Rocky Mountain Wild v. United States Bureau of Land Management et al
Filing
41
ORDER granting in part and denying in part Defendant's Motion for Summary Judgment 35 ; and denying Plaintiff's Cross Motion for Summary Judgment or in the Alternative for a Stay of Briefing and Leave to Carry Out Rule 56(d) Discovery 37 , by Judge William J. Martinez on 03/23/2020. (wjmlc1)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 18-cv-0314-WJM-STV
ROCKY MOUNTAIN WILD, a Colorado non-profit corporation,
Plaintiffs,
v.
UNITED STATES BUREAU OF LAND MANAGEMENT, a federal agency, and
UNITED STATES DEPARTMENT OF INTERIOR, a federal agency,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
SUMMARY JUDGMENT MOTION, AND DENYING
PLAINTIFF’S SUMMARY JUDGMENT MOTION
Plaintiff Rocky Mountain Wild alleges that Defendants United States Bureau of
Land Management and United States Department of the Interior (together, “BLM”) failed
to respond properly to Rocky Mountain Wild’s October 2017 request for agency records
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking information
about certain parcels that BLM was (at the time of the FOIA request) preparing to offer
for oil and gas leasing.
Currently before the Court is BLM’s Motion for Summary Judgment (ECF No. 35)
and Rocky Mountain Wild’s Cross Motion for Summary Judgment or in the Alternative
for a Stay of Briefing and Leave to Carry Out Rule 56(d) Discovery (ECF No. 37). For
the reasons explained below, the Court grants BLM’s motion on all issues except for the
scope of search as it relates to which lease parcels were within the scope of the FOIA
request. As to that, BLM must conduct a further search. The Court denies Rocky
Mountain Wild’s cross motion because its argument for a general right to discovery in
FOIA cases is contrary to binding case law, and Rocky Mountain Wild does not
otherwise establish a need for discovery in this case.
I. LEGAL STANDARD
A.
General Standard
“FOIA actions are typically decided on motions for summary judgment.” INFORM
v. BLM, 611 F. Supp. 2d 1178, 1182 (D. Colo. 2009). Summary judgment is appropriate
“if 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).
B.
Reasonableness of Search vs. De Novo Review of Exemptions
As will become clear below, most of the parties’ disputes turn on whether BLM
conducted an adequate search for responsive records. In this regard, BLM relies on a
declaration from the Colorado BLM office’s current FOIA Officer, Laura Garcia-Hinojosa,
describing BLM’s search efforts. (See ECF No. 35-1.)
Rocky Mountain Wild describes Garcia-Hinojosa’s declaration as “little more than
a series of conclusory statements based largely on vague memories of other agency
personnel involved in the search.” (ECF No. 37 at 7.)1 The Court will address the
accuracy of this characterization in Part I.C, below. In any event, this assertion is Rocky
Mountain Wild’s jumping-off point into an extended attack on federal agencies’ ability to
rely on declarations such as these, without normal discovery procedures. (See ECF
No. 37 at 7–13.) Rocky Mountain Wild argues that the Court’s duties under FOIA and
Rule 56 “cannot be satisfied without a litigation mechanism that allows [Rocky Mountain
1
All ECF page citations are to the page number in the CM/ECF header, which does not
always match the document’s internal pagination, particularly in exhibits.
2
Wild], and the Court, to test the basis and accuracy of Laura Garcia-Hinojosa’s
conclusory statements.” (Id. at 7–8.) Rocky Mountain Wild emphasizes that FOIA
authorizes district courts to conduct de novo review (the meaning of which the Court will
address shortly) and accordingly asserts that
[r]elying on FOIA declarations that are not scrutinized in light
of [the plaintiff’s] assessment of information gained via initial
disclosures, discovery, admissibility/evidentiary rules, cross
examination, or the normally understood features of de novo
review in the adversarial judicial system would effectively rewrite the statute and relinquish the federal judicial function
set out in FOIA’s plain language to the agency itself.
(Id. at 10–11 (citing 5 U.S.C. § 552(a)(4)(B)).) In other words, Rocky Mountain Wild
argues that FOIA plaintiffs should receive discovery—and, if needed, a trial—to the
same extent as plaintiffs in any other kind of civil suit. This is the focus of Rocky
Mountain Wild’s cross-motion for summary judgment. (See ECF No. 37 at 7–13.)
Rocky Mountain Wild’s argument contradicts Tenth Circuit case law, which this
Court must follow. That case law says that “[t]he decision whether to allow discovery in
FOIA cases is left largely to the discretion of the district court judge.” World Publ’g Co.
v. U.S. Dep’t of Justice, 672 F.3d 825, 832 (10th Cir. 2012). “Discovery relating to the
agency’s search and the exemptions it claims for withholding records generally is
unnecessary if the agency’s submissions are adequate on their face, and a district court
may forgo discovery and award summary judgment on the basis of submitted affidavits
or declarations.” Trentadue v. FBI, 572 F.3d 794, 807 (10th Cir. 2009) (“TrentadueFBI”). Indeed, although a declaration is “not cross-examined testimony,” “declarations
and affidavits are the widely accepted, even the preferable, means for an agency to
respond to concerns about the adequacy of a FOIA search.” Id.
A widely-followed approach in the federal courts is that, “once the agency has
3
satisfied its burden” to submit affidavits, declarations, and/or other summary judgment
materials that are “adequate on their face,” a plaintiff requesting discovery “must make a
showing of bad faith on the part of the agency sufficient to impugn the agency’s
affidavits or declarations.” Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.
1994) (citation omitted), cited with approval in Liverman v. OIG, 139 F. App’x 942, 945
(10th Cir. 2005).
Against this, Rocky Mountain Wild asserts that “the Circuit Courts[] [have]
incremental[ly] drift[ed] away from the words of the statute,” referring to the de novo
review requirement. (ECF No. 37 at 11.) Even if true, a district court cannot simply
decide that the circuit court got it wrong and then go its own way.
Regardless, Rocky Mountain Wild misunderstands FOIA’s de novo review
mandate. The relevant statutory language is as follows:
On complaint, the district court of the United States in the
district in which the complainant resides, or has his principal
place of business, or in which the agency records are
situated, or in the District of Columbia, has jurisdiction to
enjoin the agency from withholding agency records and to
order the production of any agency records improperly
withheld from the complainant. In such a case the court
shall determine the matter de novo, and may examine the
contents of such agency records in camera to determine
whether such records or any part thereof shall be withheld
under any of the exemptions set forth in subsection (b) of
this section, and the burden is on the agency to sustain its
action.
5 U.S.C. § 552(a)(4)(B). What, specifically, is the “matter” that the district courts may
“determine” de novo? It is something less than the whole case—“In such a case the
court shall determine the matter de novo . . . .” (emphasis added)—and the surrounding
statutory language all but dictates that the “matter” in question is the agency’s
exemption claims. Cf. Anderson v. Dep't of Health & Human Servs., 907 F.2d 936, 941
4
(10th Cir. 1990) (“When an action is brought under the FOIA to obtain information in the
possession of a government agency, the district court must review de novo the agency’s
decision not to disclose the requested materials.” (emphasis added)).
