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Coffey v. Bureau of Land Management

United States District Court, District of Columbia

April 20, 2017



          JAMES E. BOASBERG United States District Judge

         Plaintiff Debbie Coffey knows a great deal about wild horses and burros - and how those animals are treated by the federal Bureau of Land Management - but she wants to learn more. She accordingly submitted a Freedom of Information Act request to the Bureau in order to obtain certain communications between its officials and private-citizen participants in BLM's Wild Horse and Burro Program. In response, the Bureau charged Coffey $1, 680 in processing fees and, after some delay, sent her several pages that were responsive to the request. Roughly a year and a half after accepting payment, BLM refunded the processing fees to Coffey for its failure to meet FOIA's statutory response deadline.

         Unhappy with the Bureau's actions on several levels, Plaintiff filed this FOIA suit under 5 U.S.C. § 552(a)(4)(B), and both sides have now cross-moved for summary judgment. The Court agrees with BLM's position that Coffey cannot recover interest in addition to the now-refunded processing fees. It disagrees, however, that the Bureau conducted an adequate search. The Court thus disposes of the parties' Motions accordingly.

         I. Background

         The Bureau of Land Management is charged with protecting and managing populations of wild horses and burros (i.e., wild donkeys) on public lands pursuant to the 1971 Wild Free-Roaming Horses and Burros Act of 1971, 16 U.S.C. §§ 1331-1340. As part of BLM's efforts to sustain those populations at a level that will “achieve and maintain a thriving natural ecological balance on the public lands, ” id. § 1333, it enters into long-term holding contracts with private landowners. Under these contracts (which are also referred to as long-term pasture contracts), the landowners agree to accommodate excess horses and burros from public lands on their private property in exchange for payment. See U.S. Gov't Accountability Off., GAO-09-77, Bureau of Land Management: Effective Long-Term Options Needed to Manage Unadoptable Wild Horses 3-4, 51-52 (2008); ECF No. 15-1, Exh. 105; see also In Defense of Animals v. U.S. Dep't of Interior, 909 F.Supp.2d 1178, 1193-94 (E.D. Cal. 2012) (describing BLM's roundup of excess horses on public lands and subsequent transfer of horses to private long-term holding facilities).

         Plaintiff is committed to “act[ing] decisively and swiftly when the welfare of . . . Wild Horses and Burros [is] threatened, ” ECF No. 15-1 (Declaration of Debbie Coffey), ¶¶ 2-3, and she has concerns about the conditions at facilities established pursuant to the holding contracts. Id., Exh. 101 (FOIA Request) at 3 (expressing interest in “operations and activities of long term holding facilities and the care of the wild horses and burros”). To that end, Coffey has scoured BLM's Wild Horse and Burro Program website and other public sources of information for details concerning the government's oversight and management of long-term holding facilities. See Request at 3-4. Her efforts, however, have come up short, giving rise to the FOIA request at issue here.

         A. The Request

         That request, which Plaintiff sent to the Bureau via email on April 29, 2015, sought records of communications between long-term holding contractors and two BLM employees: Lili Thomas, a Contracting Officer's Representative (COR), and Beatrice Wade, a Wild Horse and Burro Program Specialist. See Request at 1; Coffey Decl., ¶ 10. Coffey named Wade and Thomas in particular because she had learned, through her previous FOIA requests, that they had both “[been] involved” with long-term holding contractors. See Coffey Decl., ¶ 11.

         Plaintiff stated her specific request for records in two paragraphs. In the first, she requested “all segregable portions of all e-mails, faxes, and letters” between Thomas and “the long term holding contractors and [their] managers/key personnel, ” dating from January 1, 2007, to the date of Thomas's retirement from the Bureau. See Request at 1. In the second, Coffey requested “all segregable portions of all e-mails, faxes, and letters” between Wade and “the long term holding contractors and [their] managers/key personnel, ” dating from January 1, 2007, up until the date “th[ose] records [we]re gathered to be sent” to her. Id. In each paragraph, moreover, Coffey “exclud[ed] invoices” from the scope of her request. Id. Plaintiff's request additionally sought “notes [of] telephone calls” from Thomas and Wade to the long-term holding contractors and their “managers/key personnel, ” but not the other way around. Id.

         After thus stating her request, Coffey provided several pages of background information “[t]o help [the Bureau]” in conducting its search. Id. As relevant here, she first informed BLM that “the contracts for each individual long term holding contain the contractor's name.” Id. Coffey next explained that the names of the “managers/key personnel” could be found within BLM's Environmental Assessment prepared for each long-term holding facility. Id. Finally, her request listed the locations of the twenty-four “current” long-term holding facilities in city-state format. Id. at 2. (For facilities co-located in the same city - e.g., “Gray Horse East, OK” and “Gray Horse West, OK” - the format includes a cardinal direction.) Coffey's list also supplied a five-digit-alphanumeric identifier, presumably assigned to each facility by BLM, for all but two of the twenty-four locations. Id.

