Star Publishing Company et al v. United States Fish and Wildlife Service et al

Filing 43

ORDER adopting Report and Recommendations re 36 Report and Recommendation; granting in part and denying in part 22 , 24 Motions for Summary Judgment. The parties Motions for Summary Judgment are DENIED AS MOOT as to Documents One and Two on t he Vaughn Index. This matter case is referred back to Magistrate Judge D. Thomas Ferraro for further pretrial proceedings and report and recommendation in accordance with the provisions of 28 U. S. C. § 636(b)(1) and L.R.Civ.P. 72.1 and 72.2.. Signed by Judge Cindy K Jorgenson on 4/22/2014.(BAR) Modified on 4/23/2014 (BAR).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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STAR PUBLISHING COMPANY;
TONY DAVIS,

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Plaintiffs,
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vs.
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UNITED STATES FISH AND
WILDLIFE SERVICE; UNITED
STATES DEPARTMENT OF
THE INTERIOR,
Defendants.

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No. CIV 13-080-TUC-CKJ
ORDER

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On February 7, 2014, Magistrate Judge D. Thomas Ferraro issued a Report and
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Recommendation (Doc. 36) in which he recommended that the parties' Motions for Summary
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Judgment (Docs. 22 and 24) be granted in part and denied in part. The magistrate judge
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advised the parties that written objections to the Report and Recommendation were to be
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filed within fourteen days of service of a copy of the Report and Recommendation pursuant
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to 28 U.S.C. § 636(b). Plaintiffs and Defendants have each filed objections.
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I. Report and Recommendation
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The magistrate judge recommended Defendants’ Motion for Summary Judgment
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should be granted as to the Memo contained in Document Three and as to Documents Four
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and Six on the Vaughn Index, finding these documents were properly exempted from
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disclosure under Freedom of Information Act ("FOIA") Exemptions 6 and 7(C). See 5
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U.S.C. §§ 552(b)(6) and (7)(C). The magistrate judge further recommended Defendants’
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Motion for Summary Judgment should be granted as to the Interview Transcript contained

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in Document Three and as to Document Five to the extent that personal information should

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not be disclosed. The magistrate judge also recommended Defendants’ Motion for Summary

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Judgment should be denied as to the Interview Transcript contained in Document Three and

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as to Document Five, finding these documents had been overly redacted under Exemptions

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6 and 7(C).

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The magistrate judge recommended Plaintiffs’ Cross-Motion for Summary Judgment

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should be granted as to the Interview Transcript contained in Document Three and as to

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Document Five to the extent that Defendants should disclose less redacted versions of these

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documents.

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Summary Judgment should be denied (1) as to the Interview Transcript contained in

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Document Three and as to Document Five to the extent that personal information should not

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be disclosed, (2) as to the Memo contained in Document Three, and (3) as to Documents

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Four and Six.

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The magistrate judge further recommended Plaintiffs’ Cross-Motion for

Lastly, the magistrate judge recommended the parties’ Motions for Summary
Judgment should be denied as moot as to Documents One and Two on the Vaughn Index.

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This Court "may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C.

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§ 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then

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this Court is required to "make a de novo determination of those portions of the [report and

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recommendation] to which objection is made." The statute does not "require [] some lesser

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review by [this Court] when no objections are filed." Thomas v. Arn, 474 U.S. 140, 149-50,

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106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Rather, this Court is not required to conduct "any

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review at all . . . of any issue that is not the subject of an objection." Id. at 149.

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II. In Camera Review
The Court has reviewed the documents that are the subject of this litigation. These
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documents were provided to the magistrate judge by Defendants; the magistrate judge has

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provided them to this Court. This Court will return the documents to the magistrate judge

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at this time. Upon conclusion of this case, the Court will issue an order regarding the return

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or the retention of these documents.

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III. Privacy Interests – Names of Public Officials and Other Private Individuals

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Plaintiffs argue the names of administrative employees of the United States Fish and

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Wildlife Service ("Service") involved in the Macho B case, including Erin Fernandez

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("Fernandez") and her supervisors, should be disclosed in all of the investigative records

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produced to date by the Service, including Documents Three, Five and Six on the

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Government’s Vaughn Index. Plaintiffs also argue that redaction of the names of Janay Brun

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("Brun") and Emil McCain ("McCain") in the records advances no cognizable privacy

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interest and serves only to obfuscate the public’s ability to interpret the Macho B records and

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evaluate the Service’s handling of the case.

