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Skull Valley Band of Goshute Indians v. Kempthorne

March 26, 2007

SKULL VALLEY BAND OF GOSHUTE INDIANS, ET AL., PLAINTIFFS,
v.
DIRK KEMPTHORNE, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Currently pending before the Court are cross-motions for partial summary judgment filed by Plaintiffs -- the Skull Valley Band of Goshute Indians and Leon D. Bear, the Chairman of the Skull Valley Band of Goshute Indians (collectively, "Plaintiffs") -- and Defendants -- Secretary of the Interior, Deputy Secretary of the Interior,*fn1 and the United States Department of the Interior (collectively "Defendants") -- with respect to Plaintiffs' action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. §522. In addition, Defendants have filed a motion to strike a Notice of Final Administrative Decision filed by Plaintiffs regarding a related administrative proceeding, which the Court shall deny. Upon a searching review of the pleadings filed by each party, the attached memoranda, declarations, and exhibits, and the relevant case law, the Court shall grant Defendants' partial Motion for Summary Judgment and shall deny Plaintiff's Cross-Motion for Partial Summary Judgment.

I. BACKGROUND

Plaintiff Skull Valley Band of Goshute Indians (the "Band") is a federally-recognized Indian Tribe, which owns beneficial title to an Indian reservation set aside pursuant to the Treaty of October 12, 1863 between the United States and the Goship Indians. Compl. ¶ 2. Plaintiff Leon D. Bear is the Chairman of the Executive Committee of the Skull Valley Band of Goshute Indians. Id. ¶ 3. Defendants in this action are the Secretary of the Interior, the Deputy Secretary of the Interior, and the United States Department of the Interior. Id. ¶¶ 4-6.

Plaintiffs devote substantial portions of their memorandum in support of their Cross-Motion for Partial Summary Judgment, their Statement of Material Facts accompanying their Cross-Motion for Partial Summary Judgment, and their Opposition to Defendants' Motion for Summary Judgment describing the events and circumstances that led them to file their FOIA request. However, a party's "need or intended use for the documents is irrelevant to [that party's] FOIA action" and "has no bearing on the merits of [that party's] FOIA request." North v. Walsh, 881 F.2d 1088, 1096-97 (D.C. Cir. 1989 (quoting United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 1480, 103 L.Ed. 2d 774 (1989). As Plaintiffs' detailed recitation of the facts leading up to the filing of their FOIA request is therefore entirely irrelevant to the FOIA action before this Court, the Court will limit its discussion of background facts to those related to Plaintiffs' FOIA request and Defendants' response thereto.*fn2

On May 5, 2003, Plaintiff Bear, on behalf of the Band, sent a FOIA request to Defendant Norton, with copies to nine offices within the Department of the Interior -- the Office of the Deputy Secretary, the Office of the Assistant Secretary for Policy Management and Budget, the Office of the Assistant Secretary for Indian Affairs, the Office of the Assistant Secretary for Land and Minerals Management, the Office of Congressional and Legislative Affairs, the Office of Public Affairs, the Office of the Solicitor, the Office of Hearing and Appeals, and the Office of the Inspector General. 7/19/04 Decl. of Sue Ellen Sloca (hereinafter "Sloca Decl."), Ex. A (5/5/03 Letter from L. Bear to G. Norton).*fn3 Plaintiffs' FOIA request asked Secretary Norton To disclose all records of communications since January 1, 2001 (including formal and informal communications, unsigned briefings, e-mail communications, and notes of telephone conversations) with officials and employees of the [ten offices to whom Plaintiffs' FOIA request was mailed], regarding the Skull Valley Band of Goshute Indians or the proposed Private Fuel Storage Facility which is the subject of a lease, which was approved by the Bureau of Indian Affairs on May 23, 1997.

Id. at 1-2.

In addition, Plaintiffs' FOIA request sought "records of all such communications" with the following individuals or entities, including anyone on their staffs or anyone communicating on their behalf, as well as copies of communications among these individuals and entities to the extent that such communications were in the custody of the Department of the Interior: (1) the Governor of Utah, including communications from the Utah Department of Environmental Quality or the Office of the Utah Attorney General; (2) current or former members of the Utah Congressional Delegation; (3) the White House or the Office of Management and Budget, or otherwise from the Executive Office of the President; (4) the Department of Energy; (5) the Department of Defense, including the Department of the Air Force; and (6) individual members of the Skull Valley Band, representatives of Ohngo Gaudadeh Devia (OGD), or attorneys representing either OGD or individual members of the Band. Id. at 2. Plaintiffs' FOIA request specifically stated that they were not seeking communications with the Bureau of Indian Affairs, the Bureau of Land Management, or the Nuclear Regulatory Commission. Id.

