Whitson v. United States Forest Service
MEMORANDUM OPINION AND ORDER granting in part and denying in part 27 Defendant's Motion for Summary Judgment. Granting in part and denying in part 30 Plaintiff's Cross-Motion for Summary Judgment, by Judge Lewis T. Babcock on 5/23/2017. (ebuch)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Lewis T. Babcock, Judge
Civil Action No. 16-cv-01090-LTB-NYW
UNITED STATES FOREST SERVICE, an agency of the U.S. Department of
MEMORANDUM OPINION AND ORDER
This case is before me on Defendant’s Motion for Summary Judgment [Doc #
27] and Plaintiff’s Cross Motion for Summary Judgment [Doc # 30]. After
consideration of the motions, all related pleadings, and the case file, I grant both
motions in part and deny them in part and hold the case in abeyance pending
In this case in which Plaintiff alleges that Defendant United States Forest
Service (The “Forest Service”) violated the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552, by failing to fully respond to her July 27, 2015 FOIA request for
agency records, the following facts are undisputed unless otherwise noted.
The Forest Service is an agency within the United States Department of
Agriculture (“USDA”) charged with managing 193 million acres of National Forests
and National Grasslands. Forest Service lands are divided into nine geographic
regions. The Carson National Forest, located in north-central New Mexico, is one of
11 National Forests in Region 3. The Jicarilla Ranger District (the “District”),
located in Bloomfield, New Mexico, is one of seven administrative units within the
Carson National Forest and one of over 600 Forest Service Ranger Districts
nationwide. The District had approximately 17 employees, and there was
considerable tension among the District’s employees during the time period relevant
to this case.
In coordination with the Bureau of Land Management, the Forest Service
administers a number of wild horse or burro territories including the Jicarilla Wild
Horse Territory. The Forest Service’s responsibilities for the Wild Horse and Burro
Program includes euthanasia of wild horses and burros to minimize the suffering of
sick and/or injured animals. The Wild Horse and Burro Program is controversial,
and there are organizations dedicated to these animals. In administering the
Program, Plaintiff alleges that the Forest Service directed untrained employees to
use firearms to kill wild horses, in part, to avoid the cost of paying a veterinarian to
perform euthanasia services.
The subject of Plaintiff’s FOIA request is a misconduct investigation related,
in part, to administration of the District’s Wild Hose and Burro Program. The fact
of this investigation was common knowledge among the District’s employees.
Plaintiff alleges that the Forest Service made no contemporaneous request that
District employees keep the details of the investigation or any related records
confidential and never contacted any person involved in the investigation to
determine if they had privacy concerns. Plaintiff further alleges that the Forest
Service made no effort to withhold specific information gathered during the
investigation from District employees. The Forest Service disputes this allegation
and alleges that it did not provide specific information regarding the misconduct
investigation to District employees.
B. Plaintiff’s FOIA Request and the Forest Service’s Search for Responsive
On July 28, 2015, the Forest Service received Plaintiff’s FOIA request for
“records pertaining to employee misconduct investigation MI-2015-29, Jicarilla
Ranger District, Carson National Forest.” Specifically, Plaintiff requested the
following nine items or categories of documents:
1. Request for Misconduct Investigation Form
2. Correspondence between the Employee Relations Program Manager
and Assigned Investigator
3. Investigation Plan
4. Report of Investigation (ROI) and List of Exhibits
5. All Exhibits
9. Conclusions and Final Disposition Documents
Numbers 1, 3, 4, and 5 of Plaintiff’s request reference specific documents though
Plaintiff nonetheless asserts these requests could encompass other documents.
With respect to category Number 2, “Correspondence between the Employee
Relations Program Manager and Assigned Investigator,” the Forest Service
interpreted this request to include letters, emails, and similar documents between
the Employee Relations (“ER”) Program Manager and the Assigned Investigator, as
well as the ER Specialist though this individual is not specifically named in the
request. Plaintiff asserts that this interpretation is too narrow and that this
request included other persons who exchanged correspondence regarding the
With respect to Number 6, “Documentation,” the Forest Service interpreted
this request to mean documentation of the investigation, i.e., records that were
generated or obtained during the course of the subject investigation that did not
clearly fit into any other category of records.
With respect to Number 7, “Evidence,” the Forest Service interpreted this
request to mean material identified by the investigators as having evidentiary
value. Plaintiff assets that this interpretation is too narrow and excludes agency
records created or obtained by unidentified individual investigators. Plaintiff also
asserts that the Forest Service provided no evidence of the method used during the
FOIA records search to determine which records had “evidentiary value.”
With respect to Number 8, “Depositions,” the Forest Service interpreted this
request to include formal depositions though witness statements were included as
exhibits to the ROI in response to Number 4. Plaintiff asserts that this request
includes witness statements, interviews, and other means used to gather employee
With respect to Number 9, “Conclusions and Final Disposition Documents,”
the Forest Service’s FOIA analyst interpreted this request in light of her review of
other responsive documents and her basic understanding of what concludes the
investigatory process in cases such as this. Plaintiff asserts that this interpretation
is too narrow and in support of this assertion cites the conclusions and final
disposition documents from a purportedly similar investigation that were posted
The FOIA analyst initially assigned to handle Plaintiff’s request compiled
294 pages of documents before retiring. After this case was filed on May 12, 2016,
the Forest Service assigned Danielle Adams to work on Plaintiff’s FOIA request.
