Our Children's Earth Foundation et al v. National Marine Fisheries Service et al

Filing 59

ORDER by Judge Samuel Conti granting in part and denying in part 34 39 cross-motions for partial summary judgment and holding in abeyance portions of the cross-motions pending supplementation of the record by the Fisheries Service within thirty (30) days. (sclc2, COURT STAFF) (Filed on 3/30/2015).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court

For the Northern District of California

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)
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OUR CHILDREN'S EARTH FOUNDATION, )
et al.,
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Plaintiffs,
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v.
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NATIONAL MARINE FISHERIES
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SERVICE, et al.,
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Defendants.
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)

Case No. 14-1130 SC
ORDER GRANTING IN PART AND
DENYING IN PART MOTIONS FOR
SUMMARY JUDGMENT

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I.

INTRODUCTION

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Now before the Court are cross-motions for partial summary

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judgment seeking to resolve Freedom of Information Act ("FOIA")

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claims in this environmental and administrative law case.

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34 ("Mot."), 39 ("Opp'n & Cross-Mot.").

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of environmental advocates seeking summary judgment on their claims

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that Defendants,1 the National Marine Fisheries Service (the

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ECF Nos.

Plaintiffs are two groups

The operative complaint, ECF No. 20 ("Compl.") names several
other defendants including Penny Pritzker, Secretary of Commerce,
Rodney McInnis, Regional Administrator of the Fisheries Service,
and Sally Jewell, Secretary of the Interior. Nevertheless, because
this motion solely concerns FOIA claims against the Fisheries
Service and the Fish and Wildlife Service, these defendants'
actions are not at issue in the motion. As a result, the Court
will treat this order as though there were only two defendants, the
Fisheries Service and the Fish and Wildlife Service.

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"Fisheries Service") and the Fish and Wildlife Service ("FWS"),

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failed to comply with the FOIA in responding to Plaintiffs'

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requests for documents.

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Fisheries Service has a pattern and practice of such failures.

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Defendants disagree and have moved for summary judgment in their

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own right, arguing they have complied with the law.

Additionally, Plaintiffs allege that the

The motions are fully briefed, ECF Nos. 47 ("Pls.' Opp'n &

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Reply"), 49 ("Gov't Reply"), and appropriate for resolution without

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oral argument under Civil Local Rule 7-1(b).

United States District Court

For the Northern District of California

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For the reasons set

forth below the motions are GRANTED IN PART and DENIED IN PART.

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II.

BACKGROUND
Plaintiffs have two intertwined concerns in this case: the

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fate of a fish protected by the Endangered Species Act, the Central

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California Coast Steelhead, and the activities of Stanford

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University, which they believe are adversely impacting Steelhead

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population and habitat.

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The Steelhead is a species of trout with a habitat stretching

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along the California coast from Sonoma County to Santa Cruz County.

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See NOAA Fisheries, West Coast Region, Central California Coast

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Steelhead, http://www.westcoast.fisheries.noaa.gov/

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protected_species/salmon_steelhead/salmon_and_steelhead_listings/

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steelhead/central_california_coast/Central%20California%20Coast%20S

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teelhead.html (last accessed March 27, 2015).

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most of their adult life in the ocean, but they spawn and raise

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young in freshwater rivers or streams like the San Francisquito

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Creek, which flows from the Santa Cruz Mountains above Menlo Park,

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California into the San Francisco Bay.

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Steelheads spend

San Francisquito Creek and

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its watershed are outlined in purple in this map:

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United States District Court

For the Northern District of California

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19

Wikipedia, San Francisquito Creek, http://en.wikipedia.org/wiki/

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San_Francisquito_Creek (last accessed March 27, 2015).

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Circled in orange in the left-center of the above map is

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Searsville Lake, a man-made reservoir formed by the Searsville Dam.

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Stanford owns the dam, which was built in 1892, as well as the lake

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and other related water diversions and infrastructure, which it

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refers to collectively as the "Lake Water System."

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the Lake Water System to provide non-potable water for its campus.

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Plaintiffs believe the Lake Water System adversely affects the

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Steelhead by reducing water flows in San Francisquito Creek and its

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Stanford uses

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tributaries and cutting the Steelhead off from access to upstream

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spawning habitat.

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In a case pending before Magistrate Judge Laporte, Plaintiffs

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seek to enjoin Stanford's activities.

See Our Children's Earth

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Foundation v. Stanford Univ., No. 13-cv-00402-EDL (N.D. Cal.).

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this action, Plaintiffs take a different tack, challenging the

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Fisheries Service's issuance of a biological opinion to the U.S.

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Army Corps of Engineers assessing the impact of Stanford's planned

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upgrades to two water diversion facilities dubbed (inaptly in

In

United States District Court

For the Northern District of California

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Plaintiffs' view) the "Steelhead Habitat Enhancement Project."

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Specifically, Plaintiffs believe the Fisheries Service failed to

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assess all the appropriate effects of the Project in issuing its

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report.

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that the biological opinion's authorization of the "take" (a term

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of art in the Endangered Species Act) of the Steelhead in the

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course of the project was also improper.

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(defining "take" within the meaning of the Endangered Species Act).

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Plaintiffs challenge both actions under Section 706(2)(a) of the

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Administrative Procedure Act, which prohibits arbitrary and

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capricious agency actions.

See 50 C.F.R. § 402.02.

Additionally, Plaintiffs argue

See 16 U.S.C. § 1538

See 5 U.S.C. § 706(2)(a).

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While this allegedly arbitrary and capricious biological

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opinion forms the gravamen of Plaintiffs' complaint, these motions

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involve only two related FOIA issues.

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Fisheries Service and the FWS' allegedly tardy and incomplete

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response to four FOIA requests Plaintiffs made regarding four

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topics: (1) the Steelhead and two other endangered species with

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habitat in the San Francisquito Creek watershed, (2) the Fisheries

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Service's biological opinion, (3) Stanford's Steelhead Habitat

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The first concerns the

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Enhancement Project, and (4) the rest of the Lake Water System.

