Rocky Mt. Wild, Inc. v. U.S. Bureau of Land Mgmt., No. 19-03171, 2023 WL 4660072 (D. Colo. July 20, 2023) (Mix, Mag. J.)

Rocky Mt. Wild, Inc. v. U.S. Bureau of Land Mgmt., No. 19-03171, 2023 WL 4660072 (D. Colo. July 20, 2023) (Mix, Mag. J.)

Re:  Request for records concerning “[National Environmental Policy Act (“NEPA”)] process, [Endangered Species Act] compliance, external and internal communications, and any other agency analysis related to the [Tres Rios Field Office] ACEC amendment process”

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

• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations:  “[T]he Court finds that Defendants have met their burden of showing that the material withheld under the deliberative process privilege was appropriate.”  The court relates that defendant withheld certain records concerning the “‘Tres Rios Field Office’s Resource Management Plan Area of Critical Environmental Concern Amendment process.’”  “The Court agrees [with defendant] that the Supplemental Vaughn Index . . . provides additional detail regarding the material being withheld and what is being discussed.”  “Thus, the agency now makes clearer what it is considering, discussing, or recommending in the identified redacted or withheld material, including such things as what it deems to be the key issues in the draft document, the appropriate criteria to be used, the purpose and need for the proposed action, actions versus prescriptions and which actions may be more appropriate, concerns and considerations related to the material and what should be removed or was inaccurate, public comments and responses to be made, new areas or material to be included, controversial material, delays or restrictions in the plan amendment process, litigation risk and other controversial information, and what the agency believes is the correct course of action.”  “The Court finds from this that the agency has better explained the documents under consideration in connection with the deliberative process privilege and the topics being discussed in the material that was redacted or withheld.”  “The Court also finds from the Agency Declaration and the two Vaughn Indexes that the documents at issue ‘reflect[ ] advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated[,]’ which may be shielded under the deliberative process privilege.”  “Further, the documents are predecisional and deliberative, as the information produced by Defendants supports a finding that the information was created in the process of, or prior to, a final agency decision or course of action, and encompasses opinions, recommendations, and advice of subject matter experts.”
  
  Regarding foreseeable harm, “[t]he Court finds that [defendant] has satisfied this burden.”  “Unlike the initial Vaughn Index . . . , [defendant] has now provided context into the decision-making processes or deliberations at issue, by ‘specifically focus[ing] on the “information at issue” in the redacted material, and reasonably explaining how [defendant] would be harmed by disclosure of that information, i.e., public confusion or chilling of [defendant’s] employees’ willingness to engage in frank back-and-forth discussions in the course of their decision-making.”  “The agency thus linked the harm to the specific information in the withheld document.”
  
  “[A]s to [another] document, which is an attachment to an email, [the agency states] that the redactions are pre-decisional, deliberative comments among [defendant] employees regarding the alternative summary of [a] draft document for . . . [c]omment response, and more specifically, discussions by [defendant] employees as to how to address comment responses in the draft document.”  “The agency states that ‘[d]isclosure of the redacted information could create public confusion and would chill employees’ willingness to engage in frank, back-and-forth discussions in which they are free to posit questions and offer ideas in the course of their decision-making.’”  “The Court finds that this is deficient for the same reasons as the initial Vaughn Index as to the other documents which were withheld under Exemption 5 – because it does not meet the foreseeable harm requirement by connecting the harms in any meaningful way to the information withheld, such as by providing context or insight into the specific decision-making processes or deliberations at issue, and how they would be harmed by disclosure.”  “The agency ‘simply posit[ed] that such disclosures “could chill speech” and could have an effect on interagency discussion[,]’ with no explanation as to why.”  “The agency was aware of the Court’s requirement for such information because it was responding to the Order on Summary Judgment . . . .”  “The failure to provide this information means that the agency did not meet its burden of showing that the material was properly withheld under deliberative process privilege, and the Court orders that this redacted material in the document be produced.”
   
• Litigation Considerations, Adequacy of Search:  “The Court next addresses the new search that was conducted pursuant to the Order on Summary Judgment . . . .”  Previously, “the Court found that many of the described searches by the agency custodians were overly restrictive because the custodians selectively picked which terms to use and did not use obviously relevant terms or search phrases.”  “The Court further found that the decision to leave the search parameters to each custodian resulted in a disjointed search where each custodian used different terms and/or phrases to identify records and/or different repositories based on how each interpreted the FOIA request, and the agency custodians selectively picked which repositories to search.”  “While the Court found that the prior search resulted in a selective and restrictive use of search terms conducted by each custodian, the parameters of this search appear to comply with the Order on Summary Judgment . . . .”  “Universal search terms which were based on the Court’s Order . . . and in consultation with subject matter experts were used by all the custodians, who uniformly searched the identified repositories.”  “Further, the agency made efforts to ensure that the search would be over-inclusive in connection with locating relevant documents.”  “This appears to be in keeping with the principle that a FOIA request should be liberally construed to ensure that all responsive documents are located.”  “Based on the foregoing, the Court finds in connection with this new search that that the agency made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.”  “The new search complied with the Court’s directives in its Order on Summary Judgment . . . , and was adequate.”
   
• Exemption 6:  The court relates that “[t]he information that has been redacted consists of personal phone numbers of a member of the public.”  “This information was properly withheld to protect these individual’s private information, the disclosure of which the Court finds would constitute a clearly unwarranted invasion of personal privacy.”