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Sea Shepherd Legal v. NOAA, No. 19-0463, 2021 WL 351362 (W.D. Wash. Feb. 2, 2021) (Robart, J.)


Sea Shepherd Legal v. NOAA, No. 19-0463, 2021 WL 351362 (W.D. Wash. Feb. 2, 2021) (Robart, J.)

Re:  Requests for records concerning the Māui dolphin, a critically endangered species found off west coast of New Zealand's North Island

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

  • Litigation Considerations, Vaughn Index/Declaration:  The court holds that "[t]he Government's [Vaughn Index and declaration are] sufficient."  The court finds that "[t]he Vaughn index includes the file name; the subject of the record; the sender or author; the recipients; those cc'd on any communications; the date of the record; the claimed exemption; and a '[r]ationale for [w]ithholding' that includes a brief description of each document, the context in which it was made, what has been withheld from the document, why it falls within the claimed exemption, and the interest that it seeks to protect."
  • Exemption 5, Attorney-Client Privilege:  The court holds that "[a]s [plaintiff] challenges the attorney-client privilege for the first time on reply, the court does not consider this argument."  "Accordingly, the court upholds the redactions in these eight documents, because even if [plaintiff] prevails on its argument regarding the deliberative process privilege, those redactions are still protected under the assertion of attorney-client privilege."  Finally, the court finds that "after review of the Government's declaration, Vaughn index and redacted documents, the court is satisfied that the Government adequately foresaw that disclosure would harm interests protected by both privileges under Exemption 5."  The court relates that "[t]he Government describes the contents of what is withheld . . . and explains that release would discourage 'the open and frank communication between counsel and client in NOAA's administration of the [Administrative Procedure Act ("APA")] and the [Marine Mammal Protection Act ("MMPA")], including preparation for litigation' . . . ."
  • Exemption 5, Deliberative Process Privilege:  The court relates that "[f]or a group of documents, [plaintiff] concedes that they are deliberative but challenge[s] whether they are pre-decisional."  "These documents fall into two categories:  (1) documents pertaining to an internal memorandum regarding the rejection of [plaintiff's] petition ('Decision Memo'); and (2) documents pertaining to the subsequent Federal Register notice announcing the rejection."  "The court concludes that documents in the former category are pre-decisional but that documents in the latter are not."  First, "the court finds sufficient evidence that the documents involving the Decision Memo are pre-decisional to the rejection of [plaintiff's] petition and thus are protected by the deliberative process privilege."  "The Government represents that the Decision Memo would 'go before the agency's decisionmaker, the [National Marine Fisheries Service ("NMFS")] Administrator, to assist him in making the agency's final determination on the petition.'"  "Indeed, the memo ends with a space for the NMFS Administrator to approve or reject the recommendation."  "The same cannot be said for the documents involving the Federal Register notice."  "Here, the Federal Register notice followed the Government's already-decided choice . . . to reject [plaintiff's] petition and served to 'announce[ ]' and explain that decision to the public."  "The emails concern internal discussion over 'how to present certain issues,' such as what citations to include in the notice and how to speed the publication along."  "Plainly, the decision to reject the petition had already been made, and these documents concern how to package or present that decision without implicating new policy decisions."  "The Government has failed to show how the publication of the Federal Register notice was anything more than a formal explanation of the previously-made decision to reject the petition, and thus, the court concludes that the documents involving the Federal Register notice are not protected by the deliberative process privilege."  The court also finds that "[a]pplying [a] functional approach to the two categories of records at issue, the court concludes that both are deliberative even though they may include factual information."  Finally, the court finds that "after review of the Government's declaration, Vaughn index and redacted documents, the court is satisfied that the Government adequately foresaw that disclosure would harm interests protected by both privileges under Exemption 5."  The court explains that defendant "adequately explain[s] how the specific withheld information would reasonably chill future internal discussions."
  • Exemption 6:  The court notes that "[plaintiff] pursues 'the names and other identifying information (email addresses, phone numbers, titles, etc.) of New Zealand government personnel.'"  "The court concludes that the Government has identified a nontrivial privacy interest and that this privacy interest outweighs the public interest in disclosure."  Regarding the privacy interest, the court finds that "New Zealand's protection of their officials' identities is a strong indication that disclosure would constitute an unwanted public intrusion into their personal affairs."  Additionally, "[t]he fact that the Māui dolphin's plight is public news – as demonstrated by [plaintiff's] petitions and lawsuits on the matter – only increases the potential for harassment, embarrassment, or unwanted solicitation from the media or other members of the public."  Regarding the public interest, the court finds that "[w]hile these individuals' qualifications are undoubtedly relevant, it is only tangentially so, especially when the Government already has a comparability finding process that evaluates information presented by foreign nations."  Regarding foreseeable harm, "the court holds that the Government has focused on the identifying information at issue and explained how disclosure of that information may invade the privacy interests protected by Exemption 6."
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "[t]he Government has complied with its obligations to establish that all reasonably segregable portions of the documents have been disclosed."  The court notes that "[t]he declaration describes the withheld documents individually and provides detailed explanations for each withholding."  "For certain files, it notes that the facts 'are inextricably intertwined with deliberative material.'"  "Furthermore, the Government reviewed each responsive record 'on a page by page and line by line basis to identify reasonably segregable, non-exempt information' and each redacted or partially withheld record 'individually to identify non-exempt information . . . and implemented segregation where possible.'"  "The Government represents that 'there is no further reasonably segregable information to be released and all segregable information has been released.'"
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Attorney-Client Privilege
Exemption 5, Deliberative Process Privilege
Exemption 6
Litigation Considerations, Vaughn Index/Declarations
Litigation Considerations, “Reasonably Segregable” Requirements
Updated November 9, 2021