NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 5 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ECOLOGICAL RIGHTS FOUNDATION, a No. 22-15936 non-profit corporation, D.C. No. 3:20-cv-06898-SI Plaintiff-Appellant,

v. MEMORANDUM *

U.S. ENVIRONMENTAL PROTECTION

AGENCY,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding

Argued and Submitted May 10, 2023 San Francisco, California

Before: FRIEDLAND and BENNETT, Circuit Judges, and R. BENNETT,** Senior District Judge.

Plaintiff-Appellant Ecological Rights Foundation (“EcoRights”) served a ten-

part request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, upon

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States Senior District Judge for the District of Maryland, sitting by designation. the Environmental Protection Agency (“EPA”) in October 2019. This FOIA request

sought all records relating to recent changes to EPA’s policy of using supplemental

environmental projects (“SEPs”) as settlement terms in environmental litigation

against state and local governments. Following a protracted search, negotiation, and

EcoRights’s initiation of this litigation, EPA produced a total of 1,827 records in full

or in part, and withheld or redacted 644 records. The agency explained its

withholdings in a 650-page Vaughn index and a sworn declaration that divided the

challenged documents into eight categories, only seven of which are at issue in this

appeal.1 In this action, EcoRights challenges EPA’s remaining withholdings and

seeks declaratory and injunctive relief on the ground that EPA has a pattern or

practice of FOIA violations. The district court granted summary judgment to EPA.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I. Sufficiency of Submissions and Burden of Proof

EcoRights argues that the district court improperly shifted the burden of proof

to EcoRights by accepting EPA’s justifications for its withholdings without

conducting in camera review of the challenged records. Under FOIA, the

government bears the burden of proof to justify its withholdings. See Transgender

A Vaughn index is an affidavit that summarizes the records the government 1

redacted, the FOIA exemptions claimed, and the justifications for each withholding. See Aguirre v. U.S. Nuclear Regul. Comm’n, 11 F.4th 719, 728 (9th Cir. 2021) (discussing Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)).

2 L. Ctr. v. Immigr. & Customs Enf’t, 46 F.4th 771, 782 (9th Cir. 2022). It may carry

this burden with an affidavit or Vaughn index attesting to the content of the records

it has withheld and its reasons for nondisclosure. See Islamic Shura Council of S.

Cal. v. FBI, 635 F.3d 1160, 1165–66 (9th Cir. 2011). If the government’s

submissions are reasonably detailed and particularized, its affidavits “are presumed

to be in good faith” and are entitled to “considerable deference.” Hamdan v. DOJ,

797 F.3d 759, 770, 772 (9th Cir. 2015); see also Lane v. Dep’t of Interior, 523 F.3d

1128, 1135–36 (9th Cir. 2008).

The district court correctly applied these standards. EPA submitted a 35-page

affidavit that divides its records into eight categories, with detailed justifications for

its withholdings and redactions. It supplemented this affidavit with a 650-page

Vaughn index that reviews all records EPA redacted or withheld—featuring

particularized explanations for each FOIA exemption EPA asserted, EPA’s efforts

to segregate non-exempt information, and the manner in which disclosure of the

withheld material would foreseeably harm interests protected by the exemptions.

Accordingly, the district court was entitled to take these materials at “face value”

absent “‘contrary evidence in the record.’” Hamdan, 797 F.3d at 769, 779 (quoting

Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir. 1992)). The record contained no such

evidence. Contrary to EcoRights’s argument on appeal, the unredacted portions of

3 EPA’s documents do not undermine EPA’s justifications for the portions it withheld,

as the agency segregated its records and released only non-exempt materials.

II. Validity of Withholdings

FOIA “mandates disclosure of nearly all agency records upon request, unless

the records fall within one of nine exemptions.” Rojas v. Fed. Aviation Admin., 989

F.3d 666, 670 (9th Cir. 2021) (en banc) (citing 5 U.S.C. § 552(b)(1)–(9)), cert.

denied, 142 S. Ct. 753 (Mem) (Jan. 10, 2022). EPA withheld eight categories of

documents—only seven of which are at issue in this appeal—pursuant to Exemption

5, which shields records that would not be available in litigation against the agency.

