976 F.2d 1429, 1435 (D.C. Cir. 1992) (documents reflecting an agency’s preliminary position
about how to exercise policy discretion are privileged).

Nonetheless, ETI raises several different challenges to the EPA’s invocation of the
deliberative process privilege under FOIA Exemption 5, ETI argues that the EPA cannot
withhold these documents under the deliberative process privilege because the EPA lacks the
statutory authority to regulate workplace exposure limits for nPB. ETI contends that the
Occupational Safety and Health Administration, not the EPA, has the statutory authority to
regulate workplace exposure limits for nPB. According to ETI, the analytical framework for the
deliberative process privilege assumes that the government agency has the power to make the
decision that is the subject of deliberation. ETIargues that if the government agency lacks
authority to make the decision in question the documents cannot be predecisional.

ETI cites no authority outside the context.of the law enforcement purpose exemption,
covered by the deliberative process privilege. ETI relies mainly on Weissman v. Central
Intelligence Agency, where the Court of Appeals for the District of Columbia held that the
Central Intelligence Agency (“CIA”) could not invoke the “law enforcement purpose” exemption
under FOIA because the CIA was barred by law from carrying out any law enforcement activity.
565 F.2d 692, 694-96 (C.A.D.C. 1977). Weissman, however, is inapposite.

On its face, the law enforcement exemption is limited to “records or information
compiled for law enforcement purposes.” 5 USC. § 552(b)(7). Thus, an essential element of
the law enforcement exemption is the requiremerit that the documents must have been generated

to serve that specific purpose. See, e.g., John Doe Agency v. John Doe Corp., 493 U.S. 146, 155

13


and 22 are described as email messages betweén the EPA and ICF Consulting. (id.) Documents
38 and 39-41 are described as drafts of notices of proposed rulemaking conceming nPB. (/d.
417.) Finally, documents 46-49 are drafts of multimedia presentations prepared by the SNAP
program concerning the evaluation of nPB. (Id. § 18.)

ANALYSIS

Summary judgment is proper when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of triable fact exists only if “the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Pugh v. City of
Attica, 259 F.3d 619, 625 (Ch Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 2510, 91 L.Bd.2d 202 (1986)).

The party seeking summary judgment has the burden of establishing the lack of any
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986). The party that bears the burden of proof on a particular issue,
however, may not rest on its pleadings but must affirmatively demonstrate that there is a genuine
issue of material fact. Id. at 324, 106 S.Ct. at 2553. A mere scintilla of evidence in support of
the non-movant’s position is insufficient. See Anderson, 477 US. at 252, 106 S.Ct, at 2512.

The court “considers the evidentiary record in the light most favorable to the non- moving
party, and draws all reasonable inferences in his.favor.” Lesch v. Crown Cork & Seal Co., 282

F.3d 467, 471 (7" Cir. 2002). The court accepts the non-moving party’s version of any disputed


In assessing the EPA’s evidentiary submissions, the Court must consider whether the
Vaughn index and accompanying declarations provide a sufficient description of the contested
information to establish that the information falls within the category of the claimed exemption.
See Terkel v. Kelly, 599 F.2d 214, 217 (7 Cir. 1979). In making this determination, the Court
should examine whether the Vaughn index and.declarations: (1) describe the withheld
documents and the justifications for nondisclosure with reasonably specific detail; (2)
demonstrate that the information withheld logically falls within the claimed exemption; and (3)
are not controverted by either contrary evidence in the record or by evidence of bad faith. See
Kimberlin y, Dept. of Treasury, 774 F.2d 204, 210 (7" Cir. 1985). Summary judgment in an
agency’s favor is proper when the Vaughn index and declarations are clear, specific, and
reasonably detailed, the information is not contradicted, and there is no evidence of agency bad
faith. See Matter of Wade, 969 F.2d 241, 246 (7" Cir. 1992) (“Without evidence of bad faith, the
veracity of the government’s submissions regarding reasons for withholding the documents
should not be questioned.”).

