Friday, October 2, 2015

Details of the VWC Land Exchange EIS FOIA Federal Court decision

For the interested here is a selection of key quotes from the recent US District Court decision in the Rocky Mountain Wild vs. USFS (and the Village at Wolf Creek Land Exchange Environmental Impact Statement process.).  

Of course, this is a my cherry picked presentation since there was a lot of legalese, background, and Judge Wiley Daniel detailing why he decided as he did - all worth getting acquainted with, but too much to be posting over here.  I thank Rocky Mountain Wild for making the full decision available.

Case 1:14-cv-02496-WYD-KMT Document 31 Filed 09/30/15 USDC Colorado 
Civil Action No. 14-cv-2496-WYD-KMT
ROCKY MOUNTAIN WILD, INC., a Colorado non-profit corporation,
Plaintiff, v.
This case arises out of a request by the Plaintiff on February 27, 2014, to
Defendant United States Forest Service (“Forest Service”) for certain agency records pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, pertaining to the development and construction of the Village at Wolf Creek Access Project (“Wolf Creek Project”) in the Rio Grande National Forest (“RGNF”) of Colorado, a project undertaken by RGNF under the National Environmental Policy Act (“NEPA”).

In order to comply with NEPA, the RGNF was required to draft an Environmental Impact Statement (“EIS”) and a Record of Decision (“ROD”), whose legal sufficiency was evaluated by the Office of General Counsel (“OGC”) of the U.S. Department of Agriculture. In 2010, RGNF entered into an agreement with Leavell-McCombs Joint ...
page 2
On February 27, 2014, Plaintiff submitted a written request to the Forest Service’s FOIA Officer. The relevant portion of the FOIA request read as follows:
Under the Freedom of Information Act, 5 U.S.C. § 552, Rocky Mountain Wild, San Juan Citizens Alliance and San Luis Valley Ecosystem Council request copies of all communications and records of communications between the Forest Service and outside entities relating to the Village at Wolf Creek Access Project, including but not limited to, communications related to the preparation of the Environmental Impact Statement (EIS), Endangered Species Act consultation, Army Corps of Engineers reviews, and other federal, state, and local government reviews and approvals.
In particular this request seeks all agency records created or obtained by the Forest Service concerning the Village at Wolf Creek Access Project after January 1, 2008 that involves communications between:
  • The Forest Service and other federal, state or local agencies; 
  • The Forest Service and the Leavell/McCombs joint partnership and their associates; 
  • The Forest Service and Tetra Tech or other third-party contractor or similar entities engaged in preparing the EIS or portions thereof; 
  • The Forest Service and any members of the public; 
  • The Forest Service and any other external entity.
page 3
 The Forest Service and the RMRO claimed to have withheld entire documents or portions therein pursuant to exemptions 4, 5, and 6 under 5 U.S.C. § 552(b). The April 28, 2014 release constituted an adverse determination, and Plaintiff was advised it could file an administrative appeal.
Plaintiffs filed an administrative appeal on June 12, 2014. The Forest Service conducted another search for responsive documents in September 2014. On December 1, 2014, the Forest Service issued its response to Plaintiff’s appeal, in which it reversed the withholdings under exemption 4, and included fifteen additional pages of responsive documents not previously disclosed.
page 4
Plaintiff filed this action on September 9, 2014, alleging that Defendants failed to provide all of the responsive documents as requested in the original FOIA request, and failed to respond to the appeal in the statutory timeframe.
... For the reasons stated below, I grant Plaintiff’s motion in part, and deny in part, and I deny Defendants’ motion to the extent further evaluation of withheld documents is necessary in order to determine whether exemption 5 under FOIA has been properly applied. ...
page 5
... FOIA provides the public with a broad right of access to federal agency records subject to nine specific exemptions. 5 U.S.C. § 552; Anderson, 907 F.2d at 941. The purpose of the Act “is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” Id. (citing NLRB v. Robbins Tire & Rubber Co., 437 U.S. ...
page 6
... Defendant Forest Service, as the federal agency resisting disclosure in response to a FOIA request, bears the burden of justifying nondisclosure. Trentadue, 501 F.3d at 1226. It also bears the burden of demonstrating that it conducted a “reasonable search” for the requested agency records. Patterson v. Internal Revenue Serv., 56 F.3d 832, 840 (7th Cir. 1995). ...
The Forest Service in this case had an obligation to construe the language of the Plaintiff’s FOIA request liberally, and to refer the request to another office if it was reasonable that it would possess or control responsive records. See Friends of Blackwater v. United States Dep’t of Interior, 391 F. Supp. 2d 115, 122 (D.D.C. 2005). Upon receipt of the FOIA request by the Forest Service, a search was conducted in the offices of the Divide Ranger District on the RGNF, and in the RGNF supervisor’s office.
page 7
