Nat'l Parks Conservation Ass'n v. U.S. Dep't of the Navy, No. 19-645, 2021 WL 1192443 (W.D. Wash. Mar. 30, 2021) (Zilly, J.)

Nat'l Parks Conservation Ass'n v. U.S. Dep't of the Navy, No. 19-645, 2021 WL 1192443 (W.D. Wash. Mar. 30, 2021) (Zilly, J.)

Re:  Requests for records, specifically impact assessment, concerning certain naval training exercises

Disposition:  Denying plaintiff's motion for reconsideration of court's grant in part of defendant's motion for summary judgment and denial in part of plaintiff's motion for summary judgment; deferring portions of parties' motions for summary judgment

• Exemption 3:  The court holds that "Plaintiff has provided no basis for the Court to reconsider deferring a ruling on whether the Navy has properly withheld materials under FOIA Exemption 3."  The court relates that "Plaintiff's motion for reconsideration . . . relates to a different set of documents, namely 61 that were withheld and 16 that were redacted pursuant to a [Department of Defense critical infrastructure security information ("DCRIT")] determination made in 2017 with respect to military aircraft flight data . . . ."  "As the Navy has now explained, even if it was not permitted to rely on a previous DCRIT determination, the remedy would not be the compelled disclosure of the documents to plaintiff, but rather allowing the Navy to seek another, essentially redundant, DCRIT determination."
  
  Separately, the court finds that "[w]ith regard to the 46 records for which the Navy is awaiting a DCRIT determination, the pending cross-motions for summary judgment are further deferred."
   
• Exemption 6:  The court holds that "plaintiff's request for reconsideration on the subject is denied."  Regarding plaintiff's argument concerning "the Navy's redaction of the name of the Mayor of the City of Port Townsend, which was 'never private in the first place[,]'" the court notes that "[t]he email at issue leaves intact the position of the sender (Mayor), as well as the date of the correspondence . . . ."  The court finds that "plaintiff was provided sufficient information from which it could determine the name of the individual involved."  "This example does not undermine the principle pursuant to which the Navy has withheld the identities and email addresses of low-ranking personnel of other agencies, the application of which was approved in the Court's earlier Order."
   
• Exemption 5, Attorney-Client Privilege:  "[T]he Court concludes, as a matter of law, that the Navy has met the requirements for asserting attorney-client privilege and FOIA Exemption 5 to redact certain portions of the emails at issue."  The court reviews plaintiff's argument "that the words 'input,' 'guidance,' 'comments,' and 'advice,' which were used in the Vaughn Indices and the Navy's supporting declaration to describe the services being rendered by the JAGs, do not themselves connote 'legal advice.'"  The court finds that "a lawyer's 'input,' 'guidance,' 'comments,' and 'advice,' if premised on confidential information from a client, are privileged."
  
  Separately, the court finds it unnecessary to conduct an in camera inspection of certain documents following "the Navy . . . indicat[ing] that the record at issue consists of a series of emails between Navy JAGs and their clients discussing proposed responses to requests for information made by [the governor of Washington state] during a meeting with [the] Deputy Assistant Secretary of the Navy, Environment."  "Although the Navy previously indicated that these emails were withheld under Exemption 6 . . . the Navy now asserts attorney-client privilege with respect to these materials."
   
• Procedural Requirements, Responding to FOIA Requests:  The court holds that "[t]o the extent that the reports were submitted by [a private citizen] to the United States Forest Service in redacted form, plaintiff makes no showing that the Navy was required to search for and disclose the reports in unredacted form."
   
• Litigation Considerations, Pattern-or-Practice Claims:  The court finds that, "[a]s the Navy aptly responded, plaintiff never pleaded a 'pattern and practice' claim . . . and thus, plaintiff is not entitled to the proposed relief."  "Moreover, plaintiff has not made the requisite showing that the Navy's alleged policy or practice will impair plaintiff's 'lawful access to information in the future.'"  "At most, plaintiff has demonstrated some delay in receiving accurate figures concerning the number of records that have been properly redacted or withheld on the basis of one or more FOIA exemptions."  "Plaintiff fails to explain how this alleged violation of 5 U.S.C. § 552(a)(6)(F) will impact plaintiff's ability to obtain non-exempt documents through FOIA from the Navy in the future."