Whitson v. United States Forest Service

Filing 49

MEMORANDUM OPINION AND ORDER granting 40 Defendant's Motion for Reconsideration, by Judge Lewis T. Babcock on 8/29/2017. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Lewis T. Babcock, Judge
Civil Action No. 16-cv-01090-LTB-NYW
KATHY WHITSON,
Plaintiff,
v.
UNITED STATES FOREST SERVICE, an agency of the U.S. Department of
Agriculture,
Defendant.
______________________________________________________________________________
MEMORANDUM OPINION AND ORDER
______________________________________________________________________________
Babcock, J.
This case is before me on Defendant United States Forest Service’s (the
“Forest Service”) Motion for Reconsideration [Doc # 40]. After consideration of the
motions, all related pleadings, and the case file, I grant the Forest Service’s motion.
I. Background
By Order dated May 23, 2017 [Doc # 39] (“the Order”), I ruled on the parties’
cross motions for summary judgment in this Freedom of Information Act (“FOIA”),
5 U.S.C. § 552, case. Among other things, I entered summary judgment in favor of
Plaintiff on the issue of the applicability of Exemption 7(C) & (E) to her FOIA
request and held the issue of the applicability of Exemption 6 in abeyance pending
further review by the Forest Service of its reliance on this exemption to withhold
certain materials from Plaintiff. I further ordered the Forest Service to disclose all

information redacted pursuant to FOIA Exemption 7(E) to Plaintiff and to 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 the Order.
By the motion, the Forest Service asks me to reconsider the applicability of
Exemption 7 to Plaintiff’s FOIA request and submits supplemental evidence in
support of this request.
II. Standard of Review
The parties disagree about the appropriate standard of review for the Forest
Service’s motion. Indeed, there is no provision in the Federal Rules of Civil
Procedure recognizing a motion for reconsideration. Van Skiver v United States,
952 F.2d 1241, 1243 (10th Cir. 1991). Rather, depending on the posture of the case,
a motion for reconsideration may be treated as a motion to alter or amend the
judgment under Rule 59(e); a motion for relief from judgment under Rule 60(b); or a
request for use of the Court’s discretion to reopen orders that are short of a final
decree. Price v. Philpot, 420 F.3d 1158, 1167 n. 9 (10th Cir. 2005).
Because the Order held the issue of the applicability of Exemption 6 in
abeyance, it is not a final order. See Fed. R. Civ. P. 54(b) (“...order ...that
adjudicates fewer than all the claims ... may be revised at any time before the entry
of a judgment adjudicating all the claims....). The Order may therefore be revised
“as justice requires.” Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630
F.3d 217, 227 (D.C. Cir. 2011). In determining whether justice requires revision of
the Order, I am mindful that the Forest Service submitted extensive briefing on the
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parties’ cross motions for summary judgment for my consideration. See Servants of

The Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (motion for
reconsideration not appropriate for revisiting issues already addressed or advancing
arguments that could have been raised in prior briefing).
III. Analysis
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. § 552(b)(7). The
Forest Service bears the burden of demonstrating that this Exemption applies, 5
U.S.C. § 552(a)(4)(B), and I concluded in the Order that it failed to meet this burden
on two fronts. First, I concluded that the Forest Service failed to demonstrate that
it operates as a mixed-function agency that encompasses both administrative and
law enforcement functions. See 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) (the
threshold issue in any Exemption 7 claim is whether the agency involved may
properly be classified as an agency that may exercise a law enforcement function).
Second, I concluded that the Forest Service failed to demonstrate that the withheld
information was compiled for adjudicative or enforcement purposes. See Stern v.

F.B.I., 737 F.2d 84, 88 (D.C. Cir. 1984) (threshold test for applicability of Exemption
7 requires government to show that the records at issue were compiled for
adjudicative or enforcement purposes). By its motion to reconsider, the Forest
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Service argues that both of these prerequisites to the applicability of Exemption 7
are satisfied in this case.
A. The Forest Service’s Status as a “Law Enforcement Agency”
In both her cross motion for summary judgment and her response to the
Forest Service’s motion for summary judgment, Plaintiff argued that the Forest
Service’s Human Resources Management (“HRM”) office was not a “law
enforcement agency.” See Doc #s 28, p. 28 & 30, p. 30. Plaintiff also asserted that
the Forest Service had proffered no evidence to establish that it had express law
enforcement authority or that its activities were expressly related to its statutory
mandate. See Doc # 30, p.30 (citing Living Rivers, Inc. v. U.S. Bureau of

