Aguirre v. United States Nuclear Regulatory Comm'n

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MICHAEL J. AGUIRRE, Plaintiff, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, Defendant.

No. 3:22-cv-00080-JAH-BLM

United States District Court, S.D. California

March 6, 2023

ORDER GRANTING IN PART, AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS, OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT (ECF NO. 5)

HON JOHN A. HOUSTON UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Pending before the Court is Defendant United States Nuclear Regulatory Commission's (“Defendant” or “NRC”) motion to dismiss Plaintiff's complaint, or alternatively, for summary judgment (“Motion”). (ECF No. 5). The Motion has been fully briefed. (ECF Nos. 5, 6, 7, 12, 13). Having considered the parties' submissions, the Court GRANTS in part, and DENIES in part Defendant's Motion.

II. PROCEDURAL BACKGROUND

In 2019, Plaintiff Michael J. Aguirre (“Plaintiff”) filed three lawsuits in the Southern District of California challenging Defendant's response to four of Plaintiff's Freedom of Information Act (“FOIA”) requests. (ECF No. 5-1 at ¶ 3). In each of those lawsuits, judgment was granted in favor of Defendant. Id. In a consolidated appeal, the Ninth Circuit affirmed judgment in favor of Defendant. Id.

On January 20, 2022, Plaintiff filed a complaint against Defendant for declaratory judgment and production of FOIA records. (ECF No. 1). On March 31, 2022, Defendant filed the instant Motion. (ECF No. 5). On June 1, 2022, Plaintiff filed an opposition to Defendant's Motion, along with a request for leave to amend the complaint in the event the Court determines deficiencies with Plaintiff's claim. (ECF No. 6). In addition, Plaintiff filed a request for judicial notice of the Ninth Circuit's opinion in Aguirre v. United States Nuclear Regulatory Commission, Ninth Circuit Case Nos. 20-55177, 20-55179, and 2055487 in support of Plaintiff's opposition to Defendant's Motion. On June 8, 2022, Defendant filed a reply. (ECF No. 7).

III. FACTUAL BACKGROUND^[1]

Defendant is a federal agency responsible for inspecting nuclear plants and enforcing safety regulations to ensure the protection of people and the environment from uses of radioactive material. (ECF No. 1 at ¶ 3). As a federal agency, Defendant has the duty to comply with record production laws under FOIA under 5 U.S.C § 552. Id.

The San Onofre Nuclear Generating Station (“SONGS”) stores nuclear waste and is one of the sites Defendant is charged with overseeing. Id. at ¶ 4. On August 3, 2018, during SONGS' process for storing nuclear waste, a safety violation occurred with the misalignment of a canister storing approximately 100,000 pounds of nuclear waste. Id. at ¶ 8. Under 10 C.F.R § 72.75(d)(1), SONGS' plant operators were required to report this event to Defendant within 24 hours of its occurrence, but this event was not reported by SONGS' plant operators to Defendant within 24 hours. Id. at ¶ 10. On August 6, 2018, Defendant's regional administrator, Scott Morris, allegedly received an informal call from the SONGS operator in which the event was explained. Id. at ¶ 11. Defendant's regional administrator then began daily communications with the SONGS facility operator, and an agreement was reached to cease all fuel loading operations at SONGS. Id. In contradiction, Defendant's official, Lee Brookhart of Region IV, alleges an informal call from SONGS explaining the event was made to him alone on August 6, 2018. Id. at ¶ 12.

As a result of the admissions made by the SONGS operator, as well as Defendant's Scott Morris and Lee Brookhart, Plaintiff submitted a FOIA request to Defendant on August 28, 2021 seeking:

[A]ll records of communications related to the August 3rd event between [Defendant's] agents and agents of the “facility operator” regarding the August 3rd event, for the period between August 3, 2018 and September 14, 2018. Id. at ¶ 13.

Defendant admitted it received the request on August 30, 2021 and assigned it number NRC-2021-000235. Id. at ¶ 14.

On September 7, 2021, Defendant informed Plaintiff that there were no additional records responsive to Plaintiff's August 28, 2021 request that had not already been provided to Plaintiff as a result of Plaintiff's previous FOIA requests to Defendant. (ECF No. 5 at 7). Over the past several years, Plaintiff has submitted twenty-five FOIA requests to Defendant related to SONGS. Id. at 6.

On September 29, 2021, Plaintiff filed an administrative appeal to Defendant's FOIA response, arguing that Defendant (1) failed to provide all responsive records, (2) failed to conduct a proper search for records, and (3) improperly limited the scope of the search. (ECF No. 1 at ¶ 16; ECF No. 5-1 at ¶ 6). As a result of a new search conducted by Region IV staff, thirteen additional pages of responsive documents were found. Id. The supplemental search included the Defendant's Allegation Management System (“AMS”) and its electronic files maintained on a SharePoint site. Id. at ¶ 7. Consequently, Plaintiff's appeal was granted by Defendant's Chief Information Officer (CIO) and remanded to its FOIA Office. Id.

