Rocky Mountain Wild, Inc. v. U.S. Forest Serv., No. 21-1169, 2022 WL 17998402 (10th Cir. Dec. 30, 2022) (Carson, J.)

Rocky Mountain Wild, Inc. v. U.S. Forest Serv., No. 21-1169, 2022 WL 17998402 (10th Cir. Dec. 30, 2022) (Carson, J.)

Re:  Request for records concerning highway access project

Disposition:  Affirming district court’s grant of government’s motion for summary judgment; affirming district court’s order to return improperly redacted documents

• Litigation Considerations, Standard of Review:  “[The Court of Appeals for the Tenth Circuit] . . . reject[s] [the requester’s] argument that the [district] court failed to conduct de novo review merely because it presumed [the government] presented its declarations in good faith.”  The court finds that “[the district court] applied a good-faith presumption to the declarations as [the Circuit’s] precedent directs.”  “[The requester] needed to present specific, nonspeculative, countervailing evidence or evidence of inconsistencies to rebut the good-faith presumption.”  “[The requester] failed to do so.”
   
• Litigation Considerations, Adequacy of Search:  “[The Court of Appeals for the Tenth Circuit] agree[s] with the district court that [the government] put forth reasonable efforts to comply with [the requester’s] FOIA request.”  First, “[the court] . . . reject[s] [the requester’s] argument to the extent that it rests on [the government’s] allegedly unreasonable search terms.”  The court finds that “[the government’s] decision to allow its employees to customize the terms they employed to search their own records is not inherently unreasonable, especially given that [the government] listed the terms each employee used.”  “And that list included more than two dozen search terms with different variations of similar terms.”  “Although [the government] did not use precisely the terms [the requester] would have used to look for the same information, [the requester] presents no reasoned authority demonstrating the unreasonableness of [the government’s] search terms.” 
  
  Second, the court finds that “[the requester] insists that leaving out any employees who potentially have responsive documents frustrates ‘a FOIA search designed to find all agency records.’”  “But [the requester] misunderstands the standard – a FOIA search need not locate every conceivable responsive record no matter the cost.”  “[The requester] identifies only persons whose files contain documents duplicative of those searched for by other employees.”  “[The government’s] choice to exclude those persons was not unreasonable.”
  
  Third, the court finds that “[the requester] also objects to the employees who recruited their assistants to search their records for them.”  “[The requester] reasons that if each employee supposedly knew their own records well enough to come up with their own search terms, then they should have searched the files themselves.”  “But [the requester] offers no evidence that the employees’ assistants did not know the best way to find responsive records.”  “Nor does [the requester] claim that the assistants used deficient search terms.”  “Instead, [the requester] implicitly speculates that the employees themselves would have used different terms if they had personally searched their files.”  “[The requester’s] lack of evidence showing the inadequacy of having an assistant search files for responsive documents dooms its argument.”
  
  Fourth, the court notes that “[the requester] also appears to object – on a numerical basis – to [the government’s] decision to involve twenty-seven (and not more) employees to conduct the search.”  “These conclusory assertions do not rebut the good-faith presumption [the court] [appl[ies] to [the government’s] declarations explaining why it did not include more employees in the search.”
  
  Fifth, the court relates that “[the requester] contends that the agency might have found additional responsive records in its Washington, D.C. offices had it only required more employees to search their documents.”  “But [the government’s] declarations explain that although it considered employees across offices, most employees it identified as likely to have responsive records worked in Colorado because the project involves federal land in that state.”  The court finds that “even if there are responsive documents in Washington D.C., there is no evidence in the record before us that they are not duplicative or otherwise exempt from production.”
  
  “Finally, [the court relates that the requester] objects to [the government’s] choice of which devices to search and where to search on those devices.”  The court finds that “[the requester] does not pinpoint any responsive documents that the phones possess.”  “Rather, [the requester] speculates that the phones contain ‘potentially responsive’ records.”  “This speculation fails in the face of [the government’s] declarations explaining that [the government] entrusted its employees to decide where to search because they know best where responsive records might be located, and that they did not search their cellphones because they did not expect their phones to have any responsive records that a computer search would not have already found.”  “Because [the requester] does not rebut this explanation with concrete evidence to the contrary, [the court] presume[s] [the government] trusted its employees in good faith.”  “And without countervailing evidence suggesting that employees worked on the project using personal text messaging or other email accounts, [the court] similarly presume[s] the employees chose not to search their text messages and personal email accounts in good faith.”  “So considering all the places the employees did search, their good-faith decision to not include personal text messages and email accounts in their search does not render [the government’s] search unreasonable, either.”
  
