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Public Employees for Environmental Responsibility v. U.S. Dep't of the Interior

November 28, 2006


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Currently pending before the Court is a Motion to Dismiss or in the Alternative for Summary Judgment filed by Defendant, the United States Department of the Interior ("DOI"), with respect to Plaintiff's action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. §522.*fn1 In addition to opposing DOI's motion for summary judgment, Plaintiff has filed a cross-motion for summary judgment. Upon a searching review of the relevant pleadings filed by each party, the attached memoranda, declarations, and exhibits, and the relevant case law, the Court shall grant Defendant DOI's motion for summary judgment and shall deny Plaintiff's cross-motion for summary judgment.


Plaintiff, Public Employees for Environmental Responsibility ("PEER") is a non-profit organization in the District of Columbia. Compl. ¶ 3. On September 1, 2005, PEER made a request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522, seeking "documents in connection with the efforts of the office of the [DOI] Assistant Secretary for Fish, Wildlife and Parks to revise the Management Policies of the National Park Service" ("NPS"). Def.'s Stmt. of Mat. Facts ¶ 1; Pl.'s Stmt. of Mat. Facts ¶ 1; Pl.'s Mem. of Points and Auth. in Opp'n to Def.'s Mot. to Dismiss or for Summ. J. (hereinafter "Pl.'s Opp'n") Ex. 1 at 1 (9/9/05 Letter from DOI FOIA Officer to PEER). PEER specifically requested "copies of all documents in that office, or the offices of subordinate staff . . . of any communications with any party OUTSIDE of the Federal Government and related to the revision of NPS Management Policies" for the period beginning January 1, 2005 through September 1, 2005. Id.

On September 9, 2005, DOI sent a letter to PEER acknowledging receipt of PEER's FOIA request on September 7, 2005 and stating that "[b]ecause [DOI would] need to consult with one or more offices of the Department in order to process [PEER's] request, the Office of the Secretary FOIA office [was] taking a 10-working-day time extension, under 43 C.F.R. 2.13, in order to properly process [PEER's] request." Pl.'s Stmt. of Mat. Facts. ¶ 2; Pl.'s Opp'n Ex. 1 at 2 (9/9/05 Letter from DOI FOIA Office to PEER). On December 13, 2005, having not received a response to its FOIA request, PEER sent a letter to DOI informing the agency that it was construing the agency's failure to respond as a denial of its request and that it was appealing the denial. Pl.'s Stmt. of Mat. Facts ¶ 3. On December 29, 2005, PEER received a letter from DOI acknowledging receipt of PEER's December 13 appeal and indicating that DOI would "make every effort to reach a decision on [PEER's] appeal" within the 20 workday time limit imposed by the FOIA. Id. ¶ 4; Pl.'s Opp'n Ex. 1 at 4 (12/29/05 Letter from FOIA Appeals Officer). On February 2, 2006, PEER filed a Complaint before this Court, seeking a declaration that DOI violated FOIA, an injunction compelling DOI to produce the requested documents, and an award of all costs and attorneys' fees. Pl.'s Stmt. of Mat. Facts ¶ 5.

On February 13, 2006, DOI replied to Plaintiff's FOIA request by sending PEER twenty-one (21) files containing forty-nine (49) pages of records. Def.'s Stmt. of Mat. Facts ¶ 2; Pl.'s Stmt. of Mat. Facts ¶ 6. The cover letter accompanying this production apologized for DOI's delay in acknowledging PEER's FOIA request and cited "[a]n extremely heavy workload in the Office of the Secretary FOIA office, together with a shortage of staff" as reasons for the "backlog of FOIA requests waiting to be processed." Pl.'s Stmt. of Mat. Facts. ¶ 6; Pl.'s Opp'n Ex.1 at 5 (2/13/06 Letter from Lizzette Katilius). On February 14, 2006, the DOI FOIA Appeals Officer sent PEER a letter stating that DOI considered the February 13, 2006 response to PEER's FOIA request to have "resolve[d] the issue in the appeal of a failure to respond" and that "the Department [was] closing its files on this matter." Pl.'s Stmt. of Mat. Facts ¶ 7; Pl.'s Opp'n Ex. 1 at 10 (2/14/06 Letter from FOIA Appeals Officer). On March 30, 2006, PEER sent DOI a letter explaining why it believed the documents provided by DOI in response to PEER's FOIA request to be insufficient. Pl.'s Stmt. of Mat. Facts ¶ 9; Def.'s Resp. to Pl.'s Stmt. of Mat. Facts ¶ 9; Pl.'s Opp'n Ex. 2 (3/30/06 Letter from PEER).*fn2 DOI subsequently released additional records to PEER on May 4, 2006 (an additional twenty-five (25) files totaling 58 pages, Def.'s Stmt. of Mat. Facts ¶ 3), May 9, 2006 and June 6, 2006. Pl.'s Stmt. of Mat. Facts ¶¶ 12-14; Def.'s Stmt. of Mat. Facts ¶ 4; Def.'s Resp. to Pl.'s Stmt. of Mat. Facts ¶¶ 12-14; Pl.'s Opp'n Ex. 1 at 11-14. DOI withheld parts of five documents from its response -- portions of three documents pursuant to Exemption 5 and portions of two documents pursuant to Exemption 6 of the FOIA, 5 U.S.C. § 522(b)(5) and (b)(6). Def.'s Stmt. of Mat. Facts ¶ 5; Pl.'s Stmt. of Mat. Facts ¶ 16.*fn3 DOI asserts that it has released "reasonably segregable factual material" from these five documents "wherever possible, unless such factual information is inextricably intertwined with the deliberative process material, or unless the content of the document would reveal the nature of the deliberative process." Def.'s Stmt. of Mat. Facts. ¶ 6.

