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FOIA Update: Novel Exemption 2 Decision is Appealed

FOIA Update
Vol. XVI, No. 3

Novel Exemption 2 Decision is Appealed

A Freedom of Information Act case that presents a novel Exemption 2 issue pertaining to the protection of an endangered species has been decided against the government and is now raising that important issue on appeal.

Endangered Species Maps

This first-of-a-kind type of Exemption 2 case was brought by the Maricopa Audubon Society against the United States Forest Service, a part of the Department of Agriculture, seeking disclosure of "management territory maps" pertaining to the Mexican spotted owl. The Forest Service prepares and uses these maps in protecting the Mexican spotted owl, under the Endangered Species Act, on federal lands that it manages in Arizona and New Mexico.

These maps are based upon sightings of that protected species, as well as conclusions reached about their habitat areas, and are similar to such maps pertaining to other endangered species around the country that are used by the Forest Service and also by the Department of the Interior, depending upon the area of jurisdiction. They show the particular locations in which the endangered species very likely will be found.

When the requester sought the Forest Service's maps for the Mexican spotted owl under the FOIA, the Forest Service withheld them on the basis of the "high 2" aspect of Exemption 2, which has been fashioned by the courts to provide protection against "circumvention harm" through a FOIA disclosure. See, e.g., FOIA Update, Summer 1989, at 3-4 ("OIP Guidance: Protecting Vulnerability Assessments Through Application of Exemption Two") (citing Crooker v. ATF, 670 F.2d 1051, 1073-74 (D.C. Cir. 1981) (en banc)). The Forest Service concluded that disclosure of such information to any requester under the FOIA would allow the ready location of, and thus risk harm to, the owls that it is required by law to protect.

District Court Decision

The district court decision in the case, however, did not allow Exemption 2 protection for this information. In a decision issued by United States District Court Judge James A. Parker, Maricopa Audubon Soc'y v. United States Forest Serv., No. 92-1244 (D.N.M. Aug. 16, 1995) (appeal docketed, No. 95-2210, 10th Cir.), Exemption 2 protection was specifically rejected--despite the fact that the "circumvention harm" element was undisputed in the case.

In fact, the district court's decision includes its findings that "someone who possesses a management territory map could easily locate a Mexican spotted owl and its nest," that "it would not be difficult" to do so even if the Forest Service attempted to redact its maps, and that "it is likely that some individuals might threaten or harm the owl" if they obtained such location information. Slip op. at 4.

However, the district court focussed on the language of Exemption 2 -- which speaks of matters "related solely to the internal personnel rules and practices of an agency," 5 U.S.C. § 552(b)(2) -- and upon the second part of the D.C. Circuit's two-part test for "high 2" protection, i.e., that the record in question be "predominantly internal." Crooker v. ATF, 670 F.2d at 1074. The district court simply concluded that the Forest Service's management territory maps "are not sufficiently related to the agency's rules and practices and are not 'predominantly internal,'" thereby deciding that Exemption 2 is unavailable for such items. Slip op. at 12.

Instead, the district court noted the requester's willingness "to enter into a confidentiality agreement" not to disclose the maps to others and it took the extraordinary step of ordering the parties to execute such an agreement in this case, in order "[t]o ensure protection of the [owls]." Slip op. at 13. At the same time, however, the court observed that this agreement "should not restrict the government from disclosing the management territory maps to others who may submit proper requests under the FOIA." Id.

In its appeal of this decision to the Tenth Circuit Court of Appeals, the government is arguing that the maps clearly relate to the Forest Service's practices of protecting the owls, which are sufficiently internal to warrant their protection under Exemption 2 in this case. Its position is that the purpose of the "predominant internality" requirement is simply to prevent the withholding of "secret law" regulating the conduct of the public, which these maps are not.

The appeal also challenges the legal viability of the district court's ordered confidentiality agreement and notes that another recent FOIA decision on such maps, Maricopa Audubon Soc'y v. United States Forest Serv., No. 94-1129 (D. Ariz. Aug. 8, 1995) (appeal docketed, No. 95-16919, 9th Cir.), in which a district court ruled in the government's favor but did so without issuing a written decision, is now on appeal in the Court of Appeals for the Ninth Circuit.

This novel Exemption 2 issue is one of considerable importance to any federal agency that maintains maps or other such information revealing the sensitive location of something that is under federal protection.

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Updated August 13, 2014