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Coffey v. Bureau of Land Management

United States District Court, District of Columbia

September 29, 2017



          Emmet G. Sullivan, United States District Judge.

         Plaintiff Debbie Coffey submitted a request under the Freedom of Information Act ("FOIA") to obtain certain communications between the Bureau of Land Management (the "Bureau" or "BLM") employees and individuals or organizations interested in purchasing wild horses or burros under the agency's management. Approximately five months after Ms. Coffey submitted her request, the Bureau produced to her roughly 670 pages of records it deemed responsive to the request. After reviewing the records she received, Ms. Coffey filed an appeal with the agency and, five months later, this lawsuit alleging violations of the Freedom of Information Act, 5 U.S.C. § 552. Both parties now move for summary judgment. For the reasons set forth below, and because the Court will order additional searches and/or the filing of additional declarations by the Bureau, the Court stays further proceedings and holds in abeyance a final ruling on the pending motions.

         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 Act of 1971, 16 U.S.C. §§ 1331-1340. Coffey v. Bureau of Land Mgmt., No. 16-CV-508, 2017 WL 1411465, at *1 (D.D.C. Apr. 20, 2017). Wild horses and burros live on segments of public land that cover 31.6 million acres across 10 western states, with the Bureau of Land Management tasked with overseeing 26.9 million acres of that land. See Bureau of Land Management, Wild Horse and Burro Program website, available at (last visited on September 29, 2017). As part of the Bureau's efforts to sustain populations of wild horses and burros at a level that will "achieve and maintain a thriving natural ecological balance on the public lands, " 16 U.S.C. § 1333, the agency created the Wild Horse and Burro Program. Among other tasks, the Wild Horse and Burro Program oversees sales and adoptions of these animals to private individuals and organizations that will provide "good homes and humane care." Pl.'s Mot. for Summ. J. Ex. A at 1, ECF No. 18-1. An individual or group seeking to purchase more than four animals in a six-month period is "required to submit a proposal detailing where animals will be kept, plans to provide humane care including adequate forage, water, hoof and veterinary care, fencing, and the intended use for the animals." Id. at 6.

         Ms. Coffey is the Vice President and Director of Wild Horse Affairs for the Wild Horse Freedom Federation, a federally-registered 501(c)(3) non-profit organization dedicated to both educating the public on wild horse and burro issues and advocating for the protection and welfare of wild horses and burros on America's public lands. See Pl.'s Mot. for Summ. J., Declaration of Debbie Coffey ("Coffey Decl.") ¶ 2, ECF No. 18-1. Ms. Coffey has a particular interest "in what happens to our wild horses & burros, " including with respect to "wild horses being sold by the BLM." See Def.'s Mot. for Summ. J, Declaration of Ryan Witt ("Witt Decl.") Ex. 1 ("FOIA Request") at 2, ECF No. 15-3. Unable to find the information she sought about "the activities and operations regarding the sale and disposition of the wild horses & burros" in public sources or on the Bureau's website, Ms. Coffey submitted the FOIA request at issue here. Id. at 3.

         In her request, which she sent to the Bureau via email on April 27, 2015, Ms. Coffey sought communications between Bureau employees and individuals or organizations interested in buying or selling wild horses and burros. Id. at 1. In particular, Ms. Coffey requested "all emails, faxes, letters, and notes from telephone calls" between any Bureau employee who had "done work in the capacity of" a "Marketing Specialist, " "Supervisory Marketing Specialist, " or "Outreach Specialist" for the Bureau's Wild Horse and Burro Program and any individual or organization that were "proposals for selling/buying wild horses and burros (whether or not the proposals ever came to fruition)." Id. The request further specified that Ms. Coffey sought records that included the words "wild horses, wild burros, horses, burros, sales, special sales, buy, buying, sell, selling, transportation, long term holding, short term holding, holding facility, transportation and truck." Id. Finally, the request specified that it sought communications made by, among others, Bureau employees Sally J. Spencer and Debbie Collins, both of whom, based on Ms. Coffey's knowledge, had served in marketing positions in the Wild Horse and Burro Program. Id. She provided the email addresses and other identifying information for both these employees. Id. at 1-2.

