Rocky Mountain Wild, Inc. v. United States Bureau of Land Management et al
Filing
47
ORDER by Chief Judge Philip A. Brimmer on 4/22/2020, re: 36 Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part as stated in this order; 38 plaintiff's Cross Motion for Summary Judgment or in the Alternative, Leave to Carry Out Rule 56(d) Discovery is GRANTED in part and DENIED in part as stated in this order. ORDERED that, within forty-five days of this order, the BLM shall conduct a supplemental search for records, using a search cut-off date of May 7, 2017, that includes any records held in the BLM's Washington, D.C. office.(sphil, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 17-cv-00636-PAB-SKC
ROCKY MOUNTAIN WILD, INC., a Colorado non-profit corporation,
Plaintiff,
v.
UNITED STATES BUREAU OF LAND MANAGEMENT, a federal agency, and
UNITED STATES DEPARTMENT OF INTERIOR, a federal agency,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on Defendants’ Motion for Summary Judgment
[Docket No. 36] and plaintiff’s Cross Motion for Summary Judgment or in the
Alternative, Leave to Carry Out Rule 56(d) Discovery [Docket No. 38]. The Court has
subject matter jurisdiction under 28 U.S.C. § 1331.
I. BACKGROUND1
This action arises out of plaintiff’s request for records under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552 et seq. On October 20, 2016, plaintiff
submitted a FOIA request to the Bureau of Land Management (“BLM”) seeking “all
records regarding the NEPA process, Mineral Leasing Act compliance, external and
internal communications, and any other agency analysis related to the February 2017
offering of lease sale parcels 7795, 7797, 7798, 7799, 7801, 7802, and 7805.” Docket
1
The facts stated below are undisputed unless otherwise noted.
No. 36 at 2-3, ¶ 2; see also Docket No. 36-1 at 17. Plaintiff specified that its request
included communications between the “BLM and other federal, state or local agencies”;
the “BLM and any members of the public”; the “BLM and any other external entity”; and
the “the local and state BLM offices.” Docket No. 36-1 at 17. In addition, plaintiff noted
that “[r]esponsive records may be maintained in various levels of the BLM’s
organizational structure, including the Tres Rios Field Office, State and Regional
Offices, and Washington D.C. Offices.” Id. The FOIA request stated that the relevant
“parcels, if leased and developed, [had] the potential to negatively impact the
Endangered Species Act listed Gunnison sage-grouse.” Id.
On November 22, 2016, the BLM disclosed its first set of responsive records
consisting of approximately 1,191 pages, which were released in their entirety. Docket
No. 36 at 5, ¶ 19; see also Docket No. 36-1 at 24. The BLM produced a second set of
records on January 9, 2017. Docket No. 36 at 5, ¶ 20; see also Docket No. 36-1 at 27.
This set consisted of 552 pages released in their entirety. Docket No. 36 at 5, ¶ 20.
On March 7, 2017, the BLM issued its third and final installment of responsive records.
Id., ¶ 21; Docket No. 36-1 at 30. Of the 1,496 pages i ncluded in this installment, the
BLM withheld 923 pages in full and 157 pages in part. Docket No. 36 at 5, ¶ 21. The
BLM justified its withholding of records under Exemptions 3 and 5 of the FOIA and the
Archaeological Resources Protection Act of 1979, 16 U.S.C. § 470hh(a).
On April 17, 2017, plaintiff filed an administrative appeal of the BLM’s decision.
Docket No. 36 at 6, ¶ 22. On May 25, 2017, the FOIA Appeals Office of the
Department of the Interior (“DOI”) granted plaintiff’s appeal in part and released an
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additional 701 pages of responsive records. Id., ¶ 23. Thus, of the 3,239 pages of
responsive material identified, the BLM continued to withhold 173 pages in full and 336
in part. Id., ¶ 24.
Plaintiff filed this lawsuit on March 10, 2017 seeking declaratory and injunctive
relief under the FOIA for defendants’ alleged noncompliance with statutory
requirements and improper withholding of agency records. Docket No. 1. On March 5,
2018, the Court held that plaintiff lacked standing to assert its first claim for relief to the
extent it challenged defendants’ failure to issue a timely final determination on plaintiff’s
FOIA request. Docket No. 33 at 19. The Court dismissed that claim, as well as
plaintiff’s second claim for relief, for lack of standing. Id. The parties subsequently
filed cross-motions for summary judgment on plaintiff’s remaining claim that defendants
improperly withheld agency records in violation of the FOIA. Docket No. 36; Docket
No. 38. Plaintiff’s motion alternatively requests leave to conduct discovery pursuant to
Fed. R. Civ. P. 56(d). See Docket No. 38 at 1. Both summary judgment motions are
fully briefed. See Docket Nos. 37, 43-45.
II. REQUEST FOR DISCOVERY
The Court begins by addressing plaintiff’s request for discovery pursuant to Fed.
R. Civ. P. 56(d). Rule 56(d) provides:
If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the court
may: (1) defer considering the motion or deny it; (2) allow time to obtain
affidavits or declarations or to take discovery; or (3) issue any other
appropriate order.
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Fed. R. Civ. P. 56(d). Plaintiff requests, as an alternative to the Court granting
plaintiff’s cross-motion for summary judgment, that the Court suspend briefing on the
summary judgment motions and “allow Plaintiff the opportunity to propound written
discovery and to take the deposition of Brian Klein, who prepared the declaration [the
BLM] relies upon and Diane Fisher, the person who coordinated the BLM’s FOIA
response.” Docket No. 38 at 1. In support of its request, plaintiff states that it seeks to
“test both the basis and accuracy of Mr. Klein’s statements with the benefit of Ms.
Fisher’s direct knowledge,” and that such discovery is warranted because “no person
involved in responding to the FOIA request, including Ms. Fisher, provided a
declaration.” Id. at 3.
The Court finds that plaintiff has failed to substantiate its request for discovery.
As discussed in more detail below, an agency is not required to submit a declaration
from a person directly involved in a FOIA search to sustain its burden on summary
judgment. See Wisdom v. U.S. Trustee Program, 232 F. Supp. 3d 97, 115 (D.D.C.
2017). And plaintiff has not otherwise shown – by affidavit, declaration, or any other
means – that, “for specified reasons, it cannot present facts essential to justify its
opposition.” Fed. R. Civ. P. 56(d).
To satisfy its burden under Rule 56(d), plaintiff was required to submit a
declaration or affidavit “(1) identifying the probable facts that are unavailable, (2)
stating why these facts cannot be presented without additional time, (3) identifying past
steps to obtain evidence of these facts, and (4) stating how additional time would allow
for rebuttal of the adversary’s argument for summary judgment.” Cerveny v. Aventis,
4
Inc., 855 F.3d 1091, 1110 (10th Cir. 2017). Not only has plaintiff failed to submit the
requisite declaration or affidavit – a sufficient basis, standing alone, to deny plaintiff’s
Rule 56(d) request, see Handy v. City of Sheridan, 636 F. App’x 728, 735 (10th Cir.
2016) (unpublished) (noting that an affidavit is a “separate requirement” of Rule 56(d)
“that ensures that the party is invoking the protections of Rule 56(d) in good faith”
(internal quotation marks, brackets, and ellipsis omitted)); Cerveny, 855 F.3d at 1110
(noting that, to the extent the plaintiffs’ “summary judgment response arguably
contain[ed] the information required in Rule 56(d),” the court was not permitted to “look
beyond the affidavit in considering a Rule 56(d) request”) – but plaintiff also has not
made an effort to describe, with any specificity, the facts plaintiff seeks to discovery,
plaintiff’s previous efforts to obtain those facts, and how the facts are essential to
rebutting defendants’ summary judgment motion. See Cerveny, 855 F.3d at 1110; see
also Gutierrez v. Cobos, 841 F.3d 895, 909 (10th Cir. 2016) (finding no abuse of
discretion in district court’s denial of Rule 56(d) motion where, although the motion
requested information “broadly relevant” to the defendants’ qualified immunity defense,
it “did not explain how specific information was essential to [the plaintiffs’] summary
judgment opposition”); Handy, 636 F. App’x at 735 (stating, with respect to a party’s
Rule 56(d) burden, that “mere assertions that discovery is incomplete or that specific
facts necessary to oppose summary judgment are unavailable do not suffice” (internal
bracket omitted) (quoting Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828,
833 (10th Cir. 1986)). As a result, plaintiff’s request for Rule 56(d) discovery will be
denied.
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III. SUMMARY JUDGMENT
A. Legal Standard
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if,
under the relevant substantive law, it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997).
