Story of Stuff Project v. U.S. Forest Serv.

366 F.Supp.3d 66

STORY OF STUFF PROJECT, Plaintiff,

v.UNITED STATES FOREST SERVICE et al., Defendants.

Case No. 1:18-cv-00170 (TNM)

United States District Court, District of Columbia.

Signed February 4, 2019

Rachel Doughty, Greenfire Law, P.C., Berkeley, CA, Matt Kenna, Public Interest Environmental Law, Durango, CO, Plaintiff.

Joshua L. Rogers, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC, for Defendants.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

The Story of Stuff Project filed this Freedom of Information Act ("FOIA") case seeking government records related to Nestlé Waters North America, Inc.'s ("Nestlé") operations in the San Bernardino National Forest. In response, the United States Forest Service and the Department of Agriculture (collectively, the "Government") produced hundreds of emails and photographs, several videos, and thousands of pages of responsive records. Relying on FOIA Exemptions 4, 5, 6, and 9, the Government withheld some records and produced others with significant redactions. The Project challenges these withholdings as unjustified.

Both parties have moved for summary judgment. The Court finds that the Government properly withheld information under Exemptions 4, 5, and 9. But the Court also finds that the Government inappropriately invoked Exemption 6. Thus, both the Government's Motion and the Project's Cross-Motion will be granted in part and denied in part.

I.

Nestlé sells bottled drinking water, among other things. To collect the water it needs, the company owns and operates tunnels, wells, transmission pipelines, and associated structures in the Strawberry Creek Watershed in the San Bernardino National Forest. Pl.'s Cross-Mot. for Summ. J., ECF No. 22 ("Pl.'s Cross-Mot."), Ex. 1-A, ECF No. 22-2 at 1. Because Strawberry Creek is on National Forest System lands, Nestlé's operation requires a license from the federal government. Id. This authorization, known as the "Arrowhead Springs Permit," was last issued by the Forest Service in 1978. Id. In 2015, the Service announced that it would consider renewing the permit, and it issued Nestlé a new permit in June 2018. Id. at 3.

The Story of Stuff Project is a nonprofit "actively involved in environmental sustainability and resource conservation efforts." Compl. 2, ECF No. 1. Beginning in 2015, it sought to "prepare its public comments" to "meaningfully participate in the public process surrounding [the Service's] review of [Nestlé's] permit." Pl.'s Reply in Supp. 1, ECF No. 29 ("Pl.'s Reply"). To that end, it submitted several FOIA requests to the Government. It requested:

Copies of any and all records pertaining in any way to: The water diversion and transmission facilities constructed and operated on U.S. Forest Service land in and near the West Fork of Strawberry Creek in the San Bernardino National Forest; and The Nestle Waters North America Inc. Special Use Permit [Categorial Exclusion] listed on the Current Schedule of Proposed Actions (SOPA) ....

See Defs.' Mot. for Summ. J., ECF No. 19 ("Defs.' Mot."), Attach. 4, ECF No. 19-4 at 2.

After receiving nothing in response, the Project filed this suit. Eventually, the Government produced roughly 3,000 pages of responsive documents. But some of these pages were partially or fully redacted. Pl.'s Cross-Mot. at 9.

This is not the first time that the Project has challenged the Forest Service's withholding of information related to the Arrowhead Springs Permit. For reasons known only to the Project, it brought another case based on virtually identical FOIA requests in this district last year. See Story of Stuff Project v. U.S. Forest Service , 345 F.Supp.3d 79 (D.D.C. 2018). The parties' arguments, declarations in support, and evidentiary materials here largely mirror those considered in Judge Mehta's thoughtful 2018 opinion.

Here, as in the that case, the Government has invoked several exemptions in support of its redactions, including:

• Exemption 4 (protecting trade secrets and confidential commercial information),

• Exemption 5 (protecting documents covered by the attorney-client and deliberative process privileges),

• Exemption 6 (protecting against undue invasions of personal privacy), and

• Exemption 9 (protecting geological and geophysical information about wells).

See Defs.' Mot. at 7-15; Story of Stuff Project , 345 F.Supp.3d at 85–86. The Project believes that the Government has misapplied these Exemptions, and it thus seeks production of unredacted versions of several documents.

II.

