                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


ENVIRONMENTAL INTEGRITY PROJECT,
et al.,

                       Plaintiffs,

                       v.                                       Case No. 1:13-cv-01962-CRC

SMALL BUSINESS ADMINISTRATION, et al.,

                       Defendants.



                                     MEMORANDUM OPINION

       As the Court noted in its Memorandum Opinion of August 5, 2015, the Effluent

Limitation Guidelines (“ELGs”) are federal requirements that limit what toxins may be

discharged from coal-fired power plants. Plaintiffs Environmental Integrity Project, Earthjustice,

and Sierra Club filed Freedom of Information Act (“FOIA”) requests with the Small Business

Administration (“SBA”) and the Office of Management and Budget (“OMB”) for records

regarding OMB’s review of an Environmental Protection Agency (“EPA”) proposed update to

the ELGs. SBA and OMB provided hundreds of documents in response to the requests, but

withheld others based on the deliberative process privilege. Plaintiffs brought this action

challenging the agencies’ assertion of the privilege and their refusal to release allegedly

segregable factual information contained in the records they did release.

       In its Order of August 5, 2015, the Court granted summary judgment as to OMB, finding

its submissions sufficient to support its privilege assertion. The Court deferred ruling as to SBA,

however, because its affidavits and Vaughn Index were largely conclusory and lacked the

specificity needed to evaluate a claim of privilege. As a result, the Court ordered that SBA
provide its withheld documents to the Court for in camera review. Having reviewed each of the

eleven documents submitted by SBA, the Court concludes that the deliberative process privilege

applies to ten of those documents, and that the remaining document is unresponsive to Plaintiffs’

FOIA request. The Court will therefore grant the remainder of Defendants’ motion for summary

judgment in favor of SBA.

I.     Background

       This case stems from a proposed change in the Steam Electric ELGs, the regulations

limiting the amount of pollutants coal-fired power plants may discharge into rivers, streams, and

lakes. See Pls.’ Statement of Material Facts (“Pls.’ Statement”) ¶ 1. In April 2013, plaintiffs

submitted identical FOIA requests to SBA and OMB. Id. ¶ 7. The requests sought the release of

records in three categories:

       (1) all records exchanged and all records related to any meetings, telephone
       conversations, emails, or any other communications between [SBA/OMB] and the
       utility industry, representatives of the utility industry, trade group, special
       interests groups, and/or other non-governmental parties related to the Effluent
       Limitation Guidelines for the Steam Electric Generating Category; wastewater
       discharges from coal-fired power plants; and/or treatment technologies, or best
       available technology economically achievable (“BAT”) for wastewater discharges
       from coal-fired power plants since April 3, 2013;

       (2) all records exchanged and all records related to any meetings, telephone
       conversations, emails, or any other communications between [SBA/OMB] and the
       EPA; [SBA/OMB], Council on Environmental Quality; Executive Office of the
       President; and/or White House staff, including, but not limited to, Heather Zichal,
       Rob Nabors, and Denis McDonough during interagency review for EPA’s
       proposed Steam Electric ELGs Rule; and

       (3) all records related to handling of bottom ash wastewater, flue gas
       desulfurization (FGD) wastewater, and combustion residual leachate.

Compl. ¶ 36.

       In June 2013, SBA provided Plaintiffs all category (1) and (3) records, and eventually

released all but eleven category (2) records, which it withheld under FOIA Exemption 5. Pls.’



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Statement of Material Facts, ¶¶ 8–11. Not satisfied with the extent of SBA’s disclosures,

Plaintiffs filed this action in December 2013. In November 2014, Defendants moved for

dismissal or, alternatively, for summary judgment. In support of that motion, SBA submitted a

Vaughn index and a declaration from Claudia Rodgers, its FOIA Officer and Deputy Chief

Counsel. SBA also filed a supplemental declaration from Ms. Rodgers in January 2015.

II.    Standard of Review

       Congress passed FOIA “to pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” Am. Civil Liberties Union v. U.S. Dep’t of Justice, 655

F.3d 1, 5 (D.C. Cir. 2011). The statute imposes a general obligation on the government to

provide records to the public. 5 U.S.C. § 552(a). Although FOIA provides exemptions to this

general obligation to disclose, 5 U.S.C. § 552(b), “[t]he 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). Thus, FOIA “exemptions are ‘explicitly made

exclusive,’” Milner v. U.S. Dep’t of the Navy, 562 U.S. 562, 565 (2011) (quoting EPA v. Mink,

410 U.S. 73, 79 (1973)), and they “must be ‘narrowly construed,’” id. (quoting FBI v.

Abramson, 456 U.S. 615, 630 (1982)).

