In Appleton Papers, Inc. v Environmental Protection Agency (7th Cir. Dec. 26, 2012), the Seventh Circuit Court of Appeals held that a defendant in an enforcement action could not obtain government expert reports under the Freedom of Information Law.  After the government alleged taht seven companies were responsible for contamination in the Fox River, near Green Bay, Wisconsin, the government hired an expert to prepare a report on the companies’ responsibility for the contamination. Appleton sought the report as part of a challenge to a consent decree between the government and another party.

The Freedom of Informatin Act makes most government documents publicly available, but exempts nine categories of documents from disclosure.  The government claimed the report at issue was exempt from disclosure based on the exemption for “inter-agency and intra-agency memorandums or letters which would not be available by law to a party in litigation.”  The government’s claim was that the document would not be available to a party in litigation because of the work product doctrine, which protects from disclosure, documents produced in anticipation of litigation or for trial.  Appleton argued that work product should protect theories, opinions and analysis, but not facts.  The court held, however, that the entire report was protected.  There is an exception to the work product doctrine for a party that has a special need for the information, but the court concluded that Appleton had made no showing of special need.

In most environmental matters, the facts are gathered by the potentially responsible parties and the basic information about the contamination is publicly available.   This decision does not change that general rule of procedure.  In this case, however, the governement report at issue was not an investigation report that sampled soil or groudwater and identified the contamination.  Instead, it was a report on which parties are responsible for how much.  Such reports are much more likely to include the governments opinions and theories prepared for litigation (as opposed to being prepared for remediation) and are therefore much more likely to be protected from disclosure.