United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE
Wild Horse Freedom Federation (WHFF) brought this Freedom of
Information Act suit seeking certain categories of documents
associated with the Bureau of Land Management's Wild
Horse and Burro Program (WHBP). Although BLM produced several
hundred pages with and without redactions, WHFF believes that
its search was inadequate and its withholdings overbroad. In
response to the parties' Cross-Motions for Summary
Judgment, the Court will grant a portion of Plaintiff's
and deny much of Defendant's, mainly because BLM has
neglected to respond at all to WHFF's Motion.
“is a non-profit public interest organization . . .
headquartered in Magnolia, Texas.” Compl., ¶ 4. In
May 2017, it submitted a tripartite request to BLM, seeking
weekly reports connected with BLM's WHBP, briefings from
BLM's Assistant Director of Renewable Resources and
Planning to BLM's Director, and briefings/reports from
WHBP's Division Chief to the Assistant Director of
Renewable Resources and Planning. Id., ¶ 1.
Defendant conducted a search and initially produced 61 pages,
six of which contained redactions. See Def. MSJ,
Attach. 3 (Declaration of Ryan Witt), ¶ 19. One month
later, BLM released an additional 248 pages, of which 28 were
redacted entirely and 115 were redacted in part.
Id., ¶ 20.
with its haul, WHFF filed this action on October 30, 2017,
see ECF No. 1 (Complaint), and the parties have now
cross-moved for summary judgment. See ECF Nos. 8
(Def.), 9 (Pl.). For reasons unbeknownst to the Court, the
Government never filed an opposition to Plaintiff's
Motion or a reply to its opposition. On June 29, 2018, the
Court ordered BLM to produce clean and redacted copies of the
contested pages, see Minute Order, which, as will be
discussed below, the agency has partially accomplished.
judgment may be granted if “the movant shows 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); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is
“material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty
Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is
such that a reasonable jury could return a verdict for the
non-moving party. See Scott v. Harris, 550 U.S. 372,
380 (2007); Liberty Lobby, 477 U.S. at 248;
Holcomb, 433 F.3d at 895. “A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion” by “citing to particular parts of
materials in the record” or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
56(c)(1). The moving party bears the burden of demonstrating
the absence of a genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
cases typically are decided on motions for summary judgment.
See Brayton v. Office of U.S. Trade Rep., 641 F.3d
521, 527 (D.C. Cir. 2011). In a FOIA case, the Court may
accept an “agency's affidavits, without pre-summary
judgment discovery, if the affidavits are made in good faith
and provide reasonably specific detail concerning the methods
used to produce the information sought.” Broaddrick
v. Exec. Office of the President, 139 F.Supp.2d 55, 64
(D.D.C. 2001). “Agency affidavits are accorded a
presumption of good faith, which cannot be rebutted by purely
speculative claims about the existence and discoverability of
other documents.” SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal
quotation marks and citation omitted). “Summary
judgment may not be appropriate without in camera
review, ” however, “when agency affidavits in
support of a claim of exemption are insufficiently
detailed.” Armstrong v. Exec. Office of the
President, 97 F.3d 575, 578 (D.C. Cir. 1996). In such a
circumstance, “district court judges [have] broad
discretion in determining whether in camera review
is appropriate.” Id. at 577-78.
characteristic of most FOIA cases, the parties dispute two
central issues: the adequacy of the agency's search and
the appropriateness of its withholdings. The Court looks at
each question separately.
Adequacy of Search
agency fulfills its obligations under FOIA if it can
demonstrate beyond material doubt that its search was
‘reasonably calculated to uncover all relevant
documents.'” Valencia-Lucena v. Coast
Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting
Truitt v. Dep't of State, 897 F.2d 540, 542
(D.C. Cir. 1990)); see also Steinberg v. DOJ, 23
F.3d 548, 551 (D.C. Cir. 1994). The adequacy of an
agency's search for documents under FOIA “is judged
by a standard of reasonableness and depends, not
surprisingly, upon the facts of each case.”
Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir.
its burden, the agency may submit affidavits or declarations
that explain the scope and method of its search “in
reasonable detail.” Perry v. Block, 684 F.2d
121, 127 (D.C. Cir. 1982). The affidavits or declarations
should “set forth the search terms and the type of
search performed, and aver that all files likely to contain
responsive materials (if such records exist) were
searched.” Oglesby v. Dep't of Army, 920
F.2d 57, 68 (D.C. Cir. 1990). Absent contrary evidence, such
affidavits or declarations are sufficient to show that an
agency complied with FOIA. See Perry, 684 F.2d at
127. “If, however, the record leaves substantial doubt
as to the sufficiency of the search, summary judgment for the
agency is not proper.” Truitt, 897 F.2d at
elucidate its search, BLM has submitted the Declaration of
Ryan Witt, who holds the role of FOIA Officer at the agency.
See ¶ 1. WHFF here has no problems with
BLM's search for items contained in the third part of its
three-part request, but believes that the agency has been
derelict in regard to the first two parts. See Pl.
MSJ at 8-12. More specifically, in part one, Plaintiff
requested all weekly reports connected to the WHBP. It now
lists several reasons why it believes that BLM has not
exhausted its search options, most prominently because the
title of such reports varied depending on the sender, but the
agency apparently searched only for documents entitled