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Hertzberg v. Veneman

July 28, 2003

MICHAEL A. HERTZBERG, PLAINTIFF,
v.
ANN M. VENEMAN, UNITED STATES DEPARTMENT OF AGRICULTURE, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

This matter is before the Court on the parties' cross-motions for summary judgment. Upon consideration of the parties' arguments, declarations submitted and the applicable law, the Court grants defendant's motion and enters summary judgment for defendant on all claims, except with respect to the application of Exemption 6 withholding to six videotapes and the issue of segregability with respect to six documents.

I. BACKGROUND

Plaintiff Michael A. Hertzberg brings this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., to compel the United States Department of Agriculture ("USDA") to release documents and videotapes relating to its investigation of wildfire suppression efforts undertaken in the midst of raging wildfires in and around the Bitterroot National Forest in Montana ("the Bitterroot") in August 2000. Plaintiff is an attorney who represents "Backfire 2000," a group of individuals who allege that their properties were destroyed by fires resulting from a Forest Service firing operation performed in the Bitterroot on August 6, 2000.

See Memorandum of Points and Authorities In Support of Defendant's Motion for Summary Judgment at 2 ("Def.'s Mot."). Seeking information relating to the August 6 firing operation and the Forest Service's ensuing investigation, plaintiff filed four FOIA requests with defendant on October 12, 2000, November 7, 2000, November 19, 2000, and May 21, 2001.

In response to plaintiff's requests and appeals, defendant ultimately released 3,068 pages of documents and 11 videotapes, some in their entirety and some in redacted form. Plaintiff now seeks the information identified but not released by defendantapproximately 87 pages withheld in full, the unredacted versions of 81 pages produced in redacted form, and two withheld videotapes and the unredacted versions of four redacted videotapes. Plaintiff argues that: (1) defendant has no legal basis for its withholdings and redactions; (2) defendant waived its right to assert work product privilege by selectively releasing documents; (3) defendant should be equitably estopped from withholding information based on its promises of full disclosure to the public; and (4) the internal USDA guideline pursuant to which defendant withheld certain documents was promulgated in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553 et seq., and is otherwise contrary to law. In response, defendant contends that its withholdings and redactions are fully justified under Exemptions 5 and 6 of the FOIA; the selective release of other documents requested by plaintiff does not waive the work product privilege with respect to those documents not released; equitable estoppel does not apply in these circumstances; and the guideline challenged by plaintiff is lawful under the APA and was properly applied.

II. DISCUSSION

A. Summary Judgment in FOIA Cases

Under the Freedom of Information Act, an agency may withhold documents responsive to a FOIA request only if the responsive documents fall within one of nine enumerated statutory exemptions. See 5 U.S.C. § 552(b). The agency bears the burden of justifying the withholding, and the court reviews the agency claims of exemption de novo. See § 552(a)(4)(B); see also United States Dep't of State v. Ray, 502 U.S. 164, 173 (1991); Assassination Archives and Research Center v. CIA, ___ F.3d ___, No. 02-5003, 2003 U.S. App. LEXIS 13701, at *6 (D.C. Cir. July 8, 2003); Summers v. Dep't of Justice, 140 F.3d 1077, 1079-80 (D.C. Cir. 1998). To enable the Court to determine whether documents were properly withheld, the agency must provide a detailed description of the information withheld through the submission of a so-called "Vaughn Index," sufficiently detailed affidavits or declarations, or both. See Oglesby v. United States Dep't of the Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996); Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). Furthermore, the FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided... after deletion of the portions which are exempt." 5 U.S.C. § 552(b). "[N]on-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Kimberlin v. Dep't of Justice, 139 F.3d 944, 949 (D.C. Cir. 1998) (quoting Mead Data Central, Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)). To withhold the entirety of a document, the agency must demonstrate that it cannot segregate the exempt material from the non-exempt and disclose as much as possible. See Kimberlin v. Dep't of Justice, 139 F.3d at 949-50.

The Court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In a FOIA case, the Court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations when the affidavits or declarations describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d at 826-28. Agency affidavits or declarations must be "relatively detailed and non-conclusory...." SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" Id. (internal citation and quotation omitted). An agency must demonstrate that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted).