         Aside from this background information, two other features of the request warrant discussion here. First, it made clear that Coffey was seeking only records of communications between “government employee[s] and private contractors, ” and not any “interagency or intraagency” documents. Id. at 1-2. In addition, Plaintiff's request sought a waiver of processing fees on the grounds that disclosure of the requested records would be likely to contribute significantly to public understanding of the government's operations and activities and would not be in her commercial interest. Id. at 2-3; see 5 U.S.C. § 552(a)(4)(A)(iii) (requiring reduction or waiver of processing fees for FOIA requests meeting these requirements).

         B. The Bureau's Response

         The Bureau emailed to acknowledge receipt of Plaintiff's request on May 26, 2015. See ECF No. 13-1 (Declaration of Ryan Witt), ¶ 9. In a letter attached to its email, BLM stated that it had denied Coffey's request for a waiver of processing fees because she had “fail[ed] to articulate” how its disclosure of the requested records to her would contribute to public understanding of the federal government. Id., Exh. B (Letter from Theresa Coleman) at 3 (“Specifically, your [plan to distribute the disclosed information] does not identify how you will convey the information to a reasonably broad audience of persons interested in the subject.”). Defendant also told Coffey that the estimated cost of processing her request was $1, 680. Id. Coffey, undeterred, sent BLM a check for that amount on June 1, 2015. See Coffey Decl., ¶ 15. The Bureau deposited the check about three weeks later. Id., ¶ 16.

         On November 10, as BLM had yet to provide her with any responsive documents or render a final determination concerning the request, Coffey asked the Bureau to refund her fee payment. Id., ¶ 21; see 5 U.S.C. § 552(a)(4)(A)(viii)(I) (prohibiting agencies that breach FOIA's response deadline from charging search and duplication fees to qualifying requesters). After several more months without a substantive response from BLM (either to the original request from April 2015 or the subsequent refund request), Plaintiff brought this action on March 17, 2016. See ECF No. 1 (Complaint).

         On April 6, 2016 - three weeks after Coffey filed suit and nearly nine months after she paid the processing fees - BLM sent Plaintiff another letter informing her of its final determination concerning her request. See ECF No. 13-1, Exh. C (Letter from Cynthia Moses-Nedd) at 1. The Bureau said it had decided to provide Coffey 514 pages (which it attached to the letter) in response to her request. Of those pages, 86 were redacted in part and 95 were redacted in full (though still apparently produced) pursuant to certain FOIA exemptions. Id. (While there may have been some miscounting of those pages, see Witt Decl., ¶ 23 n.1, the exact numbers are irrelevant to the merits of the Motions.)

         Despite its voluminous production, only three pages in the Bureau's April 2016 document release were responsive to Coffey's request. See Pl. Mot. at 10. Those pages, which BLM released in full, consist of an email chain that includes a communication between Thomas and a long-term holding contractor. Id. Defendant points to several other documents from the April 2016 release, which collectively encompass five additional pages, and maintains that they are also responsive. See Witt Decl., ¶ 22. Only two of these documents are included in the record, see ECF No. 15-1, Exhs. 103-04, and, as best as the Court can tell, they do not fall within the scope of Coffey's request. In any event, Defendant does not dispute that nearly all of the pages released to Coffey were non-responsive.

         The reason this release included mostly non-responsive documents was a processing error by the Bureau's FOIA Office. See Witt Decl., ¶¶ 18-21. Specifically, an errant employee in that office processed the aforementioned 514 pages without taking into account the request's exclusion of “inter- or intra-agency” communications. Id., ¶ 18. That employee, moreover, mistakenly sent Coffey two documents that were neither “to or from Lili Thomas or Bea Wade” nor “communications with contractors, ” id., ¶ 26, and were thus plainly non-responsive. These errors went undetected until shortly after Coffey brought suit, at which point the Bureau prepared a Vaughn Index indicating the non-responsive character of the majority of the documents from the April 2016 release. See ECF No. 13-1, Exh. D (Vaughn Index). The Index also lists the FOIA exemptions BLM relied on in redacting the non-responsive documents it mistakenly released to Coffey. Id. Plaintiff does not challenge the applicability of those exemptions or any other aspect of the Vaughn Index, as the only responsive documents she received were unredacted.

         One last comment on the Bureau's response: After Coffey brought suit, BLM decided to refund the $1, 680 she had paid in processing fees because of its “delay in processing [her] request, as well as the over-processing of records that took place.” Witt Decl., ¶ 24. After some wrangling between the parties about where to send the refund, Defendant ultimately deposited that amount into an account belonging to Plaintiff's counsel on January 13, 2017. See ECF No. 18-1 (Supplemental Declaration of Ryan Witt), ¶ 7. As alluded to previously, the Bureau's refund did not include interest.

         II. ...

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