Beveridge & Diamond
 

District Court Rules in FOIA Action That Communications Between DOJ Attorneys Representing Agencies With Adverse Interests In Superfund Action Are Not Privileged

Beveridge & Diamond, P.C., February 1, 2012

A January 25, 2012 ruling in Menasha Corporation v. United States Department of Justice, a Freedom of Information Act (“FOIA”) action in the Eastern District of Wisconsin, has significant implications for the government’s ability to claim deliberative process privilege for interagency communications in response to FOIA requests and for the scope of privilege protections available to the government in Superfund actions.  The full text of the order is available here.

The plaintiffs in the Menasha action are Potentially Responsible Parties (“PRPs”) associated with the Lower Fox River Superfund Site in Wisconsin, who filed a FOIA request seeking documents from the Department of Justice (“DOJ”)’s Environmental and Natural Resource’s Division (“ENRD”).  The plaintiffs brought the action in federal district court to challenge DOJ’s decision to withhold certain documents exchanged between attorneys in ENRD’s Environmental Enforcement Section (“EES”) and the Environmental Defense Section (“EDS”).  DOJ argued that the documents were privileged under the work product doctrine and attorney-client privilege and also protected from FOIA disclosure under the deliberative process privilege.  Judge Griesbach was not persuaded by DOJ’s “unitary executive” theory.  His January 25, 2012 order rejects the government’s argument that the ENRD attorneys within the different divisions were all representing the same client (the United States) and finds that the communications were not privileged because the interests of EES (representing EPA in its enforcement capacity) and EDS (defending the Army Corps of Engineers as a PRP) were “clearly adverse.” 

This decision is likely to have a significant impact on governmental privilege claims in both the FOIA and Superfund contexts.  First, it places a limit on agencies’ ability to claim the deliberative process privilege for interagency communications in situations where the requesting party can argue that the agencies’ interests are adverse.  Although the adversity may not always be as clear as it is in the Superfund setting, the Menasha ruling may be used to challenge deliberative process privilege claims for interagency communications and documents  in situations where the agencies’ interests are not aligned.   Second, the Menasha ruling, if adopted more broadly, should make it more difficult for counsel for governmental PRPs and the Environmental Protection Agency to engage in communications and exchange information that is not available to other PRPs (although the normal confidentiality provisions for settlement discussions would still apply).   The result may be a more level playing field for private and government PRPs which, as Judge Griesbach noted in his decision, would be consistent with “CERCLA’s express mandate that government PRPs be treated, both procedurally and substantively, like private PRPs.”  42 U.S.C. § 9620(a)(1).

For more information please contact David Barker at dbarker@bdlaw.com or Steven Jawetz at sjawetz@bdlaw.com.

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