When the Court reviews BLM’s exemption claims (in Part III.B, below), the Court
will—because it must—review those claims de novo, or in other words, without
deference to the agency’s decisions. See Black’s Law Dictionary, s.v. “review” (11th ed.
2019) (defining “de novo review” as “[a] court’s nondeferential review of an
administrative decision”). As for the adequacy of the agency’s search efforts, FOIA
itself establishes no standard of review. The Tenth Circuit, along with many other
circuits, has filled in this gap by concluding that “an agency’s search for records need
only be reasonable in scope and intensity.” Trentadue-FBI, 572 F.3d at 797 (citing
cases).
In light of the reasonable-search requirement, the focal point
of the judicial inquiry is the agency’s search process, not the
outcome of its search. The issue is not whether any further
documents might conceivably exist but rather whether the
government’s search for responsive documents was
adequate, which is determined under a standard of
reasonableness, and is dependent upon the circumstances
of the case.
Id. (internal quotation marks omitted; alterations incorporated).
In light of this case law—which the Court is bound to follow even if it disagreed—
the Court rejects Rocky Mountain Wild’s argument that it is generally entitled to
discovery.
C.
Whether Discovery is Justified in this Case
Discovery may still be appropriate if Rocky Mountain Wild “make[s] a showing of
bad faith on the part of the agency sufficient to impugn the agency’s affidavits or
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declarations.” Carney, 19 F.3d at 812. Rocky Mountain Wild asserts two case-specific
arguments in this regard, which the Court will address in turn.
First, Rocky Mountain Wild describes Garcia-Hinojosa’s declaration as “little
more than a series of conclusory statements based largely on vague memories of other
agency personnel involved in the search.” (ECF No. 37 at 7.) The fact that GarciaHinojosa reports others’ knowledge is a separate issue the Court will address below in
Part I.D. As for the “conclusory” accusation, Rocky Mountain Wild is incorrect. GarciaHinojosa’s declaration is thirty-two pages long, and as detailed as its length suggests,
reporting numerous relevant names, dates, search techniques, search terms, and so
forth. (ECF No. 35-1 at 2–33.)
Second, Rocky Mountain Wild says that “[i]t is almost certain that agency
personnel prepared written records to document the steps taken to fulfill FOIA requests,
but no such search records were disclosed to [Rocky Mountain Wild] and no search
documentation was provided to the Court to support the statements made in the
declaration.” (ECF No. 37 at 7.) Rocky Mountain Wild cites nothing to support this.
Earlier in its brief, it claims that various BLM employees maintained contemporaneous
written records of their FOIA searches, but Rocky Mountain Wild likewise cites nothing
to support these assertions. (See id. at 4–5, ¶¶ 14–19.) BLM denies these assertions
(see ECF No. 39 at 5), but regardless, assertions of fact unsupported by record
evidence do not create a genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1);
WJM Revised Practice Standard III.E.3.
Rocky Mountain Wild has thus failed to make a showing sufficient to justify
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discovery in this case. 2
D.
Personal Knowledge Objection
Finally, Rocky Mountain Wild generally objects to Garcia-Hinojosa’s reliance on
others’ reports regarding their search efforts, arguing that she lacks personal
knowledge. (ECF No. 36 at 2.) In FOIA cases, however, a FOIA officer who supervised
the search is competent to report on what others reported to her about their searches
for responsive records. See DiBacco v. Dep’t of the Army, 926 F.3d 827, 833 (D.C. Cir.
2019); Carney, 19 F.3d at 813–14; Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344,
1358 (D.C. Cir. 1983).
As will become clear below, BLM conducted two rounds of searches. GarciaHinojosa worked directly with the former FOIA Officer to coordinate the first search, and
she was the FOIA Officer for the second search (the previous officer had, by that time,
left BLM, and Garcia-Hinojosa was promoted). The Court finds this sufficient to overrule
Rocky Mountain Wild’s personal knowledge objection.
II. FACTS
The following facts are undisputed unless attributed to a party or otherwise
noted.
A.
The FOIA Request & Initial Evaluation
At some point on or before October 19, 2017—the record is not clear on
precisely when—Rocky Mountain Wild learned that BLM planned to offer certain oil and
gas leases in Colorado beginning in March 2018. On October 19, 2017, Rocky
2
Rocky Mountain Wild asserts that most of its admissions to BLM’s Statement of
Material Facts are only qualified admissions because Rocky Mountain Wild has been denied
discovery. (ECF No. 36 at 2–3.) Because the Court has rejected Rocky Mountain Wild’s
argument about discovery generally, and in this case specifically, the Court also rejects Rocky
Mountain Wild’s attempt to qualify its admissions.
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Mountain Wild submitted a FOIA request to BLM’s Colorado state office. The “RE:” line
of that request reads as follows: “Freedom of Information Act Request for all agency
records involving the proposed March 2018 oil and gas leasing of parcels in and around
occupied Gunnison sage-grouse habitat (Parcels 7981, 7982, 7983, 7984, 7985, and
7986) and within the Gypsum Valley Area of Critical Environmental Concern (‘ACEC’)
(Parcel 7987).” (ECF No. 35-1 at 35.) The request then states that Rocky Mountain
Wild seeks “copies of all agency records created or obtained for the purposes of
preparing and implementing the March 2018 offering of lease sale parcels 7981, 7982,
7983, 7984, 7985, 7986 and 7987.” (Id.) The Court will refer to the numbered parcels
collectively as the “Proposed Parcels.” The request goes on to explain that it is “time
sensitive due to ongoing agency decisionmaking and because these parcels, if leased
and developed, have the potential to negatively impact the Endangered Species Act
listed Gunnison sage-grouse and values within an ACEC.” (Id.)
At the time BLM received the request, the FOIA Officer in the Colorado state
office was Brian Klein. (ECF No. 35-1 at 9, ¶ 22 n.1.) Klein, working with GarciaHinojosa (then the FOIA Specialist for the Colorado state office), determined that BLM’s
Tres Rios Field Office (in Dolores, Colorado) was responsible for the region
encompassing the Proposed Parcels, and therefore Tres Rios employees would likely
have responsive records. (ECF No. 35 at 3, ¶ 5; ECF No. 35-1 at 2, 9, ¶¶ 1, 22 & n.1.)
Klein also decided that employees in the Colorado state office’s “Branch of Fluid
Minerals” were likely to have responsive records, “because the decision to offer parcels
for leasing Colorado is made in the State Office.” (ECF No. 35 at 3, ¶ 6.) Klein
forwarded the FOIA request those two units’ respective FOIA coordinators. (Id. at 4,
¶ 7.)
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B.
Original Search
1.
Tres Rios
The FOIA coordinator in the Tres Rios Field Office was Connie Clementson. (Id.
¶ 8.) She identified herself and Ryan Joyner (team lead for the March 2018 lease sale)
as persons likely to have responsive records. (Id. ¶¶ 8, 11.) Joyner then assumed
responsibility for coordinating the office’s response because his team lead status also
made him responsible for organizing and maintaining the official decision file for the
project, thus giving him the most knowledge regarding the documents and employees
involved. (Id. at 4–5, ¶¶ 12–13.)
Joyner first identified the entirety of a “shared folder” relating to the March 2018
lease sale as responsive. (Id. at 5, ¶¶ 15–16.) Tres Rios employees had been trained
to use this shared folder as the repository for all documents and communications
related to the lease sale, and in fact saved documents there on a regular basis. (Id.