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The second dispute concerns whether the Fisheries Service has a

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pattern and practice of such tardy and incomplete responses and, if

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so, whether the Service should be enjoined from continuing that

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practice.

The parties have both moved for summary judgment.

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III. LEGAL STANDARD

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Entry of summary judgment is proper "if the movant shows that

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there is no genuine dispute as to any material fact and the movant

United States District Court

For the Northern District of California

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is entitled to judgment as a matter of law."

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56(a).

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require a directed verdict for the moving party.

13

Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).

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without the ultimate burden of persuasion at trial—usually, but not

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always, a defendant—has both the initial burden of production and

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the ultimate burden of persuasion on a motion for summary

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judgment."

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Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

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Fed. R. Civ. P.

Summary judgment should be granted if the evidence would
Anderson v.

"A moving party

Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos.,

"In order to carry its burden of production, the moving party

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must either produce evidence negating an essential element of the

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nonmoving party's claim or defense or show that the nonmoving party

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does not have enough evidence of an essential element to carry its

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ultimate burden of persuasion at trial."

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its ultimate burden of persuasion on the motion, the moving party

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must persuade the court that there is no genuine issue of material

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fact."

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all justifiable inferences are to be drawn in his favor." Anderson,

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477 U.S. at 255.

Id.

Id.

"In order to carry

"The evidence of the nonmovant is to be believed, and

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FOIA cases are typically decided on motions for summary

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(9th Cir. 2011) as amended (Jan. 18, 2012).

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summary judgment burden, agencies are typically required to submit

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an index and 'detailed public affidavits' that, together, 'identify

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the documents withheld, the FOIA exemptions claimed, and a

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particularized explanation of why each document falls within the

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claimed exemption.'"

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354 F.3d 1072, 1082 (9th Cir. 2004) (alterations in original).

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United States District Court

judgment.

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For the Northern District of California

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Yonemoto v. Dept. of Veterans Affairs, 686 F.3d 681, 688

These submissions are typically referred to as a Vaughn index,

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after Vaughn v. Rosen, 484 F.2d 820, 823-25 (D.C. Cir. 1973), and

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they must be "from 'affiants who are knowledgeable about the

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information sought' and 'detailed enough to allow court[s] to make

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an independent assessment of the government's claim of exemption."

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Yonemoto, 686 F.3d at 688 (internal alterations omitted) (quoting

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Lion Raisins, 354 F.3d at 1079).

"To carry their

Id. (quoting Lion Raisins v. Dep't of Agric.,

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IV.

DISCUSSION
The parties' motions concern four FOIA requests.

Plaintiffs'

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first request sought, among other things, documents related to

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impacts on the Steelhead and two other species in the San

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Francisquito Creek watershed stemming from Stanford's Lake Water

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System.

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efforts to mitigate the impact of the Searsville Dam on the

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Steelhead pending the Fisheries Service's final action on

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Endangered Species Act authorization for Stanford's activities.

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their third request, Plaintiffs requested documents responsive to

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their first request coming into the Fisheries Service's possession

Second, Plaintiffs sought documents related to Stanford's

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In

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after the date of that request as well as some additional

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documents.

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relating to the search cutoff dates for Plaintiffs' first two

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requests and documents pertaining to the Fisheries Service's

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general policy toward search cutoff dates for FOIA searches.

Finally, Plaintiffs' fourth request targeted documents

Now the parties have moved for summary judgment to resolve

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claims stemming from these requests and the Fisheries Service's and

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FWS' response to them.

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First, Plaintiffs contend the Fisheries Service either failed to

Plaintiffs make three basic arguments.

United States District Court

For the Northern District of California

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adequately describe its searches or conducted an inadequate search

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and withheld documents without sufficient justification.

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Plaintiffs argue they are entitled to declaratory judgment that the

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Fisheries Service violated FOIA's deadlines in responding to these

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four requests and in three related internal appeals, and FWS

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violated FOIA's deadlines in responding to a referral of documents

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from the Fisheries Service.

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violations of the FOIA are a part of the Fisheries Service's

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pattern and practice of non-compliance with the FOIA's mandates,

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and ask the Court to issue an injunction ordering the Fisheries

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Service to comply with the FOIA in the future.

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disagrees with these allegations, and urges the Court to decline to

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enter declaratory or injunctive relief and instead enter summary

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judgment in its favor.

Second,

Third, Plaintiffs argue these alleged

The Government

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The Court will address the adequacy of the search and improper

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withholding arguments first, before turning to Plaintiffs' requests

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for declaratory or injunctive relief.

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///

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///

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A.

Adequacy of the Search

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First, Plaintiffs challenge the adequacy of the Fisheries

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Service's search for records responsive to their first and third

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FOIA requests.

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To comply with the FOIA, an agency must conduct a "'search

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reasonably calculated to uncover all relevant documents.'"

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Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985) (quoting

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Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir.

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1984)).

In so doing, "the issue to be resolved is not whether

United States District Court

For the Northern District of California

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there might exist any other documents possibly responsive to the

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request, but whether the search for those documents was adequate."

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Id. (quotation omitted) (emphasis in original).

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To prevail on a motion for summary judgment, the agency must

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demonstrate "'beyond material doubt . . . that it has conducted a

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search reasonably calculated to uncover all relevant documents.'"

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S. Yuba River Citizens League v. Nat'l Marine Fisheries Serv., No.

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CIV. S-06-2845 LKK/JFM, 2008 WL 2523819, at *11 (E.D. Cal. June 20,

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2008) (quoting Zemansky, 767 F.2d at 571).

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may rely on "reasonably detailed, non-conclusory affidavits and

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declarations submitted in good faith," id., describing "what

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records were searched, by whom, and through what process."

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Lawyers' Comm. for Civil Rights v. U.S. Dep't of the Treasury, 534

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F. Supp. 2d 1126, 1131 (N.D. Cal. 2008) (citing Steinberg v. U.S.

