ENVIRONMENTAL FOIA REQUEST HAS LIMITATIONS

USEPA initiated enforcement litigation against several companies that allegedly discharged polychlorinated biphenyls ("PCBs") into certain waterbodies. To prepare for this CERCLA litigation, the government hired an environmental consultant to make a report estimating the amounts of PCBs allegedly discharged into the water by each of the companies.

One of the companies sought discovery of the report by challenging a consent decree between the government and one of the other companies. When such discovery was denied, the company filed a Freedom of Information Act ("FOIA") request with the government for the report. When the government refused the request, asserting that the report was privileged as "attorney work product", the company sued in federal court.

On December 26, 2012, the US Circuit Court of Appeals, 7th Circuit, affirmed the District Court decision upholding denial of the FOIA request. (Appleton Papers, Inc. v. Environmental Protection Agency, et al, NO. 12-2273)

The Court of Appeals acknowledged that FOIA generally requires federal agencies to disclose records to the public. However, FOIA provides certain exemptions from this requirement. One of these exemptions, the Court stated, is for attorney work product: the exemption prevents a party from discovering material prepared in anticipation of litigation or for trial. (See Federal Rules of Civil Procedure 26(b)(3)(A)). While a party in litigation generally can discover information relevant to a claim or defense, exception is made for attorney work product, and that exemption also applies to FOIA, the COurt held.

In ordinary civil federal civil litigation, the work product privilege sometimes can be overcome by a showing of need for the information or if the author of the information plans to testify. But,in the case of FOIA requests, such specific exceptions to the exemption would be hypothetical and, therefore, do not apply.

This decision suggests a couple of additional points: first, although it involves the federal FOIA, most states have FOIA laws of their own; therefore, this case may provide some guidance in state enforcement matters. Second, the decision illustrates potential procedural issues facing an environmental defendant in attempting to learn what information the federal or state EPA may have against it.