Am. Civil Liberties Union v. DOD, No. 18-154, 2019 WL 3945845 (D. Mont. Aug. 21, 2019) (Molly, J.)

Am. Civil Liberties Union v. DOD, No. 18-154, 2019 WL 3945845 (D. Mont. Aug. 21, 2019) (Molly, J.)

Re:  Request for records concerning federal coordination with local law enforcement in anticipation of protests at Keystone XL pipeline

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "the Army Corps' declarations are not detailed enough to establish the search's reasonableness."  "Further, the FOIA record confirms the Army Corps' search was inadequate as a matter of law."  The court finds that "[t]he declaration provides no information on [defendant's] search methodology, such as the search terms he employed."  "Nor does it explain how [defendant] organizes and manages the records he searched – his own emails and computer files."  The court also finds that "the record also makes clear the Army Corps' search was inadequate."  The court points to "inconsistencies between [defendant's] declaration and the record" and finds that "in the context of [defendant's] insufficient declarations . . . the inconsistencies are further evidence of the search's overall inadequacy."
   
• Exemption, Threshold & 7(A):  The court finds that "[t]he statements in the Vaughn index and [defendant's] declaration establish that the documents were 'compiled for law enforcement purposes.'"  "The Army Corps is authorized to 'take reasonably necessary and lawful measures to maintain law and order and protect personnel and property.'"  "Communications about potential threats to Army Corps infrastructure, like the email and attachment, are rationally connected to the Army Corps' authority to secure its property, which is all that is required to be 'compiled for law enforcement purposes.'"  "However, the Army Corps has not established that release of the email and attachment will 'interfere with enforcement proceedings.'"  "That the Army Corps generally anticipates law enforcement involvement in securing the pipeline does not bring the email and attachment within Exemption 7(A)'s protections for enforcement proceedings."
   
• Exemption 5, Threshold & Deliberative Process Privilege:  First, the court holds that "[one] email [at issue] was sent from Army Corps personnel to State Department, BLM, Department of the Interior, and other Army Corps employees, satisfying Exemption 5's threshold requirement that it is an 'inter-agency or intra-agency' document."  "However, like with the email and attachment discussed above, the Army Corps has not shown the email is 'predecisional.'"  "The agency has not explained whether the redacted communication occurred as part of a distinct decisionmaking process, as required under Exemption 5, or as part of a routine or ongoing process."  Second, the court finds that "BLM has not provided any information about the creation of [a] communication plan, but on its face the plan appears to be an intra-agency document subject to Exemption 5."  "However, BLM has failed to show the redacted portion of the communication plan is predecisional and deliberative."  "[A]s [plaintiff] argues, the communication plan is the final decision on BLM's strategy for discussing the Keystone XL pipeline." Therefore, the court finds that "the communication plan appears to be a final statement of BLM's official communication strategy."  "It is not protected by Exemption 5's deliberative process privilege."
   
• Exemption 5, Attorney-Client Privilege:  The court holds that "BLM has sufficiently justified its redaction of the email pursuant to the attorney-client privilege."  "BLM's Vaughn index establishes that [the] email was a confidential communication between a client and an attorney to obtain legal advice."
   
• Exemption 7(A), Glomar:  The court finds that "the FBI has justified its Glomar response under Exemption 7(A)."  "At the threshold, the FBI has met the low bar of showing its responsive records, should they exist, would have been 'compiled for law enforcement purposes.'"  "As for the second step of the Exemption 7(A) inquiry – whether disclosure would interfere with enforcement proceedings – [defendant] explains disclosing the existence or nonexistence of responsive records 'would not only confirm threats have been detected, it would also disclose the scope of the FBI's investigative capabilities and vulnerabilities' and 'would alert the public of the FBI's level of interest and scope of resources available to thwart the threat(s), and afford criminals and/or terrorists the opportunity to alter their behaviors.'"  "[Defendant] continues that '[c]onfirmation of the existence of responsive records would be equivalent to the FBI acknowledging there is an active investigation.'"