Black Hills Clean Water All. v. United States Forest Serv.

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BLACK HILLS CLEAN WATER ALLIANCE, Plaintiff, v. UNITED STATES FOREST SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE, Defendants.

No. 5:20-CV-05034-JLV

United States District Court, D. South Dakota, Western Division

September 30, 2021

REPORT AND RECOMMENDATION DOCKET NOS. 25 &amp 30

VERONICA L. DUFFY, United States Magistrate Judge.

INTRODUCTION

This matter is before the court on plaintiff Black Hills Clean Water Alliance's (“BHCWA”) complaint seeking production of documents, injunctive relief, and a declaration that defendants the United States Forest Service and United States Department of Agriculture (collectively “the agency”) violated the Freedom of Information Act, 5 U.S.C. § 552, Pub. L. No. 89-487, 80 Stat. 250 (1967) (“FOIA”) in its search for and withholding certain documents responsive to a FOIA request. Docket No. 1. BHCWA asserts subject matter jurisdiction exists pursuant to FOIA, 5 U.S.C. § 552(a)(4)(B), which vests this court with the jurisdiction to enjoin the agency from withholding records and order the agency to produce records improperly withheld from the requester. Docket No. 1 at p. 3, ¶ 9. Now pending are the parties' cross-motions for summary judgment.

Docket Nos. 25 & 30. This matter was referred to this magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Jeffrey L. Viken, United States District Judge.

FACTS

BHCWA through its president, submitted a FOIA request to the Mystic Ranger District of the Black Hills National Forest on December 7, 2018. See Docket No. 28-1. BHCWA requested documents as follows:

Please provide any and all agency records created or obtained by the Mystic District Office or the Black Hills National Forest Office that relate to plans of operations or notices of intent for exploratory gold drilling in the Mystic District of the Black Hills National Forest. The subject matter scope of this request must be interpreted broadly, and includes but is not limited to, these specific documents:

- all draft or final plans of operations that have been submitted to the Forest Service since January 1, 2018 involving existing or proposed mines in the Mystic Ranger District;

- all draft or final plans of operations and/or notices of intent referenced in the news article that ran in the Rapid City Journal on November 25, 2018 quoting Black Hills Deputy Forest Supervisor Jerry Krueger confirming that “four new plans of operations for exploratory gold drilling have been submitted to the Black Hills National Forest” for federal public lands located within the Mystic Ranger District.

The present request seeks immediate release of the specifically requested records in electronic format, without waiting for completion of the search and processing all responsive agency records.

Id. at pp. 1-2. BHCWA requested the records in electronic format, specifically in searchable portable document format (“PDF”), on physical storage media such as a USB flash drive. Id. at p. 2.

The agency responded by letter on February 12, 2019. See Docket No. 28-2. The letter indicated the agency had conducted a thorough search for responsive electronic and paper records. Id. at p. 1. The letter addressed the specifically requested documents, indicating they were “proposals for Plans of Operations for Mining Activity on the Black Hills National Forest. None of the documents have been approved. We are withholding all of the documents in whole under Exemption 4 of the FOIA.” Id. The letter explained further:

Exemption 4 protects commercial or financial information, privileged or confidential, that is obtained from a person. 5 U.S.C. [§] 552(b)(4). This exemption ensures that agencies will continually be able to obtain necessary commercial and financial information from outside the Government and that they will be able to perform their statutory responsibilities efficiently and effectively. It also protects those who submit such information to the Government from the competitive disadvantages that could result from disclosure. Because these documents are proposals that have not yet been approved, we believe they must be withheld under Exemption 4.

Id. at p. 2. The letter provided instructions for appealing its determination according to the provisions of FOIA. Id.

BHCWA timely appealed the agency's FOIA determination on May 7, 2019, arguing Exemption 4 did not apply to the documents requested. See Docket No. 28-3. In its appeal, the BHCWA did not argue the scope of the agency's search for records was unlawfully narrow. The agency never responded to BHCWA's appeal.

