Black Hills Clean Water Alliance v. United States Forest Service et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
BLACK HILLS CLEAN WATER
ALLIANCE,
Plaintiff,
vs.
UNITED STATES FOREST SERVICE,
UNITED STATES DEPARTMENT OF
AGRICULTURE,
Defendants.
5:20-CV-05034-JLV
REPORT AND RECOMMENDATION
DOCKET NOS. 25 & 30
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.
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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.
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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,
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¶ 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
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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
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agency provided BHCWA with a Vaughn1 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
1 See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977
(1974).
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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. 56(a).
Generally, the court must view the facts, and inferences from those facts,
in the light most favorable to the nonmoving party. 	See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986) (citing United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Helton v. Southland Racing
Corp., 600 F.3d 954, 957 (8th Cir. 2010) (per curiam). 	Summary judgment will
not lie if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party. 	See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66-67 (8th Cir. 1994).
The burden is placed on the moving party to establish both the absence
of any genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. 	Fed. R. Civ. P. 56(a). 	Once the movant has met
its burden, the nonmoving party may not simply rest on the allegations in the
pleadings, but must set forth specific facts, by affidavit or other evidence,
showing that a genuine issue of material fact exists. 	Anderson, 477 U.S. at
256; Fed. R. Civ. P. 56(e) (each party must properly support its own assertions
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of fact and properly address the opposing party’s assertions of fact, as required
by Rule 56(c)).
The underlying substantive law identifies which facts are “material” for
purposes of a motion for summary judgment. 	Anderson, 477 U.S. at 248.
“Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. 	Factual
disputes that are irrelevant or unnecessary will not be counted.” 	Id. (citing 10A
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2725, at 93–95 (3d ed. 1983)). 	“[T]he mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” 	Id. at 247-48.
Essentially, the availability of summary judgment turns on whether a
proper jury question is presented: “The inquiry performed is the threshold
inquiry of determining whether there is the need for a trial—whether, in other
words, there are any genuine factual issues that properly can be resolved only
by a finder of fact because they may reasonably be resolved in favor of either
party.” 	Id. at 250.
FOIA cases are generally resolved through summary judgment. 	See
Harrison v. Exec. Office of U.S. Attorneys, 377 F. Supp. 2d 141, 145 (D.D.C.
2005) (citations omitted) (“FOIA cases are typically and appropriately decided
on motions for summary judgment.”). 	“In a FOIA case, summary judgment is
available to a defendant agency where ‘the agency proves that it has fully
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discharged its obligations under FOIA, after the underlying facts are the
inferences to be drawn from them are construed in the light most favorable to
the FOIA requester.’ ” 	Mo. Coal. for Env’t Found. v. U.S. Army Corps of Eng’rs,
542 F.3d 1204, 1209 (8th Cir. 2008) (quoting Miller v. U.S. Dep’t of State, 779
F.2d 1378, 1382 (8th Cir. 1985)). 	“In order to discharge this burden, the
agency ‘must prove that each document that falls within the class requested
either has been produced, is unidentifiable, or is wholly exempt from the Act’s
inspection requirements.’ ” 	Miller, 779 F.2d at 1382-83 (quoting Nat’l Cable
Television Ass’n, Inc. v. Fed. Commc’n Comm’n, 479 F.2d 183, 186 (D.C. Cir.
1973)). 	The court has jurisdiction to enjoin the agency from withholding
agency records and to order the production of improperly withheld agency
records. 	5 U.S.C. § 552(a)(4)(B). 	It is the agency’s burden to show its
withholding of records was lawful. 	Id.
The mere fact that both parties have filed cross-motions for summary
judgment does not necessarily mean that no genuine dispute of a material fact
exists; nor do cross-motions constitute a stipulation to the court’s disposition
of the case by motion. 	Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214
(8th Cir. 1983); Barnes v. Fleet Nat’l. Bank, N.A., 370 F.3d 164, 170 (1st. Cir.
2004). 	Rather, cross-motions require the court to evaluate each motion
independently and determine whether that movant is entitled to judgment as a
matter of law. 	C. Line, Inc. v. City of Davenport, 957 F. Supp. 2d 1012,
1024-25 (S.D. Iowa 2013); St. Luke’s Methodist Hosp. v. Thompson, 182 F.
Supp. 2d 765, 769 (N.D. Iowa 2001).
