Evans v. DOI, No. 12-466, 2015 WL 5692114 (N.D. Ind. Sept. 28, 2015) (Miller, Jr., J.)

Evans v. DOI, No. 12-466, 2015 WL 5692114 (N.D. Ind. Sept. 28, 2015) (Miller, Jr., J.)

Re: Request for records concerning Indiana Dunes National Lakeshore

Disposition: Granting in part and denying in part plaintiff's motions to strike; granting defendant's motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  "The court . . . grants in part and denies in part [plaintiff's] motion to strike the declaration of [the Lakeshore Chief Ranger]."  The court finds that "[the Lakeshore Chief Ranger's] statement that the contents of [a] Traffic SOP aren’t publicly known is a permissible inference based on his testimony that in his experience with the Park Service, the Traffic SOP has never been released to the public."  "[He] is also qualified to comment on whether the Park Service routinely releases these sorts of documents."  However, the court also finds that "[the Lakeshore Chief Ranger's] assessment of what members of the public could or might do with the information in the Traffic SOP are speculative."  "[T]he court [also] grants in part and denies in part [plaintiff's] motion to strike [the Chief of Administration and Business Services] declarations."  In response to plaintiff's arguments, the court finds that "[t]he inclusion of ['information furnished to me'] at the beginning of both declarations usually is improper, but doesn’t justify striking the declarations completely."  "Parts of the declarations indisputably refer to [the Chief of Administration and Business Services] own personal efforts in searching for records."  "It would be improper to strike such unquestionably competent and admissible testimony simply due to introductory boilerplate."  Additionally, the court finds that "[e]mployees frequently have multiple titles within an office or agency; that [the Chief of Administration and Business Services] is the Chief of Administration and Business Services for the Lakeshore in no way precludes her from also being the designated FOIA officer."  "That she identifies herself by different job titles in her two declarations provides no reason to toss out her testimony."  "That [the Chief of Administration and Business Services] had only been the FOIA officer for two and a half years at the time of her first declaration is also irrelevant."  The court also finds "[t]hat [the Chief of Administration and Business Services] inaccurately claimed some documents weren’t released publicly might be reason for a factfinder to question her credibility or assign her testimony less weight, but neither of those considerations undermines the admissibility of her declaration."  Additionally, the court finds "[t]hat [the Chief of Administration and Business Services] didn’t specifically name the staff members who helped in the searches doesn’t compel a conclusion (or even an inference) that she lacked personal knowledge of the searches."  The court also analyzes two other declarations where "[plaintiff's] arguments for striking [these] declarations are the same as her arguments for striking [the above described] declarations."

Regarding the inclusion of some testimony concerning general FOIA statistics and information related to plaintiff's FOIA activities, the court finds that "[t]he evidence of the Midwest Region’s general FOIA workload is relevant, given that [plaintiff] asks the court to find bad faith based on the Park Service’s delay in responding to her requests."  "[T]estimony about [plaintiff's] own history of FOIA requests is of more questionable relevance, but the fact that the agency has processed [plainitff's] requests in the past similarly has some arguable relevance to whether the Park Service’s responses to the requests in this suit was made in bad faith."  However, the court cautions that, "[a]s she herself states, making FOIA requests of a government agency is a citizen’s right under federal law."  "That she has exercised this right doesn’t reflect poorly on her such that the relevance of this fact is substantially outweighed by its unfair prejudice to her."

Generally, "[t]he court denies [plaintiff's] motion to strike the revised Vaughn index."  The court relates that "[plaintiff] essentially argues that the index is insufficient to carry the government’s burden on summary judgment, that the court should not credit it, and that the government wasn’t entitled to withhold the documents identified in it."  The court finds that "[t]he issue on a motion to strike is admissibility, and evidence isn’t made inadmissible by virtue of being inaccurate, untrustworthy, or noncompliant with a statutory requirement under FOIA."  The court later explains that "[a] Vaughn index is not a disclosure to requesters mandated by FOIA; it is an evidentiary tool by which the government seeks to justify its rationale for nondisclosure to the district court in a lawsuit."  "It is the agency’s rationales for nondisclosure themselves—not the index that lists them—that must be evaluated for compliance with FOIA."  "The Vaughn index summarizes and clarifies an agency’s reasoning, but it isn’t the only source from which the court can evaluate that reasoning."  "Declarations and affidavits from agency officials as well as the agency’s written responses to FOIA requests might adequately explain the agency’s reasons for nondisclosure even without a Vaughn index."  "Indeed, a Vaughn index isn’t automatically required, and courts can and do decline to require the government to provide one at all."

