Colo. Wild Pub. Lands v. U.S. Forest Serv., No. 21-2802, 2023 WL 5846678 (D.D.C. Sept. 11, 2023) (Cooper, J.)

Colo. Wild Pub. Lands v. U.S. Forest Serv., No. 21-2802, 2023 WL 5846678 (D.D.C. Sept. 11, 2023) (Cooper, J.)

Re:  Request for records concerning agency’s evaluation of a proposed land exchange in San Juan National Forest, including third-party appraisals of the relevant parcels

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting plaintiff’s cross-motion for summary judgment

• Exemption 5, “Inter-Agency or Intra-Agency” Threshold Requirement:  The court holds that, “[s]tarting with the fact that a private appraiser prepared the draft appraisals, the so-called consultant-corollary doctrine ‘extends [Exemption 5] to communications between Government agencies and outside consultants hired by them’ so long as ‘the consultant does not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it.’”  “Here, the Forest Service hired the appraiser to perform appraisal services in connection with the Valle Seco land exchange, and nothing in the record suggests that this neutral appraiser represented the interests of any party other than the Forest Service.”  “Although [plaintiff] notes that outside parties are listed as ‘intended users’ of the appraiser’s work product, the Service is the only listed client.”  “Accordingly, there does not appear to be a genuine dispute over whether the appraiser acted as a disinterested, expert consultant and thereby falls under the Service's ambit for FOIA purposes.”

• Exemption 5, “Inter-Agency or Intra-Agency” Threshold Requirement:  The court begins with plaintiff’s general objection, and finds that “[plaintiff’s] assertion that the Forest Service shared the withheld documents with outside parties is also unsupported.”  “To be sure, it is undisputed that the Forest Service shared some materials with the Western Land Group and other proponents of the land exchange.”  “But there is no evidence in the record that the Service ever shared the portions of the draft appraisals that it is currently withholding with any outside entity.”  “If anything, the record suggests the opposite.”  “The appraiser’s Statement of Work specifies that ‘[t]he appraiser may provide information about the assignment, appraisals results, or portions thereof only to the Senior Review Appraiser’ and that final ‘[a]ppraisals may only be distributed to the intended users after the technical review is completed.’”  “[Defendant] also averred the draft appraisals ‘were never shared beyond the Forest Service,’ . . . and this declaration is accorded a presumption of good faith . . . .”  “Ultimately, [plaintiff] bore the ‘burden of producing at least some evidence that the deliberative process privilege has been waived,’ but it provides no concrete evidence that these draft appraisals were divulged.”

• Exemption 5, Deliberative Process Privilege:  “To recap, [the court relates that] the Forest Service is currently withholding three pieces of information that appeared in draft appraisals and were all removed before the appraisals were finalized:  (1) analysis based on legal and factual assumptions that later were determined to be inapplicable to the land at issue; (2) an inaccurate figure for the combined acreage for the privately owned lands in the exchange; and (3) the names of private persons not involved in the exchange whose names were included in draft appraisals due to a miscommunication.”  “It is undisputed that these records were predecisional because they all appear in draft appraisals that were prepared in advance of the Forest Service’s decision to proceed with the Valle Seco land exchange.”  “The key question is whether they are also deliberative.”  “For the latter two pieces of withheld information, the answer is clearly no.”  “The names of private individuals in no way reflect ‘advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’”  “These names do not ‘bear on the formulation or exercise of agency policy-oriented judgment.’”  “They are instead simple facts that fall outside the scope of Exemption 5, even if the names appear in a ‘draft’ appraisal, because they do not reflect the give-and-take of the deliberative process.”  “The erroneous useable-acreage figure for the private parcels similarly appears to be purely factual (albeit inaccurate) information, and the Forest Service has not indicated that these estimates reflect a ‘complex set of judgments’ that would trigger the deliberative process privilege’s protections.”  “The first piece of withheld information – the appraiser’s analysis in a draft appraisal that was based on incorrect factual and legal assumptions – presents a much closer question.”  “[Defendant’s] declaration states that the ‘draft [a]ppraisals contained analysis that assumed that conveyance of certain parcels would not be subject to certain administrative requirements under Colorado law’ but that the ‘Forest Service subsequently determined that these requirements did apply to the parcels at issue.’”  “It further explains that the ‘draft [a]ppraisals also calculated the usable acreage of certain parcels to the Forest Service specifically, which differed from what the usable acreage would be to another purchaser given the Forest Service’s ownership of abutting parcels.’”  “From these statements, which constitute the entire extent of the Forest Service’s description of the withheld material, the Court is not entirely confident that all withheld material reflects the give-and-take of the deliberative process.”  “The word ‘analysis’ suggests the appraiser may have conducted a complicated estimation of the land value based on a flawed understanding of state law, which very likely would fall under the deliberative process privilege.”  “However, the declaration fails to explain what the relevant law was, how it affected the calculations, and what analysis is currently being withheld.”  “It also provides no detail on how the appraiser tabulated the useable acreage, leaving open the possibility that this error resulted from a mere mistake of fact rather than faulty analysis.”  “Perhaps it was a bit of both, in which case the Service must segregate and release all non-deliberative material.”  “But the Court is left guessing, and certainty (or close to it) is required when awarding summary judgment.”

