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

Filing 72

ORDER re (12 in 3:14-cv-04365-SC) Motion for Summary Judgment; (17 in 3:14-cv-04365-SC) Motion for Partial Summary Judgment on FOIA Claims and Opposition to Plaintiffs' Motion for Partial Summary Judgment. Signed by Judge Samuel Conti on October 21, 2015. (sclc2, COURT STAFF) (Filed on 10/21/2015)

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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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)
)
OUR CHILDREN'S EARTH FOUNDATION, )
et al.,
)
)
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. 14-4365 SC
Case No. 14-1130 SC
Case No. 15-2558 SC
ORDER ON SUPPLEMENTAL BRIEFING
RELATED TO, GRANTING IN PART,
AND DENYING IN PART MOTIONS FOR
SUMMARY JUDGMENT AND ORDER TO
SHOW CAUSE

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I.

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INTRODUCTION
Now before the Court is what remains of cross-motions for

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partial summary judgment in this Freedom of Information Act

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("FOIA") case.1

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abeyance pending three supplemental briefs requested in the Court's

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previous Order, ECF No. 25 ("SJ Order").2

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briefing, evidence submitted therewith, and the reasons set forth

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below, the Court GRANTS IN PART and DENIES IN PART the remainder of

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the cross-motions, and ORDERS certain parties to SHOW CAUSE.

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This includes five issues the Court held in

Based on supplemental

See ECF Nos. 12 ("Mot."), 17 ("Opp'n & Cross-Mot.").
ECF Nos. 27 ("Supp. Mot."), 28 ("Supp. Opp'n"), 30 ("Supp.
Reply"). The SJ Order is available at Our Children's Earth Found.
v. Nat'l Marine Fisheries Serv., No. 14-1130 SC, 2015 WL 4452136
(N.D. Cal. July 20, 2015).

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II.

BACKGROUND
The Court first granted in part and denied in part cross-

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motions for summary judgment on similar FOIA issues in a related

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case, Our Children's Earth Foundation v. National Marine Fisheries

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Service, 85 F.Supp.3d 1074 (N.D. Cal. Mar. 30, 2015), and the

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underlying facts are most fully explained in that opinion.

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1079-1081.

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(the cross-motions partially resolved by the SJ Order), the Court

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declined to address an alleged pattern-and-practice of FOIA

Id. at

Relevant to the next motion considered by the Court

United States District Court

For the Northern District of California

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violations, noting that those same issues were raised in the then-

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still-pending motion addressed by the SJ Order between the same

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parties with a fuller evidentiary record.

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Id. at *8.

Plaintiffs are two groups of environmental advocates seeking

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summary judgment on their claims that the remaining relevant

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Defendant failed to comply with the FOIA in responding to

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Plaintiffs' requests for documents.

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there is a pattern-and-practice of such failures.

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remaining, relevant Defendant is the National Marine Fisheries

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Service (the "Fisheries Service," "NMFS," or "Defendants"), who

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disagreed with Plaintiffs and moved for summary judgment in its own

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right on the basis it had complied with the law.

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considered arguments by parties, briefly reviewed the facts, and

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resolved much of the debate through the Court's SJ Order.

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Court adopts the fact sections from its two earlier orders and

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incorporates them as though fully set out herein.

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Plaintiffs also alleged that
The only

The Court

The

What now remains after the SJ Order are five specific issues,

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each of which was held in abeyance pending supplemental briefing

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ordered by the Court.

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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

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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.

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

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without the ultimate burden of persuasion at trial —- usually, but

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not always, a defendant —- has both the initial burden of

Fed. R. Civ. P.

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

"A moving party

United States District Court

For the Northern District of California

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production and the ultimate burden of persuasion on a motion for

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summary judgment."

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

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

"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."

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Anderson, 477 U.S. at 255.

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Id.

Id.

"In order to carry

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

FOIA cases are typically decided on motions for summary

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judgment.

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

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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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"To carry their

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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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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

United States District Court

For the Northern District of California

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

Lion Raisins, 354 F.3d at 1079).
Insofar as the Court discussed the law in its SJ Order, unless

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subsequently challenged by the parties, the Court adopts those

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discussions and integrates them as though fully set forth herein.

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IV.

DISCUSSION

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There are five issues for the Court to still consider.

They

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are: (1) the adequacy of the search; (2) whether Record No. 1 was

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withheld appropriately pursuant to Exemption (b)(5); (3) whether

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the Fisheries Service has cured its showing of segregability of

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factual information in certain records; (4) whether the Fisheries

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Service used appropriate cut-off dates; and (5) pattern-and-

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practice concerns.

The Court considers each in turn.

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A.

Adequacy of the Search

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In its SJ Order, the Court specified four reasons why the

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original Declaration from Gary Stern, Branch Chief of the Fisheries

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Service's San Francisco Bay Branch, ECF No. 20 ("Stern Decl."), was

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insufficient to establish that the search was adequate.

