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Chesapeake Bay Foundation, Inc. v. U.S. Army Corps of Engineers

December 30, 2009


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff Chesapeake Bay Foundation, Inc. ("CBF") brings this action against the United States Army Corps of Engineers pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., seeking records pertaining to permits for development on two islands in the Magothy River, a tributary of the Chesapeake River. Now before the Court are the parties' cross-motions for summary judgment. At issue is whether the Corps properly withheld certain records from disclosure pursuant to FOIA exemptions 5 and 7.


In April 2007, CBF submitted a FOIA request to the Corps of Engineers seeking records "pertaining to permit requests and supporting documentation for the development of Little Island and Dobbins Island on the Magothy River in Maryland." Compl. ¶ 1. Specifically, CBF sought

any and all permit requests, permit approval[s] and denials and all supporting documents pertaining to applications submitted by the following for development and revetment of Dobbins Island and Little Island in the Magothy River: Mr. Daryl Wagner, Dutchship LLC, Mr. David Clickner, Mrs. Diana Clickner.

Compl. ¶ 13.

A year after CBF submitted its request, the Corps "produced 126 pages of records, but withheld 497 pages of records claiming that the records were exempt from disclosure under FOIA Exemptions 5 and 7(a)." Compl. ¶ 16. The Corps also determined that none of the withheld documents contained segregable, non-exempt information. See Def.'s Mem. in Supp. of Mot. for Summ. J. ("Def.'s Mem.") [Docket Entry 14], at 14. CBF administratively appealed the Corps's response, "contesting that all of the withheld records were exempt from the FOIA," and "request[ing] that the [Corps of Engineers] produce a Vaughn index describing who the withheld documents were generated by, who it was provided to, the date of the document, a description of the document . . . , and a brief summary of the contents of the document." Compl. ¶ 18 (quotation omitted). The Corps never responded to this appeal, and CBF brought this action.

Notwithstanding its dilatoriness, the Corps of Engineers has moved for summary judgment with respect to the propriety of the claimed exemptions and the efficacy of its segregability determination. CBF challenges the Corps's motion for summary judgment, concluding that the Court should grant summary judgment in its favor.


Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings . . . and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party opposing a motion for summary judgment, however, "may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The nonmoving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Any factual assertions in the movant's affidavits will be accepted as true unless the opposing party submits its own affidavits or other documentary evidence contradicting the assertion. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

FOIA requires federal agencies to release all records responsive to a proper request except those protected from disclosure by one or more of nine enumerated exemptions set forth at 5 U.S.C. § 552(b). A district court is authorized "to enjoin [a federal] agency from withholding agency records or to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B); see also Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). The agency has the burden of proving 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 omitted); accord Maydak v. Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000). The district court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations that describe "the documents and 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); accord Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973).


According to the Corps of Engineers, the 497 pages of undisclosed records at issue here relate to "pending Corps of Engineers enforcement investigations and permit actions involving . . . Little Island [and] Dobbins Island." Def.'s Mem., Statement of Undisputed Material Facts, ¶ 10. Hence, the Corps contends that the information contained in these documents is properly withheld pursuant to FOIA exemption 7 to ensure that disclosure does not "interfere with the Corps of Engineer's [sic] attempts to enforce the Clean Water Act." Def.'s Mem. at 6. Exemption 7 applies to "records or information compiled for law enforcement purposes, but only to the extent that the production of such records or information" would "reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. §§ 552(b)(7)(A). Here, the Corps asserts that disclosure would dissuade people "from cooperating with the agency" during enforcement actions because "[i]ndividuals may be deterred from providing information to the Corps." Def.'s Mem. at 6; Def.'s Mem., Declaration of Sandra Zelen ("First Zelen Decl."), ¶ 4.

The Corps also seeks to withhold documents pursuant to FOIA exemption 5 to ensure "honest and frank communication within the agency." Def.'s Mem. at 13. Exemption 5 applies to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). "'Courts have construed this exemption to encompass the protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery context, including materials which would be protected under the attorney-client privilege, the attorney work-product privilege, or the executive deliberative process privilege.'" Rockwell Int'l Corp. v. Dep't of Justice, 235 F.3d 598, 601 (D.C. Cir. 2001) (quoting Formaldehyde Inst. v. Dep't of Health and Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989)). Here, the Corps withholds records pursuant to the deliberative process privilege. See ...

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