Rocky Mountain Wild, Inc v. U.S. Forest Service et al

Filing 31

ORDER That Defendants Motion for Summary Judgment ECF No. 15 is DENIED. It is FURTHER ORDERED as follows: Plaintiffs Cross Motion for Partial Summary Judgment ECF No. 19 is GRANTED in part and DENIED in part; Defendants Motion to Strike Evidence in Plaintiffs Response to Defendants Motion for Summary Judgment and Plaintiffs Motion for Summary Judgment ECF No. 20 is DENIED, by Judge Wiley Y. Daniel on 9/30/2015.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-2496-WYD-KMT
ROCKY MOUNTAIN WILD, INC., a Colorado non-profit corporation,
Plaintiff,
v.
UNITED STATES FOREST SERVICE, a federal agency;
UNITED STATES DEPARTMENT OF AGRICULTURE, a federal agency,
Defendants.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

I.

INTRODUCTION AND BACKGROUND
This case arises out of a request by the Plaintiff on February 27, 2014, to

Defendant United States Forest Service (“Forest Service”) for certain agency records
pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, pertaining to the
development and construction of the Village at Wolf Creek Access Project (“Wolf Creek
Project”) in the Rio Grande National Forest (“RGNF”) of Colorado, a project undertaken
by RGNF under the National Environmental Policy Act (“NEPA”).
In order to comply with NEPA, the RGNF was required to draft an Environmental
Impact Statement (“EIS”) and a Record of Decision (“ROD”), whose legal sufficiency
was evaluated by the Office of General Counsel (“OGC”) of the U.S. Department of
Agriculture. In 2010, RGNF entered into an agreement with Leavell-McCombs Joint

1

Venture (“LMJV”) for a land exchange to provide year-round access to this land. 1

The

Forest Service used a third-party contractor, Western Ecological Resource, Inc.
(“WER”), to prepare drafts of the EIS and ROD. Copies were distributed for public
comment in August 2012. The final EIS and ROD were published on November 20,
2014.
On February 27, 2014, Plaintiff submitted a written request to the Forest
Service’s FOIA Officer. The relevant portion of the FOIA request read as follows:
Under the Freedom of Information Act, 5 U.S.C. § 552, Rocky Mountain
Wild, San Juan Citizens Alliance and San Luis Valley Ecosystem Council
request copies of all communications and records of communications
between the Forest Service and outside entities relating to the Village at
Wolf Creek Access Project, including but not limited to, communications
related to the preparation of the Environmental Impact Statement (EIS),
Endangered Species Act consultation, Army Corps of Engineers reviews,
and other federal, state, and local government reviews and approvals.
In particular this request seeks all agency records created or obtained by
the Forest Service concerning the Village at Wolf Creek Access Project
after January 1, 2008 that involves communications between:
•
•
•
•
•

The Forest Service and other federal, state or local agencies;
The Forest Service and the Leavell/McCombs joint partnership and
their associates;
The Forest Service and Tetra Tech or other third-party contractor or
similar entities engaged in preparing the EIS or portions thereof;
The Forest Service and any members of the public;
The Forest Service and any other external entity.

The reference to any entity includes any and all employees, contractors,
partners, subsidiaries, parent corporations, board members, officers,
managers, attorneys, agents, and any other person acting on the entity’s
behalf. Responsive records are likely maintained in various levels of the
Forest Service’ organizational structure, including the Ranger Districts,
Supervisor’s Office, State and Regional Offices, General Counsel’s
Offices, and Washington D.C. Offices. When responding, please
1

A previous project between RGNF and LMJV began in 2004, but was discontinued when one of the
judges of this Court issued an injunction preventing any access or development in the building of a road
to the property. See Colo. Wild, Inc. v. United States Forest Service, 523 F. Supp. 2d 1213.
2

designate one point of agency contact so this FOIA can be fulfilled in a
timely manner.