The Secretary's copy of Plaintiff's FOIA request was received by the Office of Executive Secretariat and forwarded to the Office of the Secretary ("OS") FOIA office for action. Defs' Stmt of Mat'l Facts Not in Dispute (hereinafter "Defs.' Stmt.") ¶ 2; Sloca Decl. ¶ 3. The OS FOIA office received Plaintiffs' request on May 20 2003, and acknowledged receipt of Plaintiffs' request by letter dated May 22, 2003. Defs.' Stmt. ¶ 2; Sloca Decl. ¶ 3, Ex. B (5/22/03 Letter from S. Sloca to L. Bear). Also on May 22, 2003, the OS initiated a search for responsive documents in the Secretary's Immediate Office, in the nine additional offices to which Plaintiffs' FOIA request was addressed and mailed, and in two additional offices within the Office of the Secretary -- the Office of Policy Analysis and the Office of Environmental Policy and Compliance. Defs.' Stmt. ¶ 3; Sloca Decl. ¶ 4. By letter dated July 14, 2003, the OS provided Plaintiffs with copies of responsive documents located in the Office of Hearings and Appeals and the Office of the Solicitor. Defs.' Stmt. ¶ 4; Pls.' Stmt. of Mat'l Facts Accompanying Pls.' Cross-Motion for Summ. J. (hereinafter "Pls.' Stmt.") ¶ 12; Sloca Decl. ¶ 5, Ex. C (7/14/03 Letter from S. Sloca to L. Bear). The OS provided Plaintiffs with 25 documents totaling 309 pages, but withheld portions of some documents pursuant to FOIA Exemption 5, 5 U.S.C. § 552(b)(5). Id.

On August 5, 2003, the OS provided Plaintiffs with a second set of copies of responsive documents, indicating that the documents were located in the Office of the Solicitor, the Secretary's Immediate Office, the Office of the Deputy Secretary, the Office of Public Affairs, the Office of Congressional and Legislative Affairs, the Office of the Assistant Secretary for Land and Minerals Management, and the Office of the Assistant Secretary for Policy Management and Budget. Defs.' Stmt. ¶ 5; Pls.' Stmt. ¶ 13; Sloca Decl. ¶ 6, Ex. D (8/5/03 Letter from S. Sloca to L. Bear). The OS provided Plaintiffs with 67 documents totaling 414 pages, and withheld portions of some documents pursuant to FOIA Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5) and (b)(6). Id.

By letter dated September 13, 2003, Plaintiffs appealed the OS' withholding and redaction of documents pursuant to FOIA Exemption 5. Defs.' Stmt. ¶ 6; Sloca Decl. ¶ 6; Pls.' Stmt. ¶ 15; Pls.' Cross-Mot. for Partial Summ. J. (hereinafter "Pls.' Cross-Mot."), Ex. M (9/13/03 Letter from L. Bear). This appeal was followed by a September 23, 2003 Supplemental Legal Memorandum from counsel for the Band supplementing the earlier appeal. Pls.' Stmt. ¶ 15; Pls.' Cross-Mot., Ex. N (9/23/03 Letter from T. Vollman). The OS FOIA office did not respond to Plaintiffs' appeal. Pls.' Stmt. ¶ 16; Compl. ¶ 35. Instead, on February 3, 2004, the OS provided Plaintiffs with copies of two (2) responsive documents totaling four (4) pages located in the Office of the Inspector General, but redacted certain information pursuant to FOIA Exemption 6, 5 U.S.C. § 552(b)(6). Defs.' Stmt. ¶ 7; Pls.' Stmt. ¶ 14; Sloca Decl. ¶ 7, Ex. E (2/3/04 Letter from S. Sloca to L. Bear).*fn4

Plaintiffs assert that "[u]nder 5 U.S.C. § 552(a)(6)(A)(ii), Defendants should have made a determination with respect to Plaintiffs' administrative appeal in October 2003." Compl. ¶ 35. Having received no response to their administrative appeal, Plaintiffs filed the instant FOIA action on March 2, 2004. Id. Plaintiffs' Complaint challenges Defendants' failure to respond to Plaintiffs' administrative appeal within the time prescribed in 5 U.S.C. § 552(a)(6)(A)(ii) and further alleges that Defendants "have unlawfully withheld and refused to disclose records, including reasonably segregable portions thereof, on communications between Executive Branch officials and persons outside of the Executive Branch, which records are within the scope of Plaintiffs' Freedom of Information Act request of May 5, 2003 . . . ." Compl. ¶¶ 36-39. In addition, Plaintiffs' Complaint alleges that Defendants denied Plaintiffs their rights to due process of law under the Fifth Amendment to the United States Constitution, that Defendants violated the Administrative Procedure Act, 5 U.S.C. § 706, and that Defendants have treated Plaintiffs unfairly and violated their trust responsibility to the Skull Valley Band. Compl. ¶¶ 40-45. Only Plaintiffs' FOIA claims are at issue in the instant cross-motions for partial summary judgment.