There is no dispute in this case as to the identity of the documents and videotapes in question, or whether the Department of Agriculture fulfilled its duty in locating the information requested by the plaintiff.*fn1 The Court therefore must decide whether the Department was correct in withholding documents under Exemption 5 or Exemption 6 of the FOIA.

B. Exemption 5

Exemption 5 of the FOIA protects from disclosure "inter-agency or intraagency memorandums or letters which would not be available by law to a party... in litigation with the agency." 5 U.S.C. § 552. This provision applies to materials that normally are privileged in the civil discovery context, including those protected by the attorney work product privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 154 (1975); see also FTC v. Grolier, Inc., 462 U.S. 19, 26 (1983) ("The test under Exemption 5 is whether the documents would be 'routinely' or 'normally' disclosed upon a showing of relevance."); Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987) (same). As with all FOIA exemptions, the burden is on the agency invoking Exemption 5 to "establish its right to withhold evidence from the public.... [C]onclusory assertions of privilege will not suffice" to carry the agency's burden. Senate of the Commonwealth of Puerto Rico v. United States Dep't of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980)).

As incorporated into Exemption 5, the attorney work product doctrine is intended to preserve a zone of privacy in which lawyers can prepare and develop legal theories and strategy with an eye toward litigation free from unnecessary intrusion by an adversary. Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). It protects from disclosure any materials prepared by or for a party or its attorney or by or for a party's representative in anticipation of litigation. See FED. R. CIV. P. 26(b)(3). The protected materials may be either deliberative or factual in nature -- for the former, sometimes called opinion work product, there is special protection, nearly absolute privilege, in order to protect an attorney's mental processes and impressions from discovery, while for fact work product there is a qualified privilege which can be overcome only upon a showing of special need for the materials and undue hardship. See FED. R. CIV. P. 26(b)(3); Upjohn Co. v. United States, 449 U.S. 383, 400-03 (1981); Hickman v. Taylor, 329 U.S. at 512-13; United States v. Adlman, 134 F.3d 1194, 1197, 1204 (2d Cir. 1998); Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir. 1997); Martin v. Office of Special Counsel, 819 F.2d at 1187. While litigation need not be imminent or certain in order to satisfy the anticipationof-litigation prong of the test, this circuit has held that "at the very least some articulable claim, likely to lead to litigation, must have arisen," such that litigation was "fairly foreseeable at the time" the materials were prepared. Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d at 865.

The USDA invoked the Exemption 5 work product privilege to withhold 67 pages of documents consisting of the witness statements of 13 Forest Service employees taken after the firing operation of August 6, 2000. See Def.'s Mot. at 11-12. Defendant asserts that these statements were obtained as part of a Forest Service investigation specifically undertaken in anticipation of and in preparation for litigation that the Forest Service expected might be instituted in connection with the firing operation. See id. Plaintiff disputes this claim, arguing that defendant has failed to establish either element of the work product privilege: first, that the witness statements were created by attorneys or their agents; and, second, that the statements were prepared in anticipation of litigation. See Plaintiff's Memorandum of Points and Authorities In Support of His Cross-Motion for Summary Judgment and In Opposition to Defendant's Motion for Summary Judgment at 6, 8-11 ("Pl.'s Mot.").*fn2 For the reasons stated below, the Court finds that defendant has satisfied each requirement.

1. Prepared By An Attorney

Plaintiff appears to argue that the work product privilege applies only to materials prepared by an attorney and that it "has not been extended to the preparatory work of non-lawyers." Pl.'s Mot. at 7 (emphasis in original). To the extent that it rests on this narrow interpretation of the work product privilege, plaintiff's objection must fail. Rule 26(b)(3) of the Federal Rules of Civil Procedure expressly provides that the attorney work product doctrine applies to materials prepared "by or for another party or by or for that other party's representative (including the other party's attorney, consultant... or agent)." FED. R. CIV. P. 26(b)(3). By its own terms, then, the work product privilege covers materials prepared by or for any party or by or for its representative; they need not be prepared by an attorney or even for an attorney. See id. "While the 'work product' may be, and often is, that of an attorney, the concept of 'work product' is not confined to information or materials gathered or assembled by a lawyer." Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 603 (8th Cir. 1977); see also United States v. Nobles, 422 U.S. 225, 238-39 (1975) (In light of "the realities of litigation," it is "necessary that the [work product] doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.").*fn3

