Logan & Lowry, LLP v. United States Department of Interior et al
Filing
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OPINION AND ORDER by Judge John E Dowdell ; dismissing/terminating case (terminates case) ; denying 36 Motion for Attorney Fees; granting 17 Motion for Summary Judgment (Re: 2 Complaint ) (SAS, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
LOGAN & LOWRY, LLP,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
INTERIOR, OFFICE OF INSPECTOR
GENERAL; OFFICE OF SURFACE MINING,
RECLAMATION & ENFORCEMENT,
Defendants.
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Case No. 14-CV-429-JED-TLW
OPINION AND ORDER
I.
The FOIA Requests and Responses
This action involves three Freedom of Information Act (FOIA) requests submitted by the
plaintiff, Logan & Lowry, LLP, to defendants, United States Department of the Interior, Office
of the Inspector General (OIG) and the Office of Surface Mining, Reclamation & Enforcement
(OSM) on March 25, 2014. Those requests sought information related to (1) investigations of
Mark Secrest and Caroline Carman, (2) an investigation of Ervin Barchinger, and (3) a Final
Inspection Report number IU-IS-OSM-0002-2013. (Doc. 2-1).1 The government received the
plaintiff’s FOIA requests on March 26, 2014.
As to the request relating to ODM employees Secrest and Carman, the OIG searched its
investigations database with key terms provided in plaintiff’s FOIA request: “Mark Secrest,”
“Secrest,” “Caroline Carman,” “Carman,” “CIV-11-428-FHS,” and “misuse of federal grant
money.” The OIG determined that it did not have any responsive documents and sent a letter on
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Secrest and Carman were employees of the Oklahoma Department of Mines (ODM).
Barchinger was an employee of the OSM.
March 27, 2014 so advising the plaintiff. (See Doc. 17-1 at ¶ 6; Doc. 17-2). On the same date,
the OIG advised the plaintiff that the OIG was unable to respond to the other two FOIA requests
– regarding Barchinger and the Final Inspection Report – within the 20 workday FOIA time limit
because of a “backlog of requests,” such that those two requests were being placed on the
“complex” track and would take more time, up to 60 days. (Doc. 17-3, 17-4).
In response to the summary judgment motion, the plaintiff asserted that it did not receive
the March 27 OIG letters. In reply, the OIG produced copies of emails, which attached the
March 27 letters and were directed to the email address of counsel for the plaintiff, as was
expressly contemplated in plaintiff’s FOIA requests. (See Doc. 20-1 at 5-7; Doc. 2-1 at 2, 4, 7).
The OIG also provided evidence that the emails were sent and that there were no “delivery
failure” or “delayed delivery” responses to indicate that the emails were not properly delivered to
the plaintiff. (Doc. 20-1 at 2, ¶ 4). The record does not indicate any effort by the plaintiff to
communicate with the agencies either about a failure to respond, or a delay in response, to
plaintiff’s FOIA requests. Instead, plaintiff filed this lawsuit on July 25, 2014.
After the lawsuit was filed, and before the United States entered an appearance on behalf
of the OIG and the OSM, OIG located over 2,000 pages of documents responsive to the
Barchinger investigation and the Final Inspection Report. Those documents were provided on a
CD by mail to the plaintiff on September 25, 2014. (See Doc. 17-5, 17-6). The United States
subsequently entered an appearance in this suit and moved for summary judgment, asserting that
it had satisfied its obligations as to the FOIA requests.
In response to the summary judgment motion, the plaintiff provided information (see
Doc. 19-1, 19-2) which informed the OIG that the “investigation” referenced in the plaintiff’s
FOIA requests relating to Secrest and Carman may have instead been a “referral.” The OIG had
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not conducted any “investigation” regarding the Secrest and Carman issues, but made a referral
of assertions regarding them. The OIG then searched for all referrals with a date between
September 1, 2013 and December 11, 2013, which identified 118 referrals during that timeframe. The OIG then completed a manual review of the 118 referral case files and located a
referral relating to Secrest and Carman. That referral file contained only 26 pages, which
consisted of the complaint and its attachments, the acknowledgement of the complaint, and two
referral letters. That file was disclosed to the plaintiff on approximately October 29, 2014.
(Doc. 20-1).
II.
