Harper v. Department of the Army Huntington District, Corps of Engineers

Filing 25

OPINION AND ORDER granting 18 Motion for Summary Judgment. Signed by Magistrate Judge Norah McCann King on 8/31/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LEATRA HARPER,
Plaintiff,
vs.

Civil Action 2:14-cv-986
Magistrate Judge King

DEPARTMENT OF THE ARMY
HUNTINGTON DISTRICT, CORPS OF
ENGINEERS,
Defendant.

OPINION AND ORDER
This is an action under the Freedom of Information Act (“FOIA”),
5 U.S.C. § 552, in which plaintiff, acting as the representative of a
group of concerned citizens, seeks information regarding horizontal
hydraulic fracturing in the Muskingum Watershed Conservancy District
(“MWCD”).

This matter is now before the Court, with the consent of

the parties pursuant to 28 U.S.C. § 636(c), for consideration of
Defendant’s Motion for Summary Judgment (“Defendant’s Motion”), ECF
18.

Plaintiff opposes Defendant’s Motion, Response in Opposition to

Defendant’s Motion for Summary Judgment (“Plaintiff’s Response”), ECF
21, and defendant has filed a reply, Defendant’s Reply, ECF 24.
I.
On June 23, 2012, plaintiff, acting on behalf of Southeast Ohio
Alliance to Save Our Water, submitted to the U.S. Army Corps of
Engineers (“USACE”) a FOIA request for “All emails and correspondence
from 1/1/09 to [June 23, 2012], between the [MWCD] in New
Philadelphia, Ohio, and the USACE, regarding USACE involvement in

leasing mineral rights for horizontal hydrofracking and potential
water sales.”

Declaration of Angela D. McClellan (“McClellan

Declaration”), attached to Defendant’s Motion as Exhibit A, at ¶ 1,
Attachment 1.

Plaintiff specifically requested “all documentation,

justification and correspondence used to determine that a full 216
study was not required as a result of proposed water withdrawals from
the MWCD.”

Id.

The USACE, Huntington District, Office of Counsel

(“CELRH-OC”) acknowledged receipt of plaintiff’s request on June 26,
2012.

Id. at ¶ 6, Attachment 2.

CELRH-OC initially released

documents on September 11, 2012 but, invoking FOIA Exemption 5,
withheld 200 pages.1 CELRH-OC found and released 60 additional pages of
documents on November 16, 2012, two pages on February 28, 2013, and 14
pages on March 4, 2013.

Id. at ¶¶ 11, 13-14, Attachments 8, 10, 11.

Plaintiff appealed the response to the Office of the Secretary of
the Army.

Id. at ¶¶ 9, 12, Attachments 6, 9.

denied on February 11, 2014.

Plaintiff’s appeal was

Id. at ¶ 16, Attachment 13.

Plaintiff

was advised that the withheld documents are “pre-decisional because
they were submitted prior to, and in anticipation of, decisions to be
made regarding hydrofracking permitting,” and “deliberative because
[the information withheld] encompasses expressions of opinions and
analysis by MWCD and USACE personnel regarding hydrofracking.”

Id. at

Attachment 13.
1

In her summary of the September 11, 2012 response to plaintiff’s FOIA
request, Ms. McClellan avers that 288 pages had been initially withheld.
McClellan Declaration, ¶ 7. In fact, the September 11, 2012 response to
plaintiff’s FOIA request, McClellan Declaration, Attachment 4, indicates that
200 pages had been withheld pursuant to FOIA Exemption 5. However, this
inconsistency is apparently insignificant because plaintiff does not dispute
the accuracy of “[d]efendant’s recitation of the specific history of the
requests . . .[,] the copies of said requests, and the agency’s responses. .
. .” Plaintiff’s Response, p. 2.

2

II.
“[U]nder the FOIA an agency must disclose all records requested
by ‘any person,’ 5 U.S.C. § 552(a)(3), unless the information sought
falls within one of the nine enumerated exemptions listed in section
552(b).”

