Full opinion text
PROCTOR, District Judge: The Miccosukee Tribe of Indians (the “Tribe”) appeals from an order granting summary judgment in favor of the United States of America; the Environmental Protection Agency; Stephen L. Johnson, Administrator of the EPA; and Jimmy Palmer, Regional Administrator of EPA Region IV (collectively the “EPA”) with respect to the Tribe’s claims pursuant to the Freedom of Information Act (“FOIA”). The Tribe contends that the district court erred by finding the EPA conducted an adequate search in response to the Tribe’s two FOIA requests (an initial request on February 18, 2004, and a supplemental request on June 3, 2004) for documents concerning the EPA’s Clean Water Act review of Florida’s amendments to the Everglades Forever Act (“EFA”) and the Phosphorus Rule for the Everglades Protection Area. It also challenges the district court’s determination, after an in camera review, that all withheld documents were properly designated by the EPA as privileged. After careful review, we affirm in part and vacate in part, and remand this case to the district court for further proceedings consistent with this opinion. I. BACKGROUND On February 18, 2004, the Tribe submitted a FOIA request to the EPA seeking documents concerning the EFA. On March 2, 2004, the EPA advised the Tribe that it would not be able to respond until July 2004 due to the voluminous nature of the records and the EPA’s policy of processing requests on a “fírst-in, first-out basis.” Shortly thereafter, on June 3, 2004, the Tribe wrote a supplemental letter to the EPA, requesting documents “concerning the State of Florida’s so-called default criterion for phosphorus,” a provision of the EFA that the EPA approved subsequent to the Tribe’s February FOIA request. In this supplemental letter, the Tribe contested the EPA’s characterization of the initial request as voluminous as well as the EPA’s need to extend the time until July 2004 for it to respond. Moreover, the Tribe stated “we [have] no desire to have EPA produce voluminous publicly released documents that we already have.” On July 20, 2004, the Tribe traveled to the EPA Regional Office in Atlanta, Georgia, to review the produced documents deemed by the EPA to be “voluminous” in nature. Two and one-half boxes containing approximately 3,255 pages of documents were presented to the Tribe for review. The Tribe made no secret of the fact that it was disappointed by the small number of documents made available for it to review. On August 2, 2004, the EPA sent the Tribe a list of the documents not provided for review that the EPA maintained were exempt from disclosure under FOIA Exemption 5. See 5 U.S.C. § 552(b)(5). The Tribe avers that the list was too general and did not allow it to determine whether a privilege was properly invoked. On April 13, 2005, the Tribe filed a lawsuit in the Southern District of Florida against the EPA alleging that the EPA failed to comply with FOIA. The EPA answered on May 13, 2005, maintaining that the Tribe’s complaint failed to state a claim upon which relief could be granted and that any withheld documents were properly exempt from disclosure under Section 552(b)(5). In July 2005, the Tribe sought to depose three EPA Region 4 employees: Philip Mancusi-Ungaro, EPA Region 4 attorney advisor on Everglades water quality issues; Daniel Scheidt, the EPA’s senior water quality scientist; and Gail Mitchell, Deputy Division Director of the Water Management Division. On July 15, 2005, a magistrate judge granted the Tribe’s request by permitting it to depose the EPA employee identified by the agency as having conducted the search for records in this matter. Thus, in lieu of the three employees originally requested by the Tribe, the EPA produced for deposition on August 11, 2005, Randy Dominy, Chief of the FOIA and Records Services Section in EPA Region 4. At that time, Dominy was the chief responsible for supervising FOIA search efforts and maintaining the records for Region 4. On August 81, 2005, shortly after Domi-ny’s deposition, the EPA produced a supplemental release of 130 documents (some in whole and others in part) responsive to the Tribe’s FOIA requests. The EPA stated that upon further review of the previously withheld 130 documents, it had determined that 12 documents could be released in full, and 118 more could be released in a redacted form. After the supplemental document production, the Tribe sought the deposition of Jennifer Pearce, the EPA FOIA Specialist that Dominy testified had conducted the search, to gain more insight into the EPA’s FOIA search and withholdings. The EPA objected to Pearce’s deposition. On September 2, 2005, during another discovery hearing, the district court ordered that the deposition of Jennifer Pearce be taken regarding her knowledge of the search. On September 6, 2005, the EPA moved for summary judgment which the Tribe opposed. Attached to the EPA’s summary judgment motion were affidavits from Randy Dominy and EPA Region 4 Assistant Regional Administrator Russell L. Wright, Jr. The motion was also accompanied by a Vaughn Index of the withheld documents. The Dominy Affidavit explained the process by which the EPA had conducted its search for records responsive to the Tribe’s two FOIA requests. The Wright Affidavit described the' documents which were withheld, in whole or in part, and explained the basis upon which the records deemed exempt were withheld: The EPA’s dispositive motion was filed while discovery was still pending; therefore, on September 12, 2005, the Tribe requested additional time to file a cross-motion for summary judgment and its opposition to the EPA’s motion for summary judgment. Also on September 12, 2006, the EPA filed a motion for relief from the district court’s September 2, 2005 order regarding the deposition of Jennifer Pearce. On October 3, 2005, the district court granted in part the Tribe’s request for a continuance, denied the EPA’s motion for relief from the discovery order, and ordered the EPA to make Jennifer Pearce available for deposition. On October 7, 2005, the Tribe took Jennifer Pearce’s deposition. Her testimony revealed that she had coordinated the EPA’s search for records responsive to the Tribe’s February and June 2004 FOIA requests and had served as a conduit by forwarding the Tribe’s requests to those EPA employees who could locate and provide responsive records. On October 21, 2005, the Tribe filed its opposition to the EPA’s motion for summary judgment. Attached to its opposition were two affidavits purporting to raise issues of material fact that would prevent judgment as a matter of law. First, the Tribe relied on the affidavit of Dr. Terry L. Rice, its hydrology consultant, who incorporated into his affidavit an e-mail forwarding a scientific article to EPA Scientist Daniel Scheidt. Because the attached e-mail and article had not been produced by the EPA in response to the Tribe’s FOIA requests, the Tribe argued the existence of a genuine issue of material fact concerning the adequacy of the EPA’s search. Second, the Tribe included with its opposition an affidavit by Joette Lorion, an environmental consultant to the Tribe and paralegal to the law firm representing the Tribe. Lorion maintained that: (1) certain consultants to the EPA were, in fact, consultants to the Department of