Pl.’s FOIA Request (ECF. No. 15, Ex. 3).
The Forest Service issued a partial response to the FOIA request on April 9,
2014, comprised of 6,684 pages of information, and a notice that thirteen documents
had been forwarded to the Rocky Mountain Regional Office (“RMRO”) for review. On
April 28, 2014, the Forest Service provided a second release of information, including
287 pages within 121 documents, 58 of which were released in full, and 63 in part. Of
the thirteen documents referred to RMRO, seven were released to Plaintiff in full, and
six in part. RMRO also found 163 documents as a result of its own search. Fifty of
those documents were not released on the basis that they were determined to be either
nonresponsive or duplicative of documents already released; five documents,
comprising 1,684 pages, were withheld in full; 57 were released to Plaintiff in part, and
51 were released in full. The Forest Service and the RMRO claimed to have withheld
entire documents or portions therein pursuant to exemptions 4, 5, and 6 under 5 U.S.C.
§ 552(b). The April 28, 2014 release constituted an adverse determination, and Plaintiff
was advised it could file an administrative appeal.
Plaintiffs filed an administrative appeal on June 12, 2014. The Forest Service
conducted another search for responsive documents in September 2014. On
December 1, 2014, the Forest Service issued its response to Plaintiff’s appeal, in which
it reversed the withholdings under exemption 4, and included fifteen additional pages of
responsive documents not previously disclosed.

3

Plaintiff filed this action on September 9, 2014, alleging that Defendants failed to
provide all of the responsive documents as requested in the original FOIA request, and
failed to respond to the appeal in the statutory timeframe.
Defendants filed a motion for summary judgment on February 6, 2015 (ECF No.
15), and Plaintiff subsequently filed a cross motion for partial summary judgment (ECF
No. 19) on March 12, 2015. Defendants continue to assert that withholding documents
under exemptions 5 and 6 is appropriate. Defendants also filed a motion to strike
evidence that was included in Plaintiff’s response to Defendants’ motion for summary
judgment (ECF No. 20), namely exhibits 1 and 8. For the reasons stated below, I grant
Plaintiff’s motion in part, and deny in part, and I deny Defendants’ motion to the extent
further evaluation of withheld documents is necessary in order to determine whether
exemption 5 under FOIA has been properly applied.
II.

STANDARD OF REVIEW
FOIA actions are typically decided on motions for summary judgment. See

Anderson v. Health & Human Servs., 907 F.2d 936, 942 (10th Cir. 1990); Info. Network
for Responsible Mining (“INFORM”) v. Bureau of Land Mgmt., 611 F. Supp. 2d 1178,
1182 (D. Colo. 2009); Pagosans for Public Lands v. U.S. Forest Serv., 2007 WL
5061698, *1 (D. Colo. Aug. 22, 2007). A FOIA defendant may prevail on a motion for
summary judgment if it proves that the documents within the FOIA request have been
produced or fall within a statutory exemption. Pub. Emps. for Envtl. Responsibility
(“PEER”) v. United States Envtl. Prot. Agency, 978 F. Supp. 955, 959 (D. Colo. 1997).
Pursuant to rule 56(c) of the Federal Rules of Civil Procedure, the court may
grant summary judgment where "the pleadings, depositions, answers to interrogatories,

4

and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and the . . . moving party is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986); Equal Emp’t Opportunity Comm’n v. Horizon/CMS Healthcare Corp., 220 F.3d
1184, 1190 (10th Cir. 2000). Summary judgment is appropriate “if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c).
Where, as here, the parties file cross-motions for summary judgment, I am
“entitled to assume that no evidence needs to be considered other than that filed by the
parties, but summary judgment is nevertheless inappropriate if disputes remain as to
material facts.” James Barlow Family Ltd. P'ship v. David M. Munson, Inc., 132 F.3d
1316, 1319 (10th Cir. 1997). A material fact is one that might affect the outcome of the
dispute under the applicable law. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir.
1995). In reviewing the parties' cross-motions, I must construe all inferences in favor of
the party against whom the motion under consideration is made. Pirkheim v. First
Unum Life Ins. Co., 229 F.3d 1008, 1010 (10th Cir. 2000).
III.

