United States District Court, District of Columbia
G. Sullivan, United States District Judge.
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
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.
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.
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.
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").
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.
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.
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.
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).
"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)).
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 ...