United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta, United States District Judge.
Story of Stuff Project and Courage Campaign Institute
(collectively, “Plaintiffs”) bring this action
against Defendant United States Forest Service (the
“Forest Service”) pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552.
Plaintiffs seek records related to the government's
management of Nestlé Waters North America, Inc.'s
(“NWNA”) operations in the San Bernardino
National Forest in California.
Plaintiffs filed this lawsuit, the Forest Service conducted a
search and located 928 photos, 728 geographic information
system (“GIS”) files, 4 spreadsheets, 1 video,
and 11, 425 pages in responsive records. The Forest Service
withheld some of these records in their entirety, redacted
some, and released others in full to Plaintiffs. To justify
its withholdings and redactions, the Forest Service invoked
FOIA Exemptions 4, 5, 6, and 9. In turn, Plaintiffs contest
the Forest Service's withholdings and redactions as
the court are the parties' cross-motions for summary
judgment. For the reasons described below, the court finds
that the Forest Service properly withheld information under
Exemption 5. However, the court also finds that the Forest
Service has not properly justified withholding information
under Exemptions 4, 6, or 9. Accordingly, Defendant's
Motion for Summary Judgment is granted in part and denied in
part and Plaintiffs' Cross-Motion for Summary Judgment is
Story of Stuff Project is a non-profit corporation that
facilitates an online community dedicated to environmental
sustainability and resource conservation efforts. Compl., ECF
No. 1, ¶ 4. Story of Stuff Project has more than 800
members who live near the San Bernardino National Forest and
have expressed concern about the diversion of water resources
from the Forest. Id. Plaintiff Courage Campaign
Institute is a non-profit corporation that organized, among
other actions, a campaign asking NWNA to cease bottling water
in California in response to the historic California drought.
Id. ¶ 5. Courage Campaign Institute has over 9,
000 members who live near the San Bernardino National Forest,
regularly visit the Forest, and have expressed concern about
the diversion of water resources from the Forest.
light of their mutual concern regarding the government's
management of NWNA's operations and use of resources on
public lands in the San Bernardino National Forest,
Plaintiffs sent a FOIA request to the Forest Service on
November 7, 2016, seeking records pertaining to:
The water diversion and transmission facilities constructed
and operated on U.S. Forest Service land in and near the West
Fork of Strawberry Creek in the San Bernardino National
The “Nestle Waters North America Inc. Special Use
Permit CE” listed on the Current Schedule of Proposed
Actions (SOPA) 01/01/2016 to 03/31/2016 at the URL:
See Def.'s Mot. for Summ. J., ECF No. 19
[hereinafter Def.'s Mot.], Attach. A, ECF No. 19-2, at
filed this lawsuit on January 13, 2017, challenging the
government's failure to process its FOIA request and
disclose any responsive documents. See generally
Compl. The Forest Service thereafter began to produce
records. The Forest Service located 928 photos, 728 GIS
files, 4 spreadsheets, 1 video, and 11, 425 pages of
responsive records, and released non-exempt, redacted records
to Plaintiffs in rolling productions from February 2017
through August 2017. See Def.'s Mot., Statement
of Material Facts as to Which There Is No. Genuine Issue
[hereinafter Def.'s Stmt.], ¶¶ 8-9; see
also Def.'s Mot., Attach. B, ECF No. 19-3. The
Forest Service invoked FOIA Exemptions 4, 5, 6, and 9 to
withhold or redact some of the responsive records; of the 11,
425 pages identified by the Forest Service, 8, 193 pages were
released in full, 1, 991 pages were released in part, and 1,
241 were withheld in their entirety. Def.'s Stmt.
¶¶ 10- 12.
production, the Forest Service moved for summary judgment.
See Def.'s Mot., Mem. of P. & A. in Supp. of
Def.'s Mot. [hereinafter Def.'s Mem.]. The motion was
supported by the declaration of Latagna Rush, the Region 5
FOIA/PA Coordinator with the Forest Service, see
Def.'s Mot., Decl. of Latanga Rush, ECF No. 19-1
[hereinafter Rush Decl.], as well as a Vaughn Index,
see Def.'s Mot., Attach. C, ECF No. 19-4
[hereinafter Vaughn Index]. Rush's declaration
explained the scope of the search conducted in response to
Plaintiffs' FOIA request and the reasons for the Forest
Service's invocation of various FOIA exemptions to redact
and withhold the records. See generally Rush Decl.
opposed the Forest Service's motion, and filed a
cross-motion for summary judgment, asserting that no proper
basis exists for most of the government's redactions and
withholdings. See Pls.' Notice of Errata, ECF
No. 25, Pls.' Corrected Cross-Mot. for Summ. J. &
Resp. to Def.'s Mot., ECF No. 25-1 [hereinafter Pls.'