DISCUSSION
FOIA provides the public with a broad right of access to federal agency records

subject to nine specific exemptions. 5 U.S.C. § 552; Anderson, 907 F.2d at 941. The
purpose of the Act “is to ensure an informed citizenry, vital to the functioning of a
democratic society, needed to check against corruption and to hold the governors
accountable to the governed.” Id. (citing NLRB v. Robbins Tire & Rubber Co., 437 U.S.

5

214, 242 (1978)). Consistent with this purpose, the courts uniformly hold that FOIA is to
be construed broadly in favor of disclosure, and that its exceptions are to be narrowly
construed. See id.; Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007).
A. Adequacy of the Agency’s Response
Defendant Forest Service, as the federal agency resisting disclosure in response
to a FOIA request, bears the burden of justifying nondisclosure. Trentadue, 501 F.3d at
1226. It also bears the burden of demonstrating that it conducted a “reasonable search”
for the requested agency records. Patterson v. Internal Revenue Serv., 56 F.3d 832,
840 (7th Cir. 1995). Reasonableness does not require defendant to search every
record system or to demonstrate that no other potentially responsive documents might
exist, but it must show “that it made a good faith effort to conduct a search for the
requested records, using methods which can be reasonably expected to produce the
information requested.” Oglesby v. United States Dep’t of Army, 920 F.2d 57, 68 (D.C.
Cir. 1990). I must determine de novo whether the agency's search was reasonable and
whether its decision not to disclose requested materials was proper under the statute.
See United States Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S.
749, 755 (1989); Anderson, 907 F.2d at 941.
The Forest Service in this case had an obligation to construe the language of the
Plaintiff’s FOIA request liberally, and to refer the request to another office if it was
reasonable that it would possess or control responsive records. See Friends of
Blackwater v. United States Dep’t of Interior, 391 F. Supp. 2d 115, 122 (D.D.C. 2005).
Upon receipt of the FOIA request by the Forest Service, a search was conducted in the
offices of the Divide Ranger District on the RGNF, and in the RGNF supervisor’s office.

6

Def.’s Mot. for Summary Judgment (ECF. No. 15), Ex. 1, p. 4. Upon receipt of the
notice of Plaintiff’s administrative appeal, another search of the RGNF supervisor’s
office was conducted, revealing additional documents not previously disclosed. Id.
Although the two searches performed by the Forest Service resulted in the disclosure,
either in part or in full, of thousands of pages of information, limiting the search to these
offices could not be expected to result in a reasonable search of requested documents
under the actual FOIA request. In this case, the Forest Service failed to conduct a
reasonable search for the information requested by Plaintiff in the FOIA request,
including a failure to include the suggested entities in the search that would likely have
responsive records.
For example, in Plaintiff’s FOIA request, Plaintiff specifically requests “copies of
all communications and records of communications” between the Forest Service and
“other federal, state or local agencies . . . and any other external entity,” noting that
“[r]esponsive records are likely maintained in various levels of the Forest Service’[s]
organizational structure, including [its] . . . Washington D.C. Offices.” Id. at 1 (“FOIA
request”). The Forest Service stated that the Washington D.C. office “had minimal
involvement” with the Wolf Creek Project, but it did not participate in the search effort.
Def.’s Consolidated Response and Reply to the Parties’ Motions for Summary
Judgment (ECF. No. 28), Ex. 1, ¶ 5 (“Dallas Decl.”). The Forest Service also noted that
even though one employee, Steve Rinella (“Rinella”), who was involved with the Wolf
Creek Project in Colorado was subsequently transferred to the Washington D.C. office,
he was not asked to participate in the search efforts. Id. at Ex. 2, ¶ 7 (“Gallegos Decl.”).
The Forest Service fails to indicate how responsive records that would have been in the