Interior; (2) she had personally seen documents created by EPA attorney Philip Mancusi-Ungaro that were neither produced nor listed as withheld; (3) she was led to believe that the EPA Region 4’s number of responsive documents was far greater than the amount produced; and (4) when she reviewed the State of Florida’s documents on the amended EFA and the Phosphorus Rule, the State had produced a room full of documents as opposed to the several boxes the EPA had produced. Among the requests included in the Tribe’s opposition were additional discovery as well as an in camera review by the court of the withheld documents. When the Tribe re-articulated its concerns regarding the EPA’s FOIA search and withholdings at the November 17, 2005 pre-trial conference, the district court permitted the Tribe to take additional discovery prior to resolution of the motions for summary judgment. Specifically, in its December 6, 2005 Order, the district court directed the EPA to present the following employees for deposition as to matters related to the scope and adequacy of the agency’s records search: Philip Mancusi-Ungaro, EPA Region 4 attorney advisor on water quality issues; Daniel Scheidt, EPA Region 4 senior water quality scientist; and Cecilia Harper, environmental scientist who helped with the FOIA search. Moreover, in light of the Tribe’s concerns that the EPA’s Vaughn Index was not specific enough, and that the EPA was improperly invoking numerous privileges pursuant to Exemption 5 of FOIA, the district court agreed to conduct an in camera review of the withheld documents. The district court also directed the parties to file supplemental motions for summary judgment following the completion of the additional discovery. On January 9-10, 2006, the Tribe deposed the three EPA employees — Harper, Scheidt, and Mancusi-Ungaro. During his deposition, Scheidt testified that he possessed many responsive documents, including e-mail messages, copies of presentations and personal notes, that he had failed to produce in response to the Tribe’s FOIA requests. Thereafter, the EPA conducted a supplemental search of Scheidt’s files only and on February 13, 2006, produced thirty additional documents responsive to the Tribe’s 2004 FOIA requests. On January 17, 2006, following the in camera review, the district court determined that all of the EPA documents reviewed by the court had been properly designated as privileged. On February 21, 2006, both the Tribe and the EPA filed supplemental summary judgment briefs to the district court addressing new developments including newly discovered evidence. In its supplemental filing, the EPA announced that it was withholding three additional documents that it discovered subsequent to the Scheidt deposition. The EPA also relied on, and filed copies of, the depositions of Mancusi-Ungaro, Scheidt, and Harper and affidavits from Scheidt and EPA Assistant General Counsel Byron R. Brown. The EPA further supplemented its motion with a copy of the Tribe’s December 23, 2005 FOIA request seeking additional records that had been produced since the February 2004 FOIA request. In its supplemental filing, the Tribe asserted that additional discovery had revealed factual discrepancies that compelled the denial of the EPA’s motion for summary judgment. The Tribe also requested that the district court grant summary judgment in its favor and order the EPA to conduct a new search for responsive documents to the February 18, 2004 and June 3, 2004 FOIA requests. On March 7, 2006, after an in camera review of the withheld documents identified as privileged after the Scheidt deposition, the court held those documents had also been properly withheld. On April 5, 2006, the district court granted summary judgment to the EPA holding that the EPA’s FOIA search was adequate. The Tribe filed a timely notice of appeal. The Tribe appeals from the district court’s April 5, 2006 Final Order regarding the adequacy of the search, as well as the court’s two previous orders regarding the exempt status of those documents on the basis of privilege. II. ISSUES PRESENTED We must address two questions in this case. First, did the district court properly grant the EPA’s motion for summary judgment regarding the reasonableness and adequacy of its search for, and disclosure of, responsive documents to the Tribe’s February and June 2004 FOIA requests? Second, did the district court err in sustaining the EPA’s assertion of privileges and consequent withholding of responsive documents under FOIA Exemption 5? III. STANDARD OF REVIEW A. Review of Summary Judgment Regarding Adequacy of FOIA Search This court reviews a district court’s grant of summary judgment in a FOIA case de novo, viewing all facts and reasonable inferences in the light most favorable to the non-moving party, and applying the same standard used by the district court. Office of Capital Collateral Counsel, N. Region of Fla. v. U.S. Dep’t of Justice, 331 F.3d 799, 802 (11th Cir.2003); Tullius v. Albright, 240 F.3d 1317, 1319-20 (11th Cir.2001). “Generally, FOIA cases should be handled on motions for summary judgment, once the documents in issue are properly identified.” Miscavige v. I.R.S., 2 F.3d 366, 369 (11th Cir.1993). Summary judgment is appropriate if the pleadings, depositions, admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). A factual dispute between the parties will not defeat summary judgment unless it is both genuine and material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is “material” if it would affect the outcome of the suit under the governing law, and “genuine” if a reasonable trier of fact could return judgment for the non-moving party. Id. B. Review of Sustainment of Section 5 Privileges Claim This Court has held that in reviewing a finding of privilege for exemptions, we have the duty to determine whether: (1) the district court “had an adequate factual basis for the decision it rendered;” and (2) the decision reached by -the district court was clearly erroneous. Ely v. F.B.I., 781 F.2d 1487, 1490 (11th Cir.1986) (citations omitted); Currie v. I.R.S., 704 F.2d 523, 528 (11th Cir.1983). IV. DISCUSSION A. Summary Judgment Regarding Ade- ' quacy of FOIA Search The purpose of FOIA “is to encourage public disclosure of information so citizens may understand what their government is doing.” Office of the Capital Collateral Counsel, 331 F.3d at 802. Congress enacted FOIA to “enable the public to have access to government information that is unnecessarily shielded from public view.” Nadler v. U.S. Dep’t of Justice, 955 F.2d 1479, 1484 (11th Cir.1992), overruled on other grounds by U.S. Dep’t Of Justice v. Landano, 508 U.S. 165, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993). The Tribe’s arguments on appeal, organized in their logical progression, are as follows: (1) as a threshold matter, the evidence presented by the EPA was simply not sufficient to even' permit the district court to make a determination on the merits regarding the adequacy and reasonableness of the search; (2) even if the EPA’s evidence was sufficient, the trial court improperly resolved disputed issues of fact by granting summary judgment when it should have denied summary judgment and conducted an evidentiary hearing to resolve “numerous inconsistencies in the testimony;” and (3) even if the