Public Employees for Environmental Responsibility v. Environmental Protection Agency Region 9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PUBLIC EMPLOYEES FOR : ENVIRONMENTAL RESPONSIBILITY, : : Plaintiff, : Civil Action No.: 14-2056 (RC) : v. : Re Document Nos.: 33, 38 : ENVIRONMENTAL PROTECTION : AGENCY, : : Defendant. : MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANT’S RENEWED M OTION FOR SUMMARY J UDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF’S RENEWED CROS S - M OTION FOR SUMMARY J UDGMENT I. INTRODUCTION Plaintiff Public Employees for Environmental Responsibility (“PEER”) brings this Freedom of Information Act (“FOIA”) suit seeking records from the Environmental Protection Agency (“EPA”) concerning EPA’s involvement with “suspected or actual toxic contamination at schools in the Santa Monica Malibu Unified School District” (“SMMUSD”). Compl. ¶ 5, ECF No. 2. In a prior Memorandum Opinion, this Court determined that EPA had appropriately withheld a small number of documents. 1 Pub. Emps. for Envtl. Responsibility v. EPA, 213 F. Supp. 3d 1, 22–24 (D.D.C. 2016). Finding, however, that EPA had not sufficiently explained its refusal to release most of the challenged records, the Court directed the agency to revise its 1 Specifically, the Court determined that EPA had properly withheld PRD 538, 935, 1438, and 1575 pursuant to FOIA Exemption 5 and the attorney-client privilege and PRD 367 pursuant to FOIA Exemption 6. Pub. Emps. for Envtl. Responsibility, 213 F. Supp. 3d at 22, 26. submissions to permit judicial consideration of whether the documents are protected by the claimed FOIA exemptions. See id. at 16. Since the Court issued its first opinion, the dispute has narrowed to nineteen documents, EPA has submitted supplemental Vaughn indices and additional declarations, and the Court has inspected all nineteen disputed documents in camera. Now before the Court are the parties’ renewed cross-motions for summary judgment. For the reasons set out below, the Court grants the agency’s motion for summary judgment except as to PRD 260, 1095, 1108 and 1617, which EPA must disclose in full, and PRD 940 and 1449, which EPA must disclose in part. II. BACKGROUND In August 2014, PEER submitted a request for records to EPA Region 9, pursuant to FOIA, 5 U.S.C. § 552. See Def.’s Statement of Material Facts (“EPA Statement”) ¶ 1, ECF No. 18-1; Pl.’s Statement of Material Facts (“PEER Statement”) ¶ 1, ECF No. 20. Specifically, PEER requested: [E]mails and other written communications and notes of all communications from October 1, 2013 to the present concerning or referencing suspected or actual toxic contamination with [polychlorinated biphenyls (“PCBs”)] between named EPA employees and any other EPA employees and (1) Senator Barbara Boxer, any member of her staff, or the staff of the Senate Environment and Public Works Committee which she chairs; (2) named members of the SMMUSD School Board; (3) named members of the Malibu City Council or the City Council as a group. EPA Statement ¶ 1; PEER Statement ¶ 1. PEER also sought a fee waiver, which EPA granted. See Decl. of Steven Armann (“Armann Decl.”) ¶ 16, ECF ...

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