7

possession of former employees, such as this one, was accounted for in its search
efforts. Courts “evaluate the reasonableness of an agency’s search based on what the
agency knew at its conclusion rather than what the agency speculated at its inception.”
Blackwater, 391 F. Supp. 2d at 121 (citation omitted). It is likely that if Rinella or the
Washington D.C. office had participated in the search, responsive documents would
have been located.
Additionally, in Plaintiff’s FOIA request, it defined “other external entity” as
including “any and all employees . . . managers . . . agents, and any other person acting
on the entity’s behalf.” FOIA request, p. 1. Defendants identified seven employees
“who had direct involvement” with the Wolf Creek Project, or “in-depth NEPA
experience.” Def.’s Mot. for Summary Judgment (ECF No. 15), Ex. 2, ¶ 8 (“Blackwolf
Decl.”). However, other employees determined to be “peripherally involved” were not
asked to participate in the search for responsive records. Def.’s Consolidated
Response and Reply to the Parties’ Motions for Summary Judgment (ECF No. 28), p.
10. Although several Regional Office employees were involved in the Wolf Creek
Project, the Forest Service contends that all relevant communications would have gone
through one person, David E. Loomis, and only he was asked to search for responsive
records regarding the environmental analyses for the Wolf Creek Project. Gallegos
Decl., ¶ 3. Regional Office employees Debra Ryan and Julie Schaefers were involved
in the Wolf Creek Project, but were not asked to participate in the search for responsive
records. Id. at ¶ 4. Two former employees were identified by the Plaintiff as potentially
having responsive records – Tom Malecek and Cambria Armstrong. The Forest Service
contends that Malecek was a “central point of contact for the Wolf Creek Project” prior

8

to his departure from the position, and that for that reason, he was asked whether he
had any potentially responsive documents, to which he replied that he did not. Dallas
Decl., ¶ 7. Armstrong was not contacted about any potential documents since the
Forest Service determined it to be “unlikely” that she had any. Id. However, the Forest
Service later noted that several responsive documents that should have been disclosed,
but were not disclosed were those that “involved Tom Malecek and Cambria
Armstrong.” Def.’s Consolidated Response and Reply to the Parties’ Motions for
Summary Judgment (ECF. No. 28), Ex. 3, ¶ 11 (“Blackwolf Supp. Decl.”). “If an agency
has reason to know that certain places might well contain responsive documents, it is
obligated under FOIA to search [those places] barring an undue burden.” ValenciaLucena v. United States Coast Guard, 180 F.3d 321, 327 (D.C. Cir. 1999); see Juda v.
United States Customs Serv., 2000 WL 1093326, at **1-2 (D.C. Cir. June 19, 2000)
(reversing grant of summary judgment where agency "fail[ed] to pursue clear leads to
other existing records"). The Forest Service has not asserted any such undue burden,
nor did it make the proper effort to determine whether personnel in its various offices
participated in the agency’s decision making regarding the Wolf Creek Project, or
whether they may have had responsive records in their control or possession. See
Blackwater, 391 F. Supp. 2d at 121-22 (agency required to refer request to another
office if office is reasonably likely to contain responsive records). Therefore, I find that
the Forest Service did not perform a reasonable search in relation to the information
requested by the Plaintiff, which was reasonably expected to produce such information.

9

B. Sufficiency of Vaughn Index and Declarations
To substantiate its decision to withhold the allegedly exempt documents,
Defendants have submitted a Vaughn index, as well as the declarations of its agents.
Courts use a Vaughn index to aid review in FOIA cases. This is “a compilation
prepared by the government agency . . . listing each of the withheld documents and
explaining the asserted reason for its nondisclosure.” Anderson, 907 F.2d at 940 n.3
(citing Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)). Whether a FOIA exemption
justifies withholding an agency record is a question of law. Trentadue, 501 F.3d at
1226. To decide this question, I must “determine whether all of the requested materials
fall within an exemption to the FOIA and may not simply conclude that an entire file or
body of information is protected without consideration of the component parts.”
Anderson, 907 F.2d at 941. I must also ensure that I have an adequate factual basis on
which to base my decision. See id. at 942.
A Vaughn index must be adequately detailed to permit the court to determine
whether a sufficient factual basis exists to support the agency's refusal to disclose the
information at issue. Id. If the government agency's Vaughn index and agent
declarations are reasonably clear, specific, and detailed, the court normally affords
agency determinations substantial weight. See Gardels v. Cent. Intelligence Agency,
689 F.2d 1100, 1104–05 (D.C. Cir. 1982); Hayden v. Nat’l Sec. Agency/Cent. Sec.
Serv., 608 F.2d 1381, 1387 (D.C.Cir.1979). An agency may not, however, rely on
documents which provide insufficient detail, lack specificity, and offer only conclusory
statements. See Anderson, 907 F.2d at 942; see also PHE, Inc. v. Dep’t of Justice, 983
F.2d 248, 250 (D.C.Cir.1993) (“[A]n affidavit that contains merely a ‘categorical