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reasons were: (1) failure to specify who specifically searched; (2)

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The four

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failure to clarify the precise terms used to search as opposed to

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giving examples that might be illustrative; (3) failure to explain

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in reasonable detail how particular folders, files, or emails were

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selected to be included in the search; and (4) concern that Mr.

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Stern was relying entirely on hearsay.

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supplemental declaration filed in response to the SJ Order, Mr.

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Stern remedied all of these concerns.

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position who searched, provided precise search terms that appear to

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the Court to be properly tailored for the relevant FOIA requests,

See SJ Order at 8.

In a

He specified by name and

United States District Court

For the Northern District of California

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and he explained in detail how he determined which folders, files,

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and emails were selected.

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¶¶ 5-15.

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himself searched, was personally involved with the search, or else

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directly supervised the search, and accordingly is able to testify

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as to his personal involvement.

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See ECF No. 27-3 ("Supp. Stern Decl.")

While there is still some hearsay included, Mr. Stern

See id.

Plaintiffs nonetheless object on the basis of hearsay.

Their

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two grounds are unpersuasive.

They first argue there must be an

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affidavit from others who conducted the search.

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not need to have an affidavit from each person engaged in the

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search; such a practice would be exceptionally cumbersome on the

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government, and needlessly so.

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matter "[a]n affidavit from an agency employee responsible for

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supervising a FOIA search is all that is needed to satisfy the

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personal knowledge requirement of Federal Rule of Civil Procedure

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56(e).")

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(9th Cir. 2009) (quoting Carney v. U.S. Dep't of Justice, 19 F.3d

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807, 814 (2d Cir. 1994)).

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overruled comparable hearsay objections.

Yet the Court does

In the Ninth Circuit, as a general

Lahr v. National Transp. Safety Bd., 569 F.3d 964, 989

Applying this rule, district courts have

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See Council on Am.-

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Islamic Relations, California v. F.B.I., 749 F. Supp. 2d 1104, 1119

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(S.D. Cal. 2010) (quoting Lahr); see also Hersh & Hersh v. U.S.

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Dep't of Health & Human Servs., No. C 06-4234 PJH, 2008 WL 901539,

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at *4 (N.D. Cal. Mar. 31, 2008) (courts "have overruled objections

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based on lack of personal knowledge as long as the supervisor in

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charge of coordinating the agency's search efforts, or responsible

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for same, has submitted an affidavit describing the search."

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(citing Carney)).

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are from the supervisor in charge of coordinating the search

The Court finds that the affidavits submitted

United States District Court

For the Northern District of California

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efforts (Mr. Stern) or person responsible for (portions of) the

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search (Ms. Malbananan), and thus OVERRULES the objection.

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Plaintiffs also object to the limited information related to

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the search of the Office for Law Enforcement (OLE).

Ms. Malabanan

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was personally involved in the search by forwarding requests and

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coordinating with the Office for Law Enforcement to receive

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responsive records in their possession.

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Decl.") ¶¶ 20-21.

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far more limited than that of Mr. Stern (and accordingly less

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persuasive), the Court is still satisfied that the affidavit

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provides information from a coordinator responsible for the search

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describing a search made by a specific person at a specific agency.

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Accordingly, the Court again OVERRULES Plaintiffs' objection.

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Based on the foregoing analysis, the Court now considers

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whether the agency has conducted a "search reasonably calculated to

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uncover all relevant documents."

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571 (9th Cir. 1985) (quoting Weisberg v. U.S. Dep't of Justice, 745

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F.2d 1476, 1485 (D.C. Cir. 1984)).

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resolve "not whether there might exist any other documents possibly

See ECF No. 19 ("Malabanan

While Ms. Malabanan's degree of involvement was

Zemansky v. EPA, 767 F.2d 569,

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The Court is required to

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responsive to the request, but rather whether the search for those

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documents was adequate."

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original).

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this standard.

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Id. (quotation omitted) (emphasis in

Here, the Court finds the Fisheries Service has met

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,

United States District Court

For the Northern District of California

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

In so doing, the agency

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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) (quoting 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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finds the Fisheries Service has done so here.

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GRANTS summary judgment in favor of NMFS, and DENIES summary

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judgment as requested by Plaintiffs.

The Court

Therefore, the Court

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B.

Whether Record Number 1 was Properly Withheld

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The Court next turns to whether Record No. 1 was properly

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withheld.

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partial disclosure of the document, the Court FINDS that the

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remainder of Record No. 1 was properly withheld.

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After review of the supplemental briefs, and given the

Exemptions are to be narrowly construed, and "information not

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

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Yonemoto, 686 F.3d at 687.

