Our Children's Earth Found. v. Nat'l Marine Fisheries Serv., No. 14-4365, 2015 WL 4452136 (N.D. Cal. July 20, 2015) (Conti, J.)

Our Children's Earth Found. v. Nat'l Marine Fisheries Serv., No. 14-4365, 2015 WL 4452136 (N.D. Cal. July 20, 2015) (Conti, J.)

Re: Request for records concerning an endangered fish and a dam and associated water system

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 "[defendant's] declaration is insufficient to establish the adequacy of the Fisheries Service's search as to either challenged request."  The court explains that "while [defendant] provides examples of 'relevant project folders,' 'relevant key word searches,' and individuals involved in 'relevant email discussions,' he does not 'specify who at the [North–Central Coast Office] searched the . . . files' aside from referring simply to 'staff.'"  Also, "it is not clear whether [defendant's] parenthetical examples include all the search terms utilized or are merely meant to be illustrative."  Additionally, "[defendant] does not 'explain in reasonable detail . . . what process or procedure was utilized that [led] to the selection of those particular' folders, files, or email discussions."  "Finally, [defendant's] declaration suggests that 'he is simply relaying hearsay' regarding the search because, by his description, 'the staff at the [North–Central Coast Office]' conducted the search."  "Because the Court lacks sufficient basis to conclude the Fisheries Service conducted an adequate search, the Court orders the Fisheries Service to supplement the factual record."
   
• Exemption 5, Deliberative Process Privilege:  "[T]he Court finds the Fisheries Service has adequately justified its withholdings of all but one of the draft biological opinions."  "The Court finds all the documents potentially covered by the attorney-client privilege are covered by the deliberative process privilege, and therefore only discusses the deliberative process here."  The court relates that "the withheld records are 'working drafts subject to revision' for a biological opinion that was being prepared for release (and eventually were), and reflect, among other things, deliberations between National Oceanic and Atmospheric Administration staff and scientists about how to proceed with the biological opinion."  The court finds that "the drafts sought reflect the interpretations of that scientific information by staff and scientists, thus reflecting their personal opinions on the science."  However, "the Court finds Fisheries Service did not adequately justify its withholding" of one e-mail because "the Fisheries Service's mere consideration of whether to issue a revised biological opinion sufficient to show the deliberative nature of the document."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "[t]he Fisheries Service has also fallen short of its burden as to the segregability [of the documents withheld under Exemption 5]."  "Although the Fisheries Service properly withheld some of these documents [under Exemption 5]as discussed, it did so in full while providing a declaration that merely gave a blanket statement" on segregability.
   
• Exemption 7(C):  "The Court . . . finds that the Fisheries Service's redaction of the names in [a] report was justified."  The court finds that "'identifying information such as names, addresses, and other personal information falls within the ambit of privacy concerns under FOIA.'"  The court also rejects plaintiff's argument that "employees were being directed not to assist with the investigation" and finds that plaintiff's contentions do not "'warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.'"
   
• Litigation Considerations, Relief:  "[T]he Court finds that declaratory judgment should issue that the Fisheries Service violated the FOIA's statutory timelines."  The court finds 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."  "[H]owever, the Court declines to enter declaratory judgment against the Corps."  "[T]here is no allegation that the Corps repeatedly violated the FOIA's time limits with respect to Plaintiffs' requests."  "Furthermore, the Corps is not named as a defendant in the related case."

Regarding plaintiff's claim concerning cutoff dates, "the Court orders the Fisheries Service to supplement the record . . . to provide additional evidence regarding the date(s) that searches actually began vice the date that searches were merely tasked."  The court finds that the parties are not engaged in a "legal dispute, . . . [but rather] a factual one."  "Here, from the evidence presented, the Court can see a reasonable finder of fact being able to conclude that it is more likely than not that the search started the day the task was assigned to staff or—in light of the timeline, other substantive responsibilities, and limited staff available—that it is more likely than not that the date of tasking was some unspecified number of days prior to the date the agency actually began its search."

Regarding plaintiff's claim concerning referrals, "the Court . . . finds declaratory judgment against FWS would be inappropriate under the circumstances in this case."  The court finds that "there is no allegation that FWS repeatedly violated the FOIA's time limits with respect to Plaintiffs' requests."