10

description of redacted materials coupled with categorical indication of anticipated
consequences of disclosure is clearly inadequate.’”) (citing King v. United States, 830
F.2d 210, 217 (D.C. Cir. 1987)); Hayden, 608 F.2d at 1387 (“The affidavits will not
suffice if the agency's claims are conclusory, merely reciting statutory standards, or if
they are too vague or sweeping.”). Confronted with inadequate Vaughn material, a
court may engage in various review options, including an in camera review of the
withheld documents to determine what must be disclosed and what the agency has
properly withheld. Anderson, 907 F.2d at 942. In this case, Defendants have invoked
FOIA exemptions 5 and 6 to justify withholding significant portions of the documents
that they identified as responsive to Plaintiff’s FOIA request.
1. Exemption 5
Under exemption 5, an agency is not required to divulge “inter-agency or intraagency memorandums or letters which would not be available by law to a party other
than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). To comply with this
exemption, a document must have its source in a government agency and “fall within
the ambit of a privilege against discovery under judicial standards that would govern
litigation against the agency that holds it.” Dep’t of Interior v. Klamath Water Users
Protective Assoc., 532 U.S. 1, 8 (2001). At issue in this case are the attorney-client and
deliberative process privileges, which both fall under exemption 5.
a. Attorney/Client Privilege
The Forest Service submitted a Vaughn index which indicates that ten out of the
twelve documents listed, which were withheld in full or in part, were withheld subject to
both the attorney/client privilege and the deliberative process privilege. See Def.’s Mot.

11

for Summary Judgment (ECF No. 15), Ex. 9. Documents 1 through 5 have been
withheld in full, and comprise a total of 1,684 pages. Id. The justification for withholding
these documents under the attorney/client privilege is listed by the Defendants as “legal
sufficiency review,” including notes and comments from the Forest Service or third-party
contractors for the attorney’s consideration, and comments and edits made by the
attorney for the Forest Service’s consideration. Id. This broad justification is not
sufficiently clear, specific, or detailed to permit a court to determine whether a sufficient
factual basis exists to support the agency's refusal to disclose the information.
Defendants’ agent declarations do not offer much assistance in this evaluation.
Defendants submitted declarations from four individuals: Harald Fuller-Bennett, FOIA
Analyst for the Forest Service; Guy E. Blackwolf, Environmental Coordinator at the Rio
Grande National Forest; Dan Dallas, Forest Supervisor for the Rio Grande National
Forest; and Marge Gallegos, Paralegal for the Forest Service’s Rocky Mountain
Regional Office. 2
In explaining the application of exemption 5 for the attorney/client privilege,
Bennett explains that “the Forest Service sought legal advice from United States
Department of Agriculture, Office of the General Counsel (OGC), about the Village at
Wolf Creek Access Project,” and that the OGC was asked “to conduct legal sufficiency

