IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff, Civil Action No.
01-0981
(PLF)
v.
UNITED STATES DEPARTMENT
OF ENERGY, et
al.,
Defendants. CONSOLIDATED ACTIONS
__________________________________________
NATURAL RESOURCES DEFENSE
COUNSEL,
INC.,
Civil
Action No.
Plaintiff, 01-2545 (PLF)
v.
UNITED STATES DEPARTMENT
ENERGY,
Defendant.
__________________________________________
PLAINTIFF JUDICIAL WATCH, INC.’S OPPOSITION TO THE
MOTION FOR
SUMMARY JUDGMENT BY DEFENDANTS ENVIRONMENTAL
PROTECTION AGENCY AND DEPARTMENT
OF ENERGY
Plaintiff Judicial
Watch, Inc. (“JW”), by counsel, respectfully submits this opposition to the
Motion for Summary Judgment (“Def. Mot.”) filed by Defendants Environmental
Protection Agency (“EPA”) and Department of Energy (“DOE”). As grounds therefore, JW states as follows:
MEMORANDUM OF
LAW
I. Introduction.
This case concerns
Freedom of Information Act (“FOIA”) requests sent by JW on April 19, 2001 to
Defendants Department of Energy, Department of Agriculture, Department of
Commerce, Department of Interior, Department of Transportation, Department of
Treasury, Environmental Protection Agency, Federal Emergency Management Agency,
and Office of Management and Budget. When the Defendants failed to respond timely to JW’s FOIA
requests, JW was forced to file this lawsuit on May 9, 2001. At issue here is the motion for Summary
Judgment filed by Defendants EPA and DOE.
As discussed below,
while Defendants EPA and DOE have turned over some responsive documents to JW,
they are improperly withholding many others.
Because a close examination of the Defendants’ Vaughn Indexes demonstrates
that their claims of exemption cannot withstand scrutiny, JW respectfully
submits that Defendants EPA and DOE are not entitled to summary judgment as a
matter of law. Rather, the responsive
documents at issue must be turned over to JW without further delay.
II. Factual Background.
A. Plaintiff JW’s FOIA Request to
Defendant EPA.
On April 19,
2001, JW filed a FOIA request with Defendant EPA in the form of a letter sent
EPA’s FOIA officer. JW’s request sought
any and all documents that refer or relate to:
1. Bush Administration Energy Task Force (“The
Energy Policy Development Group”) and its deliberations.
2. Communications
to and from the Bush Administration Task Force.
3. Communications between members of the task
force and its administrators, Andrew Lundquist and Karen Knutson.
See Exhibit 1, attached hereto.
On June 26, 2001,
over two months after it had submitted its request, Defendant EPA responded to
JW by turning over 159 pages of responsive documents. Def. Mot at 10-11. Defendant
EPA made subsequent productions of 305 pages and 344 pages on September 6, 2001
and December 19, 2001, respectively. Id.
at 11. In its December 19, 2001
production, Defendant EPA admitted that it was withholding an additional 19,524
pages of responsive documents. Id. Pursuant to the Court’s March 5, 2002 order,
Defendant EPA subsequently turned over an additional 5,275 pages of
documents. However, Defendant EPA
continues to withhold a substantial number of documents responsive to JW’s FOIA
request.[1] Id. at 12.
B. Plaintiff JW’s FOIA Request to
Defendant DOE.
On April 19,
2001, JW filed with Defendant DOE a FOIA request in the form of a letter to
Defendant DOE’s FOIA officer. See Exhibit
2, attached hereto. JW’s document
request to Defendant DOE was identical to JW’s request to Defendant EPA. Defendant DOE initially responded to JW’s
request on May 16, 2001. Def. Mot. at
13; Declaration of Abel Lopez (“Lopez Dec.”) at ¶14. At that time, JW received approximately 40 pages of
documents. Lopez Dec. at ¶14. JW did not receive any
additional documents from Defendant DOE for nearly ten (10) months, and only
after the Court issued its March 5, 2002 Order. Pursuant to that order, Defendant DOE produced approximately
11,000 pages of documents to JW on March 25, 2002, 950 pages on April 10, 2002,
and 400 pages on April 25, 2002.