Where “the moving party does not bear the ultimate burden of persuasion at
trial, it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (internal
quotation marks omitted) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671
(10th Cir. 1998)). “Once the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a material matter.”
Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994). The nonmoving party may not rest solely on the allegations in the pleadings,
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but instead must designate “specific facts showing that there is a genuine issue for
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation marks
omitted). “To avoid summary judgment, the nonmovant must establish, at a minimum,
an inference of the presence of each element essential to the case.” Bausman, 252
F.3d at 1115. When considering a motion for summary judgment, a court must view the
evidence in the light most favorable to the non-moving party. Id.
“In general, FOIA request cases are resolved on summary judgment.” World
Publ’g Co. v. U.S. Dep’t of Justice, 672 F.3d 825, 832 (10th Cir. 2012); Judicial Watch,
Inc. v. U.S. Dep’t of Housing & Urban Dev., 20 F. Supp. 3d 247, 253 (D.D.C. 2014)
(“FOIA cases typically and appropriately are decided on motions for summary
judgment.” (internal quotation marks omitted)). An agency is entitled to summary
judgment if it shows that “it has fully discharged its obligations under the FOIA, after the
underlying facts and the inferences to be drawn from them are construed in the light
most favorable to the FOIA requester.” Id. (internal quotation marks omitted); see also
Rocky Mountain Wild, Inc. v. U.S. Forest Serv., 138 F. Supp. 3d 1216, 1220 (D. Colo.
2015) (“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.”).
B. ANALYSIS
FOIA was passed in 1966 “to provide a public right of access, enforceable in
federal court, to agency records.” Trentadue v. Integrity Committee, 501 F.3d 1215,
1225 (10th Cir. 2007). To achieve this purpose, FOIA confers on federal courts
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jurisdiction to review de novo an agency’s withholding of records and to “order the
production of any agency records improperly withheld.” 5 U.S.C. § 552(a)(4)(B).
Although an agency must generally produce records responsive to a FOIA request,
“Congress recognized that disclosure of certain classes of documents could harm
legitimate government interests.” Trentadue, 501 F.3d at 1225-26. Accordingly, FOIA
contains nine specific exemptions allowing agencies to withhold otherwise responsive
documents. See id. at 1226 (citing 5 U.S.C. § 552(b)).
“[A] FOIA requester may challenge the adequacy of the agency’s sear ch for
responsive records, the adequacy of the agency’s appl ication of FOIA exemptions to
his or her request, or both.” Rodriguez v. Dep’t of Defense, 236 F. Supp. 3d 26, 34
(D.D.C. 2017) (internal quotation marks omitted). A court’s review of an agency’s
decision to withhold records is guided by two principles: first, “FOIA is to be broadly
construed in favor of disclosure”; second, FOIA’s “exemptions are to be narrowly
circumscribed.” Trentadue, 501 F.3d at 1226. “The federal agency resisting disclosure
bears the burden of justifying withholding.” Id.
In this lawsuit, plaintiff challenges both the adequacy of BLM’s search for
records and the application of Exemption 5 to justify the withholding of information
responsive to plaintiff’s FOIA request. See Docket No. 37 at 1.
1. Adequacy of Search
Plaintiff argues that the BLM’s search for records was “unreasonably narrow and
failed to uncover many responsive documents.” Docket No. 37 at 9. Under FOIA, an
agency’s search for records “be reasonable in scope and intensity.” Trentadue v.
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F.B.I., 572 F.3d 794, 797 (10th Cir. 2009). “[T]he focal point of the judicial inquiry is the
agency’s search process, not the outcome of its search.” Id. at 797. Whether an
agency’s search was reasonable turns on the “circumstances of the case” and “the
likelihood that [the search] will yield the sought-after information, the existence of
readily available alternatives, and the burden of employing those alternatives.” Id. at
797-98.
While an agency need not prove that it “search[ed] every record system” or that
“no other potentially responsive documents might exist,” Rocky Mountain Wild, Inc.,
138 F. Supp. 3d at 1221, the agency must demonstrate 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.” Reporters Committee for Freedom of
Press v. Fed. Bureau of Investigation, 877 F.3d 399, 402 (D.C. Cir. 2017). To satisfy
this burden, an agency may rely on affidavits or declarations from agency officials that
“are relatively detailed, nonconclusory, and submitted in good faith.” Info. Network For
Responsible Mining (Inform) v. Bureau of Land Mgmt., 611 F. Supp. 2d 1178, 1184 (D.
Colo. 2009) (quoting Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 1985)).
In other words, the affidavits or declarations must generally “set[] forth the search terms
and the type of search performed, and aver[] that all files likely to contain responsive
materials (if such records exist) were searched so as to give the requesting party an
opportunity to challenge the adequacy of the search.” Al-Turki v. Dep’t of Justice, 175
F. Supp. 3d 1153, 1211 (D. Colo. 2016) (quoting Rein v. U.S. Patent & Trademark
Office, 553 F.3d 353, 362 (4th Cir. 2009)). Reasonably detailed “affidavits or
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declarations are accorded a presumption of good faith, which cannot be rebutted by
purely speculative claims about the existence and discoverability of other documents.”
Sandy v. Exec. Office for U.S. Attorneys, 170 F. Supp. 3d 186, 189 (D.D.C. 2016)
(internal quotation marks omitted). However, summary judgment is inappropriate “if the
record leaves substantial doubt as to the sufficiency of the search.” Id. (internal
quotation marks omitted).
In this case, defendants have provided: (1) a declaration and supplemental
declaration from Brian Klein, the Supervisory Records Administrator and acting FOIA
and Privacy Act Officer in the Colorado State Office of the BLM, attesting to the scope
of the BLM’s search for records in response to plaintiff’s FOIA request, see Docket Nos.
36-1, 43-1; and (2) a declaration [Docket No. 43-2] from Connie Clementson, Field
Manager for the BLM’s Tres Rios Field Office in Dolores, Colorado, regarding the
relationship between the agency’s National Environmental Policy Act (“NEPA”) process
and the Tres Rios Field Office’s Resource Management Plan (“RMP”). See Docket No.
43-2.2 Defendants argue these documents are sufficient to show that the BLM
“conducted a reasonable search for documents responsive to Plaintiff’s [FOIA]
request.” Docket No. 36 at 1. Plaintiff opposes defendants’ summary judgment motion
2
Although defendants submitted the supplemental declarations from Mr. Klein
and Ms. Clementson in conjunction with their reply brief, plaintiff has not objected to the
declaration or requested leave to file a surreply. The Court will therefore consider the
supplemental declaration in resolving defendants’ summary judgment motion. See
Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1192 (10th Cir. 2006) (district
court did not abuse its discretion by considering summary judgment exhibits attached to
the defendant’s summary judgment reply brief where the plaintiff “had plenty of
opportunity to seek leave of the court to file a surreply but never attempted to do so”).
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and moves for summary judgment in his favor on the adequacy of the BLM’s FOIA
search, arguing that (1) Mr. Klein’s declaration does not constitute admissible evidence
demonstrating a FOIA-compliant search, Docket No. 38 at 5; (2) the BLM improperly
failed to search for and disclose records related to the agency’s past NEPA analysis,
Docket No. 37 at 9-11, 14; (3) there is no evidence the BLM attempted to identify
personnel in other offices who may have possessed responsive documents, id. at 12;
(4) the BLM failed to use search terms that would have identified responsive records,
id. at 13-14; and (5) the BLM improperly failed to set a temporal scope for its records
search. Id. at 14-15.
a. Sufficiency of Klein Declarations
Plaintiff challenges the sufficiency of the Klein declaration on two grounds. First,
it suggests that the declaration does not satisfy Fed. R. Civ. P. 56(c)’s personal
knowledge requirement because Mr. Klein was “not involved in BLM searches that
sought records responsive to [plaintiff’s] FOIA request.” Docket No. 38 at 2-3. Second,
it contends that the declaration does not provide sufficient detail regarding the methods
used by agency employees to search for records or the “record systems actually
searched.” Docket No. 37 at 12.
Under Fed. R. Civ. P. 56(c)(4), “[a]n affidavit or declaration used to support or
oppose a motion [for summary judgment] must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” Courts have found this standard satisfied in
the FOIA context where the affiant “attests to his personal knowledge of the procedures
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used in handling a FOIA request and his familiarity with the documents in question.”
Wisdom, 232 F. Supp. 3d at 115 (internal quotation marks and brackets omitted);
Williams v. F.B.I., 2014 WL 1320262, at *8 (D. Utah. Mar. 31, 2014).
While the person in charge of coordinating a search for records is typically the
“most appropriate person to provide a comprehensive affidavit,” SafeCard Servs. Inc. v.
