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Kleinert v. Bureau of Land Management

United States District Court, D. Columbia

September 25, 2015


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         For JAMES KLEINERT, Plaintiff: Daniel J. Stotter, LEAD ATTORNEY, STOTTER & ASSOCIATES LLC, Corvallis, OR.

         For BUREAU OF LAND MANAGEMENT, Defendant: Claire M. Whitaker, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

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         JOHN D. BATES, United States District Judge.

         James Kleinert, a documentary filmmaker who felt that the Bureau of Land Management was unfairly impeding his work, filed a Freedom of Information Act request for all of the agency's records that referred to him. After waiting more than a year without receiving any records, Kleinert filed this suit to compel BLM to turn them over. BLM has now produced roughly 200 pages of records, many of them partially redacted. With opposing views on both the adequacy of BLM's search and the propriety of many of the redactions, the parties have cross-moved for summary judgment. BLM's current evidence mostly fails to demonstrate that its search was adequate or its redactions justified--but the agency may yet be able to make a convincing case that it complied with FOIA. Hence, the Court will largely deny both parties' motions.


         Kleinert is a documentary filmmaker whose work has focused on American wild horses. This vocation has brought Kleinert into repeated contact with BLM, which manages public lands where wild horses live and administers the Wild Free-Roaming Horses and Burros Act of 1971. Kleinert and the agency have not had an entirely cordial relationship: Kleinert has sharply criticized BLM's treatment of wild horses, and the agency has suspected Kleinert of unauthorized filming on BLM lands. In recent years Kleinert has come to believe that " BLM has been targeting [his] filming of wild horses on the public lands . . . by seeking to restrict [his] access to film at locations that would depict these issues." Kleinert Decl. [ECF No. 15-2] ¶ 8. This targeting, he suggests, " is related to the agency's opposition to, and disagreement with, the content of [his] films, and [his] advocacy as to these issues," and is aimed at limiting his " ability to facilitate public oversight of the agency's actions." Id.

         Prompted by these concerns, Kleinert filed a FOIA request in June 2013 seeking any BLM records that referred to him or his production company. See Ex. 1 to Def.'s Mot. for Summ. J. [ECF No. 10-1] at 2. Several months later, he filed an amended request that sought, in relevant part:

1. Any and all records, photographs, videos, correspondence, internal documentation, etc. that refer to or reference James Kleinert or Moving Cloud Productions from January 1, 2007, to present, including but not limited to:
a. Any investigations or surveillance conducted by any Bureau of Land Management or Department of Interior employee, including Rod Shilaikis;
b. Any reference to any public screenings of videos by James Kleinart [sic] or Moving Cloud Productions;

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c. Any reference to the Jicarilla Wild Horse Management EA, New Mexico, including an[y] internal discussions or references to the comment letter submitted by James Kleinert in response to BLM's Scoping Letter.

Ex. H to Blome Supp. Decl. [ECF No. 26-1] at 6.[1] BLM acknowledged receipt of this amended request on September 16, 2013. See id. at 5.

         When nearly a full year passed without the delivery of any records, Kleinert filed this suit to compel BLM to respond to his request. See Compl. [ECF No. 1]. It seems, though, that BLM had sent Kleinert a compilation of responsive records in January 2014, but--for reasons unknown--they never showed up in Kleinert's mail. See Witt Decl. [ECF No. 10-2] ¶ ¶ 4-6; Kleinert Decl. ¶ ¶ 3-4. Once BLM received notice of this suit, it re-sent the 168 pages of responsive records it had found. See Witt Decl. ¶ 6. The agency partially redacted many of these records, relying on three FOIA exemptions. In a handful of instances BLM redacted material that it said would reveal predecision deliberations, and so was protected from disclosure under Exemption 5. But for most of the redactions, the agency cited both Exemption 6--which covers private information in personnel, medical, and similar files--and Exemption 7(C)--which covers private information in law-enforcement files. After turning over the redacted responsive records, BLM moved for summary judgment. See Def.'s Mot. for Summ. J. [ECF No. 10] (" Def.'s Mot." ).

         Kleinert cross-moved for summary judgment, arguing that many of the redactions were unjustified, and also that BLM had not conducted an adequate search of its records. See Pl.'s Mot. for Summ. J. [ECF No. 15] (" Pl.'s Mot." ). Kleinert's motion prompted BLM to take another look--which revealed that the agency had indeed failed to provide a number of responsive records. See Witt Supp. Decl. [ECF No. 20-1] ¶ ¶ 6-7. BLM turned over these additional records and then filed a renewed motion for summary judgment. Def.'s Renewed Mot. for Summ. J. [ECF No. 20] (" Def.'s Renewed Mot." ). But Kleinert contends that BLM has still not demonstrated the adequacy of its search or the propriety of many redactions, including some in the newly released materials. See Pl.'s Reply & Resp. to Def.'s Renewed Mot. [ECF No. 24] (" Pl.'s Reply" ).


         " FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). And summary judgment is appropriate when the pleadings and evidence demonstrate " that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

         It is the agency's burden to prove that it has complied with its obligations under FOIA. See United States DOJ v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 n. 3 (1989). To determine whether an agency has carried its burden, the district court may rely on agency affidavits, declarations, or Vaughn indexes that demonstrate the adequacy of the search for responsive records and the applicability of any claimed exemptions. See Morley v. CIA, 508 F.3d 1108, 1116, 378 U.S.App.D.C. 411 (D.C. Cir. 2007);

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 Military Audit Project v. Casey, 656 F.2d 724, 738, 211 U.S.App.D.C. 135 (D.C. Cir. 1981). When weighing this and other evidence in the record, the Court will review de novo the agency's determination that information requested through FOIA is subject to one of that statute's exemptions. See 5 U.S.C. § 552(a)(4)(B). And " [a]t all times courts must bear in mind that FOIA mandates a 'strong presumption in favor of disclosure.'" Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32, 353 U.S.App.D.C. 374 (D.C. Cir. 2002) (quoting Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991)).


         The parties' motions present two distinct questions: whether BLM conducted an adequate search for responsive records, and whether BLM has adequately justified the redactions that Kleinert challenges. For the most part, the answer to both questions is that the Court cannot tell. BLM appears to have forgotten that " [s]pecificity is the defining requirement of the Vaughn index and affidavit," King v. U.S. Dep't of Justice, 830 F.2d 210, 219, 265 U.S.App.D.C. 62 (D.C. Cir. 1987), instead providing an index and declarations that are so vague and conclusory that--a few exceptions aside--the Court cannot yet be sure that the agency has complied with FOIA.[2]

         I. Adequacy of the Search

         Kleinert's first major argument is that BLM failed to conduct a thorough search for records responsive to his request. See Pl.'s Mot. 7-11; Pl.'s Reply at 3-12. Under FOIA, an agency must " demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents." Ancient Coin Collectors Guild v. U.S. Dep't of State,641 F.3d 504, 514, 395 U.S.App.D.C. 138 (D.C. Cir. 2011) (internal quotation marks omitted). " In adjudicating the adequacy of the agency's identification and retrieval efforts, the trial court may be warranted in relying upon agency affidavits," provided they are " relatively detailed," " nonconclusory," and " submitted in good faith." Morley, 508 F.3d at 1116 (internal quotation marks and brackets omitted). And even if they are, " the requester may nonetheless produce countervailing evidence, ...

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