ELR Citation: ELR 21591
No(s). 93-1768 (4th Cir. Jun 1, 1994)

The court vacates a district court's summary judgment for the U.S. Environmental Protection Agency (EPA) in a gasoline additive manufacturer's action under the Freedom of Information Act (FOIA) to compel EPA to produce records relating to the denial of a waiver of approval for the additive. The court first holds the district court erroneously ruled as a matter of law that EPA met its burden of proof that its search methodology used in responding to two FOIA requests was adequate. On the question whether a proper search was conducted of EPA employees, the court notes that the employees were not properly instructed on how to distinguish personal records from Agency records. An unresolved question is also created by the manufacturer's statement, under oath, that over 100 employees were involved in considering and deciding the waiver application and by EPA's affidavit that indicates that only 59 people were actually contacted. Leaving unaddressed so large a group creates a question of fact on whether EPA met its burden of conducting a "search reasonably calculated to uncover all relevant documents." Also, the fact that 17 documents, responsive to the first request although not identified in response to that request, were supplied in response to a second FOIA request, puts the adequacy of the search in connection with the first FOIA request in doubt. The court next turns to EPA's assertion that all of the documents on its Vaughn index of withheld documents are subject to the deliberative process privilege of FOIA's Exemption 5. A review of EPA's Vaughn index leaves the court unable to determine whether many of the documents fall within the privilege, and absent sufficient information, EPA fails to carry its burden of satisfying the requirements of demonstrating an exemption. Because the court concludes that open questions remain that cannot be disposed of on the present record by summary judgment, the court vacates the summary judgment entered for EPA and remands the case for further proceedings. If the district court is satisfied that EPA cannot describe the documents in more detail without breaching a properly asserted confidentiality, then the district court may conduct an in camera review.

Counsel for Plaintiff
John J. Range
Hunton & Williams
2000 Pennsylvania Ave. NW, Ste. 9000, Washington DC 20006
(202) 955-1555

Counsel for Defendant
Timothy D. Backstrom
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Before MURNAGHAN and NIEMEYER, Circuit Judges, and YOUNG, Senior United States District Judge for the District of Maryland, sitting by designation.