¶¶ 17–18.)
Joyner then searched his own e-mail and hard copy records, but he does not
remember whether these searches yielded anything that was not already in the shared
folder. (Id. at 5–6, ¶¶ 21–22.)
Joyner next spoke with members of the leasing team to request that they place
responsive documents into the shared folder, if they had not already. (Id. at 6–7 ¶¶ 27,
32–33.) In particular, he specifically recalls making this request to three team members,
and he believes (based on his “standard practice”) that he made the same request to
three additional team members. (Id. ¶¶ 32–33.)
Everyone who searched looked for records in existence as of the time of the
search—or in other words, no one cut off their search as of the date of the FOIA request
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(October 19, 2017). (Id. ¶ 34.) All searches were complete on or before November 3,
2017, which is the day that responsive records were sent to BLM’s Colorado state
office. (Id. at 8, ¶ 35.)
2.
Branch of Fluid Minerals
The FOIA coordinator in the Branch of Fluid Minerals was Peter Cowan. (Id.
¶ 36.) He identified himself and six others in his office as individuals likely to have
responsive records “because they comprised the state office leasing team.” (Id.)
Cowan also forwarded the FOIA request to Dana Wilson, Acting District Manager for
BLM’s Colorado Southwest District, based in Montrose, Colorado. (Id. ¶ 37; ECF No.
39-1 ¶ 8.)
The Branch of Fluid Minerals team lead for the March 2018 lease sale was
Rebecca Baca. (ECF No. 35 at 8, ¶ 40.) Baca identified a “centralized file dedicated to
the March 2018 lease sale” as containing “the majority of responsive documents.” (Id.
at 9, ¶ 41.) Baca designated that file as responsive. (Id. ¶ 43.) Baca also “maintained
an ‘unofficial correspondence’ folder, which included [e-mail] communications about the
lease sale among members of the lease sale team or with the Tres Rios Field Office.”
(Id. ¶¶ 44, 46.) Baca designated this e-mail folder as responsive. (Id. ¶ 46.) She also
searched the rest of her e-mails “using the words: March 2018 oil & gas lease sale.”
(Id.) Everyone else on the team was asked to search his or her e-mails “in a similar
manner.” (Id. ¶ 47.) And if the team member maintained a dedicated e-mail folder for
the March 2018 lease sale, he or she was asked to designate that folder as responsive.
(Id. at 9–10, ¶¶ 48–49.) Team members were also asked to search in personal hardcopy or electronic filing systems. (Id. at 10, ¶ 50.)
As in the Tres Rios Field Office, everyone who searched looked for records in
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existence as of the time of the search, rather than records in existence as of the date of
the FOIA request. (Id. ¶ 52.) And, like the Tres Rios Field Office, all searches were
complete on or before November 3, 2017, on which date responsive materials were
sent to Klein, the FOIA Officer. (Id. ¶¶ 54–55.)
C.
Original Production & Commencement of this Lawsuit
Having received the various documents discovered by relevant employees, Klein
“worked with BLM staff and the Regional Solicitor’s Office to ensure that all information
was reviewed line by line in accordance with the requirements of the FOIA and [the
Department of the Interior’s] FOIA regulations.” (Id. at 11, ¶ 56.) BLM produced an
initial installment of 140 pages (no redactions) on December 5, 2017, and a second
installment of 1,595 pages (also no redactions) on December 28, 2017. (Id. ¶ 59.)
Rocky Mountain Wild filed this lawsuit on February 8, 2018. (ECF No. 1.) Rocky
Mountain Wild alleged, among other things, that BLM failed to conduct a lawful search
for responsive records, and that BLM continued to violate FOIA by withholding
responsive records through improper exemptions. (Id. ¶¶ 34–35.)
BLM produced its third and final installment of documents on March 6, 2018.
(ECF No. 35 at 11, ¶ 61.) This production comprised 346 pages, of which 97 contained
redactions pursuant to certain FOIA exemptions. (Id.) The transmittal cover letter also
announced that BLM was withholding 63 pages in full pursuant to certain FOIA
exemptions. (ECF No. 35-1 at 50.) The letter went on to explain the exemptions
invoked and the reasons for invoking them. (Id. at 50–53.)
With the Court’s leave, Rocky Mountain Wild filed an amended complaint on April
3, 2018 (ECF No. 12-1), which remains the operative complaint. The amended
complaint continues to allege that BLM failed to conduct a lawful search for responsive
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records, and is withholding responsive records through improper exemptions. (Id.
¶¶ 36–38.)
D.
Pre-Summary Judgment Negotiations
In January 2019, the Court entered an order dismissing Rocky Mountain Wild’s
claims other than its claim that BLM has failed to fully and properly respond to the
October 19, 2017 FOIA request. Rocky Mountain Wild v. BLM, 2019 WL 233329, at *7
(D. Colo. Jan. 16, 2019) (ECF No. 20). “[C]onsidering the relatively narrow scope of the
remaining dispute,” the Court “strongly encouraged [the parties] to consider the utility of
requesting a settlement conference before the Magistrate Judge.” Id. at *7.
Apparently in the spirit of that admonition, BLM, on April 5, 2019, provided Rocky
Mountain Wild “with a pre-summary judgment search declaration and Vaughn Index[3]
explaining the actions the BLM had taken to search its records in response to [the] FOIA
request and the bases for the BLM’s withholdings.” (ECF No. 35 at 12, ¶ 65.) While
preparing the Vaughn Index, BLM determined that it no longer needed to withhold
certain documents it had been withholding, because the March 2018 lease sale was
now a year in the past and so the justifications for withholding pre-decisional materials
were substantially lessened. (Id. at 12–13, ¶¶ 66–69.)
Rocky Mountain Wild responded by letter dated April 26, 2019. (ECF No. 36-10.)
Rocky Mountain Wild announced its position “that a new search must be carried out.”
(Id. at 1.) This was so for three principal reasons:
•
BLM had not contemporaneously documented its search efforts and so
was forced to rely on “stale memories and agency guesses” about who
3
A Vaughn index is the FOIA equivalent of a privilege log. See Vaughn v. Rosen, 484
F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).
12
searched for what and where (id. at 1–2);
•
the records thus far disclosed revealed numerous names of persons who
had not been asked to search for documents (id. at 2–4); and
•
the persons who searched through their e-mails did so with inconsistent
search terms (id. at 5).
Rocky Mountain Wild also insisted that any new search encompass records up through
at least April 22, 2019 (rather than through the cutoff date of the original search,
November 3, 2017). (Id.)
E.
Supplemental Search
BLM disagreed with Rocky Mountain Wild’s letter, and BLM “determined”
(through an unspecified process) that its original search had been proper and thorough.
(ECF No. 35 at 13–14, ¶¶ 73–80.) “Nonetheless,” BLM “elected to seek to assuage
[Rocky Mountain Wild’s] concerns about the original search by designing a
supplemental search.” (Id. at 14, ¶ 81.)