2

Declarations for Bennett and Blackwolf were submitted with the Defendants’ motion for summary
judgment. Declarations for Dallas and Gallegos, along with a supplement to Blackwolf’s declaration, were
submitted with Defendants’ response to Plaintiff’s motion for summary judgment (which was consolidated
with Defendants’ reply to Plaintiff’s response to Defendants’ motion for summary judgment). Plaintiff
contends that the declarations submitted with the response should be stricken by the court as improperly
introduced with Defendants’ reply. However, Defendants relied upon these exhibits for their response.
The parties agreed that the Defendants would submit a consolidated response and reply at the December
22, 2014 Scheduling Conference before Magistrate Judge Kathleen M. Tafoya. See ECF No. 15, Ex. 10,
p. 34, lines 23-25; p. 35, lines 1-13; p. 36, lines 17-18. Since such affidavits or declarations are allowed
to support or oppose a motion for summary judgment, see Fed. R. Civ. P. 56(c)(4), I will consider the
information in these declarations.
12

reviews” on drafts of the final EIS and ROD. Def.’s Mot. for Summary Judgment (ECF
No. 15), Ex. 1, ¶ 32-33 (“Bennett Decl.”). The Forest Service contends that the withheld
records contained “confidential factual and legal information,” and that the U.S.
Department of Agriculture Senior Counsel, Kenneth Capps, provided “legal and policy
advice.” This justification does not offer sufficient detail as to the contents of the
documents and why the attorney/client privilege should be applied in such a broad
manner.
Accordingly, I find that the Vaughn index and agent declarations fail to provide
sufficient detail regarding the application of exemption 5 to documents 1 through 5 on
the Vaughn index. The conclusory statements which do nothing more than recite the
legal standard fail to demonstrate a logical basis for the Forest Service’s claim that
disclosure of these documents would interfere with the attorney/client relationship.
Justification offered to support withholding under the attorney/client privilege for
documents 6 through 10 is minimal, but sufficient to show the content of the email
exchanges and the reasons for withholding information under this privilege. Thus, I find
that the attorney/client privilege was appropriately applied for documents 6 through 10
on the Vaughn index.
b. Deliberative Process Privilege
The deliberative process privilege under FOIA exemption 5 excuses disclosure of
documents that reflect “advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are
formulated.” Klamath, 532 U.S. at 8. Only documents that are both predecisional and
deliberative fall within the scope of this privilege. Trentadue, 501 F.3d at 1227. This

13

privilege does not extend to factual information contained in an otherwise deliberative
agency document unless disclosure of this information “would so expose the
deliberative process within an agency that it must be deemed exempted.’” See
INFORM, 611 F. Supp. 2d at 1186 (citing Trentadue, 501 F.3d at 1228). Consistent
with FOIA’s general policy of broad disclosure, the Tenth Circuit has emphasized that
the deliberative process privilege “is to be construed as narrowly as [is] consistent with
efficient Government operations.” INFORM, 611 F. Supp. 2d at 1186 (citing Trentadue,
501 F.3d at 1227). Further, the Tenth Circuit has determined that the district court has
the duty to determine whether any factual materials can be segregated from deliberative
materials and disclosed as required by FOIA. Trentadue, 50 F. 3d at 1230-31.
Here, the Forest Service has indicated that many of the redacted documents are
draft agency documents, with internal draft comments on them, which are, by definition,
predecisional. See INFORM, 611 F. Supp. 2d at 1187; Renegotiation Bd. v. Grumman
Aircraft Eng’g Corp., 421 U.S. 168, 188 (1975). Specifically, these documents include
documents 6 through 12 on the Vaughn index. I agree that the pages in documents 1
through 5 on the Vaughn index that pertain to the agency’s draft EIS and ROD are
predecisional documents within the meaning of the deliberative process privilege and
are therefore exempt under exemption 5.
However, the Forest Service has not met its burden to demonstrate that the
information it redacted from these documents is deliberative. The Forest Service has
withheld in full 1,684 pages for documents 1 through 5 on the Vaughn index, and has
redacted 158 pages of responsive records in documents 6 through 12. See Def.’s Mot.
for Summary Judgment (ECF No. 15), Ex. 9. The Forest Service’s justification for this