Rule 56 evidence was sufficient and undisputed, the summary judgment record demonstrates that the search was not adequate or reasonable to warrant a grant of summary judgment. Each argument is addressed below in turn. 1. Sufficiency of the Evidence Before the Trial Court The Tribe first argues that the evidence presented by the EPA was simply not sufficient for the district court to determine on the merits whether the search was adequate and reasonable. This is a threshold issue. Setting aside the question of whether the search was reasonable based upon the Rule 56 record, the court must determine whether the Rule 56 record before the trial court was adequate for it to make a summary judgment determination. The Tribe’s argument is two-fold: (1) the Dominy Affidavit alone is not sufficient evidence of the reasonableness of the search because he did not participate in it; and (2) the testimony before the trial court did not contain the requisite level of detail regarding the specifics of the search to allow the court to ascertain its reasonableness. a. The EPA’s Rule 56 Evidence Before the court can address the Tribe’s arguments, however, it is important to review the principal Rule 56 evidence presented by the EPA regarding its searches. i. Affidavit of Randy Dominy and Deposition of Jennifer Pearce The EPA’s primary testimony regarding the searches incident to the Tribe’s February and June FOIA requests arose from two sources. First, the EPA relied on the affidavit of Randy Dominy, the current Region 4 Chief of the EPA FOIA and Records Services Division. Dominy, who was the representative designated by the EPA to demonstrate that the search was adequate in response to the magistrate judge’s July 15, 2005 discovery order, testified concerning the scope and process of EPA FOIA searches in general and the February and June FOIA searches in particular. Second, the EPA proffered the deposition testimony of Region 4 Records Section FOIA specialist Jennifer Pearce, to whom the Tribe’s requests were routed when they came through the Records Section. According to Dominy, with respect to the February request, Pearce contacted Mancusi-Ungaro, an EPA attorney adviser on Everglades water issues, and Harper, an environmental scientist who had reviewed State of Florida water quality standards, and asked them to search for records responsive to the Tribe’s FOIA request and to identify other personnel who would also have responsive records. Additional EPA Region 4 employees conducted searches of their files, including Fritz Wagener and Gail Mitchell. Moreover, documents were produced by Jim Keating from EPA Headquarters in Washington, D.C. After a number of additional personnel were identified as persons who may also have responsive documents (sixteen in all), those EPA employees were provided with the Tribe’s February FOIA request and asked to search all “correspondence, electronic transmissions, draft documents, briefing materials, and other relevant materials in any hard copy and electronic files to which they had access.” Dominy also averred that a similar search was performed for the supplemental June FOIA request. ii. Cecilia Harper Testimony Pearce testified that upon receipt of the Tribe’s February FOIA, she contacted Mancusi-Ungaro. Additionally, Pearce asked Cecilia Harper, an environmental scientist in the Water Management Division, for names of personnel who would have responsive records. Pearce began searching all EPA programs for information about the February FOIA request. Once she found programs that might have responsive documents, she sent a copy of the February FOIA request to the EPA employees she thought might have documents and delivered a copy to a coordinator in each division. According to Cecilia Harper, she reviewed her e-mails for documents responsive to the Tribe’s FOIA request and gathered all of her relevant hard copy documents which she had arranged in binders by subject. Harper testified that she provided to Pearce all responsive emails, in both her archives and her electronic inbox, in addition to all of her hard copy binders. Hi. Daniel Scheidt Testimony Daniel Scheidt, a senior water quality scientist at the EPA, testified with respect to the February request that he conducted a similar search of his electronic and hard copy documents. Scheidt indicated that he read the entire document request, number-by-number, looked at each numbered request to determine whether or not he had any documents in his possession that may be responsive, and if he did have any responsive documents, copied them and produced them. Scheidt indicated that he did not produce “publicly available documents” because his understanding was that the Tribe did not seek documents in that category. However, during his deposition, Scheidt testified that he realized there may have been some internal EPA notations on certain publicly available documents that would be responsive to the Tribe’s request because they would not be in the public domain. Accordingly, after his deposition, Scheidt again reviewed his files and produced thirty additional documents. While Scheidt could not recall personally receiving the Tribe’s June FOIA request, he stated in his affidavit that any documents in his possession that were responsive to the June request would have been produced in response to the February FOIA request. iv. Phillip Mancusi-Ungaro Testimony Finally, Mancnsi-Ungaro said that he searched his electronic and hard copy files and produced all documents he believed were responsive. Like Scheidt, Mancusi-Ungaro did not consider publicly available documents to be responsive. Having summarized the relevant EPA evidence before the district court on summary judgment, we now turn to the Tribe’s two arguments that the above-described evidence was insufficient for the district court to even consider the issue of reasonableness. b. Sufficiency of the Dominy Affidavit The Tribe first contends that the affidavit of Dominy, the representative designated by the EPA to demonstrate that the search was adequate, is insufficient evidence by which to judge the search’s reasonableness because he'was not the person who conducted the search and was not even in his position at the time the search was conducted. It is true that Dominy is the current Region 4 Chief of the EPA FOIA and Records Services Division. However, it is also undisputed that Domi-ny did not personally perform the search regarding the Tribe’s FOIA requests; Jennifer Pearce was the employee who coordinated those efforts. The EPA points to at least two other Circuits that have held that the agency employee who actually performed a search need not be the one to supply an affidavit or sworn testimony describing the adequacy of the search so long as an official responsible for supervising the search efforts has provided testimony in one form or another. See Maynard v. C.I.A., 986 F.2d 547, 560 (1st Cir.1993) (holding that affidavits of officials responsible for supervising search efforts are sufficient to fulfill the personal knowledge requirement of Fed.R.Civ.P. 56(e)); Patterson v. I.R.S., 56 F.3d 832, 840-41 (7th Cir.1995) (holding that declarant’s reliance on a standard search form completed by his predecessor was appropriate). Although this Circuit has not pronounced a rule requiring testimony from the person