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DEFENDERS OF WILDLIFE v. U.S. DEPARTMENT OF THE INTERIOR

April 13, 2004.

DEFENDERS OF WILDLIFE, et al, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants



The opinion of the court was delivered by: ELLEN S. HUVELLE, District Judge

MEMORANDUM OPINION

Plaintiffs have sued the United States Department of the Interior ("DOI") and the Office of Government Ethics ("OGE") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking records regarding Deputy Secretary J. Steven Griles' compliance with federal ethics laws and regulations relating to prohibited conflicts of interest. They challenge the adequacy of defendants' search for responsive documents, as well as their withholding of eleven documents pursuant to FOIA Exemptions 4, 5, and 6. Before the Court are the defendants' motion for summary judgment and plaintiffs' motion for partial summary judgment. For the reasons set forth below, each of the motions will be granted in part and denied in part.

BACKGROUND

 I. Ethics in Government Act

  A brief discussion of relevant ethics laws and regulations governing the conduct of federal officers will be useful to understanding the nature of the documents that plaintiffs request and the reasons for defendants' withholdings. In general, federal law prohibits government officers or employees from using a public office for personal gain, 5 C.F.R. § 2635.702, or substantially participating in an official capacity through decision, approval, or otherwise, in matters in which they have a personal financial interest. 18 U.S.C. § 208(a); 5 C.F.R. § 2635.402(a), (c), and (e). To foster public confidence in the integrity of federal officials and to deter such conflicts of interest, the Ethics in Government Act of 1978 ("EIGA"), Pub.L. No. 95-521 (codified as amended at 5 U.S.C. App. 4), establishes a system of public financial disclosure by senior Executive Branch officials and nominees to positions requiring Senate confirmation. See S. Rep. No. 95-170, at 21-22 (1977). Disclosure is made on Form SF 278, see 5 C.F.R. § 2634.601, and must include detailed information about, inter alia, the filer's property, debts, positions held with a business or organization, terms of any continued payments from a former employer, and the identity and source of compensation received. 5 U.S.C. App. 4 § 102. These reports must be released to the public upon request. Id. § 105(b)(1), (d). Officials often execute "ethics agreements," committing to specific actions such as divestiture or recusal to alleviate any actual or apparent conflicts of interest resulting from their financial interests. 5 C.F.R. § 2634.802(a). Executive Branch agency heads, including the Secretary of the Interior, are charged with primary responsibility for administering the "ethics in government program" within each agency, 5 C.F.R. § 2638.102(a), while the Office of Government Ethics ("OGE") — a separate office within the Executive Branch created by the EIGA — provides overall direction of Executive Branch policies relating to conflicts of interest. 5 U.S.C. App. 4 § 402(a).

  J. Steven Griles was nominated to serve as Deputy Secretary of the Interior on April 30, 2001, and was confirmed by the Senate on July 12, 2001. (Pl's Stmt. of Material Facts as to Which There is No Genuine Issue ["Pl.'s Stmt."] ¶ 2.) As the DOI's second-ranking official, Mr. Griles is responsible for managing public lands, including approximately 700 million acres of subsurface mineral rights. (Id. ¶ 3.) Before his appointment, Mr. Griles held executive positions with three energy lobbying firms, including J. Steven Griles and Associates, National Environmental Strategies ("NES"), and NES, Inc. In these positions, Mr. Griles represented a number of clients with energy interests, including an industry consortium — the Coalbed Methane Ad Hoc Committee. (Id. ¶ 12.) On April 24, 2001, Mr. Griles wrote a recusal letter, describing how he would avoid any actual or apparent conflicts of interest upon his confirmation. (Id. ¶ 13.) This included, inter alia, stepping down from his positions with NES and NES, Inc. in return for severance payments, and recusing himself from certain agency activities that might impact these companies. (Id. ¶¶ 13-14, 18.)*fn1 This is particularly relevant here because the DOI's Bureau of Land Management ("BLM") is contemplating allowing oil and gas companies to drill coalbed methane ("CBM") wells on DOI-administered lands in Wyoming and Montana. (Id. ¶ 7.)

  Mr. Griles' actions after taking office have prompted plaintiffs' FOIA inquiry. For example, he continued to meet with Marc Himmelstein, co-founder and head of NES. (Id. ¶ 22.) He also wrote and called the Environmental Protection Agency ("EPA") after it issued a draft environmental impact statement ("EIS") giving a poor rating to CBM mining in Wyoming. (Id. ¶ 23.) Thereafter, Mr. Griles met with the DOI Office of Solicitor and agreed that he would not participate in agency decisions concerning the EIS. On May 25, 2002, the Washington Post reported on Mr. Griles' potential conflicts of interest, and on June 20, 2002, the OGE contacted DOI to request that they address whether Mr. Griles had violated any ethics rules or his recusals. (Id. ¶¶ 26-27.) As a result, the OGE and DOI exchanged information and analyses concerning Mr. Griles' ethics compliance. In mid-March 2004, DOI's Office of Inspector General ("OIG") concluded an eighteen-month investigation and issued a report on these and other ethical questions surrounding Mr. Griles. OGE issued an opinion indicating that it would have advised Mr. Griles not to have contacted the EPA regarding the EIS, but it did not specifically conclude that an ethics violation had occurred. See Plaintiffs' Notice of Supplemental Authority and attachments thereto (filed on April 7, 2004).

