Forest Cnty. v. Zinke, No. 14-2201, 2017 WL 4402378 (D.D.C. Sept. 30, 2017) (Howell, C. J.)

Forest Cnty. v. Zinke, No. 14-2201, 2017 WL 4402378 (D.D.C. Sept. 30, 2017) (Howell, C. J.)

Re:  Ten requests for records concerning competitor tribe's unsuccessful application to open gaming establishment

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

• Litigation Considerations, Adequacy of Search:  In response to plaintiff's assertion "that the defendants' search was inadequate because the search . . . failed to locate two documents the plaintiff knew to exist[,]" the court finds that "defendants' suggestion that this issue is 'moot' is predicated on their assumption that the two documents . . . were actually produced, but the defendants have not shown that such production occurred."
   
• Procedural Requirements, Agency Records:  "[T]he Court finds that [a third party contractor's] internal records are not 'agency records' subject to the disclosure requirements of FOIA."  First, the court finds that "any internal documents created by [the contractor] in the course of serving as project manager were made on BIA's behalf as well. BIA thus exercised 'extensive supervision and control' over [the contractor's] 'collection and analysis of the data.'"  "As such, the defendants 'created or obtained' [the contractor's] internal records for purposes of FOIA's disclosure rules even though these records 'were neither created by agency employees, nor [we]re they currently located on agency property.'"  "That the defendants did not understand [the contractor's] internal records to be agency records . . . is immaterial – the objective nature of an agency-third party relationship, not the agency's subjective understanding of a document's status, controls whether an agency 'created or obtained' the document."  Second, regarding the control factors, the court finds that "the record does not show that [the contractor] intended to provide BIA other internal documents[,]" "defendants lacked the ability to use or dispose of internal [contractor] documents as they saw fit[,]" "the evidence shows that the defendants did not read or rely on internal [contractor] documents[,]" and "only documents sent to or received by the BIA – not internal [contractor] documents – were incorporated into the BIA's files."
   
• Exemption 4:  The court holds that defendant's use of Exemption 4 was proper, at least in part.  The court relates that "[a]ll parties agree 'that documents received from Menominee are "obtained from a person,"' . . . . and contest only whether the withheld documents (1) contain 'commercial' materials and are (2) 'confidential.'"  The court finds that "information relating to this project is commercial 'in its function,' as the [tribe has] 'a commercial interest at stake in its disclosure.'"  The court then finds that "[a] tribe's decision to apply for a license to operate an off-reservation casino is plainly voluntary, but then, having chosen to apply, the [tribe] committed themselves to complying with all information submission requirements that the law imposed."  "The documents at issue were submitted to the government as required by the gaming application process, and so were submitted involuntarily."  The court next finds that "the disclosure of the information in the six documents cannot be found to pose serious risk to the government's ability to obtain similar information in the future from the [tribe] or any other tribe seeking approval for off-reservation gaming."  The court explains that "regulations governing off-reservation gaming applications require submission of specific commercial or financial information . . . and failure to provide sufficiently specific, detailed, and relevant information would adversely affect any approval of a gaming application."  Finally, the court finds that "[t]he defendants have met their burden to show that the [tribe] face[s] actual competition with respect to gaming operations . . . and that production of the withheld documents likely would cause them substantial competitive harm."  However, the court finds that "defendants have not carried their burden to show that production of any part of the report would cause the [tribe] substantial competitive harm."  "The defendants must release all reasonably segregable information[.]"
   
• Litigation Considerations:  "Given [the] background and close examination of the plaintiff's specific complaints about delays in the defendants' responses, [the court finds that] the plaintiff has failed to establish a policy or practice of FOIA noncompliance."  The court explains that "[a]lthough the defendants missed many FOIA deadlines and in some cases failed to act altogether, the plaintiff must show that the defendants' delays were not due 'merely [to] isolated mistakes by agency officials' to establish a FOIA policy or practice claim."