who performed the search in order to demonstrate its adequacy under Rule 56, it need not do so in this case. Because the district court below granted depositions of other agents who actually performed the search, and because those depositions were submitted in the Rule 56 record, this court need not reach the issue of whether the Dominy Affidavit, in isolation, would be sufficient to demonstrate the adequacy of the FOIA search. Here, the Tribe not only deposed Dominy, but also Pearce who undisputedly participated in the search. As the district court correctly noted in its summary judgment order in favor of the EPA, whether that affidavit was adequate, in isolation, was irrelevant because “the Court ... granted wide latitude to the Plaintiff in conducting additional discovery.” c. Sufficiency of the Level of Detail in the Testimony Thus, the court turns to the second layer of the Tribe’s sufficiency argument — the level of search detail outlined by the testimony as a whole. The Rule 56 record includes five depositions that were taken in this case. In each of those depositions, the Tribe questioned the deponent regarding how he or she conducted a search, which files were reviewed, what search terms were used, how the documents were produced to Pearce, whether any documents were withheld from production, who made the decisions about withholding, and other relevant questions. Pearce testified that she was asked specific questions about the substance of Dominy’s Affidavit, including who searched for responsive documents. She corroborated the points in Dominy’s Affidavit regarding the people and offices that were contacted. Thus, the Tribe’s singular focus on the Dominy Affidavit is misguided. It is irrelevant that Dominy failed to aver that “all files likely to contain responsive materials were searched” and did not detail the exact procedures used by each individual involved to search for records, including how the records were searched and the search terms used, the type of search performed, or which files were searched. Although Dominy described only in general terms how the EPA logged and filtered the request to various employees throughout the agency (i.e., Dominy’s office contacted sixteen EPA employees regarding the Tribe’s FOIA requests, that is only one part of the complete picture). The deposition testimony from other individuals who actually performed the search fills in any missing blanks about the specifics of how the search was conducted. To be sure, the Tribe did not have the opportunity to depose all sixteen employees involved in the search in order to ask each and every one of them specific questions about their searches. But that is not the issue here. The Tribe does not contend on appeal that it was erroneously denied adequate discovery. Rather, the question is whether the district court needed testimony before it from each of the sixteen employees that the EPA identified in order to consider the adequacy of the search — as the Tribe puts it, to have testimony from each individual involved regarding whether they searched the same kinds of records or whether some performed one kind of search and others performed a different kind of search, or even whether all sixteen employees actually searched. The Tribe maintains that such exacting testimony from each person involved is called for in light of decisions such as the D.C. Circuit’s opinion in Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57 (D.C.Cir.1990), which requires “reasonable detail, that the search method ... was reasonably calculated to uncover all relevant documents.” Oglesby, 920 F.2d at 68. Specifically, Oglesby held that: [a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched, is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment. Oglesby, 920 F.2d at 68. Later in Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548 (D.C.Cir.1994), the D.C. Circuit reiterated that “agency affidavits that ‘do not denote which files were searched, do not reflect any systematic approach to document location, and do not provide information specific enough to enable [the requestor] to challenge the procedures utilized’ are insufficient to support summary judgment.” Steinberg, 23 F.3d at 552. This Circuit has not imposed the specific requirements set forth in the D.C. Circuit. Nor has it even come close to adopting a more exacting rule like that suggested by the Tribe here — a rule that would extend beyond Oglesby and Steinberg to require not just one reasonably detailed affidavit on behalf of the EPA setting forth the required details, but testimony from every participant in the search setting forth terms used, the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched. This Circuit has only stated that “the agency must show beyond a material doubt ... that it has conducted a search reasonably calculated to uncover all relevant documents.” Ray v. U.S. Dep’t of Justice, 908 F.2d 1549, 1558 (11th Cir.1990). To pronounce a rule in this Circuit setting forth the Tribe’s requested extension of the D.C. Circuit rule would place too heavy a burden on an agency responding to a FOIA request to provide testimony from each individual involved in the FOIA search. Implicit in the Tribe’s argument is its disapproval of the fact that the employees involved in the search maintain their files in individual manners and, hence, went about their searches in individual methods. No one, however, testified that they held back documents that they thought were responsive with the exception of the now disputed “publicly available documents” (addressed infra). Thus, the better course here is to ask whether, based upon this court’s prior precedent and the plethora of evidence in this case, the Dominy Affidavit, in conjunction with the other deposition testimony provided, provided sufficient evidence for the trial court to determine whether the EPA “conducted a search reasonably calculated to uncover all relevant documents.” Ray v. U.S. Dep’t of Justice, 908 F.2d 1549, 1558 (11th Cir.1990) (quotations omitted), rev’d on other grounds, U.S. Dep’t of State v. Ray, 502 U.S. 164, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991). We answer this threshold question in the affirmative. 2. Whether Disputed Issues of Fact Preclude Summary Judgment The Tribe next maintains that even assuming the evidence provided a sufficient basis upon which the court could judge the reasonableness of the search, rather than granting summary judgment, the district court should have conducted an evidentia-ry hearing to resolve “numerous inconsistencies in the testimony.” This argument again sets aside the merits question of whether the search was adequate, and instead challenges the district court’s definition of certain factual discrepancies as “irrelevant.” According to the Tribe, the district court inappropriately relied on a sister case from its district for the proposition that an agency is entitled to summary judgment “if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced ... or is wholly exempt from the Act’s inspection requirements.’ ” Florida Immigrant Advocacy Ctr. v. Nat’l Sec. Agency, 380 F.Supp.2d 1332, 1336-37 (S.D.Fla.2005). Instead, the Tribe believes that, given the number of relevant disputed facts, the district court should have looked to a different case from the Southern District of Florida that advocates conducting an evidentiary hearing to resolve the disputed factual issues. Sun-Sentinel Co. v. U.S. Dep’t of Homeland Sec., 431 F.Supp.2d 1258, 1276 (S.D.Fla.2006) (disputed issues of material fact made summary judgment in FOIA case inappropriate and the court must hold an evidentiary hearing to resolve the factual issues). The Tribe’s argument regarding factual disputes in the Rule 56 record focuses primarily on alleged inconsistencies between the averments in Dominy’s Affidavit and the Rule 56 testimony provided by other deponents. In his affidavit, Dom-iny claimed that, upon receipt of the Tribe’s February 18, 2004 FOIA request, his office contacted Mancusi-Ungaro and Harper and asked them to identify other personnel who might have records responsive to the Tribe’s request. The Tribe asserts that the district court only considered that portion of the Rule 56 evidence that supported its conclusion that the search was adequate. Specifically, the Tribe points to three categories of disputed evidence that it believes should have prevented the grant of summary judgment: (1) evidence from Scheidt that he did not recall responding to the June request; (2) deposition testimony that contradicts Dominy’s Affidavit that responsive documents were produced, and demonstrates that certain documents were not produced even though they were responsive; and (3) evidence regarding who should have been contacted for records and who actually coordinated the search. The court will address each argument in turn. a. Evidence that Scheidt Did Not Recall Responding to the June Request The Tribe points again and- again to evidence that at least one employee on Dominy’s list — Dan Scheidt, the lead scientist on the phosphorus criterion — appears to have been overlooked with respect to the search in response to the June 3rd FOIA request concerning the default phosphorus criterion. Dominy claimed that each person listed in his Affidavit received a copy of the February 18th FOIA request and was again contacted about the Tribe’s June 3rd FOIA request. Dominy also stated that all employees working on the EPA’s phosphorus criterion — presumably including Scheidt — searched for responsive records. However, Scheidt testified that he did not recall providing documents responsive to the Tribe’s June 3rd FOIA request which targeted documents concerning his area of expertise. The district court’s order recognized that “Scheidt [ ] indicated he did not recall responding to Plaintiffs second request.” The Tribe contends that whether Scheidt received the June 3rd request, and whether he ever responded it to it, are issues of material fact that are relevant to the adequacy of the search and that the district court should have ordered a new search so that Scheidt could determine whether he had additional documents responsive to Plaintiffs requests. The EPA maintains that the Tribe is simply mistaken and that there is not an issue of material fact regarding whether Scheidt was ever sent the June 2004 FOIA request given his testimony that no new documents would have been produced after the February FOIA. The undisputed testimony indicates the following: (1) Scheidt testified at his deposition that he had other documents responsive to the Tribe’s FOIA requests that he did not produce because he assumed the Tribe had them; (2) Scheidt further testified that he excluded from his disclosure scientific publications, agency reports, journal articles and Florida Environmental Regulation Commission (“ERC”) testimony; (3) after the deposition, the EPA provided to the Tribe more than 30 documents from Scheidt; and (4) Scheidt later provided a sworn Affidavit stating that any documents in his possession that would have been responsive to the June 2004 FOIA request were also responsive to the February 2004 FOIA request that he did receive and to which he did respond. Even now, after having received additional documents from Scheidt, the Tribe still believes that the EPA’s search was not adequate to uncover all Scheidt’s documents based solely on the fact that he did not recall seeing or responding to the Tribe’s June 3rd request. Scheidt has admitted that he did not recall the request specifically, but he has also explained his efforts to locate responsive documents and produce them after the time that the request was made. Even if he did not lay eyes on the request in written form, his post-request search would have covered any documents responsive thereto. Therefore, his admission does not create a disputed fact. The undisputed evidence indicates that Scheidt was deposed and asked questions about what documents he had and what he did to search for documents that would have satisfied both requests. We find that the district court did not err in finding that Scheidt’s testimony was undisputed and that his testimony did not create a material issue of fact regarding his search. b. Deposition Testimony Indicating that Specific Responsive Documents Were Not Produced Next the Tribe points to several alleged inconsistencies between what the deponents thought they had provided and what was actually provided. For example, Scheidt testified that he had produced documents responsive to the Tribe’s FOIA request concerning effects on the Tribe as a downstream user. The Tribe believes, however, that based upon a review of the document list and Vaughn Index, those documents were not provided. Additionally, Scheidt admitted that he failed to produce notes of ERC meetings — notes that the Tribe believes were clearly requested by the February 18th request and should have been produced. Finally, Maneusi-Ungaro admitted at his deposition that the EPA had failed to produce a document he had faxed to the State of Florida that was responsive to the Tribe’s FOIA requests. Mancusi-Ungaro also said that he could not recall whether he sent other documents to the State of Florida that would have been responsive to the FOIA requests. Based principally on these examples, the Tribe points to inconsistencies between what the EPA averred was provided and what the testimony shows should have been provided but was not. The EPA does not offer a specific response to each of the documents identified by the Tribe above, opting instead to argue generally that an agency is not required to prove that every single responsive document was produced to demonstrate the adequacy of the search. See Nation Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 892 n. 7 (D.C.Cir.1995). Accordingly, the EPA maintains that a search is not presumed unreasonable simply because an agency failed to produce all relevant documents. Nation Magazine, 71 F.3d at 892 n. 7. c. Evidence Regarding Other Employees Who Had Records Who Were Not Contacted and Who Actually Coordinated the Search The Tribe next highlights what it considers to be contradictory evidence regarding how the search was conducted. First, the Tribe notes that even though Dominy lists Richard Harvey (Director of the EPA’s South Florida office in West Palm Beach and an employee of Region 4 Water Division) as a person who received both requests, there is no documented proof in the record that Harvey ever received or responded to the requests. Mancusi-Un-garo testified that he does not recall giving Harvey’s name to Pearce, and Harper said she did not coordinate