Reclamation, 272 F. Supp. 2d 1313, 1318-20 (D. Utah 2003)). In response, the
Forest Service did not provide any evidence to show that it is a mixed-function
agency with law enforcement authority. Instead, the Forest Service argued that “it
is well-established that, regardless of the nature or mission of the agency, personnel
investigations of government employees meet Exemption 7’s threshold requirement
where they focus on specific and potentially unlawful activity by particular
employees of a civil or criminal nature.” See Doc # 31, p. 32.
Now, for the first time, the Forest Service provides evidence of its overall law
enforcement function. Without question, the Forest Service had ample opportunity
to present this evidence in the briefs it filed in connection with the parties’ cross
summary judgment motions. Nonetheless, in the interests of justice, I cannot
ignore clear evidence that the Forest Service is a mixed-function agency that may
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invoke FOIA Exemption 7 provided that the remaining prerequisites of this
exemption are satisfied. Moreover, it is these other prerequisites that are at the
crux of the parties dispute regarding the Forest Service’s reliance on Exemption 7.
B. The Purpose of the Subject Misconduct Investigation
Prior to issuance of the Order, the only evidence that the Forest Service cited
in support of its assertion that the information it withheld from Plaintiff pursuant
to Exemption 7 was complied for “law enforcement purposes” consisted of (1) a
conclusory statement in an affidavit that this information “pertain[ed] to an
employee misconduct investigation that sought to determine whether one or more
subject employees may have violated civil or criminal law or otherwise engaged in
wrongdoing,” see Doc # 27, p. 19 & Doc # 27-2, ¶ 29; and (2) a statement in an email
exchange that “I let [redacted] know the investigation ... includes several
misconduct allegations, one of which may have criminal implications.” See Doc #
31, p. 33.
In considering cross motions for summary judgment, I am entitled to assume
that no evidence needs to be considered other than that filed by the parties. James

Barlow Family Ltd. P’ship v. David M. Munson, Inc., 132 F.3d 1316, 1319 (10th Cir.
1997). In its briefing on the cross summary judgment motions, the Forest Service
did not specify any civil or criminal laws that could have been violated by the
conduct at issue in the subject misconduct investigation, compare Stern, 737 F.2d at
89-90 (citing three federal obstruction of justice statutes that were potentially
violated to support conclusion that FBI’s internal investigation was for “law
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enforcement purposes”), nor did it provide much detail about the investigation
despite bearing the burden of proof on the applicability of Exemption 7. Under
these circumstances, I concluded that the Forest Service failed to meet its burden of
showing that its internal misconduct investigation focused “directly on specifically
alleged illegal acts, illegal acts of particular identified officials, acts which could, if
proved, result in criminal or civil sanctions.” Stern, 737 F.2d at 89 (quoting Rural

Housing All. v. U. S. Dep’t of Agric., 498 F.2d 73, 81 (D.C. Cir. 1974)).
In its motion for reconsideration, the Forest Service acknowledges that it
presented sparse evidence and conclusory declarations from witnesses in its briefing
on the cross motions for summary judgment out of an abundance of caution lest it
disclose any of the information it claims is exempt from disclosure. The Forest
Service’s concern in this regard is legitimate and provides a plausible explanation
as to why it did not provide additional evidence at that time. To demonstrate that
the information withheld from Plaintiff pursuant to Exemption 7 was compiled for
“law enforcement purposes,” the Forest Service has now submitted additional
evidence showing that
1. The misconduct investigation involved fourteen specific allegations
against specific individuals;
2. Seven of the fourteen allegations involved conduct that was
“possibly illegal,” including the unauthorized disposal of wild horses
with a firearm, potential misuse of government property and
information, and potentially illegal financial activities;
3. Specific laws that may have been violated include 18 U.S.C. § 930
and the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. § 131, et

seq.;

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4. The Forest Service’s HRM office could have referred the subject
misconduct investigation to the U.S. Department of Agriculture’s
Office of the Inspector General (“OIG”) or to the Forest Service’s Law
Enforcement and Investigations (“LEI”) organization; and
5. The HRM office advised LEI that the subject misconduct
investigation had potential criminal implications and provided a copy
of its final Report of Investigation to OIG