S.E.C., 926 F.2d 1197, 1201 (D.C. Cir. 1991); Carney v. U.S. Dep’t of Justice, 19 F.3d
807, 814 (2d Cir. 1994) (“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.”); Serv. Women’s Action Network v. Dep’t of Defense, 888 F. Supp. 2d 231,
251 (D. Conn. 2012) (noting that “[a] declaration from a person who actually supervised
the [FOIA] search]” is “preferable”), courts have permitted affidavits from persons who
were neither involved in the FOIA search nor directly responsible for its coordination.
See, e.g., Wisdom, 232 F. Supp. at 115; Serv. Women’s Action Network v. Dep’t of
Defense, 888 F. Supp. 2d at 251; see also Davis v. U.S. Dep’t of Homeland Sec., 2013
WL 3288418, at *7 (E.D.N.Y. June 27, 2013) (recognizing that “[a]t least one court . . .
has interpreted [Carney] to require that the affidavit be submitted by an official involved
in the specific search for the documents at issue in the FOIA request,” but noting that
district courts in the Second and D.C. Circuits have since “found an official with broader
supervisory authority who is not necessarily involved in the specific search for records
at issue to be capable of submitting a sufficient declaration”). As defendants point out,
Wisdom rejected an argument nearly identical to the one raised in this case. In
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Wisdom, the plaintiff asserted that declarations provided by an agency employee
regarding the agency’s search for records were not based on personal knowledge
because the employee did not assume FOIA compliance duties “until well after those
tasks were largely completed for the FOIA requests at issue.” Wisdom, 232 F. Supp.
3d at 115. After noting that the plaintiff’s argument “miscontrue[d] what Rule 56
mandates in the FOIA context,” the district court held that the personal knowledge
requirement was satisfied because the employee was responsible for the agency’s
compliance with FOIA and had “based his conclusions on information provided to him
by other agency employees and his own review of agency records.” Id. Likewise, in
Service Women’s Action Network, the court found that a declaration from “an
attenuated supervisor” of the agency employee who had actually supervised the FOIA
search was permissible under Rule 56 because the declarant had provided “a thorough
description of the search and of the reasons why certain actions were taken.” 888 F.
Supp. 2d at 251; accord Davis, 2013 WL 3288418, at *8 (holding that declaration was
sufficient under Rule 56, notwithstanding employee’s failure to describe her role in the
specific FOIA search at issue, because the employee’s “supervisory position, combined
with the thorough description of the search and her familiarity with TSA search
procedures, constitute[d] sufficient personal knowledge”). The Court finds these cases
persuasive.
Mr. Klein states in his declaration that he is the acting FOIA officer in the
Colorado State Office of the BLM and responsible for “implement[ing] the FOIA
program for the BLM’s . . . Colorado State, District, and Field Offices.” Docket No. 36-1
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at 2-3, ¶¶ 1, 3. His specific duties include, among other things, “coordinat[ing] record
searches with agency employees; answer[ing] questions about the scope of FOIA
requests; work[ing] with FOIA requesters to clarify or narrow the scope of their
requests; [and] determin[ing] if any FOIA exemptions apply to responsive records.” Id.
at 3, ¶ 4. Mr. Klein avers that he is “familiar with the procedures followed in responding
to FOIA requests made to the BLM,” id. at 3, ¶ 5, and that his declaration is based on a
“review of the official BLM FOIA files and records of the BLM FOIA Program, [his]
personal knowledge, and/or information acquired by [him] through the performance of
[his] official duties.” Id. at 4, ¶ 6. Mr. Klein’s supplemental declaration states that the
information contained therein “was obtained through the course and scope of [his]
official duties as Acting FOIA Officer, including [his] review of official records, [his]
knowledge of BLM Colorado State Office’s FOIA processes and procedures, and [his]
access to the individuals directly involved in the search.” Docket No. 43-1 at 3, ¶ 6.
Based on these statements, the Court finds Rule 56’s personal knowledge requirement
satisfied. See Wisdom, 232 F. Supp. 3d at 115; Davis, 2013 WL 3288418, at *8; Serv.
Women’s Action Network, 888 F. Supp. 2d at 251; compare The Few, the Proud, the
Forgotten v. U.S. Dep’t of Veterans Affairs, 254 F. Supp. 3d 341, 361 (D. Conn. 2017)
(noting fact-specific nature of inquiry and holding that declarations of employees who
were not responsible for supervising FOIA search failed personal knowledge
requirement because they “provide[d] few details about the searches in question”).3
3
Consistent with this holding, the Court finds no merit to plaintiff’s related
argument that “Mr. Klein’s declaration is little more than a series of hearsay
statements.” Docket No. 38 at 3. Because courts routinely allow declarations from
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Mr. Klein’s declarations also provide adequate detail regarding the search
methods used by BLM employees in responding to plaintiff’s FOIA request. As stated
above, an agency may satisfy its burden on summary judgment by submitting “[a]
reasonably detailed affidavit, setting forth the search terms and the type of search
performed, and averring that all files likely to contain responsive materials (if such
records exist) were searched.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C.
Cir. 1990); Al-Turki, 175 F. Supp. 3d at 1211. By comparison, an affidavit is insufficient
if it contains “no information about the search strategies of the agency components
charged with responding to a FOIA request.” Reporters Comm. for Freedom of Press
v. F.B.I., 877 F.3d 399, 404 (D.C. Cir. 2017) (internal quotation marks and brackets
omitted); see also, e.g., Aguiar v. Drug Enforcement Admin., 865 F.3d 730, 738 (D.C.
Cir. 2017) (finding declarations inadequate where they “explain[ed] how [the DEA
agency employees not directly involved in a search for records, see Carney, 19 F.3d at
814 (“there is no need for the agency to supply affidavits from each individual who
participated in the actual search”), hearsay is generally permitted. See Allen v. Fed.
Bureau of Prisons, 263 F. Supp. 3d 236, 242 (D.D.C. 2017) (“Declarations containing
hearsay in recounting searches for documents are generally acceptable in FOIA
cases.” (internal quotation marks and bracket omitted)). Herrick v. Garvey, 298 F.3d
1184 (10th Cir. 2002), does not support a different conclusion. There, the Tenth Circuit
held that a district court opinion, which the plaintiff had relied upon to demonstrate
ownership of certain documents withheld by the Federal Aviation Administration under
FOIA’s trade secrets exemption, constituted inadmissible hearsay. Herrick, 298 F.3d at
1191-92. The Court did not address the propriety of hearsay in agency FOIA
declarations. See id. Plaintiff’s reliance on Epic Systems, Corp. v. Lewis, 138 S. Ct.
1612 (2018), for the proposition that the Court should accord less deference to Mr.
Klein’s declaration, see Docket No. 38 at 3-4, is also misplaced. Epic Systems
involved the issue of Chevron deference, see 138 S. Ct. at 1629 (holding that National
Labor Relations Board’s interpretation of conflicting statutes was not entitled to
Chevron deference), not the question of whether an agency declaration suffices to
demonstrate a reasonable search for records under the FOIA.
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office] found the two case files, but not how it searched within those files”); DeBrew v.
Atwood, 792 F.3d 118, 122 (D.C. Cir. 2015) (finding declaration insufficiently detailed
where it failed to describe the search terms used or the type of search performed);
Rodriguez v. Dep’t of Defense, 236 F. Supp. 3d 26, 39 (D.D.C. 2017) (expressing
doubts as to adequacy of FOIA search where the agency’s affidavit failed to disclose
the search terms used to search non-email electronic files, the specific databases
searched, or the approach used to “conduct manual searches of the physical files”
(emphasis omitted)).
Plaintiff contends that Mr. Klein’s declaration is inadequate because it does not
disclose the methods used to search the paper and electronic files, the search terms
used for the electronic files, or the record systems actually searched. Docket no. 37 at
12. The Court disagrees. In his supplemental declaration, Mr. Klein provides detailed
information regarding the searches conducted by the six BLM employees identified as
likely to have documents responsive to plaintiff’s FOIA request. The employees were
equally divided between two offices – the Tres Rios Field Office and the Colorado State
Office Branch of Fluid Minerals. See Docket No. 36 at 3, ¶¶ 4-5; Docket No. 36-1 at 89, ¶¶ 22-23. Mr. Klein states that Ryan Joyner, who “took the lead on coordinating the
Tres Rios Office’s response to the FOIA request,” Docket No. 43-1 at 4, ¶ 13, searched
the following files:
(1) a shared folder dedicated to the February/March 2017 lease sale,
where each member of the leasing team saved documents relating to this
lease sale; (2) a dedicated email folder containing correspondence
relating to the lease sale; and (3) any hard-documents relating to the
lease sale that had not yet been scanned i nto the computer system.