         Ms. Coffey's email also included a request for a fee waiver on the grounds that the records she requested would be "meaningfully informative to the public with respect to the Bureau's operations and activities in connection with its Wild Horses and Burro Program." Id. at 2. She explained that there was "no information available publicly" about the topic of her request, and that she intended to "disseminate the information" she received through her FOIA request "to a large segment of the public at large" via online news articles and radio interview broadcasts across the United States. Id. at 2-4; see also 5 U.S.C. § 552(a)(4)(A)(iii) (requiring reduction or waiver of fees "if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester").

         The Bureau acknowledged receipt of Ms. Coffey's FOIA request by email on April 28, 2015. Witt Decl. ¶ 3, ECF No. 15-2. In a letter dated May 26, 2015, the Bureau denied Ms. Coffey's fee-waiver request on the grounds that Ms. Coffey had "fail[ed] to articulate how . . . [she] would convey the information to a reasonably broad audience of persons interested in the subject and how that disclosure w[ould] contribute to their understanding, as opposed to [her] individual understanding." Witt Decl. Ex. 3 at 3. The Bureau informed Ms. Coffey that the estimated cost of processing her request was $2, 440.00. Id. Ms. Coffey mailed a check to the Bureau for that amount on June 1, 2015. Coffey Decl. ¶ 13.

         By letter dated September 30, 2015, the Bureau responded substantively to Ms. Coffey's FOIA request, producing 671 pages of responsive documents. Witt Decl. ¶ 23. Of those 671 pages, 240 pages were partially withheld under 5. U.S.C. § 552(b)(6), pursuant to which an agency need not produce "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Witt Decl. ¶ 23.

         On November 9, 2015, Ms. Coffey submitted an administrative appeal of the Bureau's response to her FOIA request. Id. ¶ 24. At the same time, she also requested a refund of the $2440.00 fee that she had paid on the ground that the agency had failed to meet the statutory deadline in responding to her request. Coffey Decl. ¶ 13; see also 5 U.S.C. § 552(a)(4)(A)(viii)(I) (prohibiting an agency from assessing search or duplication fees "if the agency has failed to comply with" applicable time limits). Although the Bureau "determined that it [wa]s appropriate to refund Plaintiff's fee" as a result of its delay in processing the FOIA request, see Witt Decl. ¶ 11, the Bureau did not refund Ms. Coffey's fee until February 21, 2017, see Coffey Decl. ¶ 13. As of the filing of this suit on April 7, 2016, the Bureau was still "in the process of preparing its response to Plaintiff's appeal." Witt Decl. ¶ 25.


         FOIA requires that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). "To fulfill its disclosure obligations, an agency must conduct a comprehensive search tailored to the request and release any responsive material not protected by one of FOIA's enumerated exemptions." Tushnet v. United States Immigration & Customs Enf't, No. 15-CV-00907, 2017 WL 1208397, at *4 (D.D.C. Mar. 31, 2017).

         The "vast majority" of FOIA cases can be resolved on summary judgment. Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court may grant summary judgment only if 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). Likewise, in ruling on cross-motions for summary judgment, the court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed. See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, 658 F.Supp.2d 217, 224 (D.D.C. 2009) (citation omitted). Under FOIA, the underlying facts and inferences drawn from them are analyzed in the light most favorable to the FOIA requester, and summary judgment is appropriate only after the agency proves that it has fully discharged its FOIA obligations. Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)).

         When considering a motion for summary judgment under FOIA, the court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). The court may grant summary judgment based on information provided in an agency's affidavits or declarations when they are "relatively detailed and non-conclusory, " SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation and internal quotation marks omitted), and "not controverted by either contrary evidence in the record nor by evidence of agency bad faith, " Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation and internal quotation marks omitted). Such affidavits or declarations are "accorded a presumption of good faith, which cannot ...

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