• Exemption 5, Foreseeable Harms and Other Considerations:  The court holds that “[e]ven if the Court were to determine that this material is deliberative, that finding would not end the inquiry because the FOIA Improvement Act of 2016 adds an additional requirement:  foreseeable harm.”  “In its motion for summary judgment, the Forest Service failed to show that the release of any of the above material withheld under Exemption 5 would cause reasonably foreseeable harm.”  “Because it is plainly obvious that releasing the redacted names would not harm any deliberative processes, the Court focuses on the other withheld records – the incorrect acreage figures and the inaccurate analysis based on mistaken assumptions about Colorado law.”  “The Service makes two sets of arguments for why release of these records would cause harm, but neither carries the day.”  “For starters, the original [defendant] declaration asserts that ‘[r]eleasing this information would undermine the Forest Service’s ability to prepare complete, accurate, and high-quality [a]ppraisals, which are necessary to effectuate land exchanges, by chilling the open and candid identification, discussion, and correction of factual and analytical errors in draft [a]ppraisals.’”  “But this sort of ‘boilerplate’ and ‘generic’ assertion of a chilling effect is insufficient to satisfy the meaningful burden of providing a ‘concrete demonstration of why disclosure of the particular type of material at issue will . . . actually impede [the Service’s] deliberations going forward.’”  “There is no reason to believe that revealing this information would prevent the free flow of ideas within the Service or thwart the agency from producing ‘accurate’ and ‘high-quality’ appraisals given that these records do not appear to contain any policy proposals or recommendations.”  “They are simply inaccuracies, and disclosing these errors may improve (rather than stymie) the appraisal process.”  “Perhaps sensing the weakness in its generic chilling effect argument, the Forest Service attempts to supplement its reasoning in its reply brief by submitting a second declaration from [defendant] detailing an alternative, winding path through which disclosing these errors could harm the Service’s internal appraisal processes.”  “This theory does not rise to the level of reasonably foreseeable harm.”  “First of all, these background conditions have little if anything to do with the challenged withholdings here and are otherwise unpersuasive.”  “If some appraisers fear the release of their proprietary information, which is not included in the redacted records and is separately protected under Exemption 4, those fears will remain regardless of the outcome in this case.”  “It is also hard to fathom how the fact that the Service owns four-fifths the acreage of the BLM [Bureau of Land Management] matters given that both entities are among the largest landowners in America and major sources of potential appraisal business.”  “To the extent the core argument is that releasing these mistakes will embarrass the appraiser and scare off future partnerships, color the Court skeptical.”  “In addition to interfering with the agency’s internal appraisal process, the Forest Service also contends that disclosing this information possibly could sow confusion among the public.”  “[S]uch conjecture about the possibility of confusion is insufficient to show harm.”  “The Court therefore concludes that the Forest Service has not shown that the release of any of the withheld material would cause reasonably foreseeable harm because its worries over its effect on the appraisal process appear overblown and its concerns over public confusion are speculative at best.”  “In addition to its failure to demonstrate that much (if any) of the withheld material is deliberative, this failure to show foreseeable harm is a sufficient reason to deny the Service's motion for summary judgment with respect to its applications of Exemption 5.”

• Exemption 6; Waiver and Discretionary Disclosure, Waiver:  “[T]he Court will grant the Service’s motion for summary judgment on its Exemption 6 redactions except for any withholdings of realtors’ business contact information.”  “The first piece of information that the Forest Service is withholding under Exemption 6 is a Service employee’s work cell phone number that appeared in the appraisals.”  “The Forest Service explains that it ‘has released the employee’s office phone number and email address, which are the proper points of contact for members of the public,’ but believes that releasing the employee’s cell phone number would unnecessarily intrude upon the employee’s privacy ‘given that Forest Service employees generally are expected to carry their work cell phone[s] . . . on their persons outside of the office and normal work hours.’”  “The Court agrees (and wonders why COWPL would persist in objecting to this withholding).”  “As courts in this district have recognized, ‘[c]ell phone numbers implicate a different privacy interest from landline office phone numbers because employees carry cell phones with them outside the office and regular work hours.’”  “‘Disclosing the numbers of work cell phones, which employees maintain in their homes and on their person, could subject them to the type of harassment exemption 6 was designed to prevent.’”  “The Court accordingly concludes that the cell phone number here implicates a substantial privacy interest.”  “On the other side of the ledger, there is limited public interest in disclosing the cell phone number because the public can readily contact the official by emailing him or dialing his landline.”  “The balance of interests is thus lopsided against disclosure.”
  