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Plaintiffs point out that Exemptions 6 and 7(C) of FOIA require a court “to balance

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the privacy interests of the individuals protected against the public interest at stake.”

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Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 808 (9th Cir. 1995). Like all of FOIA’s

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statutory exceptions, Exemptions 6 and 7(C) “must be narrowly construed[,]” and “the

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burden is on the agency to sustain its action.” Lion Raisins Inc. v. U.S. Dep’t of Agriculture,

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354 F.3d 1072, 1079 (9th Cir. 2004); 5 U.S.C. § 552(a)(4)(B). Records that shed light on

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government negligence, failure to perform duties, malfeasance in office or other official

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misconduct satisfy the “public interest” standard. Lahr v. National Transp. Safety Bd., 569

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F.3d 964 (9th Cir. 2009); Rosenfeld, 57 F.3d at 811. "Where the public interest advanced is

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that officials were negligent or that they otherwise improperly performed their duties, the

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requester must establish ‘more than a bare suspicion’ of wrongdoing, by ‘produc[ing]

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evidence that would warrant a belief by a reasonable person that the alleged Government

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impropriety might have occurred.’” Lahr, 569 F.3d at 974, citation omitted.

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The evidence of wrongdoing, as set forth by Plaintiffs, is as follows: information

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already known to the public suggests that permits held by Arizona Game and Fish that would

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have allowed it to capture an endangered jaguar under the ESA had expired; there is

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significant evidence that the Service knew of the plan to capture Macho B and did nothing

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to stop it based on alleged email correspondence; an Arizona Congressman criticized the

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Service for attempts to manipulate and cover up actions; Service agents accuse an individual

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of concealing or destroying records and making false statement; an Interior Department

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Inspector General’s report exonerated all federal employees regarding the Macho B incident

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and only two State of Arizona employees were prosecuted; the U.S. Attorney's Office

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allegedly declined to prosecute an individual for criminal prosecution, and; and a witness has

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admitted that he or she was negligent in failing to protect Macho B.

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Plaintiffs argue that the public deserves to know why Service officials were not held

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accountable for their actions (i.e., why the Service’s ‘Jaguar Lead’ was not prosecuted).

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Plaintiffs also assert the “[d]isclosure of the redacted names of public officials and witnesses

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involved in the investigation would allow [Plaintiffs] to fully evaluate the Service’s

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involvement in the Macho B investigation, from its oversight duties under the [Endangered

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Species Act] to its decision not to prosecute employees for obstructing justice.” (Pls.’ MSJ

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at 12). Plaintiffs argue this evaluation would allow them to determine whether employees

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accused of wrongdoing still oversee the endangered species program, determine whether

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employees received preferential treatment, and review what steps the Service has taken to

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avoid similar problems in the future.

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Defendants, however, determined that the privacy interests of third parties, the

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witnesses, and investigators were strong. These individuals have the right to be free from

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unwarranted invasions of privacy and revealing names and identifying information could

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expose them to unwanted harassment, annoyance, harm and derogatory publicity because of

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their connection to the Macho B jaguar investigation. See e.g., Forest Serv. Employees for

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Env. Ethics v. United States Forest Service, 524 F.3d 1021 (9th Cir. 2008). Additionally,

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Defendants considered that disclosure of the names and identifying information would shed

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very little light on government operations.

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The Court recognizes that "the fact that ‘an event is not wholly “private” does not

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mean that an individual has no interest in limiting disclosure or dissemination of the

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information.’” Favish v. Office of Independent Counsel, 217 F.3d 1168, 1184 (9th Cir.

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2000), citations omitted; see also Forest Serv. Employees, 524 F.3d at 1025 n. 3. Therefore,

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simply because some information is already in the public realm, does not obviate the need

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for balancing the privacy concerns against the public interest. Moreover, simply because

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some individuals have provided public information does not mean that any formal waivers

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of privacy concerns have been submitted to the Court. See e.g. Forest Serv. Employees, 524

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F.3d at 1023 (where an individual waived any right to confidentiality, agency provided

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disclosure with all references to that individual unredacted). Lastly, the Court considers that,

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although privacy concerns may be somewhat diminished where the information sought would

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likely disclose official misconduct, id. at 1025, it does not appear that any Service employees

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have been accused of official misconduct based on the Interior Department Inspector

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General’s report exonerating all federal employees regarding the Macho B incident. Id. at

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1026 (disciplinary decisions did not strip employees of privacy interests).

