Story of Stuff Project v. U.S. Forest Serv., No. 18-00170, 2019 WL 451517 (D.D.C. Feb. 4, 2019) (McFadden, J.)

Story of Stuff Project v. U.S. Forest Serv., No. 18-00170, 2019 WL 451517 (D.D.C. Feb. 4, 2019) (McFadden, J.)

Re:  Request for records concerning Nestlé Waters North America, Inc.'s (“Nestlé”) operations in San Bernardino National Forest

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

• Waiver:  The court holds that "[plaintiff]has failed to carry its 'burden of showing that there is a permanent public record' of the information it seeks."  The court explains that "[i]t is plausible that [the] confidential diagrams [at issue] . . . feature[] greater precision and accuracy than those created . . . twenty years ago [and publically available]."
   
• Exemption 4:  "[T]he Court finds that the non-disclosed withheld information is 'confidential' within the meaning of Exemption 4."  The court relates that "[t]he parties agree that [the submitter's] disclosure to the Government was mandatory."  "And the Government has not argued that release of this information will impair its ability to obtain necessary records in the future."  The court finds that "release of this information would likely cause substantial harm to [the submitter's] competitive position."  The court relates that "[the submitter] explains that [it] has 'numerous competitors, including large, nationally-recognized spring water bottling companies, as well as smaller regional or specialty water bottling companies.'"  "These competitors 'could use the Confidential Records to reverse-engineer [the submitter's] internal business processes – a unique system that [the submitter] uses to scientifically evaluate, license, and operationalize spring sites – in order to use these same internal processes to develop their own spring sources and spring water business.'"  "[The submitter] adds that competitors could also 'use the equipment and infrastructure specifications that [the submitter] has developed at great expense, for the design, construction, and/or installation of their own infrastructure and equipment.'"
   
• Exemption 5, Deliberative Process Privilege & Attorney-Client Privilege:  First, the court credits defendant's statement that "[t]he 'withheld information reflects the internal comments and discussions between members of the [Forest Service's] interdisciplinary team assigned to analyze' the [submitter's] permit renewal decision."  "This information was 'pre-decisional because the [Forest Service] had not issued a decision on the project at the time the responsive records were provided.'"  "And it was deliberative because it included 'ongoing policy discussions prior to final decision by the agency,' and because the Forest Service 'anticipated litigation on the project once the decision was issued.'"  Second, "the Court finds that the Government properly invoked the attorney-client privilege to withhold information under Exemption 5."  The court relates that "[t]he Government explains that it withheld 'attorney-client communications between the San Bernardino National Forest [staff] and OGC.'"  "These communications featured discussions of 'legal issues, factual background, and other matters that are the subject of active litigation in the Ninth Circuit Court of Appeals.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "[T]he Court finds no reason to doubt the FOIA Coordinator's assertion that the Forest Service 'carefully reviewed each responsive record on a page-by-page and line-by-line basis in an attempt to identify reasonably segregable, non-exempt information.'"
   
• Exemption 6:  "The Court . . . finds that Exemption 6 does not apply to ["names of [the submitter's] environmental and engineering consultants and other scientists who communicated with the Forest Service to transmit studies and prepared reports on behalf of the company"]."  The court finds that "[t]he 'disclosure of names and addresses is not inherently and always a significant threat to the privacy of those listed; whether it is a significant or a de minimis threat depends upon the characteristic(s) revealed.'"  "[The submitter's] CEO and executive leadership team likely have access to the 'very valuable information' that the firm's consultants, engineers, and lawyers possess."  "Their names and photographs are publicly available."  "Additionally, while information about 'marital status, legitimacy of children . . . alcoholic consumption, family fights, reputation, and so on falls within the ambit of Exemption 6,' information 'connected with professional relationships' does not."  "Thus, while not de minimis, the Court finds that the privacy interests involved are not substantial."  "More, the public's interest in disclosure outweighs these privacy interests."  "[The submitter's] employees and consultants prepared reports to aid the Forest Service in making its permit renewal decision about publicly owned forest lands."  "The public has a plausible interest in evaluating these individuals' qualifications."  "The Court thus finds that Exemption 6 does not apply to their names."
   
• Exemption 9:  The court holds that "[a] 'well' is a 'hole or shaft sunk into the earth to obtain a fluid, such as water, oil, or natural gas.'"  "A 'borehole' is 'a hole bored or drilled in the earth, such as an exploratory well' or a 'small-diameter well drilled especially to obtain water.'"  "'Borehole' has also been defined as a 'deep, narrow hole made in the ground, especially to locate water or oil.'"  "These definitions make it clear that a borehole is a type of well."  "Both terms refer to a hole created in the earth to obtain a fluid."  "And because Exemption 9 unambiguously covers 'wells,' the Government appropriately withheld the borehole maps and related information."