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Friends of Blackwater v. United States Dep't of the Interior

September 20, 2005


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Before the Court are cross-motions for summary judgment filed by defendant U.S. Fish and Wildlife Service ("FWS") and plaintiff Friends of Blackwater. The issues for the Court to resolve have narrowed considerably since the filing of the parties' motions, leaving only the question of whether defendants' search for responsive documents was adequate within the meaning of FOIA. Since the Court concludes that it was not, it denies defendants' motion.


In August 2003, plaintiff Friends of Blackwater filed a request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(2000), with the United States Fish and Wildlife Service ("FWS" or "Service") for all documents relating to bird and bat mortality and injury caused by industrial wind turbine power-generating facilities, as well as documents relating to the Service's enforcement of related environmental laws, particularly the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. §§ 703 et seq. (2000), the Bald and Golden Eagle Protection Act ("BGEPA"), 16 U.S.C. § 688 (2000), and the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. §§ 1531 et seq. (See Harris Decl. ¶ 3 & Ex. A; Defendants' Statement of Material Facts ("Defs.' Facts") ¶ 1; Memorandum in Support of Plaintiff's Cross-Motion for Summary Judgment and In Opposition to Defendants' Motion for Summary Judgment ("Pl.'s Mot.") at 1.)

The FWS's FOIA officer for the Division of Policy and Directives Management examined the request and determined that the FWS divisions most likely to maintain responsive documents were the Office of Law Enforcement and the Division of Migratory Bird Management. (Defs.' Facts ¶ 3.) On April 5, 2004, the Office of Law Enforcement produced eight investigative reports, partially redacted pursuant to FOIA Exemptions 6 and 7(c), which permit an agency to withhold information to protect personal privacy. 5 U.S.C. §§ 552(b)(6) and (b)(7)(C). (Defs.' Facts ¶ 5; Harris Decl. ¶ 6 and Ex. B.) The Office of Law Enforcement further withheld 78 investigative reports in full pursuant to FOIA Exemption 7(A), on the grounds that they "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). (Defs.' Facts ¶ 5.) The Division of Migratory Bird Management released one academic article on avian mortality published by a staff member of the FWS and directed plaintiff to a website containing more related articles. (Defs.' Facts ¶ 7.)

Plaintiff initiated an administrative appeal on May 18, 2004, and was informed on June 25, 2004, that due to a backlog of such requests, the review would be delayed. (Plaintiff's Statement of Material Facts (Pl.'s Facts) ¶ 14.) Under FOIA, plaintiff was entitled to treat the delay as a denial of its appeal and seek judicial review. 5 U.S.C. §§ 552(a)(4)(B) and (a)(6)(A)(ii). Exercising its rights under the statute, plaintiff filed this action on November 16, 2004. Since the commencement of this suit, the parties have engaged in significant and productive discussions to narrow the scope of their dispute. Prior to the filing of their motions for summary judgment, and after conducting a further search for responsive records, the Service released additional closed investigative files (leaving 57 investigative reports still in dispute), some of the redacted information contained in previously released documents, and more documents from the Division of Migratory Bird Management. (Pl.'s Facts ¶ 15.)

The Service filed a motion for summary judgment on March 28, 2005, arguing that it had complied with the requirements of FOIA by conducting a search reasonably designed to discover material responsive to plaintiff's request, articulating the rationale behind its search methodology and justifying the withholding of responsive material under various FOIA exemptions. (Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment (Defs.' Mot.) at 7.) In support of its motion, the Service attached declarations from Donald Harris, an attorney in the Office of the Solicitor at the Department of the Interior who oversaw the processing of responsive documents; Circee Pieters, who is the FOIA Coordinator for the Office of Law Enforcement; Albert Manville, a biologist in the Division of Migratory Bird Management; and James Scott Heard, a Supervisory Special Agent with the FWS's Office of Law Enforcement in Sacramento, California who is responsible for enforcement actions with regard to wind turbine avian mortality in that region. Each attested to the process used to cull responsive documents from the files of their respective divisions and to the nature of any documents withheld under a statutory exemption.

On May 12, 2005, Friends of Blackwater filed an opposition to defendants' motion for summary judgment, as well as a cross-motion for summary judgment. Friends of Blackwater asserted two claims in support of its motion: first, that the Service had failed to justify its withholding of documents pursuant to Exemption 7(A) because the FWS had not demonstrated that the files constituted active law enforcement proceedings and did not disclose reasonably segregable portions of the withheld files. (Pl.'s Mot. at 19-29.) Second, Friends of Blackwater asserted that the agency had not demonstrated that its search was adequate (Pl.'s Mot. at 27-29), i.e., "reasonably calculated to uncover all relevant documents." Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (internal quotation marks omitted). After the initial filing of the cross motions for summary judgment, further progress was made. A telephone conference between senior staff at the FWS's Office of Law Enforcement and plaintiff's counsel resulted in the June 21, 2005 production of all the law enforcement documents initially withheld by the government pursuant to Exemption 7(A). (Defendants' Opposition to Plaintiff's Cross-Motion for Summary Judgment (Defs.' Opp.) at 5.) This document production effectively mooted plaintiff's first ground for summary judgment, leaving only the adequacy of the government's search to be determined by this Court.


I. Summary Judgment Standard

In a FOIA case, summary judgment may be granted to the government if "the agency proves that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester." Greenberg v. United States Dep't of Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998); see Fed. R. Civ. P. 56(c). The Court may award summary judgment based solely on the information provided in affidavits or declarations when the affidavits or declarations 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. Central Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted). Review of the agency's denial of a FOIA request is de novo, and the agency "bears the burden of establishing the applicability of the claimed exemption." Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003).

II. Adequacy

A. Search of FWS Leadership Offices

Having resolved all disputes regarding defendants' initial nondisclosure of documents based on various FOIA exemptions,, the parties have now narrowed their dispute to only the issue of the adequacy of the government's search. Summary judgment should be issued in favor of the government where the agency can show "that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). See also Weisberg v. United States 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). Thus, in response to a challenge to the adequacy of its search, the agency must 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, 920 F.2d at 68. 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 cannot be "so general as to raise a serious doubt whether the [agency] conducted a reasonably thorough search of its records." Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). While agency declarations in this regard are afforded a presumption of good faith, see SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991); see ...

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