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that "[b]ecause [plaintiff] didn’t file this lawsuit until after the Park Service had issued an appealable final response to the three requests at issue, any claim she raises premised on the Park Service’s response to those requests must be dismissed for failure to exhaust administrative remedies."  The court explains that "[u]nder FOIA's statutory scheme, the Park Service’s failure to meet its obligations meant that [plaintiff] was entitled to immediately file suit once the statutory deadlines for a response had passed."  "But [plaintiff] didn’t file suit immediately after the agency’s nonresponse; she waited until a response came in, then filed suit without appealing it."  "While FOIA 'allows immediate recourse to the courts' after an agency doesn’t make a timely response, 'once the agency responds to the FOIA request, the requester must exhaust his administrative remedies before seeking judicial review.'"  "Once [plaintiff] allowed the Park Service to make a final response, she was obliged to appeal that response internally before filing suit."  The court also finds that "[plaintiff] cites no support for her contention that any later partial revision of an agency’s decision can revive claims that a requester hasn’t timely exhausted."
   
• Litigation Considerations, Adequacy of Search:  The court finds that defendant's search was adequate.  The court explains that "[defendant] identified the locations of the search, named the personnel involved, described where the missing email would most likely be found in light of the Park Service’s recordkeeping practices, and explained that the email wasn’t in those records."
   
• Exemption 5, Attorney-Client Privilege:  The court holds that "[t]he government’s Vaughn index and supporting affidavits are enough to carry the government’s burden of showing that the withheld material falls under Exemption 5."  The court finds that "[w]ith two exceptions, all of the documents [withheld under Exemption 5] are communications between the Park Service employees and representatives of either the U.S. Attorney’s Office or the Office of the Solicitor, and the Vaughn index states the ways in which all of these communications concern legal advice and none of them has been released to the public."  "Contrary to [plaintiff's] arguments, the Vaughn index isn’t vague or conclusory; it identifies the parties to each conversation and gives as detailed a description of the subject matter as can reasonably be expected given the circumstances."

• Exemption 5, Deliberative Process Privilege:  The court holds that "[t]he government’s Vaughn index and supporting affidavits are enough to carry the government’s burden of showing that the withheld material falls under Exemption 5."  The court finds that "[t]he descriptions . . . all identify the authors of the documents as Park Service staff, and the documents are intra-agency communications."  "They all describe the subject matter of the communications or documents at issue."  "And they all relate that the documents were authored by those without final decisionmaking authority and before the agency took final action on the relevant topic."

• Exemption 7(E):  The court holds that "[t]he Park Service’s redactions to the Traffic SOP were proper under Exemption 7(E)."  The court finds that "[a] memo informing Lakeshore officers which roads they have authority to issue citations on is a 'guideline' for FOIA purposes, and there’s no question that the material in the Traffic SOP was compiled for law enforcement investigation or prosecution purposes; the list tells officers where they can stop cars and issue tickets."  "The court agrees with the government that [disclosure] could [reasonably be expected to risk circumvention of the law]."  "If it became widely known which of the Lakeshore’s roads were outside the jurisdiction of park law enforcement, it would be reasonable to expect an increase in traffic offenses on those roads because motorists would know the chances of apprehension and punishment are lower."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "[b]ecause the government’s FOIA responses, Vaughn index, and supporting declarations show that all the redactions the Park Service made fell within one of FOIA's enumerated exemptions, the government is entitled to summary judgment."
   
• Litigation Considerations:  The court finds that "no injunction is warranted in this case because there is insufficient evidence to show that what [plaintiff] experienced was a Park Service pattern or practice of unreasonable delay rather than an isolated problem related to her requests specifically."  "[Plaintiff] hasn’t shown that requesters other than herself have experienced unreasonable delays, pointed to a formal policy adopted by the Park Service that violates the terms of the statute, or shown any other evidence that the Park Service’s treatment of her request was sufficiently uniform to be considered an unlawful policy or practice."