Vaughn v. United States, 936 F.2d 862, 865 (6th Cir. 1991).

“These exceptions are to be narrowly construed,” Rugiero v. U.S. Dep't
of Justice, 257 F.3d 534, 543 (6th Cir. 2001) (citing Dep’t of
Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001)),
“and the burden is on the agency to justify its action.”
5 U.S.C. § 552(a)(4)(B)).

Id. (citing

“[T]he structure of the Act reflects ‘a

general philosophy of full agency disclosure unless information is
exempted under clearly delineated statutory language.’”

Id. (quoting

Dep’t of Air Force v. Rose, 425 U.S. 352, 360-61 (1976)).
In the case presently before the Court, defendant asserts that it
has properly withheld documents pursuant to Exemptions 5 and 6, see 5
U.S.C. §§ 552(b)(5), (b)(6).

Defendant’s Motion, pp. 8-11.

Defendant

“now moves for summary judgment . . . on the ground that no
information has been improperly withheld from Plaintiff.”

Id. at

PAGEID 69.
“As most challenges to an agency's use of a FOIA exemption
involve purely legal questions, district courts typically resolve
these cases on summary judgment.”

Rimmer v. Holder, 700 F.3d 246, 255

(6th Cir. 2012) (citing Rugiero, 257 F.3d at 544).

Pursuant to Rule

56 of the Federal Rules of Civil Procedure, “[t]he court shall grant
summary judgment 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).

3

In making this determination,

the evidence “must be viewed in the light most favorable” to the nonmoving party.

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

To prevail on summary judgment in a FOIA action, “the government must
show that it made a ‘good faith effort to conduct a search for the
requested records using methods reasonably expected to produce the
requested information’ and that any withholding of materials was
authorized within a statutory exemption.”

Rimmer, 700 F.3d at 255

(quoting CareToLive v. Food & Drug Admin., 631 F.3d 336, 340 (6th Cir.
2011)).

“[T]he resolution of an exemption's applicability at the

summary-judgment phase ‘creates a situation in which a plaintiff must
argue that the agency's withholdings exceed the scope of the statute,
although only the agency is in a position to know whether it has
complied with the FOIA.’”

Id. (quoting Rugiero, 257 F.3d at 544).

The government therefore “must provide evidence that enables the court
to make a reasoned, independent assessment of the claim of exemption.”
Vaughn, 936 F.2d at 867.

The goal is to “ʽ(1) assure that a party's

right to information is not submerged beneath government obfuscation
and mischaracterization, and (2) permit the court system effectively
and efficiently to evaluate the factual nature of disputed
information.’”
Cir. 1973)).

Id. (quoting Vaughn v. Rosen, 484 F.2d 820, 826 (D.C.
Although “no particular method of achieving those

requirements is mandated,” id., an agency will ordinarily “offer
detailed affidavits, rather than the requested documents themselves,
to justify its decision to withhold information, and these affidavits
are entitled to a presumption of good faith absent evidence to the
contrary.”

Rimmer, 700 F.3d at 255 (citing Jones v. F.B.I., 41 F.3d

238, 242–43 (6th Cir. 1994)).

Absent evidence that contradicts the

4

government’s affidavits or establishes bad faith, “the role of the
district court is to review the adequacy of the affidavits.”

Rugiero,

257 F.3d at 551.
III.
In the case presently before the Court, defendant withheld
documents pursuant to Exemption 5 and redacted the names of government
employees pursuant to Exemption 6.
reliance on Exemption 5.

Plaintiff challenges defendant’s

Plaintiff does not challenge the

reasonableness or adequacy of the searches performed by defendant, nor
does she challenge the redaction of names pursuant to Exemption 6.
Plaintiff’s Response, pp. 7-8, 13-14.
Exemption 5 exempts from disclosure “inter-agency or intra-agency
memorandums or letters which would not be available by law to a party
other than an agency in litigation with the agency.”
552(b)(5).