Lopez Dec. at ¶¶20-22. On May 21, 2002, Defendant DOE released
approximately 1,500 additional documents to JW. Id. at ¶28. All of
the documents that were released to JW by Defendant DOE were simultaneously
released to Plaintiff Natural Resources Defense Council (“NRDC”). Def. Mot at 12-14. However, Defendant DOE continues to withhold substantial
quantities of responsive documents.[2]
III. Argument.
A. Summary Judgment Framework.
In FOIA
litigation, as in all litigation, summary judgment is appropriate only when the
pleadings and declarations demonstrate that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of
law. Anderson v.
Liberty Lobby, Inc., 477 U.S.
242 (1986); Fed.R.Civ.P. 56(c). In
reviewing a motion for summary judgment under FOIA, the Court must view the
facts in the light most favorable to the requestor. Weisberg v. United States Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984).
B. The Freedom of Information Act
and Exemptions.
FOIA provides
a framework of liberal disclosure for agency records and “provides that all
documents are available to the public unless specifically exempted by the Act
itself.” Vaughn v. Rosen,
484 F.2d 820, 823 (D.C. Cir. 1973)(footnote omitted). Exemptions from disclosure “must be construed narrowly, in such a
way as to provide the maximum access consonant with the overall purpose of the
Act.” Id.
Where the
government asserts that a record is exempt from disclosure, “the court shall
determine the matter de novo and the burden is on the agency to sustain
its action.” 5 U.S.C. § 552 (a)(4)(B); United States Dep’t of Justice v. Landano, 508 U.S. 165, 171 (1993). A responsive record must be disclosed except where
the government meets its burden of showing that the record fits within one of the
specific exemptions. King v. United States Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). The most common device used by
agencies to attempt to meet this burden is the Vaughn Index. Vaughn, 484 F.2d at 826-28. Vaughn made clear that “courts will
simply no longer accept conclusory and generalized allegations of
exemptions.” Id. at 826. Vaughn thus requires that an agency
seeking to withhold responsive records under claims of exemption must file a declaration or index that provides
“detailed justification” and “[s]pecificity, [s]eparation, and [i]ndexing” of
its claimed exemptions. Id. at
826-27.
Where
an agency attempts to meet its burden by filing a Vaughn Index, the
index must be sufficiently detailed and divided into manageable segments. Davin v. United States Dep’t of Justice,
60 F.3d 1043, 1065 (3rd Cir. 1995); Hayden v. NSA, 608 F.2d 1381 (D.C. Cir. 1979). The description
must enable the requestor and the court “to derive from the index a clear
explanation of why each document or portion of a document withheld” should be
exempt from disclosure. Jones v. FBI,
41 F.3d 238, 242 (6th Cir. 1994).
Further, the Vaughn Index must indicate that any reasonably
segregable information has been disclosed.
Patterson v. IRS, 56 F.3d 832, 839 (7th Cir. 1995).
C. Standards Governing the
Deliberative Process Exemption.
FOIA contains
nine categories of exemptions, which are set out in 5 U.S.C. §552(b)(1) through (b)(9). In this case, Defendants are attempting to
withhold documents responsive to JW’s FOIA requests pursuant to exemptions set forth at 5 U.S.C. §552(b)(2)
(Internal Agency Procedures), (b)(5) (Civil Discovery Privileges), and (b)(6)
(Personal Privacy). JW challenges only
Defendants’ claims of exemption under (b)(5), which is asserted for the great
majority of the responsive documents at issue.
Exemption 5 of FOIA
concerns records that are: “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). This provision exempts from disclosure those
records normally privileged in the civil discovery context. While this statutory language has been
interpreted broadly to incorporate “all
civil discovery rules into FOIA [Exemption 5]” (Martin v. Office of Special Counsel, 819 F.2d 1181, 1185 (D.C. Cir. 1987)), each
discovery rule or privilege asserted by an agency in any particular case must
be construed narrowly to effect FOIA’s overall purpose of liberal
disclosure. As the Supreme Court has
noted:
Since virtually any document not privileged may be
discovered by the appropriate litigant, if it is relevant to his litigation,
and since the Act clearly intended to give any member of the public as much
right to disclosure as one with a special interest therein, it is reasonable to
construe Exemption 5 to exempt those documents, and only those documents,
normally privileged in the civil discovery context.