Having reviewed the Vaughn Index and accompanying declarations submitted by the
EPA, the Court concludes that they are sufficiently detailed to carry the EPA’s burden. The
Vaughn index and declaration identify the specific. documents withheld, describe the information
they contain, and do so in a detailed, non-conclusory manner. Moreover, the Vaughn index and
declarations do explain whether the documents contain reasonably segregable information that
may be released. Indeed, the EPA has released portions of sixteen of the documents at issue.
(See R. 19-1, Def.’s LR 56.1(b)(3)(A) Resp. J 14.) Thus, contrary to ETI’s suggestion, the

EPA’s document index is sufficiently detailed to_satisfy its burden under FOIA.


denial of ETI’s FOIA request. Indeed, Ms. Sheppard signed the February 14, 2002 letter denying
ETI’s FOIA request on behalf of Ms. Hufford. (See R. 24-1, Pl.’s LR 56.1(b)(3)(A) Resp. $ 9.)'

Second, ETI argues that the EPA’s search for documents responsive to the FOIA request
was inadequate. Specifically, ETI complains that the EPA contacted just three persons in
connection with its search for responsive documents even though other persons worked on the
evaluation of nPB.

The EPA bears the burden of establishing that its search for documents was adequate.
See Becker v. Internal Revenue Serv., 34 F.3d 398, 405 (7" Cir. 1994). There is no requirement,
however, that the government conduct an exhaustive search for every document conceivably
responsive to a FOIA request. See Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (the
government need not demonstrate that all responsive documents were found and that no other
relevant documents could possibly exist); Marks y.. United States Dep't of Justice, 578 F.2d 261,
263 (9" Cir. 1978) (the government need not search every division or office in response to a
FOIA request when the agency believes responsive documents are likely to be located in one
place). Instead, the government discharges its responsibility under FOIA where it makes “a good

faith effort to conduct a search for the requested records, using methods which can be reasonably

' BTI suggests that it lacks knowledge to admit or deny whether the denial was signed by Ms.
Sheppard on behalf of Ms. Hufford because it “has not been able to depose” her. (See R. 24-1,
Pl.’s LR 56.1(b)(3)(A) Resp. f 9.) ETI’s refusal to admit or deny this and other proposed
undisputed facts on that basis is not well taken. See LR 56.1(b)(3)(B) (“All material facts set
forth in the statement required of the moving party will be deemed to be admitted unless
controverted by the statement of the opposing party.”). If, as ETI claims, it needed to depose Ms.
Hufford in order to respond to the EPA’s statement of undisputed facts, ETI was free to seek
leave to conduct discovery pursuant to Federal Rule of Civil Procedure 56(f). In fact, ETI did
obtain time to conduct discovery before its response was due to the EPA’s motion for summary
judgment, but ETI apparently did not avail itself of this window of opportunity to depose Ms.
Hufford.


facts but only if it is supported by relevant, admissible evidence. Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560, 562 (7" Cir. 1996).

The courts typically grant summary judgment to the defendant in a FOIA case when the
government agency proves that it has fully discharged its obligations under FOIA, after the
underlying facts and the inferences to be drawn from them are construed in the light most
favorable to the party seeking disclosure. See Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344,
1350 (D.C. Cir. 1983). In order to discharge this burden, the “defending agency must prove that
each document that falls within the class requested either has been produced, is unidentifiable, or
is wholly exempt from the Act’s inspection requirements.” National Cable Television Ass'n,
Inc. v. Federal Communications Comm'n, 479 F.2d 183, 186 (D.C. Cir. 1973).

I, PROCEDURAL AND TECHNICAL ARGUMENTS FOR DISCLOSURE

ETI raises a series of procedural or technical reasons why the EPA has not satisfied its
burden under FOIA and why the documents at issue should, therefore, be disclosed. First, ETI
suggests that the documents at issue should be disclosed because the EPA’s denial of the FOIA
request was signed by Ms. Sheppard, an EPA staff person, rather than an EPA division director
and the denial was, therefore, ineffective. EPA regulations confirm that the authority to deny
FOIA requests “may be re-delegated only to persons occupying positions not lower than division
director or equivalent.” 40 C.F.R. § 2.113(b). ETI cites no authority, however, suggesting that
the failure to comply with Section 2.113 or other'similar agency regulations mandates disclosure.