5 U.S.C. §

“Courts have construed this exception to preserve the

recognized evidentiary privileges, such as the attorney-client
privilege, the attorney work-product privilege, and the deliberative
process privilege.”

Rugiero, 257 F.3d at 550.

“To come within this

exception on the basis of the deliberative process privilege, a
document must be both ‘predecisional,’ meaning it is ‘received by the
decisionmaker on the subject of the decision prior to the time the
decision is made,’ and ‘deliberative,’ the result of a consultative
process.”

Id. (quoting Schell v. U.S. Dep't of Health & Human Servs.,

843 F.2d 933, 940 (6th Cir. 1988)).

“Although this privilege covers

recommendations, draft documents, proposals, suggestions, and other
subjective documents that reflect the opinions of the writer rather
than the policy of an agency, the key issue in applying this exception

5

is whether disclosure of the materials would ‘expose an agency's
decisionmaking process in such a way as to discourage discussion
within the agency and thereby undermine the agency's ability to
perform its functions.’”

Id. (quoting Schell, 843 F.2d at 940).

Plaintiff argues that defendant has not shown that the withheld
documents are properly classified as intra- or inter-agency
communications, that the communications are pre-decisional, or that
the communications were part of the deliberative process. Plaintiff
also argues that defendant failed to identify the documents withheld
and the reasons for withholding the documents with the degree of
specificity sufficient to permit this Court to determine whether
Exemption 5 was properly invoked.
Defendant offers the declaration of Christopher D. Mays, a
geologist with the USACE division “tasked with reviewing and
evaluating proposals for” hydrofracking. Declaration of Christopher D.
Mays (“Mays Declaration”), attached to Defendant’s Motion as Exhibit
B, ¶ 1.

Mr. Mays explains that, since 1934, the USACE and MWCD have

worked in partnership in connection with certain reservoir projects.
Id. at ¶ 4. Specifically, “the USACE has operated the reservoirs for
flood risk management and navigation and the MWCD has managed the
reservoirs for conservation, recreation, forestry and water supply.”
Id. According to Mr. Mays, the USACE has, since 2010, undertaken a
geological study for the purpose of developing a national policy
regarding the potential risks to dam and levee safety from
hydrofracking.

See id. at ¶¶ 6-9.

Advised that MWCD had requested

proposals for oil and gas exploration on its land, the USACE
“requested that limited restrictions be incorporated into the proposed

6

lease agreements.” Id. at ¶ 7. MWCD thereafter leased mineral rights
at certain of its reservoirs, including Clendening Lake, id., and
defendant has obtained information from MWCD as part of its study. Id.
at ¶ 8.
[USACE] has developed a conceptual draft policy which is
undergoing various reviews and is still pending and prior
to becoming final will be subject to USACE senior level
reviews and approval. Data acquired through a study
initiated by [defendant] for the Clendening Lake [flood
risk management] project pertaining to dam safety
implications of [hydrofracking] was made available for
[defendant’s] consideration during the drafting process.
Id. at ¶ 9.
With regard to the identification of the documents withheld,
Angela D. McClellan, Budget Analyst for the Planning Center of
Expertise for Inland Navigation and Risk-Informed Economics Division,
explains:
The majority of records withheld in response to the
Plaintiff’s request designated as FA-12-0140 contained
documentation of internal communications, pre-decisional
and draft work, such as discussions of the Huntington
District’s position on MWCD’s leasing for hydrofracking for
shale gas development, which is considered pre-decisional
until the Huntington District’s dam safety geological
studies have been completed at each project.
. . .
The withheld information constituted communications between
MWCD
and
Huntington
District
personnel.
These
communications were considered pre-decisional because they
were submitted prior to, and in anticipation of, decisions
to be made regarding hydrofracking permitting.
The
withheld information was deliberative in its entirety
because it encompassed expressions of opinions and analysis
by
MWCD
and
Huntington
District
personnel
regarding
hydrofracking.

