1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SIERRA CLUB, Case No. 20-cv-03472-JCS

8 Plaintiff,

ORDER REGARDING MOTION FOR

9 v. CLAWBACK AND SUMMARY

JUDGMENT

10 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Re: Dkt. No. 80 11 Defendant.

12 13 I. INTRODUCTION 14 This case arose from Plaintiff Sierra Club’s request for documents from Defendant the 15 Environmental Protection Agency (the “EPA”) under the Freedom of Information Act (“FOIA”). 16 Most of the parties’ disputes have been resolved by the Court or by the parties’ themselves, and 17 the EPA has produced a large number of documents to Sierra Club. Among those documents was 18 a series of emails exchanged among an EPA employee, a White House official, and several 19 individuals who work in government affairs—in other words, as lobbyists—for the petroleum 20 industry, discussing plans to meet for drinks. The EPA inadvertently produced those emails 21 without redacting all instances of the lobbyists’ names and email addresses. The only remaining 22 dispute in the case is the EPA’s present motion to claw back the documents lacking those intended 23 redactions. 24 The Court finds the matter suitable for resolution without oral argument and VACATES 25 the hearing previously set for December 11, 2020. For the reasons discussed below, the EPA’s 26 motion is DENIED.1 27 1 II. BACKGROUND 2 The emails at issue included Jeff Freeland (a Special Assistant to the President), Aaron 3 Ringel (at the time, an EPA official),2 and individuals whose names are not included in the record 4 before the Court, but whose email addresses use the domain names of Valero, Marathon 5 Petroleum, and the trade association American Fuel and Petrochemical Manufacturers. White 6 Decl. (dkt. 80-1) Ex. 1. According to the EPA, those individuals “held mid-level management 7 positions in the government relations departments of these organizations.” White Decl. ¶ 4. The 8 emails discuss plans to meet for drinks and to watch a hockey game, using a consistently informal 9 tone suggesting that all individuals involved were friends. While Decl. Ex. 1. The emails do not 10 indicate that the gathering would be for any purpose other than socializing; to the contrary, the 11 Marathon Petroleum employee expressed interest in joining only “as long as we don’t talk about 12 RFS” (presumably, the EPA’s “renewable fuel standards” program), to which Ringel and the 13 Valero employee quickly and enthusiastically agreed. See id. 14 Sierra Club submitted a wide-ranging request under FOIA for communications by a 15 number of EPA officials, including Ringel, with any person outside of the EPA. See Order 16 Granting Pl.’s Mot. for Partial Summ. J. (dkt. 39) at 1–2.3 Sierra Club selected those officials 17 based on its view that they “have a history of close ties with industries regulated by EPA or anti- 18 environmental politicians or political groups.” Opp’n (dkt. 81) at 2. The EPA initially withheld 19 the emails now at issue entirely, but after Sierra Club filed this action, the Court ordered 20 production of documents, and the parties conferred regarding their disagreements, the EPA 21 produced the emails with many names, email addresses, locations, and other details redacted based 22 on FOIA’s Exemption 6, governing personal privacy. Stip. (dkt. 78) at 2. The EPA inadvertently 23 failed to redact all instances of the petroleum lobbyists’ names and all instances of the first 24 portions their email addresses4 in that production of documents. Id.; see also White Decl. Ex. 1 25 was reassigned to the undersigned magistrate judge upon Judge Laporte’s retirement. 26 2 Ringel now works for the Department of State, which also deals with matters affecting the oil industry. Saxonhouse Decl. (dkt. 81-1) ¶ 10. 27 3 Sierra Club v. U.S. Envtl. Prot. Agency, No. 18-cv-03472-EDL, 2018 WL 10419238 (N.D. Cal. 1 (copies of the emails with additional redactions added to obscure the information presently in 2 dispute). Sierra Club’s counsel circulated the emails to “internal stakeholders within Sierra Club,” 3 and requested that the EPA disclose additional names and email addresses based on its failure to 4 redact some such information. Stip. at 2. That request caused the EPA to realize that it had failed 5 to redact the emails as intended, and the EPA informed Sierra Club of the error and provided 6 corrected versions with further redactions. Id. 7 Sierra Club “agreed as a courtesy to not further share the inadvertently produced 8 documents until the dispute over them was resolved.” Id. The parties were unable to resolve their 9 disagreement as to whether the information at issue was properly subject to withholding under 10 FOIA, and Sierra Club took the position that it need not seek an order for production of the 11 material because it already possessed the information and saw no “legal or ethical barriers to 12 releasing the information should it come up.” Id. at 2–3. After Sierra Club informed the EPA that 13 Sierra Club would not agree to keep the information confidential indefinitely if no ruling was 14 sought from the Court, the EPA filed the present motion. Id. at 3. 15 In its production of separate emails more clearly addressing the EPA’s official business, 16 the EPA did not redact the names or email addresses of petroleum lobbyists. See Zack Decl. (dkt. 17 80-3) Exs. A–C. The EPA has also released other emails containing the names and email 18 addresses of non-government employees who corresponded with EPA personnel on matters 19 unrelated related to EPA business. Saxonhouse Decl. (dkt. 81-1) Exs. A, B.5 20 The EPA now moves for an order requiring Sierra Club to destroy the emails inadvertently 21 produced with incomplete redactions. See Mot. (dkt. 80) at 12. The EPA contends that the 22 lobbyists’ names and email addresses fall within Exemption 6 because the lobbyists have a 23

