The EPA did not do enough to meet its responsibility under the Freedom of Information Act (FOIA) when it provided a range of material in response to an FOIA request from the Attorney General (AG) of Utah regarding the Agency’s finding in 2009 that greenhouse gases (GHGs) endangered human health and the environment.  That’s the view of Judge Emmet G. Sullivan of the U. S. District Court for the District of Columbia, who reviewed an earlier decision in the case by a magistrate judge; magistrate judges are appointed by district judges to assist in the work of district courts. 

Sullivan found that the Agency had conducted a proper search for information requested before releasing “some records.”  However, for other material, Sullivan said EPA’s search was not adequate.  The judge also found that the Agency was justified in not releasing certain information, but had not adequately explained why other information was not released (Shurtleff v. EPA). 

2009 endangerment finding

The EPA has used the endangerment finding as the basis for issuing rules to limit emissions from mobile and stationary sources of GHGs.  In 2010, Mark Shurtleff, the Attorney General of Utah, submitted an FOIA request for documents to evaluate more fully how the EPA arrived at the finding.  According to Sullivan, the FOIA request was “extremely lengthy,” comprising 14 pages and 37 subparts.  In turn, 140 EPA employees searched and identified over 19,000 “potentially responsive” documents, identified 12,987 as responsive, released 8,200 in part and 4,445 in full, and withheld 342 in full. 

The Utah AG alleged the EPA did not conduct a proper search for all the information requested and that there was no justification under the FOIA for the Agency’s denial to release information that was available.

Three reasons for withholding

Judge Sullivan ruled on multiple matters, included the following:

• In response to the charge that the EPA failed to explain how its employees conducted searches, Sullivan stated that the Agency’s directions to employees were thorough for some materials.  In those instances, the Agency identified individuals likely to possess the data and sent detailed instructions to those individuals, including where to find the data and the time frame for producing the data.  Regarding other material, the judge said EPA’s search instructions lacked detail and made no references to the types of searches, search terms, methods, or processes to be used.  Accordingly, the judge ordered that the Agency conduct another search for some documents that were not disclosed.
• Sullivan upheld EPA’s decision not to search all the “e-mail chains” in which hundreds of EPA employees sent e-mails.  The judge was satisfied that the EPA properly identified those employees who were likely to have information relevant to the endangerment finding and those who would not possess relevant information.
• The EPA withheld documents pursuant to three FOIA privileges: 
  1. Deliberative process.  The EPA withheld material that it claimed related to the formulation of international climate policy by the Executive Branch.  The judge said there could be “no serious dispute” that the EPA properly withheld this material. 
  2. Attorney-client privilege.  The EPA withheld information that was subject to discussion between EPA attorneys and staff in the Agency’s Climate Change Division.  The plaintiffs charged that the EPA did not satisfy its burden of establishing that the records were confidential when created or remained confidential since.  Sullivan agreed and ordered that the EPA release the material or provide sufficient detail explaining why withholding was proper.
  3. Attorney work product doctrine.  Information developed between an attorney and a client in anticipation of litigation is protected from disclosure.  Sullivan states that the EPA was legitimately preparing material to defend the endangerment finding based on significant opposition expressed in public comments when the finding was proposed. 

In summary, regarding seven claims made by AG Shurtleff against the EPA response to the FOIA request, Judge Sullivan ruled in favor of the EPA in five responses and ordered the Agency to correct two other responses or more thoroughly explain its actions.

Shurtleff v. EPA