While it has always been clear that "documents and tangible things prepared by or for the attorney of the party from whom discovery is sought are within the qualified immunity given to work product, so long as they were prepared in anticipation of litigation or preparation for trial," WRIGHT, MILLER & MARCUS, supra at 359 (citing United States v. Nobles, 422 U.S. at 239), the 1970 amendment to the Federal Rules of Civil Procedure "expressly extend[ed] protection to documents prepared by or for a representative of a party, including his agent," regardless of whether the agent is an attorney. Id. at 361. See FED. R. CIV. P. 26(b)(3), advisory committee's note (1970 Amendment) (Subdivision (b)(3) of Rule 26 as amended "reflects the trend of the cases by requiring a special showing, not merely as to materials prepared by an attorney, but also as to materials prepared... by or for a party or any representative acting on his behalf."). Under the amended Rule, "materials prepared by any representative of the client are protected, regardless of whether the representative is acting for the attorney," so long as they were clearly prepared in anticipation of litigation. EPSTEIN, supra, at 545 (emphasis in original). See, e.g., In re Copper Market Antitrust Litigation, 200 F.R.D. 213, 221 (S.D.N.Y. 2001) ("[D]ocuments prepared in anticipation of litigation need not be created at the request of an attorney."); Occidental Chemical Corp. v. OHM Remediation Services Corp., 175 F.R.D. 431, 434 (W.D.N.Y. 1997) ("[W]ork product immunity extends to documents prepared by or for a representative of a party, including his or her agent."); Briggs & Stratton Corp. v. Concrete Sales & Services, 174 F.R.D. 506, 508-09 (M.D. Ga. 1997) (materials need not have been prepared by attorney or attorney's agent to enjoy work product protection, so long as prepared in anticipation of litigation); Bank of New York v. Meridien Biao Corp., No. 95 Civ. 4856, 1996 U.S. Dist. LEXIS 12377 (S.D.N.Y. Aug. 27, 1996) (document prepared in anticipation of litigation need not have been created at behest of counsel; work product doctrine "encompasses documents prepared by [or for] the party, whether or not it is done for the party's attorney"); Niagara Mohawk Power Corp. v. Stone & Webster Engineering Corp., 125 F.R.D. 578, 586-87 (N.D.N.Y. 1989) (work product protection exists for work of consultants acting as representative of plaintiffs); Westhemeco Ltd. v. New Hampshire Insurance Co., 82 F.R.D. 702, 708 (S.D.N.Y. 1979) (work product doctrine protects material prepared by defendant's surveyor and investigator).*fn4

At issue here are statements of Forest Service employees taken by Forest Service investigators in the aftermath of the August 6, 2000 firing operation and after an attorney from the USDA Office of General Counsel had advised the Forest Service to conduct an investigation in preparation for litigation. See Def.'s Mot. at 12. In relying on the work product privilege, defendant does not claim that the statements were created or gathered directly by an attorney or even under the direct supervision of an attorney. It does assert, however, that because the Special Agent in Charge for Law Enforcement and Investigations ("LEI") (a non-attorney) and an Associate Regional Attorney with the Office of the General Counsel, USDA (an attorney), both recognized "the strong probability of tort claims arising from the burnout operations," the Associate Regional Attorney, Mark Lodine, "suggested, and the group agreed, that an investigation should be conducted to collect evidence, which would allow the Forest Service to defend itself in the event that the Agency is sued for damages from the burnout operation." See Def.'s Mot., Ex. 2, Declaration of Roger Seewald, Special Agent In Charge for Law Enforcement and Investigations, USDA ("Seewald Decl.") ¶ 7; see also Ex. 3, Declaration of Mark Lodine, Associate Regional Attorney, USDA ("Lodine Decl.") ¶¶ 5-6; Defendant's Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply in Support of Defendant's Motion for Summary Judgment ("Def.'s Opp."), Ex. 1, Declaration of Kathleen McAllister, Deputy Regional Forester for the Northern Region, USDA ("McAllister Decl.") ¶¶ 7-9. It was further agreed that LEI should conduct the investigation and that LEI employees should collect statements from Forest Service employees, affected property owners, and others with knowledge of the burnout operation. See Seewald Decl. ¶¶ 8-9.