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Id. at 5, ¶ 14. Rebecca Baca, the employee in charge of coordinating the FOIA
response for the Colorado State Office Branch of Fluid Minerals, likewise searched a
“centralized file dedicated to the February/March 2017 lease sale” and an “unofficial
correspondence” folder containing “communications about the lease sale among
members of the lease sale team or with the Tres Rios Field Office.” Id. at 7, ¶¶ 22-24.
Mr. Klein states that each member of the lease sale team in the Colorado State Office
Branch of Fluid Minerals was also asked to “identify and provide any additional
documents in their personal hard-copy or electronic filing systems that were not already
located in the centralized folder.” Id. at 7-8, ¶ 26. Finally, all six employees identified
as likely to have responsive documents in the Tres Rios and Colorado State Branch
offices searched their own email inboxes for references to the February 2017 oil and
gas lease sale or “any of the lease sale numbers at issue.” Id. at 5, 7-8, ¶¶ 15, 25, 29.
Mr. Klein’s declaration states in summary that the employees “conducted a complete
search” of “all sources within their respective locations/units likely to house responsive
records.” Docket No. 36-1 at 10, ¶ 26.
While Mr. Klein’s declarations lack certain details regarding the search process
– for example, Mr. Klein fails to explain how Mr. Joyner conducted his search of the
physical files that had not yet been scanned i nto the computer system, or how the
employees in the Colorado State Office went about searching their personal hard-copy
and electronic filing systems for documents not contained in the centralized folder – the
Court finds the information provided sufficiently detailed to “afford a FOIA requester an
17
opportunity to challenge the adequacy of the search and to allow the [Court] to
determine if the search was adequate in order to grant summary judgment.” Oglesby,
920 F.2d at 68; see Roe v. Comm’r of Internal Revenue Serv., No. 12-cv-02344-CMAMJW, 2014 WL 252102, at *2 (D. Colo. Jan. 22, 2014) (finding affidavit describing how
affiant “directed numerous other employees located at various IRS offices . . . to use
specific strategies designed to obtain the correct records for Plaintiff” sufficient to
support summary judgment in favor of the agency even though “each of the employees
involved in the search did not document the step-by-step process they went through in
their individual searches”); compare Reporters Comm. for Freedom of Press, 877 F.3d
at 404 (finding declarations insufficiently detailed where they were “utterly silent as to
which files or record systems were examined in connection with the targeted searches
and how any such searches were conducted, including, where relevant, which search
terms were used to hunt within electronically stored materials”); DeBrew, 792 F.3d at
122 (finding declaration inadequate where it specified the employees tasked with the
FOIA search, why they were chosen, and the results of the search, but failed to
disclose the search terms used by the agency or the type of search performed).
b. Documents Related to Underlying NEPA Process
Plaintiff also challenges the reasonableness of the BLM’s search on the ground
that it excluded records relating to the NEPA process underlying the Determination of
NEPA Adequacy (“DNA”) for the February/March 2017 lease sale. See Docket No. 37
at 9, 10-11, 14 (citing 41 employees listed in Final Environmental Impact Statement
(“FEIS”), agency analysis regarding the Endangered Species Act consultation, and
18
“records related to the analysis contained within the Tres Rios [Resource Management
Plan] and related Biological Opinion”).4
“The general rule under FOIA is that a person is entitled to copies of a federal
agency’s records upon making a request that reasonably describes such records.”
Trentadue, 572 F.3d at 796; see also 5 U.S.C. § 552(a)(3)(A) (stating that “each
agency, upon any request for records which . . . reasonably describes such records . . .
shall make the records promptly available to any person”); 43 C.F.R. § 2.5(a) (stating
that persons requesting information from the Department of the Interior “must
reasonably describe the records sought,” which requires providing “sufficient detail to
enable bureau personnel familiar with the subject matter of the request to locate the
records with a reasonable amount of effort”). An “agency responding to a FOIA request
has an obligation . . . to construe [the] request liberally.” Middle East Forum v. U.S.
Dep’t of Treasury, 317 F. Supp. 3d 257, 263 (D.D.C. 2018) (internal quotation marks
omitted); see also Hemenway v. Hughes, 601 F. Supp. 1002, 1005 (D.D.C. 1985)
(stating that an agency is “not to read [a FOIA] request so strictly that the requester is
denied information the agency well knows exists in its files, albeit in a different form
from that anticipated by the requester”). On the other hand, “[i]t is the requester’s
responsibility to frame requests with sufficient particularity,” Wilson v. U.S. Dep’t of
Transp., 730 F. Supp. 2d 140, 150 (D.D.C. 2010), aff’d, 2010 WL 5479580 (D.C. Cir.
2010) (unpublished), and an agency is permitted to “limit the scope of an ambiguous
4
Plaintiff also contends that the agency’s search failed to include employees who
participated directly in the lease sale. See Docket No. 37 at 10. This argument will be
addressed in the next section.
19
request as long as the narrowed scope is a reasonable interpretation of what the
request seeks.” Id. at 154.
In this case, plaintiff requested disclosure of
all records regarding the NEPA process, Mineral Leasing Act compliance,
external and internal communications, and any other agency analysis
related to the February 2017 offering of lease sale parcels 7795, 7797,
7798, 7799, 7801, 7802, and 7805.
Docket No. 36-1 at 17. Plaintiff contends that this request triggered the BLM’s duty to
search for records “related to the analysis contained within the Tres Rios [Resource
Management Plan (“RMP”)] and related Biological Opinion.” Docket No. 37 at 14. 5
Specifically, plaintiff argues that, because the DNA for the February 2017 lease sale
relied on the RMP, the BLM was obligated to include records related to the RMP in its
FOIA search. See Docket No. 37 at 6,10; Docket No. 37-1 at 4 (DNA noting that the
February 2017 lease sale was “in compliance with” with existing land use plans
because the lease parcels were “within the areas identified as open to leasing” in the
RMP); see also Friends of Animals v. Bureau of Land Mgmt., 2018 WL 1612836, at *9
5
Connie Clementson explains in her declaration that the “Tres Rios Field Office
RMP serves as the primary guide to management of Tres Rios Field Office Lands” by
laying “out long-term direction and guidance for the management of resources” and
“determining which lands are open for oil and gas leasing.” Docket No. 43-2 at 3, ¶ 4.
The RMP “encompasses the analysis within a Final Environmental Impact Statement as
well as a Section 7 Consultation under the Endangered Species Act (ESA).” Id. The
“Biological Opinion” referenced in plaintiff’s response appears to be related to the
BLM’s Section 7 Consultation. See Docket No. 37 at 11 & n.6 (discussing March 2014
“Conference Opinion” from ESA consultation, which was “converted into a Biological
Opinion in December 2014”); see also Docket No. 37-6 (stating that the Fish and
Wildlife Service issued a conference opinion regarding the Gunnison Sage-Grouse in
March 2014 and that the RMP was amended shortly thereafter to list the Gunnison
Sage-Grouse as threatened under the ESA).
20
(D. Or. Apr. 2, 2018) (explaining that a DNA is “an administrative convenience created
by the BLM,” which “confirms that an action is adequately analyzed in existing NEPA
document(s) and is in conformance with the applicable land use plan” (internal
quotation marks and brackets omitted)). The Court disagrees.
Plaintiff requested records regarding the “NEPA process . . . related to the
February 2017 offering of lease sale parcels.” Docket No. 36-1 at 17 (emphasis
added). Defendants have submitted a declaration from Ms. Clementson’s explaining
that, “[w]hen there is a current (within 5 years) RMP in place,” as was the situation
here, “the NEPA process for the offering of a particular lease sale parcel primarily
encompasses” the DNA. Docket No. 43-2 at 3-4, ¶ 7.6 Ms. Clementson further states
that the “site-specific NEPA process for the offering of particular lease sale parcels” –
in this case, the DNA – “is not the same” as the RMP, and that it would have been
difficult to search for RMP records related to the February 2017 lease sale because the
RMP process involved a much larger geographical area and “numerous resources
bearing no relationship to oil and gas.” Id. at 4-5, ¶¶ 8, 11.
Given Ms. Clementson’s explanation, the plain language of the FOIA request –
limiting the search to records “related to the February 2017 offering,” id. at 3,¶ 6, – and
its lack of any reference to the RMP, the Court finds that the BLM reasonably
6
Ms. Clementson’s declaration is not inconsistent with the regulatory definition of
“NEPA process” as “all measures necessary for compliance with the requirements of
section 2 and title I of NEPA.” 40 C.F.R. § 1508.21. While this definition is broad, it
does not answer the question whether the BLM could have reasonably interpreted the
phrase “NEPA process . . . related to the February 2017 offering” as referring to
measures taken specifically in connection with that offering, even if the RMP was a
necessary precondition of the DNA.
