The opinion of the court was delivered by: RICARDO URBINA, District Judge
GRANTING IN PART AND DENYING IN PART THE PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS' MOTION FOR SUMMARY
This Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, case
comes before the court on the motions for summary judgment of defendants
United State Department of Agriculture ("USDA") and the United States
Forest Service("Forest Service") and the motions for summary judgment of
plaintiffs Defenders of Wildlife and Endangered Species Coalition's
motion for summary judgment. The plaintiffs argue that the defendants
impermissibly withheld, and must now release, information that the
plaintiffs sought through a FOIA request. The plaintiffs also argue that
the defendants do not meet their burden of conducting a reasonable search
and justifying non-disclosure of exempted information pursuant to
Vaughn v. Rosen, 484 F.2d 820
(D.C. Cir. 1973). In response, the
defendants argue they have met their burden under FOIA because their
search was adequate and their affidavits sufficiently explain the
exempted information. Because the defendants' search of the Office of
Natural Resources and
Environment and its Vaughn indicies were inadequate, the court grants in
part the plaintiffs' motion and denies in part the defendants' motion.
In 1891 Congress created the National Forest System to regulate
specifically designated national forests. Pls.' Mot. for Summ. J. ("Pls.'
Mot.") at 3. The Forest Services manages the National Forest System
pursuant to the direction of the Under Secretary for Natural Resources and
Environment in the USDA Office of Natural Resources and Environment
("NRE"). Am. Compl. ¶ 20. The National Forest Management Act
("NFMA") governs management of the National Forest System and
specifically requires the maintenance of biodiversity on national
forests. 16 U.S.C. § 1604(g)(3)(B); Id. ¶ 15. The NFMA also
requires periodic revisions to forest plans which govern a management
activities on national forests. Id. ¶ 18. In 1997, the Secretary of
Agriculture convened a committee to produce a report intended to
facilitate NFMA revisions. Pls.' Statement of Undisputed Material Facts
¶ 7. Based on the committee's report, as well as feedback from
meetings with tribal, state and local governments, the Forest Service
developed a comprehensive revision of the NFMA and promulgated the
revision into final form on November 9, 2000. Am. Compl. ¶ 14. On
May 17, 2001, the Secretary of Agriculture issued an interim directive
extending the deadline for compliance with the November 9, 2000
regulation for one year. Id. ¶¶ 25. On September 10, 2002, the NRE,
through another interim directive, postponed compliance with the November
9, 2000 NFMA revisions until NFMA regulations are rewritten. Id. 26.
Prior to the last postponement, on May 29, 2002, the plaintiffs
submitted a FOIA request to the USDA for two sets of records related to
the suspension of the NFMA regulations. Id. ¶ 27. Specifically, the
1. All records, other than those published in the
Federal Register, related to any communications by, to
from and/or within the Department of Agriculture, the
Office of Management and Budget, and/or the Council on
Environmental Quality, pertaining to development of
the Interim Directives ("Interim Directives," 66 Fed.
Reg. 27551 (May 17, 2001); 66 Fed. Reg. 27555 (May
17, 2001); 67 Fed. Reg. 35431 (May 20, 2002))
suspending the recently adopted National Forest
Management Act regulations ("2000 regulations;" 65
Fed. Reg. 67513 (November 9, 2000)), and pertaining to
efforts to suspend, revoke, postpone, and/or revise
the 2000 regulations. Please be sure to include
communications to and from other agencies and their
staff, communications to an from outside parties such
as companies, associations, individuals, and
environmental organizations, and internal
communications. Please also include comments received
on the Interim Directives, and the "comments from
individuals, groups and organizations expressing
concerns regarding its implementation" mentioned at 67
Fed. Reg. 35432.
2. A record of people outside of federal agencies
who were consulted or involved in formulating the
Interim Directives, or reviewing suggestions,
recommendations, and/or proposals to suspend,
postpone, or revise the 2000 regulations.
