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Center for Biological Diversity v. Gutierrez

August 10, 2006

CENTER FOR BIOLOGICAL DIVERSITY, PLAINTIFF,
v.
CARLOS GUTIERREZ, SECRETARY, DEPARTMENT OF COMMERCE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

The Center for Biological Diversity ("Center"), a nonprofit corporation that endeavors to protect imperiled species and their habitats, submitted three requests to the National Marine Fisheries Service ("NMFS")*fn1 for information about three coral species for which the Center had petitioned for protection as endangered species. NMFS released some documents and withheld or redacted others. The Center sues under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, alleging that NMFS acted too slowly and withheld information it should have released.

In the meantime, NMFS completed its study of the coral species and concluded that two of the species for which the Center petitioned, Acropora palmata (Elkhorn Coral) and A. cervicornis (Staghorn Coral), warranted listing as threatened species. A proposed rule to that effect was published in the Federal Register on May 9, 2005.*fn2 Success on its petition to list these species as endangered has not, however, mooted the Center's suit. Indeed, its goal here is broader: The Center hopes the requested documents will lend insight into NMFS's decisionmaking process, so that it might more effectively respond to future NMFS actions. See Am. Compl. ¶¶ 21, 51.

NMFS's motion to dismiss, and the parties' cross-motions for summary judgment, are fully briefed and ripe for decision. As explained below, the Court will grant NMFS's motion to dismiss, and will grant in part and deny without prejudice in part its motion for summary judgment. The Court will deny without prejudice the Center's motion for summary judgment.

I. BACKGROUND

The Center submitted a formal administrative petition to NMFS on March 3, 2004, seeking to protect Elkhorn Coral, Staghorn Coral, and A. prolifera (Fused-Staghorn Coral) under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544. Am. Compl. ¶ 47. On June 23, 2004, NMFS announced that listing the coral as endangered may be warranted. Id. ¶ 48. As part of its review, NMFS solicited public comments. The comment period ended on August 23, 2004.

A. Request 557

To obtain copies of the public comments, the Center submitted a FOIA request to NMFS on August 27, 2004. NMFS labeled this request FOIA Request #2004-00557 ("Request 557"). By letter dated October 15, 2004, and received on October 22, 2004, see Am. Compl. ¶ 54, NMFS released 223 pages of records but redacted contact information from three of the comments received electronically, including one submitted by the Center itself. See Defs.' Mot. Ex. C. NMFS invoked FOIA Exemption 6 to justify the redactions.*fn3

The Center appealed NMFS's decision to redact contact information from the three emails, arguing that Exemption 6 "does not provide authority to withhold the contact information of individuals who submitted public comments." Defs.' Mot. Ex. C (emphasis deleted). Its appeal, submitted electronically, was received by NMFS on November 15, 2004, at 5:12 p.m. Eastern Time. Id. Under an amended regulation published by the Department of Commerce on August 12, 2004, a FOIA requester "may file a written appeal or an electronic appeal, which must be received by the Office of General Counsel during normal business hours (8:30 a.m. to 5 p.m., Eastern Time, Monday through Friday) within thirty calendar days of the date of the written denial . . . . Written or electronic appeals arriving after normal business hours will be deemed received on the next normal business day." 15 C.F.R. § 4.10(a) (emphasis added).*fn4 Because the Center's appeal was received at 5:12 p.m., it was deemed filed on the next business day and was denied as untimely.

B. Request 593

The Center filed two further FOIA requests on October 1, 2004,*fn5 which the Court refers to as Requests 593 and 594. Request 593 sought certain documents related to Carribean Acroporids from the files of Mrs. Jennifer Ann Moore (née Jacukiewicz). In response to Request 593, on January 9, 2005, NMFS released 397 pages of records and withheld 16 documents in whole or in part under FOIA Exemption 5, the deliberative process privilege.*fn6 The Center appealed this decision on February 16, 2005. On July 8, 2005, NMFS responded to the appeal of Request 593 by releasing one additional document in full and portions of two additional documents. It continued to withhold or redact the 15 remaining documents, one on the basis of attorney-client privilege.

