Berryhill v. Bonneville Power Admin.

509 F.Supp.3d 1288

Jerome Boyd BERRYHILL, an individual citizen, Plaintiff,

v.BONNEVILLE POWER ADMINISTRATION, a United States agency, Defendant.

Case No. 3:19-cv-02001-SB

United States District Court, D. Oregon.

Signed December 23, 2020

Ann B. Witte, Portland, OR, for Plaintiff.

Kevin C. Danielson, US Attorney's Office, Portland, OR, for Defendant.

OPINION AND ORDER

BECKERMAN, U.S. Magistrate Judge.

Plaintiff Jerome Berryhill ("Berryhill") brings this action against the Bonneville Power Administration ("BPA") seeking disclosure of records related to Berryhill's property under the Freedom of Information Act ("FOIA"). Berryhill alleges violations of FOIA and the Administrative Procedure Act ("APA"). Now before the Court is BPA's motion for summary judgment. All parties have consented to the jurisdiction of a U.S. Magistrate Judge pursuant to 28 U.S.C. § 636. For the reasons set forth below, the Court grants BPA's motion for summary judgment (ECF No. 15).

BACKGROUND

This case arises from a dispute involving a BPA easement on Berryhill's property (the "Property"). Two sets of 115-volt transmission wires cross over the Property in a north-south direction. (Decl. of Jerome Berryhill ("Berryhill Decl.") at 2, ECF No. 18.) Under the terms of the easement, BPA is authorized to perform maintenance on the Property to prevent vegetation and other objects from encountering the transmission lines that pass overhead. (Decl. of FOIA Officer Candace Palen ("Palen Decl.") ¶¶ 25-26, ECF No. 16.)

On July 9, 2018, Berryhill received an e-mail from BPA Natural Resource Specialist Carlos Mora Flores ("Mora"), which stated that the vegetation on the Property had grown too tall and posed a safety risk to Berryhill and his family. (Berryhill Decl. at 2.) On August 2, 2018, Mora met Berryhill at the Property to discuss trimming the trees and vegetation located on the easement. (Id. at 2.) During the meeting, Berryhill claimed that Mora's map of the easement was incorrect, and that some of the areas Mora proposed to trim were not located within the boundaries of the easement. (Id. at 4.) To resolve this dispute, Mora arranged for a survey to mark the boundaries of the easement. (Id. ) BPA Realty Specialist Sandra Billings ("Billings") contacted Berryhill to schedule a survey appointment. (Id. ) Five months later, the survey was performed, and the easement boundaries were permanently marked on the Property. (Id. )

On January 22, 2019, Billings, Mora, and Berryhill met at the Property to discuss maintenance of the vegetation. (Id. )

Through the course of the meeting, Berryhill and Mora disagreed as to which plants required removal and the allowable clearance heights pursuant to BPA's vegetation plan. (Id. ) Eventually, Berryhill indicated that the conversation was over and asked Mora and Billings to leave. (Id. )

On January 28, 2019, Billings offered to draft a vegetation agreement, the terms of which would provide that if vegetation on Berryhill's property grows outside of the agreed upon heights of six and eight feet in designated areas on the easement, BPA would provide Berryhill with twenty-four hours’ notice before removing any vegetation in violation of the height agreement. (Id. ) Berryhill responded to Billings’ e-mail and indicated that he did not believe the parties had arrived at an agreement and that he was not prepared to sign the vegetation agreement. (Id. at 6.) On February 14, 2019, Berryhill received a certified letter from BPA informing him that, due to his rejection of BPA's offer, BPA would be scheduling a vegetation management crew to remove vegetation in accordance with BPA's easement rights. (Id. ) On February 19, 2019, BPA hired a contractor and removed the trees and vegetation from the easement. (Id. ; Decl. of Ann Witte ("Witte Decl.") at 1, ECF No. 18-2.)

On March 15, 2019, Berryhill submitted a FOIA request to BPA, seeking "all BPA records pertaining to [the Property's address]." (Palen Decl. Ex. 2, at 1.) On August 7, 2019, BPA produced 453 pages of records responsive to Berryhill's request, twenty-eight of which contained redactions. (Palen Decl. ¶ 16.) Later, BPA determined that six of the twenty-eight redacted pages were duplicative. (Id. )

Dissatisfied with the results of his request, Berryhill filed an administrative appeal with the Department of Energy's ("DOE") Office of Hearings and Appeals on November 4, 2019. (Palen Decl. Ex. 3, at 1.) On November 21, 2019, the DOE denied the appeal, stating that the decision was "a final order of the Department of Energy for which any aggrieved party may seek judicial review pursuant to 5 U.S.C. § 552(a)(4)(B)." (Palen Decl. Ex. 3, at 4.) The DOE concluded that BPA properly withheld the redacted information under Exemption 5 of FOIA ("Exemption 5"). (Palen Decl. Ex. 3, at 4.) Specifically, the DOE found that BPA properly withheld the redacted emails and draft letters under both the attorney-client privilege and the deliberative process privilege. (See Palen Decl. Ex. 3, at 4, noting that "the legal advice provided by BPA attorneys is also deliberative and predecisional, as it is part of the back and forth discussion that would eventually lead to a decision by BPA").