By this time, Klein had moved on from his position as FOIA Officer for BLM’s
Colorado state office, and Garcia-Hinojosa had succeeded him. (ECF No. 35-1 at 2,
¶ 1.) Garcia-Hinojosa and Cowan (the FOIA coordinator for the Branch of Fluid
Minerals) worked together to create a list of search terms “reasonably likely to identify
all responsive records.” (ECF No. 35 at 14, ¶ 82.) Garcia-Hinojosa and Cowan were
“well-positioned to identify [the appropriate] search terms” because Cowan had
“extensive familiarity with the March 2018 lease sale” and Garcia-Hinojosa had
“reviewed the thousands of pages that were previously identified and produced,” making
her “familiar with the words and phrases used in [those] communications.” (Id. at 15,
¶¶ 83–85.) They eventually created a list of thirteen search terms, including the
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numbers of all of the Proposed Parcels and various other terms that had been used to
refer to the March 2018 lease sale. (Id. ¶ 88.)
Garcia-Hinojosa then reviewed Rocky Mountain Wild’s proposed list of persons
who should be asked to search for documents. (Id. ¶ 92.) She believed that most of
these persons would be unlikely to have responsive records, but she directed all of
them—a total of twenty-eight, inclusive of persons who had already searched—to
conduct a search, “in an abundance of caution and in an effort to reach a compromise.”
(Id. at 16–17, ¶¶ 93–95.) Garcia-Hinojosa also identified one additional person, not on
Rocky Mountain Wild’s list, that she believed should participate in the search. (Id. at
17–18, ¶¶ 96–97.)
As she sent out her new search requests, Garcia-Hinojosa learned that seven of
the persons on her new list no longer worked for BLM. (Id. at 18, ¶ 98.) She therefore
directed the appropriate Department of the Interior information technology office to
search those persons’ archived e-mail. (Id. ¶ 99.)
Garcia-Hinojosa specified that all searches, whether by the employee through his
or her own documents or by the IT department through former employees’ e-mails,
should be directed at documents dated or created between January 1, 2017 (a little
before BLM began working on the March 2018 lease sale) and November 3, 2017 (the
original search cutoff date). (Id. at 18–19, ¶¶ 99–106.)
F.
Supplemental Production
Garcia-Hinojosa reviewed the documents discovered through the supplemental
search. (Id. at 19, ¶¶ 107–08.) She found that “they were almost entirely duplicative of
the documents that had already been produced.” (Id. ¶ 108.) The searches also
“returned a number of documents that bore no relation to the March 2018 lease sale
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and were not responsive to the request.” (Id. ¶ 109.)
Garcia-Hinojosa finally identified 320 pages that were arguably responsive to
Rocky Mountain Wild’s request. (Id. at 20, ¶ 110.) “The majority of these pages consist
of email chains relating to the scheduling of meetings and conference calls addressing a
wide number of subjects (not just the March 2018 lease sale), meeting agendas, ‘out of
office’ emails, and other non-substantive exchanges.” (Id. ¶ 111.) Many of the 320
pages are duplicates of each other, such as e-mail chains produced by more than one
person. (Id. ¶ 113.) Some of the pages duplicated what BLM had previously produced,
but Garcia-Hinojosa decided not to exclude them from this supplemental production
because “there were cover transmittal emails that were not previously identified.” (Id.
¶ 114.)
Garcia-Hinojosa then reviewed the 320 pages line-by-line to determine if any
FOIA exemptions would apply. (Id. ¶ 117.) She concluded that 27 pages should be
redacted and 76 pages should be withheld in full. (Id. ¶ 120.)
At some point before BLM filed its summary judgment motion, it produced to
Rocky Mountain Wild the documents it found throughout supplemental search, minus
the pages it chose to withhold. BLM also filed a Vaughn Index as an exhibit to its
summary judgment motion. (ECF No. 35-2.)
III. ANALYSIS
No party argues that the Court should evaluate whether BLM’s original search,
standing alone, complied with FOIA. The Court will therefore evaluate whether the
original search and supplemental search, together, satisfied BLM’s FOIA duties. The
Court therefore will evaluate BLM’s combined efforts as between the two searches.
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A.
Scope of Search
The parties’ major dispute is whether BLM searched thoroughly enough for
responsive records.
1.
Duty of Liberal Construction
Many of Rocky Mountain Wild’s challenges to the scope of BLM’s search rely on
the premise that BLM had a duty to construe the FOIA request more broadly than it did.
A FOIA requester must “reasonably describe[]” the records sought, 5 U.S.C.
§ 552(a)(3)(A)(I), and the responding agency “may appropriately refrain from disclosing”
materials that are “outside the scope of [the] request,” Trentadue v. Integrity Comm.,
501 F.3d 1215, 1233 n.6 (10th Cir. 2007) (“Trentadue-IC”). Nonetheless, Congress
enacted the “reasonably describes” language specifically to replace a prior statutory
standard (“request for identifiable records”) that agencies had been using to justify
withholding records not requested with specificity. Truitt v. Dep’t of State, 897 F.2d 540,
544 & nn.26–27 (D.C. Cir. 1990). “Reasonably describes” was therefore intended to
“‘make[] explicit the liberal standard for identification that Congress intended.’” Id. at
545 (quoting relevant Senate report). In short, “an agency . . . has a duty to construe a
FOIA request liberally.” Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71
F.3d 885, 890 (D.C. Cir. 1995). Nonetheless, “an agency processing a FOIA request is
not required to divine a requester’s intent.” Landmark Legal Found. v. EPA, 272 F.
Supp. 2d 59, 64 (D.D.C. 2003).
Just how far the construe-liberally rule extends is unclear. Compare Gov’t
Accountability Project v. U.S. Dep’t of Homeland Sec., 335 F. Supp. 3d 7, 12 (D.D.C.
2018) (“FOIA requests are not a game of Battleship. The requester should not have to
score a direct hit on the records sought based on the precise phrasing of his request.”)
16
with Bloeser v. U.S. Dep’t of Justice, 811 F. Supp. 2d 316, 321 (D.D.C. 2011) (“Because
FOIA was not intended to reduce government agencies to full-time investigators on
behalf of requesters, it is the requester’s responsibility to frame requests with sufficient
particularity to enable the searching agency to determine precisely what records are
being requested.” (internal quotation marks and citations omitted; alterations
incorporated)). Part of the tension between liberal construction and reasonable
specificity is that a FOIA requester who is dissatisfied with the scope of the agency’s
search can always submit a new request targeted at those keywords, date ranges, etc.,
that the requester learned—through litigation—were not part of the original search.
(See ECF No. 36 at 29 (Rocky Mountain Wild’s admission that it “could have obviously
filed a new FOIA request to obtain” records it believes may exist).) Thus, such
requesters have an immediate remedy outside of litigation. On the other hand,
agencies may not turn the FOIA process into a game.
Nonetheless, in cases where a court has held that the government agency failed
to construe the request liberally, the agency’s stinginess is usually rather obvious. See,
e.g., Judicial Watch, Inc. v. U.S. Dep’t of Justice, 373 F. Supp. 3d 120, 124–25 (D.D.C.