14

withholding under the deliberative privilege exemption is as follows on each document:
“These emails contain frank exchanges of ideas and advice between employees.
Disclosure of these comments and thoughts would impede the candid and full exchange
of ideas within the agency, but all reasonably segregable factual material has been
released.” Id. This justification is insufficient repetition of the legal standard, and does
not provide the court with enough information to determine whether there exists
segregable factual information. The Bennett declaration offers little to bolster the
Defendants’ argument that this information is truly deliberative. Bennett states that
these records are deliberative because “disclosure would inhibit the drafters of the
documents from freely exchanging ideas, language choice, and comments in drafting
documents.” Again, this merely recites part of the legal standard for the privilege under
exemption 5, and is insufficient as stated to warrant withholding all or parts of
responsive documents.
However, in the Vaughn index, for documents 9, 11, and 12, the Forest Service
adds this language to its justification for withholding: “The ‘Comments on
[Administrative Draft of the Final Environmental Impact Statement]’ document has been
reviewed internally within the [Forest Service] and contains comments from reviewing
officials. If one compares the draft version with the final version, he will be able to
discern which ideas were accepted and which were rejected by the [Forest Service].”
This additional justification is sufficient to meet Defendants’ burden to demonstrate that
the documents were deliberative in nature. As such, the pages of documents 9, 11, and
12 of the Vaughn index that pertain solely to comments made on the Administrative

15

Draft of the Final Environmental Impact Statement are properly withheld under
exemption 5 as both predecisional and deliberative.
The Forest Service’s exemption explanations in its Vaughn index and its agent
declarations provide me with an inadequate basis to make a full determination regarding
documents that have been withheld under exemption 5. While the required Trentadue
review process may not require a separate justification for each redacted record, it does
require a certain level of specificity and detail regarding the redactions. Therefore, for
documents 1 through 5 on the Vaughn index, Defendants shall submit to me a revised
Vaughn index with sufficient explanation of any withheld pages as to segregable factual
information and sufficient justification for both the attorney/client privilege and the
deliberative privilege under exemption 5 of FOIA. For documents 6, 7, 8, and 10 on the
Vaughn index, Defendants shall submit to me a revised Vaughn index with sufficient
explanation as to why these documents should be withheld as deliberative in nature
under exemption 5 of FOIA.
2. Exemption 6
Under exemption 6, the agency may withhold “personnel and medical files and
similar files the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy.” 5 U.S.C. § 552(b)(6). “Similar files” has been interpreted broadly
and “encompasses all information that applies to a particular individual.” Forest
Guardians v. United States F.E.M.A., 410 F.3d 1214, 1217 (10th Cir. 2005). For
exemption 6, Plaintiff has not asserted any argument or authority against withholding
the minimal information that Defendants have withheld under exemption 6. As such, I
will not require disclosure of the redacted identifiers.

16

C. Defendants’ Motion to Strike Evidence
On March 25, 2015, Defendants filed a Motion to Strike Evidence in Plaintiff’s
Response to Defendant[‘s] Motion for Summary Judgment and Plaintiff’s Motion for
Summary Judgment (ECF No. 20) (“Mot. to Strike”). This motion contests evidence that
Plaintiff submitted as part of its response to Defendants’ motion for summary judgment
(ECF No. 18) and its own cross motion for summary judgment (ECF No. 19), which
incorporated exhibits from the response. Specifically, Defendants object to exhibits 1
and 8. Defendants argue that the evidence in these exhibits was not properly disclosed
under Fed. R. Civ. P. 26(a)(1) and (e). See Def.’s Mot. to Strike, p. 1. Plaintiff’s filed a
Rule 26(a)(1) disclosure on December 9, 2014, identifying documents “produced by or
submitted to the Forest Service related to Rocky Mountain Wild’s FOIA request dated
February 27, 2014.” Id. at 2.
Defendants argue that at the Scheduling Conference on December 10, 2014,
they believed that “all responsive documents to the FOIA request at issue had been
identified and disclosed.” Id. at 3. On January 5, 2015, Plaintiff received responsive
documents from the U.S. Fish and Wildlife Service as part of a FOIA request sent to
that agency. Id. Defendants contend that exhibit 1 contains documents “purportedly
received by Plaintiff from its FOIA request to FWS,” and that “[n]one of these documents
were disclosed or identified to Defendants prior to Plaintiff filing the Response.” Id.
Further, Defendants argue that exhibit 8 “is an e-mail exchange of unknown origin that
was not disclosed or identified to Defendants prior to Plaintiff filing the Response.” Id.
Plaintiff argues that exhibit 1 contains “documents produced by the Forest
Service, or submitted to the Forest Service from the U.S. Fish and Wildlife Service or