After reviewing the file and familiarizing herself with the investigative process
through discussions with Forest Service personnel involved in the subject
misconduct investigation, Ms. Adams concluded that supplemental searches for
documents responsive to Plaintiff’s FOIA request were appropriate and conducted
additional searches over a period of approximately two months.
Specifically, Ms. Adams determined that Forest Service internal misconduct
investigations are generally conducted by personnel in the Human Resources
Management (“HRM”) office located at the Forest Service’s Albuquerque Service
Center. Ms. Adams then identified the following HRM employees responsible for
conducting the subject misconduct investigation: (1) the assigned Personnel
Misconduct Investigator who conducted the investigation and prepared the ROI; (2)
the Investigator’s supervisor; (3) the assigned ER Specialist who reviewed the ROI
and supporting materials and directed any supplemental investigation; and (4) the
assigned ER supervisor and ER manager who also reviewed the ROI and supporting
materials and made a recommendation to the official who requested the
investigation. Ms. Adams also identified the Requesting Official who requested the
investigation and ultimately decided what personnel action, if any, to take based on
the results of the investigation as someone who might have responsive documents.
On June 8, 2106, Ms. Adams sent a request for documents (“RFD”) via email
to each person she had identified as being involved in the misconduct investigation
either directly or through their designated liaison. Ms. Adams’ June 8, 2016 RFD
provided a near-verbatim list of the nine items Plaintiff was seeking relating to
misconduct investigation MI-2015-29 and had a copy of Plaintiff’s FOIA request
attached. On June 9, 2016, Plaintiff sent a similar request to the Requesting
In reviewing the documents received pursuant to the RFD, Ms. Adams
determined that she had been mistaken about the identity of the ER Specialist and
sent an email on June 20, 2016 to the actual ER Specialist with a copy of the June
8, 2016 RFD with Plaintiff’s FOIA request attached. Ms. Adams also determined
that ER had requested a “ management inquiry” - i.e., a request for specific
information from management personnel in the Carson National Forest
Supervisor’s Office. Ms. Adams identified the person who responded to the
management inquiry and sent an RFD to this individual on July 26, 2016 via email.
This RFD was substantially identical to the June 9, 2016 RFD sent to the
Ms. Adams also directed IT personnel to conduct two searches of the Forest
Services’s email archive for correspondence that could be responsive to category
Number 2 of Plaintiff’s request. The first request mistakenly asked for emails for
the time period of March of 2016 through December of 2016. The second search
asked for emails for the time period January 1, 2015 through June 30, 2016.
Linda Lasko, another Forest Service employee, reviewed 3,725 emails
collected pursuant to the search of the Forest Service’s email archive to see if the
emails or their attachments were responsive to any of the items or categories listed
in Plaintiff’s FOIA request. After removing all non-responsive and duplicate
emails, Ms. Lasko identified 15 non-dulpicative or partially non-duplicative
responsive emails and 14 responsive attachments totaling 77 pages.
C. Response to Plaintiff’s FOIA Request
The Forest Service produced 291 pages of material to Plaintiff pursuant to
her July 27, 2015 FOIA request on September 2, 2016. The Forest Service produced
another 579 pages of material approximately one month later, and an additional 3
pages of materials On November 17, 2016. On January 12, 2017, the Forest Service
produced 62 pages of material to Plaintiff pursuant to the search of the Forest
Service’s archived emails. The other 15 pages of material identified by Ms. Lasko
originated in the Office of Inspector General (“OIG”) and were referred to that office
for a direct response to Plaintiff. OIG released these pages, subject to redaction, on
January 13, 2017.
The Forest Service asserts that some information was initially withheld from
production to protect Plaintiff’s privacy though Plaintiff asserts that the Forest
Service never inquired if she had privacy concerns prior to the filing of this case.
After receiving an authorization from Plaintiff, the Forest Service “re-processed” the
initial 291 pages of materials produced to Plaintiff and re-produced 26 pages of
materials containing information not previously released. An additional 72 pages of
documents were subsequently similarly re-produced.
Of the total pages of materials produced to Plaintiff, 149 pages were
“redacted in full,” i.e., withheld. Plaintiff asserts that at least 579 other pages were
“heavily redacted.” The Forest Service made redactions to the materials produced
in response to Plaintiff’s FOIA request pursuant to FOIA Exemptions 5, 6, 7(C) &
(E), 5 U.S.C. § 522(b). Plaintiff contends that these Exemptions are inapplicable
and that the Forest Service’s withholding of responsive records through full or
partial redaction was therefore improper.