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148-49 (1975) (emphasis added)
(citations omitted); see also Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993) (“[Exemption 5],
like all FOIA exemptions, must ‘be construed as narrowly as consistent with
efficient government operation.’”). The
Supreme Court has recognized three primary privileges/protections covered by
this exemption: (1) the deliberative process privilege; (2) the attorney-client
privilege; and (3) the attorney work-product doctrine. Id. However, Defendants appear to be asserting
the deliberative process exemption only.
The deliberative
process exemption protects the “decision making processes of government
agencies.” Id. In order to invoke the deliberative process
privilege properly, an agency must demonstrate that a record is: (1) pre-decisional (i.e., prepared
prior to the adoption of agency policy); and (2) deliberative in nature (i.e.,
made in the course of “making recommendations or express[ing] opinions on legal
or policy matters”). Vaughn v. Rosen,
523 F.2d 1136, 1144 (D.C. Cir. 1975).
The agency bears the burden of demonstrating that the record satisfies
both requirements. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
In deciding whether
recommendations are pre-decisional, an agency must establish “what deliberative
process is involved and the role played by the documents in issue in the course
of that process . . ..” Coastal States Gas Corp., 617 F.2d at 868.
By contrast, the exemption does not apply to records which merely
implement the policy (Brinton v. Department of State, 636 F.2d 600, 605 (D.C. Cir. 1980); Nissei Sangyo America, Ltd. v. IRS, No. 95-1019, 1997 U.S. Dist. LEXIS 22473, at **23-24
(D.D.C. May 8, 1997)), or which are intended to explain the action the agency
has taken. Sears, 421 U.S. at 153-54; Judicial Watch, Inc. v. HHS, 27 F. Supp. 2d 240, 245 (D.D.C. 1998) (“deliberative
process privilege does not protect documents that merely state or explain
agency decisions”).
In determining
whether a document is “deliberative,” the U.S. Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”)
has held that the exemption covers “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., 617 F.2d at 866.
More recently, however, the D.C. Circuit narrowed its interpretation of
this exemption by adopting a standard which focuses on whether there is a
genuine likelihood that disclosure will cause harm to the decision making
process. Petroleum Information Corp. v. United States Dep’t of
the Interior, 976 F.2d 1429 (D.C.
Cir. 1992). In Petroleum Information
Corp., the Court identified the “key question” in Exemption 5 cases as
“whether disclosure would tend to
diminish candor within the agency” and indicated that this question must be
answered by “[i]nquiring whether the requested materials can reasonably be said
to embody an agency’s policy-informed or -informing judgmental process . .
..” Id. at
1435. The Court emphasized that
inquiring “whether the agency has plausibly demonstrated the involvement of a
policy judgment in the decisional process relevant to the requested documents
serves a further, complementary purpose; it enables us to contain Exemption 5
within its proper scope.” Id. at
1436. Thus, records involving more
routine decisions “over which the agency has no significant discretion” do not
fall within the protections of the privilege.
Id. Rather, to qualify
for protection under the deliberative process exemption, “the kind and scope of
discretion involved must be of such significance that disclosure genuinely
could be thought likely to diminish the candor of agency deliberations in the
future.” Id. at 1436 n.8.
D. Defendant EPA Failed to Meet Its Burden of Withholding
Records Pursuant to the Deliberative Process Exemption.
As to documents in the instant case,
Defendant EPA’s Vaughn index, has in many instances, provided a detailed
description of the withheld documents.
However, a close review of the index reveals numerous instances in which
Defendant EPA has not provided sufficient specificity to allow an
“adequate adversary testing” of the claimed exemption. Vaughn, 484
F.2d at 828. Further, Defendant EPA has
failed in some instances to demonstrate that the documents are pre-decisional
or deliberative by failing to identify the decisions to which the documents
pertain or the “the role played by the documents in issue in the course of that
process.” Coastal States,
617 F.2d at 868. Finally, Defendant EPA
also has failed to carry its burden of showing that disclosure of these
documents would actually harm “the process by which policy is
formulated.” Petroleum Information
Corp., 976 F.2d at 1435 (emphasis in original):
a. EPA 00781-00791: This document is described as
“Memorandum re: EPA comments on draft outlines.” It is dated February 14, 2001. This description is vague and
fails to the specify the role played by the document in the EPA’s decision
making process. The description also fails to explain precisely how disclosure
of this document would harm the process by which government policy is
formulated.