Moreover, as the EPA points out, division director Druscilla Hufford did in fact authorize the


in good faith.”) (cited with approval by Patterson, 56 F.3d at 841). Accordingly, ETI’s
complaints about the adequacy of the EPA’s search for documents fail.

Third, ETI contends that disclosure is, warranted because the EPA has failed to explain
why the public interest is served by withholding the documents at issue. The EPA is not required
to supply such reasons, however, under the applicable EPA regulations. Instead, those
regulations simply state that in response to FOIA requests the EPA must make documents
available to the public unless it determines that the “public interest would not be served by
disclosure.” 40 C.F.R. § 2.113(a)(2). In this case, the EPA has submitted a declaration stating
that the Agency had determined that further disclosures would not serve the public interest in this
case. (See R. 9-1, Def.’s LR 56.1(a)(3) Statement, Ex. F, Friedrich Decl.)

ETI also suggests that the EPA violated its regulations because OCEMR was not
consulted about ETI’s FOIA request until after the EPA denied the request. The EPA points out,
however, that it obtained OCEMR approval prior to issuing its June 20, 2002 final appeal
determination concerning ETI’s FOIA request, which was all that EPA regulations required at the
time. See 40 C.F.R. § 2.115(b).

Fourth, ET] argues that the Vaughn index and declarations supplied by the EPA do not
describe the withheld documents in sufficient detail. Further, ETI argues that the index does not
explain why portions of the documents should not be disclosed and suggests that the EPA is

trying to conceal raw data which is not protected under the deliberative process privilege.”

> Significantly, ETI attacks the EPA’s Vaughn index and declarations as well as the substance
of the EPA’s deliberative process privilege claims. The Court addresses the former here and the
latter in Section Il, infra.



7
+
| Minute Order Form (06/97)

\Sy United States District Court, Northern District of Illinois

Name of Assigned Judge Amy J. St. Eve Sitting Judge if Other

or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 4650 DATE 3/10/2003
CASE Enviro Tech vs. US EPA
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION: _.
DOCKET ENTRY: ;
qd) im Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) a Answer brief to motion due. . Reply to answer brief due.
(4) QO Ruling/Hearingon__setfor_____at
(5) Qo Status hearing[held/continued to] [set for/re-set for] on__—sset for at
(6) a Pretrial conference[held/continued to] [set for/re-set for}on__setfor__—sat__
(7) aq Trial[set for/re-set for] on __at
(8) Qo [Bench/Jury trial] [Hearing] held/continued to __ at
(9) im} This case is dismissed [with/without] prejudice.and without costs[by/agreement/pursuant to]
OFRCP4(m) CO Local Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).
(ao) if [Other docket entry} Enter Memorandum Opinion and Order. The EPA’s motion for summary
judgment (R. 8-1) is granted, and ET!’s motion for summary judgment (R. 14-1) is denied.
Chon dd ©
~s4
dl) {For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

number of notices

MAR 1 42003
ff
Q

Notices mailed by judge’s staff.

Notified counsel by telephone.

v Docketing to mail notices.

Y | Mail AO 450 form. LUNI LIWLSIC’s*
Mua sn

Copy to judge/magistrate judge.

courtroom AS:L WY LI dvweu date mailed notice
THY deputy’s
initials 6+-4AS.
Vateuthhetedelvda H J
central Clerk’s Office mailing deputy initials



150-151, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29 (1975). The privilege serves to assure that
subordinates within an agency will feel free to provide the decision maker with their uninhibited
opinions and recommendations without fear of later being subject to public ridicule or criticism;
to protect against premature disclosure of proposed policies before they have been finally
formulated or adopted; and to protect against confusing the issues and misleading the public by
dissemination of documents suggesting reasons and rationales for a course of action which were
not in fact the ultimate reasons for the agency’s action. See Coastal States Gas Corp. v. Dep’t of
Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).