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B. 	Whether BHCWA’s Claims Related to the 2019 Search Are Moot
As a preliminary matter, the court considers the agency’s argument that
BHCWA’s claims related to the 2019 search are moot because the agency has
produced responsive documents after performing a subsequent search in 2020-
after BHCWA filed this lawsuit. 	The agency cites Kuntz v. U.S. Dep’t of Justice,
Case No. 1:17-cv-223, 2018 WL 3381395, at *2 (D.N.D. July 11, 2018), for the
proposition that “[i]t is well-established that a claim for relief under FOIA
becomes moot and subject to dismissal if the government department or
agency produces the requested documents after a complaint has been filed.”
Id. 	See also Heily v. U.S. Dep’t of Defense, No. 13-5055, 2013 WL 5975876, at
*1 (D.C. Cir. Oct. 16, 2013) (per curiam) (affirming district court’s dismissal for
mootness of FOIA claim after responsive documents were produced).
BHCWA argues its claims related to the 2019 search are not moot
because the allegedly illegal conduct undertaken by the agency in its 2019
search is likely to be repeated. 	“The test for mootness is stringent. 	Mere
voluntary cessation of allegedly illegal conduct does not moot a case; otherwise,
the courts would be compelled to leave ‘[t]he defendant . . . free to return to his
old ways.’ ” 	Ctr. for Special Needs Tr. Admin., Inc. v. Olson, 676 F.3d 688, 697
(8th Cir. 2012) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283,
289 (1982)). 	“Instead, a case becomes moot if it is ‘absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur.’ ” 	Id.
(quoting Strutton v. Meade, 668 F.3d 549, 556 (8th Cir. 2012)). 	Courts have
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held that, in the FOIA context, claims are not always mooted by the production
of responsive documents.
So long as an agency’s refusal to supply information evidences a policy or
practice of delayed disclosure or some other failure to abide by the terms
of the FOIA, and not merely isolated mistakes by agency officials, a
party’s challenge to the policy or practice cannot be mooted by the
release of the specific documents that prompted the suit.
Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988).
Accordingly, the court turns to the question of whether the alleged
deficiencies of the agency’s 2019 search are likely to recur, i.e., whether there
is evidence of a policy and practice of noncompliance with FOIA; if there is no
such evidence, BHCWA’s claims related to the 2019 search are moot.
1. 	Justiciability of Policy and Practice Claims
Although the Eighth Circuit has not recognized or articulated the
standards applicable to a pattern and practice claim in the FOIA context,
“[o]ther circuits and districts have . . . concluded that a plaintiff may bring an
independent claim alleging a pattern or practice of violating the FOIA.” 	Am.
Soc’y for the Prevention of Cruelty to Animals v. Animal & Plant Health
Inspection Serv., 19 Civ. 3112 (NRB), 2021 WL 1163627, at *14 (S.D.N.Y. Mar.
25, 2021) (quoting Pietrangelo v. U.S. Army, 334 F. App’x 358, 360 (2d Cir.
2009)).
As the D.C. Circuit has concluded, there is nothing in FOIA that prevents
a federal court from granting equitable relief to address an agency’s “policy or
practice” that “will impair the [requester’s] lawful access to information in the
future.” 	Payne Enters., Inc., 837 F.2d at 491, 494 (“FOIA imposes no limits on
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courts’ equitable powers in enforcing its terms.”). 	See also Judicial Watch, Inc.
v. U.S. Dep’t of Homeland Sec., 895 F.3d 770, 777 (D.C. Cir. 2018) (noting that
FOIA authorizes courts to “enjoin the agency from withholding agency records”
and that “[t]his injunctive authority does not limit the district court’s inherent
injunctive powers”) (citations omitted).
Consistent with this view of federal courts’ equitable authority under
FOIA, other federal courts have proceeded to adjudicate FOIA policy and
practice claims. 	See, e.g., Doyle v. U.S. Dep’t of Homeland Sec, 331 F. Supp.
3d 27, 66 (S.D.N.Y. 2018), aff’d, 959 F.3d 72 (2d Cir. 2020); Panjiva, Inc. v.
U.S. Customs & Border Prot., 342 F. Supp. 3d 481, 496 (S.D.N.Y. 2018), aff’d,
975 F.3d 171 (2d Cir. 2020); Lybarger v. Cardwell, 577 F.2d 764, 767 (1st Cir.
1978); Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1103
(9th Cir. 2016); N.Y. Times Co. v. F.B.I., 822 F. Supp. 2d 426, 431 (S.D.N.Y.