See Doc # 40-1.
In response, Plaintiff does not dispute the accuracy of the Forest Service’s
supplemental evidence regarding the misconduct investigation but rather
emphasizes that the investigation was executed by the Forest Service’s HRM office
as opposed to any government division or agency expressly vested with law
enforcement authority. The Forest Service has clearly established, however, that
LEI and OIG were advised about the misconduct investigation and could have
brought criminal charges related to it. The fact that no further action was taken by
LEI or OIG is not dispositive of whether the withheld information was compiled for
law enforcement purposes. Stern, 737 F.2d at 88 (in meeting its burden under
Exemption 7, “the government ... need not show that the investigation led to, or will
lead to, adjudicative or enforcement proceedings”).
Plaintiff also argues that the Forest Service could have presented this
evidence in its summary judgment briefs and should not be given another
opportunity to meet its burden of proving that Exemption 7 is applicable in this
case. There is some merit to this argument. However, in light of the posture of this
case, as well as the Forest Service’s legitimate concern with disclosing the very
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information it seeks to withhold in advancing its arguments regarding the
applicability of Exemption 7, I conclude that the interests of justice are best served
by my consideration of the evidence now presented by the Forest Service. I further
conclude that with this evidence the Forest Service has now met its burden of
demonstrating that the information it seeks to withhold from Plaintiff pursuant to
Exemption 7 was compiled for “law enforcement purposes.”
C. Exemption 7(C)
Under Exemption 7(C), information compiled for law enforcement purposes is
exempt from disclosure if the production of such information could reasonably be
expected to constitute an unwarranted invasion of personal privacy. 5 U.S.C. §
552(b)(7). This language is similar to that of Exemption 6 which authorizes nondisclosure when disclosure “would constitute a clearly unwarranted invasion of
personal privacy,” but Exemption 7(C) “does not require a balance tilted
emphatically in favor of disclosure.” Stern, 737 F.3d at 91 (quoting Bast v. U.S.

Dep’t of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981)). An analysis of whether the
disclsosure of information would constitute an “unwarranted invasion of personal
privacy” entails a balancing of the individual’s interest in privacy against the
interests of the public in being informed. Id.
In the Order, I addressed the balancing test for an “unwarranted invasion of
personal privacy” under Exemption 6’s higher standard for nondisclosure. This
same analysis is largely applicable here. Accordingly, further review by the Forest
Service of its redactions pursuant to Exemption 7(C), as well as Exemption 6, is
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warranted to ensure that information was not withheld pursuant to these
exemptions 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. See Order, pp. 23-7. There is no basis to
sanction the Forest Service for failing to complete this review with regard to
Exemption 6 while its motion for reconsideration of the applicability of Exemption 7
was pending, and I have granted the Forest Service’s related motion for extension of
time by separate order.
I further conclude that there is no basis to depart from my prior ruling that
further review of the information withheld pursuant to Exemptions 6 and 7(C) 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 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.
D. Exemption 7(E)
Under Exemption 7(E), information compiled for law enforcement purposes is
exempt from disclosure if the production of such information would disclose
techniques and procedures for law enforcement investigations or prosecutions, or
would disclose guidelines for law enforcement investigations or prosecutions if such
disclosure could reasonably be expected to risk circumvention of the law. 5 U.S.C. §
552(b)(7).

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The Forest Service set forth the statutory language of Exemption 7(E)
virtually verbatim in its Vaughn Index and provided no further details to support
its reliance on this Exemption in its summary judgment briefing. See Order, p. 1920. I concluded that these circumstances hindered my de novo review of the Forest
Service’s reliance on Exemption 7(E) but this deficiency proved to be immaterial
once I ultimately concluded that Exemption 7 was inapplicable in any event. Based
on my conclusion that Exemption 7 may now be applicable to the Forest Service ‘s
withholding of information otherwise responsive to Plaintiff’s FOIA request, I must
revisit the Forest Service’s reliance on subsection (E) of Exemption 7.
To address my concerns about its vague explanation of the applicability of
Exemption 7(E), the Forest Service now provides a sworn statement that the small
amount of information withheld pursuant to this Exemption “relates to staffing and
scheduling of law enforcement officers on the Jicarilla Ranger District.” See Doc #
40-1, ¶ 9. Plaintiff, without citation to any authority on point, argues that agency
staffing and scheduling are not law enforcement techniques within the purview of
Exemption 7(E). I reject Plaintiff’s argument in the generic sense but will conduct
an in camera review of the information redacted by the Forest Service pursuant to
Exemption 7(E) to ensure that these redactions were proper.
IV. Conclusion
For the reasons set forth above, IT IS HEREBY ORDERED that
1. Defendant’s Motion for Reconsideration [Doc # 40] is GRANTED;

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2. The conclusion in the Order dated May 23, 21017 [Doc # 39] that Plaintiff
is entitled to summary judgment that FOIA Exemption 7(C) & (E) is inapplicable
under the facts and circumstances of this case is REVERSED;
3. Summary judgment regarding the applicability fo FOIA Exemptions 6 &
7(C) shall be HELD IN ABEYANCE pending the Forest Service’s review of the
information it redacted pursuant to these Exemptions consistent with this Order
and the Court’s Order dated May 23, 2017 [Doc # 39];
4. Summary judgment regarding the applicability of FOIA Exemption 7(E)
shall be held in abeyance pending the Court’s in camera review of the information
redacted pursuant to this Exemption; and
5. The Forest Service shall advise Plaintiff and the Court of the results of its
review of its redactions pursuant to Exemptions 6 & 7(C) and shall submit the
information it redacted pursuant to Exemption 7(E) to the Court for in camera
review within thirty (30) days of the date of this Order.

Dated: August

29 , 2017 in Denver, Colorado.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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