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Dep't of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994)).

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of this requirement is "to afford a FOIA requester an opportunity

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to challenge the adequacy of the search and to allow the district

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court to determine if the search was adequate in order to grant

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In so doing, the agency

The purpose

1

summary judgment."

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Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68

(D.C. Cir. 1990).

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To comply with this requirement, the Fisheries Service

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submitted a declaration from Gary Stern, the Branch Chief of the

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Fisheries Service's San Francisco Bay Branch detailing its searches

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in response to Plaintiffs' first and third FOIA requests.

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41 ("Stern Decl.").

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Stern "tasked all [Fisheries Service] staff within the San

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Francisco Bay Branch and administrative support staff within the

ECF No.

After reviewing Plaintiffs' first request,

United States District Court

For the Northern District of California

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[North-Central Coast Office] with searching for responsive

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documents, because the San Francisco Bay Branch of the [North-

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Central Coast Office] were [sic] the only [Fisheries Service]

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branch and office in the West Coast Region that would be in

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possession of any records sought by Plaintiffs . . . ."

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5; see also id. at ¶ 9 (making similar conclusions and giving

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similar instructions regarding Plaintiffs' third FOIA request).

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The searches were limited to these offices because the Fisheries

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Service's work with Stanford, the Searsville Dam, and the San

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Francisquito Creek all fell within the San Francisco Bay Branch's

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geographic area of responsibility.

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Id. at ¶

Stern Decl. at ¶¶ 5, 9.

In response to Plaintiffs' first FOIA request, the Fisheries

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Service staff and North-Central Coast Office administrative support

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staff searched hard copy and electronic files including emails,

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office files, and "relevant project folders" for responsive

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records.

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parenthetical examples, pointing, for example, to the project file

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for the Fisheries Service's Endangered Species Act consultations

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with the Army Corps of Engineers for Stanford's Steelhead Habitat

Id. at ¶ 6.

In describing these files, Stern provides

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Enhancement Project.

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using a database, and then, having retrieved the corresponding

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paper records, reviewed by Stern and other Fisheries Service

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biologists.

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(averaging 15 hours per week) to conduct the search and compile the

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relevant records.

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preparation took approximately five weeks (averaging 20 hours per

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week).

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the course of approximately one week, reviewing for an average of

Id.

Id.

Id. at ¶ 8.

Fisheries Service staff took six weeks

Id. at ¶ 7.

United States District Court

Records scanning and index

Finally, Stern and his team reviewed the records over

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For the Northern District of California

Relevant project files were identified

two hours per day.

Id.

Once completed, the review yielded 1,051

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documents (36,009 pages).

Id.

The details of the Fisheries Service's search for Plaintiffs'

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13

third FOIA request are scarcer.

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similar terms, again stating the staff searched hard copy and

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electronic files including emails, office files, and "relevant

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project folders," and providing parenthetical examples.

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10.

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Plaintiffs' first request, Stern provides no detail on how

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potentially relevant documents were reviewed, by whom they were

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reviewed, and how "relevant project files" were identified.

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Puzzlingly, unlike his description of the first search, Stern does

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aver that "[t]he staff at the [North-Central Coast Office] searched

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in all areas of its office where responsive documents could

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reasonably be expected to be found."

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the search identified just one responsive document that had not

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already been produced. Id. at ¶ 13.

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28

Stern describes the search in

Id. at ¶

However, unlike his description of the search in response to

Id. at ¶ 10.

In any event,

Even if Stern's declaration were sufficiently detailed, the
Fisheries Service has not carried its burden of showing "beyond a

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1

material doubt, and viewing the facts in the light most favorable

2

to the requester, that it 'has conducted a search reasonably

3

calculated to uncover all relevant documents.'"

4

Comm., 534 F. Supp. 2d at 1131 (quoting Steinberg v. U.S. Dep't of

5

Justice, 23 F.3d 548, 551 (D.C. Cir. 1994)).

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out, an email chain (involving Stern), report, and other documents

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produced in Plaintiffs' parallel litigation against Stanford

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demonstrate that the Fisheries Service's Office of Law Enforcement

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in Monterey, California had an open investigation between at least

See Lawyers'

As Plaintiffs point

United States District Court

For the Northern District of California

10

2009 and 2013 into the Endangered Species Act "take" of the

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Steelhead by the Searsville Dam.

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Documents from that investigation clearly fall within the scope of

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Plaintiffs' first and third FOIA requests, which sought, among

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other things, any documents in the Fisheries Service's possession

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related to the impact of the Searsville Dam on the Steelhead.

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No. 43 ("Malabanan Decl.") at ¶ 12.

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Plaintiffs' requests were not forwarded to the Office of Law

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Enforcement and no searches took place there.

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See Costa Reply Decl. Exs. 3, 33.

ECF

Yet it is undisputed that

See id. at ¶ 13.

Neither Stern, the FOIA coordinator for the Fisheries

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Service's West Coast Region, Ana Liza Malabanan, nor the Fisheries

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Service discusses this issue, even though Plaintiffs pressed it in

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their opening brief.

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particularly puzzling given that Stern personally exchanged emails

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regarding the investigation and suggested a telephone conference to

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discuss it.

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the Fisheries service "had reason to know that [the Office of Law

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Enforcement] . . .

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"obligated under FOIA to search barring an undue burden."

See Mot. at 18-19.

Ignoring this issue is

See Costa Reply Decl. Ex. 33.

As a result, Stern and

contain[ed] responsive documents," and was thus

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1

Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 327 (D.C. Cir.

2

1999).

3

to Plaintiffs' first and third requests inadequate.

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the Fisheries Service's motion is DENIED as to the adequacy of the

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searches for the first and third requests and Plaintiffs' motion is

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GRANTED as to the same.

