San Luis & Delta-Mendota Water Auth. v. Dept. of Interior, No. 15-1412, 2016 WL 410837 (E.D. Cal. Feb. 3, 2016) (O'Neill, J.)

San Luis & Delta-Mendota Water Auth. v. Dept. of Interior, No. 15-1412, 2016 WL 410837 (E.D. Cal. Feb. 3, 2016) (O'Neill, J.)

Re: Request for records concerning DOI Solicitor's Opinion regarding flows in the Klamath River

Disposition: Granting in part defendant's motion to dismiss

• Litigation Considerations, Exhaustion of Administrative Remedies:  "The Court did not proceed to the merits [in its January 6, 2016 opinion] . . . , requesting instead further briefing on the issue of administrative exhaustion."  "Plaintiff’s supplemental brief on that issue asserts that administrative exhaustion is not warranted in this case because, among other things, Federal Defendants’ belated FOIA response never notified the Authority of a right to administratively appeal."  "In response, Federal Defendants concede that administrative exhaustion should not be required under the circumstances."  "Accordingly, the Court will proceed to the merits of Defendant’s motion to dismiss."
   
• Waiver:  The court holds that "Plaintiff’s blanket waiver theory fails to state a claim and, therefore, Defendant’s motion to dismiss . . . is granted as to this issue."  The court relates that "[p]lantiff alleges that '[d]efendants have waived any otherwise applicable attorney client privilege, attorney work product protection, deliberative process privilege, or other privilege, for all other records regarding the same subject matter as the [Solicitor of the Interior's] Opinion, including prior drafts of the Opinion, other memoranda related to the subject of the Opinion, and any related inter– or intra-agency communications.'"  "Plaintiff maintains that a blanket waiver has occurred because Defendants have 'intentional[ly] and voluntary[ily] disclos[ed] and use[d] the Opinion for the purpose of justifying [certain agency actions], and to defend against claims made in . . . pending . . . litigation.'"  Additionally, "[p]laintiff argues that '[a]llowing Defendants to make use of the [Solicitor’s] Opinion without requiring the disclosure of related communications would be inherently unfair.'"  Responding to this later argument, the court finds that "[t]here is nothing inherently 'unfair' about an agency's releasing an opinion document of this kind while withholding preliminary versions of the same document."  "[A]ny unfairness that might prejudice Plaintiff would exist solely within the confines of [related, non-FOIA] litigation."  "Because [that litigation] is a case governed by the Administrative Procedure Act's . . . record review rules, any legitimate claim of unfairness may be raised in that litigation, during the course of motions to settle the administrative record."  Responding to plaintiff's more general waiver argument, the court finds that "this is not a case in which the agency has (1) admitted an internal, otherwise privileged document controls the agency’s behavior, and/or (2) revealed large portions of the substance of that otherwise privileged document."  "Perhaps more important is the illogic of Plaintiff’s position."  "If Plaintiff is correct that mere issuance of the Solicitor’s Opinion waives all privilege with regard to internal memoranda concerning the Solicitor’s Opinion, agencies would never be able to benefit from attorney-client, attorney work product, deliberative process, or other privilege protections that are incorporated by reference into FOIA's Exemption 5."