FOIA Standards
Under FOIA, a private party is entitled to copies of a federal agency’s records upon
making a request that “‘reasonably describes such records’ and that complies with required
procedures for such requests.” Trentadue v. Federal Bureau of Investigation, 572 F.3d 794, 796
(10th Cir. 2009) (quoting 5 U.S.C. § 552(a)(3)(A)). “When a request is made, the agency
ordinarily must ‘determine within 20 [business] days . . . whether to comply with such request
and shall immediately notify the person making such request of such determination and the
reasons therefor. . . .’” Id. at 796-97 (quoting 5 U.S.C. § 552(a)(6)(A)(i)). “If the agency
decides not to comply, the requester can seek relief in federal court,” and the district courts have
“‘jurisdiction to enjoin the agency from withholding agency records and to order the production
of any agency records improperly withheld from the complainant.’” Id. at 797 (quoting 5 U.S.C.
§ 552(a)(4)(B)).
In determining “how hard an agency must look to find requested records,” the Tenth
Circuit applies a standard of reasonableness. See Trentadue, 572 F.3d at 797. That is, an agency
shall make “reasonable efforts” to search for the records. Id. “[T]he focal point of the judicial
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inquiry is the agency’s search process, not the outcome of its search.” Id. Thus, “‘[t]he 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. (quoting Weisberg v.
Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The reasonableness of the agency’s
search depends on whether the search was likely to yield the information sought, the existence of
alternatives that are readily available, and the burden of employing alternative searches.
Trentadue, 572 F.3d at 798. To establish the reasonableness of its search, an agency “may rely
on affidavits or declarations that provide reasonable detail of the scope of the search” and, absent
“countervailing evidence or apparent inconsistency of proof, such affidavits will suffice to
demonstrate compliance with the obligations imposed by the FOIA.” Id. (quoting with approval
Rugiero v. Dep’t of Justice, 257 F.3d 534, 547 (6th Cir. 2001)).
III.
The Agency Searches were Reasonable
Although plaintiff complains about the defendants’ productions of records in response to
the FOIA requests, and the time delay in the productions, those records were produced without
the requirement of any court order. Ultimately, the defendants were not ordered to produce any
additional documents, and the Court found selected redactions to have been proper.
The OIG’s initial search did not locate any responsive documents relating to the referral
of the Secrest and Carman issues.
However, after plaintiff’s summary judgment response
provided additional information suggesting that those issues might have been the subject of a
referral to another agency, the OIG then completed a manual review of 118 referral case files,
located a few documents, and promptly disclosed them to the plaintiff. The OIG has provided an
affidavit with the search terms that were utilized in the initial search (Doc. 20-1 at 2, ¶ 4), and
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those terms were reasonably designed to capture any files that may have related to Secrest and
Carman. There is no genuine dispute as to whether the defendants have produced the records
that were responsive to plaintiff’s FOIA requests.
It is true that, in producing information in response to plaintiff’s FOIA requests, the OIG
did not meet FOIA’s 20-day deadline. However, a few days after receiving plaintiff’s requests,
the OIG notified the plaintiff that additional time, beyond 20 workdays, would be needed to
respond to the requests relating to Barchinger and the Final Inspection Report. In addition, the
documents relating to Barchinger and the Final Inspection Report were produced to plaintiff
before the United States entered an appearance in this action, and the Court has not ordered the
production of any additional documents. Numerous courts have concluded that, once an agency
has produced requested records, even belatedly, the plaintiff’s FOIA claim becomes moot, and
the tardy production does not preclude a governmental agency from obtaining summary
judgment or dismissal. See, e.g., Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982); Walsh v.
United States Dep’t of Veterans Affairs, 400 F.3d 535, 536-37 (7th Cir. 2005); Information
Network for Resp. Mining v. Department of Energy, No. 06-CV-2271-REB-CBS, 2008 WL
762248, *2-3 (D. Colo. Mar. 18, 2008); see also Papa v. United States, 281 F.3d 1004, 1013 (9th
Cir. 2002) (“Defendants correctly cite authority for the proposition that the production of all
nonexempt material, ‘however belatedly,’ moots FOIA claims.”).
Plaintiff “does not deny that its Complaint may now be moot following defendants’
production throughout these proceedings.” (Doc. 39). As a result, summary judgment should be
entered in favor of the defendants, as there is no genuine dispute of material fact, and the
defendants are entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a).
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IV.
An Award of Attorney Fees is Unwarranted
Plaintiff seeks an award of attorney fees and costs incurred in this action under 5 U.S.C. §
552(a)(4)(E), which provides that the Court “may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in any case under this section in
which the complainant has substantially prevailed.”