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produced as part of the agency's deliberative process or protected

Under Exemption (b)(5), materials

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by attorney-client privilege need not be disclosed. 5 U.S.C. §

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552(b)(5).

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agency memorandums or letters which would not be available by law

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

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U.S.C. § 552(b)(6).

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"those documents normally privileged in the civil discovery

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context."

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

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privilege and the executive "deliberative process" privilege.

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

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As a result, the rule protects from disclosure

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

The

United States District Court

For the Northern District of California

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Court previously found that "all the documents potentially covered

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by the attorney-client privilege are covered by the deliberative

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process privilege," SJ Order at 11, and thus focuses mainly on the

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deliberative process here.

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Also per the SJ Order, the

[d]eliberative process privilege seeks "'to prevent
injury to the quality of agency decisions' by ensuring
that the 'frank discussion of legal or policy matters,'
in writing, within the agency, is not inhibited by public
disclosure." Maricopa Audubon Soc. v. U.S. Forest Serv.,
108 F.3d 1089, 1092 (9th Cir. 1997) (quoting Sears, 421
U.S. at 150-51). To fall within the deliberative process
privilege, the material withheld or redacted must be
"'predecisional' in nature and must also form part of the
agency's 'deliberative process.'"
Id. at 1093 (quoting
Sears, 421 U.S. at 151-52) (emphasis in original).
Predecisional documents "may include recommendations,
draft documents, proposals, suggestions, and other
subjective documents which reflect the personal opinions
of the writer rather than the policy of the agency."
Assembly of State of Cal. v. U.S. Dep't of Commerce, 968
F.2d 916, 920 (9th Cir. 1992) (quoting Formaldehyde Inst.
v. Dep't of Health & Human Servs., 889 F.2d 1118, 1122
(D.C. Cir. 1989)) (internal citations and quotation marks
omitted).
Documents falling within that definition are
part of the agency's "deliberative process" if disclosing
those documents "would expose an agency's decisionmaking
process in such a way as to discourage candid discussion
within the agency and thereby undermine the agency's
ability to perform its functions."
Id. (quoting
Formaldehyde, 889 F.2d at 1122).
SJ Order at 11.

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The Fisheries Service's updated Vaughn Index reflects that

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prepared in order to assist agency decisionmakers in arriving at a

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decision whether to issue a revised SHEP biological opinion."

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No. 27-4 Ex. A ("Supp. Vaughn Index") at 1.

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no longer relies upon what the agency may have been doing when the

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document was drafted, but focuses now directly on the content of

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the document itself.

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the updated Vaughn Index, the description in the supplemental

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United States District Court

this is an "employee's draft chart and summary [which] were

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For the Northern District of California

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declaration by Ms. Malabanan, and the portion of the document

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released, the Court can now reasonably deduce that the document

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could "reveal the mental processes of decisionmakers" or be

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"tantamount to the publication of the evaluation and analysis of

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the multitudinous facts conducted by the agency . . . ."

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Wildlife, 861 F.2d at 1119 (citation omitted).

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directly meant to assist decisionmakers arrive at a decision, it is

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clear the author meant to educate a more senior member of the

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office on whether and why to request a (perhaps higher-up)

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decisionmaker arrive at a specific decision.

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contents of the draft chart and the employee's summary contain a

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number of mistakes and misinterpretations such that release . . .

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would lead to public confusion" reinforces that this document shows

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an internal debate, to include a mistaken personal opinion,

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exposure of which would "discourage candid discussion within the

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agency."3

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(b)(5) does apply.

The Fisheries Service

With the supplemental information provided in

Assembly, 968 F.2d at 920.

Nat'l

While perhaps not

The fact that "the

Accordingly, Exemption

See Maricopa Audubon, 108 F.3d at 1092.

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ECF

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The Court does not reach whether this provides a separate,
independent ground to deny disclosure.

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Plaintiffs' three objections are unavailing.

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Plaintiffs

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object to Ms. Malabanan's declarations based on hearsay.

For the

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same reasons cited with respect to the first issue, above, the

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Court rejects Plaintiffs' hearsay argument regarding the

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declarations.

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Relations, 749 F. Supp. 2d at 1119; Hersh, 2008 WL 901539, at *4.

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Plaintiffs also object for lack of foundation, reasoning that Ms.

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Malabanan lacked the personal expertise to make the claims she

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asserts.

See Lahr, 569 F.3d at 989; Council on Am.-Islamic

The Court accepts unrebutted portions of her declarations

United States District Court

For the Northern District of California

10

to the contrary.

See ECF No. 30-1 ("Supp. 2d. Malabanan Decl.") ¶¶

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7-9.

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foundational objection is no different from their hearsay objection

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-- NMSF need only provide and rely on an affidavit from a person

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supervising or responsible for the search, which is precisely what

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they do.

In addition, the Court notes that functionally Plaintiffs'

Accordingly, the Court rejects this foundation objection.