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adequacy of Defendants' second and fourth searches, both of which

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are supported by affidavits establishing the reasonability of the

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searches conducted, summary judgment is GRANTED in favor of the

United States District Court

For the Northern District of California

10

This renders the Fisheries Service's searches in response
Accordingly,

Because Plaintiffs do not challenge the

defendants on those searches.

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B.

FOIA Exemptions

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The FOIA's goal is to "ensure an informed citizenry, vital to

13

the functioning of a democratic society, needed to check against

14

corruption and to hold the governors accountable to the governed."

15

NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

16

this goal reflects a general philosophy of full agency disclosure,

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John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989), FOIA

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incorporates nine exemptions, which reflect the need to balance the

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public's interest full disclosure against the sometimes legitimate

20

need for the Government to maintain secrecy.

21

552(b)(1)-(9).

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the basic policy that disclosure, not secrecy, is the dominant

23

objective of the Act," Dep't of Interior v. Klamath Water Users

24

Protective Ass'n, 532 U.S. 1, 7-8 (2001) (citation omitted),

25

exemptions are to be narrowly construed, and "information not

26

falling within any of the exemptions has to be disclosed . . . ."

27

Yonemoto, 686 F.3d at 688.

While

See 5 U.S.C. §

Because, "[t]hese limited exceptions do not obscure

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12

The Court finds the record insufficient to decide whether the

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2

Fisheries Service's withholdings are appropriate under Exemptions

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b(6) or b(5).

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from the agency and will hold the motions for summary judgment as

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to the agency's withholdings in abeyance until the record is

6

supplemented.
1.

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As a result, the Court orders further submissions

Exemption (b)(6)

First, Plaintiffs challenge the redaction of the names of two

8

United States District Court

Fisheries Service investigators from an email chain under FOIA

10
For the Northern District of California

9

Exemption (b)(6), which exempts from disclosure "personnel and

11

medical files and similar files the disclosure of which would

12

constitute a clearly unwarranted invasion of personal

13

privacy . . . ."

14

Exhibit 3 to the Costa Reply Declaration, is the same email

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discussed above between Gary Stern and individuals at the Fisheries

16

Service's Office of Law Enforcement regarding the Office's pending

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investigation of Endangered Species Act "takes" of the Steelhead at

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the Searsville Dam.

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unredacted in the email chain, the Fisheries Service redacted the

20

names and contact information for two individuals in its Office of

21

Law Enforcement, stating in its Vaughn Index that the "withheld

22

information consists of the names and contact information of NOAA

23

law enforcement officers.

24

personal information that would constitute an unwarranted invasion

25

of personal privacy in which no public interest has been

26

identified."

27

164.

5 U.S.C. § 552(b)(6).

The email chain at issue,

While Stern's name and several others appear

The withheld information constitutes

Malabanan Decl. Ex. 1 ("Vaughn Index") at Record No.

28

13

1

Under Exemption (b)(6), the Court must first determine whether

2

the email chain qualifies as a "similar file[]" within the meaning

3

of the exemption.

4

Forest Serv., 524 F.3d 1021, 1024 (9th Cir. 2008).

5

"similar files" is to be construed broadly, and Congress intended

6

it to cover "detailed Government records on an individual which can

7

be identified as applying to that individual."

8

v. Wash. Post Co., 456 U.S. 595, 602 (1982).

9

as "similar files," then two steps remain.

Forest Serv. Emp. for Envt'l Ethics v. U.S.
The phrase

U.S. Dep't of State

If the emails qualify

First, the Court must

United States District Court

For the Northern District of California

10

determine if "disclosure implicates a personal privacy interest

11

that is 'nontrivial . . . .'"

12

Forest Serv., 524 F.3d at 1026).

13

that disclosure "would lead to the invasion of a non-trivial

14

personal privacy interest protected by Exemption 6, the FOIA

15

demands disclosure, without regard to any showing of public

16

interest."

17

the agency meets its burden, the Court then engages in a balancing

18

approach, asking whether the privacy interests the agency

19

identified outweigh the public's interest in the disclosure of

20

information that "'would shed light on an agency's performance of

21

its statutory duties or otherwise let citizens know what their

22

government is up to.'"

23

index fails to provide "a particularized explanation of why each

24

document falls within the claimed exemption," the court cannot

25

usually make a categorical judgment of the privacy interests at

26

issue.

27
28

Yonemoto, 686 F.3d at 693 (quoting
If the agency fails to establish

Id. at 694 (collecting cases).

Id.

If, on the other hand,

Nevertheless, if the agency's Vaughn

Id.

Here the agency has failed to provide a particularized
explanation of what non-trivial privacy interest would be

14

1

implicated if these individuals' names and contact information are

2

disclosed.

3

brief, not its declarations or Vaughn index), Plaintiffs have

4

stated they will publicize the information they receive.

5

Reply at 8 (citing Costa Decl. Ex. 1, at 7-8).

6

other cases in which courts have found privacy interests in

7

individuals' names or contact information, there is no reason aside

8

from speculation for concluding these individuals will be subjected

9

to "harassment," "embarrassment," "stigma," or other negative

True, as the Fisheries Service points out (in its

See Gov't

However, unlike

United States District Court

For the Northern District of California

10

consequences if their associations with this email are publicly

11

revealed.

12

of State v. Ray, 502 U.S. 164, 176 (1991) (concluding that

13

releasing the identities of individuals cooperating with a State

14

Department investigation "could subject them or their families to

15

embarrassment in their social and community relationships");

16

Prudential Locations LLC v. U.S. Dep't of Hous. & Urban Dev., 739

17

F.3d 424, 432 (9th Cir. 2013) (finding individuals who reported

18

violations of the Real Estate Settlement Procedures Act could

19

reasonably expect their names would remain anonymous based on HUD's

20

confidentiality policy); Lahr v. Nat'l Transp. Safety Bd., 569 F.3d

21

964, 975 (9th Cir. 2009) ("Releasing unredacted documents would

22

reveal publicly these eyewitnesses' involvement in a controversial

23

criminal investigation.").