III.   Analysis

       SBA claims that the eleven documents it withheld are exempt from disclosure under

FOIA Exemption 5. That exemption permits an agency to withhold “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.” 5 U.S.C. § 552(b)(5). “Courts have construed this

exemption to encompass the protections traditionally afforded certain documents pursuant to




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evidentiary privileges in the civil discovery context, including materials which would be

protected under the attorney-client privilege, the attorney work-product privilege, or the

executive deliberative process privilege.” Formaldehyde Inst. v. U.S. Dep’t of Health & Human

Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989) (citations omitted).

       In order to obtain protection under the deliberative process privilege, the agency must

demonstrate that the materials are “both predecisional and part of the deliberative process.” Id.

(citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151–52). A predecisional document is

one prepared in order to assist an agency decisionmaker in arriving at a decision, and may

include “recommendations, draft documents, proposals, suggestions, and other subjective

documents which reflect the personal opinions of the writer rather than the policy of the agency.”

Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). A

document may be withheld “if ‘the disclosure of the materials would expose an agency’s

decisionmaking process in such a way as to discourage candid discussion within the agency and

thereby undermine the agency’s ability to perform its functions.’” Formaldehyde Inst., 889 F.2d

at 1122 (quoting Dudman Commc’ns Corp. v. U.S. Dep’t of Air Force, 815 F.2d 1565, 1568

(D.C. Cir. 1987)). Factual information, however, “may be protected only if it is inextricably

intertwined with the policy-making processes.” Soucie v. David, 448 F.2d 1067, 1077–78 (D.C.

Cir. 1971).

       In its August 5, 2015 Memorandum Opinion, the Court agreed with Plaintiffs that SBA’s

brief descriptions of its withheld documents were insufficient to justify invoking the deliberative

process privilege. Having reviewed SBA’s withheld documents, the Court is now in a position

to evaluate SBA’s claim of privilege. As discussed below, the Court finds that ten of the




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documents are subject to the deliberative process privilege, and the remaining document is non-

responsive to Plaintiffs’ request.

               A.      SBA Documents 1, 5, 6, 8, 9, 11, 12, 13, 14, and 16

        SBA documents 1, 5, 6, 8, 9, 12, 13, 14, and 16 are classic examples of the types of

communications that the deliberative process privilege is designed to protect. These documents

reflect SBA’s comments related to EPA’s methodology, timing, and additional factors for EPA

to consider; requests for clarification; draft calculations; analysis of EPA’s assumptions and

calculations; discussion of commenters’ critiques and questions; and suggestions for improving

the draft regulations. Each of these documents relates directly to the decisionmaking process and

either includes or describes SBA’s “recommendations, draft documents, proposals, [or]

suggestions” and “reflect[s] the personal opinions of the writer . . . .” Coastal States Gas Corp.,

617 F.2d at 866. Therefore, they fall squarely within the protection of FOIA Exemption 5.

       Document 11, which SBA describes as an email from Kevin Bromberg, SBA’s Assistant

Chief Counsel for Environmental Policy, “re: steam Electric meeting,” does not directly involve

any SBA recommendation, proposal, or suggestion. Releasing this document would, however,

likely expose aspects of SBA’s decisionmaking process. It discusses the format in which SBA

sought various EPA data and indicates how SBA was going about the process of developing its

comments. As a result, it is also subject to withholding under FOIA Exemption 5.

               B.      SBA Document 7

       The deliberative process privilege cannot shield Document 7 from disclosure. But

because its contents bear no relationship to Plaintiffs’ FOIA request, it is a non-responsive

document and need not be disclosed. SBA describes Document 7 as an email from Kevin

Bromberg “re Steam electric v3 april 1.” While the email’s subject line would appear to indicate




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some relationship to ELGs for the Steam Electric Generating Category, its content can best be

described as friendly banter. It has nothing to do with the subject matter of Plaintiffs’ FOIA

request. Additionally, while the text of some emails mentioning SBA’s comments were

appended to the bottom of Mr. Bromberg’s email, that text is duplicative of other documents

properly withheld pursuant to the deliberative process privilege. Therefore, while SBA may not

rely on FOIA Exemption 5 to withhold what Mr. Bromberg wrote in his email, as part of

Document 7, SBA may withhold Mr. Bromberg’s writing on the grounds that it is non-

responsive to Plaintiffs’ request.

IV.     Conclusion

        For the reasons stated above, the Court will grant the remainder of Defendants’ motion

for summary judgment in favor of SBA and deny Plaintiffs’ cross-motion for summary judgment

as to SBA. An appropriate order accompanies this Memorandum Opinion.



                                                             ________________________
                                                             CHRISTOPHER R. COOPER
                                                             United States District Judge


Date:    August 28, 2015




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