Inter-Coop. Exch. v. U.S. Dep't of Commerce

INTER-COOPERATIVE EXCHANGE,an Alaska cooperative corporation, Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, NATIONAL OCEANICAND ATMOSPHERIC ADMINISTRATION, and NATIONAL MARINE FISHERIES SERVICE, Defendants.

Case No. 3:18-cv-00227-TMB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

December 16, 2019

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. 21) AND PLAINTIFF'S MOTION FOR DISCOVERY (DKT. 24)

I. INTRODUCTION

The matter comes before the Court on Defendants the United States Department of Commerce ("DOC"), the National Oceanic and Atmospheric Administration ("NOAA"), and the National Marine Fisheries Service's ("NMFS") (collectively, "Defendants") Motion for Summary Judgment ("Motion for Summary Judgment").¹ On September 24, 2019, Plaintiff Inter-Cooperative Exchange filed an Opposition to the Motion for Summary Judgment ("Opposition").² Plaintiff simultaneously filed a related Motion for Written Discovery ("Motion for Discovery").³ Defendants filed a Reply to the Opposition ("Defendants' Reply") on October 8, 2019, which also argued their opposition to the Motion for Discovery.⁴ On October 18, 2019, Plaintiff filed its Replyin Support of Motion for Written Discovery ("Plaintiff's Reply").⁵ Both Defendants' Motion for Summary Judgment and Plaintiff's Motion for Discovery are fully briefed. Plaintiff requested oral argument on both motions and a hearing was held on November 25, 2019.⁶ Upon careful consideration of the record, and for the reasons stated below, Defendants' Motion for Summary Judgment at docket 21 is GRANTED and Plaintiff's Motion for Discovery at docket 24 is DENIED.

II. BACKGROUND

A. Factual Background

Plaintiff is a cooperative of fishermen who harvest and deliver crab in the Bering Sea and Aleutian Islands.⁷ Defendants are federal agencies responsible for regulating and enforcing the nation's fisheries through regional fishery management councils.⁸ In 2005, Defendants implemented a crab price arbitration system to guide price negotiations between harvesters and processors.⁹ Historically, business costs were not considered in the price formula.¹⁰ However, in 2014, Alaska voters approved an initiative to raise the minimum wage.¹¹ In response, crab fishery processor representatives requested that Defendants reevaluate whether to consider costs—such asthe now higher wages paid to processor employees—under the arbitration system.¹² Defendants agreed to prepare a discussion paper on the issue and the paper was published in April 2017.¹³ Thereafter, Glenn Merrill, NMFS' Assistant Regional Administrator for the Alaska Region ("ARA"), introduced a motion to include costs for consideration in the arbitration system.¹⁴

On July 18, 2017, Plaintiff submitted a Freedom of Information Act ("FOIA") request to Defendants in an effort to determine the record behind Mr. Merrill's motion and his underlying rationale.¹⁵ Plaintiff requested the following two categories of records:

1) All correspondence to or from Glenn Merrill, Assistant Regional Administrator for the Alaska Region of NMFS, from January 1, 2016 through the present relating to (a) the interpretation and application of the arbitration system standards set forth at 50 C.F.R. § 680.20(g) and/or (b) the Alaska state minimum wage increase approved by voters in November 2014.

For purposes of this request, the term "correspondence" includes without limitation all emails, text messages, social media messages, voice mails, facsimiles and letters, regardless of whether sent from or received on government or personal devices or transmitted through some other means.

[ . . . ]

2) All documents relating to (a) interpretation and application of the arbitration system standards set forth at 50 C.F.R. § 680.20(g) and/or (b) the Alaska state minimum wage increase approved by voters in November 2014.

For purposes of this request, the term "documents" includes without limitation all analyses, memoranda, minutes, motions, notes, papers and other records, and all drafts of the same.¹⁶

Defendants responded to Plaintiff's FOIA request and produced 146 records, including several emails with redactions.¹⁷ Finding Defendants' FOIA response insufficient, on December 15, 2017, Plaintiff filed an administrative appeal on the grounds that the response did not include any of Mr. Merrill's text messages, social media messages, and voicemail messages and redacted certain email correspondence.¹⁸