b. EPA 00832-00845: This document is described simply as
“Draft Chapter of the NEP Report re: Specific language suggested for
discussion.” No author is given. This description is vague and fails to the
specify the role played by the document in the EPA’s decision making process,
or the topic being discussed. The description also fails to explain precisely
how disclosure of this document would harm the process by which government
policy is formulated.
c. EPA 00847-00853: This document is described simply as
“Draft Chapter of the NEP Report re: Specific language suggested for
discussion.” The author is listed simply as “USDA staff.” This description is
vague and fails to the specify the role played by the document in the EPA’s
decision making process, or the topic being discussed. The description also
fails to explain precisely how disclosure of this document would harm the
process by which government policy is formulated.
d. EPA 00855-00874: This document is described simply as
“Draft Chapter of the NEP Report re: Specific language suggested for
discussion, with handwriting.” No author is given. This description is vague
and fails to the specify the role played by the document in the EPA’s decision
making process, or the topic being discussed. The description also fails to
explain precisely how disclosure of this document would harm the process by which
government policy is formulated.
e. EPA 00926-00944: This document is described simply as
“Draft Chapter of the NEP Report re: Specific language suggested for
discussion.” No author is given. This description is vague and fails to the
specify the role played by the document in the EPA’s decision making process,
or the topic being discussed. The description also fails to explain precisely
how disclosure of this document would harm the process by which government
policy is formulated.
f. EPA 002792-002974: This document is undated and no
author is given. It is described as: “Outline re: EPA Staff comments on other
agency recommendations for NEP report for review and consideration by EPA
management.” This description is vague and fails to the specify the role played
by the document in the EPA’s decision making process, or the topic being
discussed. The description also fails to explain precisely how disclosure of
this document would harm the process by which government policy is formulated.
g. EPA 002987-002988: No author is given for this
document. It is also vaguely described as “Agenda re: 3/6/01 NEPDG meeting.”
This description is vague and fails to the specify the role played by the
document in the EPA’s decision making process, or the topic being discussed.
The description also fails to explain precisely how disclosure of this document
would harm the process by which government policy is formulated.
h. EPA 004220: This document is undated and no
author is provided. It is described simply as “Portion of e-mail message re:
Facts on the NSR effort.” This description is particularly vague and fails to
the specify the role played by the document in the EPA’s decision making
process, or the topic being discussed. The description also fails to explain
precisely how disclosure of this document would harm the process by which
government policy is formulated.
i. EPA 005580-005584: This document is described as
“E-mail message w/attachment re: New 1-pagers for Administrator.” This
description is particularly vague and fails to the specify the role played by
the document in the EPA’s decision making process, or the topic being
discussed. The description also fails to explain precisely how disclosure of
this document would harm the process by which government policy is formulated.
j. EPA 007135: This document is described as
“E-mail message (w/o attachment) re: NSR piece.” As stated the attachment is
not included. This description is particularly vague and fails to the specify
the role played by the document in the EPA’s decision making process, or the
topic being discussed. The description also fails to explain precisely how
disclosure of this document would harm the process by which government policy
is formulated.
k. EPA 007923-007925: This document is described as: MOBILE6
Draft; Re: Information suggested for discussion.” No author is given. This description is particularly vague and
fails to the specify the role played by the document in the EPA’s decision
making process, or the topic being discussed. The description also fails to
explain precisely how disclosure of this document would harm the process by
which government policy is formulated.
l. EPA 0010324-0010325: This document is described simply as
“Draft Q&A’s.” No author is given. This description is vague and fails to
the specify the role played by the document in the EPA’s decision making
process, or the topic being discussed. The description also fails to explain
precisely how disclosure of this document would harm the process by which
government policy is formulated.
m. EPA 0014625: This document is described simply as
“E-mail message Subject Action.” One paragraph of the one page document has
been withheld. This description is particularly vague and fails to the specify
the role played by the document in the EPA’s decision making process, or the
topic being discussed. The description also fails to explain precisely how
disclosure of this document would harm the process by which government policy
is formulated.
