Kleinert v. BLM, No. 14-1506, 2015 WL 5675792 (D.D.C. Sept. 25, 2015) (Bates, J.)

Kleinert v. BLM, No. 14-1506, 2015 WL 5675792 (D.D.C. Sept. 25, 2015) (Bates, J.)

Re: Request for records concerning plaintiff

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, Adequacy of Search:  The court holds that "[s]ummary judgment is not in order here."  The court finds that it appears that "BLM . . . conducted its search using only the wrong spelling [of plaintiff's name], [and therefore] the search was inadequate."  The court notes that "[a]t the hearing on these motions, counsel for BLM asserted that the agency had in fact used the proper spelling in conducting its search."  "While the Court presumes that counsel is correct, this information must be presented in an affidavit from the relevant BLM employee."  "Even setting the spelling issue aside, BLM’s description leaves the Court unsure of the search’s reasonableness."  "Confidence in BLM’s search is further undermined by 'the fact that the record itself reveals positive indications of overlooked materials[.]'"  "The Court will . . . permit BLM to provide a supplemental description of its search to rectify [the] shortcomings." 
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "BLM fails to show that its invocation of the deliberative process privilege is justified."  The court finds that  "[defendant's] vague and general description[s], standing alone, [are] insufficient to justify the redactions."  "'[T]o approve exemption of a document as predecisional, a court must be able to pinpoint an agency decision or policy to which the document contributed.'"  "The Court cannot do so here."  "Nor can it tell whether the redacted material is truly 'deliberative.'"  "BLM’s meager explanation of its application of Exemption 5 precludes the Court from granting it summary judgment."  "But, here again, the Court is not prepared to grant summary judgment to [plaintiff] either."  "Instead, the Court will require BLM to provide a supplemental affidavit or Vaughn index that explains—in detail, and on a document-by-document basis—why Exemption 5 applies."
   
• Exemptions 7, Threshold:  The court holds that "BLM’s reliance on Exemption 7(C) for the most part falters at the first step because BLM has not convinced the Court that the bulk of the redacted records were 'compiled for law enforcement purposes.'"  The court finds that "[a]mong the redacted records [plaintiff] has challenged, the Court can at present identify with confidence only one that was compiled for law enforcement purposes."  "For all other disputed records, BLM has not yet met its burden with respect to this first step."  "If BLM wishes to continue to rely on Exemption 7(C) to justify the redactions in those records, it must provide further—and significantly more detailed—explanation about their relationship to law enforcement efforts."
   
• Exemption 7(C):  With respect to the one document compiled for law enforcement purposes, the court finds that some information was appropriately redacted and some information was not.  The court first considers the "names and titles" of "BLM employees who signed non-confidential official documents that happened to be reviewed and summarized years later by investigators examining tangentially related events" and finds that "[t]he risk of harassment, embarrassment, or reputational damage here—if not absent entirely—seems about as close to nil as it could get."  "Given that the privacy interests here are truly de minimis, the balancing favors disclosure."  "[Plaintiff] has articulated a significant public interest behind his FOIA request: determining whether BLM is unfairly restricting his ability to film on public lands because of his views."  The court then considers the identities of private individuals and finds that "[w]hile these redactions might not seem terribly different from those just discussed, different rules apply to the identities of private individuals."  "Indeed, the names of private individuals in law enforcement records are categorically exempt from disclosure except where necessary 'to confirm or refute compelling evidence that the agency is engaged in illegal activity.'"  The court finds that "[t]here is no compelling evidence of illegal activity here, let alone reason to think that disclosing these individuals' names would confirm or refute such activity."  With regard to these names, the court also finds that "the fact that [plaintiff] can deduce what lies behind the redactions does not eliminate the privacy interest at stake."  However, the court does find that defendant "correctly points out that the underlying declarations are publicly available court filings, and he identifies the relevant court and case number."  "And the declarations disclose all of the information that BLM has redacted from the investigation report."  "[Plaintiff] has thus shown that 'the specific information sought [has] already been disclosed and preserved in a permanent public record.'"
   
• Exemption 6:  The court holds that "BLM has failed to carry its burden of showing that Exemption 6 applies to the redactions [plaintiff] has challenged."  The court relates that "[t]he large majority of those redactions serve to obscure names and contact information, such as email addresses—some belonging to BLM employees, some to [plaintiff's] attorney, and some to other individuals."  The court rejects defendant's justification and finds that “[t]he disclosure of names and addresses is not inherently and always a significant threat to the privacy of those listed; whether it is a significant or a de minimis threat depends upon the characteristic(s) revealed ... and the consequences likely to ensue.'"  "[T]he Court will certainly not accept the suggestion that the remote possibility of harassment means that every disclosure of a name implicates a significant privacy interest."  The court finds that "[t]he absence of such a per se rule is fatal to BLM’s invocation of Exemption 6, for the agency has failed to explain with meaningful specificity why releasing the challenged information would significantly threaten anyone’s privacy."  "Since the Court is already giving BLM another opportunity to address the scope of the search and to explain whether the challenged records come within the ambit of Exemption 7(C), it will also allow BLM to offer a further defense of its use of Exemption 6—one that gives a non-conclusory account of the specific privacy interests allegedly at stake."