7

McClellan Declaration, ¶¶ 23, 26.2
Plaintiff contends, first, that communications between MWCD, a
political subdivision of the State of Ohio,3 and USACE do not qualify
for the “inter-agency or intra-agency” exemption because they are or
may become adversaries. Plaintiff’s Response, pp. 3-4. Specifically,
plaintiff observes that MWCD was deeded certain land by the United
States for “recreation, conservation and reservoir development
purposes,” and that, under the deed, a failure to fulfill those
purposes will result in a reversion of the property to the United
States. The grant of oil and gas leases on MWCD land, plaintiff
argues, implicates the “reverter clause;” as a consequence, the
interests of the USACE and the MWCD “do not necessarily align . . . .”
Id. at p. 4 (referring to ECF 21-1).4
Plaintiff agrees that FOIA Exemption 5 can in certain
circumstances apply even to records of communications between a
federal agency and an outside consultant. Plaintiff’s Response, p. 8.

2

The Court understands that, by her reference to “[t]he majority of records
withheld,” Ms. McClellan intended to exclude only one document, which was
generated by the Department of the Interior, Bureau of Reclamation, and which
was forwarded to that agency for a “releasability determination.” See
Attachment 4 to McClellan Declaration.
3
O.R.C. Chapter 6101, which governs Ohio conservancy districts, authorizes the
organization of conservancy districts for the purpose of, inter alia,
preventing floods and regulating streams and wetlands situated in one or more
Ohio counties. See O.R.C. § 6101.04.
4
This contention has been the subject of other litigation initiated by
plaintiff and others. Leatra Harper, et al. v. Muskingum Watershed
Conservancy District, et al., (S.D. Ohio); United States of America ex rel.
Leatra Harper v. Muskingum Watershed Conservancy District, 5:13-cv-2145 (N.D.
Ohio). The former action was voluntarily dismissed by plaintiffs. 2:14-cv2539, Doc. Nos. 34, 35 (S.D. Ohio May 4, 2015). The qui tam action remains
pending in the United States District Court for the Northern District of
Ohio.

8

Records of communications between a federal agency and a non-federal
entity may nevertheless qualify for the “intra-agency” exemption if
those communications were “‘created for the purpose of aiding the
agency’s deliberative process.’” Public Citizen, Inc. v. DOJ, 111 F.3d
168, 170 (D.C. Cir. 1997)(quoting Dow Jones & Co., Inc. v. Department
of Justice, 917 F.2d 571, 575 (D.C. Cir. 1990))(emphasis in original).
Determinative to the issue is whether the communications “played
essentially the same part in an agency’s process of deliberation as
documents prepared by agency personnel might have done.” Klamath Water
Users Protective Ass’n, 532 U.S. at 10.
The Mays Declaration confirms that this standard has been met.
The USACE and the MWCD are jointly responsible for the administration
of the Muskingum Watershed. The USACE, the federal agency charged with
formulating national policy regarding the impact of hydrofracking on
dam and levee safety, has consulted with MWCD in connection with terms
governing oil and gas exploration leases on land deeded to MWCD and,
as part of the process of formulating that national policy, the
federal agency relies on information generated by MWCD in connection
with its leases. Id. at ¶¶ 6-9. See also McClellan Declaration, ¶ 25
(“The communications between MWCD and the Huntington District were
made within the context of th[eir] partnership and involved decisions
regarding the administration of the Muskingum Watershed.”).
Moreover, the Court concludes that plaintiff’s contentions with
regard to the “reverter clause” are insufficient to establish that the
USACE and MWCD occupy adversarial positions such as to foreclose