  “Ultimately, [the requester’s] arguments rely on speculation.”  “While [the requester] remains unsatisfied, it offered no evidence to show what additional documents other employees or offices possibly possessed.”  “At the same time, [the government’s] declarations describe a thorough investigation for employees who might have responsive records, detailed lists of how each employee searched their own records, and explanations of how the team who received those records separated them out to respond to the FOIA request.”  “Based on [the government’s] declarations and [the requester’s] failure to rebut them, [the court] agree[s] with the district court that [the government] performed an adequate search.”
   
• Litigation Considerations, Vaughn Index/Declaration:  The Court of Appeals for the Tenth Circuit relates that “[the requester] also challenges the district court’s determination that [the government] properly withheld or redacted documents under certain FOIA exemptions.”  “[The requester] first protests [the government’s] decision to hire an outside contractor to help prepare the Vaughn index.”  “But [the requester] did not dispute [the government’s] outside contractor below, forfeiting the issue.”  The court finds that “[the requester] waived the issue about [the government] preparing an insufficient Vaughn index as well.”  “Unlike [the requester’s] outside-contractor argument, which it forfeited at the district court, [the requester] did contest the index entries below.”  “But to preserve issues for appeal, a party must draft arguments that go beyond general claims of error . . . and include the ‘contentions and reasons for them, with citations to the authorities and parts of the record on which the appellant relies.’”  “Despite this standard, [the requester] argues only generally that [the government] created an insufficient Vaughn index.”  “[The requester] does not name even one specific entry where [the government] failed to include the necessary information to justify applying a FOIA exemption.”
   
• Exemption 5:  The Court of Appeals for the Tenth Circuit notes that “[a]lthough [the government] invoked many FOIA exemptions, [the requester] challenges only Exemption 5’s application on appeal.”  The court first notes that “[the requester] . . . waived its . . . theory [that “[the government] did not prove the attorney-client privilege or the work-product doctrine applied to each entry in the index under this exemption”].”  The court finds that “[the requester] asks [the court] to consider an issue (1) asserted once in a reply brief below (2) that the district court did not consider, yet (3) not challenged for plain error on appeal, let alone (4) in its original appendix.”  The court then finds that “[the requester’s] remaining argument—that [the government] insufficiently justified its exemptions by failing to prove harm for each entry in the Vaughn index – fails, too.”  “[The requester] insists that [the government] could not invoke Exemption 5 without also explaining how disclosure would harm the agency.”  The court notes that “[it has] yet to decide whether § 552(a)(8)(A)(i) requires agencies to show not just that an exemption applies but also how sharing the information would harm the interest protected by that exemption.”  “But [the court] need not do so here.”  “Like the district court determined, even if that heightened burden applies, [the government] made the required showing of harm.”  “The reasons for protecting attorney communications are long-established.”  “[The government] attested in declarations that documents withheld or redacted under Exemption 5 mainly involved attorney-client communications.”  “The declarations detail the kinds of documents involved, including drafts of legal documents, and explain why disclosure of that information would harm [the government].”  “It should surprise no one that [the government] and [the requester], who have been litigating the Village at Wolf Creek Access Project for years, have privileged materials related to this dispute.”  “And [the government] would suffer harm if [the requester] got its hands on those documents.”  “The attorney-client privilege and work-product doctrine prevent that harm.”  “So [the government’s] declarations sufficiently show that the agency would suffer harm from disclosing documents protected by either the privilege or the doctrine.”
   
• Litigation Considerations:  The Court of Appeals for the Tenth Circuit relates that “[the requester] lastly appeals the district court’s order that [the requester] return or destroy two improperly redacted documents [the government] inadvertently disclosed.”  “At bottom, [the requester] argues that the district court could not authorize [the government] to claw back mistakenly disclosed documents because another organization posted them online.”  “But [the court finds that] the government waives the ability to exempt a document under FOIA only after it has already released the same information to the public.”  “[The requester] does not claim that [the government] made the information public before the inadvertent disclosure occurred.”  “What is more, [the requester] cites no authority barring courts from ordering the return or destruction of inadvertently disclosed records subject to FOIA exemptions.”  “[The court] agree[s] with the district court that the public dissemination by a third party of inadvertently disclosed documents does not erase their exempt status and also affirm[s] its claw-back order.”