Cross-Mot.],  at 2-4; see also Pls.' Reply
in Supp. of Pls.' Cross-Mot., ECF No. 26 [hereinafter
Pls.' Reply]. In response to Plaintiffs' arguments,
the agency conducted a supplemental search and located an
additional submission to the agency by NWNA, which the Forest
Service reviewed, redacted, and released to Plaintiffs.
See Def.'s Mem. of P. & A. in Opp'n to
Pls.' Cross-Mot. & Reply to Pls.' Opp'n to
Def.'s Mot., ECF No. 23 [hereinafter Def.'s Reply],
at 1. The Forest Service's subsequent production was
accompanied by the supplemental declaration of Latanga Rush
and an updated Vaughn Index. Def.'s Reply, 2nd
Decl. of Latanga Rush, ECF No. 23-2 [hereinafter 2d Rush
Decl.], Attach. D, ECF No. 23-3 [hereinafter 2d
Vaughn Index]. In further support of its motion for
summary judgment, the Forest Service also submitted the
declaration of Larry Lawrence, the Natural Resource Manager
of NWNA. See Def.'s Reply, Decl. of Larry
Lawrence, ECF No. 23-1 [hereinafter Lawrence Decl.].
parties' motions are now ripe for disposition.
STANDARD OF REVIEW
FOIA cases are appropriately resolved on motions for summary
judgment. Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A
court must grant summary judgment “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). A dispute is “genuine” only
if a reasonable fact-finder could find for the nonmoving
party, and a fact is “material” only if it is
capable of affecting the outcome of litigation. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
defendant agency in a FOIA case is entitled to summary
judgment upon demonstrating that no material facts are in
dispute, that it has conducted an “adequate search,
” and that all located responsive records have been
produced to the plaintiff or are exempt from disclosure.
See Students Against Genocide v. Dep't of State,
257 F.3d 828, 833, 838 (D.C. Cir. 2001). An “adequate
search” is one that is “reasonably calculated to
uncover all relevant documents.” Oglesby v. U.S.
Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The
agency bears the burden of proving that it performed such a
search, and it may rely on sworn affidavits or declarations
to do so. See SafeCard Servs., Inc. v. SEC, 926 F.2d
1197, 1200-01 (D.C. Cir. 1991). The court may grant summary
judgment to the agency based on this evidence if it is
reasonably specific and contradicted by neither record
evidence nor evidence of agency bad faith. Military Audit
Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981);
accord Beltranena v. Clinton, 770 F.Supp.2d 175,
181-82 (D.D.C. 2011). Plaintiffs can rebut an agency's
supporting affidavits and declarations by demonstrating, with
“specific facts, ” that there remains a genuine
issue as to whether the agency performed an adequate search
for documents responsive to the plaintiff's request.
See Span v. U.S. Dep't of Justice, 696 F.Supp.2d
113, 119 (D.D.C. 2010) (quoting U.S. Dep't of Justice
v. Tax Analysts, 492 U.S. 136, 142 (1989)).
agency also bears the burden of showing that it properly
withheld materials pursuant to a statutory exemption.
Citizens for Responsibility & Ethics in Wash. v. U.S.
Dep't of Justice, 746 F.3d 1082, 1088 (D.C. Cir.
2014). An agency “may carry its burden . . . by
submitting sufficiently detailed affidavits or declarations,
a Vaughn index of the withheld documents, or both,
to demonstrate that the government has analyzed carefully any
material withheld and provided sufficient information as to
the applicability of an exemption to enable the adversary
system to operate.” Brennan Ctr. for Justice v.
Dep't of State, 296 F.Supp.3d 73, 80 (D.D.C. 2017).
“If the agency's affidavits provide specific
information sufficient to place the documents within the
exemption category, if this information is not contradicted
in the record, and if there is no evidence in the record of
agency bad faith, then summary judgment is appropriate
without in camera review of the
documents.'” ACLU v. U.S. Dep't of
Def., 628 F.3d 612, 626 (D.C. Cir. 2011) (internal
quotation marks omitted).
Forest Service invokes FOIA Exemptions 4, 5, 6, and 9 to
justify its various redactions and withholdings. Plaintiff
challenges the applicability of all exemptions. See
generally Pls.' Cross-Mot.; Pls.' Reply. The
court addresses the parties' disputes below.