24 address, which indicate the lobbyists’ employers. 5 While the EPA asserts in its reply that some of those emails included more senior EPA 25 policymakers and some involved official business, Reply (dkt. 82) at 3, at least some of the emails plainly related to personal matters. See, e.g., Saxonhouse Decl. Ex. B at ECF p. 27 (email from an 26 EPA Deputy Assistant Administrator asking an ExxonMobil employee to provide career counseling for a friend, with the name and email address of the ExxonMobil employee 27 unredacted); id. at ECF pp. 21–22 (emails between an EPA Assistant Administrator and non-EPA 1 nontrivial privacy interest in that sort of personal information and there is no significant public 2 interest in learning which individuals had been planning the happy hour. Id. at 7–11. Elizabeth 3 White, director of the EPA office responsible for FOIA requests, states that Sierra Club has in the 4 past provided records it obtained under FOIA to the press, and that “disclosure would expose these 5 individuals to potential harassment from the media or potential harassment from individual 6 actors.” White Decl. ¶ 5. White notes that “[o]nline harassment or ‘doxxing’ is a reality,” citing 7 articles describing generally the practice of disseminating personal information to facilitate 8 targeted harassment, but not linking that practice to Sierra Club disclosures, and providing no 9 evidence or explanation of why the lobbyists at issue might be expected to receive such treatment. 10 See id. ¶ 5 & n.3. The EPA cites a handful of district court decisions ordering FOIA plaintiffs to 11 return or destroy inadvertently produced documents based on those courts’ inherent authority. 12 Mot. at 11–12. 13 Sierra Club contends that Exemption 6 does not apply because the public interest in 14 understanding government regulators’ relationships with industry lobbyists outweighs any de 15 minimis privacy interest in the lobbyists’ names, and because the EPA has not shown any non- 16 speculative risk of harm from disclosure. Opp’n at 6–12. Sierra Club argues that courts have 17 rarely issued orders to claw back documents inadvertently produced under FOIA, and that even if 18 the Court were to apply the standard for nonwaiver of privilege due to inadvertent production of 19 documents from Rule 502(b) of the Federal Rules of Evidence—which Sierra Club contends is 20 more permissive than is appropriate here—clawback would not be warranted because the EPA has 21 not shown that it took reasonable efforts to prevent its own mistake. Id. at 4–6. 22 III. ANALYSIS 23 A. Overview of FOIA 24 “FOIA ‘was enacted to facilitate public access to Government documents.’” Lahr v. Nat’l 25 Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009) (quoting U.S. Dep’t of State v. Ray, 502 26 U.S. 164, 173 (1991)). Congress intended to “‘ensure an informed citizenry, vital to the 27 functioning of a democratic society, needed to check against corruption and to hold the governors 1 152 (1989)). Thus, FOIA “provides public access to official information ‘shielded unnecessarily‘ 2 from public view and establishes a ‘judicially enforceable public right to secure such information 3 from possibly unwilling official hands.’” Id. (quoting Dep’t of the Air Force v. Rose, 425 U.S. 4 352, 361 (1976)). 5 Under FOIA, “each agency, upon any request for records which (i) reasonably describes 6 such records and (ii) is made in accordance with published rules stating the time, place, fees (if 7 any), and procedures to be followed, shall make the records promptly available to any person.” 5 8 U.S.C. § 552(a)(3)(A). There is a “strong presumption in favor of disclosure.” Ray, 502 U.S. at 9 173. Congress also recognized, however, that government agencies can have legitimate reasons 10 for withholding information from the public. Id. Hence, FOIA “requires federal agencies to make 11 Government records available to the public, subject to nine exemptions for specific categories of 12 material.” Milner v. Dep’t of the Navy, 562 U.S. 562, 564 (2011). The nine exemptions are 13 “explicitly made exclusive and must be narrowly construed.” Id. at 565. Further, under 14 amendments to FOIA enacted in 2016, “even if information falls within the scope of a 15 discretionary exemption, it cannot be withheld from the public unless the agency also shows that 16 disclosure will harm the interest protected by that exemption.” Ctr. for Investigative Reporting v. 17 U.S. Dep’t of Labor, 424 F. Supp. 3d 771, 780 (N.D. Cal. 2019) (citing 5 U.S.C. 18 § 552(a)(8)(A)(i)), appeal docketed, No. 20-16416 (9th Cir. July 23, 2020). 19 B. Exemption 6 20 Under Exemption 6—the only exemption asserted by the EPA in the present motion— 21 FOIA “does not apply to . . . personnel and medical files and similar files the disclosure of which 22 would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). 