The Forest Service submitted a Vaughn index describing the documents
produced and explaining its application of the FOIA exemptions with its Motion for
Summary Judgment. See Doc # 27-3. The Forest Service subsequently revised its
Vaughn Index, see Doc # 31-2, Att. 2, and this Revised Vaughn Index will be the
focus of my analysis of Plaintiff argument that the Forest Service’s Vaughn index
fails to satisfy the legal standards set forth in Vaughn v. Rosen, 484 F.2d 820 (D.C.
Cir. 1973) and its progeny.
II. Standard of Review
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).
In order to prevail on a motion for summary judgment in a FOIA case, the
defending agency has the burden of showing that its search was adequate and that
any withheld documents fall within an exemption to FOIA. Carney v. U.S. Dep’t of
Justice, 19 F.3d 807, 812 (2d Cir. 1994). “The adequacy of the search ... is judged by
a standard of reasonableness and depends ... upon the facts of each case.” Steinberg
v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir.1994) (quoting Weisberg v. U.S.
Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984))). In demonstrating the
adequacy of the search, the agency may rely upon reasonably detailed,
nonconclusory affidavits submitted in good faith. Id.
A. The Forest Service’s Evidence
The first issue relevant to both parties’ summary judgment motions is the
sufficiency of the Forest Service’s evidence regarding its execution of its duties
under FOIA. The challenged evidence consists of the declarations of James Duran
and Danielle Adams and the Forest Service’s Revised Vaughn Index describing the
information it withheld and identifying the exemptions it claims support this
withholding. See Doc #s 27-1; 27-2; 31-1; & 31-2, Att. 2.
Mr. Duran is the Forest Supervisor for the Carson National Forest and is
familiar in this capacity with the District Office. Doc # 27-1, ¶¶ 1 & 4. In
particular, Mr. Duran was familiar with tension among the employees in the
District Office and controversy surrounding the District’s Wild Horse and Burro
Program. Id. at ¶¶ 8 & 12.
Ms. Adams is a Forest Service Employee who was assigned Plaintiff’s July
27, 2015 FOIA request on May 20, 2016 after the analyst to whom it was originally
assigned retired. Doc # 27-1, ¶¶ 1 & 6. Ms. Adams reviewed the case file on
Plaintiff’s request and conducted supplemental searches for responsive documents
over a period of approximately two months as detailed in her declarations. Doc #s
27-1, ¶¶ 9-16 & 31-1, ¶¶ 3-13. Based on his familiarity with the District Office, Mr.
Duran assisted Ms. Adams in evaluating privacy interests that might be impacted
in responding to Plaintiff’s FOIA request. Ex. 2, ¶ 31.
Plaintiff asserts that the declarations of Mr. Duran and Ms. Adams provide
insufficient detail, lack specificity, and offer only conclusory statements. While this
assertion may be somewhat descriptive of Mr. Duran’s declaration, this is the
natural result of the limited role he played in the search for documents responsive
to Plaintiff’s FOIA request and does not reflect any bad faith on the part of the
Forest Service. Mr. Duran’s declaration is sufficient for the purpose for which it
was offered, i.e., to provide support for the privacy exemptions claimed by the
Forest Service in responding to Plaintiff’s FOIA request.
Plaintiff’s assertion that Ms. Adams’ declarations suffer from insufficient
detail, lack of specificity, and the use of conclusory statements, however, is wholly
without merit since both of Ms. Adams’ declarations thoroughly detail her efforts to
identify and produce documents responsive to Plaintiff’s FOIA request.
Plaintiff’s assertion that Ms. Adams’ declarations represent post hoc
allegations about the Forest Service’s response to her FOIA request also fails to
undermine the evidentiary value of Ms. Adams’ declarations. While they may not
have been prepared contemporaneously with her search efforts, Ms. Adams’
declarations thoroughly detail what she personally did to respond to Plaintiff’s
FOIA request. The fact that the Forest Service did not provide a declaration from
the retired analyst initially assigned Plaintiff’s FOIA request does not mean that it
has failed to produce competent evidence to support its summary judgment motion.
See Carney, 19 F.3d at 814 (“An affidavit from an agency employee responsible for
supervising a FOIA search is all that is needed to satisfy Rule 56(e); there is no
need for the agency to supply affidavits from each individual who participated in
the actual search.”). Moreover, it is apparent from her declarations that Ms. Adams
reviewed the work of the first analyst and essentially conducted a new search that
yielded the bulk of the materials produced to Plaintiff.
As for the Forest Service’s Revised Vaughn Index, Plaintiff argues that it is
inadmissible because it is not signed by the person who prepared it. In support of
this argument, Plaintiff cites D. C. Colo. L Civ R 5.1(a) which provides that each
pleading and document filed in a civil action shall be signed. The Forest Service’s
Revised Vaughn Index, however, is not an independent document but rather an
exhibit to other properly formatted documents. Plaintiff’s remaining arguments
regarding the sufficiency of the Forest Service’s Revised Vaughn Index will be
addressed later in this Order.