See Lahr v. Nat’l. Transp. Safety Bd., 569 F.3d 964, 979 (9th Cir. 2009). This

exemption applies to records that “would be protected by one of the civil discovery

privileges, such as the attorney-client privilege [(“ACP”)], the attorney work-

product privilege [(“WPP”)], or the deliberative process privilege [(“DPP”)].” Rojas,

989 F.3d at 673.

EPA properly withheld and redacted Categories 2, 3, 4, 5, and 7 under DPP.

DPP shields “documents reflecting advisory opinions, recommendations[,] and

deliberations comprising part of a process by which governmental decisions and

policies are formulated,” Karnoski v. Trump, 926 F.3d 1180, 1203–04 (9th Cir.

2019) (quoting Loving v. Dep’t of Def., 50 F.3d 32, 38 (D.C. Cir. 2008)), so long as

those documents are both “predecisional” and “deliberative,” Transgender L. Ctr.,

4 46 F.4th at 783 (quoting Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114,

1117 (9th Cir. 1988)). The documents withheld in Categories 3 and 4 are deliberative

materials produced for meetings that were held between EPA and Department of

Justice (“DOJ”) officials to discuss proposed changes to SEP policy. Both categories

of documents are predecisional to the 2019 change in SEP policy, and the Category

3 records are additionally predecisional to settlements in specific enforcement cases.

The records in Categories 2, 5, and 7 consist of deliberations regarding specific

enforcement cases, and are predecisional to litigation, settlement, and enforcement

decisions in those cases. Although EcoRights contends that EPA must disclose any

Category 2 records featuring settlement recommendations that EPA ultimately

accepted, there is no indication that EPA has “adopted” any such recommendations

as “the agency’s effective law and policy.” ACLU v. DOJ, 880 F.3d 473, 490 (9th

Cir. 2018) (citation omitted).

The remaining records, in Category 6 and Category 8, are entitled to ACP.2

“The attorney-client privilege protects confidential communications between

attorneys and clients, which are made for the purpose of giving legal advice.” United

States v. Sanmina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020). The records in

Category 6 feature confidential legal advice from EPA and DOJ attorneys regarding

2 EcoRights argues that these materials are not entitled to DPP, as they consist only of deliberations regarding how to respond to inquiries from outside entities. As we hold that ACP applies, we do not address whether DPP shields these records.

5 “the potential impact of changes to SEP policy on enforcement work at EPA,”

including specific requests from agency officials seeking confidential legal advice

following press inquiries. The documents withheld in Category 8 consist of

confidential legal advice sought by agency officials in advance of Congressional

inquiries and hearings. See Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997)

(“In the governmental context, the ‘client’ may be the agency and the attorney may

be an agency lawyer.”). 3

EcoRights argues that EPA did not fulfill its obligations to disclose all

segregable factual material or to demonstrate the foreseeable harms that would result

from disclosure, the latter of which is required by the FOIA Improvements Act of

2016. 5 U.S.C. § 552(a)(8)(A)(i)(I). However, EPA’s Vaughn index and affidavit

demonstrate that the agency proceeded document-by-document and line-by-line to

parse through each record and segregate all factual, non-exempt material.

Additionally, between the categorical justifications in the affidavit and the

document-specific descriptions in EPA’s Vaughn index, EPA offered detailed

3 EcoRights challenges EPA’s assertions of ACP with regard to only two documents, Vaughn No. 515 and 603, but EPA’s Vaughn entries demonstrate that these records are privileged. The redacted portions of Vaughn No. 515 feature “advice from a staff attorney on how to address [a] question concerning SEP policy,” and Vaughn No. 603 is an email exchange between several attorneys about how to respond to an administrator’s request for legal interpretations of a DOJ memo regarding SEP policy changes.

6 explanations regarding how the disclosure of its records would foreseeably harm

interests protected by Exemption 5.4

III. Pattern or Practice of Violating FOIA

The district court did not abuse its discretion in declining to issue an injunction

or declaratory judgment. The Freedom of Information Act authorizes courts “to

enjoin the agency from withholding agency records and to order the production of

any agency records improperly withheld.” 5 U.S.C. § 552(a)(4)(B). This language

permits courts to grant prospective equitable relief. See Animal Legal Def. Fund v.