23 While the emails at issue here might not seem at first blush particularly similar to medical or 24 personnel files, “[t]he phrase ‘similar files’ has a ‘broad, rather than a narrow meaning,’” such 25 “that ‘[g]overnment records containing information that applies to particular individuals satisfy the 26 threshold test of Exemption 6.’” Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv., 27 524 F.3d 1021, 1024 (9th Cir. 2008) (alteration in original; citations omitted). Sierra Club does 1 Opp’n. 2 The more salient question of whether a disclosure “would constitute a clearly unwarranted 3 invasion of personal privacy,” 5 U.S.C. § 552(b)(6), requires an agency to show “‘some nontrivial 4 privacy interest in nondisclosure’” that “is more than de minimis,” Cameranesi v. U.S. Dep’t of 5 Def., 856 F.3d 626, 637–38 (9th Cir. 2017) (citation omitted), and requires the court to “‘balance 6 the public interest in disclosure’”—specifically, the extent to which public disclosure would 7 advance “‘public understanding of the operations or activities of the government,’” regardless of 8 what other purposes might have actually motivated the request—“‘against the interest Congress 9 intended the [e]xemption to protect,’” Forest Serv. Employees, 524 F.3d at 1024 (alteration in 10 original; citations omitted). 11 The Ninth Circuit has recognized privacy interests sufficient to withhold disclosure of 12 federal agents’ “involvement in investigations of especially controversial events,” such as an 13 airline explosion that was the subject of conspiracy theories. See Lahr, 569 F.3d at 977; see also 14 Cameranesi, 856 F.3d at 633–35, 642–46 (finding a sufficient privacy interest to withhold the 15 names of participants and instructors at a U.S. institute for training foreign military personnel, 16 where participants had been accused of human rights violations by an advocacy group and 17 evidence indicated that they faced risks of violent retaliation in their home countries based on their 18 association with the United States); Forest Serv. Employees, 524 F.3d at 1026 (finding a sufficient 19 privacy interest to withhold the identities of Forest Service employees involved with a wildfire 20 containment effort that “was met with heavy criticism, particularly because the fire claimed the 21 life of two Forest Service employees”). “The potential for unwanted contact by third parties, 22 including the plaintiff, media entities, and commercial solicitors . . . facilitated by disclosure of a 23 connection to government operations and investigations is a cognizable privacy interest under 24 Exemption[] 6 . . . .” Lahr, 569 F.3d at 975–76. 25 Whether the EPA could have properly withheld the lobbyists’ names under Exemption 6 is 26 a close question. Sierra Club asserts a public interest in understanding relationships between 27 government officials and employees of the industries they regulate. Opp’n at 10. The EPA asserts 1 no evidence. Reply at 2. Neither side’s interest in the identifying information at issue is 2 particularly strong. 3 There is certainly some public interest in understanding lobbying efforts and other 4 connections between government agencies and regulated industries. See Elec. Frontier Found. v. 5 Office of the Dir. of Nat’l Intelligence, 639 F.3d 876, 889 (9th Cir. 2010) (“[D]isclosure of the 6 names of people seeking to influence the agencies’ pursuit of a [policy outcome] does not 7 constitute ‘a clearly unwarranted invasion of personal privacy.’” (quoting 5 U.S.C. § 552(b)(6)), 8 abrogated on other grounds by Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 9 987 (9th Cir. 2016) (en banc and per curiam). Here, however, the emails in dispute do not on their 10 face evince efforts to influence government. The EPA has also disclosed (and not sought to claw 11 back) the portions of the lobbyists’ email addresses that reveal their employers, and has disclosed 12 other lobbyists’ full names and email addresses on messages more clearly pertaining to official 13 business. The interest in further disclosure to determine the identities of individual lobbyists who 14 made social plans with two government officials is marginal. 