In sum, I decline to dismiss the Forest Service’s evidence outright as Plaintiff
suggests. The question of whether this evidence is sufficient to meet the Forest
Service’s burden of demonstrating that it conducted a reasonable search and that
any withheld documents or portions of documents fall within a FOIA exception will
be addressed in the remainder of this Order.
B. The Reasonableness of the Forest Service’s Search
In analyzing the Forest Service’s search for documents responsive to
Plaintiff’s FOIA request, I look at whether the Forest Service conducted “a search
reasonably calculated to uncover all relevant documents.” Steinberg, 23 F.3d at 551
(D.C. Cir. 1994) (quoting Weisberg, supra). “The question is not whether there
might exist any other documents possibly responsive to the request, but rather
whether the search for those documents was adequate.” Id. Mere speculation that
other documents may exist does not preclude a finding that the Forest Service
conducted a reasonable search. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201
(D.C. Cir. 1991).
Plaintiff’s first assertion in support of her argument that the Forest Service
failed to conduct a reasonable search for documents responsive to her FOIA request
is that the Forest Service did not request records from certain individuals and
offices. In support of this assertion, Plaintiff first notes that she personally
interacted with six individuals regarding the subject misconduct investigation but
there is no evidence that any of these individuals conducted a FOIA search. The
mere fact that Plaintiff had some unspecified contact with these individuals,
however, does not mean that the Forest Service’s search was inadequate because it
did not include specific search requests to these individuals. In addition, because
Ms. Adams focused her search efforts on the Forest Service offices and personnel
responsible for conducting the subject misconduct investigation, any responsive
materials that these six individuals may have had were likely included in those
collected by Ms. Adams from other individuals.
Plaintiff next asserts that the Forest Service should have referred her
request to the USDA’s OIG. In support of this assertion, Plaintiff states that she
exchanged emails with this office regarding the subject misconduct investigation
though these emails are not attached to Plaintiff’s declaration. See Doc # 28-2, ¶ 9.
It is undisputed that the Forest Service has an obligation to construe
Plaintiff’s FOIA request liberally and to refer the request to another office if it is
reasonably likely to have responsive records. See Friends of Blackwater v. U.S.
Dep’t of Interior, 391 F. Supp. 2d 115, 122 (D.C. Cir. 2005). As the Forest Service
points out, however, Plaintiff’s FOIA request was directed only to the Forest Service
and sought records relating to an employee misconduct investigation that was
conducted by Forest Service employees and which Plaintiff identified by a Forest
Service “MI” number. Under these circumstances, Plaintiff’s FOIA request did not
put the Forest Service on notice that it should refer the request to OIG, and the
Forest Service’s failure to do so does not undermine the reasonableness of its
search. See Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 389 (D.C. Cir. 1986) (agency
responding to FOIA request is not obliged to look beyond four corners of the request
for leads to the location of responsive documents). Compare Rocky Mountain Wild,
Inc. v. U.S. Forest Serv., 138 F. Supp. 3d 1216, 1221-22 (D. Colo. 2015) (agency
failed to conduct reasonable search for records when it did not include entities that
plaintiff’s request suggested may have responsive records).
Plaintiff similarly argues that the Forest Service unreasonably excluded the
District Office, the Carson National Forest Supervisor’s Office, the Southwest
Regional Office, the Forest Service’s Washington Office, and the Office of General
Counsel from its search for records responsive to Plaintiff’s FOIA request. First,
the Forest Service did not wholly exclude the Carson National Forest Supervisor’s
Office from its search efforts. Rather, Ms. Adams sent an RFD to the individual in
that office who had responded to a management inquiry requested in connection
with the subject misconduct investigation. See Doc # 31-1, ¶ 11. As for the other
offices, the mere fact that they are in the Forest Service’s “chain of command” does
not mean that they were likely to possess records responsive to Plaintiff’s FOIA
request, especially records that were unique to those collected from the offices
responsible for conducting, reviewing, and responding to the subject misconduct
investigation. Again then, the Forest Service’s partial failure to search for records
at the Forest Service offices identified by Plaintiff does not render its search
Plaintiff next argues that the Forest Service cannot meet its burden of
demonstrating that its search for materials responsive to Plaintiff’s FOIA request
was reasonable because it has failed to provide any evidence regarding the search
methods used prior to Ms. Adams’ assignment to her request in May of 2016. I
conclude, however, that such evidence is unnecessary because it is readily apparent
from Ms. Adams’ detailed declarations that she essentially started the search anew
once Plaintiff’s FOIA request was assigned to her.
Finally, Plaintiff argues that the Forest Service cannot meet its burden of
demonstrating a reasonable search because there is no evidence to establish a “cutoff” date. As Plaintiff acknowledges, the date of the actual search is generally
considered a reasonable cut-off date. See Edmonds Inst. v. U.S. Dep’t of Interior,
383 F. Supp. 2d 105, 111 (D.C. Cir. 2005) (“The D.C. Circuit has all but endorsed
the use of date-of-search as the cut-off date for FOIA requests”) (citing Pub. Citizen
v. Dep’t of State, 276 F.3d 634, 642 (D. C. Cir. 2002)). Here, because of the Forest
Service’s lengthy delay in responding to Plaintiff’s FOIA request, the cutoff dates
ranged from June 8, 2016 to June 30, 2016 per the declarations of Ms. Adams and
Ms. Lasko, and the latest responsive document is dated May 2, 2016 (see Ex. 31-2, ¶
4). I conclude that these cut-off dates were reasonably calculated to lead to the
collection of all documents responsive to Plaintiff’s FOIA request.