2019) (when asked for certain records regarding Special Counsel Robert Mueller’s
investigation into Russian interference with the 2016 presidential election, agency
searched its electronic records only for the term “special counsel,” not “Mueller,”
reasoning that “any document containing ‘Mueller’ was reasonably likely to also include
‘special counsel’”); Gov’t Accountability Project, 335 F. Supp. 3d at 9, 11 (when asked
to search for records “relat[ing] to ‘ideological tests’ and ‘searches of cellphones’ at the
U.S. border,” the agency searched its electronic records only for those phrases,
essentially verbatim, to the exclusion of obvious synonyms such as “cell phone” and
17
“phone”); Bagwell v. U.S. Dep’t of Justice, 311 F. Supp. 3d 223, 229–30 (D.D.C. 2018)
(when asked to search for records about Pennsylvania State University, agency only
searched for the university’s full name, and not common nicknames like “PSU” or “Penn
State”).
With these principles in mind, the Court turns to Rocky Mountain Wild’s specific
arguments about the scope of BLM’s search.
2.
No Washington, D.C., Office Employees Asked to Search
Rocky Mountain Wild offers four reasons why BLM should have expanded its
search to include persons in its Washington, D.C., office who might have responsive
records.
a.
October 19, 2017 E-Mail (Parcel 7387)
On October 19, 2017, BLM employee Suzanne Mehlhoff (role and location
unknown) e-mailed BLM employee Jayson Barangan (same), copying BLM employees
Steven Hall (same), Peter Cowan (in the Branch of Fluid Minerals, Colorado office), and
John D. Beck (role and location unknown). (ECF No. 36-8.) The e-mail begins,
“Attached is a rough stab at a briefing document for WO on the parcel in the March
2018 oil and gas lease sale.” (Id.) The reference to “the parcel” is to parcel 7387,
which is not among the Proposed Parcels. (Id. (noting attachment titled “TRFO_Parcel
7387 BP_2017.10.18_DRAFT v2.docx”).)
Rocky Mountain Wild asserts, and BLM does not contest, that “WO” in this e-mail
means “Washington Office.” (ECF No. 36 at 15, ¶ B.) BLM emphasizes, however, that
parcel 7387 “was not offered in March 2018 and was not identified in [Rocky Mountain
Wild’s] FOIA request.” (ECF No. 38 at 11, ¶ B.)
BLM is correct that parcel 7387 is not among those about which Rocky Mountain
18
Wild requested information. But more importantly, Rocky Mountain Wild has pointed
the Court to nothing in the record showing that any briefing document was actually sent
to the Washington office. Thus, nothing about this e-mail necessarily should have
prompted BLM to consider asking Washington office employees to search for
responsive records.
To the extent Rocky Mountain Wild argues that BLM should have construed the
FOIA request liberally to include all parcels considered for leasing in March 2018 (such
as parcel 7387), and not just those parcels listed in the FOIA request, the Court will
address that argument in Part III.A.3.b, below, in the context of an argument that BLM
should have expanded its search terms.
b.
March 6–8, 2017 E-Mail Chain
On March 6, 2017, Rachel Vaughn (a land law examiner in BLM’s Colorado
office) sent an e-mail to BLM employees Jully McQuilliams (role and location unknown)
and Jennifer Spencer (same), copying BLM employees Sean Hudak (in the Colorado
office, role unknown), Rebecca Skinner (role and location unknown), Cheryl Hirschel (in
the Colorado office, role unknown), and Peter Cowan (in the Branch of Fluid Minerals,
Colorado office). 4 (ECF No. 36-9 at 1.) It is not clear what prompted Vaughn’s e-mail.
It begins, “It doesn’t look like Colorado will have a March 2018 Lease Sale.” (Id.)
Vaughn then asks for guidance about what type of memorandum to send “to WO,”
apparently referring to a memorandum explaining Colorado BLM’s decision not to have
a March 2018 lease sale. (Id.)
On March 8, 2017, Jennifer Spencer replied to Vaughn’s e-mail, stating, “We’ve
4
Vaughn, Hudak, Hirschel, and Cowan were among those who searched for responsive
records. (ECF No. 35 at 17, ¶ 95.)
19
been seeing some push back from the Main Interior [office], regarding lease sale
postponements since we received the WEA litigation.” (Id. at 2.) 5 Spencer asked
Vaughn to consider “mov[ing] some parcels currently scheduled for your December
2017 lease sale, so your office could continue to hold a March 2018 lease sale,” but
otherwise provided Vaughn a template to use, apparently (again) referring to a template
for a memorandum explaining Colorado BLM’s decision not to have a March 2018 lease
sale. (Id.)
Later that day, Jully McQuilliams replied on the same e-mail thread to “echo what
Jennifer [Spencer] said” and provide additional suggestions for finding parcels that
could be offered for sale in March 2018. (Id. at 3.)
Nothing in this e-mail thread, or anything else in the record of which the Court is
aware, establishes that any of the participants on this e-mail thread were Washington
office employees. In addition, this thread at most shows the Washington office’s
generalized interest in holding lease sales. Rocky Mountain Wild asked for “all agency
records created or obtained for the purpose of preparing and implementing the March
2018 offering of lease sale parcels 7981, 7982, 7983, 7984, 7985, 7986 and 7987.”
(ECF No. 35-1 at 35.) Whatever duty of liberal construction might apply to this request,
it does not require the Colorado BLM office (to whom the FOIA request was submitted)
to assume that what the requester really wants is all records relating to BLM’s decision
to hold any lease sale, anytime, anywhere. Thus, nothing about this e-mail exchange
required BLM to expand its search scope to include the Washington office.
5
No party explains what the “WEA litigation” is. In 2016, however, Western Energy
Alliance sued BLM in the United States District Court for the District of New Mexico, claiming
that BLM was violating a statutory duty to hold lease sales at least quarterly. See W. Energy
All. v. Jewell, 2017 WL 3600740, at *1 (D.N.M. Jan. 13, 2017).
20
c.
Jim Scrivner
On June 15, 2017, Jim Scrivner (in the Energy and Minerals Task Force,
Washington office), e-mailed BLM employees Brian St. George (natural resources
specialist, Colorado office) and Theresa Hanley (role and location unknown). (ECF No.
36-5 at 13.) 6 Scrivner stated that
BLM and Department leadership are very interested in a
number of energy-related items. One thing we are trying to
be sure is understood is the full landscape of energy-related
[resource management plans], [environmental impact
statements], and [environmental assessments]. Attached is
a set of four tables showing what we believe to be the case
for your State. Our [request] is that you validate the items
and remove those that are there in error, correct errors of
fact in those that should remain, and add those that are
missing.
(Id.) Scrivner’s e-mail and accompanying tables were then forwarded to various
persons working for BLM in Colorado. (See id. at 12–24.) This ultimately resulted in a
chart that was returned to the Washington office on June 20, 2017. (Id. at 21.) The
chart included, among many other things, a line for the “March 2018 Competitive Oil
and Gas Lease Sale” showing “Major Milestone Dates.” (Id. at 26.)
Under the circumstances, the Washington office’s request that the Colorado
office fill out a chart showing all of the office’s current projects (the March 2018 lease
sale being one among many) did not trigger any duty to search the Washington office
for records responsive to Rocky Mountain Wild’s FOIA request. Colorado BLM could
reasonably conclude that this interaction with the Washington office did not give rise to
a realistic possibility that the Washington office would have responsive records.
6
St. George was among those who searched for responsive records. (ECF No. 35
at 17, ¶ 95.)
21
d.