15 As for the lobbyists’ privacy interest, it is not clear how the EPA reached its determination 16 that press contacts would be an unwelcome intrusion tantamount to harassment. There is no 17 indication that the EPA has contacted the lobbyists to determine whether they object to disclosure 18 of their names and their business email addresses. This is not a case of documents connected to 19 tragedy or widely publicized controversy, like the airline crash in Lahr, the deadly fire in Forest 20 Service Employees, or the accusations of human rights violations in Cameranesi. There is nothing 21 inherently scandalous about friends meeting for drinks to watch hockey. Even if contact by the 22 media would be “unwanted,” and assuming that such contact might occur, it is not clear why the 23 government affairs professionals at issue would be unaccustomed to handling a press inquiry or 24 incapable of declining to comment if they so chose. 25 Any risk of “doxxing” and coordinated harassment would be a more significant concern, 26 see Camarensi, 856 F.3d at 642 (discussing “possible harassment, stigma, or violence”), but the 27 EPA has presented no evidence of any potential for such an outcome beyond pure speculation. 1 intentionally left unredacted on work-related emails have been subject to harassment, that the 2 subject matter of the emails at issue here would cause stigma, or that the versions of them that the 3 EPA filed two months ago in the public docket of this case (with the lobbyists’ names and email 4 addresses redacted) have attracted public attention of any kind. 5 While the mere “potential for harassment” creates a cognizable interest even in the absence 6 of any certainty that harassment would result, see, e.g., Cameranesi, 856 F.3d at 639 (emphasis 7 added), courts consider the degree of potential harm at issue and the evidence to support it in 8 determining the weight that it should be afforded, see id. at 645 (concluding that “the public’s 9 marginal interests in disclosure” were outweighed by the Department of Defense’s “evidence that 10 disclosing the names of WHINSEC students and instructors would put them at risk of harassment, 11 retaliation, or even death”). Where the EPA has offered no reason to believe that the particular 12 individuals at issue in this case would face harassment if their names or email addresses were 13 disclosed, the Court assigns relatively little weight to that potential harm. 14 Weighing the parties’ fairly weak competing interests here against one another would 15 require a sensitive scale. The question before the Court, however, is not whether the EPA would 16 have been permitted to withhold the lobbyists’ names and email addresses under Exemption 6, but 17 instead whether the EPA is entitled to an order requiring Sierra Club to destroy those documents 18 now that they have been produced. As discussed below, the Court is not persuaded that question 19 turns solely on the same test as whether an exemption could have been invoked in the first 20 instance. 21 C. Inherent Authority and FOIA Clawback 22 FOIA does not specifically provide for the return or destruction of inadvertently produced 23 documents. Nevertheless, federal courts have long “understood that ‘[c]ertain implied powers 24 must necessarily result to our Courts of justice from the nature of their institution,’” which “are 25 ‘governed not by rule or statute but by the control necessarily vested in courts to manage their own 26 affairs so as to achieve the orderly and expeditious disposition of cases.’” Chambers v. NASCO, 27 Inc., 501 U.S. 32, 43 (1991) (quoting United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812); 1 The extent of these powers must be delimited with care, for there is a danger of overreaching when one branch of the Government, without 2 benefit of cooperation or correction from the others, undertakes to define its own authority. Roadway Express, Inc. v. Piper, 447 U.S. 3 752, 764 (1980). In many instances the inherent powers of the courts may be controlled or overridden by statute or rule. Carlisle v. United 4 States, 517 U.S. 416, 426 (1996); Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988). Principles of deference counsel 5 restraint in resorting to inherent power, Chambers, 501 U.S. at 44, and require its use to be a reasonable response to the problems and 6 needs that provoke it, Ortega-Rodriguez v. United States, 507 U.S. 234, 244 (1993); Thomas v. Arn, 474 U.S. 140, 146–48 (1985). 7 8 Degen v. United States, 517 U.S. 820, 823–24 (1996) (format of citations altered). “[T]he 9 Supreme Court [has] held that Congress did not intend to limit the court’s exercise of its inherent 10 equitable powers where consistent with the FOIA.” Long v. IRS, 693 F.2d 907, 909 (9th Cir. 11 1982) (citing Renegotiation Bd. v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 19 (1974)). 12 The EPA cites three cases granting the sort of relief the EPA seeks here based on a district 13 court’s inherent authority to manage proceedings before it. In a 2008 decision from this district, 14 the Honorable Phyllis Hamilton ordered a plaintiff to return documents inadvertently produced by 15 the Department of Health and Human Services:

16 Finally, defendants also request that the court instruct plaintiff to hand over the initial productions of March 2006 and February 2007, since 17 defendants’ August 2007 production superseded these productions, which contained inadvertently produced documents. 18 As the court stated at the hearing, plaintiff must return the earlier 19 productions in whole. Defendants’ claim that they did not become aware of the inadvertently produced documents until July 2007 (when 20 plaintiff attached the inadvertently produced documents to a motion to compel) is supported by the record. It is undisputed that in July 21 2007, defendants informed plaintiff that they had become aware of the inadvertent productions, and requested that the documents be 22 returned. Since that time, defendants have requested, on several occasions, that plaintiff return the documents to defendants. It was 23 only upon the failure to secure the cooperation of plaintiff in this regard, that defendants re-processed plaintiff’s FOIA request in its 24 entirety, and issued a revised production in August 2007.

25 In light of defendants’ consistent efforts at securing return of the documents, the fact that plaintiff was long ago placed on notice of this 26 inadvertent production, and defendants’ August 2007 production replacing all earlier productions, the court therefore orders plaintiff to 27 return all previously produced documents to defendants. Any According to the January 25, 2008 letter received from HHS, the 1 affected docket nos. include docket nos. 67, 82, and 86. 2 Hersh & Hersh v. U.S. Dep’t of Health & Human Servs., No. C 06-4234 PJH, 2008 WL 901539, 3 at *9 (N.D. Cal. Mar. 31, 2008) (citations to evidence omitted without ellipses). 4 In a 2009 decision, the Southern District of the New York ordered the ACLU to “return an 5 inadvertently produced classified document that implicates national security and which [the 6 ACLU was] not authorized to possess,” which the Department of Defense had produced in 7 response to a FOIA request. Am. Civil Liberties Union v. Dep’t of Def. (“ACLU”), No. 09 Civ. 8 8071 (BSJ)(FM), 2012 WL 13075284, at *5 (S.D.N.Y. Mar. 20, 2012). The court relied on its 9 inherent authority, as well as Hersh & Hersh and a decision from the District of Oregon ordering 10 the return of a classified document inadvertently produced through the normal civil discovery 11 process rather than pursuant to FOIA. Id. (citing Hersh & Hersh, 2008 WL 901539, at *9; Al- 12 Haramain Islamic Found., Inc. v. Bush, 451 F. Supp. 2d 1215, 1229 (D. Or. 2006), rev’d in part 13 on other grounds, 507 F.3d 1190 (9th Cir. 2007)). As far as this Court is aware, ACLU is the only 14 FOIA clawback case to address First Amendment concerns, holding that the ACLU had no First 15 Amendment right to possess a classified document, regardless of how it came into the ACLU’s 16 possession:

17 Plaintiffs assert that they have a First Amendment right to access a document which they came to possess lawfully. (Pls.’ Opp. Mem. at 18 30.) However, classified information remains classified notwithstanding “any unauthorized disclosure of identical or similar 19 information.” Exec. Order No. 13,526, § 1.1(c). That Plaintiffs acquired the Document innocently does not change the fact that the 20 Document is classified and Plaintiffs are not authorized to possess it. See Am. Civil. Liberties Union v. Dep’t of Def., 664 F. Supp. 2d 72, 21 79 (D.D.C. 2009).[6]

22 The production containing the Document occurred in accordance with a court-ordered stipulation and as part of a court-supervised process. 23 Plaintiffs initiated this FOIA action so that the Court would compel the Government to respond to their FOIA requests. That compelled 24 process has generated a situation in which Plaintiffs seek to maintain their unauthorized possession of a classified document. Plaintiffs may 25 not now claim the Court lacks the authority to supervise the very process that they themselves set in motion. 26

27 6 This case from the District Court for the District of Columbia involved the Department of 1 Surely, if a district court in a FOIA case [i.e., Hersh & Hersh] has the authority to order the return of two entire document productions 2 which contained inadvertently produced documents wholly unrelated to national security, then this Court has the authority to order the 3 return an inadvertently produced classified document that implicates national security and which Plaintiffs are not authorized to possess. 4 [Citation omitted.] 5 Id. 6 In the third and final case granting a request to claw back FOIA material, a magistrate 7 judge in the District of New Jersey granted a request by the Federal Emergency Management 8 Agency (“FEMA”) to claw back inadvertently produced documents that contained Social Security 9 numbers for individual FEMA employees, and to enjoin the plaintiff from using or disclosing that 10 information. See Kielty v. Fed. Emergency Mgmt. Agency, No. 14-CV-3269 (PGS)(LHG), ECF 11 Doc. No. 8 (D.N.J. Dec. 8, 2014). The magistrate judge used FEMA’s proposed order, which did 12 not address legal authority for the request, and added a note that the plaintiff had not opposed the 13 motion. See id. The magistrate judge declined to disturb that order on reconsideration, id., ECF 14 Doc. No. 19 (D.N.J. July 30, 2015), and a district judge affirmed the order on appeal because “no 15 opposition was filed by Plaintiff, and the request was reasonable,” id., ECF Doc. No. 23 (D.N.J. 16 Aug. 18, 2015). No order issued in that case includes significant analysis of a district court’s 17 authority to order the return or destruction of material produced pursuant to FOIA. 18 The EPA also cites a decision from this district in which the Honorable Donna Ryu 19 concluded based on Hersh & Hersh, ACLU, and Kielty “that the court may exercise its inherent 20 powers to order the return of the documents if they are protected from release under an applicable 21 FOIA exemption,” but denied a motion for such relief because the defendant agency failed to 22 establish that any exemption applied to the documents at issue. Ecological Rights Found. v. Fed. 23 Emergency Mgmt. Agency, No. 15-cv-04068-DMR, 2017 WL 24859, at *2, *8 (N.D. Cal. Jan. 3, 24 2017). 25 D. The EPA Is Not Entitled to Claw Back These Documents 26 In this Court’s view, neither the EPA nor any of the decisions it cites addressing this issue 27 offer a compelling rationale for holding that a court should wield its inherent authority to compel 1 have invoked a statutory exemption but inadvertently failed to do so. While such an order might 2 be a valid and necessary exercise of inherent authority in an appropriate case, the circumstances of 3 this case do not warrant use of that power to claw back the documents the EPA produced, even 4 assuming for the sake of argument that the EPA could have properly withheld the names and 5 email addresses at issue under Exemption 6. 6 Many mistakes by litigants have consequences. The powers “necessarily vested in courts 7 to manage their own affairs so as to achieve the orderly and expeditious disposition of cases,” 8 which “must be exercised with restraint and discretion,” see Chambers, 501 U.S. at 43, are not an 9 appropriate tool to undo all such errors. On the facts this case, where the parties have already 10 resolved all other disputes and the EPA has identified no serious and non-speculative harm likely 11 to result from Sierra Club’s continued possession of the lobbyists’ names and business email 12 addresses, it is not clear how the denial of the EPA’s motion would undermine this Court’s ability 13 to see all questions directly raised under FOIA in this action—what documents the EPA must 14 produce—through to a just resolution. 