MEMORANDUM OPINION
TREVOR
N. McFADDEN, U.S.D.J.
The
Story of Stuff Project filed this Freedom of Information Act
(“FOIA”) case seeking government records related
to Nestlé Waters North America, Inc.'s
(“Nestlé”) operations in the San
Bernardino National Forest. In response, the United States
Forest Service and the Department of Agriculture
(collectively, the “Government”) produced
hundreds of emails and photographs, several videos, and
thousands of pages of responsive records. Relying on FOIA
Exemptions 4, 5, 6, and 9, the Government withheld some
records and produced others with significant redactions. The
Project challenges these withholdings as unjustified.
Both
parties have moved for summary judgment. The Court finds that
the Government properly withheld information under Exemptions
4, 5, and 9. But the Court also finds that the Government
inappropriately invoked Exemption 6. Thus, both the
Government's Motion and the Project's Cross-Motion
will be granted in part and denied in part.
I.
Nestlé
sells bottled drinking water, among other things. To collect
the water it needs, the company owns and operates tunnels,
wells, transmission pipelines, and associated structures in
the Strawberry Creek Watershed in the San Bernardino National
Forest. Pl.'s Cross-Mot. for Summ. J., ECF No. 22
(“Pl.'s Cross-Mot.”), Ex. 1-A, ECF No. 22-2
at 1. Because Strawberry Creek is on National Forest System
lands, Nestlé's operation requires a license from
the federal government. Id. This authorization,
known as the “Arrowhead Springs Permit, ” was
last issued by the Forest Service in 1978. Id. In
2015, the Service announced that it would consider renewing
the permit, and it issued Nestlé a new permit in June
2018. Id. at 3.
The
Story of Stuff Project is a nonprofit “actively
involved in environmental sustainability and resource
conservation efforts.” Compl. 2, ECF No. 1. Beginning
in 2015, it sought to “prepare its public
comments” to “meaningfully participate in the
public process surrounding [the Service's] review of
[Nestlé's] permit.” Pl.'s Reply in Supp.
1, ECF No. 29 (“Pl.'s Reply”). To that end,
it submitted several FOIA requests to the Government. It
requested:
Copies of any and all records pertaining in any way 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
Forest; and The Nestle Waters North America Inc. Special Use
Permit [Categorial Exclusion] listed on the Current Schedule
of Proposed Actions (SOPA) . . . .
See Defs.' Mot. for Summ. J., ECF No. 19
(“Defs.' Mot.”), Attach. 4, ECF No. 19-4 at
2.
After
receiving nothing in response, the Project filed this suit.
Eventually, the Government produced roughly 3, 000 pages of
responsive documents. But some of these pages were partially
or fully redacted. Pl.'s Cross-Mot. at 9.
This is
not the first time that the Project has challenged the Forest
Service's withholding of information related to the
Arrowhead Springs Permit. For reasons known only to the
Project, it brought another case based on virtually identical
FOIA requests in this district last year. See Story of
Stuff Project v. U.S. Forest Service, -- F.Supp.3d --,
2018 WL 4637357 (D.D.C. Sept. 27, 2018). The parties'
arguments, declarations in support, and evidentiary materials
here largely mirror those considered in Judge Mehta's
thoughtful 2018 opinion.
Here,
as in the that case, the Government has invoked several
exemptions in support of its redactions, including:
• Exemption 4 (protecting trade secrets and confidential
commercial information),
• Exemption 5 (protecting documents covered by the
attorney-client and deliberative process privileges),
• Exemption 6 (protecting against undue invasions of
personal privacy), and
• Exemption 9 (protecting geological and geophysical
information about wells).
See Defs.' Mot. at 7-15; Story of Stuff
Project, 2018 WL 4637357 at *2. The Project believes
that the Government has misapplied these Exemptions, and it
thus seeks production of unredacted versions of several
documents.
II.
The
“vast majority” of FOIA cases are resolved on
summary judgment motions. Brayton v. Office of the U.S.
Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). To
prevail on a motion for summary judgment, a movant must show
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 (1986). A factual
dispute is material if it could alter the outcome of the suit
under the substantive governing law. Anderson, 477
U.S. at 248. A dispute is genuine “if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Id.
In the
FOIA context, the Government is entitled to summary judgment
if it establishes “beyond material doubt that it has
conducted a search reasonably calculated to uncover all
relevant documents, ” Morley v. CIA, 508 F.3d
1108, 1114 (D.C. Cir. 2007) (cleaned up), and that each
relevant record has been produced or is exempt from
disclosure. Students Against Genocide v. U.S. Dep't
of State, 257 F.3d 828, 833 (D.C. Cir. 2001). FOIA
permits agencies to withhold information that falls under
“one of nine specific exemptions, which are construed
narrowly in keeping with FOIA's presumption in favor of
disclosure.” Pub. Citizen, Inc. v. Office of Mgmt.
& Budget, 598 F.3d 865, 869 (D.C. Cir. 2010)
(citations omitted).
The
Government “bears the burden of establishing that a
claimed exemption applies.” Citizens for Resp.
& Ethics in Wash. v. U.S. Dep't of Justice, 746
F.3d 1082, 1088 (D.C. Cir. 2014). It can carry this burden
“by submitting sufficiently detailed affidavits or
declarations, a Vaughn index of the withheld
documents, or both, to demonstrate that [it] 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. U.S. Dep't of State, 296 F.Supp.3d 73, 80
(D.D.C. 2017).[1] 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 Defense,
628 F.3d 612, 626 (D.C. Cir. 2011).
III.
The
Project does not challenge the reasonableness of the records
search the Government conducted. See generally
Pl.'s Cross-Mot. at 9-26. Fifteen Forest Service
employees searched “the systems most likely to contain
the responsive records, ” and used keywords like
“Nestle” and “Arrowhead” that would
“most likely locate the responsive information.”
Defs.' Mot., Attach. 4 at 2-3. These searches led to the
identification of 465 emails, 869 photographs, six
spreadsheets, five videos, and 3, 218 PDF pages of responsive
records. Id. at 3.
An
employee from the Department of Agriculture's Office of
General Counsel also searched for responsive records.
Id. at 4. He found another 1, 045 PDF pages.
Id. at 3-4. Based on these results and the
Government's detailed declarations, the Court finds ...