Dana Wilson
At the time BLM was processing Rocky Mountain Wild’s FOIA request, Dana
Wilson was Acting District Manager for BLM’s Colorado Southwest District, based in
Montrose. (See Part II.B.2, above.) Wilson was on Garcia-Hinojosa’s list of persons to
participate in the supplemental search, and was one of the agency’s employees who
had left BLM’s employ by the time Garcia-Hinojosa sent out her supplemental search
requests. (See ECF No. 35 at 17–18, ¶¶ 95, 98; see also Part II.E, above.) Therefore,
Wilson’s archived e-mail was searched by Department of Interior IT personnel. (ECF
No. 35 at 18, ¶ 99.)
Rocky Mountain Wild asserts that Wilson was an employee in the Washington
office. (ECF No. 37 at 4, ¶ 11.) Rocky Mountain Wild does not explain why it believes
Wilson worked in the Washington office, and this appears to be a simple mistake.
There is nothing about Wilson’s involvement that should have prompted BLM to search
the Washington office.
3.
Search Terms
The search terms that Cowan and Garcia-Hinojosa developed for the
supplemental search were the following:
1. 7981
2. 7982
3. 7983
4. 7984
5. 7985
6. 7986
7. 7987
22
8. March 2018 Lease Sale
9. Tres Rios Lease Sale
10. “lease sale” and “March”
11. March 2018
12. TRFO lease sale
13. March sale
(ECF No. 35 at 15, ¶ 88.) As noted above (Part II.E), Cowan and Garcia-Hinojosa
developed the search terms through Cowan’s first-hand experience with the lease sale
itself and Garcia-Hinojosa’s first-hand experience with the many documents BLM had
already produced by the time it decided to perform a supplemental search.
The agency’s choice of search terms, like its search generally, will generally be
upheld if it is reasonable:
There is no bright-line rule requiring agencies to use the
search terms proposed by a plaintiff. Defendants have
discretion in crafting a list of search terms that they believe
to be reasonably tailored to uncover documents responsive
to the FOIA request. Where the search terms are
reasonably calculated to lead to responsive documents, the
Court should not micro manage the agency’s search.
Liberation Newspaper v. U.S. Dep’t of State, 80 F. Supp. 3d 137, 146 (D.D.C. 2015)
(internal quotation marks and citations omitted; alterations incorporated).
a.
Sage-Grouse and ACEC
Rocky Mountain Wild asserts that the supplemental search terms were unduly
narrow because they did not include “Gunnison sage-grouse” or “ACEC (Area of Critical
Environmental Concern,” both of which are mentioned in Rocky Mountain Wild’s FOIA
request (see Part II.A, above). (ECF No. 36 at 24–25.) Here, however, the context in
which Rocky Mountain Wild mentioned “Gunnison sage-grouse” and “ACEC” matters
23
greatly. Again, the FOIA request itself sought “all agency records created or obtained
for the purpose of preparing and implementing the March 2018 offering of lease sale
parcels 7981, 7982, 7983, 7984, 7985, 7986 and 7987.” (ECF No. 35-1 at 35.) In the
paragraph following this request, Rocky Mountain Wild explained that “[t]he request is
time sensitive due to ongoing agency decisionmaking and because these parcels, if
leased and developed, have the potential to negatively impact the Endangered Species
Act listed Gunnison sage-grouse and values within an ACEC.” (Id.)
In this light, the Court is unpersuaded that BLM was unreasonable in failing to
include “Gunnison sage-grouse,” “ACEC,” or variants in its search terms. Indeed, it
stands to reason that searching for these terms without also searching for one or more
of the terms listed above would have been vastly overinclusive. 7
b.
Parcels Not Among the Proposed Parcels
Rocky Mountain Wild next asserts that the supplemental search terms were
unduly narrow because they did not include the parcel numbers for four parcels that
were considered by BLM for leasing in March 2018 but were not among the Proposed
Parcels (and therefore not listed in Rocky Mountain Wild’s FOIA request). (See ECF
No. 36 at 25–26.) This arguments rests on the notion that BLM had a duty to construe
Rocky Mountain Wild’s FOIA request more broadly than a request for only information
on the Proposed Parcels.
On this issue, the Court agrees with Rocky Mountain Wild. Admittedly, this is not
7
According to the latest data from BLM, there are eighty-eight ACECs in Colorado. See
https://www.blm.gov/sites/blm.gov/files/planningandnepa_aceclist.xlsx (last accessed March 17,
2020). And a simple search of the Federal Register shows that Colorado BLM frequently
considers the Gunnison sage-grouse. See, e.g., 79 Fed. Reg. 42033 (July 18, 2014) (beginning
the process of “incorporat[ing] Gunnison Sage-Grouse Conservation Measures into Resource
Management Plans”).
24
the sort of obvious stinginess evident in the cases surveyed above (Part III.A.1).
However, in the context of the FOIA request as a whole, the Court finds that Rocky
Mountain Wild’s enumeration of specific parcels should have been liberally construed to
reach all of the parcels considered for the March 2018 lease sale. There is no
reasonable basis to think that Rocky Mountain Wild was genuinely interested in only a
subset of parcels considered for that lease sale, to the exclusion of any others. Rather,
Rocky Mountain Wild made plain its interest in the effect that the March 2018 lease
sale—and not just a portion of that lease sale—may have on Gunnison sage-grouse
and ACECs in the proposed lease sale area. Accordingly, the Court finds that BLM’s
search was deficient to the extent BLM excluded documents about parcels considered
for the March 2018 lease sale but not listed in Rocky Mountain Wild’s FOIA request. 8
BLM is not entitled to summary judgment on this aspect of the case.
c.
Overinclusive Search Results
Rocky Mountain Wild’s final argument regarding search terms is somewhat
difficult to understand. Rocky Mountain Wild first quotes Garcia-Hinojosa’s report in her
declaration that the supplemental search terms “‘returned a number of documents that
bore no relation to the March 2018 lease sale.’” (ECF No. 36 at 26 (quoting ECF No.
35-1 at 28–29, ¶ 81).) Rocky Mountain Wild then argues that BLM should have used
more sophisticated search terms to avoid this overinclusivity problem. (Id. at 26–27.)
This is post hoc advice, not an argument that BLM failed to conduct a search.
BLM carried out a search using overinclusive terms and Garcia-Hinojosa then
personally reviewed “every document identified” for responsiveness. (ECF No. 35-1
8
Rocky Mountain Wild says that the parcels at issue are 6434, 7387, 7980, and 7989.
(ECF No. 36 at 25.)
25
at 29, ¶ 82.) In other words, BLM went about it the hard way, but it went about it
nonetheless. It would be nonsensical to hold that BLM’s search was unreasonable
because it could have reached the same destination more easily. Rocky Mountain
Wild’s argument in this regard is meritless. 9
4.
Cutoff Date for Supplemental Search
BLM’s supplemental search took place in 2019, but was limited to documents in
existence as of November 3, 2017. (See ECF No. 35 at 16–19, ¶¶ 94, 105–06.)
November 3, 2017 was the cutoff date of the original search, so BLM’s choice to use
that cutoff date for the supplemental search was essentially a choice to recreate the
original search with standardized search terms and additional potential custodians.