 II. Plaintiffs' FOIA Requests

  Plaintiffs are not-for-profit organizations concerned with protecting the environment. On September 25, 2002, in order to "better understand how federal ethics laws were being applied at the Department of the Interior," specifically with regard to payments Mr. Griles was receiving from his former employers and as "to whether Mr. Griles was adhering to his several recusal agreements" (Pls.' Mot. for Partial S.J. ["Pls.' Mot."] at 11), they submitted a FOIA request to DOI seeking records relating to the financial disclosure reports, financial interests, ethics agreements, and other contracts or agreements of three named individuals: Mr. Griles, his Special Assistant Holly Hopkins, and Associate Deputy Secretary of the Interior James Cason.*fn2 (Sloca Decl., Ex. A.) In response, on December 6, 2002, DOI provided plaintiffs with copies of public financial disclosure reports filed by the named individuals and continued to process the request. On January 8, 2003, DOI sent plaintiffs an additional thirty-two pages and indicated that 352 pages were being withheld under FOIA exemptions. (Pls.' Stmt. ¶¶ 38-39.) DOI also referred one letter to OGE for a release decision. When plaintiffs appealed, DOI notified them by letter dated March 3, 2003, that the Office of Solicitor was reviewing the withholdings, but that their appeal in all other respects was denied. (Id. ¶ 44.) The Office of Solicitor released an additional forty-two pages of responsive documents by letter dated September 25, 2003.*fn3 (Defs.' Stmt. of Material Facts as to Which There Is No Genuine Issue ["Defs.' Stmt."] ¶ 13.) OGE notified plaintiffs that it would not release the three-page letter that DOI had referred to it, and it denied plaintiffs' appeal of this decision. (Pls.' Stmt. ¶¶ 45, 47; Defs.' Stmt. ¶ 18).

  Additionally, on March 11, 2003, plaintiffs made a FOIA request of OGE that was basically identical to the one that had been sent to DOI. OGE processed the request, and on September 7, 2003, it forwarded seventy-three pages of responsive material to plaintiffs, withholding approximately sixty additional pages based on FOIA exemptions. (Defs.' Stmt. 126.)

  Plaintiffs filed their complaint on June 3, 2003, claiming that defendants failed to produce agreements between Mr. Griles and his former firms (Count I) and withheld documents without authorization (Count II).*fn4 (Compl. ¶¶ 58-68.) The parties have filed cross-motions for summary judgment. They ask the Court to compel defendants to conduct an adequate search for records responsive to their FOIA requests, and they seek release of eleven specified documents. (Pls.'Mot. at 3 & n.1.) ANALYSIS

 I. Standard of Review

  In a FOIA case, the Court may award summary judgment solely based on the information provided in affidavits or declarations when they describe "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). An agency must prove that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation marks omitted). Summary judgment is not warranted if the declarations are "conclusory, merely reciting statutory standards, or . . . too vague or sweeping." King v. United States Dep't of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987) (internal citation and quotation marks omitted).

 II. Adequacy of the Search

  As an initial matter, plaintiffs allege that responsive documents were overlooked because the DOI and OGE conducted inadequate searches. Under FOIA, a defendant agency is obligated to conduct a "reasonable" search for responsive records using methods which can be reasonably expected to produce the information requested by plaintiff to the extent it exists. Weisburg v. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). "[T]he competence of any records-search is a matter dependent upon the circumstances of the case." Founding Church of Scientology of Wash., D.C., Inc. v. Nat'l Sec. Agency, 610 F.2d 824, 834 (D.C. Cir. 1979). In response to a challenge to the adequacy of its search, the agency may provide a "reasonably detailed affidavit, setting forth the search terms and type of search performed, and averring that all files likely to contain responsive materials . . . were searched." Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The agency need not "set forth with meticulous documentation the details of an epic search for the requested records," Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982) ("in the absence of countervailing evidence or apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA"), but it must show that the search method was "reasonably calculated to uncover all relevant documents." Weisburg, 745 F.2d at 1485; see also Oglesby, 920 F.2d at 68 (FOIA requires an agency to conduct only a reasonable search for requested records using "methods reasonably expected to produce the information requested"). "The issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry, 684 F.2d at 128. Agency declarations in this regard are afforded a presumption of good faith. See SafeCard Services, Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991). An adequate affidavit can be rebutted only "with evidence that the agency's search was not made in good faith." Trans Union LLC v. Fed. Trade Comm'n, 141 F. Supp.2d 62, 69 (D.D.C. 2001) (citing Maynard v. Cent. Intelligence Agency, 986 F.2d 547, 559 (1st Cir. 1993); Miller v. United States Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1985)).

  A. DOI Search

  In support of the adequacy of its search, DOI has submitted declarations and supplemental declarations from Sue Ellen Sloca, FOIA Officer for the DOI Office of Secretary ("OS"), and Shayla Freeman Simmons, Director of DOI's Ethics Office and DOI's Designated Agency Ethics Official ("DAEO"). These declarations describe the process by which DOI searched for responsive documents. In short, Ms. Sloca avers that upon receipt of plaintiffs' request, she determined that, given the nature of the materials sought, they were most likely to be found in two places within the OS: (1) the Secretary's Immediate Office, where the three named individuals were employed; or (2) the DOI Ethics Office, which manages the DOI's ethics program. (Sloca Decl. ¶ 3.) Ms. Sloca forwarded a copy of plaintiffs' request to Nancy Appler, who ...


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