Under FOIA Exemption 5, the deliberative process privilege exempts “all papers which
reflect the agency’s group thinking in the process of working out its policy and determining what
its law shall be.” Sears, Roebuck & Co., 421 U.S. at 153, 95 S.Ct. at 1517. See also Army Times
Publ’g Co. v. Dep’t of Air Force, 998 F.2d 1067, 1070 (D.C. Cir. 1993); Quarles v. Dep’t of
Navy, 893 F.2d 390, 392 (D.C. Cir. 1990). Thus, the privilege protects documents reflecting
advisory opinions, recommendations, and deliberations comprising part of a process by which
governmental decisions and policies are formulated. Sears, Roebuck & Co., 421 U.S. at 150, 95
S.Ct. at 1516.

To qualify for the deliberative process privilege, a communication must be both
predecisional and deliberative. See Becker, 34 F.3d at 403; United States v. Farley, 11 F.3d
1385, 1389 (7" Cir. 1993); see also Texaco Puerto Rico, Inc. v. Dep’t of Consumer Affairs, 60
F.3d 867, 884 (1" Cir. 1995) (“[A] document must be (1) predecisional, that is, ‘antecedent to the
adoption of agency policy,’ and (2) deliberative, that is, actually ‘related to the process by which

policies are formulated.””) (quotation omitted). The agency invoking the privilege has the initial

11



Il. ETI’S SUBSTANTIVE ARGUMENTS FOR DISCLOSURE

ETI also argues that the documents should be disclosed because they are not covered by
any of the statutory exemptions to FOIA. Under FOIA, the federal government is required to
make its records available to the public unless the specific records sought fall within one of the
nine statutory exemptions. See United States Dep't of Defense v. Federal Labor Relations Auth.,
510 US. 487, 495, 114 S.Ct. 1006, 1012, 127 L.Ed.2d 325 (1994). Here, the EPA argues that the
documents at issue are shielded from disclosure by the deliberative process privilege pursuant to
FOIA Exemption 5.

Exemption 5 creates an exemption from FOJA’s disclosure requirements for
“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). The courts have
held that FOIA Exemption 5 incorporates civil discovery privileges, including the deliberative
process privilege. See United States v. Weber Aircraft Corp., 465 U.S. 792, 799, 104 S.Ct. 1488,
1492, 79 L.Ed.2d 814 (1984); see also Environmental Protection Agency v. Mink, 410 U.S. 73,
87, 93 S.Ct. 827, 836, 35 L.Ed.2d 119 (1973) (Congress recognized in enacting FOIA that the
“efficiency of Government would be greatly hampered if, with respect to legal and policy
matters, all Government agencies were prematurely forced to ‘operate in a fishbowl.””) (quoting
S.Rep. No. 813, 89" Cong,, 1" Sess. 9 (1965)).

The purpose of FOIA Exemption 5 is to protect the internal decision making processes of
the agency and safeguard the quality of agency decisions by preserving the confidentiality of
deliberations and encouraging frank and open discussion before a final agency decision is

determined. See National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132,

10


expected to produce the information requested.” Oglesby v. United States Dep't of the Army, 920
F.2d 57, 68 (D.C. Cir. 1990).

The information supplied by the EPA confirms that its search was adequate. ETI’s FOIA
request was limited to documents relating to,the EPA’s investigation by OAR into the toxicity of
nPB. (See R. 24-1, Pl.’s LR 56.1(b)(3)(A) Resp. 6.) At the time of the request, there were
three principal EPA staff members assigned to that investigation -- Ms. Sheppard, Mr. Cohen and
Ms. Birgfeld. (/d. 7.) ETI admits that Ms. Sheppard, Mr. Cohen and Ms. Birgfeld were
involved in the SNAP program’s evaluation of nPB but suggests that other employees might
reasonably be expected to have documents responsive to its FOIA request. (/d.) Significantly,
however, ETI does not provide evidence that other EPA employees were involved in the OAR’s
investigation of nPB and were, therefore, reasonably likely to have documents responsive to
ETIT’s FOIA request.

