Fees EPA Assessed for Records Request Upheld

(CN) - A group opposed to environmental rules governing New Hampshire's Great Bay estuary was properly charged for its records request, a federal judge ruled.

The dispute stems from a "numeric nutrient criteria" developed for the water-treatment obligations of the cities surrounding the estuary.

Between 2005 and 2008, the Environmental Protection Agency and New Hampshire's Department of Environmental Services jointly collected and reviewed data on which to base the new criteria, and then moved to implement the new requirements.

Hall & Associates, a consultancy, and cities surrounding the estuary fought the rules, however, as unsupported by valid analysis. Dubbing themselves the Great Bay Coalition, the group argued that EPA has been too stringent in carrying out its efforts.

It sought to have the agency's "scientific fraud" debunked by peer review, and then balked that the EPA had unfairly tried to limit involvement in that process.

After an exchange of letters, EPA Acting Assistant Administrator Nancy Stoner concluded that the careful review showed no evidence of scientific misconduct.

Hall & Associates filed 18 requests under the Freedom on Information Act seeking information related to the new discharge-control regime. The EPA ultimately produced three responsive records totaling 26 pages, but withheld parts of one two-page draft letter pursuant to FOIA exemption 5, citing deliberative-process privilege. The agency also assessed Hall & Associates $413.90 in fees.

Hall & Associates sued the agency, charging both the redaction and fees as unwarranted and excessive.

Both parties moved for summary judgment, but U.S. District Judge James Boasberg concluded Tuesday that the record amply supported the EPA's decisions.

"Although plaintiff points to several instances of purported misconduct here, it has provided no evidence rising anywhere close to this level," Boasberg wrote. "General criticisms of the merits of policy decisions do not amount to evidence of misconduct."

Boasberg also sidelined the consultancy's baseless argument that the EPA office Region 1 "wr[ote] the response to the coalition's scientific misconduct allegations."

"This argument is puzzling for two reasons," Boasberg wrote. "First, it is flatly contradicted by the record: Stephen Perkins's declaration establishes that the Region prepared only a draft for Headquarters' review, and the agency in fact produced to plaintiff the limited portions of the draft that were left unchanged in the final version of the letter. Second, it is unclear exactly what would be different if Region 1 had written the response. Perhaps, in that case, plaintiff would have had a stronger argument that the agency should have disclosed the entire letter, but that claim would have been nonsensical, as EPA already sent the final version of the letter to plaintiff."

Hall & Associates additionally failed to show that the FOIA exemption applies only to predecisional records and thus was does not support redaction of the letter, according to the ruling.

"To the extent the court can decipher an argument from the meager substantive content in the motion, the group seems to object to EPA's withholding of the letter because it relates to events that have already occurred - namely, Region 1's 2006-2009 regulatory decisions," Boasberg wrote. "That argument, if it is the one Plaintiff intended, holds no water. Deliberations over how to respond to allegations concerning a past event are without a doubt 'predecisional' to the actual response - in this case, the final response letter that EPA issued on September 27, 2012. The disputed draft letter contained recommended positions and language for consideration by EPA Headquarters in responding to Plaintiff's allegations of scientific error. That the letter was written after Region 1 had made its regulatory decisions is obviously irrelevant. The court, accordingly, finds that EPA properly invoked Exemption 5 to justify withholding portions of the Region's June 5, 2012, draft response letter."

As to the fees, Boasberg again sided with the EPA.

"As the agency explained, processing plaintiff's request required that an attorney spend 8.5 hours reviewing the documents collected from Region 1 managers and staff, determining whether any FOIA exemption applied, conferring with program staff - through multiple rounds of discussion - about whether materials deemed deliberative should nonetheless be disclosed on a discretionary basis, summarizing the attorney's analysis in a memorandum, and coordinating the Region's response with EPA headquarters," he wrote. "Plaintiff offers no substantive response to EPA's argument, instead asserting that some of the documents reviewed "clearly" do not fall within any FOIA exemption. ... As plaintiff has offered nothing more, and as defendant's explanation seems eminently reasonable on its face, the court finds for EPA on this issue."

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