’s search inadequate.
The fact that over time EPA located and released additional documents subsequent
to its initial response to plaintiff’s FOIA request does not undermine the court’s
confidence in the search undertaken by the EPA. On the contrary, the fact that the EPA
continued to work cooperatively with representatives of Pebble reassures the court that
the EPA did not purposefully withhold any records that should have been made available.
Plaintiff points out that the EPA’s responses did not include any emails from
former EPA Administrator Jackson’s or Phillip North’s personal email accounts. But the
Allnutt declaration shows that the EPA’s search of its records included communications
of former employees.7 If Jackson or North used personal facilities to send email or other
communications to an EPA account, those communications would have been captured by
the EPA’s search. On the other hand, if Jackson or North employed personal email
accounts to communicate with someone else’s personal email account about the Pebble
project, the EPA search would not have captured such communications. Such
communications, existing exclusively on private servers, are not within the EPA’s
possession, and the EPA cannot be said to have withheld documents not within its
possession. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136,
150-51 (1980).
7Allnutt Declaration (Apr. 17, 2015) at ¶¶ 11-14, 28, Docket No. 36.
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Plaintiff contends that the court should permit discovery to test the adequacy of the
EPA’s search. The court finds that the EPA’s search parameters were adequate and the
search has been ongoing. As Pebble recognizes, discovery in FOIA cases is sparingly
granted, and “may be granted if a plaintiff has made a sufficient showing of the agency
acting in bad faith, raised a sufficient question of an agency’s good faith, or when a
factual dispute exists and a plaintiff questions the affidavits submitted by the agency.”
Bangoura v. U.S. Dep't of Army, No. Civ. A. 05-0311, 2006 WL 3734164, at *3 (D.D.C.
Dec. 8, 2006).
The EPA’s presentation constitutes a prima facie showing of adequate response to
Pebble’s FOIA request. However, if prior to entry of final judgment in this case,
defendant has identified in the -0171 case additional documents responsive to Pebble’s
FOIA requests, those documents shall be produced for purposes of this case, irrespective
of whether they are subject to disclosure or production for purposes of the -0171 case.
Pebble has not come forward with evidence of bad faith or a countervailing showing that
undermines the court’s confidence in the adequacy of EPA’s search. Except as discussed
below, plaintiff’s request for discovery is denied.
FOIA Exemptions
FOIA exempts from its reach: “inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other than an agency in litigation
with the agency” and “personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy[.]” 5 U.S.C.
§ 552(b)(5) and (b)(6). Subsection (b)(5) is ordinarily referred to as the deliberative
process privilege, and the EPA has segregated documents as to which it claims this
privilege. As a proposed resolution to the parties’ disagreement about the deliberative
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process exemption, EPA offers to submit to the court for in camera review unredacted
versions of the documents described in EPA’s Vaughn index.8 Similarly, plaintiff
contends that the court should review the withheld documents in camera.9
In their comments with respect to the court’s tentative decision, the parties have
refined their proposals with respect to in camera examination of documents as to which
defendant claims a privilege. The court understands that the Vaughn index includes 247
documents, 130 of which were withheld in full and 117 or 118 were redacted. Defendant
suggests that the court employ a sampling process (a random selection of 10% of the
withheld documents) with the expectation that the parties could extrapolate from a ruling
on the sample of documents a resolution of all 247 documents. In the -0171 case, Pebble
has sought the production of 118 documents (which the court understands to be on the
Vaughn list) that were produced for purposes of this case in redacted form. Pebble would
have the court resolve the parties’ disagreements as to the partially redacted documents,
again with the expectation that those resolutions could be extended to effect a resolution
as to other disputed documents on the Vaughn list.
Encouraged by the suggestions of the parties that a privilege ruling on some of the
documents could be extrapolated to resolve other disputes, the court will undertake an in
camera review from the Vaughn list in the following fashion.
(1) The court will deal first with the 118 documents which are the
subject of Pebble’s production requests in the -0171 case. However,
the court will do so in the context of this FOIA case; and the court’s
8Memorandum of Law in Support of Defendant’s Motion for Summary Judgment,
n.10, page 41 of 53, Docket No. 35.
9Opposition to Motion for Summary Judgment, page 53 of 62, Docket No. 39.
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ruling will (without more from the parties) be extended to the -0171
case production requests.
(2) The documents which are to be examined by the court in camera
shall be submitted in both redacted and unredacted form. Those
documents shall be submitted to the court in camera at the same time
that defendant responds to Pebble’s production requests in the -0171
case. (To the extent that defendant agrees to production without
redaction of any of the 118 documents, they will obviously drop out
of the review process.)
(3) The court supposes that there will surely be a substantial number of
documents as to which defendant claims FOIA Exemption 5.
Therefore, counsel shall confer and, no later than the date on which
documents are to be delivered to the court in camera for review,
propose a briefing schedule for resolution of the FOIA Exemption 5
claims.
(4) As to Vaughn index documents withheld in their entirety, counsel
will please discuss defendant’s sampling proposal with a view to
including in defendant’s submission of documents for in camera
review (and briefing) a representative number of such documents
that have been withheld on the basis of FOIA Exemption 5.
After considering the parties’ comments on its tentative disposition, the court
concludes that it will be preferable to resolve the Vaughn index, FOIA Exemption 5
issues in this case prior to entry of a final judgment. However, it is the court’s intention
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to extend its privilege rulings to Pebble’s pending production request in the -0171 FACA
case.
With respect to FOIA Exemption 6, that matter was not raised in Pebble’s
complaint, nor is it addressed in its response to the EPA’s motion for summary judgment.
The court understands the matter to have been dropped.
Conclusion
Defendant’s motion for summary judgment is granted except as to the 5 U.S.C.
§ 552(b)(5) issue. Counsel and the court shall proceed with the FOIA Exemption 5 issues
as set out above. This partial disposition of defendant’s motion for summary judgment is
without prejudice to discovery relevant to the -0171 FACA case.
Dated at Anchorage, Alaska, this 24th day of August, 2015.
/s/ H. Russel Holland
United States District Judge
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