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7th Circuit Limits Use of FOIA Requests in Case Against Federal EPA

The Freedom of Information Act, or FOIA, is a valuable tool in piercing the veil of secrecy that often surrounds government investigations and decision making. After Appleton Paper Inc, or API, and other companies were accused of polluting the Fox River near Green Bay, Wisconsin, API sought, through a FOIA request, to obtain the report of a consultant hired by the government on the case. The district court agreed with the government, who sought to block the request, and the 7th Circuit affirmed that denial.

The court noted that that EPA, under the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA), 42 U.S.C. Section 9601 et seq., had authority to investigate the allegation of pollution, and contracted with Amendola Engineering to prepare a report on PCB discharges in the Fox River from 1945 to 1985. Only partial copies of the report had been released during the API investigation, although it was used by the EPA in entering findings against API and other alleged polluters.

The government asserted the FOIA exemption 5, stating that it was work product and not subject to disclosure, and the Appellate Court, reviewing de novo, found that there was a “sufficient factual basis” for the ruling, which would be upheld, unless “Clearly erroneous.” Enviro Tech Int’l v. U.S. EPA See: 371 F.3d 370 (7th Cir. 2004), although the “government bears the burden of proof because the statute is construed in favor of disclosure.” Patterson v. IRS, 56 F.3d 832, 836 (7th Cir. 1995).

In this case, the court found that the report was protected work product, and that API’s articulated fear that the report would be used in future litigation was without merit, stating that Federal Rule of Civil Procedure 26 “requires disclosure before trial…FOIA is not a substitute for discovery.” See: Appleton Papers, Inc. v. Environmental Protection Agency, 702 F.3d 1018 (7th Cir. 2012).

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Related legal case

Appleton Papers, Inc. v. Environmental Protection Agency