Our Children's Earth Found. v. Nat'l Marine Fisheries Serv., No. 14-4365, 2015 WL 6331268 (N.D. Cal. Oct. 21, 2015) (Conti, J.)

Our Children's Earth Found. v. Nat'l Marine Fisheries Serv., No. 14-4365, 2015 WL 6331268 (N.D. Cal. Oct. 21, 2015) (Conti, J.)

Re: Request for records concerning certain endangered fish

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

• Litigation Considerations, Adequacy of Search:  The court finds that defendant has "demonstrate[d] 'beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant documents.'"  The court specifically finds that defendant "remedied all of [the court's previous] concerns."  "[Defendant] specified by name and position who searched, provided precise search terms that appear to the Court to be properly tailored for the relevant FOIA requests, and . . . explained in detail how [it] determined which folders, files, and emails were selected."  Additionally, "[t]he Court finds that the affidavits submitted are from the supervisor in charge of coordinating the search efforts . . . or person responsible for (portions of) the search . . . and thus overrules [plaintiff's hearsay] objection."

• Exemption 5, Deliberative Process Privilege:  The court holds that "Exemption (b)(5) does apply."  "[T]he Court can now reasonably deduce that the document could 'reveal the mental processes of decisionmakers' or be 'tantamount to the publication of the evaluation and analysis of the multitudinous facts conducted by the agency....'"  "While perhaps not directly meant to assist decisionmakers arrive at a decision, it is clear the author meant to educate a more senior member of the office on whether and why to request a (perhaps higher-up) decisionmaker arrive at a specific decision."  "The fact that 'the contents of the draft chart and the employee’s summary contain a number of mistakes and misinterpretations such that release...would lead to public confusion' reinforces that this document shows an internal debate, to include a mistaken personal opinion, exposure of which would 'discourage candid discussion within the agency.'"  Additionally, "[f]or the same reasons cited with respect to the first issue, above, the Court rejects Plaintiffs’ hearsay argument regarding the declarations."

• Litigation Considerations, "Reasonably Segregable" Requirements:  The court finds that "the declarations are not ideal but the disclosures and cited exceptions show enough good faith that the Court should accept the agency’s explanations at face value."  The court explains that "the supplemental Vaughn index provides an explanation for each document and cites to the specific FOIA exemption that applies."  For the most part, "[a]ccepting the agency’s explanations at face value, the Court finds that here the 'factual material is so interwoven with the deliberative material' that it is not segregable."  However, the court also finds that "while communications are privileged and attorney work product is privileged, an otherwise unprivileged document does not gain any protections simply because it was sent to a lawyer for review."  The court therefore orders defendant "to produce those portions of the ledger which are not directly privileged or provide an explanation why the ledger is also exempted."

• Litigation Considerations, Pattern and Practice Claim:  "[T]he Court . . . grants declaratory relief and states: (1) that the Fisheries Service has previously been engaged in a pattern-and-practice of failure to meet FOIA deadlines; (2) that the Fisheries Service has previously provided responses that were frequently and unreasonably delayed; (3) that due to these delays the Fisheries Service effectively provided no ability to FOIA requestors to anticipate when data might be provided; and (4) that due to these delays information was often provided after a long enough period of time that the data could be out-of-date, effectively negating its value and effectuating a complete denial of information."  "The Court also grants a limited form of injunctive relief, and orders that . . . all final results of such searches be provided within 30 days of the date of this Order."  "Yet the Court is still sympathetic to the fact that the Fisheries Service continues to receive ongoing, complex FOIA responses, flooding it with administrative work which interferes with its primary duties" and, therefore, "the Court exercises its discretion to deny without prejudice any further injunctive relief at this time."