24

the Steelhead takes at the Searsville Dam is not hotly

25

controversial and is unlikely to subject any of the individuals

26

involved to harassment or embarrassment.

27

consequence of disclosure is that Plaintiffs and interested members

28

of the public will be able "'shed light on an agency's performance

See Forest Serv., 524 F.3d at 1026; see also U.S. Dep't

On the contrary, the investigation of

15

Instead, the only obvious

1

of its statutory duties' or otherwise let citizens know 'what their

2

government is up to.'"

3

U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489

4

U.S. 749, 773 (1989)).

5

Dep't of Def., 510 U.S. at 497 (quoting

To be sure, there may well be some non-trivial privacy

6

interest implicated here.

However the Court cannot conclude these

7

documents are categorically protected merely because they contain

8

names and contact information.

9

("Disclosure of most of these records may indeed constitute a

See Yonemoto, 686 F.3d at 695-96

United States District Court

For the Northern District of California

10

nontrivial invasion of personal privacy, but the [Fisheries

11

Service] has yet to articulate why.").

12

aside from speculation that the Fisheries Service has furnished.

13

As a result the Court ORDERS the Fisheries Service to supplement

14

the factual record within 30 days of the signature date of this

15

Order to enable the Court to more fully assess what, if any,

16

privacy interests are at stake.

17

IN ABEYANCE the motion to summary judgment as to this document

18

until the record is supplemented and the Court determines if

19

additional filings or in camera review is necessary.

20

2.

Yet that is the only basis

See id. at 696.

The Court HOLDS

Exemption (b)(5)

21

Second, Plaintiffs argue that the Fisheries Service has failed

22

to adequately justify some of its withholdings under FOIA Exemption

23

(b)(5), which protects materials produced as part of the agency's

24

deliberative process or protected by attorney-client privilege.

25

Id. at (b)(5).

26

withholding 15 documents in part and another five documents in

27

their entirety.

The Fisheries Service has invoked this exception in

28

16

1

Exemption (b)(5) applies to "inter-agency or intra-agency

2

memorandums or letters which would not be available by law to a

3

party other than an agency in litigation with the agency."

4

U.S.C. § 552(b)(6).

5

"those documents normally privileged in the civil discovery

6

context."

7

There are two such privileges at issue here: attorney-client

8

privilege and the executive "deliberative process" privilege.

9

5

As a result, the rule protects from disclosure

NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).

"(1) When legal advice of any kind is sought (2) from a

United States District Court

For the Northern District of California

10

professional legal adviser in his or her capacity as such, (3) the

11

communications relating to that purpose, (4) made in confidence (5)

12

by the client, (6) are, at the client's instance, permanently

13

protected (7) from disclosure by the client or by the legal adviser

14

(8) unless the protection be waived."

15

988, 999 (9th Cir. 2002).

16

well to the extent the agency is consulting its attorney "'as would

17

any private party seeking advice to protect personal interest.'"

18

Ctr. for Bio. Diversity v. Office of Mgmt. & Budget, 625 F. Supp.

19

2d 885, 892 (N.D. Cal. 2009) (quoting Coastal States Gas Corp. v.

20

Dep't of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980)).

21

claims of attorney-client privilege, the agency must, in its Vaughn

22

index, "show that these documents involved the provision of

23

specifically legal advice or that they were intended to be

24

confidential and were kept confidential."

25

Council v. U.S. Dep't of Def., 388 F. Supp. 2d 1086, 1104 (C.D.

26

Cal. 2005) (emphasis in original) (quotation omitted).

27

fails to meet its burden if it uses to boilerplate language and

28

makes "no effort . . . to tailor the explanation to the specific

U.S. v. Martin, 278 F.3d

The privilege extends to agencies as

17

To support

Nat'l Resource Def.

The agency

1

document withheld . . . ."

2

(9th Cir. 1991).

3

Wiener v. FBI, 943 F.2d 972, 978-79

Deliberative process privilege seeks "'to prevent injury to

discussion of legal or policy matters,' in writing, within the

6

agency, is not inhibited by public disclosure."

7

Soc. v. U.S. Forest Serv., 108 F.3d 1089, 1092 (9th Cir. 1997)

8

(quoting Sears, 421 U.S. at 150-51).

9

deliberative process privilege, the material withheld or redacted

10

United States District Court

the quality of agency decisions' by ensuring that the 'frank

5

For the Northern District of California

4

must be "'predecisional' in nature and must also form part of the

11

agency's 'deliberative process.'"

12

U.S. at 151-52) (emphasis in original).

13

are those "prepared in order to assist an agency decisionmaker in

14

arriving at his decision, and may include recommendations, draft

15

documents, proposals, suggestions, and other subjective documents

16

which reflect the personal opinions of the writer rather than the

17

policy of the agency."

18

Commerce, 968 F.2d 916, 920 (9th Cir. 1992) (quoting Formaldehyde

19

Inst. v. Dep't of Health & Human Servs., 889 F.2d 1118, 1122 (D.C.

20

Cir. 1989)) (internal citations and quotation marks omitted).

21

Documents falling within that definition are part of the agency's

22

"deliberative process" if disclosing those documents "would expose

23

an agency's decisionmaking process in such a way as to discourage

24

candid discussion within the agency and thereby undermine the

25

agency's ability to perform its functions."

26

Formaldehyde, 889 F.2d at 1122).

27
28

Maricopa Audubon

To fall within the

Id. at 1093 (quoting Sears, 421
Predecisional documents

Assembly of State of Cal. v. U.S. Dep't of

Id. (quoting

Plaintiffs challenge the Fisheries Service's declarations and
Vaughn index, arguing that the Fisheries Service failed to comply

18

1

with its duty to provide Plaintiffs with "[a]ny reasonably

2

segregable portion of a record . . . after deletion of the portions

3

which are exempt" from disclosure under the FOIA.