Although the two searches performed by the Forest Service resulted in the disclosure, either in part or in full, of thousands of pages of information, limiting the search to these offices could not be expected to result in a reasonable search of requested documents under the actual FOIA request. In this case, the Forest Service failed to conduct a reasonable search for the information requested by Plaintiff in the FOIA request, including a failure to include the suggested entities in the search that would likely have responsive records.
page 9
 The Forest Service has not asserted any such undue burden, nor did it make the proper effort to determine whether personnel in its various offices participated in the agency’s decision making regarding the Wolf Creek Project, or whether they may have had responsive records in their control or possession. See Blackwater, 391 F. Supp. 2d at 121-22 (agency required to refer request to another office if office is reasonably likely to contain responsive records). Therefore, I find that the Forest Service did not perform a reasonable search in relation to the information requested by the Plaintiff, which was reasonably expected to produce such information.
page 12
...  The justification for withholding these documents under the attorney/client privilege is listed by the Defendants as “legal sufficiency review,” including notes and comments from the Forest Service or third-party contractors for the attorney’s consideration, and comments and edits made by the attorney for the Forest Service’s consideration. Id. This broad justification is not sufficiently clear, specific, or detailed to permit a court to determine whether a sufficient factual basis exists to support the agency's refusal to disclose the information.
Defendants’ agent declarations do not offer much assistance in this evaluation. ...
page 13
... The Forest Service contends that the withheld records contained “confidential factual and legal information,” and that the U.S. Department of Agriculture Senior Counsel, Kenneth Capps, provided “legal and policy advice.” This justification does not offer sufficient detail as to the contents of the documents and why the attorney/client privilege should be applied in such a broad manner.
Accordingly, I find that the Vaughn index and agent declarations fail to provide sufficient detail regarding the application of exemption 5 to documents 1 through 5 on the Vaughn index. The conclusory statements which do nothing more than recite the legal standard fail to demonstrate a logical basis for the Forest Service’s claim that disclosure of these documents would interfere with the attorney/client relationship. Justification offered to support withholding under the attorney/client privilege for documents 6 through 10 is minimal, but sufficient to show the content of the email exchanges and the reasons for withholding information under this privilege. ...
page 14
... I agree that the pages in documents 1 through 5 on the Vaughn index that pertain to the agency’s draft EIS and ROD are predecisional documents within the meaning of the deliberative process privilege and are therefore exempt under exemption 5.
However, the Forest Service has not met its burden to demonstrate that the information it redacted from these documents is deliberative. The Forest Service has withheld in full 1,684 pages for documents 1 through 5 on the Vaughn index, and has redacted 158 pages of responsive records in documents 6 through 12. See Def.’s Mot. for Summary Judgment (ECF No. 15), Ex. 9. The Forest Service’s justification for this (Page 14) withholding under the deliberative privilege exemption is as follows on each document: “These emails contain frank exchanges of ideas and advice between employees. Disclosure of these comments and thoughts would impede the candid and full exchange of ideas within the agency, but all reasonably segregable factual material has been released.” Id. This justification is insufficient repetition of the legal standard, and does not provide the court with enough information to determine whether there exists segregable factual information. 
The Bennett declaration offers little to bolster the Defendants’ argument that this information is truly deliberative. ...
~ ~ ~
Page 16  
Defendants shall submit to me a revised Vaughn index with sufficient explanation of any withheld pages as to segregable factual information and sufficient justification for both the attorney/client privilege and the deliberative privilege under exemption 5 of FOIA. For documents 6, 7, 8, and 10 on the Vaughn index, Defendants shall submit to me a revised Vaughn index with sufficient explanation as to why these documents should be withheld as deliberative in nature under exemption 5 of FOIA.
~ ~ ~
Page 20
It is FURTHER ORDERED as follows:
1. Plaintiff’s Cross Motion for Partial Summary Judgment (ECFNo.19) is
GRANTED in part, based on my further determination that the Forest Service has violated FOIA by failing to conduct a reasonable search for responsive documents for this FOIA request, and by withholding information without showing that this information was exempt from disclosure under FOIA exemption 5.
(note - followed by six items)
Finally, it is ORDERED That Defendants’ Motion to Strike Evidence in Plaintiff’s Response to Defendants’ Motion for Summary Judgment and Plaintiff’s Motion for Summary Judgment (ECF No. 20) is DENIED.
Dated: September 30, 2015
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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