In sum, ETI has failed to supply evidenge that a more extensive search would have
uncovered additional documents responsive to its FOIA request. See, e.g., Patterson v. Internal
Revenue Serv., 56 F.3d 832, 841 (7" Cir. 1995) (“[I]n order to survive a motion for summary
judgment, Patterson still had the burden to show. ‘that the agency might have discovered a
responsive document had the agency conducted_a reasonable search.””). Nor has ETI shown that
the EPA conducted its search in bad faith. See, e.g., Miller v. United States Dept. of State, 779
F.2d 1378, 1381 (8" Cir. 1985) (“[OJnce the agency has shown by convincing evidence that its
search was reasonable, i.e., that it was especially geared to recover the documents requested, then

the burden is on the requester to rebut that evidence by a showing that the search was not in fact


EPA also provided ETI with an index (commonly referred to as Vaughn index) describing each
of the withheld documents and explaining the reasons for withholding. (/d.)

On March 5, 2002, ETI filed an administrative appeal with the EPA’s FOIA office, and
that appeal was forwarded to the EPA’s Office of the General Counsel for review. (See R. 24-1,
Pl.’s LR 56.1(b)(3)(A) Resp. {J 11.) On April 9, 2002, the EPA released eleven documents
previously withheld; released four portions of four other documents previously withheld; and
clarified its February 14, 2002 response. (/d. { 12.)

Pursuant to the EPA’s regulations, the EPA’s Office of the General Counsel referred the
documents withheld under FOIA Exemption 5.to the EPA Office of Communications, Education,
and Media Relations (“OCEMR”) for a determination whether the public interest would be
served by a discretionary disclosure of the documents at issue. (See R. 24-1, Pl.’s LR
56.1(b)(3)(A) Resp. § 14.) On June 19, 2002, OCEMR determined that the public interest would
not be served by the disclosure of the documents, (/d.) On June, 20, 2002, the EPA’s Office of
the General Counsel denied ETI’s administrative appeal. (/d. J 15.)

ETI filed suit challenging the EPA’s denial of its FOIA request on June 28, 2002. At
issue in this lawsuit are the following 37 documents from the EPA’s Vaughn index: 3, 4, 6-12,
16-19, 21-26, 31-34, 36-43, and 45-49. (See R. 19-1, Def.’s LR 56.1(b)(3)(A) Resp. { 14.)
Documents 3, 6, 11, 26, 29, 31 and 34 are described as draft reports prepared by ICF Consulting
for use in the SNAP program’s evaluation of nPB. (/d. 15.) Documents 4, 7-10, 12, 16, 25, 32,
33, 36, 37 and 42 are described as memoranda transmitting the draft reports prepared by ICF
Consulting. (/d.) Documents 17, 23 and 24 are described as email messages between the SNAP

program and the United States Centers for Disease Control. (/d. § 16.) Documents 18, 19, 21



n. 6, 110 S.Ct. 471, 477 n.6, 107 L.Ed.2d 462 (1989). In Weissman, the Court of Appeals held
that the documents could not have been generated for a law enforcement purpose because the
CIA was barred by law from undertaking such activities. Jd., 565 F.2d at 695.

The deliberative process privilege under Exemption 5, however, lacks an equivalent hook
that might restrict the exemption to only those. documents relating to specifically authorized
agency activities. Exemption 5 itself contains no language restricting its application to only
those agency activities specifically authorized by Congress. Further, ETI has cited no authority
purporting to limit the deliberative process privilege to only authorized agency decisions.
Weissman itself does not support such a limitation on the deliberative process privilege. Indeed,
subsequent cases have refused to extend the Weissman rule relating to ultra vires activities to
other FOIA exemptions. See, e.g., Navasky v. Central Intelligence Agency, 499 F.Supp.269, 274
(S.D.N.Y. 1980 (“[A] claim of activities ultra vires the CLA charter is irrelevant to a an
exemption 3 claim.”); Edwards v. Central Intelligence Agency, 512 F.Supp. 689, 694 (D.D.C.
is incorrect, the information is still exempt [under FOIA Exemptions 1 and 3].”).