4

552(b).

5

must be disclosed unless they are inextricably intertwined with

6

exempt portions."

7

Force, 566 F.2d 242, 260 (D.C. Cir. 1977).

8

agency to establish that segregable portions of documents have been

9

disclosed, Pacific Fisheries, Inc. v. United States, 539 F.3d 1143,

5 U.S.C. §

Under this standard, "non-exempt portions of a document

Mead Data Ctr., Inc. v. U.S. Dep't of the Air
The burden is on the

United States District Court

For the Northern District of California

10

1148 (9th Cir. 2008), and to meet this burden, the agency must

11

provide "'a detailed justification and not just conclusory

12

statements.'"

13

678231, at *3 (N.D. Cal. Feb. 17, 2015) (quoting Charles v. Office

14

of the Armed Forces Med. Examiner, 979 F. Supp. 2d 35, 42 (D.D.C.

15

2013)).

16

intertwined [as] to prevent disclosure under the FOIA does not

17

constitute a sufficient explanation of non-segregability."

18

Wilderness Soc'y v. U.S. Dep't of the Interior, 344 F. Supp. 2d 1,

19

19 (D.D.C. 2004).

20

ACLU of N. Cal. v. FBI, No. 12-cv-03728-SI, 2015 WL

In so doing, "a blanket declaration that all facts are so

The Fisheries Service has fallen well short of its burden as

21

to segregability.

At issue are the four records, Record Nos. 595,

22

681, 682, and 684, which the Fisheries Service withheld in full

23

pursuant to the deliberative process privilege.

24

Service's declaration merely contains a blanket statement that

25

"[t]o the best of [FOIA Coordinator Ana Liza Malabanan's]

26

knowledge, to the extent . . . there is factual material . . . in

27

the withheld portions of the . . . documents listed in the Vaughn

28

Index, that information is not segregable from the withheld

19

The Fisheries

1

portions."

Malabanan Decl. ¶ 78.

This is clearly insufficient.

2

See ACLU of N. Cal. v. FBI, No. 12-cv-03728-SI, 2014 WL 4629110, at

3

*9 (N.D. Cal. Sept. 16, 2014) (concluding a similarly conclusory

4

declaration was insufficient to carry the agency's burden on

5

segregability).
For similar reasons, the Fisheries Service's justification for

6
7

redactions and withholdings on attorney-client privilege grounds

8

are also insufficient.

9

bears the burden of showing that the exemption applies, including

As in the segregability context, the agency

United States District Court

For the Northern District of California

10

showing that "it supplied information to its lawyers with the

11

expectation of secrecy and the information was not known by or

12

disclosed to any third party."

13

09-3351 SBA, 2013 WL 5443048, at *16 (N.D. Cal. Sept. 30, 2013).

14

Also as in the segregability context, the Fisheries Service has

15

failed to comply with this rule, simply providing a blanket

16

conclusion that "to the best of" Ms. Malabanan's knowledge the

17

documents in the Vaughn index "have not been disclosed outside the

18

U.S. Government."

19

Service has made "no effort . . . to tailor the explanation to the

20

specific document withheld," it has not met its burden.

21

Frontier, 2013 WL 5443048, at *16 (quoting Wiener, 943 F.2d at 978-

22

79).

23

Elec. Frontier Found. v. CIA, No. C

Malabanan Decl. ¶ 79.

Because the Fisheries

See Elec.

Finally, Plaintiffs argue that the Fisheries Service

24

improperly withheld an attachment to an email chain between Gary

25

Stern and counsel for the National Oceanic and Atmospheric

26

Administration.

27

record of a telephone conversation between Gary Stern . . . and

28

Matt Stoecker ([from the organization] Beyond Searsville Dam),

See Malabanan Decl. ¶ 74.

20

The attachment is "a

1

being forwarded for legal advice . . . ."

Id.

Plaintiffs rightly

2

object to this conclusion, because "[a]ttachments which do not, by

3

their content, fall within the realm of the [attorney-client]

4

privilege cannot become privileged by merely attaching them to a

5

communication with the attorney."

6

Minebea Co., Ltd.¸ 918 F. Supp. 491, 511 (D.N.H. 1996); see also

7

Hanson v. Wells Fargo Home Mortg., Inc., No. C13-0939JLR, 2013 WL

8

5674997, at *4 (W.D. Wash. Oct. 17, 2013) ("Documents attached to

9

or included in an attorney-client communication are not

Pacamor Bearings, Inc. v.

United States District Court

For the Northern District of California

10

automatically privileged, and the party asserting privilege must

11

prove that each attachment is protected by privilege.") (citing

12

O'Connor v. Boeing N. Am., Inc., 185 F.R.D. 272, 280 (C.D. Cal.

13

1999)).

14

its description of the record that this attachment is likely to be

15

protected by the attorney-client privilege.

16

As it stands now, the Fisheries Service has not shown by

In light of these issues with the Fisheries Service's

17

submissions, the Court ORDERS the Fisheries Service to supplement

18

the record within 30 days of the signature date of this Order to

19

provide sufficient explanations for the non-segregability of the

20

records withheld in full under Exemption (b)(5) (with the exception

21

of those also withheld in full on the grounds of attorney-client

22

privilege, see Pacific Fisheries, Inc. v. U.S., 539 F.3d 1143, 1148

23

(9th Cir. 2008)), tailored explanations of whether the

24

confidentiality of records withheld on attorney-client privilege

25

grounds have been maintained, and a more detailed explanation of

26

why the record of Stern's phone conversation attached to Record No.

27

761 is protected by the attorney-client privilege.

28

IN ABEYANCE the motions for summary judgment as to these documents

21

The Court HOLDS

1

until the record is supplemented and the Court determines if

2

additional filings or in camera review is necessary.

3

C.

Deadline Allegations

4

The balance of the parties' submissions focuses on Plaintiffs'

5

allegations that the Fisheries Service and Fish and Wildlife

6

Service were tardy in responding to Plaintiffs' FOIA requests and

7

internal appeals.