Finally, Plaintiffs argue that even were the Court to accept

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Ms. Malabanan's testimony (which the Court does), the document may

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be predecisional but is not deliberative within the meaning of

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Maricopa Audubon, 108 F.3d at 1093.

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makes clear that exposure of the remainder of the document in

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question would provide nothing more than the personal opinions of a

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single, lower-level worker (opinions based in part on materials

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later deemed factually erroneous) who was trying to have a frank

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and open dialogue with a senior employee on whether and how to make

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a recommendation to a decisionmaker.4

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in full would "expose an agency's decisionmaking process in such a

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way as to discourage candid discussion within the agency and

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4

Yet the Fisheries Service

Thus revealing the document

The underlying report has been released.

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Supp. Reply at 3.

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thereby undermine the agency's ability to perform its functions."

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Assembly, 968 F.2d at 920 (quoting Formaldehyde, 889 F.2d at 1122).

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Therefore, the Court rejects this objection.

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Accordingly, Plaintiffs' objections are OVERRULED, the Court

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finds the document is both predecisional and deliberative per

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Maricopa Audubon, and therefore the Court finds the document

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qualifies under Exemption (b)(5).

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in favor of the Fisheries Service and DENIED as to Plaintiffs.

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United States District Court

For the Northern District of California

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C.

Summary Judgment is thus GRANTED

Segrebility of Factual Information in Certain Records

The Court next considers whether the Fisheries Service has

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cured its showing of segregability of factual information in

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certain records.

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foundation objections, consistent with earlier rulings herein.

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Lahr, 569 F.3d at 989; Council on Am.-Islamic Relations, 749 F.

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Supp. 2d at 1119; Hersh, 2008 WL 901539, at *4; Supp. 2d. Malabanan

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Decl. ¶¶ 1-3, 7-8.

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Record No. 6 was inadvertent, and considers it offered by the

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Fisheries Service (and objected to by Plaintiffs) in a manner the

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same as all other similarly situated records.

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remaining is whether the segregability explanations are adequate.

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The Ninth Circuit recently clarified:

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The Court OVERRULES Plaintiffs hearsay and
See

The Court also accepts that failure to justify

The only issue

It is not reasonable to interpret our precedent to
require the district court to take on the role of
document clerk, reviewing each and every document an
agency withholds. A district court must take seriously
its role as a check on agency discretion, but this does
not require a page-by-page review of an agency's work.
The district court may rely on an agency's declaration in
making its segregability determination. [Pac. Fisheries,
Inc. v. United States, 539 F.3d 1143, 1148 (9th Cir.
2008)]. Agency affidavits that are sufficiently detailed
are presumed to be made in good faith and may be taken at
face value.
[Hunt v. C.I.A., 981 F.2d 1116, 1119 (9th

11

1
2

Cir. 1992)]. In short, a district court is not required
to conduct an independent in camera review of each
withholding unless an agency declaration lacks sufficient
detail or bears some indicia of bad faith by the agency.

3

Hamdan v. U.S. Dep't of Justice, 797 F.3d 759, 779 (9th Cir. Aug.

4

14, 2015).

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6
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United States District Court

For the Northern District of California

10

Hamdan continued to explain that:

An agency must describe the document or information being
withheld in sufficient detail to allow the plaintiffs and
the court to determine whether the facts alleged
establish the corresponding exemption. Pac. Fisheries,
539 F.3d at 1148.
We have not held that the manner of
that description must take any particular format, so long
as it is sufficiently detailed.
Hamdan, 797 F.3d at 780.
Hamdan then examined a series of examples "[i]n the interest

11

of clarifying [this] circuit's segregability standard."

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first was by the Department of State ("DOS"), the second was by the

13

Federal Bureau of Investigation ("FBI"), and the third was by the

14

Defense Intelligence Agency ("DIA").

15

individualized explanation and cite the corresponding objection for

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each record.

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that the "withheld portions are so inextricably intertwined with

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the non-exempt portion, that any segregable material would not be

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meaningful."

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their careful review of the documents, in one instance releasing a

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document with all but a single sentence redacted.

22

provided less robust declarations but they were sufficient to allow

23

the district court to take them at face value, having identified

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the documents by number and providing specific reasons why

25

disclosure would be harmful.

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reasonably segregable, nonexempt portions were withheld from

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plaintiffs."

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documents released.

Id.

Id.

Id.

Id.

The

The DOS provided an

In some (but not all) cases, the DOS even noted

Good faith was shown by evidence supporting

Id.

Id.

The FBI

The FBI stated that "[n]o

This was supported by the partially redacted
Hamdan thus found both examples passed muster.

12

Conversely, the DIA's showing was found to be insufficient.

1
2

There, the DIA's declarations "lack sufficient detail to allow the

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district court to determine that the claimed exemptions apply

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throughout all of the documents."