In sum then, I conclude that the Forest Service has met its burden of
demonstrating that it conducted a search reasonably calculated to uncover all
documents relevant to Plaintiff’s FOIA request. Although Plaintiff advocates for a
far more exhaustive search, the applicable standard requires only that the Forest
Service conduct a reasonable search based on the request that Plaintiff submitted.
C. Sufficiency of the Forest Service’s RevisedVaughn Index
“[T]he underlying purpose of [a] Vaughn index is to permit the District Court
to make a rational decision whether the withheld material must be produced
without actually viewing the documents themselves, as well as to produce a record
that will render the District Court's decision capable of meaningful review on
appeal.” Dellums v. Powell, 642 F.2d 1351, 1360 (D.C. Cir. 1980). “All that is
required, and it is the least that is required, is that the requester and the trial
judge be able to derive from the index a clear explanation of why each document or
portion of a document withheld is putatively exempt from disclosure.” Hinton v.
Dep’t of Justice, 844 F.2d 126, 129 (3d Cir. 1988).
The Forest Service’s Revised Vaughn Index (Doc # 31-2, Att. 2) divides the
documents responsive to Plaintiff’s FOIA request into six “record groups.” For each
record group, the Forest Service provides a description of the included documents;
lists the corresponding Bates numbers; identifies by number the exemptions relied
on by the Forest Service in making redactions to the included documents; and
explains the Forest Service’s rationale for relying on the listed exemption to
Plaintiff makes a number of general objections to the Forest Service’s Revised
Vaughn Index. First, Plaintiff objects to the Forest Service’s citation to Exemption
6 and Exemption 7(C) concurrently to support its withholding of certain
information. Exemption 6 exempts from disclosure “personnel and medical files and
similar files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy.” 5 U.S.C.A. § 552(b)(6). Exemption 7(C) exempts from
disclosure “records or information compiled for law enforcement purposes, but only
to the extent that the production of such law enforcement records or information ...
could reasonably be expected to constitute an unwarranted invasion of personal
privacy[.]” 5 U.S.C.A. § 552(b)(7)(C).
Courts have construed the privacy inquiry under Exemptions 6 and 7(C) to be
essentially the same though Exemption 7(C) is broader. Judicial Watch v. Dep’t of
Justice, 365 F.3d 1108, 1125 (D.C. Cir. 2004). Thus, it is reasonable for the Forest
Service to list both of these exemptions together to support its redactions, and the
Court will assume that the Forest Service is asserting that the subject information
may be properly characterized as either personnel-type files and records or
information compiled for law enforcement purposes. The question of whether the
Forest Service has met its burden of demonstrating that one or both of these
exemptions is in fact applicable will be addressed in my analysis of the specific
claims of exemption made by the Forest Service.
Next, Plaintiff argues that the Forest Service improperly lumped documents
together into broad categories. There is no requirement, however, that the Forest
Service separately list each document that it is withholding from disclosure in
whole or in part. Instead, the Forest Service may explain its withholdings by
reference to categories of documents. Vaughn v. United States, 936 F.2d 862, 868
(6th Cir. 1991) (citations omitted). When a government agency chooses to rely on
categorical determinations as the Forest Service has done, its descriptions of the
relevant categories must be specific enough to allow a court to determine, as to each
category, whether the claimed exemptions are proper. Id. I conclude that the
Forest Service has met this standard.
Plaintiff also argues that the Forest Service’s Revised Vaughn Index provides
insufficient explanations for its withholdings because it copied and pasted generic
explanations to different categories of documents. Plaintiff takes particular issue
with the Forest Service’s explanation for its withholding of materials under
Exemptions 6 and 7(C), see Doc # 37, p. 30, based on privacy concerns. As set forth
above, however, the privacy inquiry under these two exemptions is essentially the
same. Preliminarily, I conclude that the Forest Service has adequately explained
its redactions under FOIA Exemptions 5, 6, and 7(C) to allow for my de novo review.
In reaching this conclusion, I recognize that it may have been difficult for the Forest
Service to provide more explanatory detail without revealing the private or
privileged information it seeks to protect from disclosure. See Curran v. Dep’t of
Justice, 813 F.2d 473, 476 (1st Cir. 1987) (some degree of generality in FBI’s
response to FOIA request was understandable and probably essential where
otherwise FBI would have had to resort to precise description which would
compromise the claimed exemption).