Pls.' Mot. Ex. 4 at 2. The plaintiffs' FOIA request defined "records" as
"all written, transcribed, recorded or graphic matters, however produced
or reproduced." Id. Further, the plaintiffs indicated that the term
"Department of Agriculture" encompasses the agency as well as
"departments, branches, divisions, subdivisions, or subsidiaries,
together with all of their employees, officials, officers, agents,
contractors, subcontractors, appointees, consultants, or any other
persons or entities acting on their behalf or performing services for
The FOIA processor for the USDA received the plaintiffs' FOIA request
on June 11, 2002. Fowler Decl. ¶¶ 1,6. That same day, the FOIA
processor forwarded the request to the Forest Service and sent an
acknowledgment letter to the plaintiffs. Id. ¶ 7. Based on her
experience and judgment, the FOIA processor decided not to forward
the FOIA request to any other offices within the USDA. Id. ¶
10. On October 28, 2002, however, on the recommendation of the Forest
Service FOIA staff, the FOIA processor forwarded the FOIA request to the
NRE and the USDA Office of General Counsel ("OGC"). Id. ¶ 9.
1. The Forest Service Documents
The FOIA officer for the Forest Service received the plaintiffs' FOIA
request on June 11, 2002. Morgan Decl. ¶¶ 1, 5. The Forest Service's
search in response to the plaintiffs' FOIA request yielded 848 pages of
responsive documents. Id. ¶ 8. Of those documents, the Forest
Service withheld 636 pages in full, withheld 46 pages in part and
released 166 pages in full. Id.
Of the records withheld in full, the Forest Service indicated that the
records fell into four general groupings. The first group consisted of
"about 520 pages" of drafts of rules. Id. ¶. The second group
comprised 32 pages of drafts for the regulatory workplans for the rules.
Id. ¶ 10. The third group consisted of 9 pages of draft
informational memoranda for the Secretary of Agriculture. Id. ¶ 11.
The fourth group included "about 75 pages" of miscellaneous records,
including drafts of talking points, question and answer items, a draft of
the "Larson Report," drafts of the plan for promulgating the interim
final rule, and varied drafts of issues and positions related to the
rules. Id. ¶ 12.
Of the records withheld in part, the Forest Service indicated that the
records fell into four categories. Group one consisted of 29 pages of
emails that the Forest Service redacted to "protect the discussions,
questions, issues, strategies, and explanations regarding the content of
the rules and the procedures for processing the rules." Id. ¶ 14.
Group two consisted of seven pages of a planning outline that the Forest
Service redacted "to protect the views of the author
about particular consideration related to the rules." Id. Group three
included seven pages of miscellaneous records containing "discussions,
opinions, positions and other deliberations between agency employees or
between agency employees and agency counsel on the content and language
of the rules and on strategies to cope with issues within the rules."
Id. Group four comprised three pages of e-mails that the Forest Service
redacted to protect personal information. Id.
The Executive Assistant to the Under Secretary of Agriculture for
Natural Resources and Environment received the plaintiffs' FOIA request
on October 28, 2002. Alston Decl. ¶ 1. The NRE explains that the
number of records within it was very limited because it returns records
relating to program matters, such as the plaintiffs' requested rulemaking
records, to the originating agency. Id. ¶ 5 . It further states that
upon receipt of the plaintiffs' FOIA request, the office searched
subject-matter files that were arranged by topic and the staff action
database, which contained tracking information on letters received by
USDA and the responses to those letters. Id. ¶ 6. The NRE's search
of the files entailed both a manual search of the subject-matter files
and an electronic search of the staff-action database. Id. ¶¶ 7, 10.
The NRE reported that its search did not locate any documents responsive
to the plaintiffs' FOIA request. Id. ¶ 12. In a supplemental
declaration, the NRE declares that the Deputy Under Secretary of the NRE
reviewed the plaintiffs' FOIA request and that the Under Secretary stated
that he had no responsive documents. Alston Supplemental Decl. ¶ 5.
The Associate General Counsel for Natural Resources declares that the
Assistant General Counsel of the Natural Resources Divison ("NRD")
received the plaintiffs' FOIA request on October 30, 2002. Poling Decl.
¶ 1, 4. The OGC located seven documents responsive to the plaintiffs'
request. Id. ¶ 6. Specifically, four of those documents were e-mails
that the OGC withheld to "protect the candor necessary to the utility of
interchanges, discussions, questions, strategies and explanations
concerning the planning rule and the process for promulgation." ...