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little individualized information about the documents.

6

cases, the same reason was given and the documents were entirely

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withheld, even though the documents varied in length and level of

8

classification.

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reasons for exemptions in its declarations versus its Vaughn Index.

United States District Court

The problem stemmed from
In all

Moreover, the DIA cited inconsistent

In its SJ Order, published prior to Hamdan, the Court found

10
For the Northern District of California

Id. at 781.

Id.

11

that the Fisheries Service had failed to meet its burden on

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reasoning that mirrored the circumstances of the DIA.

13

12.

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gave a blanket statement that "[t]o the best of [FOIA Coordinator

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Ana Liza Malabanan's] knowledge, to the extent . . . there is

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factual material . . . in the withheld portions of the . . .

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documents listed in the Vaughn Index, that information is not

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segregable from the withheld portions."

19

The Court found, consistent with Hamdan, that "[t]his is clearly

20

insufficient."

21

12-cv-03728-SI, 2014 WL 4629110, at *9 (N.D. Cal. Sept. 16, 2014)

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(concluding a similarly conclusory declaration was insufficient to

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carry the agency's burden on segregability)).

24

camera review, the Court asked for clarification by the agency.

25

Here, like the DOS's filing, the supplemental Vaughn index

SJ Order at

The Fisheries Service withheld documents in full and merely

Malabanan Decl. ¶ 126.

SJ Order at 12 (citing ACLU of N. Cal. v. FBI, No.

Rather than order in

26

provides an explanation for each document and cites to the specific

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FOIA exemption that applies.

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the declaration was not as robust as it could have been, and like

Yet like the FBI or DIA submissions,

13

1

the DIA submission it often repeated the same justification in the

2

same language for each of the records.

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FBI, all but 5 lines on page 1 of document 45 were disclosed, 1

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page of document 48 was disclosed, 2 pages of document 46, 51, and

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59 were disclosed, 4 pages of document 58 were disclosed,5 5 pages

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of documents 49 and 50 were disclosed, and 8 pages of document 47

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were disclosed; only document 22 (78 pages) and Record No. 6 (43

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pages) were withheld in their entirety.

9

Index; Supp. 2d. Malabanan Decl. ¶ 4.

Even so, like the DOS and

See generally Supp. Vaughn

In addition, the

United States District Court

For the Northern District of California

10

supplemental Vaughn index is consistent with the declarations.

See

11

ECF No. 27-4 ("Supp. Malabanan Decl.") ¶¶ 5-14.

12

whole, this case seems most analogous to the submission by the FBI,

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where the declarations are not ideal but the disclosures and cited

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exceptions show enough good faith that the Court should accept the

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agency's explanations at face value.

Therefore, on the

Accepting the agency's explanations at face value, the Court

16
17

finds that here the "factual material is so interwoven with the

18

deliberative material" that it is not segregable.

19

States v. Fernandez, 231 F.3d 1240, 1247 (9th Cir. 2000).

20

later cases applying Fernandez, the Fisheries Service clearly

21

considered each document and tried to release some portion.

22

Kowack v. U.S. Forest Serv., 766 F.3d 1130, 1135 (9th Cir. Sept. 9,

23

2014) (the Court was unable to make an independent assessment where

24

the government did not even say if it tried to segregate factual

25

information or provide enough detail to conclude that portions were

26

interwoven, per Fernandez).

See United
Unlike

C.f.

Insofar as Kowack suggests "a stand-

27
28

5

This calculation assumes that the ledger is part of the overall
34 pages of the document.

14

1

alone fact section" may exist and be disclosed, the Fisheries

2

Service has satisfied the Court that such sections do not exist,

3

have already been disclosed, or would be interwoven.

4

Supp. Vaughn Index; Supp. Malabanan Decl.; see also Supp. Mot. at

5

3-4.

6

satisfied its obligation to segregate and disclose facts.

See generally

Therefore, the Court finds that the Fisheries Service has

This finding expressly does not extend to the ledger in

7

withholding those 11 pages is that it was provided for review to

10

United States District Court

Document 58.

9
For the Northern District of California

8

Upon closer examination, the justification for

the attorney for the agency, and therefore automatically becomes

11

privileged.

12

and attorney work product is privileged, an otherwise unprivileged

13

document does not gain any protections simply because it was sent

14

to a lawyer for review.

15

accept the supplemental Vaughn index at face value, so it must now

16

accept the explanation offered as the primary justification.6

17

Accordingly, the justification is inadequate.

18

the date of this Order, the Fisheries Service is ORDERED to produce

19

those portions of the ledger which are not directly privileged or

20

provide an explanation why the ledger is also exempted.

21

are free to challenge any withholding in a new motion, but may do

22

so only insofar as the rationale is inconsistent with this Order.