with Harvey to gather documents. Nevertheless, despite the Tribe’s arguments, testimony from Pearce indicates that she gave Harvey the FOIA requests. Further, in a search of this magnitude, the lack of witness recollection of specific contact with Harvey does not create a material disputed fact. The Tribe also accuses Dominy and Pearce of misrepresenting that Mancusi-Ungaro had a more active role in coordinating the search, while Mancusi-Ungaro testified that he merely searched for documents in his possession, but had no role in contacting employees or conducting the search. Moreover, the Tribe asserts that the EPA’s claim (through the testimony of Pearce) that Harper was the “coordinator” chosen to filter the FOIA requests and gather documents from other employees was contradicted by Harper’s own testimony that, with regard to the February request, she delivered only her own documents to Pearce. Indeed, contrary to both the Dominy Affidavit and Pearce deposition, other evidence in the record suggests that, as to the June request, Harper did not provide names or act as a coordinator. Again, the EPA does not specifically respond to any of the Tribe’s assertions or the supporting evidence, averring only generally that “the Tribe repeatedly mis-characterizes Pearce’s role as having searched for responsive records when, in fact, Pearce coordinated the search for responsive records.” The EPA’s failure to address these issues head on is not only troubling, but fatal to its position on this appeal. The evidence to which the Tribe points goes beyond suggesting that the EPA failed to produce a stray document or two. Rather, the inconsistencies in the testimony indicate that the process employed by the EPA was defective, thereby rendering its FOIA search and response inadequate. Accordingly, we find there are material issues of fact regarding whether those conducting the search reasonably made an effort to contact all employees who had responsive records and whether the search efforts were properly coordinated. For this reason alone, the district court’s grant of summary ■ judgment in favor of the EPA on the adequacy of the search was inappropriate. • 3. Whether the Undisputed Facts Demonstrate that the EPA’s Search Was Adequate and Reasonable In the final alternative, the Tribe maintains that even if the evidence before the district court was sufficient to determine the adequacy of the search and was undisputed, it did not demonstrate that the search was adequate and reasonable to warrant the granting of summary judgment. Specifically, the Tribe takes issue with the EPA’s explanations for: (1) not producing any documents in the “publicly available” category; and (2) belatedly producing 160 documents as a supplemental FOIA response. a. Whether the EPA’s Exclusion of Voluminous Publicly Available Documents Was Reasonable The main — and perhaps best — argument presented by the Tribe is that the EPA inappropriately excluded from its FOIA production all documents they deemed to be “publicly available,” and that the district court improperly found the evidence on this issue to be undisputed and the exclusion to be reasonable. We have reviewed this evidence de novo, and find that a material issue of fact exists with respect to that exclusion of documents. The undisputed evidence' indicates the following. When the EPA began the process of responding to the Tribe’s February FOIA request, both Scheidt and Mancusi-Ungaro told Pearce that the responsive documents might be voluminous. In light of this .suggestion and the sheer number of EPA sectors and employees initially contacted about the request, the EPA wrote to the Tribe on March 2, 2004 requesting additional time until July 2004 to respond. In its June 2004 reply to the EPA, the Tribe stated: “we [do] not agree the request [is] voluminous ... and ... we [have] no desire to have EPA produce voluminous publicly released documents which tue already have.” (emphasis added). The EPA “interpreted” the Tribe’s desire not to receive voluminous publicly released documents it already had to be license for the EPA to exclude all publicly available documents in addition to all duplicate documents. EPA witnesses alluded to an e-mail issued by Pearce to those who had been asked to produce documents indicating that certain voluminous and publicly available documents should be excluded from their production. The Tribe’s February 18th FOIA request on its face seeks “any and all records,” and even the Tribe’s June 3rd FOIA request, which contains the operative statement about “voluminous” publicly available documents, also asks for “all records.” Nevertheless, the district court concluded that “it is entirely reasonable to exclude documents available to the public from a FOIA request, especially where the Plaintiff specifically exclaims that it has ‘no desire to have EPA produce voluminous publicly released documents.’ ” In essence, the court drew its own conclusion about what the Tribe could reasonably request — it saw “no reason why it should require the EPA to produce documents that are available to the general public.” Pearce testified that upon receipt of the Tribe’s February FOIA, she contacted Mancusi-Ungaro. Additionally, Pearce asked Cecelia Harper, an environmental scientist in the Water Management Division for names of personnel who would have responsive records. Pearce began searching all EPA programs for information about the February FOIA request. Once she found programs that might have responsive documents, she sent a copy of the February FOIA request to the EPA employees she thought might have documents and delivered a copy to a coordinator in each division. The fallacy of the EPA’s logic, however, is that it focuses on what the Tribe could have, or should have, reasonably requested — not on what the EPA should have reasonably found or produced in response to what was actually sought by the FOIA requests as written. The question of whether the Tribe’s FOIA requests were reasonable as written was not before the trial court. Rather, the focus should have been on whether the EPA’s interpretation of, and efforts to fulfill, those requests were reasonable and adequate. Here the undisputed evidence — highlighted by the EPA’s own omission of critical language from the Tribe’s request — demonstrates that the EPA’s self-imposed limitations on its search were unreasonable and inaccurately depicted what the Tribe really sought. Indeed, the conclusion that it is entirely reasonable to exclude documents available to the public from a FOIA request comes dangerously close to taking on a legislative role — ie., establishing a new FOIA wholesale exemption for all public, or publicly available, documents that does not exist in the statute as one of the nine exemptions legislated by Congress. Moreover, the conclusion that it seems reasonable to exclude publicly available documents when responding to a FOIA request begs the question. Unless a document falls into one of the nine recognized exemptions from disclosure under FOIA, it is due to be disclosed. Additional evidence before the district court also indicated that the EPA’s limited “interpretation” of the June FOIA request was unreasonable in the Rule 56 record, but that evidence was not mentioned in the district court’s summary judgment opinion. Apparently, after