Opinion
Civil Action No. 03-2285, Section: I/2.
September 21, 2004
ORDER AND REASONS
Before the Court are the cross motions of defendant, the United States Department of Commerce, National Oceanic and Atmospheric Administration (NOAA), and plaintiff, WT Offshore, Inc., for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, defendant's motion for summary judgment is GRANTED, and plaintiff's motion is DENIED.
Background
On June 23, 2003, plaintiff, WT Offshore, sent NOAA by telefax a Freedom of Information Act (FOIA) request pursuant to 5 U.S.C. § 552, regarding WT Offshore's proposed pipeline between Garden Banks 139 and High Island A-389 and the EPA's National Pollutant Discharge. Elimination Systems general permit for the Western Portion of the Outer Continental Shelf of the Gulf of Mexico, including High Island A-389. The request asked for copies of any documents or information generated by NOAA and provided to the Environmental Protection Agency (EPA) or the United States Minerals Management Services (MMS), as well as copies of documents generated by the EPA or MMS and provided to NOAA. On August 13, 2003, after NOAA failed to respond within the twenty day time period provided by statute, WT Offshore filed a complaint challenging the failure of NOAA to provide a timely response to the FOIA request. Subsequently, NOAA provided an interim response to WT Offshore's request by letter dated August 25, 2003, providing redacted portions of the documents requested.On September 11, 2003, after providing its response, defendant then filed a motion to dismiss WT Offshore's complaint as moot. WT Offshore continued to pursue its administrative remedies, which led NOAA to supplement its responses on September 12, 2003, and October 3, 2003. Plaintiff then filed an opposition to the defendant's motion to dismiss and an amended complaint, adding a challenge to the sufficiency of NOAA's response. After the Department of Commerce denied plaintiff's administrative appeal in part and granted it in part, WT Offshore filed a second supplemental and amended complaint, challenging the validity of defendant's claimed FOIA exemptions.
Rec. Doc. No. 18.
Rec. Doc. No. 18. According to NOAA, the document released on October 3, 2003, was "inadvertantly omitted from the final letter dated September 12, 2003." Id., exhibit 1.
Rec. Doc. No. 18.
NOAA seeks summary judgment on the ground that the information withheld is exempt from disclosure pursuant to one or more of FOIA's enumerated exemptions. With its motion, NOAA includes the declaration of Michael Weiss, Deputy Director of the National Marine Sanctuary Program, National Ocean Service, National Oceanic and Atmospheric Administration, United States Department of Commerce, copies of the redacted documents released to plaintiff, and a Vaughn index. Subsequently, WT Offshore filed its cross motion for summary judgment, asserting that the withheld information is discoverable. Additionally, plaintiff contends that the documents and any claimed exemption should have been provided before it was necessary to file this lawsuit.
Rec. Doc. No. 18.
Rec. Doc. No. 18, exhibit 1.
Rec. Doc. No. 18, exhibit D.
Rec. Doc. No. 18, exhibit F. The Vaughn index refers to detailed descriptions of the withheld documents. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (requiring detailed justifications itemizing and indexing each withheld document in order to support claimed exemptions). The Vaughn index details the bases for withholding portions of eighteen documents, of which documents 3 and 4, documents 6 and 7, documents 10 and 11, and documents 12, 13, and 15 are substantively identical (only formatting or printing differences exist).
Rec. Doc. No. 20.
NOAA has withheld portions of eighteen documents. The question is whether these documents are exempt from the disclosure requirement of the FOIA. Summary judgment is the preferred method of resolving cases brought pursuant to the FOIA. Evans v. United States Office of Personnel Mgmt., 276 F. Supp.2d 34, 37 (D.D.C. 2003). The Court has examined the contested documents in camera.
Rec. Doc. No. 18. Portions of all eighteen documents are being partially withheld pursuant to the deliberative process privilege, 5 U.S.C. § 552(b) (5); in addition, portions of four documents (documents 14, 15, 16, and 17) are being withheld pursuant to the attorney-client privilege, 5 U.S.C. § 552(b)(5); information in one document (document 18) is additionally being withheld pursuant to the personal privacy exemption, 5 U.S.C. § 552(b)(6).