BHCWA initiated this action on May 15, 2020. Docket No. 1. After the complaint was filed, the agency again searched for records responsive to the December 7, 2018, FOIA request. The agency searched for records with dates between January 1, 2018, and August 1, 2020. See Docket No. 28 at p. 4, ¶ 13.

The agency also searched for all plans of operation and notices of intent responsive to the request that had not been withdrawn or formally acted upon by the agency before January 1, 2018, regardless of the date created or obtained. Id. The parties have explained the start time parameter for this search comes from BHCWA's FOIA request and the end time parameter comes from since-abandoned settlement discussions between the parties. Id.; Docket No. 34-1 at p. 2, ¶ 10.

The agency identified 21 people as records custodians likely to possess responsive documents. Docket No. 28 at pp. 4-6, ¶ 15. These records custodians searched in three waves, with an initial group of custodians performing searches, followed by a second batch, then the records of a final group of custodians-those who had retired or left the agency-were searched through an eDiscovery process. See Docket No. 28 at p. 6, ¶ 16; Docket No. 34-1 at p. 5, ¶ 21.

Most of the records custodians searched their own documents using search parameters they identified as most likely to identify potentially responsive documents. The agency has provided a list of locations that 15 of the records custodians-or the people searching on their behalf-searched and the search terms they used. Docket No. 28 at pp. 6-8, ¶ 18. These records custodians limited their searches to electronic media, primarily email correspondence and attachments and, to a lesser extent, storage drives. Id.

In the case of the six records custodians who had retired or left the agency, the agency's Chief Information Office's eDiscovery department identified responsive email correspondence using search terms identified by the FOIA coordinator of the Black Hills National Forest. Id. at p. 9, ¶ 21.

Responsive records were collected and imported to FOIAXpress, the software used by the agency to process documents in connection with FOIA requests. Id. at p. 10, ¶ 23. The documents collected from the records custodians were generally received in their native format, then were converted to PDF as they were processed in FOIAXpress. Id. at p. 10, ¶ 24. Geographic Information Systems (“GIS”) data was not processed using FOIAXpress. Id.; Docket No. 34-1 at p. 9, ¶ 41.

Agency personnel reviewed the documents after they had been processed in FOIAXpress and applied redactions to material believed to be exempt from disclosure under FOIA. Docket No. 28 at p. 10, ¶ 25. After review was completed, the agency applied Bates stamps to each page of the production and made them available to BHCWA on an electronic file sharing website. Id. at ¶ 26. The files were available for download or viewing for a period of 30 days, subject to extension on request by BHCWA. The agency notified BHCWA via email every time it produced a set of documents and sent BHCWA a cover letter memorializing each production. See Docket No. 28-4. From September 2020 to January 2021, the agency provided BHCWA 23,132 pages of documents and 130 megabytes of GIS files. Docket No. 28-4 at pp. 1-17. The agency provided BHCWA with a Vaughn^[1] index describing the documents withheld and the bases for those withholdings. See Docket No. 28-5.

According to BHCWA, the agency provided an additional 149 pages of responsive records and an amended Vaughn index via email on February 18, 2021. Docket No. 34 at p. 1 n.1. The parties have not provided the court with this email correspondence or any amended Vaughn index.

Both parties now move for summary judgment. The agency argues it has satisfied the requirements of FOIA and has not unlawfully withheld documents. The agency also argues BHCWA's claims related to its 2019 search are moot because the responsive, non-exempt documents have been produced. Lastly, the agency argues it has adequately complied with FOIA by producing non-searchable PDFs via a filesharing website despite BHCWA's request for searchable PDFs produced on physical storage media.

BHCWA argues the agency's final FOIA determination dated February 12, 2019, unlawfully withheld documents in contravention of FOIA because the exemption asserted by the agency did not apply. BHCWA also asks the court for a declaration that the agency's 2019 search was unlawfully narrow. BHCWA asserts the withholdings documented in the Vaugh index are unlawful because the exemptions cited by the agency do not apply. Lastly, BHCWA argues the manner of the agency's production of records was unlawful and asks the court for an order compelling the agency to produce the documentary records as searchable PDFs on physical storage media.

DISCUSSION

A. Summary Judgment Standard

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate where the moving party “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....