More problematic is the Forest Service’s explanation of its redactions based
on Exemption 7(E). In each of the three instances where it invoked this Exemption,
the Forest Service provided virtually an identical explanation that “[a] small
amount of information was withheld [because/that], if released it would reveal law
enforcement techniques in a manner that could allow a member of the public to
circumvent the law.” See Doc # 31-2, Att. 2, pp. 2, 4, & 18. The Forest Service
further asserts that the information under Exemption 7(E) is incidental to the
substance of Plaintiff’s request. Id. Such general information without even a
reference to the relevant area of the law hinders my de novo review of the
applicability of Exemption 7(E). Whether further steps must be taken to remedy
this deficiency depends on whether Exemption 7 is applicable under the facts and
circumstances of this case which I will now address.
D. Applicability of Specific Exemptions Cited by the Forest Service
While the purpose of FOIA is to “open[ ] up the workings of government to
public scrutiny,” Stein v. Dep’t of Justice, 662 F.2d 1245, 1252 (7th Cir. 1981),
Congress recognized nine exemptions in which disclosure would not be appropriate.
5 U.S.C. § 522(b)(1) - (9). The government agency bears the burden of
demonstrating that a claimed exemption applies. 5 U.S.C. § 552(a)(4)(B).
1. Exemption 7(C) & (E)
FOIA Exemption 7 allows a government agency to withhold “records or
information compiled for law enforcement purposes” where the disclosure of such
information would result in one of six enumerated harms. 5 U.S.C. § 522(b)(7). The
threshold inquiry under Exemption 7 is therefore whether the withheld information
was compiled for law enforcement purposes. This in turn requires an examination
of the involved agency to determine whether it exercises law enforcement functions.
Church of Scientology of California v. U.S. Dep’t of the Army, 611 F.2d 738, 748 (9th
Cir. 1979), overruled on other grounds by Animal Legal Defense Fund v. U.S. Food
& Drug Admin., 836 F.3d 987 (9th Cir. 2016). An agency exercises law enforcement
functions if has a clear law enforcement mandate, such as the FBI, or has a “mixed”
function that encompasses both administrative and law enforcement functions. Id.
See also Jordan v. U.S. Dep’t of Justice, 668 F.3d 1188, 1193-95 (10th Cir. 2011)
(recognizing two approaches to interpreting Exemption 7’s requirement that
withheld information be “compiled for law enforcement purposes,” each depending
on nature of involved agency’s law enforcement authority).
Here, there can be no dispute that the primary function of the Forest Service,
unlike the FBI, is not law enforcement. The Forest Service has also failed to
demonstrate that it nonetheless qualifies as a mixed-function agency. Moreover,
even if the Forest Service can be properly characterized as a mixed-function agency,
it still bears the burden of showing that the withheld information was compiled for
adjudicative or enforcement purposes. Stern v. F.B.I., 737 F.2d 84, 88 (D.C. Cir.
1984). In the case of internal investigations such as this, the Forest Service must
show that the investigation was conducted for law enforcement purposes rather
than for general internal monitoring that might reveal evidence that could later
give rise to a law enforcement investigation. Id. at 89. An internal investigation of
an agency’s employees is for law enforcement purposes if it focuses “directly on
specifically alleged illegal acts, illegal acts of particular identified officials, acts
which could, if proved, result in civil or criminal sanctions.” Id. (quoting Rural
Housing All. v. U.S. Dep’t of Agric., 498 F.2d 73, 81 (D.C. Cir. 1974)).
Here, the only evidence that the Forest Service cites to show that the subject
misconduct investigation was for law enforcement purposes is a conclusory
assertion to this effect by Ms. Adams in her declaration and a statement in a
partially withheld email exchange that “I let [redacted] know the investigation ...
includes several misconduct allegations; one of which may have criminal
implications.” See Doc #s 27, Ex. 2, ¶ 29 & 28-12, p. 124. This evidence is
insufficient to satisfy the Forest Service’s burden to show that the subject
misconduct investigation was for law enforcement purposes. In fact, the cited
quotation instead supports a finding that the investigation was focused on alleged
violations of the Forest Service’s internal policies and regulations that might
incidentally reveal evidence of a single violation of criminal law.
Because the Forest Service has failed to meet its burden of showing either
that it is a government agency with law enforcement functions or that the
information withheld pursuant to Exemption 7 was compiled for law enforcement
purposes, Plaintiff is entitled to summary judgment that Exemption 7 is
inapplicable under the circumstances of this case. The Forest Service must
therefore disclose the information that it redacted pursuant to Exemption 7(E) to
Plaintiff and may not rely on Exemption 7(C) to withhold any other responsive
information from Plaintiff. Since the Forest Service also cited Exemption 6 in each
instance that it cited Exemption 7(C), the Forest Service’s obligation to disclose this
information turns on the applicability of Exemption 6 which I now address.