n. EPA 0014627: This document is described simply as
“E-mail message, Subject: [none given]. One paragraph of the one page document
has been withheld. This description is particularly vague and fails to the
specify the role played by the document in the EPA’s decision making process,
or the topic being discussed. The description also fails to explain precisely
how disclosure of this document would harm the process by which government
policy is formulated.
o. EPA 0014896-0014901: This document is described as:
“Briefing paper on energy policy options.” No author is given. This description
is particularly vague and fails to the specify the role played by the document
in the EPA’s decision making process, or the topic being discussed. The
description also fails to explain precisely how disclosure of this document
would harm the process by which government policy is formulated.
Because Defendant
EPA had failed to meet its burden of demonstrating that the deliberative
process exemption applies to these documents, it is not entitled to summary
judgment as a matter of law, and should be ordered to produced these responsive
records to JW without further delay.
E. Defendant DOE
Failed to Meet Its Burden of Withholding Records Pursuant to the
Deliberative Process Exemption.
Defendant
DOE’s Vaughn index falls woefully short of meeting Defendant DOE’s
burden of proof under the deliberative process exemption, especially when
compared to Defendant EPA’s Vaughn index. Plaintiff NRDC has amply demonstrated the many failures in
Defendant EPA’s Vaughn index, and JW will not repeat the NRDC’s
compelling arguments. Rather JW
respectfully refers that Court to the NRDC’s memorandum, which it incorporates
herein by reference.
In general,
however, Defendant DOE has provided only general and conclusory descriptions of
the withheld documents which do not provide sufficient specificity to allow an
“adequate adversary testing” of the claimed exemptions by JW. Vaughn, 484
F.2d at 828. In addition, Defendant DOE
has consistently failed to demonstrate that the records at issue are
pre-decisional or deliberative by failing to identify the decisions to which
they pertain or the role the records played in the course of any
decision-making process. Coastal States Gas Corp., 617 F.2d at 868.
Finally, Defendant DOE also has failed to demonstrate how disclosure of
the records at issue would actually harm “the process by which policy is
formulated.” Petroleum Information
Corp., 976 F.2d at 1435 (emphasis in original). By way of example, JW respectfully refers the Court to the
following entries in Defendant DOE’s Vaughn index:
a. DOE 3075: This document is described as an e-mail to
Peter Karpoff from Margot Anderson bearing the Subject: “Thanks for helping on
the NEP.” It is dated March 21, 2001. This description is vague and fails to
the specify the role played by the document in the DOE’s decision making
process. The description also fails to explain precisely how disclosure of this
document would harm the process by which government policy is formulated.
b. DOE 3090: This document is described as an e-mail to
Mary Beth Zimmerman from Margot Anderson bearing the Subject: “FW:DRAFT Energy
Efficiency recommendation.” It is dated March 30, 2001. This description is
vague and fails to the specify the role played by the document in the DOE’s
decision making process. The description also fails to explain precisely how
disclosure of this document would harm the process by which government policy
is formulated.
c. DOE 3107: This document is described as an e-mail to
Abe Haspel and Mary Beth Zimmerman bearing the Subject: “Distributed generation
demonstration project.” It is dated March 11, 2001. This description is vague
and fails to the specify the role played by the document in the DOE’s decision
making process. The description also fails to explain precisely how disclosure
of this document would harm the process by which government policy is
formulated.
d. DOE 3221: This undated and untitled document is
described simply as “Subject: CHP - St. Paul Minnesota and CHP -Industry.” This description is vague and fails to the
specify the role played by the document in the DOE’s decision making process.
The description also fails to explain precisely how disclosure of this document
would harm the process by which government policy is formulated.
e. DOE 3554: This document is described as an e-mail to
Margot Anderson from Nancy Johnson bearing the Subject: “Revised FE NEP papers
--Oil and Gas.”It is dated March 14, 2001. This description is vague and fails
to the specify the role played by the document in the DOE’s decision making
process. The description also fails to explain precisely how disclosure of this
document would harm the process by which government policy is formulated.
f. DOE 3557-3558: This undated document is entitled
“Access to Oil and Natural Gas Resources on Federal Lands.” No author is given.