5 U.S.C. § 552(a)(4)(E)(i).
“[A]
complainant has substantially prevailed if the complainant has obtained relief through either -(I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or
unilateral change in position by the agency, if the complainant's claim is not insubstantial.” Id.,
§ 552(a)(4)(E)(ii).
A plaintiff “applying for FOIA attorney’s fees . . . must first establish that [the plaintiff]
is eligible for an award by showing that [it] ‘substantially prevailed’ on [its] claim.” Anderson v.
Secretary of Health & Human Servs., 80 F.3d 1500, 1504 (10th Cir. 1996). Plaintiff asserts that
it substantially prevailed because United States Magistrate Judge T. Lane Wilson ordered the
production of a Vaughn index of 20% of the records withheld and conducted a review of certain
records. (See Doc. 39 at 2, ¶ 2).2 However, a Vaughn index is simply “an often-employed
means for reviewing [an] agency decision,” Anderson, 907 F.2d at 942, and there has not been
any court order, enforceable written agreement, or decree that brought about any production.
There is no evidence that the production of records was the result of any change in position by
the government. The United States has produced evidence that the OIG’s production of records
was pursuant to its usual procedures.
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A “Vaughn index is a compilation prepared by the government agency . . . listing each of
the withheld documents and explaining the asserted reason for its nondisclosure.” Anderson v.
Dep’t of Health and Human Servs., 907 F.2d 936, 940, n.3 (10th Cir. 1990) (citing Vaughn v.
Rosen, 484 F.2d 820 (D.C. Cir. 1973)).
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Although Judge Wilson ordered the production of a Vaughn index at the plaintiff’s
request, that did not result in an order for the production of any additional records to the plaintiff.
Judge Wilson also ordered that the government submit, for in camera review, the first 50 pages
of an exhibit that had been redacted. After reviewing the documents in their unredacted form,
Judge Wilson found that the “redactions were proper. . . .” (Doc. 35). Accordingly, the plaintiff
has not shown that it substantially prevailed on its FOIA claim.
Even if plaintiff had substantially prevailed and had thus shown eligibility for an award
of fees and costs, the Court would find that plaintiff is not entitled to such an award under
applicable law.
The award of fees under 5 U.S.C. § 552(a)(4)(E) is not required, but is
discretionary with the district court. Anderson, 80 F.3d at 1504 (citing Aviation Data Serv. v.
FAA, 687 F.2d 1319, 1321 (10th Cir. 1982)). If a plaintiff establishes entitlement, “the court
next determines whether a fee award is otherwise justified, using as a guide the following four
factors: ‘(1) the benefit to the public, if any, derived from the case; (2) the commercial benefit to
the complainant; (3) the nature of the complainant’s interest in the records sought; and (4)
whether the government’s withholding of the records had a reasonable basis in the law.’” Id.
(quoting Aviation Data, 687 F.2d at 1321).
While the plaintiff claims a public benefit, it does not explain how any alleged benefit
was actually derived from the case. Without such a record showing, the denial of fees is
appropriate. See Western Energy Alliance v. United States Fish & Wildlife Serv., 608 F. App’x
615, 618 (10th Cir. 2015) (affirming denial of fee award where evidence did not support public,
as opposed to private, benefit). “Where the plaintiff seeks disclosure of material for commercial
purposes, attorney fees may be awarded only on a positive and clear showing of substantial
public benefit. Minimal, incidental, and speculative public benefit will not suffice.” Aviation
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Data, 687 F.2d at 1323. There is evidence that the plaintiff, a law firm, sought the documents in
connection with a years-long legal battle involving one of its clients – Farrell-Cooper Mining Co.
– against defendant OSM, from which the law firm has unquestionably obtained a commercial
benefit. (See Doc. 38 at 9).
As to the third factor, plaintiff has not described its own interest in the records sought,
and the Court accordingly has no information on which to find that third factor in favor of the
plaintiff. The Court disagrees with plaintiff’s assertion that the government’s conduct was
without reasonable basis in the law, such that an award would also be inappropriate under the
fourth factor. As noted, Judge Wilson did not order the production of additional records, and he
found that certain redactions were warranted, rather than contrary to the law. The Court finds
that an award of fees is not justified in this case.
V.
Conclusion
For the foregoing reasons, the defendants’ motion for summary judgment (Doc. 17) is
granted, and the plaintiff’s motion for fees and costs (Doc. 36) is denied. In light of this order,
the reference of the motion for fees and costs (Doc. 36) is withdrawn.
SO ORDERED this 22nd day of March, 2016.
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