Rocky Mountain Wild v. BLM, No. 18-0314, 2020 WL 1333087 (D. Colo. Mar. 23, 2020) (Martinez, J.)

Rocky Mountain Wild v. BLM, No. 18-0314, 2020 WL 1333087 (D. Colo. Mar. 23, 2020) (Martinez, J.)

Re:  Request for certain land parcels that BLM was preparing to offer for oil and gas leasing

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

• Litigation Considerations, Standard of Review:  The court finds that "[w]hen [it] reviews BLM's exemption claims . . . the Court will – because it must – review those claims de novo . . . ."
   
• Litigation Considerations, Discovery:  The court holds that "[plaintiff] has . . . failed to make a showing sufficient to justify discovery in this case."  The court finds that "[a]s for the 'conclusory' accusation, [plaintiff] is incorrect."  "[Defendant's] declaration is thirty-two pages long, and as detailed as its length suggests, reporting numerous relevant names, dates, search techniques, search terms, and so forth."
   
• Litigation Considerations, Vaughn Index/Declaration:  The court relates that "[plaintiff] generally objects to [defendant's declarant's] reliance on others' reports regarding their search efforts . . . ."  The court finds that "[i]n FOIA cases, however, a FOIA officer who supervised the search is competent to report on what others reported to her about their searches for responsive records."
   
• Procedural Requirements, Searching for Responsive Records:  Responding to plaintiff's arguments, the court first holds that "[w]hatever duty of liberal construction might apply to this request, it does not require the Colorado BLM office (to whom the FOIA request was submitted) to assume that what the requester really wants is all records relating to BLM's decision to hold any lease sale, anytime, anywhere."  "Thus, nothing about this e-mail exchange required BLM to expand its search scope to include the Washington office."  Additionally, the court holds that "the Washington office's request that the Colorado office fill out a chart showing all of the office's current projects (the March 2018 lease sale being one among many) did not trigger any duty to search the Washington office for records responsive to [plaintiff's] FOIA request."  "Colorado BLM could reasonably conclude that this interaction with the Washington office did not give rise to a realistic possibility that the Washington office would have responsive records."  Third, the court finds that "[it] is unpersuaded that BLM was unreasonable in failing to include [two additional search terms] or variants in its search terms."  "Indeed, it stands to reason that searching for these terms without also searching for one or more of the terms listed above would have been vastly overinclusive."  Fourth, regarding the plaintiff's argument that defendant should have to conduct a supplemental search with a later cutoff date, the court finds that "the only reason [plaintiff] can make this argument is because BLM, in a gesture of compromise regarding alleged deficiencies in the original search, agreed to conduct a supplemental search."  "If the Court were to hold in these circumstances that an agreement to conduct a supplemental search obligates the agency to expand the temporal scope of the search vastly beyond the original temporal scope, agencies would have little incentive to pursue the compromise that BLM pursued in this case."
  
  However, "the Court finds that BLM's search was deficient to the extent BLM excluded documents about parcels considered for the March 2018 lease sale but not listed in [plaintiff's] FOIA request."  "[I]n the context of the FOIA request as a whole, the Court finds that [plaintiff's] enumeration of specific parcels should have been liberally construed to reach all of the parcels considered for the March 2018 lease sale."  "There is no reasonable basis to think that [plaintiff] was genuinely interested in only a subset of parcels considered for that lease sale, to the exclusion of any others."
   
• Exemption 5, Deliberative Process Privilege; Attorney Work-Client Privilege; Commercial Information Privilege:  The court holds that "BLM has appropriately invoked the deliberative process and attorney-client privileges."  Additionally, the court relates that "BLM redacted conference call numbers and passcodes, the disclosure of which, it says, would 'harm the government's financial interest in maintaining the integrity of the commercial telephonic systems it contracts for.'"  "The Court . . . finds that BLM appropriately invoked Exemption 5 as to this information."
   
• Exemption 6:  "The Court . . . upholds BLM's invocation of Exemption 6 in this instance."  The court finds that "BLM's explanation for withholding this 'member of the public['s]' phone number is generic:  '[I]t was determined that the individual to whom this information pertains has a substantial privacy interest in withholding it.'"  "Even so, [the court finds that] [plaintiff] articulates no public interest in disclosure of this person's personal cell phone number."