This description is vague and fails to the specify the role played by the
document in the DOE’s decision making process. The description also fails to
explain precisely how disclosure of this document would harm the process by
which government policy is formulated.
g. DOE 3582-3583: This undated document is entitled “A
Four Pollutant Strategy for Existing Coal-fired Power Plants.” No author is
given. This description is vague and fails to the specify the role played by
the document in the DOE’s decision making process. The description also fails
to explain precisely how disclosure of this document would harm the process by
which government policy is formulated.
h. DOE 3651-3652: This undated document is entitled
“15 Tech Assistance Business.” No author is given. This description is vague
and fails to the specify the role played by the document in the DOE’s decision
making process. The description also fails to explain precisely how disclosure
of this document would harm the process by which government policy is
formulated. i. DOE
4143-4144: This document
dated March 8, 2001 is entitled “The Northeast Home Heating Oil Reserve.” No
author is given. This description is vague and fails to the specify the role
played by the document in the DOE’s decision making process. The description
also fails to explain precisely how disclosure of this document would harm the
process by which government policy is formulated.
j. DOE 4224-4225: This undated, untitled document is
described as “Subject: gas and oil prices are expected to remain high
throughout 2001.” No author is given. This description is vague and fails to
the specify the role played by the document in the DOE’s decision making
process. The description also fails to explain precisely how disclosure of this
document would harm the process by which government policy is formulated.
k. DOE 5444-5458: This document dated July 6, 2001 is
entitled “Chapter 5 -- Economic Impact of Energy Price Increases.” No author is
given. This description is vague and fails to the specify the role played by
the document in the DOE’s decision making process. The description also fails
to explain precisely how disclosure of this document would harm the process by
which government policy is formulated.
l. DOE 6438-6440: This document is described as an
e-mail to Joseph Kelliher from Robert Kripowicz bearing the Subject: “FW:
Railroad Issues.” It is dated April 3, 2001. This description is vague and
fails to the specify the role played by the document in the DOE’s decision
making process. The description also fails to explain precisely how disclosure
of this document would harm the process by which government policy is
formulated.
m. DOE 9992-9993: This is an undated document entitled
“Distributed Energy Resources Projects in California.” No author is given. This
description is vague and fails to the specify the role played by the document
in the DOE’s decision making process. The description also fails to explain
precisely how disclosure of this document would harm the process by which
government policy is formulated.
n. DOE 10043-10047: This is an undated document entitled
“Advanced Coal Technology Incentive” No author is given. This description is
vague and fails to the specify the role played by the document in the DOE’s
decision making process. The description also fails to explain precisely how
disclosure of this document would harm the process by which government policy
is formulated.
o. DOE 11465-11466: This document is described as an
undated note from Larry Mansueti and Paul Carrier to Kevin (Murphy) Re: DOE
comments of draft recommendations coming out of meeting on hydro licensing
group. This description is vague and fails to the specify the role played by
the document in the DOE’s decision making process. The description also fails
to explain precisely how disclosure of this document would harm the process by
which government policy is formulated.
p. DOE 11477-11478: This document is described as an
e-mail to Kevin Murphy and others from Lawrence Mansueti, dated April 10, 2001,
Re: “Draft Hydro Licensing Regs.”This description is vague and fails to the
specify the role played by the document in the DOE’s decision making process.
The description also fails to explain precisely how disclosure of this document
would harm the process by which government policy is formulated.
q. DOE 12461: This is an undated and untitled document. The
only description given is simply “XYZ Pipeline Project, Example Environmental
Schedule.” This description is vague and fails to the specify the role played
by the document in the DOE’s decision making process. The description also
fails to explain precisely how disclosure of this document would harm the
process by which government policy is formulated.
r. DOE 17967-17970: This is an undated and untitled
document. The only description given is simply “A Market Based Approach to
Energy Policy.” This description is
vague and fails to the specify the role played by the document in the DOE’s
decision making process. The description also fails to explain precisely how
disclosure of this document would harm the process by which government policy
is formulated.
s. DOE 18403-18405: This is an undated document entitled
“Energy Tax Proposals.” No other information is given. This description is
vague and fails to the specify the role played by the document in the DOE’s
decision making process. The description also fails to explain precisely how
disclosure of this document would harm the process by which government policy
is formulated.
t. DOE 21659-21661: This is an undated document entitled
“Electricity Fuel Shares -- 2000.” No other information is given. This
description is vague and fails to the specify the role played by the document
in the DOE’s decision making process. The description also fails to explain
precisely how disclosure of this document would harm the process by which
government policy is formulated.
