Wild Horse Freedom Fed'n v. U.S. Dep't of the Interior
Wild Horse Freedom Fed'n v. U.S. Dep't of the Interior
Opinion of the Court
Plaintiff Wild Horse Freedom Federation (WHFF) brought this Freedom of Information Act suit seeking certain categories of documents associated with the Bureau of Land Management's Wild Horse and Burro Program (WHBP). Although BLM produced several hundred pages with and without redactions, WHFF believes that its search was inadequate and its withholdings overbroad. In response to the parties' Cross-Motions for Summary Judgment, the Court will grant a portion of Plaintiff's and deny much of Defendant's, mainly because BLM has neglected to respond at all to WHFF's Motion.
I. Background
WHFF "is a non-profit public interest organization ... headquartered in Magnolia, Texas." Compl., ¶ 4. In May 2017, it submitted a tripartite request to BLM, seeking weekly reports connected with BLM's WHBP, briefings from BLM's Assistant Director of Renewable Resources and Planning to BLM's Director, and briefings/reports from WHBP's Division Chief to the Assistant Director of Renewable Resources and Planning. Id., ¶ 1. Defendant conducted a search and initially produced 61 pages, six of which contained redactions. See Def. MSJ, Attach. 3 (Declaration of Ryan Witt), ¶ 19. One month later, BLM released an additional 248 pages, of which 28 were redacted entirely and 115 were redacted in part. Id., ¶ 20.
Dissatisfied with its haul, WHFF filed this action on October 30, 2017, see ECF No. 1 (Complaint), and the parties have now cross-moved for summary judgment. See ECF Nos. 8 (Def.), 9 (Pl.). For reasons unbeknownst to the Court, the Government never filed an opposition to Plaintiff's *318Motion or a reply to its opposition. On June 29, 2018, the Court ordered BLM to produce clean and redacted copies of the contested pages, see Minute Order, which, as will be discussed below, the agency has partially accomplished.
II. Legal Standard
Summary judgment may be granted 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) ; see also Anderson v. Liberty Lobby, Inc.,
FOIA cases typically are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep.,
III. Analysis
As is characteristic of most FOIA cases, the parties dispute two central issues: the adequacy of the agency's search and the appropriateness of its withholdings. The Court looks at each question separately.
A. Adequacy of Search
"An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents.' " Valencia-Lucena v. Coast Guard,
To meet its burden, the agency may submit affidavits or declarations that explain the scope and method of its search "in reasonable detail." Perry v. Block,
To elucidate its search, BLM has submitted the Declaration of Ryan Witt, who holds the role of FOIA Officer at the agency. See ¶ 1. WHFF here has no problems with BLM's search for items contained in the third part of its three-part request, but believes that the agency has been derelict in regard to the first two parts. See Pl. MSJ at 8-12. More specifically, in part one, Plaintiff requested all weekly reports connected to the WHBP. It now lists several reasons why it believes that BLM has not exhausted its search options, most prominently because the title of such reports varied depending on the sender, but the agency apparently searched only for documents entitled "weekly report." Pl. MSJ at 11. Since BLM has never filed any opposition to WHFF's Motion, the Court has no information with which to refute Plaintiff's argument.
Similarly, as to part two, WHFF points out that, although it requested all briefings from BLM's Assistant Director of Renewable Resources and Planning, it appears that briefings related only to the WHBP program - as opposed to topics including, e.g. , livestock, grazing, or endangered species - were included. See Pl. MSJ at 8-9. Once again, absent any rejoinder by the Government, the Court does not see why Plaintiff is incorrect.
The Court, accordingly, will order BLM to conduct a new search in the areas WHFF delineates in relation to parts one and two.
B. Exemptions
BLM withheld all or part of numerous documents under FOIA Exemptions 5 and 6. As Plaintiff does not challenge the latter withholdings - which largely redact cell-phone numbers - the Court will focus exclusively on the former. 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."
Exemption 5 encompasses three distinct components - namely, the deliberative-process privilege (sometimes *320referred to as "executive privilege"), the attorney work-product privilege, and the attorney-client privilege. See Am. Immigration Council v. U.S. Dep't of Homeland Sec.,
In one scant paragraph, the agency offers a fairly boilerplate explanation for the application of this privilege here. See Def. MSJ at 10. In response, WHFF asked the Court for an in camera review of the documents, which the Court then ordered. See Minute Order of June 29, 2018. Although the Court ordered the submission of both clean and redacted copies, BLM complied only as to the 61 pages in Exhibit 11. As to the 248 in Exhibit 12, it provided only the redacted versions, leaving the Court to guess as to what information was actually on the pages. The Court will not, although it could, order all pages in Exhibit 12 released, but it certainly expects a clear and detailed explanation of the basis for BLM's withholdings and unredacted copies in the next round of briefing. Coupled with its failure to even file an opposition to Plaintiff's Motion, this performance is not up to the Government's usual standard.
In any event, as the Court is able to examine the six redactions on Exhibit 11, it can resolve that dispute. Of the six, three (labeled Int 1-6, 8, and 10) include precisely the same material, which appears to be sufficiently deliberative and predecisional to be covered by the exemption. As to 12, however, this is simply a factual statement regarding a litigation decision and should not be redacted. Similarly, 21 might be covered by the attorney-client privilege, but that has never been invoked, and so it must be turned over as well. Finally, 35 is a factual statement regarding litigation that is not covered by deliberative process.
IV. Conclusion
For the foregoing reasons, the Court will grant in part and deny in part the parties' Motions. A contemporaneous Order will require BLM to conduct a new search, unredact certain documents, and more fully justify the withholding of others.
Reference
- Full Case Name
- WILD HORSE FREEDOM FEDERATION v. U.S. DEPARTMENT OF THE INTERIOR, BUREAU OF LAND MANAGEMENT
- Cited By
- 2 cases
- Status
- Published