The "vast majority" of FOIA cases are resolved on summary judgment motions. Brayton v. Office of the U.S. Trade Rep. , 641 F.3d 521, 527 (D.C. Cir. 2011). To prevail on a motion for summary judgment, a movant must show 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) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is material if it could alter the outcome of the suit under the substantive governing law. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

In the FOIA context, the Government is entitled to summary judgment if it establishes "beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents," Morley v. CIA , 508 F.3d 1108, 1114 (D.C. Cir. 2007) (cleaned up), and that each relevant record has been produced or is exempt from disclosure. Students Against Genocide v. U.S. Dep't of State , 257 F.3d 828, 833 (D.C. Cir. 2001). FOIA permits agencies to withhold information that falls under "one of nine specific exemptions, which are construed narrowly in keeping with FOIA's presumption in favor of disclosure." Pub. Citizen, Inc. v. Office of Mgmt. & Budget , 598 F.3d 865, 869 (D.C. Cir. 2010) (citations omitted).

The Government "bears the burden of establishing that a claimed exemption applies." Citizens for Resp. & Ethics in Wash. v. U.S. Dep't of Justice , 746 F.3d 1082, 1088 (D.C. Cir. 2014). It can carry this burden "by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that [it] has analyzed carefully any material withheld and provided sufficient information as to the applicability of an exemption to enable the adversary system to operate."

Brennan Ctr. for Justice v. U.S. Dep't of State , 296 F.Supp.3d 73, 80 (D.D.C. 2017).¹ If this information "is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents." ACLU v. U.S. Dep't of Defense , 628 F.3d 612, 626 (D.C. Cir. 2011).

III.

The Project does not challenge the reasonableness of the records search the Government conducted. See generally Pl.'s Cross-Mot. at 9-26. Fifteen Forest Service employees searched "the systems most likely to contain the responsive records," and used keywords like "Nestle" and "Arrowhead" that would "most likely locate the responsive information." Defs.' Mot., Attach. 4 at 2-3. These searches led to the identification of 465 emails, 869 photographs, six spreadsheets, five videos, and 3,218 PDF pages of responsive records. Id. at 3.

An employee from the Department of Agriculture's Office of General Counsel also searched for responsive records. Id. at 4. He found another 1,045 PDF pages. Id. at 3-4. Based on these results and the Government's detailed declarations, the Court finds that the search was reasonably calculated to uncover all relevant documents.

The Government produced 3,076 of the over 4,000 responsive pages it found. Pl.'s Mot. at 9. Some were "heavily redacted in part or in full." Id. The Project challenges the redactions and withholdings applied to roughly 280 of the responsive pages. See Pl.'s Cross-Mot. at 11; Vaughn Index, ECF No. 19-14. The Court addresses these challenges below.

A.

The Project argues that the Government improperly withheld information under FOIA Exemption 4. Pl.'s Cross-Mot. at 13. This exemption protects "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). The Project contends that the Government redacted information about Nestlé's business operations that is already within the public domain. Thus, it argues, this information cannot be confidential. Pl.'s Cross-Mot. at 13. It also alleges that the Government has not shown that releasing the information would substantially harm Nestlé's competitive position. Id. at 14. Both arguments fail.

1.

Information already available to the public "cannot cause competitive injury and is not protected from disclosure by Exemption 4." PETA v. U.S. Dep't of Health & Human Services , 901 F.3d 343, 352 (D.C. Cir. 2018) ; see also Niagara Mohawk Power Corp. v. U.S. Dep't of Energy , 169 F.3d 16, 19 (D.C. Cir. 1999) ("[I]f identical information is truly public, then enforcement of an exemption cannot fulfill its purposes."). The party seeking the information "has the burden of showing that there is a permanent public record of the exact portions [it] wishes to obtain." PETA , 901 F.3d at 352 (emphasis in original).

The Project has not met this standard. It seeks unredacted versions of documents that contain "proprietary mapping information describing the location of springs, wells, and pathways to those locations[,] associated infrastructure information[,] technical specifications of equipment[,] geological and geophysical information concerning wells[,] and geological and hydrogeological analysis of springs." Vaughn Index at 1-2. It notes that "a report by Dames & Moore has been released to the public by the State of California Water Board." Pl.'s Cross-Mot. at 14. And it contends that this report contains "substantially equivalent—if not identical—information...