U.S. Dep’t of Agric., 935 F.3d 858, 871 & n.13 (9th Cir. 2019). The district court’s

grant or denial of an injunction or a declaratory judgment is reviewed for an abuse

of discretion. Long v. IRS, 693 F.2d 907, 909 (9th Cir. 1982) (injunction); Rigsby v.

GoDaddy Inc., 59 F.4th 998, 1010 (9th Cir. 2023) (declaratory judgment). EcoRights

4 EcoRights claims that EPA’s affidavit and index merely addressed “records” or “portions” without discussing “the specific information” those records contain. However, the agency “need not specify its objections [to disclosure] in such detail as to compromise the secrecy of the information.” Lewis v. IRS, 823 F.2d 375, 378 (9th Cir. 1987) (internal quotation marks and citations omitted). Ordering a more detailed explanation would “thwart[] the . . . exemption’s purpose” by requiring EPA to divulge privileged information merely to defend its assertions of privilege. Wiener v. FBI, 943 F.2d 972, 979 (9th Cir. 1991) (quoting King v. DOJ, 830 F.2d 210, 218 (D.C. Cir. 1987)).

7 sought two forms of equitable relief in this case, both of which the district court

denied.5

First, EcoRights requested an injunction directing EPA to comply with future

FOIA requests on the basis that EPA has a pattern or practice of FOIA violations.

To determine whether to grant prospective injunctive relief in a FOIA case, a district

court must follow the framework outlined in Long v. Internal Revenue Service:

In determining whether injunctive relief is appropriate to resolve a FOIA dispute, the court’s prime consideration should be the effect on the public of disclosure or nondisclosure. Where, as here, there has been a voluntary cessation of allegedly illegal conduct and thereafter prolonged delays have repeatedly hindered the timely disclosure of non-exempt documents, the district court should seriously consider the likelihood of recurrence, weighing the good faith of any expressed intent to comply, the effectiveness, if any, of the discontinuance and the character of past violations.

693 F.2d at 909 (citations omitted). The district court cited Long and properly

evaluated these factors. In its opinion, the district court recognized that the public

has an interest in records related to changes in SEP policy, but found that EPA acted

5 EcoRights argues that, regardless of the denial of injunctive relief, the district court failed to determine whether EPA has a pattern or practice of FOIA violations under Hajro v. United States Citizenship and Immigration Services, 811 F.3d 1086 (9th Cir. 2016). However, Hajro addresses only standing, not the merits. The three factors articulated in that case govern when “the plaintiff has shown injury in fact” to seek prospective injunctive relief based on a pattern or practice of FOIA violations if the agency has mooted a claim challenging the improper processing of a specific FOIA request. Id. at 1103. These factors do not provide a standalone claim, and it is ultimately irrelevant whether EcoRights’s allegations describe a pattern or practice of FOIA violations, because the district court considered other factors that supported the denial of equitable relief here. See Long, 693 F.2d at 909.

8 in good faith and is taking concrete steps to reduce its FOIA backlog. The court also

noted the “expansiveness” of EcoRights’s FOIA request and observed that EPA had

provided EcoRights with “rolling productions” and updates on its estimated

completion date. In following and applying the factors outlined in Long, the district

court did not “rel[y] upon erroneous legal principles or abuse[] its discretion” by

declining to issue an injunction. Id. (citation omitted).

Second, EcoRights sought a declaratory judgment that EPA violated FOIA’s

deadlines in responding to its request in this case. 6 However, a claim that the

government violated FOIA’s deadlines when responding to a specific request is

mooted by the production of documents. See Hajro, 811 F.3d at 1103. Additionally,

the district court did not abuse its discretion by declining to issue this declaration.

The district court concluded that there was “no indication that EPA deliberately

caused needless delay,” as “EPA and EcoRights engaged in frequent discussions”

regarding how to best respond to EcoRights’s comprehensive FOIA request. That is

sufficient to demonstrate that the court considered EcoRights’s claims of delay and

properly exercised its discretion.

AFFIRMED.

6 EcoRights also sought a declaration that EPA improperly withheld records in response to EcoRights’s 2019 FOIA request, and that EPA has a pattern or practice of such FOIA violations. These requested declarations are coextensive with EcoRights’s challenge to EPA’s withholdings and request for an injunction, and were properly denied for the same reasons.

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