On December 12, 2019, Berryhill filed this action seeking full disclosure of the requested documents, alleging that BPA's failure to release the redacted portions of the twenty-eight responsive records violates FOIA. (Compl. ¶ 22.) Berryhill also seeks relief under the APA, alleging that BPA "acted arbitrarily, capriciously, and unlawfully abused its discretion" by withholding records responsive to his request. (Compl. ¶¶ 23-24.)

On September 2, 2020, BPA released seven of the original twenty-eight redacted pages to Berryhill in full. (Palen Decl. ¶ 17; Witte Decl. at 3.) The seven pages consisted of drafts of a letter that BPA eventually sent to Berryhill. (Palen Decl. at ¶ 17; Witte Decl. at 3.)

On September 4, 2020, BPA filed a motion for summary judgment. (ECF No. 15.) BPA asserts that it is not required to disclose the redacted documents because they are protected from disclosure under Exemption 5. (Def.’s Mot. Summ. J. at 6.) With its motion, BPA filed a Vaughn index,¹ which includes fifteen documents. (Palen Decl. Ex. 1 (" Vaughn Index"), ECF No. 16-1.) The Vaughn index provides a description of each page containing redactions, the asserted exemption that justifies its withholding, and an explanation as to why BPA withheld the information. In addition, the Vaughn index identifies five duplicate documents (Bates numbers 000024, 000053, 000072, 000073, and 000074) that contain identical redactions to other documents listed in the index. (See Vaughn Index.)

On September 22, 2020, Berryhill filed his opposition to BPA's summary judgment motion. (Pl.’s Opp'n to Def.’s Mot. Summ. J. ("Pl.’s Opp'n").) In his opposition, Berryhill asserts that: (1) he was unable to locate the six duplicate documents that BPA claims it identified from the original production, (2) four redacted documents were omitted from the Vaughn index and therefore BPA is not entitled to judgment as a matter of law with respect to those documents, and (3) malfeasance on the part of Flores and Billings deprives BPA of any protections under FOIA's deliberative process privilege. (Id. at 4-16.)

On November 9, 2020, BPA submitted ninety-eight pages to the Court for in camera review, numbered BPA-000001 to BPA-000098. On December 2, 2020, Berryhill requested a discovery hearing to determine whether BPA had provided the Court with five documents that BPA claimed were duplicative of other records released to Berryhill as part of his original FOIA request. The Court reviewed the five documents and determined that they were in fact duplicative of five documents that BPA had already provided to the Court for in camera inspection.²

DISCUSSION

I. LEGAL STANDARDS

A. The Freedom of Information Act (FOIA)

"FOIA was enacted to facilitate public access to Government documents." Lahr v. Nat'l Transp. Safety Bd. , 569 F.3d 964, 973 (9th Cir. 2009) (quoting U.S. Dep't of State v. Ray , 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) ). FOIA provides public access to official information " ‘shielded unnecessarily’ from public view and establishes a ‘judicially enforceable public right to secure such information from possibly unwilling official hands.’ " Id. at 973 (quoting Dep't of Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ). To prevent disclosure of a limited class of sensitive government documents, FOIA contains nine statutory exemptions. See 5 U.S.C. § 552(b)(1)-(9). "Because FOIA is meant to promote disclosure, its exemptions are interpreted narrowly." Sierra Club, Inc. v. U.S. Fish & Wildlife Serv. , 925 F.3d 1000, 1011 (9th Cir. 2019).

B. Summary Judgment in FOIA Cases

Summary judgment is appropriate 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). "FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol , 623 F. Supp. 2d 83, 87 (D.D.C. 2009). "Unlike the typical summary judgment analysis, in a FOIA case, we do not ask whether there is a genuine issue of material fact, because the facts are rarely in dispute." Minier v. Cent. Intel. Agency , 88 F.3d 796, 800 (1996). Instead, the courts conduct a two-step inquiry.

"First, the court must determine whether the agency has met its burden of proving that it fully discharged its obligations under FOIA." KXTV, LLC v. U.S. Citizenship & Immigr. Servs. , No. 2:19-cv-00415-JAM-CKD, 2020 WL 1082779, at *4 (E.D. Cal. Mar. 6, 2020) (citing Zemansky v. EPA , 767 F.2d 569, 571 (9th Cir. 1985) ). An agency can establish this by demonstrating "that it conducted a search reasonably calculated to uncover all relevant documents." Id. If the agency meets its initial burden, the second step of the inquiry "examines whether the agency has...