21
interpreted plaintiff’s request as excluding RMP-tier NEPA records. See McClanahan
v. Dep’t of Justice, 712 F. App’x 6, 8 (D.C. Cir. 2018) (unpublished) (holding that the
FBI reasonably construed the plaintiff’s FOIA request to include only “documents about
the FBI’s investigation into his possession of classified information, not ‘documents
about the classified information itself’”); Wilson, 730 F. Supp. 2d at 155 (holding that
agency reasonably interpreted request for “all EEO complaints . . . held in the Office of
Civil Rights/EEO” as being limited to “formal complaints, instead of informal records
such as counseling logs”); Mogenhan v. Dep’t of Homeland Sec., 2007 WL 2007502, at
*3 (D.D.C. July 10, 2007) (holding that agency “reasonably construed the plaintiff’s
questions pertaining to the ‘investigative file’ as a request for the ‘investigative file’
itself,” rather than for related employment files, where the plaintiff made no reference to
employment files in her request). Had plaintiff intended to make a broader request for
all NEPA analysis concerning the parcels at issue, it could have done so. Here,
however, the BLM was not required to look beyond the plain language of plaintiff’s
FOIA request for records related to the RMP. See Mogenhan, 2007 WL 2007502, at *3
(noting that “an agency must read a FOIA request as it is drafted – not as the requester
might wish it was drafted”).
c. Other Employees Likely to Have Responsive Records
In addition to arguing that defendants’ search excluded individuals involved with
the underlying RMP and related ESA consultation, plaintiff contends that the BLM (1)
improperly excluded participants in the DNA for the February/March 2017 lease sale,
Docket No. 37 at 10, and (2) failed to take steps to identify personnel in the
22
Washington, D.C. office likely to have responsive records. Id. at 12.
FOIA’s standard of “[r]easonableness does not require [an agency] to search
every record system or to demonstrate that no other potentially responsive documents
might exist.” Rocky Mountain Wild, Inc., 138 F. Supp. 3d at 1221. However, an agency
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.” Id. (quoting Oglesby, 920 F.2d at 68). Consistent with this requirement, an
agency must forward a FOIA request to another office if the agency knows that office
“has or is likely to have responsive documents.” Friends of Blackwater v. U.S. Dep’t of
Interior, 391 F. Supp. 2d 115, 121 (D.D.C. 2005) (quoting 43 C.F.R. § 2.22(a)(1)). An
agency’s failure to pursue “clear leads” indicating that other individuals or offices
should be searched renders a search inadequate. See Coleman v. Drug Enforcement
Admin., 134 F. Supp. 3d 294, 301-02 (D.D.C. 2015). On the other hand, “[s]peculative
claims about the existence of additional documents are insufficient to rebut the
presumption of good faith.” Id. at 301 (internal quotation marks omitted).
In arguing that the BLM’s search failed to include employees who participated in
the February/March 2017 lease sale, plaintiff points to the DNA, which identifies sixteen
specialists who were consulted about the lease sale. See Docket No. 37 at 10; Docket
No. 37-1 at 6-7. It is undisputed that only one of those individuals, Ryan Joyner, was
asked to search for records responsive to plaintiff’s FOIA request. See Docket No. 36
at 3, ¶ 7.
23
Defendants argue that the BLM’s search was adequate because the specialists
identified in the DNA were unlikely to have additional documents related to the
February/March 2017 lease sale. Docket No. 43 at 8. Defendants rely on Mr. Klein’s
supplemental declaration, which explains that, “[a]s a general practice, the[] specialists
provided any documents reflecting or supporting their assessment of the lease sale at
issue to Mr. Joyner during the course of the lease sale preparations on an ongoing
basis, so that he could add these materials to the shared file.” Docket No. 43-1 at 5-6,
¶ 17. Mr. Klein further states that any correspondence by these specialists regarding
the lease sale would, “as a matter of course,” have “included at least one member of
the Tres Rios Field Office leasing team,” meaning that the communications would have
been captured in the search performed by the Tres Rios Field office. Id. Finally, Mr.
Joyner asked “several specialists, including Nathaniel West, . . . whether they had
documents the Tres Rios searches had not already captured.” Id. at 6, ¶ 18. Although
Mr. Joyner did not remember whether the specialists had additional documents, Mr.
Klein states that any documents produced would have been added to the agency’s
FOIA response. Id.
Given Mr. Klein’s explanation, the Court finds the list of specialists in the DNA
insufficient to show that the BLM’s search for records was unreasonable. See
Defenders of Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 11 (D.D.C. 2004)
(finding agency had “no reason to believe that [the employee] possessed any
responsive [ethics-related] documents” based in part on the fact that she “routinely
returned” relevant materials to an employee who participated in the FOIA search);
24
compare Info. Network for Responsible Mining (Inform) v. Bureau of Land Mgmt., 611
F. Supp. 2d 1178, 1185 (D. Colo. 2009) (finding the search for records inadequate
where the agency merely asserted, “in conclusory terms and without any accompanying
detail or explanation” that all the responsive documents created by the twenty-four BLM
employees involved in the agency action were located in the single file searched by the
BLM). Plaintiff asserts in its cross-motion for summary judgment that “[t]here is no
evidence that any ‘specialist’ carried out a search.” Docket No. 45 at 6. However, this
fact is implicit in Mr. Klein’s statement that Mr. Joyner asked the specialists whether
“they had documents the Tres Rios searches had not already captured.” Docket No.
43-1 at 6, ¶ 18. More importantly, Mr. Klein has explained that the specialists were
unlikely to have additional responsive records because they would have provided any
documents related to the lease sale to Mr. Joyner on an ongoing basis. Plaintiff’s
speculation that the specialists may not have actually conducted a search for records is
therefore insufficient to create a genuine issue of fact as to the reasonableness of the
BLM’s FOIA response. See Sandy, 170 F. Supp. 3d at 189.
The Court reaches a different conclusion as to the BLM’s failure to involve the
agency’s Washington, D.C. office in the search for records. Plaintiff’s FOIA request
specifically noted that “[r]esponsive records may be maintained in various levels of the
BLM’s organizational structure, including the . . . Washington, D.C. Office[].” Docket
No. 36-1 at 17. Yet, as plaintiff points out, nothing in Mr. Klein’s initial declaration
describes the agency’s efforts to determine whether employees in the national office
were likely to possess records related to the February/March 2017 lease sale. See
25
Docket No. 37 at 12; Docket No. 36-1 at 8-9, ¶ 22 (stating only that the FOIA officer
determined the Tres Rios Field Office and the Colorado State Office Branch of Fluid
Minerals to be the offices likely to possess responsive records), id. at 9, ¶ 24 (stating
that the FOIA coordinator in each office was directed to “identify any other field, district,
or state office employees who might have responsive records”). Mr. Klein states in his
supplemental declaration that the BLM’s Washington, D.C. office is unlikely to possess
responsive documents because, “[w]ith few exceptions, decisions on lease sales are
made at the state level.” Docket No. 43-1 at 9, ¶ 33. 7 However, there is nothing in the
record indicating whether the February/March 2017 lease sale constituted one of those
exceptions, and plaintiff has submitted evidence showing that the D.C. office has
participated in other recent lease sales in the West. See Docket No. 37 at 6, ¶ 2;
Docket No. 37-3.
Because the BLM has not presented any evidence showing that it took steps to
determine whether employees in the Washington, D.C. office possess documents
related to the February/March 2017 lease sale, it has failed to demonstrate that it
conducted a reasonable search for responsive records. See Rocky Mountain Wild,
Inc., 138 F. Supp. 3d at 1218, 1222 (finding search for records “pertaining to the
development and construction of the Village at Wolf Creek Access Project”
7
Defendants also contend that the BLM “did not separately search individuals in
Washington, D.C. for responsive records” because the “BLM custodians’ own searches
would have captured relevant correspondence with persons in Washington, D.C.”
Docket No. 43 at 6, ¶ 1. As is clear from this explanation, however, the custodians’
searches would have only captured correspondence with the Washington, D.C. office,
not other types of records responsive to plaintiff’s request.