On November 17, 2021, Defendant responded to Plaintiff's appeal. (ECF No. 1 at ¶ 44). Of the thirteen pages of responsive documents, Defendant's FOIA Office released five pages in their entirety. (ECF No. 5-1 at ¶ 8). An additional three pages were released in part after redacting the names and contact information of non-governmental employees pursuant to Exemption 7(C) of FOIA, as well as after redacting a link to Defendant's internal network pathway pursuant to Exemption 7(F) of FOIA. Id.

The remaining five pages were withheld in their entirety pursuant to Exemption 4 of FOIA. Id. at ¶ 9. These five pages are comprised of two documents. Id. The first document, which is three pages long, is a draft Field Condition Report (“FCR”) created by Holtec dated August 6, 2018. Id. The second document, which is two pages long, is an Action Report (“AR”) created by Southern California Edison. Id.

On December 6, 2021, Plaintiff appealed Defendant's decision to withhold records. (ECF No. 1 at ¶ 18). On January 5, 2022, Defendant denied Plaintiff's second appeal. Id. at ¶ 19.

IV. LEGAL STANDARD

A. FOIA

“FOIA ‘was enacted to facilitate public access to Government documents.'” Ctr. for Biological Diversity v. U.S. Dep't of Agric., 626 F.3d 1113, 1116 (9th Cir. 2010) (quoting U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991)). “Government transparency is critical to maintaining a functional democratic polity, where the people have the information needed to check public corruption, hold government leaders accountable, and elect leaders who will carry out their preferred policies.” Hamdan v. U.S. Dep't of Just., 797 F.3d 759, 769-70 (9th Cir. 2015). Accordingly, there is a “strong presumption in favor of disclosure.” Id. at 772. “FOIA mandated that federal agencies ‘disclose records on request, unless they fall within one of nine exemptions.'” Ctr. for Investigative Reporting v. United States Dep't of Just., 14 F.4th 916, 923 (9th Cir. 2021) (quoting Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011)). At issue in this case are FOIA Exemptions 4, 7(C), and 7(F).

B. Motion to Dismiss & Motion for Summary Judgment in FOIA Cases

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Fed.R.Civ.P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In deciding a motion to dismiss, all material factual allegations of the complaint are accepted as true. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). While the Court generally only considers the complaint on a motion to dismiss, Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001), Defendant has moved in the alternative for summary judgment, where the Court may consider materials outside the complaint. Fed.R.Civ.P. 56. And in the FOIA context, “[c]ourts are permitted to rule on summary judgment in FOIA cases solely on the basis of government affidavits describing the documents sought.” Lion Raisins v. U.S. Dep't of Agric., 354 F.3d 1072, 1082 (9th Cir. 2004).^[2]

V. DISCUSSION

Plaintiff brings his claim under FOIA, 5 U.S.C. § 552, to “compel production under a pair of FOIA requests.” (ECF No. 1 at 3). Plaintiff argues that Defendant's search for documents pursuant to those requests was unreasonable, and that Defendant inappropriately applied exemptions to its productions to Plaintiff. There are two primary issues: first, was Defendant's search adequate and reasonable; and second, did Defendant properly apply FOIA exemptions to their supplemental productions? The Court addresses both issues in turn.

A. Adequacy and Reasonableness of Defendant's Search

When responding to a FOIA request, “the government must show beyond material doubt that its search was adequate.” Inter-Coop. Exch. v. United States Dep't of Com., 36 F.4th 905, 910 (9th Cir. 2022). Adequacy is measured “‘by a standard of reasonableness, construing the facts in the light most favorable to the requestor.'” Id. (quoting Citizens Comm'n on Hum. Rts. v. Food & Drug Admin., 45 F.3d 1325, 1328 (9th Cir. 1995)). Searches are “not inadequate just because [they] fai[l] to turn up a few isolated documents.” Id. (citation and internal quotations omitted). The “heavy burden” of demonstrating adequacy and reasonableness sits with the government, which they “may meet . . . by providing ‘reasonably detailed, nonconclusory affidavits submitted in good faith.'” Id. (quoting Hamdan v. U.S. Dep't of Just., 797 F.3d 759, 770 (9th Cir. 2015)).

Here, Defendant conducted two searches in response to Plaintiff's FOIA request, both of which Plaintiff contends were inadequate and unreasonable.

a. Defendant's Initial Search

Plaintiff...