Because Defendant
DOT has failed to meet its burden of demonstrating that the deliberative
process exemption applies, both to these particular documents and to all of its
documents in general, it is not entitled to summary judgment as a matter of law
and should be ordered to produced responsive records to JW forthwith.
IV. Conclusion.
For the foregoing
reasons, JW respectfully requests that the motion for summary judgment filed by
Defendants EPA and DOE be denied as a matter of law, and that Defendants be
ordered to produce the responsive documents at issue to JW without further
delay.
Respectfully
submitted,
JUDICIAL WATCH, INC.
__________________________
Larry Klayman, Esq.
DC Bar No. 334581
Paul J. Orfanedes, Esq.
DC Bar No. 429716
Suite 725
501 School Street, S.W.
Washington, DC 20024
(202) 646-5172
Attorneys for Plaintiff Judicial
Watch, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC., )
)
Plaintiff, ) Civil Action No.
) 01-0981
(PLF)
v. )
)
UNITED STATES DEPARTMENT )
OF ENERGY, et
al., )
)
Defendants. ) CONSOLIDATED
ACTIONS
__________________________________________)
)
NATURAL RESOURCES DEFENSE )
COUNSEL,
INC., )
) Civil
Action No.
Plaintiff, ) 01-2545 (PLF)
)
v. )
)
UNITED STATES DEPARTMENT )
ENERGY, )
)
Defendant. )
__________________________________________)
[PROPOSED] ORDER
Upon consideration
of the motion for summary judgment filed by Defendant Environmental Protection
Agency and Defendant Department of Energy, plaintiffs’ opposition thereto, and
the entire record herein, it is hereby
ORDERED that:
1. Defendants’
motion is DENIED.
Dated: ___________________________
Hon. Paul L. Friedman, U.S.D.J.
Copies to:
Larry Klayman, Esq.
Paul J. Orfanedes, Esq.
JUDICIAL WATCH, INC.
501 School Street, S.W.
Suite 725
Washington, DC 20024
Eric Robert Glitzenstein, Esq.
MEYER & GLITZENSTEIN
1601 Connecticut Avenue, N.W.
Washington, DC 20009
Sharon Buccino, Esq.
NATURAL RESOURCES DEFENSE COUNSEL,
INC.
1200 New York Avenue, N.W.
Suite 400
Washington, DC 20005
Anne Weismann, Esq.
Daniel Bensing, Esq.
U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs
Branch
P.O. Box 883
Washington, DC 20044
CERTIFICATE OF SERVICE
I hereby certify that on July 10,
2002, a true and correct copy of the foregoing PLAINTIFF JUDICIAL WATCH, INC.’S
OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS ENVIRONMENTAL
PROTECTION AGENCY AND DEPARTMENT OF ENERGY was served via first class, U.S.
mail, postage prepaid, on the following:
Eric Robert Glitzenstein, Esq.
MEYER & GLITZENSTEIN
1601 Connecticut Avenue, N.W.
Washington, DC 20009
Sharon Buccino, Esq.
NATURAL RESOURCES DEFENSE COUNSEL,
INC.
1200 New York Avenue, N.W.
Suite 400
Washington, DC 20005
Anne Weismann, Esq.
Daniel Bensing, Esq.
U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs
Branch
P.O. Box 883
Washington, DC 20044
__________________________
Jason Aldrich
[1] Defendant
EPA is withholding the great majority of these responsive pursuant to exemption
(b)(5). It also is withholding a small
number of documents pursuant to exemption (b)(6), but JW does not challenge
these particular claims of exemption under (b)(6).
[2] Like
Defendant EPA, Defendant DOE is withholding the great majority of these
responsive pursuant to exemption (b)(5).
Defendant DOE also is withholding a small number of documents pursuant
to exemptions (b)(2) and (b)(6). JW
does not challenge Defendant DOE’s claims of exemption under either (b)(2) or
(b)(6).