This is incorrect; while communications are privileged

The Court has found it appropriate to

Within 10 days of

Plaintiffs

Accordingly, notwithstanding the Court's ORDER related to the

23
24

11 page ledger of Document 58, the Court GRANTS summary judgment in

25

6

26
27
28

The Court suspects the supplemental Vaughn index is just poorly
worded, and that the ledger is actually a log of communication
between the attorney and the client Fisheries Service meant to
capture the question-and-answer style back-and-forth between the
two, thereby simplifying application of the attorney's advice to
specific provisions. However, such a suspicion is pure speculation
and not a proper basis for a judicial ruling.

15

1

favor of the Fisheries Service and DENIES summary judgment at to

2

Plaintiffs.

3

D.

Cut-off Dates

4

The Court next turns to whether the Fisheries Service used

identified that this was a factual dispute, but that further

7

details from parties may resolve that dispute as FOIA cases are

8

routinely resolved on summary judgment.

9

supplemented the record, and the Court finds that there is no

10

United States District Court

appropriate cut-off dates.

6

For the Northern District of California

5

longer any factual dispute to further delay summary judgment.

11

In its SJ Order at 23, the Court

Parties have since

The Court OVERRULES Plaintiffs' objections as irrelevant.

See

12

Supp. Opp'n at 11-13.

(The Court will, however, consider these

13

objections insofar as they are relevant to pattern-and-practice

14

allegations.)

15

Fisheries Service provided the Court a clear date upon which the

16

searches began.

17

possible that other employees began searching on a later date, Mr.

18

Stern provides specific dates that he, as the principle subject

19

matter expert ("SME"), began his search for FOIA 5 (June 27, 2014)

20

and FOIA 6 (August 13, 2014).

21

request shall include those records within the Department's

22

possession and control as of the date the Department begins its

23

search for them."

24

agrees that a better policy is the search start date of each

25

individual SME, see Supp. Malbanan Decl. ¶ 18(b), but finds on

26

these specific facts that Mr. Stern's search alone was sufficient

27

to establish when the Department began to search, and thus a cut-

28

off date in these particular searches.

Plaintiffs fail to recognize or rebut that the

See Supp. Stern Decl. ¶¶ 5, 10.

Id.

While it is

"Records responsive to a

15 C.F.R. § 4.5(a) (emphasis added).

16

The Court

Accordingly, the Court finds that the Fisheries Service

1
2

fulfilled its obligation by providing responsive documents up to

3

but not later than the June 27, 2014 and August 13, 2014 respective

4

cut-off dates.

5

the Fisheries Service and DENIED as to Plaintiffs, except insofar

6

as parties identify any documents that should have been produced

7

given these cut-off dates but were not.

8

exist, the Court ORDERS they be produced or else identified to the

9

Court within 10 days of the date of this order along with any

Therefore, summary judgment is GRANTED in favor of

If any such documents

United States District Court

For the Northern District of California

10

applicable exemption.

In identifying and producing documents,

11

parties shall exclude those documents on which the Court has

12

already ruled.

13

E.

Pattern-and-Practice Concerns

14

Plaintiffs allege a pattern and practice claim, suggesting

15

that the responses to all FOIA matters have been consistently and

16

impermissibly slow.

17

pattern-and-practice concerns before the Court ruled: (1) whether

18

Case No. 15-2558 SC ("OCE III") is moot; and (2) whether OCE III

19

provides new evidence of compliance relevant to the larger, still-

20

pending pattern-and-practice concern.

21

issues and prior materials briefed, the Court now GRANTS IN PART

22

and DENIES IN PART requests for declaratory and injunctive relief.

23

Plaintiffs requested that the Court find OCE III prudentially

The Court asked parties to address two

24

moot.

25

at 10.

26

III is hereby DISMISSED WITH PREJUDICE.

27
28

Supp. Opp'n at 7.

Upon consideration of these

Defendants did not oppose.

Supp. Reply

Therefore, the Court finds OCE III MOOT and accordingly OCE

That done, the Court was also interested in whether the nowmooted OCE III case offered an additional data point to suggest

17

1

that there was not a continued pattern and practice of tardiness or

2

failure to comply with the law.

3

of new data presented via supplemental briefing relating to OCE III

4

and other relevant matters.

The Court considers several pieces

Several pieces of information suggest that insofar as there

5
6

may have been a pattern-and-practice, it is being corrected.

OCE

7

III is itself inconclusive, as parties dispute whether or not it

8

was an instance of a late versus timely disclosure (a matter not

9

reached by the Court).

However, OCE III does show a trend toward

United States District Court

For the Northern District of California

10

more speedy disclosures.

The average processing time for

11

processing 125 simple requests was a mere 9 working days, 20 at

12

most.

13

Region appears to have an updated process in place, using modern

14

software, additional personnel, and policy changes (e.g., how the

15

cut-off date changes where there are multiple SMEs assigned) to

16

speed up its process.

