Black Hills Clean Water All. v. U.S. Forest Serv., No. 20-5034, 2022 WL 2340440 (D.S.D. June 29, 2022) (Piersol, J.)

Black Hills Clean Water All. v. U.S. Forest Serv., No. 20-5034, 2022 WL 2340440 (D.S.D. June 29, 2022) (Piersol, J.)

Re:  Request for records concerning plans of operations or notices of intent for exploratory gold drilling in Mystic District of Black Hills National Forest

Disposition:  Sustaining in part and overruling in part plaintiff's objections; adopting magistrate judge's report and recommendation in part; 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, Mootness and Other Grounds for Dismissal:  The court holds that "[t]he evidence does not indicate a policy or practice of noncompliance with FOIA by the agency that will continue to impair BHCWA's access to information in the future."  The court relates that "[plaintiff] asserts:  (1) that the agency will impermissibly continue to withhold proposed mining proposals in the future, as it did in its 2019 search, absent an injunction preventing it from doing so; and (2) the agency will continue to violate FOIA's prompt-disclosure requirement pursuant to its practice . . . ."  The court finds that "[a]ll the proposed plans identified in the 2019 search were subsequently released" and "there is no evidence that the agency has a formal policy of responding late to FOIA requests."  Further, "[w]hile the Court does not condone the agency's failure to meet FOIA-imposed deadlines on . . . two occasions identified by [plaintiff], it cannot reach the conclusion based on these examples alone that the agency operates under an informal policy or practice of responding late to FOIA requests."  "Accordingly, . . . BHCWA's claims for relief under FOIA due to alleged deficiencies of the agency's 2019 search are moot."
   
• Litigation Considerations, Adequacy of Search:  The court relates that "[f]irst, [the magistrate judge] found the agency's determination of 21 records custodians and limitation of its search to the records of those 21 custodians was unreasonable insofar as it excluded three additional individuals who 'appear reasonably likely to possess responsive documents' and, therefore, whose files should have been searched."  "[T]he Court agrees with the Magistrate Judge's factual and legal analysis and finds her recommendation is an appropriate resolution of this issue."  "Second, the Magistrate Judge found the records locations searched by the agency, which primarily included e-mail accounts and electronic storage drives, were unreasonably limited insofar as paper records were entirely excluded."  "The Court directs the agency to conduct searches of its records custodians' hard copy records, as well as archived e-mail records and agency communications in any programs used by the agency in addition to Microsoft Outlook, or to establish if searches of these additional locations are not feasible – and, if so, why the agency's search is nevertheless reasonably calculated to uncover all relevant material if such locations are excluded."  "Finally, [the court relates that the magistrate judge] found the search terms employed by the agency were reasonable."  The court finds that "the agency generally deferred to each individual records custodian to choose their own search terms, the resulting search failed to consistently employ synonyms and logical variations, such as abbreviations, of even the most basic and obvious search terms and phrases found in or suggested by the text of [plaintiff's] FOIA request."  The court finds that "[t]he searches in general were not as well calculated to uncover all relevant documents as they could have been."  "Despite that, the Court directing a further search with additional terms does seem to be micro-managing, which is to be avoided, if possible."  "[Plaintiff's] objection to this portion of the R&R is denied."
   
• Exemption 3:  The court relates that "the agency indicates it has withheld information pursuant to the Federal Cave Resources Protection Act, 16 U.S.C. § 4301 et seq. ("FCRPA")."  "The FCRPA dictates that '[i]nformation concerning the specific location of any significant cave may not be made available to the public under [FOIA] unless the [agency] determines that disclosure of such information would further the purposes of [the FCRPA] and would not create a substantial risk of harm, theft, or destruction of such cave.'"  "As the Magistrate Judge noted, significant caves are protected from disclosure under the FCRPA, however, the Vaughn index does not contain sufficient information for the Court to evaluate whether the agency's withholdings were proper here."  "The Vaughn index contains only cursory statements that, in two instances, information which 'includes specific locations of significant caves/abandoned mines' was withheld."  "The FCRPA requires the U.S. Department of the Interior to maintain a list of significant caves, . . . but the agency's Vaughn index does not indicate how the agency determined the caves at issue here are significant – i.e., the agency does not state in the Vaughn index or its declarations the criteria for the caves on this list."  "Furthermore, 'abandoned mines' are not explicitly protected under the FCRPA."
  
  Finally, the court holds that "[t]he FOIA [foreseeable] harm provision does not apply here because the disclosure is prohibited by law – namely, the FCRPA."
   
• Exemption 5, Attorney Work-Product Privilege; Attorney-Client Privilege; Foreseeable Harm and Other Considerations:  The court agrees with "the Magistrate Judge's finding that the agency has not met its burden to show it has properly withheld records pursuant to the attorney work-product privilege by connecting the records to specific litigation based on the facts contained in the record."  "As for the records withheld by the agency pursuant to the attorney-client privilege, the Court agrees with [plaintiff] that the agency has not met its burden to show it reasonably foresees harm to its interest in keeping confidential information protected if the records are disclosed."  "The Magistrate Judge based her conclusion to the contrary on the fact 'the agency has alleged that the redacted information, if disclosed, would reveal confidential, privileged material.'"  "She reasoned the 'protection of confidential attorney-client communications is at the heart of the attorney-client privilege as applied through Exemption 5,' and, therefore, 'the agency has met its heightened burden.'"  "The Court disagrees."  "The agency's allegation that the redacted information, if disclosed, would reveal confidential, privileged material does nothing more than bring that information within the gambit of the attorney-client privilege."  "It does not, on its own, specifically identify any harm the agency foresees would result to its interest in keeping confidential information protected."  "If it did, all information subject to the attorney-client privilege would be protected from disclosure under FOIA, effectively nullifying FOIA's additional requirement that the agency must show it reasonably foresees harm to a FOIA protected interest if the records are disclosed."  "The agency did not identify, and the Court cannot find facts in the record identifying, a harm the agency reasonably foresees would result from the disclosure of the record at issue here."  The court finds that "the agency must submit a supplemental Vaughn index and declaration providing the Court with additional factual information for it to evaluate whether the records identified by the agency are properly withheld pursuant [to the] privilege and produce the documents for in camera inspection by the Court."  "Therefore, the Court sustains in part and overrules in part [plaintiff's] objection to the portion of the R&R concerning the agency's withholdings pursuant to the attorney-client privilege, consistent with the above analysis."
   
• Exemption 6:  The court holds that "[t]he challenges to the Exemption 6 withholdings are denied."  The court relates that "the agency redacted private e-mail addresses, phone numbers and addresses from some of the records it disclosed to [plaintiff]."  The court finds that "[t]he privacy interest here is more than de minimus."  "By comparison, the general claim by [plaintiff] that such disclosure would benefit the interests of civilian oversight of government does not warrant a balancing of interests in favor of disclosing the personal information in question."
   
• Procedural Requirements, Responding to FOIA Requests:  The court relates that "[plaintiff] requested the information from the agency be provided to [plaintiff] in the form of 'electronic records' and that the records be 'provided on CD-ROM, DVD, flash drive, or other electronic media' in whatever way was 'most expeditious.'"  "[Plaintiff] requested the electronic records be formatted as searchable PDFs."  "However, the agency ultimately provided electronic records via a filesharing website as non-searchable PDFs."  The court finds that "[t]he agency adequately showed that under the exigencies applicable at the time of production, the 23,000 pages were not readily reproducible in that form or format."  "However, those same exigencies have not been shown to still exist, so all future information productions by the agency will be formatted as searchable PDFs unless otherwise requested."