ELR Citation: ELR 21585
No(s). 92-1663 SSH (D.D.C. Jan 31, 1994)

The court holds that the U.S. Environmental Protection Agency (EPA) properly withheld, under the deliberative-process privilege, certain documents that a trade association requested under the Freedom of Information Act (FOIA), but the Agency must review and disclose segregable factual information from documents withheld in full. The documents criticize and comment on a U.S. Department of Transportation's National Highway Transportation Safety Administration (NHTSA) study on the safety of onboard refueling vapor recovery systems. The court first holds that the documents in dispute are predecisional because EPA identified them nearly five months before filing the final agency action on onboard controls. The court next holds that the documents in dispute were part of the Agency's deliberative process because they comprise opinions and recommendations on policy or legal matters regarding the merits of the NHTSA study and the safety of onboard gasoline vapor emissions control systems. Because the documents meet both the predecisional and the deliberative requirements, the court holds that EPA may properly invoke the deliberative-process privilege as a justification for withholding the documents under Exemption 5 of FOIA. The court then holds, however, that EPA must review documents that it withheld in full and disclose segregable factual portions or provide explanations why such factual material may be withheld.

Counsel for Plaintiff
Douglas Moore, Alice Crowe
American Petroleum Institute
1220 L St. NW, Washington DC 20005
(202) 682-8000

Counsel for Defendant
Jeffrey T. Sprung, Ass't U.S. Attorney
U.S. Attorney's Office
555 4th St. NW, Washington DC 20001
(202) 514-7566