Wilderness Workshop v. U.S. Dep’t of Agric., No. 21-2108, 2023 WL 5672578 (D.D.C. Sept. 1, 2023) (Cobb, J.)

Wilderness Workshop v. U.S. Dep’t of Agric., No. 21-2108, 2023 WL 5672578 (D.D.C. Sept. 1, 2023) (Cobb, J.)

Re:  Request for records concerning plan to improve, construct, and maintain roads to provide year-round, motorized access to development of nineteen single-family residences on land parcel

Disposition:  Granting in part and denying in part defendants’ motion for summary judgment

• Procedural Requirements, Responding to FOIA Requests & Litigation Considerations:  “As an initial matter, the Court considers and rejects [plaintiff’s] argument that Defendants have not actually issued a final determination regarding the 2020 request.”  “In [plaintiff’s] view, no final determination has been made because (a) the agencies’ determinations were not sent until after the Complaint was filed in this case, and (b) those determinations were inadequate.”  “The Court disagrees.”  “It is not material that the determinations were sent after the date of the Complaint; they were sent prior to the Motion for Summary Judgment.”  “As for whether the determinations were adequate, that question goes to the sufficiency of the responses, not their finality.”

• Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records:  The court relates that “[plaintiff] makes three arguments that Defendants’ search was inadequate.”  “First, it argues that the USDA’s ‘segmented approach’ to the search was inappropriate because it precluded a comprehensive review of all the documents, which might have informed the agencies’ decision whether to refine or expand the search.”  “Second, [plaintiff] argues that the search was inadequate because it did not look for documents in all the departments and locations that were listed in the request.”  “Finally, [plaintiff] contends that the declarations do not sufficiently describe the methodology of the search, including by providing details as to the persons who conducted the search or the search terms that were selected by the agencies.”  “The Court is unpersuaded by the first two arguments but is partially persuaded by the third.”  “The Court finds that the declaration submitted by the Forest Service fails to sufficiently describe the methodology of its search.”  “In support of its first argument . . . [plaintiff] extrapolates from that proposition that the agency was required, at the end of it[s] search, to collect and consider ‘all the documents’ from the search and make a single, ‘final determination on the entire FOIA Request.’”  “The Court disagrees.”  “As explained in a supplemental declaration . . . , ‘[t]he USDA has a decentralized FOIA program’ in which ‘each agency processes its own FOIA requests and appeals independently.’”  “That is why the requests to the OIA and Forest Service were assigned different tracking numbers, and why the Forest Service pursued separate searches of the Washington and regional offices.”  “[Plaintiff] points to no statutory language or precedent to suggest that the USDA’s standard practice for processing FOIA requests is unlawful, nor does it provide anything other than ‘purely speculative claims’ that a hypothetical consolidated review would have led to an expanded search.”  “The Court also disagrees with [plaintiff’s] second argument – that Defendants were obligated to search for documents in each and every location named in the 2020 request.”  “[Plaintiff] cites to no authority to suggest that the requester’s mere intuition that documents might be found in a particular location is the kind of ‘obvious lead’ that obligates the agency to search in that location.”  “Here, both . . . Declarations state that the searches conducted by the OIA and Forest Service were reasonably calculated to include all the locations where responsive documents could be found.”  “[Plaintiff] points to nothing in the record that contradicts that claim.”  “As for [plaintiff’s] third argument – that Defendants’ declarations do not adequately describe the methodology of the searches – the Court finds that the OIA has established that it conducted an adequate search, but the Forest Service has not.”  “Both declarations describe a process in which likely custodians of responsive records were identified, and those records searched by both electronic and non-electronic means.”  “Both declarations aver that the agencies worked with experts to perform the electronic searches, and both describe the specific search terms that were used.”  “The two declarations differ, however, in the amount of detail they provide as to the identity of the custodians whose records were searched.”  “The OIA’s declaration describes the custodians both by occupation and name.”  “The Forest Service’s declaration, on the other hand, states only that it searched the records of nine custodians who were ‘identified as being engaged in the . . . Estates Access Route project.’”  “Even granting [the] declaration a presumption of good faith, the Court finds that it does not carry the Forest Service’s burden to show that its search was ‘reasonably calculated to uncover and identify all records potentially responsive to Plaintiff’s FOIA request that were within the custody, control, or possession’ of each agency.”  “The Court stops short of ordering the Forest Service to perform a new search for records, however.”  “Instead, the Court orders the Forest Service to submit a supplemental declaration, describing in more detail the process it used to identify the custodians whose records would be searched, as well as the identities (or at least the roles) of the custodians that were identified.”

• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations:  “The Court finds that Defendants have not justified their deliberative process withholdings.”  “Here, the declarations and Vaughn indices submitted by the agencies do not contain enough information for the Court to conclude that the deliberative process privilege applies.”  “Of the six entries in the Forest Service’s Vaughn index that relate to the deliberative process privilege, none identifies with any particularity which individuals were involved in the communications, or what (if any) decisionmaking authority is vested in those individuals.”  “The Court further notes that the first three entries of the Forest Services’ Vaughn index consist entirely of identical boilerplate language, which fails to explain what role the withheld records played in the deliberative process, or even to which final decision the records relate.”  “Moreover, even assuming that the withheld materials are the type of materials that are protected by the deliberative process privilege, the agencies fail to articulate a concrete foreseeable harm that would result from their release.”  “Although the Vaughn indices submitted by the OIA and the Forest Service include what purports to be a record-by-record articulation of the foreseeable harm that would result from disclosure, those explanations consist overwhelmingly of boilerplate language, simply rehashing the general purposes of the privilege without any connection to the specific information in the withheld records.”

• Exemption 5, Attorney Work-Product Privilege & Attorney-Client Privilege:  The court holds that “the agencies’ Motion for Summary Judgment is granted as to all materials that were withheld under the attorney-client and/or work-product privileges.”  “Here, the Court concludes that the Declarations and Vaughn indices submitted by the agencies include enough information to establish that the relevant records are covered by the attorney-client and/or work-product privileges.”  “The records that were withheld under those privileges include attorneys’ comments on draft documents, as well as emails between agency employees and agency attorneys.”  “Each entry in the Vaughn index avers that the relevant communications were for the purpose of obtaining legal advice, and that they were confidential.”  “The entries that invoke the work-product privilege further state that the attorneys’ work-product was produced in anticipation of litigation involving the . . . project.”  “As for foreseeable harm, the Court is permitted to consider context, even in the absence of a specific agency explanation.”  “In this case, it is a matter of public record that the agency’s decision on the . . . project – which was still in process when this lawsuit was filed – has since become final.”  “The Court is also aware that [plaintiff] has filed suit challenging that decision under the [Administrative Procedure Act].”  “As such, should the Court order the release of any materials that would otherwise be encompassed by the attorney-client and/or work-product privileges, that would permit [plaintiff] to circumvent the privileges that would protect those materials in actually-pending litigation.”  “Considering that context, the Court is convinced that the disclosure of the agencies’ attorney-client and work-product withholdings would harm the interests those privileges were intended to protect.”

• Exemption 6:  “[T]he Court finds that the agencies rightly withheld those materials under Exemption 6.”  The court relates that “Defendants invoked Exemption 6 to withhold employee leave and vacation information, the mobile telephone numbers of employees, and the ‘unpublished’ direct dial telephone numbers of employees.”  “[Defendants’] Declarations both assert that the privacy interest of the affected employees outweighs the public's interest in the information.”  “[One] Declaration also states that, due to the controversial nature of the . . . project, release of individual contact information could lead to harassment of agency employees.”  “[Plaintiff], on the other hand, argues that the public has an interest in the withheld information because such ‘information can form a comprehensive picture of the interactions between and among the agency, project proponents, and others,’ and that the resulting comprehensive picture would help ‘citizens . . . know what their government is up to.’”  “Although that may sometimes be the case, here the Court can see no way in which the unpublished phone numbers of individual agency employees – let alone their leave information – could provide any such insight to the public or otherwise outweigh the privacy interests of those employees.”

• Procedural Requirements, Responding to FOIA Requests:  The court notes that “[t]here is no dispute that the materials the agencies disclosed were produced as searchable PDF files.”  “[Plaintiff] seeks a Court order directing Defendants to produce the files not only in the requested format, but also on a discrete electronic media such as a flash or jump drive.”  The court finds that “[a]lthough it is certainly true that, in general, ‘requesters may specify the preferred form or format (including electronic formats) for the records sought,’ . . . the Court finds no support for the proposition that a FOIA requester may specify not only the ‘form or format’ of the records, but also the means by which they are transmitted.”  “The Court is no more inclined to issue such an order here than it would be to specify that an agency must hand-deliver paper records instead of mailing them.”