26
unreasonable where 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”); Info. Network for Responsible Mining (Inform), 611 F. Supp. 2d at 1185 (finding
declarations insufficient to support agency’s summary judgment burden where there
was “no indication that the agency made any effort to determine whether BLM
personnel in any other office, such as the office of the BLM’s Colorado State Director or
the BLM’s national office, participated in the agency’s decision-making regarding the
PEA and DOE’s Uranium Leasing Program and thus may have [had] responsive
records in their control or possession”).
d. Search Terms
Plaintiff also takes issue with the search terms used by the BLM. See Docket
No. 37 at 12-14. According to Mr. Klein’s declarations, the six employees deemed
likely to have responsive documents searched their email inboxes for “references to the
February 2017 oil and gas lease sale” and “any of the [four-digit] lease sale numbers at
issue.” Docket No. 43-1 at 8, ¶ 29; see also Docket No. 36-1 at 10, ¶ 27. Plaintiff
contends that the BLM’s search was inadequate because (1) the lease sale was moved
to March 2017 on December 29, 2016 and thus would have been referred to as the
“March 2017 lease sale” after that date, Docket No. 37 at 13; (2) “at some point prior to
the release of the Lease Sale Notice on November 10, 2016, the subject parcels were
reclassified with [five-digit] serial numbers that no longer corresponded to the numbers
used in the FOIA search,” id.; (3) the BLM failed to “include any search term which
would have identified documents related to the Gunnison sage-grouse,” id.; and (4) the
27
BLM failed to use other “geographically specific terms” that would have uncovered
documents related to the land parcels at issue. Id. at 14.
“In general, federal agencies have discretion in crafting a list of search terms
that they believe to be reasonably tailored to uncover documents responsive to the
FOIA request.” Coffey v. Bureau of Land Mgmt., 277 F. Supp. 3d 1, 9 (D.D.C. 2017)
(internal quotation marks and brackets omitted). As long as an agency’s “search terms
are reasonably calculated to lead to responsive documents,” courts “should not micro
manage the agency’s search.” Id. (internal quotation marks omitted).
The Court finds that the search terms used by the BLM – namely, “February
2017 lease sale” and the four-digit parcel numbers – were reasonably calculated to
uncover responsive records. Mr. Klein explains in his supplemental declaration that
searching for “Gunnison sage-grouse” or other geographic designations, such as “San
Miguel population,” “Dry Creek Basin SWA,” “County Road 31U,” or “Miramonte area”
would have been “both under- and over-inclusive” because they “would not have
returned many results relating to the lease sale at issue, and would have returned a
large number of communications wholly unrelated to the lease sale.” Docket No. 43–1
at 8-9, ¶ 31.8 As to the five-digit serial numbers, “files related to preparation for a lease
8
Plaintiff appears to suggest that use of the term “Gunnison sage-grouse” was
necessary to capture records such as the comments submitted by the U.S. Fish and
Wildlife Service (“FWS”) and Colorado Parks and Wildlife (“CPW”) regarding the
February 2017 lease sale. See Docket No. 37 at 13-14; see also Docket No. 37-8
(FWS comments); Docket No. 37-9 (CPW comments). However, plaintiff does not
explain why the documents – both of which refer to the four-digit parcel numbers, see
Docket No. 37-8 at 1; Docket No. 37-9 at 1 – would not have been uncovered by the
search terms used by the BLM.
28
sale are organized by the parcel ID” and thus, “[t]o the extent a serial number may have
been used in a given communication, . . . the parcel number would also have been
included.” Id. at 8, ¶ 30; see also, e.g., Docket No. 37-5 at 14-38 (lease sale notice
identifying parcels by their parcel IDs and serial numbers). Finally, Mr. Klein states that
the Tres Rios Field Office and Colorado State Office Branch of Fluid Minerals
completed its searches and sent all responsive documents to the state FOIA officer by
November 4, 2016, before the BLM changed the lease sale to March 2017. Id. at 6, 8,
¶¶ 19, 27-28; see also Docket No. 37 at 6, ¶ 4. Accordingly, a search for documents
related to the “March 2017 lease sale” would not have uncovered any records
responsive to plaintiff’s request.
In light of Mr. Klein’s explanation, the Court rejects plaintiff’s challenge to the
BLM’s search terms. See Doyle v. U.S. Dep’t of Homeland Sec., 331 F. Supp. 3d 27,
55 (S.D.N.Y. 2018) (finding argument that search terms used by the agency were
underinclusive for failure to “contain certain terms that Plaintiffs would have included”
to be “precisely the sort of nit-picking that courts have rejected in the FOIA context”);
Coffey, 277 F. Supp. 3d at 9 (rejecting similar challenge based, in part, on employee’s
declaration that the search terms actually used by the agency were “much broader”
than the search term requested by the plaintiff).
e. Temporal Scope
Plaintiff contends that the agency’s failure to define a temporal scope for the
search rendered it unreasonable. Docket No. 37 at 14. The Court agrees as to
29
defendants’ failure to define a cut-off date for the search.9 While Mr. Klein clarifies in
his supplemental declaration that each custodian searched for “records through the
date of the search itself, not the date of the FOIA request,” Docket No. 43-1 at 5, 8,
¶¶ 15, 27, defendants have provided no evidence that the BLM provided
contemporaneous notice of its date-of-search cut-off date.10 Even now, Mr. Klein fails
to specify the precise dates on which the custodians conducted their searches, stating
only that all searches were “completed” by November 3, 2016. Id. at 6, 8, ¶¶ 19, 27.
As the D.C. Circuit has stated, it is difficult for an agency to show that
it may “reasonably” use any cut-off date without so informing the
requester. Such notification would involve an insignificant expenditure of
time and effort on the part of the agency. And it would enable the
requester to submit supplementary demands for information if he felt so
inclined.
McGehee v. C.I.A., 697 F.2d 1095, 1105 (D.C. Cir. 1983), vacated in part on other
grounds on reh’g, 711 F.2d 1076. In McGehee, the court stated that the agency’s
9
To the extent plaintiff challenges the absence of a front-end cut-off date, Mr.
Klein states in his declaration that the custodians’ searches were not “time-limited.”
Docket No. 36-1 at 10, ¶ 26. Although plaintiff disputes this fact on the basis that
“FOIA searches are time-limited by statutory deadlines,” Docket No. 37 at 4, ¶ 12, the
statute plaintiff cites establishes the deadline by which an agency must respond to a
FOIA request. See 5 U.S.C. § 552(a)(6)(A)(i). It does not address the requisite
temporal scope of an agency’s search.
10
Department of the Interior regulations provide that, “[i]n determining which
records are responsive to a request, the bureau will include only records in its
possession and control on the date that it begins its search.” 43 C.F.R. § 2.12(b). At
least one court has stated that notice of a search cut-off date “can be given
constructively via published agency regulations.” Dayton Newspaper, Inc. v. Dep’t of
Veterans Affairs, 510 F. Supp. 2d 441, 450 (S.D. Ohio 2007). However, defendants do
not advance any argument that the DOI regulation was sufficient to inform plaintiff of
the BLM’s search cut-off date in this case, especially in light of the that the BLM has not
identified the actual dates on which the custodians conducted their searches.
30
“unpublicized temporal limitation of its searches should be held invalid” unless, on
remand, the agency made an “extraordinary showing” as to why it was not required to
inform the requester of the temporal scope of its records search. Id.; see also Dayton
Newspaper, Inc., 510 F. Supp. 2d at 449 (“Limiting a search by applying a cut-off date,
without providing notice of the date to the requester, renders the search
unreasoanble.”). Defendants in this case have made no such showing and, as a result,
have failed to meet their burden of demonstrating the reasonableness of a date-ofsearch cut-off date in this case. See In Defense of Animals v. Nat’l Inst. of Health, 543
F. Supp. 2d 83, 99 (D.D.C. 2008) (finding that defendants had not met their burden of
demonstrating the reasonableness of their search cut-off date where they did not relay
the cut-off date to the FOIA requester). The Court will therefore require the BLM to
conduct a supplemental search for records through the date of the BLM’s release of
records on May 7, 2017. See Docket No. 36-1 at 30. Because plaintiff would have
known that the BLM’s search for records did not include any records created after that
date, a supplemental search for records through May 7, 2017 is sufficient to place
plaintiff in the same position it would have been in had the BLM properly disclosed the
cut-off date at the time of its initial response to plaintiff’s FOIA request. See McGehee,
697 F.2d at 1105 n.43 (stating, with respect to agency’s unpublicized temporal
limitation on search, that the general goal of any relief “should be to put the appellant . .
