Cayuga Nation v. U.S. Dep't of Interior, No. 20-2642, 2022 WL 888178 (D.D.C. Mar. 25, 2022) (Berman Jackson, J.)

Cayuga Nation v. U.S. Dep't of Interior, No. 20-2642, 2022 WL 888178 (D.D.C. Mar. 25, 2022) (Berman Jackson, J.)

Re:  Request for records concerning Bureau of Indian Affairs' ("BIA") March 17, 2020, visit to Cayuga Nation reservation and denial of Nation's application for an Originating Agency Identifier

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, Summary Judgment:  "Defendant has not moved for summary judgment on Count I, and it offers no argument as to why its search was adequate."  "Instead, defendant maintains that plaintiff waived its right to raise the issue."  "It cites a joint status report filed with the Court in February of 2021, Joint Status Report, as well [as] a series of e-mails between the parties regarding the contents of the status report."  The Court finds that "[t]he status report does not explicitly waive plaintiff's contentions in Count I, the claim has never been withdrawn by plaintiff, and the Court has not dismissed it."  "But even if the parties' silence on the issue in the status report could be interpreted as a waiver . . . the Court would still decline to foreclose the issue."  "It is within the trial court's discretion to determine whether to enforce a FOIA waiver."  "And this is a situation where enforcing a waiver would be unreasonable because, as plaintiff emphasizes, the inadequacy of the search was obvious when the government described it in its motion for summary judgment."
   
• Procedural Requirements, Searching for Responsive Records:  "The government explains in a declaration it submitted in support of its motion that it only contacted a single person in order to fulfill plaintiff's first request."  "The declarant does not explain what search terms were used or why she came to the conclusion that, after identifying the Trip Report, '[n]o other Records Schedule or Series maintained by this office was likely to produce responsive documents for this request.'"  "Moreover, the person [defendant] asked to search for records – the BIA Acting Regional Director – supervised the March 2020 visit that is the subject of plaintiff's request, but did not go on the trip."  The court finds that "[i]n failing to reach out to either [person who went on the trip], the government's search was not 'reasonably calculated to uncover all relevant documents.'"  "Furthermore, '[t]he description of the search is too cursory to persuade the Court that the search was adequate.'"  "For these reasons, the case will be remanded to the agency to do what it should have done at the outset."
   
• Exemption 5, Deliberative Process Privilege & Attorney-Client Privilege:  The [Trip Report] summarizes a meeting between the two BIA representatives and 'the Seneca Falls Police Department, Seneca & Cayuga Sheriff's Department, New York State Police, District Attorney's Office and Seneca County District Attorney Office.'"  "The summary is followed by the heading 'Note:' and the two bullet points below consist of observations by the author, which have been withheld pursuant to the deliberative process privilege."  "Defendant asserts that Exemption 5 was properly invoked to shield 'the writer's thoughts and impressions regarding the matters discussed at the meeting,' and the paragraphs – which are each one sentence long – included 'items for the writer's supervisors to consider in reaching a decision.'"  "Defendant submits that the information was 'intended to be used by the writer's supervisors on a continual basis to analyze and monitor the issues and volatile events between two rival factions in the Cayuga Nation, and to make future decisions on how the BIA should respond, or if it should respond at all.'"  The court holds that "[t]his explanation is still vague and conclusory; defendant asserts that it was generally monitoring the Cayuga Nation's situation, and that there may have been decisions to make in the future."  "If the documents in question 'are not a part of a clear "process" leading to a final decision on the issue . . . they are less likely to be properly characterized as predecisional.'"  "Here, the process is extremely ill-defined."  "Moreover, the Court's in camera review of the withheld portion here reveals that while the two sentences do include the writer's impressions, they do not consider or recommend any future action on the part of the agency, and they do not appear to be tied to any particular agency decision or decision making process."  "Therefore, the Court finds that defendant has failed to meet its burden . . . and [the sentences] must be produced."
  