ETI also argues that the EPA waived any protection over the documents at issue by
a memorandum prepared by Jeffrey R. Holmstead of the EPA dated J uly 19, 2002 that explains,
among other things, why the EPA expanded its review to determine a recommended workplace
exposure limit for nPB, whether setting a workplace exposure limit is within the EPA’s authority,
and the scientific rationale for the EPA’s proposed workplace exposure limit to 25 parts per

million for nPB. (See R. 16-1, Pl.’s Supp. Mem. in Support of Mot. for Summ. J., Ex. 1.)

14



CONCLUSIO
The EPA’s motion for summary judgment (R. 8-1) is granted, and ETI’s motion for
summary judgment (R. 14-1) is denied.

DATED: March 10, 2003 ENTERED:

[ing] B.S

AMY J.
United St: District Court Judge

16


chemical. (/d. 4.) EPA staff worked with ICF Consulting to develop a draft report, and in May
2002, a final draft report was made available to the public for review and comment. (/d.)

ETI is an IIlinois-based corporation that markets nPB-based industrial solvents under the
trade name Ensolv. (See R. 19-1, Def.’s LR 56.1(b)(3)(A) Resp. ¥ 1.) On January 23, 2002, ETI
made a FOIA request to the EPA for all documents concerning “the toxicity or
investigation/evaluation of the toxicity of n-propyl bromide.” (See R. 24-1, Pl.’s LR
56.1(b)(3)(A) Resp. $f 1-2.) The FOIA request was addressed to Margaret Sheppard, an
environmental scientist in the GPD.

After she received the FOIA request, Ms. Sheppard contacted ETI to seek clarification
concerning the scope of the request. (See R. 24-1, Pl.’s LR 56.1(b)(3)(A) Resp. | 6.) She
confirmed that ETI’s FOIA request was limited to the SNAP program’s evaluation of nPB. (/d.)
Three EPA staff members were the principal employees assigned to work on the SNAP
program’s evaluation of nPB -- Ms. Sheppard, Jeff Cohen and Erin Birgfeld. (/d. 7.) These
employees searched for responsive documents in their individual paper files, group files within
the SNAP program’s offices, their desktop computers, the SNAP program’s local area network,
and their electronic mail systems. (/d.)

On February 14, 2002, the EPA granted in part and denied in part ETI’s FOIA request.
The EPA released copies of 31 documents and withheld 49 documents. The EPA withheld two
documents containing confidential business information pursuant to FOIA Exemption 4,

5 U.S.C. § 552(b)(4), and 47 documents covered by the deliberative process privilege pursuant to

FOIA Exemption 5, 5 U.S.C. § 552(b)(5). (See R. 24-1, Pl.’s LR 56.1(b)(3)(A) Resp. ] 9.) The


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ENVIRO TECH INTERNATIONAL, INC., )
Plaintiff, ;
v. } No. 02 C 4650
UNITED STATES ENVIRONMENTAL }
PROTECTION AGENCY, )
Defendant. }

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge

Defendant the United States Environmental Protection Agency (“EPA”) has moved for
summary judgment on Plaintiff's claim under the Freedom of Information Act, 5 U.S.C. § 552
(“FOIA”), seeking documents relating to the EPA’s investigation into the toxicity of n-Propyt
Bromide. Plaintiff Enviro Tech International, Inc. (“ETI”) has cross-moved for summary
judgment. For the reasons discussed below, the EPA’s motion for summary judgment is granted,
and ETI!’s motion for summary judgment is denied.