. in the position he would have occupied had the agency acted reasonably”); Dayton
Newspaper, Inc., 510 F. Supp. 2d at 450-51 (ordering agency to conduct a
supplemental search through the date of the agency’s fi nal decision on the plaintiffs’
31
FOIA request because, “at that point, Plaintiffs were put on notice that the [agency] was
no longer searching for records”).11
2. Exemption 5
Plaintiff challenges the BLM’s withholding of documents under FOIA Exemption
5. See Docket No. 37 at 16. An agency withholding responsive records “bears the
burden of demonstrating that [those records] fall into one of [FOIA’s] enumerated
exceptions,” which the Court construes “narrowly in favor of disclosure.” World Publ’g
Co., 672 F.3d at 826. FOIA Exemption 5 exempts from disclosure “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. § 552(b)(5). Stated
differently, the exemption “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). Defendants assert two types of privilege as a basis
for the BLM’s withholding under Exemption 5: the deliberative process privilege and the
attorney-client privilege. See Docket No. 36 at 15; Docket No. 36-2 at 2-23. The
deliberate process privilege applies to “documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” Dep’t of Interior v. Klamath
Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (internal quotation marks omitted).
11
Although the agency’s final decision on plaintiff’s FOIA request was issued on
May 25, 2017, there is no indication in the DOI’s determination on plaintiff’s
administrative appeal that the agency conducted an addi tional search for records after
May 7, 2017. See Docket No. 36-1 at 41-45.
32
Documents are protected by the privilege if they are “both predecisional and
deliberative.” Trentadue, 501 F.3d at 1227. In other words, they must reflect
“predecisional memoranda prepared in order to assist an agency decisionmaker in
arriving at his decision” and be comprised of opinions and recommendations, as
opposed to purely factual material. Id.12
The attorney-client privilege protects “communications between a client and an
attorney, made in order to obtain or deliver legal assistance, that were intended by the
participants to be confidential.” Luv N’ Care, Ltd. v. Williams Intellectual Prop., No. 18mc-00212-WJM-KLM, 2019 WL 2471318, at *2 (D. Colo. June 12, 2019); see also
Judicial Watch, Inc. v. U.S. Dep’t of Treasury, 796 F. Supp. 2d 13, 33 (D.D.C. 2011)
(stating, in the FOIA context, that an agency seeking to withhold a document under the
attorney-client privilege must show that the document “involves confidential
communications between an attorney and his client” and “relates to a legal matter for
which the client has sought professional advice”). The “mere fact that an attorney was
involved in a communication does not automatically render the communication subject
to the attorney-client privilege.” Motley v. Marathon Oil Co., 71 F.3d 1547, 1550-51
(10th Cir. 1995).
To substantiate its withholding under Exemption 5, the BLM has produced a
Vaughn index, “a compilation prepared by the [BLM] listing each of the withheld
12
Trentadue recognized that purely factual material may be exempt from
disclosure under “certain narrow circumstances: when disclosure would so expose the
deliberative process within an agency that it must be deemed exempted.” 501 F.3d at
1228 (internal quotation marks omitted).
33
documents and explaining the asserted reason for its nondisclosure.” Hull v. I.R.S.,
656 F.3d 1174, 1178 n.2 (10th Cir. 2011) (internal quotation marks and ellipsis
omitted). An agency’s determination that particular documents fall within the scope of a
FOIA exemption is generally accorded substantial weight if the agency’s Vaughn index
and accompanying declarations “are reasonably clear, specific, and detailed.” Rocky
Mountain Wild, Inc., 138 F. Supp. 3d at 1223. A Vaughn index is adequately detailed if
it allows the Court “to determine whether a sufficient factual basis exists to support the
agency’s refusal to disclose the information at issue.” Id.
Plaintiff challenges the BLM’s withholding under Exemption 5 on three grounds.
First, plaintiff argues that the BLM is not entitled to withhold documents under the
attorney-client privilege because there is insufficient evidence demonstrating the
withheld or redacted communications were intended to be confidential. See Docket No.
37 at 17-18. Plaintiff specifically faults the BLM for failing to (1) conduct a search of all
“employees included in the Attorney-Client control group” to determine whether the
“communications were handled in a way that created and preserved attorney-client
privilege”; or (2) “state whether there [was] any indication on the document itself or in
the transmitting email that the content was subject to the attorney client privilege.”
Docket No. 37 at 17-18 (internal quotation marks omitted). Second, plaintiff argues that
the BLM was required to disclose NEPA correspondence between the BLM and the
Forest Service pursuant to the NEPA exception to Exemption 5. Id. at 19. That
exception requires an agency to “[m]ake environmental impact statements, the
comments received, and any underlying documents available to the public pursuant to
34
the provisions of the [FOIA], without regard to the exclusion for interagency memoranda
where such memoranda transmit comments of the Federal agencies on the
environmental impact of the proposed action.” 40 C.F.R. § 1506.6(f). Finally, plaintiff
contends that defendants’ briefing and the Vaughn index are insufficiently detailed to
demonstrate that all segregable information has been disclosed. Docket No. 37 at 1819.
a. Attorney-Client Privilege
Plaintiff argues that the BLM cannot assert the attorney-client privilege because
(1) it did not conduct a search of all “employees included in the Attorney-Client control
group” to determine whether the “communications were handled in a way that created
and preserved attorney-client privilege”; and (2) there is no indication that either the
document itself or the transmitting email contained a notice “that the content was
subject to the attorney client privilege.” Docket No. 37 at 17-18 (internal quotation
marks omitted). In other words, plaintiff suggests that the BLM has failed to carry its
burden of showing that the records at issue were intended to be confidential.
Plaintiff does not offer any support for its suggestion that the BLM was required
to “search the full list of employees included in the Attorney-Client control group” to
determine whether the privilege was properly preserved. Docket No. 37 at 17. The
index indicates that the communications at issue occurred between BLM personnel and
the agency’s attorney “in the course of the parties’ attorney-client relationship and for
the purpose of giving and receiving legal advice.” Docket No. 36-2 at 15 (Bates
Number 890-983); see also id. at 8 (Bates Number 266), 15 (Bates Number 884-889);
35
Docket No. 36-1 at 14, ¶ 44 (Klein declaration stating that the communications occurred
“between BLM personnel and the agency’s attorney . . . in the course of giving and
receiving legal advice”). The index reflects either emails sent on a single day or, in the
case of one document, emails exchanged during a two-week period. Docket No. 36-2
at 8, 15. The index does not list the documents again as having been distributed and
there is no suggestion that any of the recipients were third parties. As a result, the
Court rejects the argument that the defendants have fai led to demonstrate the
documents were intended to be confidential. See Rocky Mountain Wild v. U.S. Bureau
of Land Mgmt., 18-cv-00314-WJM-STV, 2020 WL 1333087, at *15 (D. Colo. Mar. 23,
2020) (in determining exemption regarding attorney-client privilege, there is no reason
to believe persons named in the email were not BLM employees). The Court finds that
defendants are entitled to summary justment on this issue.13
b. NEPA Exception
Plaintiff challenges the BLM’s withholding of correspondence between BLM and
the Forest Service on the ground that those communications fall within the NEPA
exception to Exemption 5. Docket No. 37 at 19. Defendants r espond that the NEPA
exception does not apply because the redaction plaintiff cites does not involve an
13
Regarding the BLM’s withholding of records under Exemption 5, plaintiff also
argues that the BLM’s “failure to justify [the] change in justification within” the document
bate stamped 890-983 “is a genuine issue that must be resolved.” Docket No. 37 at 17,
n.8. The Court does not understand this argument. Plaintiff does not appear to assert
that the BLM has failed to establish the elements of the claimed exemptions. And, as
defendants argue in their reply, the fact “[t]hat one portion of the document also
contain[s] deliberative material is immaterial to the applicability of Exemption 5 over the
draft.” Docket No. 43 at 12, n.4.
36
“environmental impact statement, a comment received about an environmental impact
statement, or an underlying document.” Docket No. 43 at 11, n.3. The Court agrees.
As explained in defendants’ reply and in the Vaughn index, the document at issue is “a
portion of an email” between BLM and Forest Service employees concerning
suggested edits to a draft DNA. Docket No. 43 at 11, n.3; Docket No. 36-2 at 2. A
DNA is neither an environmental impact statement nor a document underlying an EIS.14
Instead, a DNA presupposes – and relies upon – the existence of an EIS in
“confirm[ing] that an action is adequately analyzed in existing NEPA document(s).”
Friends of Animals, 2018 WL 1612836, at *9; see also Docket No. 43-2 at 3-4, ¶ 7
(explaining that when “there is a current . . . RMP in place,” the NEPA process for an
agency action “primarily encompasses . . . a [DNA],” which “confirms that the proposed
leasing action is in conformance with the approved RMP”). The NEPA exception
therefore does not apply. Cf. Info. Network for Responsible Mining (Inform), 611 F.