On June 6, 2006, DOI filed a Motion to Dismiss or in the Alternative for Summary Judgment. DOI asserted that it was entitled to summary judgment because its "search was adequate and its redacting of information proper under applicable law." Def.'s Mem. of Points and Auths. in Support of Mot. to Dismiss or in the Alternative for Summ. J. (hereinafter Def.'s Mot.") at 6. On July 1, 2006, PEER opposed DOI's Motion, arguing that DOI "engages in a policy and practice that violates FOIA by illegally delaying its response to PEER's request until suit is filed," Pl.'s Opp'n at 7-8, and that DOI had improperly invoked FOIA Exemption 5, id. at 8-9. On July 3, 2006, PEER additionally filed a Cross-Motion for Summary Judgment, incorporating by reference its memorandum filed in opposition to DOI's motion for summary judgment. DOI filed a Reply and Opposition to PEER's Cross-Motion for Summary Judgment on July 21, 2006, to which PEER filed a Reply on August 3, 2006.


In reviewing a motion for summary judgment under the FOIA, the Court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). In the FOIA context, "de novo review requires the court to 'ascertain whether the agency has sustained its burden of demonstrating that the documents requested are not "agency records" or are exempt from disclosure under the FOIA.'" Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998)).

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only when there is sufficient evidence such that a reasonable juror could find for the party opposing the motion. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251-42, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Furthermore, entry of summary judgment is mandated against a party if, after adequate time for discovery and upon motion, the party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. Internal Revenue Serv., 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980). Under FOIA, all underlying facts and inferences are analyzed in the light most favorable to the FOIA requester; as such, only after an agency seeking it proves that it has fully discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F. Supp 32, 35 (D.D.C. 1996) (citing Weisberg v. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). The agency bears the burden of demonstrating that its search was adequate and in good faith. Tarullo v. Dep't of Defense, 170 F. Supp. 2d 271, 274 (D. Conn. 2001). A good faith search effort uses methods that can be reasonably expected to produce the information requested. See Ogelsby v. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).

As a general rule, an agency must make its records available to a requester under the FOIA with some exceptions. See 5 U.S.C. §§ 552(a)(3) & (b). The FOIA contains nine statutory exemptions under which the Government may properly withhold requested information. Id. § 552(a)(4)(B). The agency must demonstratethe validity of any exemption that it asserts. See id.; Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) ("[c]onsistent with the purpose of the Act, the burden is on the agencyto justify withholding requested documents"). An agency seeking to withhold information must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply. King v. Dep't of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987). In addition, the agency must detail what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document. Mead Data Cent. Inc. v. United States Dep't of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). Any non-exempt information that is reasonably segregable from the requested records must be disclosed. Oglesby, 79 F.3d at 1178. Moreover, district courts are required to consider segregability issues even when the parties have not specifically raised such claims.

Trans-Pacific Policing Agreement v. United States Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).

The submission of an agency declaration that describes the withheld material with reasonable specificity as well as the reasons for nondisclosure may satisfy the Government's burden. See Campbell v. Dep't of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998). The justifications cannot be conclusory, merely reciting statutory standards, vague, or sweeping. King, 830 F.2d at 219. However, "summary judgment may be granted solely on the basis of agency affidavits provided that they are clear, specific, and reasonably detailed, and there is no contradictory evidence of agency bad faith." W. Ctr. for Journalism v. Internal Revenue Serv., 116 ...

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