17

changes have helped reduce the "FOIA backlog" of NMFS's parent

18

agency, the National Oceanic and Atmospheric Administration (NOAA),

19

"from 171 backlogged requests to 121 backlogged requests . . . and

20

NMFS reduced its FOIA backlog from 118 backlogged requests to 58

21

backlogged requests, representing [a] 51% decrease in the NMFS

22

backlog."

23

quite hopeful.

ECF No. 27-2 ("Swisher Decl.") ¶ 9.7

The NMFS West Coast

See Supp. Malabanan Decl. ¶¶ 15-18.

Swisher Decl. ¶ 10.

These

This progress is noteworthy and

Yet this hopeful news is eclipsed by the evidence the Court

24
25

has received showing an unmistakable history that the Fisheries

26

Service fails to meet its statutory deadlines under FOIA and causes

27
28

7

Conversely, 260 complex requests (such as those often filed by
Plaintiffs) took an average of 111 working days.

18

1

Plaintiffs (and likely others similarly situated) to suffer

2

unpredictable, unreasonable delays.

3

first place a backlog of over 100 cases to so dramatically reduce

4

is itself a red flag indicating the potential for FOIA compliance

5

issues.

6

of a pattern-and-practice of FOIA violations through affidavits,

7

briefs, FOIA response letters, and inconsistencies within the

8

NMFS's own documentation.

9

history of late responses, ranging but not limited to 4 days, 18

The fact that there was in the

This potential is confirmed by evidence Plaintiffs provide

Exhibits submitted by Plaintiffs show a

United States District Court

For the Northern District of California

10

days, 51 days, 9 months, 10 months, and ongoing.

11

2-17.

12

the Fisheries Service, who simply reminds the Court that statutory

13

deadlines are not absolute.

14

rules cannot justify the sheer volume of the violation history

15

evidenced just between Plaintiffs and the Fisheries Service.

16

concerning allegations of false reporting leading to an actual

17

delay of 2-days, see ECF No. 29, ¶ 19, or tales that a response to

18

another organization (not Plaintiffs) was delayed by 2-years, see

19

Supp. Opp'n at 4; ECF No. 28-1 Ex. 4, the evidence is clear as to

20

whether a pattern-and-practice existed in the past.8

21

Plaintiffs provide the Court a reasonable basis to believe that

22

these infractions will be ongoing.

23

(indicating Plaintiffs will continue to make a similar volume of

24

8

25
26
27
28

See ECF No. 29 ¶¶

The fact that these responses were tardy is not disputed by

Supp. Reply at 8-9.

Yet laxity in the

Be it

Moreover,

See ECF No. 28-3 ¶¶ 6-8

The Court is not persuaded by the average response times. See
Swisher Decl. ¶ 9-10. Whereas the average processing time for
simple requests looks good, the complex request processing time is
concerning. Also, an average can be skewed by several unusually
high or low numbers. That the median on complex requests is 63
working days, see Swisher Decl. ¶ 9, means that at least half of
the complex request take more than two months, and the outliers
include statutory violations significant enough to draw the average
up to 111 working days (almost half a year).

19

1

comparably complex FOIA requests).

The Court has previously

2

granted declaratory judgment upon such a showing.

3

19-21 (citing S. Yuba River Citizens League v. Nat'l Marine

4

Fisheries Serv., No. CIVS-06-2845 LKK/JFM, 2008 WL 2523819, at *6

5

(E.D. Cal. June 20, 2008) ("The consistency of the[] violations and

6

the possibility that they might recur" justified issuing

7

declaratory judgment.)).

See SJ Order at

In its SJ Order, the Court ordered the Fisheries Service to

8

United States District Court

comply with FOIA and its deadlines, finding that the Fisheries

10
For the Northern District of California

9

Service "has failed to do so previously and the potential that

11

these offenses might continue."

12

reasoning to then deny without prejudice further injunctive relief

13

was simple:

14

to fully protect Defendants from rebuke, the ongoing efforts of the

15

Fisheries Service to improve suggested that intervention by the

16

Court may not be necessary to fix ongoing violations.

17

26.

18

some leniency in the exercise of its discretion may be merited.

19

However, the Court cannot turn a blind eye to the evidence put

20

forth by Plaintiffs.

21

SJ Order at 25.

The Court's

while the Court cannot accept good faith as a shield

Id. at 25-

The Court stands by its earlier reasoning, and its belief that

Therefore, the Court hereby GRANTS declaratory relief and

22

states: (1) that the Fisheries Service has previously been engaged

23

in a pattern-and-practice of failure to meet FOIA deadlines; (2)

24

that the Fisheries Service has previously provided responses that

25

were frequently and unreasonably delayed; (3) that due to these

26

delays the Fisheries Service effectively provided no ability to

27

FOIA requestors to anticipate when data might be provided; and (4)

28

that due to these delays information was often provided after a

20

1

long enough period of time that the data could be out-of-date,

2

effectively negating its value and effectuating a complete denial

3

of information.