8

Service has a pattern and practice of late and incomplete

9

responses.

Further, Plaintiffs argue that the Fisheries

Finally, Plaintiffs contend that the Fisheries Service

United States District Court

For the Northern District of California

10

has deviated from Department of Commerce (of which the Fisheries

11

Service is a part) regulations and a prior ruling, Oregon Natural

12

Desert Association v. Gutierrez, 419 F. Supp. 2d 1284 (D. Or.

13

2006), addressing what "cutoff date" the agency may impose for its

14

searches.

15

The pattern and practice and cutoff date allegations are

16

repeated, with a fuller evidentiary record, in cross-motions for

17

summary judgment pending in the related case, Our Children's Earth

18

Foundation v. National Marine Fisheries Service, 14-4365 (N.D.

19

Cal.), and the Court will address them fully in a forthcoming order

20

in that case.

21

only the first question -- whether declaratory judgment should

22

issue that the Fisheries Service and FWS violated the FOIA's

23

internal deadlines in responding to Plaintiffs' requests and

24

internal appeals.

25
26

1.

For the purpose of this order, the Court addresses

Declaratory Judgment

Unless exceptional circumstances exist (in which case the

27

deadline is thirty working days), an agency must provide a

28

"determination" with respect to a FOIA request or internal appeal

22

1

within twenty working days of receipt.

See 5 U.S.C. §

2

552(a)(6)(A)(i)-(ii).

3

production of documents, but at a minimum the agency must inform

4

the requester what documents it will produce and the exceptions it

5

will claim in withholding documents.

6

Responsibility & Ethics in Wash. v. Fed. Election Comm'n, 711 F.3d

7

180, 184 (D.C. Cir. 2013).

A "determination" need not be the full

See Citizens for

8

In adopting the FOIA, Congress was specifically concerned that

9

agencies would delay in responding to requests, and as a result "an

United States District Court

For the Northern District of California

10

agency's failure to comply with the FOIA's time limits is, by

11

itself, a violation of the FOIA."

12

33 F. Supp. 2d 1184, 1187 (N.D. Cal. 1998); see also Long v. IRS,

13

693 F.2d 907, 910 (9th Cir. 1982) (concluding that an agency's

14

unreasonable delay in disclosing non-exempt documents violated the

15

FOIA and "courts have a duty to prevent those abuses").

16

result, courts have found that entering declaratory judgment that

17

the agency violated the FOIA is appropriate when the agency has a

18

pattern and practice of violating these time limits, see Payne

19

Entertainment v. United States, 837 F.2d 486 (D.C. Cir. 1988), or

20

when the agency has violated the time limits in responding to a

21

particular set of requests, the agency's violations are consistent,

22

and they may recur.

Gilmore v. U.S. Dep't of Energy,

As a

See S. Yuba River, 2008 WL 2523819, at *6.

23

The Fisheries Service does not dispute that it did not provide

24

a "determination" for Plaintiffs' FOIA requests or internal appeals

25

within either the twenty or thirty working day timeline provided in

26

the statute, nor could it.

27

Service] does not dispute that it did not provide a full and final

28

'determination' on Plaintiffs' FOIA requests within 20 working

See Gov't Reply at 12 ("[The Fisheries

23

1

days.").

2

troubling.

3

first through fourth requests were, respectively, 295, 43, eight,

4

and 99 days overdue.

5

("Schumacher Decl.") ¶ 5, 8.

6

responded to Plaintiffs' first internal appeal 24 days late, second

7

appeal 80 days late, and third appeal 82 days late.

8

Decl. ¶¶ 25, 34, 41, Exs. 2, 3.

9

the FOIA:

United States District Court

For the Northern District of California

10
11
12

On the contrary, the record is clear, undisputed, and
The Fisheries Service's determination on Plaintiffs'

Malabanan Decl. ¶¶ 23, 33, 39-40; ECF No. 44
Similarly, the Fisheries Service

Malabanan

As Congress recognized in enacting

[i]nformation is often useful only if it is timely.
Thus, excessive delay by the agency in its response is
often tantamount to denial.
It is the intent of this
bill that the affected agencies be required to respond to
inquiries and administrative appeals within specific time
limits.

13
14

Gilmore, 33 F. Supp. 2d at 1187 (quoting H. Rep. No. 876, 93d

15

Cong., 2d Sess. (1974)).

16

Service does not take the FOIA's deadlines seriously, "[t]here can

17

be no doubt that Congress [did]."

18

In short, even though the Fisheries

See id.

Nevertheless, the Fisheries Service argues, based on a recent

19

D.C. Circuit decision, CREW, that the only consequence that flows

20

from the agency's failure to respond within the statutory deadlines

21

is that a FOIA requester may file suit without being subject to the

22

ordinary requirement that he exhaust his administrative remedies.

23

See CREW, 711 F.3d at 189; Elec. Privacy Info. Ctr. v. Dep't of

24

Justice, 15 F. Supp. 3d 32, 41 (D.D.C. 2014) (finding that CREW

25

"makes clear that the impact of blowing the 20-day deadline relates

26

only to the requester's ability to get into court.'").

27

concurs with the CREW court's persuasive interpretation of the

28

statute.

The Court

As a matter of statutory interpretation it is clear that

24

1

the only legal consequence that flows directly from an agency's

2

failure to provide a determination within the statutory time limits

3

is the waiver of the administrative exhaustion requirement.

4

However, that says nothing about whether or not, once a FOIA

5

requester is in court, the district court cannot exercise its

6

discretionary authority to issue a judgment declaring that the

7

agency has, in fact, violated the statutory timeline.

8

837 F.2d at 494 ("The FOIA imposes no limits on courts' equitable

9

powers in enforcing its terms" and "unreasonable delays in

See Payne,

United States District Court

For the Northern District of California

10

disclosing non-exempt documents violate the intent and purpose of

11

the FOIA, and the courts have a duty to prevent [such] abuses.").

