ELR Citation: ELR 20023
No(s). 08-1625 (D.D.C. Jan 16, 2009)

A district court granted in part and denied in part cross-motions for summary judgment in a company's Freedom of Information Act (FOIA) suit seeking to compel the production of two Environmental Protection Agency (EPA) documents about water contamination models the Agency is using at a hazardous waste site in Rialto, California. One of the documents, concerning groundwater flow, is still in draft form. Accordingly, EPA properly withheld that document because draft documents generally are exempt from disclosure under the deliberative process privilege. EPA, however, may not withhold its document about the vadose zone model, which is used to assess perchlorate at the site. EPA shared the results of the vadose zone model with a state regional board, and the board then shared the results with the company. By sharing the results, EPA waived any privilege that it might otherwise have had. FOIA Exemption 5, therefore, does not apply. Nor does FOIA Exemption 7(a) apply since release of the vadose zone model would not threaten the integrity of EPA's enforcement efforts.