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IV. Document Three – Memo

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Plaintiffs object to the magistrate judge's recommendation that names and identifying

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information continue to be redacted from the Memo. However, the magistrate judge

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recommended that Defendants' Motion for Summary Judgment be granted as to the Memo

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because it cannot be redacted sufficiently to protect the privacy interests of the individuals

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named in the Memo. The Court's in camera review of the Memo reveals that the redaction

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of names and identifying information would insufficiently protect the privacy interests of the

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person identifiable in or by the Memo. Furthermore, the disclosure of the Memo would not

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significantly advance the public interest. Indeed, its disclosure would not serve FOIA's

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central purpose of piercing "'the veil of administrative secrecy and [opening] agency action

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to the light of public scrutiny.’” U.S. Dept. of State v. Ray, 502 U.S. 164, 173 (1991),

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citation omitted. The Court agrees with the magistrate judge that this document is exempted

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from disclosure as the disclosure would constitute a clearly unwarranted invasion of privacy

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under 5 U.S.C. § 552(b)(6) and could reasonably be expected to constitute an unwarranted

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invasion of personal privacy under 5 U.S.C. § 552(b)(7).

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V. Document Three – Transcript

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The Court agrees with the magistrate judge in the balancing of the public interest

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against the privacy concerns as to the transcript included within Document Three. The public

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interest in the disclosure of the names and identifying information does not greatly advance

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the public interest and the disclosure of names and identifying information will not

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appreciably further the public's right to monitor Defendants' actions. Although Plaintiffs

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argue the privacy interests are not weighty, the Court finds the interests are measurable,

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Forest Serv. Employees, 524 F.3d at 1026-27, and the disclosure of names and identifying

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information will not appreciably further the public's right to monitor Defendants' actions. Id.

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at 1027. The disclosure of the names and identifying information would constitute a clearly

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unwarranted invasion of privacy under 5 U.S.C. § 522(b)(6) and could reasonably be

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expected to constitute an unwarranted invasion of personal privacy under 5 U.S.C. §

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552(b)(7).

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VI. Document Five – Interview

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The Court agrees with the magistrate judge in the balancing of the public interest

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against the privacy concerns as to the April 2, 2009 interview conducted by the United States

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Fish and Wildlife Service’s Law Enforcement Office. In weighing the evidence of

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wrongdoing and public interest against the privacy interest, the Court finds the public interest

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in the disclosure of the names and identifying information does not greatly advance the

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public interest. Additionally, the Court finds the interests are measurable, Forest Serv.

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Employees, 524 F.3d at 1026-27, and the disclosure of names and identifying information

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will not appreciably further the public's right to monitor Defendants' actions. Id. at 1027.

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The disclosure of the names and identifying information would constitute a clearly

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unwarranted invasion of privacy under 5 U.S.C. § 522(b)(6) and could reasonably be

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expected to constitute an unwarranted invasion of personal privacy under 5 U.S.C. §

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552(b)(7).

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VII. Document Six – Affidavits

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The Court's in camera review of the affidavits and draft affidavits reveals that the

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redaction of names and identifying information would insufficiently protect the privacy

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interests of the person identifiable in or by the affidavits. The disclosure of the affidavits

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would not significantly advance the public interest. The Court agrees with the magistrate

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judge that these documents are exempted from disclosure as the disclosure would constitute

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a clearly unwarranted invasion of privacy under 5 U.S.C. § 522(b)(6) and could reasonably

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be expected to constitute an unwarranted invasion of personal privacy under 5 U.S.C. §

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552(b)(7).

