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Black Hills Clean Water All. v. U.S. Forest Serv., No. 21-5072, 2023 WL 2687089 (D.S.D. Mar. 29, 2023) (Piersol, J.)


Black Hills Clean Water All. v. U.S. Forest Serv., No. 21-5072, 2023 WL 2687089 (D.S.D. Mar. 29, 2023) (Piersol, J.)

Re:  Request for records maintained by Northern Hills District Office of the Black Hills National Forest concerning exploratory gold drilling in Northern Hills

Disposition:  Granting defendants’ motion for summary judgment

  • Litigation Considerations, Vaughn Index/Declaration:  “As an initial matter, the Court concludes that the declarations of [defendant] are sufficient to support the Agency’s motion for summary judgment.”  “[Defendant] attests that she is ‘responsible for managing and overseeing the identification, collection, and redaction of records responsive to requests and appeals made to the Forest Service assigned to herself or members of the Washington Office FOIA team.’”  “Further, [defendant] has personal knowledge of the underlying matter based on her ‘review of the agency records subject to the FOIA requests at issue in this case, and [her] discussions with [her] Forest Service colleagues who are also familiar with the FOIA requests and agency records at issue in this case.’”  “[Defendant’s declarant’s] supervisory position, combined with her thorough description of the searches and familiarity with relevant procedures, constitute sufficient personal knowledge.”  “[Defendant’s] declarations are detailed, nonconclusory, and reasonably describe the Agency’s searches, review, and withholdings in response to [plaintiff’s] request.”  The court relates that “[plaintiff] objects to ‘hearsay’ in [defendant’s] declarations.”  The court finds that “[t]he agency is required only to submit declarations from the ‘responsible agency officials’ who are best positioned to submit a ‘comprehensive’ declaration.”  “Declarations from the employee who coordinated the Agency’s searches can satisfy the personal knowledge requirement.”

    Regarding the exemptions used, the court finds that “[t]he Agency’s Vaughn index identifies each withheld document by subject matter, author, recipient, and date of creation or receipt, the basis for its withholding, and whether redactions have been applied to withhold the document in full or in part.”  “The index also describes the bases for the withholdings . . . .”
  • Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records:  “[T]he Court grants summary judgment on the adequacy of the search.”  First, the court relates that, “[i]n its initial response to [plaintiff’s] FOIA request, the Agency defined the temporal scope of the search as for records with dates from January 1, 2018, to November 2020 – the date that it began the search.”  “[Plaintiff] argues that the Agency should not have used the initial cut-off date of November 2020 for subsequent searches.”  “Instead, the Agency should have searched for records to the date that it began each additional search.”  “[Plaintiff] does not cite to any cases requiring an agency to extend the initial cut-off date of the search to the date additional searches are conducted.”  “The governing Department of Agriculture (‘DOA’) regulation provides that when responding to a FOIA request, the DOA will include ‘only records in its possession as of the date that [it] begins its search.’”  “At the hearing on March 20, 2023, counsel for the Agency explained that DOA policy is to stick with the initial dates of the search even when conducting additional searches.”  “She explained that [plaintiff] can file a second FOIA request for documents created after November 2020.”  “In the D.C. Circuit, ‘a date-of-search cut-off has routinely been found to be reasonable, even if the agency performed subsequent searches.’”  “Courts have explained that, under the date-of-search approach, the requester can relatively easily file a second FOIA request for documents created after the cut-off date.”  “The Court concludes that, under the circumstances in this case, applying the November 2020 cut-off date to subsequent searches does not render the Agency's search inadequate.”

    Second, the court finds that “[t]he Agency reasonably identified nine individuals as custodians after determining that communications related to [plaintiff’s] FOIA request would have been routed through or originated by one or more of these individuals.”  “The Agency’s declarations and responses to discovery requests show that it identified the employees most likely to have responsive records.”  The court also finds that “[t]he Agency custodians reasonably searched all locations where the Agency maintains information on gold-related exploration and mining activities by Mineral Mountain Resources in the Northern Hills District.”  Additionally, the court finds that “[a] Subject Matter Expert . . . worked with the custodians to ensure their searches were likely to identify and capture responsive records.”  “[Defendant’s] declaration lists the terms each custodian used.”  “The Court will not micromanage the Agency’s search by dictating certain search terms where, as here, the search terms were ‘reasonably calculated to lead to responsive documents.’”