the June request was issued, the Tribe clarified its earlier instruction not to produce voluminous publicly available documents the Tribe already possessed. In fact, the Tribe and EPA agreed that only certain specifically-identified documents should be excluded as part of that category. Joette Lorion, the Tribal representative who actually participated in the conversation with the EPA (at that agency’s request) regarding which documents could be excluded from production, filed an Affidavit in the district court stating that she never told the EPA it could exclude all publicly released or available documents. Lorion claimed that the only documents the Tribe agreed that the EPA did not have to produce were “voluminous” documents publicly available on the EPA web site, such .as the EPA’s Water Quality Standards Handbook. Lorion specifically disputed the testimony of EPA employees that suggested the Tribe’s FOIA request did not seek State of Florida documents in the possession of the EPA. Lorion also disputed that the scientific documents the EPA admittedly failed to provide were “voluminous,” were publicly available, or could be found on the EPA or State of Florida web sites. The district court’s summary judgment analysis does not even mention the Lorion Affidavit or her denial that the Tribe told the EPA that it could exclude broad categories of documents. Moreover, the EPA’s brief to this Court does not directly address the district court’s omission of the Lorion Affidavit in its recitation of the evidence, nor does it challenge Lorion’s statement that she met with EPA officials and specifically told them what publicly available documents to exclude. Rather, the EPA takes issue with Lorion’s conclusion regarding which scientific documents were publicly available, maintaining that it was perfectly reasonable for the EPA to have excluded many of those documents. These arguments simply do not diminish the effect of the Lorion affidavit on the Rule 56 record. In addition to Lorion’s Affidavit, there is Rule 56 record evidence indicating that the timing of the EPA’s decision to exclude “publicly available” documents was somewhat dubious. The Tribe’s supplemental request that mentioned, for the first time, the phrase “publicly available documents” was not submitted to the EPA until June 2004. Even assuming that the Tribe’s “desire” was an instruction to the EPA not to produce documents in that category, that instruction undisputedly did not apply to the first February 2004 FOIA request. Thus, it makes no logical sense that all of the EPA deponents could have concluded “that the Tribe was not seeking publicly available documents at the time of the February and June FOIA requests.” Because the “publicly available documents” language made its first appearance in June 2004, the EPA had no basis upon which to exclude publicly available documents of any kind from the February 2004 search. These facts not only demonstrate a disputed issue of material fact, but also raise substantial concerns about the manner in which the EPA responded to the Tribe’s requests. We also question whether the EPA properly interpreted the Tribe’s “desire” regarding voluminous publicly available documents in light of the need to “construe a FOIA request liberally.” Florida Immigrant Advocacy Ctr. v. National Security Agency, 380 F.Supp.2d 1332, 1345 (S.D.Fla.2006) (quoting LaCedra v. Executive Office for U.S. Attorneys, 317 F.3d 345, 348 (D.C.Cir.2003)). Even if the EPA found the scope of the Tribe’s June 3rd request to be ambiguous, it was obliged under FOIA to interpret both that request, and certainly the unambiguous February request before it, liberally in favor of disclosure. In light of this obligation, the EPA could not, consistent with its statutory responsibilities under FOIA, equate the Tribe’s statement that it had “no desire [for the EPA] to produce voluminous publicly released documents which we already have” (emphasis added) with tacit permission to blanketly exclude from production “all publicly available documents” regardless of whether they were voluminous and regardless of whether the Tribe already had them. As the Tribe notes, there is a significant difference between the omission of “voluminous publicly available documents that we already have” and disregarding any and all “publicly available documents.” For all of these reasons, after a de novo review and under the circumstances presented here, we find that the EPA’s self-imposed limitation to blanketly exclude all publicly available documents from its FOIA disclosures raises at least a material issue of fact. b. Whether the EPA’s Supplemental Late Production of 160 Documents Was Reasonable Next, the Tribe points to the 160 additional documents that were found after Dominy and Pearce had averred that all responsive documents had been produced or properly withheld under a FOIA exception as evidence that the search was inadequate. On two occasions after this litigation ensued, the EPA provided additional documents to the Tribe — 130 documents previously withheld from production for a claimed privilege that the EPA later reconsidered and thirty additional documents produced after Scheidt’s deposition which included e-mail messages and copies of presentations in addition to handwritten notes. The Tribe notes both the significant number of supplemental documents (especially when compared to the two and one-half boxes initially provided) and the timing of the productions as indicative of the search’s inadequacy. It is true that the first supplemental production of 130 documents occurred nearly twenty months after the Tribe’s initial FOIA request, and almost five months after litigation ensued. Nonetheless, the Tribe has not specifically argued that any of the 130 documents (released at the discretion of the EPA OGC and Assistant Regional Administrator Wright) fail to qualify for a privilege. Instead, the Tribe asserts only generally that those documents “should” have been produced with the EPA’s initial disclosure, and focuses on the timing of the EPA’s determination that the 130 documents are privileged. It is true, of course, that an agency generally has discretion to disclose exempt information if it sees fit to do so. Chrysler Corp. v. Brown, 441 U.S. 281, 293-94, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979). The Tribe has not challenged the basis for that claim of exemption, but instead — ironically — criticizes the EPA for changing its mind about the claimed exemption at such a late date. This does not change the fact, however, that the decision to assert or withdraw a proper claim of exemption is solely within an agency’s discretion. With respect to his production of the thirty documents, Scheidt testified that he genuinely believed that the Tribe said it had “no desire to have EPA produce voluminous publicly released documents” and therefore, when the Tribe indicated in Scheidt’s deposition that it was interested in his personal notes on public documents, mostly ERC public meeting handouts, Scheidt searched for them. Although the Tribe complains that the Scheidt supplemental production contained e-mails that were not personal notes, the EPA maintains that the fact that some de minimus number of documents were overlooked in the initial FOIA search does not prove that the search was in bad faith or inadequate. This Circuit has not established a rule regarding the inference to be drawn from the late discovery and late release of additional documents responsive to a FOIA request. Relying on Goland v. CIA, 607 F.2d 339, 370 (D.C.Cir.1978), the Tribe contends that the “ ‘[discovery of additional documents is more probative that the search was not thorough than if no other documents were found to exist.’ ” The Tribe further contends that a requestor may support an allegation of bad faith by presenting evidence that additional, reasonable documents exist. See Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981). Citing a different case from a district court in the D.C. Circuit, the EPA casts a different light on the late document productions, theorizing that the further search and additional release are not an indication of the inadequacy of its search but further evidence of the agency’s dedication to fully complying with its FOIA obligations. See Western Center For Journalism v. I.R.S, 116 F.Supp.2d 1, 10 (D.D.C.2000) (finding that an agency’s release of additional responsive records mistakenly omitted from its initial response did not demonstrate bad faith since “it is unreasonable to expect even the most exhaustive search to uncover every responsive file; what is expected of a law-abiding agency is that the agency admit and correct error when error is revealed”). The EPA also reiterates that FOIA requires an agency to conduct a reasonable search, but that search need not be perfect in order to be reasonable. See Meeropol v. Meese, 790 F.2d 942, 956 (D.C.Cir.1986) (“[A] search need not be perfect, only adequate, and adequacy is measured by the reasonableness of the effort in light of the specific request.”). Thus, a valid question before this court is what inference, if any, can be or should be drawn from the late production or disclosure of FOIA documents. We are not certain that a “one size fits all” answer to that question exists. Rather than announcing that a certain inference can always be drawn from such a late production, we believe that the better course is to evaluate the reasoning behind the delay. In this case, because the EPA has offered a reasonable explanation for the late production of the two categories of documents in this case, the court finds that the district court did not err when it failed to draw any adverse interest against the EPA due to its late disclosure of the documents in question. B. The Section 5 Privileges Claim Section 552(b)(5) exempts from FOIA disclosure any “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The statutory provision, known as Exemption 5, incorporates into FOIA the statutory and common law privileges normally available to a party in civil discovery. Here, the EPA withheld documents pursuant to the Section 5 Exemption in three categories of privilege — deliberative process, attorney-client, and attorney work product. Although privileged portions of documents may be withheld, “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b) (sentence following the exemptions). Based upon FOIA’s statutory language and Congressional intent, courts have expounded upon the level of information required from an agency to support its claimed privileges under Exemption 5. The D.C. Circuit observed in Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), that because the nature of FOIA “seriously distorts the traditional adversary nature of our legal system’s form of dispute resolution,” 484 F.2d at 824, the agency must give the requester of information “adequate specificity ... to assur[e] proper justification by the governmental agency,” id. at 827. The Vaughn decision marked the beginning of a tool (and in some Circuits, a requirement) that is widely referred to as the “Vaughn Index” — ie., a list containing the information claimed as exempt and the corresponding exemption under which it is claimed. The D.C. Circuit later clarified that a Vaughn Index required “a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.” Mead Data Central, Inc., 566 F.2d at 251; see also Dellums v. Powell, 642 F.2d 1851, 1361 (D.C.Cir.1980). This Circuit has held that in FOIA litigation, an agency has the burden of proving that it properly invoked any FOIA exemptions when it decided to withhold information. Ely v. F.B.I., 781 F.2d 1487, 1489-90 (11th Cir.1986). In reviewing a district court’s finding of privilege for exemptions, we have two duties: we must determine (1) whether the district court had an adequate factual basis for the decision rendered; and (2) whether, upon this basis, the decision reached was clearly erroneous. A trial court may utilize alternate methods by which to make the adequate factual basis determination: in camera review and the so-called Vaughn Index. Under the terms of the statute, the decision to conduct an in camera review of the documents and/or resort to the Vaughn Index is discretionary. See N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 224, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) (in camera review); 5 U.S.C. § 552(a)(4)(B) (in camera review); Ely, 781 F.2d at 1491 (Vaughn Index). In addition, the agency may rely on affidavits (in lieu of a Vaughn Index) to meet its burden so long as they provide an adequate factual basis for the district court to render a decision. Miscavige v. I.R.S., 2 F.3d 366, 368 (11th Cir.1993). Accordingly, in this Circuit, an adequate factual basis may be established, depending on the circumstances of the case, through affidavits, a Vaughn Index, in camera review, or through a combination of these methods. Id. In accordance with Ely, our analysis of the district court’s Section 5 rulings in this case begins first with the question of whether the court had before it sufficient evidence supporting the EPA’s claimed exemptions to render a decision on the validity of those exemptions. 1. Whether the Evidence Provided by the EPA Contained Sufficient Detail for the District Court to Make a Ruling on Summary Judgment The Tribe, relying principally on cases from the D.C. Circuit establishing exacting standards for the level of detail required in a Vaughn Index, asserts that the EPA failed to submit evidence supplying “relatively detailed justification^ for exempting documents], specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of the withheld document to which they apply.” Mead Data Central, 566 F.2d at 251. Crucial to our analysis of the Tribe’s arguments is the appropriate standard for reviewing the factual support provided for the exemption under Section 5. a. Appropriate Standard for Determining the Level of Detail Required to Establish a Factual Basis for the Exemption The Tribe asserts that “the requester and the trial judge must be able to derive from the index a clear explanation of why each document or portion of a document withheld is putatively exempt from disclosure.” Campaign For Responsible Transplantation v. U.S. Food and Drug Admin., 180 F.Supp.2d 29, 32 (D.D.C.2001) (internal quotation marks and citation omitted). The Tribe urges this court to reject what it characterizes as the EPA’s “only concluso-ry language that parrots the exemption” and instead adopt the D.C. Circuit’s requirement of two factors that can assist the court in determining whether this [deliberative-process] privilege is ava