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VIII. In Camera Review of Less Redacted Interview Transcripts or Further Direction

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Defendants do not object to the recommendations of the magistrate judge, but assert:

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that certain specific information that was redacted from the interview
transcripts may, in the abstract, lead a third-party (including a Magistrate
Judge) to conclude that it does not implicate any individual’s privacy interest;
however, that same information to someone familiar with the underlying facts
would be significant. Defendants are able to prepare less-redacted versions of
the interview transcripts. However, without further direction or an opportunity
for explanation (in the form of an ex parte declaration or otherwise),
Defendants are concerned that revised redacted versions might not meet
judicial expectation and/or simply prolong this litigation.

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Def.'s Obj. at 5. Plaintiffs assert, however, that Defendants should not be allowed to

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"withhold pertinent information from public inspection based on the malleable standard of

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what 'someone familiar with the underlying facts' might find significant." Pl.'s Reply at 2.

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The parties do not present any authority for their positions. However, the Supreme

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Court has recognized that the courts may have to examine "records themselves and require

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disclosure of portions to which the purposes of the exemption under which they are withheld

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does not apply." Dept. of Air Force v. Rose, 425 U.S. 352, 374 (1976) (quoting S.Rep. No.

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93–854, p. 32 (1974)). Additionally, another district court has utilized ongoing in camera

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reviews to ensure compliance with FOIA. See Islamic Shura Council of Southern California

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v. F.B.I., 278 F.R.D. 538 (C.D.Cal. 2011), rev'd on other grounds, — F.3d —, 2014 WL

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1013324 (March 18, 2014). Moreover, the Court's in camera review indicates that conduct

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described in the documents may provide identifying information that may not typically be

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considered identifying information. Because the conduct described in the documents is

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limited to a few individuals, disclosure of such conduct may subject such persons to

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"undeserved embarrassment and attention." Hunt v. F.B.I., 972 F.2d 286, 289 (1992).

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Because Defendants' interpretation of "identifying information" may not ensure FOIA

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compliance and in the interests of judicial economy, the Court will direct Defendants to

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provide the less-redacted transcripts to the magistrate judge for further review. The Court

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will leave to the discretion of the magistrate judge to determine what procedure to follow to

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conduct this supplemental review (e.g., submission of less-redacted documents only,

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submission of supplemental briefs, etc.).

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Accordingly, IT IS ORDERED:

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The Report and Recommendation (Doc. 36) is ADOPTED.

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2.

Defendants’ Motion for Summary Judgment (Doc. 22) is GRANTED IN PART

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AND DENIED IN PART. The Motion for Summary Judgment is GRANTED as to the

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Memo contained in Document Three and as to Documents Four and Six on the Vaughn Index

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as these documents have been properly exempted from disclosure under Exemptions set forth

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in 5 U.S.C. §§ 552(b)(6) and (7)(C). Defendants’ Motion for Summary Judgment is

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GRANTED as to the Interview Transcript contained in Document Three and as to Document

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Five to the extent that personal information shall not be disclosed. Defendants’ Motion for

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Summary Judgment is DENIED as to the Interview Transcript contained in Document Three

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and as to Document Five as these documents have been overly redacted under Exemptions

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set forth in 5 U.S.C. §§ 552(b)(6) and (7)(C) and Defendants shall disclose less redacted

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versions of these documents.

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3.

Plaintiffs’ Cross-Motion for Summary Judgment (Doc. 24) is GRANTED IN

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PART AND DENIED IN PART. The Cross-Motion for Summary Judgment is GRANTED

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as to the Interview Transcript contained in Document Three and as to Document Five to the

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extent that Defendants shall disclose less redacted versions of these documents. Plaintiffs’

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Cross-Motion for Summary Judgment is DENIED as to the Interview Transcript contained

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in Document Three and as to Document Five to the extent that personal information shall not

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be disclosed, as to the Memo contained in Document Three, and as to Documents Four and

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Six.

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The parties’ Motions for Summary Judgment (Docs. 22 and 24) are DENIED

AS MOOT as to Documents One and Two on the Vaughn Index.
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This matter case is referred back to Magistrate Judge D. Thomas Ferraro for

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further pretrial proceedings and report and recommendation in accordance with the

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provisions of 28 U. S. C. § 636(b)(1) and L.R.Civ.P. 72.1 and 72.2.

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All future filings in this case shall be designated:

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CIV-13-080-TUC-CKJ (DTF)

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DATED this 22nd day of April, 2014.

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