Analysis
I. FOIA's Legal StandardFOIA requires a federal agency, upon request, to disclose records in its possession, subject to nine exceptions. 5 U.S.C. §§ 552(a), (b). Disclosure of information requested pursuant to FOIA is required unless the requested record is clearly exempted from disclosure by the statute. NLRB v. Sears, Roebuck Co., 421 U.S. 132, 136, 95 S. Ct. 1504, 1509, 44 L. Ed. 2d 29 (1975). The exemptions are exclusive and should be narrowly construed. Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 48 L. Ed.2d 11 (1976); Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). Furthermore, there is a strong presumption in favor of disclosure. United States Dep't of State v. Ray, 502 U.S. 164, 173, 112 S. Ct. 541, 547, 116 L. Ed. 2d 526 (citing Rose, 425 U.S. at 361, 96 S. Ct. at 1599). Accordingly, the government bears the burden of proving that the withheld documents fall within an enumerated exemption. EPA v. Mink, 410 U.S. 73, 79, 93 S. Ct. 827, 832, 35 L. Ed. 2d 119 (1973); § 552(a) (4) (B) ("the burden is on the agency to sustain its action"). This court reviews the matter de novo. 5 U.S.C. § 552(a)(4)(B).
II. NOAA's Withholding Pursuant to § 552(b)(5)
Defendant first argues that withholding the information at issue is proper based on FOIA exemption 5 which encompasses both the attorney-client privilege and the deliberate process privilege. See 5 U.S.C. § 552(b)(5).
1. The Deliberative Process Privilege
The deliberative process privilege, exemption 5, exempts from mandatory disclosure communication that are "inter-agency or intra-agency memorandums [sic] or letters which 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). This provision shields those documents normally privileged in the civil discovery context. Sears, Roebuck Co., 421 U.S. at 149, 95 S. Ct. at 1515-16. Courts have interpreted subsection (b)(5) to include both the deliberative process privilege and the attorney-client privilege. Shermco Indus., Inc. v. Sec'y of the Air Force, 613 F.2d 1314, 1318 (5th Cir. 1980).
Once the documents in question are in fact determined to be inter- or intra-agency memoranda or letters, the inquiry turns to whether the exemption applies. See Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 1065, 149 L.Ed.2d 87 (2001) (requiring two conditions be satisfied for exemption 5 to apply: (1) a government agency must be the document's source, and (2) the document "must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it").
The government maintains that information contained in eighteen documents is protected from disclosure pursuant to the deliberative process privilege. The purpose of this privilege is to allow agencies to freely explore possibilities, engage in internal debates, and encourage frank discussion without fear of public scrutiny. Klamath Water Users Protective Ass'n, 532 U.S. at 8, 121 S. Ct. at 1066; Russell v. Dep't of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982).
Rec. Doc. Nos. 18 and 27.
In order for the deliberative process privilege to apply, a document must be both "predecisional" and "deliberative." Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975). A "predecisional" document is one prepared in order to assist the decision-maker in arriving at a decision and may include such things as proposals, draft documents, and other subjective documents that reflect opinions of the writer rather than agency policy. Coastal Gas States Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980); see also Shermco Indus., Inc. v. Sec'y of Air Force, 613 F.2d 1314, 1318 (5th Cir. 1980). While predecisional policy discussions are protected, the privilege does not protect purely factual material nor documents reflecting an agency's final policy decision. Sears, Roebuck Co., 421 U.S. at 151-154, 95 S. Ct. at 1517-18; Shermco, 613 F.2d at 1319. However, some factual materials will fall within the deliberative process exemption if the manner in which the facts were selected would reveal the deliberative process or if the facts are inextricably intertwined with the policy-making process. See Wolfe v. Dep't of Health and Human Services., 839 F.2d 768, 774 (D.C. Cir. 1988); Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1983). A document is "deliberative" if disclosure of the document at issue would expose an agency's decision-making process in such a way as to chill candid discussion within the agency and undermine the agency's ability to perform its functions. Dudman Communications Corp. v. Dep't of Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987).
The final decision at issue in these documents relates to whether to grant a permit to WT Offshore so that it can install a pipeline within the boundaries of the Flower Garden Banks National Marine Sanctuary. The government asserts that the records "contain subjective analyses, frank comments, and recommendations that fall within the umbrella of protection of the deliberative-process privilege." Through the declaration of Michael Weiss, the government also contends that the documents are predecisional in nature and "contain opinions and recommendations of NOAA employees . . ., which are an integral part of the decisionmaking process." WT Offshore suggests that, based on comments in communications between the employees of NOAA and the EPA, the agency's decision had, prior to generation of the documents at issue, already been made. WT Offshore argues that the documents are neither predecisional nor deliberative.