Plaintiff provides no evidence to refute these declarations, but contends both that the investigation was not directed or supervised by an attorney and that it was undertaken in the ordinary course of business rather than in anticipation of litigation. See Pl.'s Mot. at 8-11. Absent clearer evidence of attorney control over the investigation and its purpose, plaintiff argues, the work product privilege does not apply. See id. at 10-11. Based on the declarations of Roger Seewald, Mark Lodine and Kathleen McAllister, the failure of plaintiff to counter these declarations with any facts, the language of Rule 26(b)(3) as amended, and the case law discussed above, the Court concludes that the extent of attorney involvement in the conduct of the investigation is not crucial. Even though the investigation was not undertaken at the direction of, or directly supervised by, an attorney and was only undertaken at his suggestion, as the declarations indicate, Rule 26(b)(3) requires no more. It is undisputed that the investigation was conducted (and the statements prepared) by Forest Service employees in the Law Enforcement and Investigations Division.

See Seewald Decl. ¶ 9; Lodine Decl. ¶ 6; see also Pl.'s Mot. at 10. Such Forest Service employees are by definition "party representatives" under Rule 26(b)(3) of the Federal Rules of Civil Procedure. Their work product therefore falls within the purview of the federal work product privilege, and defendant need not demonstrate that its employees were acting at the direction of or under the supervision of an attorney -- so long as the LEI investigators collected the information in anticipation of litigation. See FED. R. CIV. P. 26(b)(3).

2. Prepared In Anticipation of Litigation

The work product doctrine protects only materials prepared "in anticipation of litigation." FED. R. CIV. P. 26(b)(3). As plaintiff correctly points out, materials prepared "in the ordinary course of business or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes" are not protected. FED. R. CIV. P. 26(b), advisory committee's note (1970 Amendment). See also United States v. Adlman, 134 F.3d at 1202-03; Occidental Chemical Corp. v. OHM Remediation Services Corp., 175 F.R.D. at 435; Allendale Mutual Insurance v. Bull Data Systems, Inc., 152 F.R.D. 132, 136-37 (N.D. Ill. 1993). To qualify for work product protection, litigation need not be actual or imminent; it need only be "fairly foreseeable." Coastal States Gas. Corp. v. Dep't of Energy, 617 F.2d at 865. Thus, while "some articulable claim, likely to lead to litigation, must have arisen," id., the privilege "extends to documents prepared in anticipation of foreseeable litigation, even if no specific claim is [yet] contemplated." Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C. Cir. 1992). "[T]he 'testing question' for the work product privilege... is whether in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998). To meet this standard, a party "must at least have had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable" in the circumstances. Id.*fn5

The Court finds that the defendant has met its burden under this standard. In support of its claim that the witness statements at issue were gathered in anticipation of litigation, defendant explains that the Forest Service conducted multiple investigations after the firing operation of August 6, 2000, each with a different purpose. See Def.'s Mot. at 10-11; McAllister Decl. ¶¶ 4, 5, 10. Defendant states that the only material for which it invoked Exemption 5 protection was gathered through the "litigation investigation," which had as its sole purpose preparing the agency for potential claims arising from the firing operation. See Def.'s Mot. at 11; Def.'s Opp. at 7.*fn6 This explanation is supported by the declarations of three USDA employees who attest that the litigation investigation was launched in recognition of the "strong probability of tort claims arising from the burnout operation" and with the goal that defendant "would have evidence to defend itself in the event that tort suits are filed." Seewald Decl. ¶ 7; see Lodine Decl. ¶¶ 5-6; see also McAllister Decl. ¶ 11 ("[T]he purpose of collecting these statements was to gather evidence to protect the Forest Service against prospective tort claims from the firing operation."). In addition, the litigation investigation was conducted by the Forest Service's Law Enforcement and Investigations Division, while the related ...


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