15 Moreover, any use of inherent authority must “be a reasonable response to the problems 16 and needs that provoke it.” Degen, 517 U.S. at 823–24. The remedy that the EPA seeks— 17 requiring Sierra Club to destroy the documents at issue—would not prevent disclosure of the 18 information at issue, which appears to consist of at most three names and email addresses. That 19 information has already been disseminated to multiple people at Sierra Club. See Stip. (dkt. 78) at 20 2 (noting that “the inadvertently produced . . . had already been transferred from counsel to 21 internal stakeholders within Sierra Club,” who have since “agreed as a courtesy to not further 22 share the inadvertently produced documents until the dispute over them was resolved”). Given the 23 discrete and uncomplicated nature of the information at issue, it will presumably remain within 24 those individuals’ knowledge even if the documents are destroyed. The EPA’s motion does not 25 specifically seek an order prohibiting Sierra Club personnel from disclosing the names and email 26 addresses, as opposed to the documents that contain them. The Court is not inclined to invoke its 27 inherent authority for an order that will have no practical effect on the (relatively weak) privacy 1 showing that EPA could meet its heavy burden to obtain such an order, or even any clear request 2 that the Court do so. See generally, e.g., Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976) 3 (discussing the First Amendment presumption against “prior restraints on speech and 4 publication”); Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1023 (9th 5 Cir. 2009) (same). 6 The EPA contends that it “should not be punished for acting quickly to remedy an 7 inadvertent error.” Reply at 5 n.1. Nothing in this order is intended to “punish” the EPA. To the 8 contrary, the present motion arises from the EPA’s request for judicial assistance to remedy its 9 own error, by ordering the Sierra Club to destroy documents already in its possession, despite no 10 provision of FOIA authorizing such an order. The denial of that extraordinary relief is not 11 punishment. 12 Sierra Club states that it “seeks only names and does not oppose EPA continuing to 13 withhold full email addresses.” Opp’n at 7. While the parties presumably could have reached a 14 compromise on those terms had the EPA agreed to them, and the EPA likely could have redacted 15 the email addresses under Exemption 6, see Elec. Frontier Found., 639 F.3d at 888–89 (affirming 16 a decision finding Exemption 6 inapplicable to lobbyists’ names, but reversing as to their email 17 addresses), the motion before the Court is the EPA’s request to claw back documents it has 18 already produced. The Court’s conclusion that the motion must be denied is based not on any 19 entitlement of Sierra Club to the production of those documents, but on the EPA’s lack of 20 entitlement on this record to a non-statutory remedy ordering Sierra Club to destroy documents 21 already in its possession. And as noted above, the EPA advanced no argument that Sierra Club 22 should be barred from disseminating information, as opposed to documents, that Sierra Club 23 acquired as a result of the EPA’s error. The EPA has also offered no evidence that the work- 24 related email addresses at issue are kept private and would not be readily ascertainable with 25 knowledge of the individuals’ names and employers. The Court therefore declines to limit Sierra 26 Club’s use of any email addresses the EPA erroneously produced.7 27 1 IV. CONCLUSION 2 For the reasons discussed above, the circumstances of this case do not warrant exercising 3 || the Court’s inherent authority to order the destruction of the documents at issue. The EPA’s 4 || motion is therefore DENIED. 5 The Court understands this order to resolve the parties’ only remaining dispute. The Clerk 6 || is therefore instructed to close the case. If one or both of the parties believe that entry of judgment 7 || 1s necessary, they may file a motion or stipulation to that effect no later than two weeks from the 8 date of this order. 9 IT ISSO ORDERED. 10 Dated: December 8, 2020 1

J PH C. SPERO

ief Magistrate Judge

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19 20 21 22 23 24 25 26 27 28 Sierra Club would not do so after this dispute is resolved. To the extent they might have done so, or might wish to do so, this order is not intended to undermine or invalidate any such agreement.