17

other outside entities related to Rocky Mountain Wild’s FOIA request dated February
27, 2014.” Pl.’s Response to Motion to Strike (ECF No. 24), p. 1. Plaintiff notes that
exhibit 8 “was provided to Plaintiff by the Forest Service in its April 9, 2014 interim FOIA
response,” and that the document was also “published by the Forest Service on its
website on January 13, 2015 as Exhibit 14.” Id. at 2.
I find that the documents included in exhibit 1 fall within the category of
documents that Plaintiff described in its December 2014 Rule 26(a)(1) disclosure.
Further, I find that the evidence included in exhibit 8 is no longer in dispute, since it was
disclosed to the Plaintiff by the Forest Service on April 9, 2014, and was later available
on its website.
As such, the Defendants’ Motion to Strike is denied.
IV.

CONCLUSION

Accordingly, it is
ORDERED That Defendant’s Motion for Summary Judgment (ECF No. 15) is
DENIED.
It is FURTHER ORDERED as follows:
1. Plaintiff’s Cross Motion for Partial Summary Judgment (ECF No. 19) is
GRANTED in part, based on my further determination that the Forest Service
has violated FOIA by failing to conduct a reasonable search for responsive
documents for this FOIA request, and by withholding information without showing
that this information was exempt from disclosure under FOIA exemption 5.

18

2. Plaintiff’s motion is DENIED to the extent that it seeks immediate disclosure of
the portions of the currently identified documents that have been withheld under
exemption 5. For the reasons stated above, I do not at this time have an
adequate factual basis to determine whether any or all of the redacted
information must be disclosed.

3. The Forest Service shall conduct and complete a search by October 30, 2015,
for additional documents responsive to Plaintiff’s FOIA request of February 27,
2014, pursuant to the standards stated in this decision. The Forest Service shall
review any newly identified responsive documents for any applicable exemptions,
in accordance with the standards recited in this Order and include them on the
revised Vaughn index.

4. For documents 1 through 5 on the current Vaughn index, Defendants shall
submit to the Court a revised Vaughn index with sufficient explanation of any
withheld pages as to segregable factual information and sufficient justification for
both the attorney/client privilege and the deliberative privilege under exemption 5
of FOIA by October 30, 2015.

5. For documents 6, 7, 8, and 10 on the Vaughn index, Defendants shall submit to
the Court by October 30, 2015, a revised Vaughn index with sufficient
explanation as to why these documents should be withheld as deliberative in
nature under exemption 5 of FOIA. It should be noted that all of the revisions
ordered in this section may be included on the same revised Vaughn index
document. The revised Vaughn index shall adhere to the standards stated
19

herein, and by the Tenth Circuit in Trentadue allow me to determine whether
segregable factual information in these documents must be disclosed.

6. If I find that the Forest Service’s revised Vaughn index is inadequate for
determination of the applicability of exemption 5, I will review the withheld or
redacted documents in camera, mindful of my duty under Trentadue to order
disclosure of all segregable factual information, disclosed without violating the
agency’s attorney/client privilege, or exposing the agency's deliberative process.

Finally, it is
ORDERED That Defendants’ Motion to Strike Evidence in Plaintiff’s Response to
Defendants’ Motion for Summary Judgment and Plaintiff’s Motion for Summary
Judgment (ECF No. 20) is DENIED.

Dated: September 30, 2015

BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

20