B. Procedural Background

On October 2, 2018, having received no response to its administrative appeal, Plaintiff filed the Complaint in this Court.¹⁹ Plaintiff alleges that Defendants violated FOIA on two grounds: (1) Defendants failed to make reasonable efforts to search for, and has improperly withheld, records responsive to Plaintiff's FOIA request, and (2) Defendants improperly redacted certain records subject to production.²⁰ Specifically, Plaintiff believes that there are further agency records reflecting discussion between Mr. Merrill and others concerning Mr. Merrill's motion to consider costs in pricing arbitration.²¹ Plaintiff further argues that the redacted emails in Defendants' production were improperly redacted because the emails constitute part of the publicly available administrative record and because Defendants failed to explain how disclosure of the emails couldforeseeably harm an interest protected by their asserted exemptions to disclosure.²² Plaintiff, therefore, requests a judicial declaration that Defendants have violated FOIA, an order compelling Defendants to search for and produce the sought-after agency records without redaction, and an award of attorneys' fees and litigation costs.²³

On February 22, 2019, Defendants filed an Answer and lodged the decision in Plaintiff's administrative appeal of its FOIA request ("Appeal Decision").²⁴ The Appeal Decision granted Plaintiff's appeal with respect to the foreseeable harm issue and revised redactions to release information contained in three previously produced records.²⁵ However, Plaintiff's appeal was denied with respect to the adequacy of the search and the remaining redactions.²⁶ The Appeal Decision states that Mr. Merrill does not have a government-issued cellphone or official government social media account.²⁷ Moreover, the Appeal Decision states that Mr. Merrill has no recollection of sending or receiving responsive text, social media, or voicemail messages responsive to Plaintiff's request but reviewed his personal records to confirm that no such responsive records exist.²⁸

1. Defendants' Motion for Summary Judgment

Then, on September 3, 2019, Defendants filed a Motion for Summary Judgment arguing that they have adequately discharged their obligations under FOIA.²⁹ First, Defendants argue that they conducted a reasonable search for responsive records.³⁰ Defendants allege that they performed a search of NMFS' Alaska Region offices and "examined all of Mr. Merrill's correspondence, as that term is defined in Plaintiff's FOIA request."³¹ Defendants reference the single search log from their initial response.³² The search log states that Mr. Merrill searched his emails, network drive, and desktop for the terms "binding arbitration," "arbitration," and "crab."³³ Defendants explain that the omission of any search of Mr. Merrill's cellphone and social media was an "inadvertent error."³⁴ Defendants confirm that Mr. Merrill searched his personal cellphone since he does not have a government-issued work cellphone and found no responsive records.³⁵ Therefore, Defendants contend that their search was reasonably calculated to uncover all relevant documents.³⁶

Next, as for the redacted records, Defendants allege that NOAA withheld portions of seven records pursuant to certain statutory exemptions from disclosure under FOIA.³⁷ Six documents were partially redacted to protect information subject to attorney-client privilege and one document was partially redacted to protect personal information from a clearly unwarranted invasion of privacy.³⁸ Defendants justify that the six documents redacted due to attorney-client privilege contain confidential communications between NMFS employees, fishery council staff, and NOAA Office of General Counsel attorneys.³⁹ Defendants argue that an exemption from disclosure was properly invoked because those emails are exactly the communications the privilege is designed to protect.⁴⁰

Plaintiff filed the Opposition and requested oral argument on the issues.⁴¹ Plaintiff argues that the Court should deny summary judgment on both the adequacy of the search and the propriety of the redactions. Plaintiff claims that the Motion for Summary Judgment "presents a new set of facts" and undermines the adequacy of Defendants' search by not providing sufficient details regarding the search.⁴² Plaintiff argues that Defendants' search parameters and process were not reasonably calculated to uncover responsive communications.⁴³ Plaintiff further alleges thatadditional evidence contradicts Mr. Merrill's assertions that he does not use his personal cellphone to conduct government business.⁴⁴

Moreover, Plaintiff argues that Defendants cannot claim attorney-client privilege to justify the email redactions on two grounds.⁴⁵ First, Plaintiff claims that no attorney-client relationship existed between councilmembers and NOAA attorneys.⁴⁶ Second, Plaintiff claims that there was no reasonable expectation of confidentiality because the emails prepared for or by council members incident to a public meeting form part of the public record.⁴⁷ So, for the sake of argument, even if attorney-client privilege existed, the emails at issue now would still be subject to disclosure because no reasonable expectation of confidentiality attached to the communications.⁴⁸

In Defendants' Reply,⁴⁹ Defendants repeat that they adequately searched Mr. Merrill's email, network, desktop, and personal cellphone for any items containing the search terms "binding arbitration," "arbitration," and "crab."⁵⁰ In response to Plainti...