Atchafalaya Basinkeeper, Inc. v. U. S. Army Corps of Eng'rs, No. 21-317, 2022 U.S. Dist. LEXIS 12948 (E.D. La. Jan. 20, 2021) (Zainey, J.)

Atchafalaya Basinkeeper, Inc. v. U. S. Army Corps of Eng'rs, No. 21-317, 2022 U.S. Dist. LEXIS 12948 (E.D. La. Jan. 20, 2021) (Zainey, J.)

Re:  Requests for records concerning assessments of damage to the Atchafalaya Basin caused by sedimentation from United States Army Corps of Engineers (USACE) water diversion projects

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; denying as moot plaintiffs' motion to defer/deny summary judgment

• Litigation Considerations, Discovery:  "Plaintiffs filed a Motion to Defer or Deny Defendant's Motion for Summary Judgment for prematurity or, alternatively, to extend the response time to allow Plaintiffs adequate time for discovery to oppose the motion . . . claim[ing] that USACE's Motion for Summary Judgment is premature because USACE did not address Plaintiffs' pattern, policy, or practice claims and because Plaintiffs need more discovery."  The court holds that "[g]iven that this Court recently denied Plaintiffs' Motion to Appeal the Magistrate Judge's Decision to grant Defendant's motion for a protective order . . ., and that, consequently, discovery in this matter is prohibited until the pending motion for summary judgment and the sufficiency of the accompanying declarations are decided Plaintiffs' Motion to Defer/Deny . . . is denied as moot."
   
• Litigation Considerations, Adequacy of Search:  For the "East Grand Lake Request, USACE reached out to four members of the district's Regulatory Department . . . sending them a copy of the request and asking them to produce records responsive to the request."  "USACE determined that [agency employee] would be the appropriate subject matter expert for this particular FOIA request as he was the employee within the Regulatory Department working directly on the East Grand Lake project."  "[Agency employee] keeps project records electronically on his computer, indexed and searchable by permit number[, and] [u]sing the permit number provided by the requestor, [agency employee] searched for documents responsive to the FOIA request on his computer."  "Plaintiffs allege that the search was inadequate inter alia because . . . other responsive documents exist, such as pre-application meeting minutes and comments submitted pursuant to USACE's public notice, and yet [plaintiffs] did not receive such documents."  "However, the question the Court must decide is whether the search performed was legally adequate, not whether other documents exist that were not located in the search.  "And the Court finds that USACE has met its burden of establishing that it conducted a legally adequate search for the East Grand Lake Request."  Similarly, as to the First, Second, Third, and Fourth "Buffalo Cove Request[s]," the court finds that "[t]he searches that resulted in responsive documents are described by employee, search term, and resource searched." "The Court is persuaded that USACE has met its burden of establishing that it conducted a legally adequate search" for each request. 
  
  In contrast, as to the "Bayou Bridge Request," the court relates that "[p]laintiffs allege that USACE did not produce specific records in response to [the] Bayou Bridge Request and, therefore, the response is incomplete."  "[T]he question . . . is whether the search was legally adequate, not whether other documents may exist that were not located . . . ."  "[Nevertheless], the Court finds that USACE has not met its burden of establishing that it conducted a legally adequate search for the Bayou Bridge Request."  "Although the employee who searched for responsive records was identified in [defendant's] Declaration, the declaration lacks details about how his searches were conducted or what specific resources were searched."  "Because the Court is unable to evaluate the adequacy of the search for the latter request due to the insufficiency of [defendant's] declarations, the Court further orders Defendant to submit within 60 days a more detailed declaration describing the processes and procedures followed by USACE when completing this request."  Similarly, as to the "Beau Bayou Request" the court finds that "USACE's declaration does not establish that USACE's search on the Beau Bayou Request was legally adequate."  "Simply stating that 'no records existed' is not enough to establish that the search was adequate."  "Instead, the declaration should detail what resources USACE used to determine whether the project had commenced and how the preliminary search was conducted."  Likewise, as to the "December 2020 Request," the court "denies USACE's Motion for Summary Judgment as to this search."  The court relates that "[a]ll searches resulting in documents responsive to this request are described by employee, search term, and resource searched, with the exception of the search completed by [agency employee], one of the subject matter experts."  "[Declarant] states that . . . upon following up with [an agency employee, FOIA personnel] 'received responsive records.'"  As "[t]his is the extent of the description of [USACE's] search . . . the Court is unable to evaluate the adequacy of USACE's search."
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• Litigation Considerations, Pattern-or-Practice Claims:  "Plaintiffs claim that USACE has a pattern, practice, or policy of violating the FOIA through its failure to respond timely or at all to Plaintiffs' FOIA requests, its failure to provide tracking numbers timely or at all, and its failure to provide estimated dates for completing action on the requests."  "FOIA lawsuits generally become moot once an agency has made available requested non-exempt records, whether voluntarily or after court order."  "The D.C. Circuit, however, has recognized an exception to mootness where an agency has a 'policy or practice' that 'will impair the party's lawful access to information in the future.'"  "To date, there exists no Fifth Circuit case law acknowledging or addressing pattern, practice, or policy claims (hereinafter 'practice or policy claims') in the FOIA context."  "Even if the Fifth Circuit recognized such claims, however, Plaintiffs cannot survive summary judgment."  "[Declarant] explains that USACE has a policy . . . of providing [request tracking numbers]."  "Regarding USACE's failure to provide estimated dates of completion, [declarant] states that, while USACE's practice is to provide an estimated time, such estimates are not always feasible due to the level of correspondence between different departments or the subject matter experts involved."  "Viewing the facts and evidence in the light most favorable to Plaintiffs, the Court finds evidence that USACE violated the FOIA's procedural requirements, but not enough to infer a 'practice or policy' of violating the FOIA."  "Even if the Court were to assume that USACE has a practice or policy of violating the FOIA, nothing in the record evidences recalcitrance or a lack of due diligence on the part of USACE to warrant injunctive and declaratory relief."  "In fact, USACE's evidence indicates good faith and due diligence."  "It is clear from [defendant's] Declaration that USACE was in direct contact with Plaintiffs, by email and phone, regarding Plaintiffs' FOIA requests."  "Further, any delay on the part of USACE is not 'unexplained.'"  "[Defendant's] Declaration details how USACE's delays in processing during the relevant time period were largely due to the significant case load, the loss of experienced employees, and the struggle with the transition to telework during the COVID-19 pandemic."  "Once the searches on Plaintiffs' requests were complete, USACE quickly reviewed the records and produced them to Plaintiffs."  "These facts, alone, do not support a finding in Plaintiffs' favor."  "And here, there is little beyond the delays themselves that signals that USACE has a practice or policy of ignoring the FOIA's requirements."  "The Court finds that USACE's conduct in this case does not amount to the sort of bad faith conduct, and has not incurred the sorts of prolonged delays, that would entitle Plaintiffs to either declaratory or injunctive relief due to an alleged policy or practice."