    Finally, the court finds that “[plaintiff’s] argument that the Agency's supplemental searches are evidence of bad faith is rejected.”  “The supplemental searches demonstrate the Agency’s good faith efforts to locate and release any additional responsive materials that were necessary to comply with the FOIA.”
  • Exemption 5, Deliberative Process Privilege & Attorney-Client Privilege:  The court holds that “[t]he Agency carried its burden of showing that the portions of the two e-mails were appropriately redacted as exempt based on the deliberative process privilege and the attorney-client privilege.”  The court relates that “[t]he Vaughn index provides the following bases for withholding portions of the two e-mails [at issue]:  ‘ACP - pursuant to the attorney-client privilege, we have redacted certain references to confidential communications between the Department’s Office of the General Counsel and Forest Service employees necessary to obtain legal advice[;]’ ‘DPP - pursuant to the deliberative process privilege, we redacted portions of emails containing recommendations or opinions used in a FOIA litigation process regarding a related FOIA request.’”  The court finds that “[defendant] further describes the bases for the redactions in her declaration.”  “She explains that disclosure would stifle open and honest discussions necessary between the Office of the General Counsel and its client agencies relating to both the deliberative process and to providing and obtaining legal advice.”
  • Exemption 6:  The court relates that “the Agency redacted small portions of documents to exclude personal information, such as dial-in conference lines and passcodes, employee cell phone numbers, a personal e-mail address, references to personal activities outside of the workplace, and a Skype phone number and username.”  “The Court concludes that the information redacted pursuant to Exemption 6, including personal e-mail addresses, phone numbers and addresses, qualify as information similar to that contained in personnel or medical files which may be protected from disclosure under exemption 6.”  “Furthermore, the privacy interests in this information outweighs the public interest in its disclosure.”  “The Agency sufficiently explained why its withholdings under Exemption 6 were justified.”
  • Litigation Considerations, Mootness and Other Grounds for Dismissal & Procedural Requirements, Responding to FOIA Requests:  The court holds that “[plaintiff’s] argument that the Agency failed to produce records in text-searchable format is moot.”  “After [plaintiff] filed its appeal in this case, the Agency provided [plaintiff] with an updated set of documents in text-searchable format.”  “The Agency also reproduced the original documents in text-searchable format, and all additional responsive documents were provided in text-searchable format.”  The court relates that “[plaintiff] also claims it is entitled to receive the records on CD-ROM, DVD, or flash drive instead of through a file-sharing website.”  The court finds that “[t]he FOIA Request specified ‘that paper copies be scanned and electronic records be provided on CD-ROM, DVD, flash drive, or other electronic media’ in whatever way was ‘most expeditious.’”  “Here, the Agency produced the records in a searchable electronic format on a file-sharing website.”  “[Plaintiff] does not contend it was unable to access the documents on the website, or that it had any trouble searching or downloading the records.”  “It is not clear to the Court why the file-sharing website is less desirable than a CD-ROM, DVD, or flash drive.”  “The file-sharing website worked to transmit the information to [plaintiff] electronically, as it requested, and [plaintiff] could have downloaded the data to a CD-ROM, DVD or flash drive.”  “Furthermore, the Agency has indicated that the website is the most expeditious way for the Agency to produce electronic documents.”
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Attorney-Client Privilege
Exemption 5, Deliberative Process Privilege
Exemption 6
Litigation Considerations, Adequacy of Search
Litigation Considerations, Mootness and Other Grounds for Dismissal
Litigation Considerations, Vaughn Index/Declarations
Procedural Requirements, Searching for Responsive Records
Updated May 1, 2023