  “The second tidbits that the Service has redacted under Exemption 6 consists of the cell phone numbers and an email address of private citizens who were involved in recent sales of comparable parcels of land but not connected to the land exchange itself.”  “The Forest Service notes that it has already disclosed these private citizens’ names but insists that releasing their contact information risks subjecting them to annoying or harassing calls or ‘unwanted contact from realtors, marketers, and other solicitors based on these individuals’ recent real estate transactions’ without ‘providing any additional insight or information about the proposed land exchange.’”  “The Court agrees to the extent the redactions involve the truly private contact information of citizens who bought comparable property in the surrounding area.”  “For this class of individuals, it is well-accepted that their private contact information implicates a substantial privacy interest.”  “Meanwhile, [plaintiff] has advanced no real argument for why disclosing these citizens’ contact information will shed any light on the Forest Service’s operations.”  “The Court therefore ‘need not linger over the balance’ because ‘something, even a modest privacy interest, outweighs nothing every time.’”  “But as [plaintiff] contends, . . . the Forest Service papers over some key facts when suggesting that the records withheld under Exemption 6 consist solely of the contact information of individuals who recently bought nearby properties . . . .”  “[Plaintiff] notes in its opposition – and the Forest Service acknowledges in its reply – that some of the material withheld under Exemption 6 consists of contact information for real estate agents who marketed and sold comparable parcels to those included in the land exchange.”  “[Plaintiff] contends it is disingenuous to say that disclosure of realtors’ contact information would risk unwanted intrusions and solicitations when ‘realtors regularly publish their contact information and market their services to the public to generate business, including publicizing sales of the parcels at issue in this exchange.’”  “This reasonable claim that realtors publicly advertise their business contact information changes the calculus here because courts have held that, unlike privately held phone numbers and email addresses, ‘[p]ublicly available’ contact information does ‘not implicate a privacy interest protected by Exemption 6.’”  “The Court therefore does not even get to the balancing stage because the Forest Service fails to clear the initial threshold of showing a substantial privacy interest.”
  
  “As a final note, [plaintiff] asserts the Forest Service waived its right to Exemption 6 for any of the redacted records when it shared its materials with outside groups.”  “But it once more fails to point to concrete evidence in the record that shows this specific information was shared with third parties.”  “More importantly, unlike the deliberative process privilege, the private privacy interests protected under Exemption 6 are not waived through selective disclosure.”
   
• Litigation Considerations, Pattern-or-Practice Claims:  The court relates that “[t]urning to the cross motion, [plaintiff] contends that the Forest Service has an unlawful policy and practice of withholding land exchange records until after the Service has officially approved of the documents and finalized the land exchange, even though it often provides this information to third-party proponents of these exchanges.”  “The Forest Service mounts two defenses in response.”  “First, the Service contends that [plaintiff] did not raise a policy-or-practice claim in its complaint so the Court cannot entertain it at summary judgment.”  “Second, it argues that any such claim is now moot because the Forest Service has vitiated the policy that [plaintiff] challenges.”  “Both defenses fail.”  “[Plaintiff] adequately alleged a policy-or-practice claim, and that claim is not mooted by the Service’s voluntary cessation because the Service cannot show that its intervening actions ‘completely or irrevocably eradicated the effects of the alleged violation’ and that there is ‘no reasonable expectation that the alleged violation will recur.’”  The court explains that “[defendant’s] declaration makes clear the challenged policies have not yet been revised and remain a part of the Forest Service Manual.”  “The Service is thus asking the Court to ignore the agency’s rule on the books and take [defendant’s declarant’s] conflicting word[, that she “‘instructed the FOIA Coordinators’ at a meeting in Washington in March 2022 that, ‘effective immediately, the Forest Service will no longer withhold appraisals approved for agency use, or portions thereof, and related materials under Exemption 5 based on the deliberative process privilege,’”] for it because no higher ups at the agency have contradicted her.”  “The Court credits the Service’s ongoing efforts to bring its policies in line wit[h] FOIA.”  “But the proper manner to change the Service’s policies is by revising its Manual.”  “The Service may be in the process of rewriting the Manual’s challenged rules, but this case is not moot until suitable revisions are actually enacted.”  Additionally, “while the Court has no reason to question [defendant’s] description of her instructions to the Service’s FOIA staff, the record casts serious doubt on their effectiveness.”  “Forest Service officials appear to have continued to withhold requested records from [plaintiff].”  “Finally, even if [defendant’s declarant’s] statement somehow amended the Forest Service’s policies, it would still not bring the Service into compliance with FOIA because [defendant’s] directive reiterates the Manual’s requirement that officials withhold valuation documents until they are ‘approved for agency use.’”  “But there is no blanket FOIA exemption for draft materials that have not been approved by the agency, and the Service cannot layer additional restrictions on top of the law."
  
  “Advancing past these two defenses, the Forest Service lets its guard down by failing to defend its still existing policies, and any effort to do so would be futile because these policies clearly conflict with FOIA.”  “The Court will thus grant [plaintiff’s] cross motion and its request for a declaratory judgment.”
   
• Litigation Considerations, Special Counsel Provision:  “As to the remedy, [plaintiff] primarily seeks declaratory relief stating that the challenged policies violate FOIA, which the Court has provided through this decision.”  “[Plaintiff] also asks this Court to refer the matter to a Special Counsel under 5 U.S.C. § 552(a)(4)(F) for additional investigation and recommendations to remedy the Forest Service’s violations.”  “The Court does not believe such referral is appropriate in this case because it is confident that the Forest Service will act to bring its policies into compliance with FOIA, as interpreted in this opinion.”