2. Exemption 6
FOIA Exemption 6 allows a government agency to 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. § 522(b)(6). Plaintiff does not
contest the Forest Service’s assertion that the information withheld pursuant to
Exemption 6 is contained in “personnel and medical files and similar files.” Thus,
my determination of whether the Forest Service has met its burden of showing that
Exemption 6 is applicable to the withheld information turns on whether the
disclosure of this information would constitute a clearly unwarranted invasion of
Exemption 6’s “clearly unwarranted invasion of personal privacy” language
requires a balancing of the individuals’ interest in their privacy against the
interests of the public in being informed. Rural Housing All., 498 F.2d at 77. This
language guides courts to tilt the balance in favor of disclosure. Id. See also
Kurzon v. Dep’t of Health and Human Servs., 649F.2d 65, 67 (1st Cir. 1981) (by
requiring that invasion of privacy be “clearly unwarranted,” “Congress has erected
an imposing barrier to nondisclosure under [Exemption 6]”).
In the Exemption 6 balancing of interests inquiry, I first determine whether
there is, in fact, a privacy interest in the withheld information. The Forest Service
asserts that the information withheld implicates significant privacy interests of
non-employee third parties who are referenced in these materials; Forest Service
employees who provided information to investigators; Forest Service employees who
conducted or facilitated the subject misconduct investigation; and the subjects of the
misconduct investigation. The Forest Service further asserts that the release of
materials either directly or indirectly identifying these individuals could expose
them to unwanted contact, harassment, interference with their official duties, or
reprisal and embarrassment or stigma for being associated with the misconduct
investigation. Doc # 31-2, Att. 1, p 3.
Though the supporting legal authorities cited by the Forest Service largely
focus on privacy interests under Exemption 7(C), I conclude that the Forest Service
has identified a legitimate privacy interest in the withheld materials. These
privacy concerns are exacerbated in this case by the undisputed facts that the
misconduct investigation focused in part on a controversial matter and that there is
considerable tension among the small number of employees who work for the
District. Furthermore, it is plausible that under the circumstances of this case that
the protection of this privacy interest would require redactions beyond basic
identifiable information such as names and telephone numbers. See Nat’l
Whistleblower Ctr. v. Dep’t of Health & Human Servs., 849 F. Supp. 2d 13, 30 (D.
C.C. 2012) (accepting agency determination that unless materials were withheld in
their entirety identity of target or witness in investigation would be revealed and
recognizing that deference to agency’s targeted redactions was warranted since
court was not in position to make line-by-line determination of which statements
would expose witness’s identity).
I next look at whether there is a public interest in the information that
implicates privacy concerns. Though Plaintiff’s FOIA request does not identify such
an interest, Plaintiff has since indicated that her request was based on her personal
interest in determining whether the Forest Service conducted a thorough
investigation and that she has shared, and will continue to share, the information
received with other persons interested and engaged in public land management,
whistleblower protection, animal protection, and government oversight, including
elected government officials. See Doc # 28-2, ¶¶5 & 6. Plaintiff also asserts a
public interest in “the Forest Service’s handling of serious issues involving the
management and destruction of wild horses and burros. Id. at ¶ 7.
In executing Exemption 6’s balancing inquiry, the Forest Service considered
“an asserted public interest in alleged employee misconduct, the agency’s
management of public lands on the Jicarillo Ranger District, and in particular,
management of wild horses and burros on the District.” Doc # 27, pp. 8-9, ¶ 40.
However, in the cover letters accompanying its release of documents to Plaintiff, the
Forest Service more narrowly defined the public interest as the Forest Service’s
management of wild horses and burros in the District. See Doc #s 27-2, Atts. B,C &
D; 31-2, Att. 1. It is therefore undisputed that the public has some interest in the
information sought by Plaintiff’s FOIA request, and I conclude that the public
interest extends beyond alleged misconduct regarding the District’s management of
wild horses and burros to all allegations of misconduct and the Forest Service’s
handling of all allegations of misconduct. See Nat’l Whistleblower Ctr., 849 F.
Supp. 2d at 32 (“The public no doubt has an interest in knowing whether
[government agency] properly investigates allegations on misconduct...”).
As explained in its Revised Vaughn Index (Doc # 31-2, Att. 2), the Forest
Service determined that privacy interests outweighed the public interest when the
information at issue (1) consisted solely of names, tiles, organizational affiliation, or
contact information for individuals; (2) concerned allegations that were
unsubstantiated; (3) would reveal the identity of the subject(s) of any substantiated
allegations but would not add substantively to information disclosed elsewhere; or
(4) would indirectly reveal the identity of a witness or third party. The Forest
Service further explained that these last two categories included (1) references to
specific conversations or events that would allow other involved parties to identify
the source of the information; (2) references to specific events that would identify an
individual by reference to their duties, roles, responsibilities, or authority; and (3)
certain references to organizational and/or personal relationships among
On its face, the Forest Service’s explanation of its redactions supports the
conclusion that providing this information would constitute a clearly unwarranted
invasion of personal privacy with one significant caveat. From my review of the
redacted documents provided to Plaintiff (see Doc # 28-12), it appears that the
Forest Service may have limited its consideration of the public interest to
allegations relating to the District’s Wild Horse and Burro Management Program as
indicated in its correspondence with Plaintiff. For instance, in the disclosed
“Request for Administrative Employee Misconduct Investigation,” Doc # 28-12, pp.