Supp. 2d at 1187 (holding, based on the plain language of the regulation, that the
NEPA exception to Exemption 5 did not extend to a programmatic environmental
assessment, which is distinct from an EIS).
c. Segregability
Under FOIA, “[a]ny reasonably segregable portion of a record shall be provided
14
An environmental impact statement is defined as “a detailed written statement
as required by section 102(2)(C) of [NEPA].” 40 U.S.C. § 1508.11. NEPA’s
implementing regulations provide that an EIS “shall provide full and fair discussion of
significant environmental impacts and shall inform decisionmakers and the public of the
reasonable alternatives which would avoid or minimize adverse impacts or enhance the
quality of the human environment.” 40 C.F.R. § 1502.1.
37
to any person requesting such a record after deletion of the portions which are
exempt.” 5 U.S.C. § 552(b). An agency is required to “provide a reasonably detailed
justification rather than conclusory statements to support its claim that the non-exempt
material in a document is not reasonably segregable.” Barnard v. Dep’t of Homeland
Sec., 531 F. Supp. 2d 131, 140 (D.D.C. 2008) (quoting Mead Data Cent. Inc. v. U.S.
Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977)). At a minimum, an explanation
should “detail what proportion of the information in a document is non-exempt and how
that material is dispersed throughout the document.” Id.
Plaintiff asserts that the BLM’s Vaughn index is insufficiently detailed to show
that all reasonably segregable information has been disclosed. Docket No. 37 at 18. 15
15
The Court reads the argument in this section of plaintiff’s response brief as
being limited to the issue of segregability. See Docket No. 37 at 18-19 (labeling
section “Reasonably Segregable Factual Information Is Being Withheld” and asserting
that, because the Vaughn index did not provide a “detailed analysis and explanation of
redactions in each document,” it did not justify the agency’s decision to withhold the
documents “en masse”); see also Docket No. 43 at 12-13 (interpreting argument as
relating only to issue of segregability). To the extent plaintiff’s argument could also be
construed as challenging the sufficiency of the Vaughn index to enable de novo review
of the FOIA exemptions being claimed by the BLM, see, e.g., Rocky Mountain Wild, Inc.
v. U.S. Forest Serv., No. 15-cv-0127-WJM-CBS, 2016 WL 362459, at *9 (D. Colo. Jan.
29, 2016) (considering whether Vaughn index was sufficient to establish applicability of
Exemption 5), plaintiff does not specify what information it believes to be missing from
the index other than to say that defendants’ briefing and the Vaughn index merely
“parrot the statutory standard.” Docket No. 37 at 18 (emphasis omitted). The Court
disagrees with this contention. For each document withheld, the BLM’s Vaughn index
identifies the date of the document, the author(s) and recipient(s) of the document, and
the specific exemption being claimed. See generally Docket No. 36-2. The index also
describes, with reasonable detail, the nature of each document and the reasons for the
claimed exemption. See id. Thus, in the absence of a more particularized argument by
plaintiff, see, e.g., Judicial Watch, Inc., 20 F. Supp. 3d at 258 (addressing argument
that the “narrative justifications” in the agency’s Vaughn affidavit “fail[ed] to articulate
the necessary elements of each of the three privileges upon which the [agency]
purport[ed] to rely”), and with the exception of the confidentiality and segregability
38
The Court agrees. Based on the Vaughn index, it appears that almost all of the records
subject to withholding under Exemption 5 were withheld in full. See generally Docket
No. 36-2. Yet defendants have made no effort to describe what proportion of those
documents consists of non-exempt information, how that information is dispersed
throughout the documents, or why the documents could not have been disclosed in
redacted form. See Barnard, 531 F. Supp. 2d at 140.
While defendants correctly note that an agency may satisfy its segregability
burden by providing a Vaughn index describing the documents withheld and agency
declarations attesting to the disclosure of all segregable information, see, e.g., Loving
v. Dep’t of Defense, 550 F.3d 32, 41 (D.C. Cir. 2008) (noting that “the district court
relied on the very factors we have previously deemed sufficient for [the segregability]
determination, i.e., the description of the document set forth in the Vaughn index and
issues addressed elsewhere in this order, the Court does not find the BLM’s Vaughn
index patently deficient. Compare Judicial Watch, Inc., 20 F. Supp. 3d at 257-58
(rejecting argument that the agency’s Vaughn index was insufficient due to its use of
“buzz words,” such as “internal deliberation,” “suggested revisions,” and “draft brief,” to
describe the documents withheld), and Info. Network for Responsible Mining (Inform) v.
Dep’t of Energy, No. 6-cv-02271-REB-CBS, 2008 WL 762248, at *5 (D. Colo. Mar. 18,
2008) (rejecting argument that agency’s declarations and Vaughn index were
impermissibly vague, conclusory, and categorical where they “identif[ied] specifically
each document withheld, state[d] specifically the statutory exemption claimed, and
explain[ed] specifically how disclosure would damage the interests protected by the
claimed exemption”), with Am. Immigration Council v. U.S. Dep’t of Homeland Sec., 950
F. Supp. 2d 221, 238-42 (D.D.C. 2013) (finding Vaughn index inadequate where it
failed to identify the authors and recipients of the documents and provided vague and
categorical summaries that applied to multiple documents); see also Judicial Watch,
Inc., 20 F. Supp. 3d at 255 (stating that, in the D.C. Circuit, a Vaughn index must
generally “describe each withheld document or deletion,” “state the exemption claimed
for each deletion or withheld document,” and “explain why the exemption is relevant”).
The Court notes, however, that the Vaughn index will need to include additional
information to satisfy the BLM’s segregability burden, as discussed below.
39
the agency’s declaration that it released all segregable material”); Johnson v. Executive
Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (finding the combination of
a “comprehensive Vaughn index, describing each document withheld,” and affidavits
explaining that the agency employee “personally conducted a line-by-line review of
each document withheld in full and determined that no document contained releasable
information which could be reasonably segregated” sufficient to sustain the agency’s
burden on summary judgment), the case law does not permit agencies to withhold
responsive material based on a blanket assertion that the material “was reviewed by
[the agency] to ensure that all reasonably segregable information [was] released.”
Docket No. 36-1 at 12, ¶ 37; see Ctr. for Biological Diversity v. U.S. Envtl. Protection
Agency, 279 F. Supp. 3d 121, 152 (D.D.C. 2017) (holding agency’s “blanket
declaration” that there was “no additional segregable information” insufficient because
it did not “show with reasonable specificity why the documents [could not] be further
segregated and additional portions disclosed”); Stolt-Nielsen Transp. Group Ltd. v.
United States, 534 F.3d 728, 734 (D.C. Cir. 2008) (holding conclusory assertion that
agency paralegal had “reviewed each page line-by-line to assure himself that he was
withholding from disclosure only information exempt pursuant to the Act” insufficient to
justify agency’s withholding of records). Here, neither the Vaughn index nor Mr. Klein’s
declarations are sufficiently detailed to carry the agency’s burden as to segregability.
The Court will therefore deny defendants’ motion for summary judgment on this issue.
Defendants are directed to provide an updated Vaughn index and supplemental
declaration explaining, with respect to each document, what proportion of the document
40
is being withheld and “why nonexempt material cannot be segregated.” Ctr. for
Biological Diversity, 279 F. Supp. 3d at 152-53; see also Anderson v. Dep’t of Health &
Human Servs., 907 F.2d 936, 952 (10th Cir. 1990) (indicating that a court may “order[]
supplementation of the Vaughn index” when the existing index is insufficient).
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendants’ Motion for Summary Judgment [Docket No. 36] is
GRANTED in part and DENIED in part as stated in this order. It is further
ORDERED that plaintiff’s Cross Motion for Summary Judgment or in the
Alternative, Leave to Carry Out Rule 56(d) Discovery [Docket No. 38] is GRANTED in
part and DENIED in part as stated in this order. It is further
ORDERED that, within forty-five days of this order, the BLM shall conduct a
supplemental search for records, using a search cut-off date of May 7, 2017, that
includes any records held in the BLM’s Washington, D.C. office. The BLM shall review
any newly identified responsive documents to determine whether they are exempt from
disclosure under the standards recited in this order. Any responsive documents the
BLM considers to be exempt from disclosure should be included in a revised Vaughn
index submitted to the Court. It is further
ORDERED that the BLM’s revised Vaughn index shall also provide sufficient
information to allow the Court to determine (1) whether the BLM has properly withheld
records under the attorney-client privilege, and (2) whether all reasonably segregable
material contained in documents exempt from disclosure under any FOIA exemption
41
has been disclosed. Defendants shall file the BLM’s revised Vaughn index, and any
accompanying declarations, within thirty days of completing the supplemental search
for records ordered above.
DATED April 22, 2020.
BY THE COURT:
____________________________
PHILIP A. BRIMMER
Chief United States District Judge
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