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Rocky Mountain Wild, Inc. v. BLM, No. 17-00636, 2020 WL 1939805 (D. Colo. Apr. 22, 2020) (Brimmer, J.)

Date

Rocky Mountain Wild, Inc. v. BLM, No. 17-00636, 2020 WL 1939805 (D. Colo. Apr. 22, 2020) (Brimmer, J.)

Re:  Request for records concerning National Environmental Policy Act ("NEPA") process, Mineral Leasing Act compliance, communications, and analysis related to lease of certain land parcels

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for summary judgment or in the alternative motion for discovery

  • Litigation Considerations, Discovery:  "The Court finds that plaintiff has failed to substantiate its request for discovery."  The court explains that "an agency is not required to submit a declaration from a person directly involved in a FOIA search to sustain its burden on summary judgment."  "And plaintiff has not otherwise shown – by affidavit, declaration, or any other means – that, 'for specified reasons, it cannot present facts essential to justify its opposition.'"
     
  • Litigation Considerations, Vaughn Index/Declaration:  First, the court holds that "[defendants' declarant's] supplemental declaration states that the information contained therein 'was obtained through the course and scope of [his] official duties as Acting FOIA Officer, including [his] review of official records, [his] knowledge of BLM Colorado State Office's FOIA processes and procedures, and [his] access to the individuals directly involved in the search.'"  "[T]he Court finds Rule 56's personal knowledge requirement satisfied."  Second, the court finds that "[defendants' declarant's] declarations also provide adequate detail regarding the search methods used by BLM employees in responding to plaintiff's FOIA request."  "In his supplemental declaration, [defendants' declarant] provides detailed information regarding the searches conducted by the six BLM employees identified as likely to have documents responsive to plaintiff's FOIA request."  Additionally, the court finds that "[w]hile [defendants' declarant's] declarations lack certain details regarding the search process . . . the Court finds the information provided [was] sufficiently detailed to 'afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the [Court] to determine if the search was adequate in order to grant summary judgment.'"
     
  • Procedural Requirements, Searching for Responsive Records & Litigation Considerations, Adequacy of Search:  First, regarding the scope of the request, the court holds that "BLM was not required to look beyond the plain language of plaintiff's FOIA request for records related to the [Resource Management Plan]."  The court finds that "[g]iven [defendants'] explanation, the plain language of the FOIA request – limiting the search to records 'related to the February 2017 offering,' . . . – and its lack of any reference to the [Resource Management Plan], the Court finds that the BLM reasonably interpreted plaintiff's request as excluding [Resource Management Plan] . . . records."  The court relates that "Plaintiff requested records regarding the 'NEPA process . . . related to the February 2017 offering of lease sale parcels'" and "[defendants] . . . state[] that the 'site-specific NEPA process for the offering of particular lease sale parcels . . . is not the same' as the [Resource Management Plan]."

    Second, regarding search locations, "the Court finds the list of specialists in the DNA [Determination of NEPA Adequacy] insufficient to show that the BLM's search for records was unreasonable."  The court relates that although "BLM's search failed to include employees who participated in [one] lease sale [at issue in plaintiff's request]," "[i]t is undisputed that only one of those individuals . . . was asked to search for records responsive to plaintiff's FOIA request."  However, the court finds that defendants asked "the [employees not searched] whether 'they had documents [that the] searches had not already captured.'"  Also, defendants "explained that the specialists were unlikely to have additional responsive records because they would have provided any documents related to the lease sale to [the employee whose records were searched] on an ongoing basis."  "The Court reaches a different conclusion as to the BLM's failure to involve the agency's Washington, D.C. office in the search for records."  The court finds that "[defendants] state[] in [its] supplemental declaration that the BLM's Washington, D.C. office is unlikely to possess responsive documents because, '[w]ith few exceptions, decisions on lease sales are made at the state level.'"  "However, there is nothing in the record indicating whether the [at issue] lease sale constituted one of those exceptions, and plaintiff has submitted evidence showing that the D.C. office has participated in other recent [similar] lease sales . . . ."

    Third, regarding search terms, "[t]he Court finds that the search terms used by the BLM . . . were reasonably calculated to uncover responsive records."  The court relates that defendant explains that using plaintiff's suggested search terms "would have been 'both under- and over-inclusive' because they 'would not have returned many results relating to the lease sale at issue, and would have returned a large number of communications wholly unrelated to the lease sale.'"  Additionally, "'[t]o the extent a serial number[, one proposed search term,] may have been used in a given communication, . . . the parcel number[, a search term used by defendant,] would also have been included.'"  Finally, the court notes that defendant "completed its searches and sent all responsive documents to the state FOIA officer by November 4, 2016, before the BLM changed the lease sale to March 2017."  "Accordingly, a search for documents related to the 'March 2017 lease sale'[, a search term proposed by plaintiff,] would not have uncovered any records responsive to plaintiff's request."

    Fourth, regarding the search cut-off date, "[t]he Court agrees [with plaintiff] as to defendants' failure to define a cut-off date for the search."  "While [defendants] clarify in [their] supplemental declaration that each custodian searched for 'records through the date of the search itself, not the date of the FOIA request,' . . . defendants have provided no evidence that the BLM provided contemporaneous notice of its date-of-search cut-off date."  Because of this, the court finds that defendants "have failed to meet their burden of demonstrating the reasonableness of a date-of-search cut-off date in this case."  "The Court will therefore require the BLM to conduct a supplemental search for records through the date of the BLM's release of records on May 7, 2017."
     
  • Exemption 5, Attorney-Client Privilege:  "[T]he Court rejects the argument that the defendants have failed to demonstrate the documents were intended to be confidential" and "finds that defendants are entitled to summary judgment on this issue."  The court finds that "[t]he [Vaughn] index indicates that the communications at issue occurred between BLM personnel and the agency's attorney 'in the course of the parties' attorney-client relationship and for the purpose of giving and receiving legal advice.'"  Additionally, "[t]he index does not list the documents again as having been distributed and there is no suggestion that any of the recipients were third parties."
     
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "neither the Vaughn index nor [defendants'] declarations are sufficiently detailed to carry the agency's burden as to segregability."  The court explains that "[w]hile defendants correctly note that an agency may satisfy its segregability burden by providing a Vaughn index describing the documents withheld and agency declarations attesting to the disclosure of all segregable information . . . the case law does not permit agencies to withhold responsive material based on a blanket assertion that the material 'was reviewed by [the agency] to ensure that all reasonably segregable information [was] released.'"  "Defendants are directed to provide an updated Vaughn index and supplemental declaration explaining, with respect to each document, what proportion of the document is being withheld and 'why nonexempt material cannot be segregated.'"
     
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Attorney-Client Privilege
Litigation Considerations, Adequacy of Search
Litigation Considerations, Discovery
Litigation Considerations, Vaughn Index/Declarations
Litigation Considerations, “Reasonably Segregable” Requirements
Procedural Requirements, Searching for Responsive Records
Updated November 10, 2021