Whitson v. U.S. Forest Serv., No. 16-01090, 2017 WL 2242592 (D. Colo. May 23, 2017) (Babcock, J.)

Whitson v. U.S. Forest Serv., No. 16-01090, 2017 WL 2242592 (D. Colo. May 23, 2017) (Babcock, J.)

Re:  Request for records concerning misconduct investigation related, in part, to administration of Wild Hose and Burro Program

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

• Litigation Considerations, Vaughn Index/Declaration:  The court holds that "[p]laintiff's assertion that [defendant's declarant's] declarations suffer from insufficient detail, lack of specificity, and the use of conclusory statements, however, is wholly without merit since both of [the] declarations thoroughly detail [defendant's declarant's] efforts to identify and produce documents responsive to Plaintiff's FOIA request."  Additionally, the court finds that "[w]hile they may not have been prepared contemporaneously with her search efforts, [defendant's declarant's] declarations thoroughly detail what she personally did to respond to Plaintiff's FOIA request."  "The fact that the Forest Service did not provide a declaration from the retired analyst initially assigned Plaintiff's FOIA request does not mean that it has failed to produce competent evidence to support its summary judgment motion."
  
  Separately, responding to other objections by plaintiff, the court first finds that "it is reasonable for the Forest Service to list both . . . exemptions [6 and 7(C)] together to support its redactions[]" because "[c]ourts have construed the privacy inquiry under Exemptions 6 and 7(C) to be essentially the same though Exemption 7(C) is broader."  The court then finds that "[t]here is no requirement . . . that the Forest Service separately list each document that it is withholding from disclosure in whole or in part."  "Instead, the Forest Service may explain its withholdings by reference to categories of documents[]" and "its descriptions of the relevant categories [are] specific enough to allow a court to determine, as to each category, whether the claimed exemptions are proper."
   
• Litigation Considerations, Adequacy of Search:  The court "conclude[s] that the Forest Service has met its burden of demonstrating that it conducted a search reasonably calculated to uncover all documents relevant to Plaintiff's FOIA request."  The court finds that defendant "focused [its] search efforts on the Forest Service offices and personnel responsible for conducting the subject misconduct investigation."  The court also finds that "the Forest Service's partial failure to search for records at the Forest Service offices identified by Plaintiff does not render its search unreasonable[]" because "the mere fact that they are in the Forest Service's 'chain of command' does not mean that they were likely to possess records responsive to Plaintiff's FOIA request[.]"
   
• Exemption 7, Threshold:  The court finds that "there can be no dispute that the primary function of the Forest Service, unlike the FBI, is not law enforcement."  "The Forest Service has also failed to demonstrate that it nonetheless qualifies as a mixed-function agency."  "Moreover, even if the Forest Service can be properly characterized as a mixed-function agency, it still bears the burden of showing that the withheld information was compiled for adjudicative or enforcement purposes."  "[T]he only evidence that the Forest Service cites to show that the subject misconduct investigation was for law enforcement purposes is a conclusory assertion to this effect . . . in [its] declaration and a statement in a partially withheld email exchange that 'I let [redacted] know the investigation . . . includes several misconduct allegations; one of which may have criminal implications.'"  The court finds that "[t]his evidence is insufficient to satisfy the Forest Service's burden to show that the subject misconduct investigation was for law enforcement purposes."  "Because the Forest Service has failed to meet its burden of showing either that it is a government agency with law enforcement functions or that the information withheld pursuant to Exemption 7 was compiled for law enforcement purposes, Plaintiff is entitled to summary judgment that Exemption 7 is inapplicable under the circumstances of this case."  "The Forest Service must therefore disclose the information that it redacted pursuant to Exemption 7(E) to Plaintiff and may not rely on Exemption 7(C) to withhold any other responsive information from Plaintiff."
   
• Exemption 6:  The court "decline[s] to enter summary judgment in favor of either party on the applicability of Exemption 6 to materials withheld by the Forest Service but will re-visit this issue, if necessary, following the Forest Service's further review of these materials[.]"  The court first "conclude[s] that the Forest Service has identified a legitimate privacy interest in the withheld materials."  "These privacy concerns are exacerbated in this case by the undisputed facts that the misconduct investigation focused in part on a controversial matter and that there is considerable tension among the small number of employees who work for the District."  "Furthermore, it is plausible that under the circumstances of this case that the protection of this privacy interest would require redactions beyond basic identifiable information such as names and telephone numbers."  The court then finds that "the public has some interest in the information sought by Plaintiff's FOIA request[.]"  The court holds that "further review by the Forest Service of its redactions pursuant to Exemption 6 is warranted to ensure that information was not withheld based on an overly narrow view of the public interest implicated by Plaintiff's request or based on a subjective determination that the information was related to unsubstantiated allegations." 
   
• Litigation Considerations, In Camera Inspection:  The court "conclude[s] that further review of the withheld information by the Forest Service will be more effective than in camera review by the Court since the Court is not in a position to judge whether the release of certain potions of information would enable Plaintiff or other members of the public to identify involved parties based on the particular dynamics of the affected Forest Service offices. "  "In addition, while there was considerable delay in the Forest Service's response to Plaintiff's FOIA request, there are other circumstances which support yielding some deference to the Forest Service's redactions pursuant to Exemption 6."  "In particular, it is apparent that the Forest Service attempted to do targeted as opposed to wholesale redactions and has continued to release documents when errors or omissions are discovered."
   
• Exemption 5, Deliberative Process Privilege:  The court "conclude[s] that the Forest Service's explanation of why Exception 5 was applicable to information in ["[an] investigation plan, internal emails, a 16–page draft report, and case assessment materials"] is sufficient to meet its burden on this issue."  "In particular, the Forest Service did not recite the same explanation for why the redacted information is exempt pursuant to Exemption 5 but rather provided unique descriptive details in each instance that it cited Exemption 5."