Rec. Doc. No. 18.
Rec. Doc. No. 18.
Rec. Doc. No. 18, exhibit 1.
Rec. Doc. No. 19, exhibits D, E, F, and G. Exhibits D, E, F, and G indicate that NOAA may have been nearing a decision, but WT Offshore presents no evidence that an official agency decision had been reached. Additionally, exhibits E (dated May 5, 2003), F (dated July 15, 2003), and G (dated June 23, 2003) appear to post-date any of the withheld material. Exhibit D (FOIA document 18) is the latest dated document, which contains predecisional language (revisions, suggestions, etc.).
Rec. Doc. No. 19.
The Court has conducted an in camera inspection of these documents and finds the deliberative process privilege exemption applies. The source of the documents is an employee of a government agency. As NOAA asserts, the portions of the eighteen documents withheld are both predecisional and deliberative. Any factual information contained in the withheld portions is organized or analyzed in such a way that it too may be classified as deliberative. The documents are filled with opinions, recommendations, considerations, concerns and insights of agency employees relating to WT Offshore's proposal to install a pipeline within the boundary of the marine sanctuary. The purpose of the deliberative process privilege is to encourage frank discussions and allow agencies the candor necessary to make decisions. This purpose would undoubtably be thwarted if NOAA was compelled to release the portions of the eighteen documents that would reveal NOAA's deliberative process. See Dudman Communications Corp., 815 F.2d at 1568.
WT Offshore, relying on Department of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 121 S. Ct. 1060, 149 L. Ed.2d 87 (2001), asserts that exemption 5 does not apply to documents generated by ultra vires activities or otherwise interested parties. WT Offshore's reliance on Klamath Water Users is misplaced. The Klamath Water Users Court held that documents authored by an agency's outside consultants, who had an interest in the subject matter, were not shielded by FOIA exemption 5. Id. at 7-16.
In the WT Offshore matter, the withheld portions of the documents were authored by agency employees within the course and scope of their employment. These documents are unmistakably inter- or intra-agency documents. Furthermore, no personal stake or agenda appears within the documents that would require the documents to be deemed non-agency documents.
2. Attorney-Client Privilege
The government also asserts that portions of four documents are protected from disclosure pursuant to the attorney-client privilege, which has been incorporated into FOIA exemption (b) (5). See Shermco Indus., Inc. v. Sec'y of the Air Force, 613 F. 2d 1314 (5th Cir. 1980). The scope of this FOIA privilege is coextensive with the scope of the attorney-client privilege in the civil discovery context. United States v. Weber Aircraft Corp., 465 U.S. 792, 799-800, 104 S. Ct. 1488, 1493, 79 L. Ed.2d 814 (1984). In federal courts, the attorney-client privilege operates when the communication is confidential and the communication is based on confidential information provided by the client (the agency official who solicits advice). Schlefer v. United States, 702 F.2d 233, 245 (D.C. Cir. 1983). The privilege is not limited to communications made in the context of litigation, but it extends to all situations in which an attorney's counsel is sought on a legal matter. Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). Nevertheless, like all privileges, the attorney-client privilege is narrowly construed. Id.
The government submits that these four documents relate to confidential communications between NOAA staff and its legal counsel. The Vaughn index corroborates the assertion that the information in these four documents consists of communications requesting legal advice and/or responses to those requests. The index further confirms that this information was not disclosed outside the attorney-client relationship. Plaintiff does not contest NOAA's assertion of the attorney-client privilege with respect to the withheld portions of these four documents.
Rec. Doc. No. 18, exhibit 1. Michael Weiss's declaration states:
"These documents consist of confidential communications between NOAA staff and their legal counsel (NOAA Office of General Counsel), about legal issues for which NOAA clients sought legal advice. The withheld information contains discussions of legal issues related to WT Offshore Inc.'s proposal to install a pipeline within the boundaries of the [marine sanctuary] for which the client sought legal advice. Disclosure would reveal confidential attorney-client communications on matters that the client has sought legal advice, which have not been disclosed outside th attorney-client relationship, and would interfere with the completeness and candor necessary to the attorney client relationship."
Rec. Doc. No. 18, exhibit F, Vaughn index.