12

The Court finds declaratory judgment is appropriate here.

As

13

the Fisheries Service repeatedly reminds the court, issuing a

14

declaratory judgment is discretionary.

15

770 F.2d 791, 803 (9th Cir. 1985).

16

has explained, "[a] court declaration delineates important rights

17

and responsibilities and can be 'a message not only to the parties

18

but also to the public and has significant educational and lasting

19

importance.'"

20

1292, 1299 (9th Cir. 1992) (quoting Bilbrey ex rel. Bilbrey v.

21

Brown, 738 F.2d 1462, 1471 (9th Cir. 1984)).

22

statutory deadlines and their violation are clear, and the

23

repeated, routine violation of these deadlines by agencies has been

24

a continual source of concern for Congress.

25

"many agencies have failed process FOIA requests within the

26

deadlines required by law.

27

requests continue as one of the most significant FOIA problems."

28

Gilmore, 33 F. Supp. 2d at 1187 (quoting H. Rep. No. 794, 104th

See Olagues v. Russoniello,

However, as the Ninth Circuit

Natural Res. Def. Council, Inc. v. EPA, 966 F.2d

Here, both the

As one report put it,

These delays in responding to FOIA

25

1

Cong., 2d Sess. (1996)).

2

recognized that agencies' resources are heavily taxed by the

3

quantity and depth of FOIA requests, that does not grant the agency

4

carte blanche to repeatedly violate congressionally mandated

5

deadlines.

6

Wildlife Service's] failure to comply with the FOIA's time limits

7

is, by itself, a violation of the FOIA . . . ."

8

CREW, 711 F.3d at 189 ("We are intimately familiar with the

9

difficulty that FOIA requests pose for executive and independent

United States District Court

For the Northern District of California

10
11

Although the Court and many others have

On the contrary, "[the Fisheries Service and Fish and

Id.; see also

agencies.").
This is not to say that a declaratory judgment should always

12

issue when the agency violates these time limits.

13

the issuance of declaratory judgments must always be guided by

14

"whether a judgment will clarify and settle the legal relations at

15

issue and whether it will afford relief from the uncertainty and

16

controversy giving rise to the proceedings."

17

Council, 966 F.2d at 1299.

18

circumstances, where the agency has repeatedly and substantially

19

violated the time limits, and it is possible the violations will

20

recur with respect to the same requesters, declaratory judgment is

21

appropriate.

22

On the contrary,

Nat'l Resources Def.

However under these and similar

See S. Yuba River, 2008 WL 2523819, at *6.

As a result, Plaintiffs' request for declaratory judgment that

23

the Fisheries Service failed to respond to Plaintiffs' FOIA

24

requests and internal appeals within the statutory time limits is

25

GRANTED.

26

D.

27

The only claim Plaintiffs appear to press against FWS is that,

28

Claims Against FWS

after receiving a referral of potentially relevant documents from

26

1

the Fisheries Service, FWS failed to process the referred documents

2

within the statutory time limits.

3

The Fisheries Service's referral of documents to FWS is

4

governed by the Department of Commerce's regulations for FOIA

5

referrals.

6

a component receives a request for a record in its possession in

7

which another Federal agency subject to the FOIA has the primary

8

interest, the component shall refer the record to that agency for

9

direct response to the requester."

In the relevant part, the regulations state that "[i]f

15 C.F.R. § 4.5(b).

The FOIA

United States District Court

For the Northern District of California

10

provides that the need for consultation is an "unusual

11

circumstance," and states that "consultation . . . shall be

12

conducted with all practicable speed . . . ."

13

552(a)(6)(B)(iii).

14

5 U.S.C.

Based on the reference to "all practicable speed," FWS argues

15

that the FOIA's statutory timelines do not apply to referrals for

16

consultation.

17

need not decide it.

18

governed by the general provision that no notice citing unusual

19

circumstances "shall specify a date that would result in an

20

extension for more than ten working days . . . ," 5 U.S.C. §

21

552(a)(6)(B)(i), or the specific term that agency consultations

22

shall be conducted with "all practicable speed," declaratory

23

judgment against FWS would be inappropriate under these

24

circumstances.

25

This appears to be a novel argument, and the Court
Instead, regardless of whether the referral is

Unlike the Fisheries Service, there is no allegation that FWS

26

repeatedly violated the FOIA's time limits with respect to

27

Plaintiffs' requests.

28

in the related case, and there is no indication that Plaintiffs

Furthermore, FWS is not named as a defendant

27

1

have made repeated FOIA requests to FWS (or that Plaintiffs'

2

requests have been repeatedly referred to FWS) or that any

3

violations of the FOIA's time limits are likely to recur with

4

respect to Plaintiffs.

5

declaratory judgment against FWS would neither "clarify and settle

6

the legal relations at issue [nor] . . . afford relief from the

7

uncertainty and controversy giving rise to the proceedings."

8

Nat'l Resources Def. Council, 966 F.2d at 1299.

As a result, the Court finds that issuing a

See

As a result, Plaintiffs' request for declaratory judgment

9

United States District Court

For the Northern District of California

10

against the Fish and Wildlife Service is DENIED.

Furthermore,

11

because Plaintiffs do not appear to challenge any of the Fish and

12

Wildlife Service's withholdings or redactions under the FOIA,

13

summary judgment is GRANTED in the Service's favor on those issues.

14
15
16

V.

CONCLUSION
For the reasons set forth above, the cross-motions for summary

17

judgment are GRANTED IN PART and DENIED IN PART.

The Court will

18

HOLD IN ABEYANCE the motions regarding the Fisheries Service's

19

exemption claims pending the supplementation of the record ordered

20

within thirty (30) days of the signature date of this order.

21
22

IT IS SO ORDERED

23
24

Dated: March 30, 2015

25

UNITED STATES DISTRICT JUDGE

26
27
28

28