Andrus v. Dep't of Energy, No. 15-453, 2016 WL 4186917 (D. Idaho Aug. 8, 2016) (Winmill, C. J.)

Andrus v. Dep't of Energy, No. 15-453, 2016 WL 4186917 (D. Idaho Aug. 8, 2016) (Winmill, C. J.)

Re: Request for communications between DOE and Idaho concerning Idaho's 1995 settlement agreement with DOE

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, Exhaustion of Administrative Remedies: "[T]he Court must grant DOE's Motion for Summary Judgment and dismiss [plaintiff's] FOIA claims regarding the October 5, 2015 documents." The court relates that "[i]t is undisputed that [plaintiff] exhausted his administrative remedies pertaining to the documents released on July 10, 2015." "However, DOE did not have the same opportunity to fully review the thirty-eight documents belatedly disclosed by DOE on October 5, 2015." "[Plaintiff] had already initiated this litigation regarding the July 10, 2015 documents when DOE released the final documents in October." First, "the Court . . . considers exhaustion under FOIA a jurisprudential requirement." The court notes that "the Ninth Circuit addressed the FOIA exhaustion issue thirty years ago . . . and concluded that exhaustion is jurisdictional." "However, the Court is not convinced that the Ninth Circuit would reach that same conclusion today." Second, the court finds that "the underlying policy considerations of the doctrine of exhaustion require the Court to dismiss [plaintiff's] claim regarding the October 5, 2015 documents to be further reviewed by the DOE."
   
• Litigation Considerations, Mootness and Other Grounds for Dismissal: The court holds that "DOE's motion for summary judgment for the First Claim for Relief [based on "a 'failure to timely respond to FOIA Request'"] will be granted" because "[plaintiff] conceded in oral argument that all responsive documents, to his knowledge, have been disclosed."
   
• Litigation Considerations, Vaughn Index/Declaration, In Camera Inspection & Exemption 5, Deliberative Process Privilege, Attorney-Client Privilege: "[T]he Court does not find the affidavit and Vaughn index provided by DOE sufficient to grant either party's Motion for Summary Judgment at this time." "The Court will therefore exercise its discretion . . . and conduct an in camera review of the documents to ensure the underlying material is properly redacted." The court first notes that "[plaintiff] has not contested that the emails are 'exclusively between DOE employees' and thus fall under the 'inter-agency or intra-agency' requirement of Exemption 5." Second, regarding the deliberative process privilege, the court finds that "[c]ontext can be inferred from the twenty-three documents that DOE identifies as exempted solely under the deliberative process privilege to suggest that they could be predecisional and deliberative in nature, but the information provided in the DOE's Vaughn index and the FOIA officer affidavit is insufficient to make an affirmative conclusion." Specifically, the court finds that "[t]he index does not identify the authority of the document authors, and there is no way to determine whether the redacted information is 'deliberative' or may be considered more 'factual' in nature." Third, regarding the attorney-client privilege, the court finds that: "1) the information redacted under either privilege is indistinguishable from the information redacted under the deliberative process privilege and 2) because the titles of the authors and recipients are unknown and the Vaughn index so nondescript, there is no way to establish how legal counsel is implicated in any of the documents." "It is also persuasive that none of the documents withheld under attorney-client privilege are labeled 'confidential.'"
   
• Litigation Considerations: The court finds that "[plaintiff] has properly challenged the DOE's decision-making process under the APA." "There is no doubt that where a party is purely seeking to challenge the sufficiency of an agency's application of FOIA exemptions, FOIA – not the APA – is the proper cause of action." "However, merely challenging the sufficiency of DOE's subsection (b)(5) exemptions is not [plaintiff's] objective in the present APA claim." "Rather, [plaintiff's] APA claim asks DOE to disclose documents that are in the 'public interest,' regardless of whether a FOIA exemption applies."