4

The Court also GRANTS a limited form of injunctive relief, and

5

ORDERS that, in addition to its earlier Declaratory Relief, and

6

insofar as any production to Plaintiffs remains outstanding in any

7

FOIA request made on or prior to September 9, 2015 (the date of the

8

last filed supplemental brief), all final results of such searches

9

be provided within 30 days of the date of this Order.

United States District Court

For the Northern District of California

10

Yet the Court is still sympathetic to the fact that the

11

Fisheries Service continues to receive ongoing, complex FOIA

12

responses, flooding it with administrative work which interferes

13

with its primary duties -- and now the Fisheries Service will need

14

to take even more of its time to answer the below inquiries of the

15

Court.

16

Fisheries Service enough time since issuing its Declaratory Relief

17

to reasonably remedy this pattern-and-practice.

18

that the current efforts of the Fisheries Services will assist in

19

this goal.

20

WITHOUT PREJUDICE any further injunctive relief at this time.

Moreover, the Court recognizes it has not provided the

The Court believes

Accordingly, the Court exercises its discretion to DENY

21

This grace period is subject to continued, clear, and

22

effective efforts by the Fisheries Service that it is curing its

23

prior legal violations.

24

organize an agency to best comply with the law is beyond the

25

purview of the Court.

26

the Fisheries Service itself, other agencies that control the

27

Fisheries Service, the Executive, or Congress.

28

ORDERS the Fisheries Service to SHOW CAUSE how it is curing its

How precisely to continue such efforts or

Such fixes and organization must come from

21

The Court therefore

1

prior legal violations to a sufficient degree the Court should

2

continue to withhold injunctive relief.

3

Fisheries Service is ORDERED to submit a document detailing

4

precisely the status of its backlog, how the Fisheries Service

5

intends to (or has been) fixing the problem, the effectiveness of

6

recent changes in eliminating the backlog, how the Fisheries

7

Service will ensure any immediate success will persist beyond the

8

involvement of the Court, and any other information that may be

9

useful for the Court to consider.

To meet this showing, the

This document must be filed with

United States District Court

For the Northern District of California

10

the Court within 30 days of the date of this Order.

Based upon

11

this showing of cause, the Court will craft an appropriate

12

injunction, request a further (comparable) showing of cause, or

13

dismiss this case.

14
15

V.

CONCLUSION

16

For the reasons set forth above, insofar as they were not

17

already resolved, the cross-motions for summary judgment are

18

GRANTED IN PART and DENIED IN PART.

19

declaratory and injunctive relief, the Court GRANTS summary

20

judgment in favor of the Fisheries Service and DENIES summary

21

judgment to the Plaintiffs.

22

of the date of this Order, the Fisheries Service produce those

23

portions of the 11 page ledger which are not directly privileged or

24

provide an explanation why the ledger is also exempted.

25

finds OCE III MOOT and it is therefore DISMISSED WITH PREJUDICE.

26

The Court GRANTS declaratory relief and ORDERS all final results of

27

any production to Plaintiffs still outstanding in any FOIA request

28

made on or prior to September 9, 2015 be provided within 30 days of

With the exception of

The Court ORDERS that within 10 days

22

The Court

1

the date of this Order.

2

WITHOUT PREJUDICE.

3

Service to SHOW CAUSE why an injunction should not in the future

4

issue.

5

within 30 days of the date of this Order, a document detailing

6

precisely the status of its backlog, how the Fisheries Service

7

intends to (or has been) fixing the problem, the effectiveness of

8

recent changes in eliminating the backlog, how the Fisheries

9

Service will ensure any immediate success will persist beyond the

United States District Court

For the Northern District of California

10
11

Further injunctive relief is DENIED

In addition, the Court ORDERS the Fisheries

Accordingly, the Fisheries Service is ORDERED to file,

involvement of the Court, and any other helpful information.
The Court deems this Order to entirely satisfy all motions and

12

cross-motions for summary judgment in the two still-pending cases,

13

and the motions are hereby terminated.

14

that upon resolution of any supplemental action required herein,

15

the two still-pending cases can be dismissed in their entirety.

16

Parties are therefore ORDERED to SHOW CAUSE via a single, joint

17

document filed within 10 days of the date of this Order, detailing

18

whether there are any further additional matters for the Court's

19

consideration (excluding responses to matters ordered herein).

20

This will allow the Court to easily determine whether or when the

21

remaining cases can be entirely dismissed upon resolution of the

22

matters ordered herein.

The Court also suspects

23
24

IT IS SO ORDERED.

25
26

Dated: October 21, 2015

________________________________
UNITED STATES DISTRICT JUDGE

27
28

23