Rocky Mountain Wild argues that November 3, 2017 “may have been a
reasonable cutoff date originally, [but] it was not reasonable for a new search conducted
in June, 2019.” (ECF No. 36 at 30.) Rocky Mountain Wild acknowledges that it “could
have obviously filed a new FOIA request to obtain records created after November 3,
2017,” but its April 26, 2019 letter to BLM asserted that the supplemental search should
run through at least April 22, 2019. (Id. at 29; see also ECF No. 36-10 at 5.) Thus,
says Rocky Mountain Wild, it did not file a new FOIA request “in reliance upon the
BLM’s good faith efforts to resolve this case and comply with FOIA, believ[ing] the
agency would conduct a new search with the intent of complying with the FOIA.” (ECF
No. 36 at 29.)
9
Rocky Mountain Wild’s response to BLM’s statement of material facts and Rocky
Mountain Wild’s statement of additional disputed facts, as well as its “Statement of Fact” in its
own cross-motion, all include assertions about persons (not addressed above) who did not
search for documents, and types of documents (not addressed above) for which BLM did not
search. (See ECF No. 36 at 3–19; ECF No. 37 at 2–7.) However, Rocky Mountain Wild never
argues that these assertions create deficiencies requiring BLM to redo its search. (See ECF
No. 36 at 22–30; ECF No. 37 at 7–13.) The Court therefore ignores these claims.
26
Other than generally being open to a supplemental search, Rocky Mountain Wild
does not describe what BLM did to cause Rocky Mountain Wild to conclude that it could
rely on BLM to expand that search through April 22, 2019. To the contrary, Rocky
Mountain Wild goes on to say that its counsel and BLM’s counsel had a telephone
conference in May 2019, during which BLM’s counsel announced that BLM would
conduct a supplemental search using the November 3, 2017 cutoff date. (Id. at 29–30.)
Rocky Mountain Wild’s counsel “opposed” that plan but “agreed to defer briefing in the
hopes that the agency would comply with FOIA through this new search and a
settlement could be reached.” (Id. at 30.) In other words, Rocky Mountain Wild knew
that BLM had expressly rejected the idea of looking for documents generated later than
November 3, 2017, but Rocky Mountain Wild simply hoped that BLM would change its
mind. There was therefore manifestly no reliance, reasonable or otherwise. Even if
there had been reliance, Rocky Mountain Wild can still submit a new FOIA request.
Moreover, there is reason in this instance not to require BLM to search with a
broader temporal scope. BLM’s original response to the FOIA request was fairly rapid
as these things go. It received the request on October 19, 2017, it completed its
searches on November 3, 2017, and it released responsive records on December 5,
2017 (140 pages), December 28, 2017 (1,595 pages), and March 6, 2018 (346 pages).
(See Part II.C, above.) In other words, it appears that BLM took seriously Rocky
Mountain Wild’s claim that its request was “time sensitive due to ongoing agency
decisionmaking” about the Proposed Parcels. (ECF No. 35-1 at 35.)
Now Rocky Mountain Wild is insisting that BLM must search for documents that
did not yet exist when BLM was doing its best to carry out the original search.
Moreover, the only reason Rocky Mountain Wild can make this argument is because
27
BLM, in a gesture of compromise regarding alleged deficiencies in the original search,
agreed to conduct a supplemental search. If the Court were to hold in these
circumstances that an agreement to conduct a supplemental search obligates the
agency to expand the temporal scope of the search vastly beyond the original temporal
scope, agencies would have little incentive to pursue the compromise that BLM pursued
in this case. Such a result would not be in the public interest.
Perhaps there are circumstances when a FOIA requester can rightfully demand a
supplemental search with a temporal scope broader than the requester could have
expected from a diligently-pursued original search. Whatever those circumstances may
be, Rocky Mountain Wild has not shown that they exist here. The Court accordingly
finds that BLM’s November 3, 2017 cutoff date was reasonable under the
circumstances.
B.
Exemptions
In the aggregate, BLM redacted 124 pages and withheld 139 pages. (See Parts
II.C & II.F, above.) Its Vaughn Index asserts that these withholdings are variously
justified under FOIA Exemptions 3, 5, and 6 (i.e., 5 U.S.C. § 552(b)(3), (5), and (6)).
BLM argues that all of its exemptions were justified. Rocky Mountain Wild pushes back
only on Exemptions 5 and 6. (See ECF No. 36 at 31–33.) The Court will therefore
address Exemptions 5 and 6 only, deeming Rocky Mountain Wild to concede that
BLM’s Exemption 3 withholdings were proper. 10
10
Exemption 3 applies to matters “specifically exempted from disclosure by statute.”
5 U.S.C. § 552(b)(3). BLM withheld a number of communications with Native American tribes
because disclosing those communications could disclose the location of sensitive
archaeological resources, in violation of the Archaeological Resources Protection Act. See
16 U.S.C. § 470hh(a).
28
1.
Exemption 5
Exemption 5 applies to “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). “In other words, it protects documents that would be
covered by any privilege that an agency could assert in a civil proceeding.” TrentadueIC, 501 F.3d at 1226.
a.
Deliberative Process & Attorney-Client Privileges
Exemption 5 encompasses the attorney-client privilege and the attorney workproduct protection. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154 (1975). In a
federal agency, an attorney-client privilege can arise between an agency attorney and
an employee of the same agency seeking advice from the attorney in his or her capacity
as an agency attorney. See Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d
854, 862–63 (D.C. Cir. 1980).
Exemption 5 also encompasses the deliberative process privilege, which “covers
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).
Rocky Mountain Wild asserts that the Vaughn Index does not provide enough
information to support these claimed exemptions because “there is no indication
whether any person[] for whom Exemption 5 is asserted is within a protected group of
decisionmakers, an attorney providing legal advice, or an employee receiving legal
advice.” (ECF No. 36 at 32.) It appears that that phrase “protected decisionmakers” is
a reference to the deliberative process privilege, and is meant to imply that the privilege
29
extends only to certain agency employees. Rocky Mountain Wild cites no authority for
the proposition that the deliberative process privilege is employee-specific, rather than
record-specific. Nor is the Court aware of any such authority. Cf. Trentadue-IC, 501
F.3d at 1226–27 (explaining the scope of the deliberative process privilege in terms of
types of documents, not types of agency employees). The Court therefore rejects this
argument.
As for the alleged failure to “indicat[e] whether any person[] for whom Exemption
5 is asserted is . . . an attorney providing legal advice, or an employee receiving legal
advice” (ECF No. 36 at 32), the Vaughn Index shows otherwise. BLM invoked the
attorney-client privilege to withhold four documents, which the Vaughn Index, in
pertinent part, describes as follows:
Subject of Email /
Subject Matter or Title
of Document
Re: March 2018 Lease
sale DNA- Post SO
review
Document Date
9/5/2017
From/To
From Danielle
Di[M]auro to
Barbara
Sterling cc
30
Description of Withheld Material and
Explanation for Withholding
Redacted information is protected by the
Attorney-Client privilege, as it reflects an
exchange between BLM employee and
Office of the Regional Solicitor attorney
relating to the attorney’s review of
Determination of NEPA Adequacy, made
in the course of giving and receiving legal
advice.