BACKGROUND

The EPA’s Global Programs Division (“tGPD”) has an initiative known as the Significant
New Alternatives Policy (“SNAP”) program, which seeks to identify and encourage the use of
safe alternatives to ozone-depleting substances. (See R. 24-1, Pl.’s LR 56.1(b)(3)(A) Resp. { 3.)
One of the chemicals the SNAP program is evaluating is n-Propyl Bromide (“nPB”). (/d.) In
2001, the SNAP program contacted ICF Consulting of Fairfax, Virginia to analyze the scientific

literature addressing the toxicity of nPB and to recommend a workplace exposure limit for the

DU



burden of showing that it applies. See Becker, 34 F.3d at 403; King v. Internal Revenue Serv.,
684 F.2d 517, 519 (7" Cir. 1982). The privilege is natrowly construed and does not protect, for
example, documents that merely explain an agency’s final decision. See Matte of Wade, 969
F.2d at 247. Further, purely factual material that does not reflect the agency’s deliberative
process is generally not protected from disclosure. See Bobkoski v. Board of Educ. of Cary
Consol. School Dist. 26, 141 F.R.D. 88, 91 (N.D. Ill. 1992).

The 37 documents at issue clearly satisfy both elements of the deliberative process
privilege under FOIA Exemption 5. The documents are predecisional because they were
prepared to assist the agency in preparing the recommendation for a workplace exposure limit for
nPB and the documents were generated before.the EPA made available to the public for review
and comments the final draft report containing that recommendation. See In re Consolidated
Litig. Concerning Int'l Harvester’s Disposition of Wi. Steel, Nos. 81 C 7076, 82 C 6895, 85 C
3521, 1987 WL 20408, at *6 (ND. Ill. Nov. 20, 1987) (documents are predecisional if they were
“generated while the agency was working toward a decision, not after the decision was reached”).

Further, the documents are deliberative because they relate to the process by which the
EPA arrived at the final draft report. The documents reflect internal discussions of proposals,
suggestions, and recommendations as well as early versions of the final draft report eventually
made available to the public. Such materials are routinely shielded from disclosure by the
deliberative process privilege under FOIA Exemption 5. See, e.g., King, 684 F.2d at 519
(“Generally, draft documents are considered predecisional and are exempted from disclosure if

they are deliberative in nature.”); Petroleum Information Corp. v. United States Dep’t of Interior,

12



Essentially, ETI contends that there is no justification for the EPA’s continued refusal to disclose
the 37 documents at issue because Mr. Holmstead’s memorandum has already made public the
EPA’s deliberations.

As the EPA points out, however, the courts have refused to find that the discretionary
disclosure of a document effectuates a waiver of other related documents. See, e.g., Mobil Oil
Corp. v. United States Environmental Protection Agency, 879 F.2d 698, 701 (9" Cir. 1989)
(“Implying such a waiver could tend to inhibit agéncies from making any disclosures other than
those explicitly required by law because voluntary release of documents exempt from disclosure
requirements would expose other documents in.the litigation to risk of disclosure. An agency
would have an incentive to refuse to release all exempt documents if it wished to retain an
exemption for any documents.”). The waiver rulés governing the deliberatively process privilege
are strictly construed and apply only where the document released summarizes exactly the
contents of other withheld documents. See, e.g., Washington Post Co. v. United States Dep't of
Air Force, 617 F. Supp. 602, 605 (D.D.C. 1985) (finding waiver because the disclosed document
“presented in outline form the entire contents” of the withheld document). In this case, however,
ETI has made no showing that Mr. Holmstead’s memorandum summarizes the contents of the
remaining 37 documents at issue. Therefore, theré is no basis for holding that the EPA has
waived the deliberative process privilege over those documents by voluntarily disclosing Mr.

Holmstead’s memorandum.’

> ETI also argues that the EPA waived any privilege over the documents at issue because Dr.
Karl Rozman reviewed a draft report on nPB by ICF Consulting. Dr. Rozman’s affidavit does
not explain what draft report he reviewed, the contents of the report, the persons with whom he
spoke from ICF Consulting, or the subject of their discussions. Such vague allegations are
insufficient to create a genuine issue of material fact.

15