Rec. Doc. No. 18, exhibit F, pp. 4-5.
Portions of three documents contain legal advice from NOAA's office of general counsel relating to the marine sanctuary. The portion of the fourth document withheld on the basis of the attorney-client privilege, document 14, reflects a specific legal question posed by the "client," an employee of NOAA. Because WT Offshore has not contested the government's assertion of the attorney-client privilege, the Court finds that these materials were properly withheld pursuant to this privilege. There is no basis to believe that the withheld portions of these documents were not properly exempted from disclosure.
The portions of documents 16 and 17 withheld pursuant to the attorney-client privilege are identical. Document 16 is an email reply that contains NOAA's general counsel's earlier email (the portion withheld in document 17) and contains a response to the legal advice. As discussed above, the Court has determined that NOAA appropriately withheld the response portion of document 16 pursuant to the deliberative process privilege.
III. NOAA's Withholding Pursuant to § 552(b)(6)
The privacy privilege, exemption 6, allows a governmental agency to withhold information contained in "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)(6).
NOAA withheld only a portion of one document, an employee's home phone number, on the basis of the privacy privilege, and the entire document has since come into WT Offshore's possession. Therefore, the issue of whether NOAA should release this document is moot, and it is unnecessary for the Court to balance the public's interests in disclosure against the individual's right to privacy. See Dep't of Air Force v. Rose, 425 U.S. 352, 372-73, 96 S. Ct. 1592, 1604-05, 48 L. Ed.2d 11 (1982).
This document was designated as Document 18 by Michael Weiss. Rec. Doc. No. 18, exhibit 1. Plaintiff received this document from another agency, without NOAA's authorization. Rec. Doc. No. 27. Plaintiff attached it as an exhibit to its memorandum in opposition to NOAA's motion for summary judgment. Rec. Doc. No. 19, exhibit E. The Court's in camera review has confirmed that the documents are the same.
C. WT Offshore's Untimeliness Claim and Request for Attorney Fees
WT Offshore claims that NOAA was untimely in its response to the FOIA request. However, a complaint based on an agency's failure to comply with the statutory time limits solely allows the FOIA plaintiff to bring its lawsuit without exhausting its administrative remedies. See 5 U.S.C. § 552(a)(6)(C); Voinche v. Federal Bureau of Investigation, 999 F.2d 962, 963 (5th Cir. 1993) (declaring that in an action based on § 552(a)(6)(C), "the issue is not whether the requestor should have ultimate access to the records. . . . The issue is under what time constraints administrative agencies should be compelled to act by the court"). Plaintiff's timeliness complaint was rendered moot when plaintiff received the requested agency records and/or the agency's responses claiming specific exemptions.
Finally, WT Offshore submits that it is entitled to attorney fees and court costs. FOIA allows for an award of reasonable attorney fees and costs to a prevailing party. 5 U.S.C. § 552(a)(4)(E) (stating "[t]he court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed"). Section 552(a)(4)(E) grants a trial court discretion in deciding whether to award attorney fees. Fifth Circuit law requires a two step analysis: first, the court determines whether the party seeking attorney fees substantially prevailed; second, the court considers four factors in deciding whether to award attorneys fees. See Texas v. Interstate Commerce Comm'n, 935 F.2d 728, 729 (5th Cir. 1991).
The four factors are: (1) the benefit to the public deriving from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant's interest in the records sought; and (4) whether the government's withholding of the records had a reasonable basis in law. Interstate Commerce Comm'n, 935 F.2d at 729.
It cannot be said that plaintiff has substantially prevailed in this action. After reviewing the documents in camera, the Court has determined that NOAA legitimately withheld the portions of the documents at issue. As such, the Court's discretion to award attorney fees ends because WT Offshore has not prevailed in any way. See Buckhannon Bd. Care Home, Inc. v. W. Va. Dep't of Health Human Resources, 532 U.S. 598, 604, 121 S. Ct. 1840, 1838, 149 L. Ed.2d 855 (2001) (recognizing that a judgment on the merits or a settlement enforced through a consent decree supports an award of attorney fees). Accordingly,
IT IS ORDERED that defendant's motion for summary judgment is GRANTED. IT IS FURTHER ORDERED that plaintiff's cross motion for summary judgment is DENIED. IT IS FURTHER ORDERED that plaintiff's cross motion for summary judgment with respect to the issue of attorney fees and costs is DENIED.