Of those documents withheld entirely:

a. Document #1 is a September 23, 2003, email from Stephania Bolden, a NOAA employee, to Cheryl Scannell, a NOAA attorney, with copies to other NOAA employees. The email constituted a "request for legal advice from a NMFS researcher to a NOAA attorney." Defs.' Mot. Ex. B, Vaughn*fn7 Index ("Index") at 1.

b. Document #2 is a May 25, 2001 [sic], four-page draft headed, "Assessment of Endangered Species Act (ESA) Candidate Acroporid Coral Populations in U.S. Waters," written by an unidentified NOAA employee, with handwritten notes on the first page. It is described as "preliminary recommendations by NOAA employees for NOAA decisionmakers." NMFS asserts that the factual information in the document is also protected as part of the deliberative process because it was "selectively chosen as part of the decisionmaking process" and constitutes "an integral part of the deliberations undertaken by Commerce in determining how to structure the ESA assessment of candidate acroporid populations." According to NMFS, the document advised "on how NOAA should go about developing and implementing a program to inventory, assess, and monitor U.S. coral reef ecosystems." Id. at 2.

c. Document #3 is a November 12, 2003, one-page draft titled "Overview-Atlantic Acropora Status Review Suggested Format," written by an unidentified NOAA employee, attached to an email from Andy Bruckner to Mrs. Moore. It "consists of preliminary recommendations . . . which were part of Commerce's deliberations concerning decisions on how to structure the Atlantic Acropora status review and what should be included in the process." Id. at 2-3.

d. Document #4, dated December 15, 2003, is an 18-page attachment to an email from Stephania Bolden to Andy Bruckner, and is a draft titled "Atlantic Acropora Status Review" written by an unidentified NOAA employee. It is described as "preliminary recommendations by NOAA employees for NOAA decisionmakers, which were part of Commerce's deliberations concerning decisions on ESA listings." Id. at 3.

e. Document #5 is undated and has no title. It consists of 36 pages and was described as a "status review skeleton" in the cover email dated February 11, 2004, from Stephania Bolden to Mrs. Moore and other NMFS employees and consultants. It is described as "preliminary recommendations by NOAA employees and consultants for NOAA decisionmakers, who were part of NOAA's deliberations concerning decisions on ESA listings." Id. at 4. It was designed as "an integral part of the deliberations undertaken by Commerce in determining how to structure the ESA assessment of candidate acroporid populations." Id. at 4-5.

The declaration of Beverly J. Smith, an NMFS analyst, further states that Documents #2-5 "consist[] of internal, NOAA predecisional deliberative opinions and recommendations concerning whether, inter alia, Staghorn coral, Elkhorn coral, and other coral species should be designated as threatened or endangered species for placement on the Endangered Species list, how to structure the deliberations, what to take into account, and what should go into a final decision." Smith Decl. ¶ 8.

Of those documents withheld in part - all emails, some of which contained attachments - the Index provides two kinds of answers, depending on whether (i) the email merely communicated between NOAA employees, or (ii) non-NOAA consultants were copied on the email. This generic language (with the language referring to consultants in brackets) reads virtually identically for all responses:

The withheld portions consist of preliminary recommendations by NOAA employees [and consultants] for NOAA decisionmakers, which were part of Commerce's deliberations concerning decisions on how to structure the Atlantic Acropora status review and what should be included in the process. [The consultants were providing opinions and recommendations to NOAA and had no personal stake in the outcome of the decisionmaking process or the final decision.] The withheld portions are predecisional and deliberative. Release would discourage open, frank discussions on how NOAA should go about developing and implementing a program to inventory, assess, and monitor U.S. coral reef ecosystems. The redacted portions are withheld under [the] (b)(5) deliberative process privilege and do not represent a final agency decision the matter contained therein.

See, e.g., Index at 9. In one format or the other, this paragraph is used by NMFS to explain redactions from:

f. Document #6, a one-page attachment to a September 26, 2003, email from Mrs. Moore to other NOAA employees and consultants, titled "Atlantic Acropora Biological Review Team Update Sheet." Id. at 5-6.

g. Document #7, an August 20, 2003, two-page email from David Bernhart to Stephania Bolden. Id. at 6.

h. Document #8, a October 6, 2003, one-page email from Mrs. Moore to Georgia Cranmore, a NOAA employee. Id. at 6-7.

i. Document #9, a November 7, 2003, one-page email from Stephania Bolden to Mrs. Moore. Id. at 7.

j. Document #10, a December 1, 2003, four-page email from Stephania Bolden to ...


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