Aguirre v. NRC, No. 22-00080, 2023 WL 2375249 (S.D. Cal. Mar. 6, 2023) (Houston, J.)

Aguirre v. NRC, No. 22-00080, 2023 WL 2375249 (S.D. Cal. Mar. 6, 2023) (Houston, J.)

Re:  Requests for records concerning safety event at nuclear waste storage plant

Disposition:  Granting in part and denying in part defendant’s motion to dismiss

• Litigation Considerations, Adequacy of Search:  The court holds that “Defendant has not provided sufficient evidence in the instant Motion for the Court to find the search reasonable.”  “Though Defendant argues that it ‘already responded to [two requests], in which Plaintiff requested records related to the August 3rd “incident” over a much broader timeframe[,]’ . . . this mere reference to prior productions fails to meet the ‘heavy burden’ imposed on the government by FOIA requests.”  “On its face, Plaintiff’s request appears to request a broader subset of documents than those previously provided.”  “Having determined that, for purposes of the instant Motion, Defendant has not demonstrated the adequacy and reasonableness of its initial search, the Court next addresses whether the supplementary search was sufficiently reasonable.”  “‘[C]onstruing the facts in the light most favorable to the requestor[,]’ it is difficult to conclude that Defendant’s search was reasonable.”  “The parties have agreed that several phone calls occurred between Defendant and the facility operator [in the relevant time period] . . . .”  “With that in mind, Defendant’s failure to produce any phone records for the calls in question is a glaring omission.”  “Those phone records are clearly within the scope of the request, and Defendant’s declarant has not testified that there are no relevant phone records.”  “Defendant argues that it ‘double-checked’ and confirmed that certain calls were neither recorded nor memorialized in writing, but the absence of a written memorialization of the content of these calls has no bearing on whether Defendant has to produce phone records, which should be generated irrespective of a written summary or record of the content of the calls.”  “Defendant does not clearly state that such phone records do not exist or are not in their possession or control; it does not otherwise explain why it has failed to produce these phone records; and it also fails to explain why the process it employed to search for documents would not have captured those records.”  Moreover, the court finds that “it is not ‘undisputed that [the agency] did not actually possess the records . . . and . . . had no obligation either to retain the records or to seek the records once they were no longer in its possession.’”  “Here, construing the facts in the light most favorable to Plaintiff, it may be that Defendant has phone logs or records in their possession or control, which they may have received from a service provider.”  “Those records or logs should have been produced to Plaintiff; or if they do not exist, Defendant’s declarant should either say so, or describe the process by which they searched for, and failed to locate, such records.”
   
• Exemption 7(C):  The court relates that defendant withheld “the names and contact information of non-governmental employees, who are thereby entitled to protection from an unwarranted invasion of their personal privacy.”  “Because (1) courts have generally upheld the redaction of personal information, (2) the potential for unwanted contact by third parties is a protected privacy interest, and (3) Plaintiff's proffered public interest is not sufficiently specific, the Court finds that the public interest is not specific or significant enough to justify disclosure.”
   
• Exemption 7(F):  The court relates that “the Government seeks to apply redactions to a hyperlink to a document under Exemption 7(F) because disclosure would present a significant cybersecurity threat.”  “Defendant explains that the redacted information is a link to Defendant’s governmental internal network pathway and argues that the public disclosure of this internal network pathway would present a significant opportunity for hackers to gain information about the agency’s internal data, organization, and processes.”  “Defendant contends that this could have dangerous life and physical safety impacts, especially for licensee information.”  “The Court finds that Defendant’s redaction under 7(F) was appropriate, as public disclosure of the Government’s internal network pathways and the resultant cybersecurity risks fall well within the scope of Exemption 7(F).”
   
• Exemption 4:  The court relates that “Defendant applied Exemption 4 to withhold five pages of documents received from [two outside companies].”  “It argues that these pages are confidential because they were not created by Defendant and instead provided to it under an assumption of confidentiality, and that Defendant confirmed as much after consulting with the third parties.”  “Because the first two requirements do not appear to be in serious dispute, the analysis turns on whether these documents are privileged and confidential.”  “The Court finds that Exemption 4 was appropriately applied to the documents.”  “First, though the relevant cases may not use the specific word ‘proprietary’, that documents are proprietary obviously suggest that they are, or should be, customarily and actually treated as private.”  “Moreover, Defendant confirmed the confidential nature of the documents after consulting with the documents’ creators.”  “That the cover email attaching the documents does not, clearly on its face, indicate the confidential nature of the documents does not mean they are not so, as confidential documents are those that are provided ‘to the government under the express or implied promise by the government that the information will be kept confidential.’”  “Based on the representations made by Defendant’s declarant, coupled with Defendant’s confirmation with the document providers, the Court finds that the withheld documents are confidential documents within the scope of Exemption 4.”
   
• Litigation Considerations, Vaughn Index/Declaration:  “[T]he Court finds that it has sufficient information to evaluate the documents at issue based on the parties’ submissions, and further finds that Defendant’s affidavit sufficiently ‘establish[es] that the requested documents should not be disclosed’, leading the Court to hold that ‘a Vaughn index is not required.’”  “Accordingly, Plaintiff’s request for a separate or more specific Vaughn Index is denied.”