Defendants assert that the "OS was unable to complete its document production before the Plaintiffs filed the instant law suit on March 2, 2004." Defs.' Stmt. ¶ 8. Nevertheless, by letters dated April 4, 2004 and July 2, 2004, the OS provided Plaintiffs with copies of responsive documents located in the Office of the Assistant Secretary for Indian Affairs, the Office of the Deputy Secretary, and the Office of the Secretary. Id. ¶ 9; Pls.' Stmt. ¶¶ 16-17; Sloca Decl. ¶ 8, Exs. F (4/8/04 Letter from S. Sloca to L. Bear) and G (7/2/04 Letter from S. Sloca to L. Bear). In addition, in connection with the instant action, Defendants undertook a further review of the documents previously withheld in whole or in part, and released documents and additional portions of documents previously withheld in part along with the OS' July 2, 2004 letter. Defs.' Stmt. ¶ 10; Pls.' Stmt. ¶ 17; Sloca Decl. ¶ 9, Ex. G (7/2/04 Letter from S. Sloca to L. Bear).

On July 19, 2004, Defendants filed their Motion for Summary Judgment, and Plaintiffs filed their Cross-Motion for Partial Summary Judgment. Along with their Motion for Summary Judgment, Defendants submitted a Vaughn index, which describes each document withheld in whole or in part from Defendants' FOIA production. Sloca Decl. ¶ 10, Ex. H (Vaughn Index). Also with their Motion for Summary Judgment, Defendants provided Plaintiffs with copies of records previously withheld in whole or in part, which Defendants determined to release based on their segregability analysis. Defs.' Stmt. ¶ 11; Sloca Decl. ¶ 11, Ex. I. Plaintiffs filed their Opposition to Defendants' Motion for Summary Judgment on August 2, 2004, and Defendants filed their Opposition to Plaintiffs' Cross-Motion for Partial Summary Judgment on August 3, 2004.

Thereafter, on August 6, 2004 and March 2, 2005, Plaintiffs filed Notices of decisions in what Plaintiffs considered to be a related case and administrative proceeding. On September 22, 2005, Plaintiffs filed a Notice of Final Administrative Decision in Related Proceeding, which Defendants subsequently objected to and moved to strike on October 7, 2005. Finally, on March 15, 2006, Plaintiffs filed a Notice of Related Final Agency Action.

II: LEGAL STANDARD

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).

Congress enacted FOIA for the purpose of introducing transparency to government activities. See Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 88 (D.C. Cir. 1984). Congress remained sensitive, however, to the need to achieve balance between this objective and the vulnerability of "legitimate governmental and private interests [that] could be harmed by release of certain types of information." Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992); see also Summers v. Dep't of Justice, 140 F.3d 1077, 1079 (D.C. Cir. 1998). Accordingly, FOIA provides nine exemptions pursuant to which an agency may withhold requested information. See 5 U.S.C. §§ 552(a)(4)(B), (b)(1)-(9). 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"). To satisfy this burden, the agency may provide a plaintiff "with a Vaughn index, which must adequately describe each withheld document, state which exemption the agency claims for each withheld document, and explain the exemption's relevance." Johnson v. Exec. Office for U.S. Att'ys, 310 F.3d 771, 774 (D.C. Cir. 2002); see also Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973). In addition, summary judgment may be granted on the basis of the agency's accompanying affidavits or declarations if 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 evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). These affidavits may be submitted by an official who coordinated the search, and need not be from each individual who participated in the search. See SafeCard Servs. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991).

There is no set formula for a Vaughn index; so long as the agency provides the Court with materials providing a "reasonable basis to evaluate the claim of privilege," the precise form of the agency's submission -- whether it be an index, a detailed declaration, or a narrative -- is immaterial. Gallant v. Nat'l Labor Relations Bd., 26 F.3d 168, 173 (D.C. Cir. 1994) (internal citations omitted). While Vaughn indexes are generally discretionary, affidavits alone may not suffice once it is established that records and documents are in a governmental agency's possession. Miscavige, 2 F.3d at 368 (citing Stephenson v. Fed. Bureau of Investigation, 629 F.2d 1140, 1144-45(5th Cir. 1980)). Therefore, it is in a governmental agency's best interest to provide a Vaughn index when claiming privilege, should it seek to satisfy its disclosure burden.

Courts must "accord substantial weight" to an agency's affidavit regarding FOIA exemptions. 5 U.S.C. § 552(a)(4)(B) (2004); see also Carney v. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994), cert. denied, 513 U.S. 823, 115 S.Ct. 86, 130 L.Ed. 2d 38 (1994) ("Affidavits submitted by an agency are 'accorded a presumption of good faith.'") (quoting SafeCard Servs., Inc., 926 F.2d at 1200). Indeed, since FOIA exemptions are narrowly construed, should an agency correctly show that the FOIA does not apply to withheld material, the Court's review of the agency's decision is limited to determining whether the agency abused its discretion. Mead Data Cent. Inc. v. Dep't of Air Force, 566 F.2d 242, 259 (D.C. Cir. 1977). Therefore, should an exemption correctly apply, an agency's justification for withholding information need not allude to a specific injury. See id. at 258-59 (permitting the agency to rely upon the explanation that disclosure "would impair the deliberative process . . . by impairing the free and frank exchange of ideas among [agency] personnel").

Moreover, 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., 566 F.2d at 261. Any non-exempt information that is reasonably segregable from the requested records must be disclosed. Ogelsby, 79 F.3d at 1178. In addition, district courts are required to consider segregability issues sua sponte even when the parties have not ...


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