Subject of Email /
Subject Matter or Title
of Document
Re: March 2018 Lease
sale DNA- Post SO
review
Response to Public
Comment Review for
March 2018 O&G
Lease Sale DNA
Response to Public
Comment Review for
March 2018 O&G
Lease Sale DNA
Document Date
From/To
9/5/2017
From Danielle
Di[M]auro to
Barbara
Sterling
11/3/2017
From George
San Miguel to
Danielle
DiMauro
11/3/2017
From Danielle
DiMauro to
George San
Miguel cc Barb
Sterling
Description of Withheld Material and
Explanation for Withholding
This document is a Draft Determination of
NEPA Adequacy which contains
confidential, substantive edits and
comments throughout the draft made by
the BLM’s attorney in the Department of
the Interior Solicitor’s Office. These edits
and comments were made by the
attorney in the course of the parties’
attorney-client relationship and for the
purpose of giving and receiving legal
advice. The release or disclosure of this
information would breach the attorneyclient privilege and would likely hinder the
adversarial trial process and/or interfere
with BLM’s legal representation.
Redacted information contains an
exchange between BLM employee and
Office of the Regional Solicitor attorney
relating to the attorney’s review of revised
Determination of NEPA Adequacy and
draft responses to public comments,
made in the course of giving and
receiving legal advice.
Redacted information contains an
exchange between BLM employee and
Office of the Regional Solicitor attorney
relating to the attorney’s review of revised
Determination of NEPA Adequacy and
draft responses to public comments,
made in the course of giving and
receiving legal advice.
(ECF No. 35-2 at 5–6, 13.)
Rocky Mountain Wild provides no reason to believe that Danielle DiMauro was
not an attorney in the Office of the Regional Solicitor, nor any reason to believe that the
other persons named were not BLM employees. 11 The Court therefore rejects Rocky
11
Rocky Mountain Wild does not contest that Barbara Sterling and George San Miguel
were employees in the Branch of Fluid Minerals, and were among those directed to search for
documents. (See ECF No. 35 at 8, ¶ 39.)
31
Mountain Wild’s argument in this regard.
Finally, Rocky Mountain Wild cites a decision from the United States District
Court for the Northern District of Oklahoma finding that a “briefing paper” about a
decision to take Indian lands into trust could not be withheld under the attorney-client
privilege because, among many other reasons, “one would expect some indication on
the briefing paper itself or in the transmitting email that the content was subject to the
attorney client privilege if, in fact, it was.” Cherokee Nation v. Salazar, 986 F. Supp. 2d
1239, 1249 (N.D. Okla. 2013). Rocky Mountain Wild finds it significant that BLM fails to
say whether the documents withheld under the attorney-client privilege had any such
indication. (ECF No. 36 at 32–33.)
Rocky Mountain Wild treats Cherokee Nation as if expounding a general principle
of law, as opposed to deciding an issue on the specific facts of that case. Cherokee
Nation was doing the latter, not the former, as evidenced by the fact that the decision
cites nothing to support its reasoning in this regard, and it includes this fact as one
among many supporting the lack of attorney-client privilege.
There may be situations—as in Cherokee Nation—where the lack of an explicit
claim to attorney-client privilege on the relevant document is significant. Rocky
Mountain Wild has given the Court no reason to believe that this case falls into that
category. The Court therefore rejects this argument as well.
In short, BLM has appropriately invoked the deliberative process and attorneyclient privileges.
b.
Commercial Information Privilege
The Supreme Court has endorsed “a limited privilege for confidential commercial
information pertaining to [government] contracts,” Fed. Open Mkt. Comm. of Fed.
32
Reserve Sys. v. Merrill, 443 U.S. 340, 359 (1979), which the First Circuit has extended
to “protect[ing] the government when it enters the marketplace as an ordinary
commercial buyer or seller,” Gov’t Land Bank v. Gen. Servs. Admin., 671 F.2d 663, 665
(1st Cir. 1982). Under this authority, BLM redacted conference call numbers and
passcodes, the disclosure of which, it says, would “harm the government’s financial
interest in maintaining the integrity of the commercial telephonic systems it contracts
for.” (ECF No. 35-2 at 2, 3, 13, 14.)
Rocky Mountain Wild responds that “[p]asscodes cannot be construed as
‘sensitive information’ protectable pursuant to Exemption 5.” (ECF No. 36 at 33.)
Rocky Mountain Wild provides no authority for this assertion, and it is not otherwise
obvious why passcodes cannot be sensitive information. The Court accordingly finds
that BLM appropriately invoked Exemption 5 as to this information.
2.
Exemption 6
Exemption 6 applies to “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”
5 U.S.C. § 552(b)(6). Under this authority, BLM redacted “a member of the public[’s]”
personal cell phone number and home address contained in an e-mail. (ECF No. 35-2
at 4.)12
Rocky Mountain Wild challenges this redaction, at least as to the phone number,
arguing that “[p]hone numbers in emails are not similar to ‘personnel or medical files’
pursuant to Exemption 6.” (ECF No. 36 at 33.) The case law is to the contrary. See,
e.g., Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 152 (D.C. Cir. 2006)
12
The person’s name is listed in the Vaughn Index as the sender of the e-mail, and so
presumably his name was not redacted from the e-mail itself. Thus, BLM only asserts a privacy
interest in his address and personal cell phone number.
33
(“We have also read the statute to exempt not just files, but also bits of personal
information, such as names and addresses, the release of which would create a
palpable threat to privacy.” (internal quotation marks omitted; alternations
incorporated)).
To determine whether BLM appropriately withheld the phone number, the Court
“must balance the private interest involved (namely, the individual’s right of privacy)
against the public interest (namely, the basic purpose of the Freedom of Information
Act, which is to open agency action to the light of public scrutiny).” Id. at 153 (internal
quotation marks omitted). Nonetheless, “[i]f there is no public interest in the disclosure
of certain information, something, even a modest privacy interest, outweighs nothing
every time.” Horowitz v. Peace Corps, 428 F.3d 271, 278 (D.C. Cir. 2005) (internal
quotation marks omitted).
Here, BLM’s explanation for withholding this “member of the public[’s]” phone
number is generic: “[I]t was determined that the individual to whom this information
pertains has a substantial privacy interest in withholding it.” (ECF No. 35-1 at 21, ¶ 63.)
Even so, Rocky Mountain Wild articulates no public interest in disclosure of this
person’s personal cell phone number. The Court therefore upholds BLM’s invocation of
Exemption 6 in this instance.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.
BLM’s Motion for Summary Judgment (ECF No. 35) is GRANTED IN PART and
DENIED IN PART as stated above;
2.
Rocky Mountain Wild’s Cross Motion for Summary Judgment or in the Alternative
for a Stay of Briefing and Leave to Carry Out Rule 56(d) Discovery (ECF No. 37)
34
is DENIED;
3.
BLM shall conduct a new search for records existing between January 1, 2017,
and November 3, 2017, regarding parcels considered for the March 2018 lease
sale, about which BLM has not already conducted a search. BLM shall conduct
this search and produce responsive documents on a schedule that permits it to
file a new summary judgment motion (as to this search alone) no later than April
24, 2020; and
4.
Nothing in this order shall be construed as interfering with the parties’ ability to
settle this case without the need for an additional search and/or additional
summary judgment practice.
Dated this 23rd day of March, 2020.
BY THE COURT:
______________________
William J. Martinez
United States District Judge
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