  "The second withheld portion of the Trip Report is a summary of a meeting between BIA representatives and three individuals who are each identified as 'US Attorney.'"  "One issue here is that the attorney whose statements are memorialized . . . is not identified as an attorney for the agency."  "And the in camera review did not reveal that [the attorney] was offering an opinion based on information confidentially provided to him by the BIA; he appeared to be summarizing events of which he had personal knowledge."  "Defendant asserts that 'the Department of Justice is the legal representative of all of the United States . . . .'"  "But, as plaintiff notes, '[s]tatutes that provide that the Department of Justice can represent the BIA in litigation do not establish that the U.S. Attorneys were representing [particular BIA employees] in a legal capacity or providing privileged legal advice.'"  "Furthermore, it is not apparent from a review of the document itself that the U.S. Attorney was providing the agency with advice or guidance."  The court orders that "[d]efendant must either disclose the redacted sentences or supply a more detailed description . . . ."
  
  In the Briefing Report, "[t]he agency argues that the redacted sentence under 'Recent Significant Events' on page one was properly withheld pursuant to the deliberative process privilege."  "But this sentence is simply part of the factual recitation contained in the rest of the paragraph."  "While it conveys reported information that has not been independently verified, there is nothing deliberative about it and it is untethered to any discernible decision-making process."  "Also, the agency failed to identify a foreseeable harm beyond reciting the logic of the exemption itself . . . ."  "The first sentence under 'District Office Response and Other Coordination' on page three must be produced for similar reasons."  "All of the text under the heading 'Legal and Jurisdictional Issues' on pages two and three was withheld pursuant to the attorney-client privilege."  "The Court's in camera review confirms that this section contains legal advice and analysis provided by the District Office, and that none of the withheld material is segregable."  "Moreover, the harm is apparent in that 'disclosure of privileged information is a harm in and of itself' when it comes to the attorney-client relationship."
  
  "Two of the paragraphs [in the Briefing Report] under the heading 'Recent Significant Events' on page one have been redacted entirely."  "The government's assertion that the Exemption 5 deliberative process privilege applies to this section falls flat because there is no deliberation within this section; as the heading implies, the information is a factual summary of recent events."  "While those recent events may be 'volatile,' as the government asserts, [] that circumstance does not bear on the determination of whether the writing is deliberative and predecisional."
   
• Exemption 7, Threshold:  "The Briefing Report bears the admonition on every page: 'This report is the property of the BIA-OJS. . . ."  "The BIA Office of Justice Services is a law enforcement agency; it has jurisdiction over crimes committed within Indian Country."  "Moreover, the events described in the Briefing Report involve law enforcement, and the document as a whole was generated with that function in mind."
   
• Exemption 7(C):  In the Briefing Report "Recent Significant Events" section, "[t]he first redacted paragraph describes a complaint from a third party who is a private individual."  "The Court's in camera review confirms that revealing the details of the complaint would put the complainant's identity at risk without advancing the public interest in any significant way."  "Because the description has to do with a private individual's report, not how the agency handled the report, and there are no indications that the agency engaged in illegal conduct, the risk to the complainant outweighs the minimal benefit to the public interest."  "So the agency is permitted to redact much of this paragraph under Exemption 7(C)."
   
• Exemption 7(D):  In the Briefing Report "Recent Significant Events" section, "[t]he second redacted paragraph does not implicate the identity of private parties, but according to the agency's declarant, it recounts information provided by state and local law enforcement partners on a confidential basis."  "Here, the agency provided the declaration of the investigator with personal knowledge of express assurances he had provided, and it goes on to detail the steps taken to ensure the confidentiality of the information he gathered."  "Furthermore, in camera review confirms that there is no segregable material in this paragraph, as producing the information would reveal the source of the information."  "Therefore, this paragraph was properly withheld, as there is no balancing under Exemption 7(D)."
  
  "The agency [also] withheld all but the first sentence of the section of the [Briefing Report] entitled 'District Office Response and Other Coordination' under Exemption 7(D), and the declarant has averred that the information was provided by a confidential source to law enforcement."  "Almost every sentence in this withheld section directly reports what a confidential source stated to the author of the report."  "The Court has already concluded that (1) this document was prepared for law enforcement purposes; and (2) there was an express grant of confidentiality in this case . . . ."  As to segregability, "the declarant has established that the information is inextricably tied to the source's identity, and the Court's in camera review confirms that, with the exception of the third paragraph, . . . there is nothing that can be segregated."