1-4, all information regarding the 14 allegations requiring investigation are
redacted but for the first one regarding the inappropriate and possibly illegal
disposal of wild horses using a firearm. To the extent that this information was
redacted because the Forest Service claims that the allegations were
unsubstantiated, this entails a subjective determination that goes to the heart of
the public’s interest in knowing whether the Forest Service properly investigated
alleged misconduct. Accordingly, I conclude that further review by the Forest
Service of its redactions pursuant to Exemption 6 is warranted to ensure that
information was not withheld based on an overly narrow view of the public interest
implicated by Plaintiff’s request or based on a subjective determination that the
information was related to unsubstantiated allegations.
I conclude that further review of the withheld information by the Forest
Service will be more effective than in camera review by the Court since the Court is
not in a position to judge whether the release of certain potions of information
would enable Plaintiff or other members of the public to identify involved parties
based on the particular dynamics of the affected Forest Service offices. In addition,
while there was considerable delay in the Forest Service’s response to Plaintiff’s
FOIA request, there are other circumstances which support yielding some deference
to the Forest Service’s redactions pursuant to Exemption 6. In particular, it is
apparent that the Forest Service attempted to do targeted as opposed to wholesale
redactions and has continued to release documents when errors or omissions are
I therefore decline to enter summary judgment in favor of either party on the
applicability of Exemption 6 to materials withheld by the Forest Service but will revisit this issue, if necessary, following the Forest Service’s further review of these
materials as set forth above.
3. Exemption 5
FOIA Exemption 5 allows a government agency to withhold “inter-agency or
intra-agency memorandums or letters that would not be available by law to a party
other than an agency in litigation with the agency....” 5 U.S.C. § 522(b)(5). “In other
words, it protects documents that would be covered by any privilege that an agency
could assert in a civil proceeding.” Trentadue v. Integrity Comm., 501 F.3d 1215,
1226 (10th Cir. 2007). This includes the deliberative process privilege which shields
“documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are
formulated.” Id. (quoting Dep't of the Interior v. Klamath Water Users Protective
Ass'n, 532 U.S. 1, 8 (2001)). To be exempt as privileged under Exemption 5, a
document must be both predecisonal, i.e. prepared in order to assist an agency
decisionmaker in arriving at his decision, and deliberative. Id. at 1227. Nonfactual materials that express opinions or recommendations are clearly deliberative.
Id. Factual materials are also deliberative when they are inextricably intertwined
with deliberative materials and their disclosure would reveal deliberative material.
Id. at 1227-29.
The Forest Service’s Revised Vaughn Index cites Exemption 5’s deliberative
process privilege to justify redactions of its investigation plan, internal emails, a 16page draft report, and case assessment materials. Doc # 31-2, pp. 8, 9, 12 & 16. I
conclude that the Forest Service’s explanation of why Exception 5 was applicable to
information in these documents is sufficient to meet its burden on this issue. In
particular, the Forest Service did not recite the same explanation for why the
redacted information is exempt pursuant to Exemption 5 but rather provided
unique descriptive details in each instance that it cited Exemption 5. I also note
that there is no requirement under Exemption 5 that the Forest Service identify
“concrete evidence of harm to a cognizable agency interest” before withholding
information pursuant to Exemption 5 as alleged by Plaintiff. Implicit in Exemption
5 is recognition of an agency’s interest in having open and frank communications
among agency officials during the decisionmaking process. Trentadue, 501 F.3d at
1226 (citations omitted). The Forest Service is therefore entitled to summary
judgment that its redactions pursuant to Exemption 5 are proper.
For the reasons set forth above, IT IS HEREBY ORDERED that
1. Defendant’s Motion for Summary Judgment [Doc # 27] is GRANTED IN
PART and DENIED IN PART;
2. Plaintiff’s Cross-Motion for Summary Judgment [Doc # 30] is GRANTED
IN PART and DENIED IN PART;
3. The Forest Service is entitled to summary judgment on the threshold
issue of the sufficiency of the evidence it submitted regarding Plaintiff’s FOIA
4. The Forest Service is entitled to summary judgment on the issue of the
reasonableness of its search for documents responsive to Plaintiff’s FOIA request;
5. The Forest Service is entitled to summary judgment on Plaintiff’s general
objections to the sufficiency of its Revised Vaughn Index except for its citations to
FOIA Exemption 7(E);
6. Plaintiff is entitled to summary judgment that FOIA Exemption 7(C) &
(E) is inapplicable under the facts and circumstances of this case;
7. The parties’ request for summary judgment regarding the applicability of
Exemption 6 shall be HELD IN ABEYANCE pending the Forest Service’s review of
the information it redacted pursuant to this Exemption consistent with this order;
8. The Forest Service is entitled to summary judgment that its redactions
pursuant to FOIA Exemption 5 were proper; and
9. The Forest Service shall disclose all information redacted pursuant to
FOIA Exemption 7(E) to Plaintiff and advise Plaintiff and the Court of the results of
its review of its redactions pursuant to FOIA Exemption 6 within thirty (30) days of
the date of this Order.
Dated: May 23 , 2017 in Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE
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