Sierra Club v. United States Fish and Wildlife Service

523 F.Supp.3d 24

SIERRA CLUB, Plaintiff,

v.UNITED STATES FISH AND WILDLIFE SERVICE, Defendant.

Civil Action No. 19-2315 (JEB)

United States District Court, District of Columbia.

Signed February 26, 2021

Andres J. Restrepo, Karimah Schoenhut, Sierra Club, Washington, DC, for Plaintiff.

Marsha Wellknown Yee, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge In early 2018, Plaintiff Sierra Club learned that Defendant United States Fish and Wildlife Service had initiated a review of the Florida Key deer's place on the endangered-species list. Hoping to uncover the agency's reasons for this review and any information it relied upon, Sierra Club filed a Freedom of Information Act request. Frustrated with the agency's delayed response, it then filed this suit. In dueling Motions for Summary Judgment, the parties dispute only FWS's invocation of FOIA Exemption 5's deliberative-process privilege to shield certain documents. Although the Court planned to fully resolve this case, it was stymied by the agency's cursory briefing on several seminal points. As a result, the Court delivers a split decision: it will order the release of some records while also directing Fish and Wildlife to more fully support its position should it wish to continue withholding others.

I. Background

Little need be said to tee up the narrow issues in this case. On February 6, 2018, the Miami Herald reported that Fish and Wildlife had undertaken a review of the Florida Key deer to determine whether the species should be removed from the endangered-species list or downgraded from "endangered" to "threatened." ECF No. 1 (Compl.), ¶ 2. In the article, a FWS spokesperson confirmed the report, stating that the agency was "finishing up an evaluation related to the status of the Key deer required under the Endangered Species Act." Id., ¶ 3. The import of this potential change is significant: the species has been protected under the Endangered Species Act and its predecessor statute since 1967, and Plaintiff believes that recent events have only increased the existential threats to the species. See ECF No. 20 (Pl. MSJ & Opp.) at 1–2.

Just weeks after publication of the article, Sierra Club — an organization "whose mission includes educating and enlisting humanity to protect" wildlife — filed a FOIA request with Fish and Wildlife to obtain records "relate[d] to the ongoing species status review for the Florida Key deer (Odocoileus virginianus clavium )." Pl. MSJ & Opp. at 2–3 (citation omitted). Plaintiff sought "[a]ll records generated since November 2016" pertaining to the review, including records regarding the impetus for the review, the scientific information provided to and generated by the agency, and any communications discussing the status and conservation of Florida Key deer. See Compl., ¶ 47.

After acknowledging receipt, FWS informed Plaintiff that its request had been placed in the "exceptional/voluminous" processing track but failed to provide an estimated completion date. Id., ¶ 49. Apart from some minor administrative communications, Plaintiff did not hear from Fish and Wildlife again until September of that year, when it released three pages of records as a "partial response." Id., ¶¶ 54–55. The agency indicated that it had withheld further documents, principally invoking Exemption 5. Id., ¶ 55.

Almost a year later, after receiving nothing further, Plaintiff filed this suit. Id., ¶¶ 56–60. Over the course of this litigation, Defendant has turned over 936 pages of responsive documents in full and portions of another 178 pages. See ECF Nos. 10, 11, 13 (Joint Status Reports). It has withheld a total of 251 pages in full under Exemptions 5 and 6. Id.

According to Sierra Club, the most notable withheld pages include the final and draft copies of the agency's Species Status Assessment (SSA) report on the deer, as well as communications regarding the production of the report. See ECF No. 19-2, Exh. D (Vaughn Index) at 1–12; Pl. MSJ & Opp. at 8. The SSA report is a scientific report compiling an array of biological information on a species, developed to inform assessments under the Endangered Species Act. See Pl. MSJ & Opp., Exh. 13 (SSA Framework Fact Sheet); id., Exh. 15 (FWS Letter Describing SSA). It is intended as a "highly integrated, explicit, and scientifically based" foundation to "evaluate the biological and conservation status of a species." FWS Letter Describing SSA. As the agency explains, the SSA "provides the best available scientific information for comparison to policy standards to guide" agency decisions. See SSA Framework Fact Sheet at 2.

Fish and Wildlife began work on the SSA report in July 2017. See Compl., ¶¶ 39–41. By October of that year, the first draft was circulated to a Florida state conservation agency. Id., ¶ 42. FWS produced an updated draft in November 2017 and another in December 2017, before "complet[ing]" the report in January 2018. See Pl. MSJ & Opp. at 8 nn.2–3.

Defendant has withheld under the deliberative-process privilege covered by Exemption 5 the final January 2018 SSA report; prior full drafts of the report; "comments by FWS scientists and other scientific experts on the contents of the SSA report"; "the peer review comments of external scientists on the contents of the SSA report"; and portions of "communications discussing the factual information in the SSA report." Id. at 8. Although there were earlier disputes about the adequacy of FWS's search and its redactions pursuant to Exemption 6, all that now remains is Plaintiff's challenge to the deliberative-process withholdings, which the parties have briefed in Cross-Motions for Summary Judgment.

II. Legal Standard

Summary judgment may be granted if "the movant 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. 56(a). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."). In the event of conflicting evidence on a material issue, the Court is to construe the conflicting evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).

FOIA cases typically and appropriately are decided on motions for summary judgment, and the agency bears the ultimate burden of proof. See Defenders of Wildlife v. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) ; Bigwood v. U.S. Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007) ; see also DOJ v. Tax Analysts, 492 U.S. 136, 142 n.3, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). The Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

III. Analysis

Congress enacted FOIA in order "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (citation omitted). The statute thus provides that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules[,] ... shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). The Government need not, however, turn over requested information that falls within one of nine statutorily created exemptions. Id. § 552(b)(1)–(9). This Court can compel the release of any records that do not satisfy the requirements of at least one exemption. See 5 U.S.C. § 552(a)(4)(B) ; U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).

"FOIA expressly places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter de novo.’ " Reporters Comm., 489 U.S. at 755, 109 S.Ct. 1468 (quoting 5 U.S.C. § 552(a)(4)(B) ). In making this determination, the court "[a]t all times ... must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure.’ " Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) ).

A "veritable avalanche of FOIA-related precedent" guides this Court's determination of whether Fish and Wildlife has carried its burden of establishing that a given exemption applies. Ullah v. CIA, 435 F. Supp. 3d 177, 182 (D.D.C. 2020). To show that certain information is exempt from FOIA, "an agency may file ‘affidavits describing the material withheld and the manner in which it falls within the exemption claimed.’ " Bin Ali Jaber v. U.S. Dep't of Def., 293 F. Supp. 3d 218, 224 (D.D.C. 2018) (quoting King v. U.S. Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987) ). Ultimately, "when an agency seeks to withhold information, it must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant." Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (quoting King, 830 F.2d at 219 ). "[A]n agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ " Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007) ).

The Court begins with an...