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Public Employees for Environmental Responsibility v. U.S. Environmental Protection Agency

ELR Citation: 46 ELR 20158
Nos. 15-cv-1012, (D.D.C., 09/30/2016) (Cooper, J.)

A district court held that EPA's Office of Inspector General (OIG) need not turn over under FOIA certain documents concerning a potential violation of federal “revolving-door” prohibitions by a former member of the U.S. Chemical Safety and Hazard Investigation Board. EPA-OIG produced nearly 900 pages of responsive records in response to the FOIA request, but it relied on FOIA's attorney-client privilege to justify the withholding of 23 pages of emails and investigative memoranda, most of them written by OIG investigators for the purpose of seeking legal advice from either OIG or EPA attorneys. The court agreed the exemption was justified. The attorney-client privilege allows an agency to withhold memoranda, including factual findings, written by agency investigators to agency lawyers in order to secure legal advice regarding the criminal liability of an outside party. Without protections for attorney-client communications, agency officials might not share information with their counsel in the first place, and would consequently be deprived of sound legal advice. As such, the investigative memoranda at issue were properly withheld.