9

invocation of the inter- or intra-agency exemption under FOIA.
Although a truly adversarial relationship may render the exemption
inapplicable, see Klamath Water Users Protective Ass’n, 531 U.S. 1,
plaintiff has offered no evidence that the United States has ever
sought to invoke the “reverter clause” or has otherwise expressed any
opinion that the activities of MWCD over the years have been
inconsistent with the purposes for which property was deeded to MWCD.
In short, this Court concludes that Defendant’s Motion satisfies
the threshold requirement of Exemption 5, i.e., defendant has
established that the documents are properly classified as inter- or
intra-agency communications.
The Court also concludes that defendant has identified the
withheld documents with the degree of specificity sufficient to permit
this Court to determine that the deliberative process privilege of
Exemption 5 was properly invoked. Specifically, the communications
included in the withheld documents are pre-decisional, and the
communications are part of the deliberative process. The McClellan
Declaration represents that the documents that were withheld
“contained documentation of internal communications, pre-decisional
and draft work, such as discussions of the Huntington District’s
position on MWCD’s leasing for hydrofracking for shale gas
development, which is considered pre-decisional until the Huntington
District’s dam safety geological studies have been completed at each
project.”

Id. at ¶ 23.

The McClellan Declaration also indicates that

the withheld documents “constituted communications between MWCD and

10

Huntington District personnel,” that the “communications were
considered pre-decisional because they were submitted prior to, and in
anticipation of, decisions to be made regarding hydrofracking
permitting[,]” and that “[t]he withheld information was deliberative
in its entirety because it encompassed expressions of opinions and
analysis by MWCD and Huntington District personnel regarding
hydrofracking.”

Id. at ¶ 26.

The McClellan Declaration also states

that the withholding of the documents in question advances frank and
open discussions on matters of agency policy, protects against
premature disclosure of proposed policies and protects against the
confusion that might result from the disclosure of reasons that the
eventual policy may not in fact adopt. Id. at ¶ 24. These
representations and assertions are sufficient to establish that the
withheld documents relate to the USACE’s formulation of national
policy pertaining to the effect of hydrofracking on dam safety, i.e.,
a process that remains on-going. See Rugiero, 257 F.3d at 550 (a
document is “predecisional” if it is “received by the decisionmaker on
the subject of the decision prior to the time the decision is made”)
(internal quotations omitted). Defendant has likewise adequately
established how the withheld documents fit into the deliberative
process.

See U.S. ex rel. Williams v. Renal Care Grp., Inc., 696 F.3d

518, 527 (6th Cir. 2012). Fairly read, the Mays Declaration and the
McClellan Declaration also adequately establish that disclosure of the
withheld documents would negatively affect the agency’s decisionmaking process. The premature disclosure of opinions and analyses

11

pertaining to the formulation of national policy on the effects of the
controversial process of hydrofracking on dam and levee safety –
during the course of the formulation of such policy – would serve only
to discourage robust discussion of that policy and would undermine the
likelihood of an eventual effective national policy on a matter of
great public interest. In short, the withholding of the documents
referred to in the McClellan Declaration is entirely consistent with
the rationale underlying the deliberative process privilege of
Exemption 5. See Klamath Water Users Protective Ass’n, 532 U.S. at 8
(“The deliberative process privilege rests on the obvious realization
that officials will not communicate candidly among themselves if each
remark is a potential item of discovery and front page news, and its
object is to enhance ‘the quality of agency decisions’ by protective
open and frank discussion among those who make them with the
Government. . . .”)(quoting NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 151 (1975)).
Finally, plaintiff contends that, even if Exemption 5 applies,
defendant has not provided information sufficient to enable the Court
“to determine if any of the documents sought have segregable
information.”

Plaintiff’s Response, p. 13. To the contrary, the

McClelland Declaration avers that “[t]he withheld information was
deliberative in its entirety because it encompassed expressions of
opinions and analysis by MECD and Huntington District personnel
regarding hydrofracking.”

Id. at ¶ 26 (emphasis added). In the

absence of evidence to the contrary or which establishes bad faith,

12

this Court concludes that this representation is sufficient. See
Rugiero, 257 F.3d at 551.
In short, the Court concludes that defendant is entitled to
summary judgment.
Defendant’s Motion, ECF 18, is therefore GRANTED.
The Clerk is DIRECTED to enter FINAL JUDGMENT.

August 31, 2015

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

13