Our Children's Earth Found. v. Nat'l Marine Fisheries Serv., No. 14-1130, 2015 WL 1458156 (N.D. Cal. Mar. 30, 2015) (Conti, J.)
Re: Request for records concerning certain endangered fish
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
- Procedural Requirements, Searching for Responsive Records: The court holds that "the Fisheries Service's motion is denied as to the adequacy of the searches for the first and third requests and Plaintiffs' motion is granted as to the same." The court finds that, "[e]ven if [defendant's] declaration were sufficiently detailed, the Fisheries Service has not carried its burden of showing 'beyond a material doubt, and viewing the facts in the light most favorable to the requester, that it "has conducted a search reasonably calculated to uncover all relevant documents."'" The court notes that "[p]laintiffs point out . . . that the Fisheries Service's Office of Law Enforcement in Monterey, California had an open investigation . . . [and that] [d]ocuments from that investigation clearly fall within the scope of Plaintiffs' first and third FOIA requests." However, "it is undisputed that Plaintiffs' requests were not forwarded to the Office of Law Enforcement and no searches took place there." The court also finds, however, that "[b]ecause Plaintiffs do not challenge the adequacy of Defendants' second and fourth searches, both of which are supported by affidavits establishing the reasonability of the searches conducted, summary judgment is granted in favor of the defendants on those searches."
- Exemption 6: "The Court finds the record insufficient to decide whether the Fisheries Service's withholdings are appropriate under Exemption b(6)." The court finds that "the agency has failed to provide a particularized explanation of what non-trivial privacy interest would be implicated if these individuals' names and contact information are disclosed." "[T]here is no reason aside from speculation for concluding these individuals will be subjected to 'harassment,' 'embarrassment,' 'stigma,' or other negative consequences if their associations with this email are publicly revealed." "To be sure, there may well be some non-trivial privacy interest implicated here." "However the Court cannot conclude these documents are categorically protected merely because they contain names and contact information."
- Exemption 5, Deliberative Process and Attorney-Client Privileges: "[T]he Court orders the Fisheries Service to supplement the record . . . to provide sufficient explanations for the non-segregability of the records withheld in full under Exemption (b)(5) . . . , tailored explanations of whether the confidentiality of records withheld on attorney-client privilege grounds have been maintained, and a more detailed explanation of why [a certain] record . . . is protected by the attorney-client privilege." The court explains that "[t]he Fisheries Service has fallen well short of its burden as to segregability" and finds that "'a blanket declaration that all facts are so intertwined [as] to prevent disclosure under the FOIA does not constitute a sufficient explanation of non-segregability.'" The court finds that, "[f]or similar reasons, the Fisheries Service's justification for redactions and withholdings on attorney-client privilege grounds are also insufficient" because they "simply provid[e] a blanket conclusion that 'to the best of' [defendant's] knowledge the documents in the Vaughn index 'have not been disclosed outside the U.S. Government.'" Finally, the court finds that, "[a]s it stands now, the Fisheries Service has not shown by its description of the record that this attachment is likely to be protected by the attorney-client privilege" because "'[a]ttachments which do not, by their content, fall within the realm of the [attorney-client] privilege cannot become privileged by merely attaching them to a communication with the attorney.'"
- Litigation Considerations, Relief: The court holds that "[p]laintiffs' request for declaratory judgment that the Fisheries Service failed to respond to Plaintiffs' FOIA requests and internal appeals within the statutory time limits is granted." "The Court finds declaratory judgment is appropriate here." The court notes that "both the statutory deadlines and their violation are clear, and the repeated, routine violation of these deadlines by agencies has been a continual source of concern for Congress." The court finds that "under these and similar circumstances, where the agency has repeatedly and substantially violated the time limits, and it is possible the violations will recur with respect to the same requesters, declaratory judgment is appropriate." However, the court holds that "[p]laintiffs' request for declaratory judgment against the Fish and Wildlife Service [(FWS)] is denied." "[R]egardless of whether the referral is governed by the general provision that no notice citing unusual circumstances 'shall specify a date that would result in an extension for more than ten working days ...,' . . . or the specific term that agency consultations shall be conducted with 'all practicable speed,' declaratory judgment against FWS would be inappropriate under these circumstances." The court finds that "[u]nlike the Fisheries Service, there is no allegation that FWS repeatedly violated the FOIA's time limits with respect to Plaintiffs' requests."