2011). 	For purposes of this report and recommendation, this magistrate judge
will assume without so holding that policy and practice claims are justiciable
and analyze BHCWA’s claims accordingly.
As articulated by the D.C. Circuit, policy and practice claims are viable
when a plaintiff establishes that “an agency’s refusal to supply information
evidences a policy or practice of delayed disclosure or some other failure to
abide by the terms of the FOIA” as opposed to “isolated mistakes by agency
officials.” 	Payne, 837 F.2d at 491. 	These policies need not be formal; a
complaint can survive dismissal by alleging that an agency adopted an informal
policy or practice of violating the FOIA. 	Judicial Watch, 895 F.3d at 778-79
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(citations omitted). 	Plaintiffs may, for example, state a claim by alleging that
“repeated, unexplained, and prolonged delay[s] in making information
available” or “regular[] fail[ures] to issue determinations in response to
[plaintiff’s] . . . FOIA requests with the time period required by FOIA” have
resulted in an agency’s “persistent failure to adhere to FOIA’s requirements”
and “will interfere with [plaintiff’s] right under FOIA to promptly obtain non-
exempt records from the agency in the future.” 	Id. at 779-80 (citations and
internal quotation marks omitted). 	A policy and practice claim may also rest
on allegations that an agency is routinely withholding non-exempt information
from disclosure in bad faith. 	Payne, 837 F.2d at 487-91.
Government agencies cannot moot a policy and practice claim by simply
producing the information plaintiff requested. 	Judicial Watch, 895 F.3d at
777. 	Rather, a claim remains justiciable so long as a plaintiff can show that
the agency’s practice “will impair the party’s lawful access to information in the
future,” id. (citation omitted), and that the plaintiff “will suffer continuing
injury due to this practice,” Payne, 837 F.2d at 490-91 (citation and internal
quotation marks omitted). 	See also Am. Soc’y for the Prevention of Cruelty to
Animals, 2021 WL 1163627, at *14-15 (applying these standards in the context
of cross motions for summary judgment).
2. 	FOIA Denial Under Exemption 4
BHCWA argues its claims arising from the agency’s 2019 denial of its
FOIA request under Exemption 4 are not moot because the agency will return
to its practice of withholding proposed (as opposed to approved) mining
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proposals absent injunctive relief. 	USDA regulations require the withholding of
certain confidential commercial information under Exemption 4. 	See 36 C.F.R.
§ 228.6; 7 C.F.R. § 1.8. 	In this mootness analysis, the court does not consider
the propriety of the 2019 withholdings under Exemption 4; the only question is
whether the allegedly unlawful activity—withholding proposed mining plans of
operation—evidences a policy and practice of noncompliance with FOIA that
will impair BHCWA’s lawful access to information in the future, thereby
causing BHCWA injury. 	The court concludes it does not.
Section 1.8(c) of title 7 of the Code of Federal Regulations requires that a
submitter of confidential commercial information designate in their
submissions by appropriate markings at the time of submission any material
that it considers protected from disclosure under Exemption 4. 	It is
undisputed that the submitters of the four plans of operation withheld in 2019
were not required to comply with § 1.8(c), and there is some indication this was
the root cause of the 2019 withholding—absent the submitters’ designation of
confidential commercial information, the agency withheld from BHCWA the
four proposed plans in their entirety. 	The record also suggests at least one
plan of operation at issue in BHCWA’s FOIA request was the subject of two
other FOIA requests, but was withheld under Exemption 4 each time. 	Docket
No. 32-6 at p. 8.
However, the agency has presented facts suggesting its practice
surrounding Exemption 4 has changed, and that change has proven effective in
limiting the withholding of proposed plans of operation. 	See Docket No. 36 at
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pp. 4-5, ¶¶ 16-17. 	The agency now requires submitters to denote any portions
of their submissions they believe are confidential commercial information
protected from disclosure under Exemption 4. 	According to the agency,
BHCWA submitted a new FOIA request on October 20, 2020, and the agency
released proposed mining plans of operation and withheld no records as
confidential commercial information unless those records had been previously
identified by the submitter as such. 	Id.
Here, the record demonstrates that the withholding of proposed mining
plans of operation is not likely to recur. 	Indeed, the agency has shown it has
adjusted its policies to prevent such withholding from recurring. 	As such,
there has been no showing that the agency’s practice will impair BHCWA’s
lawful access to information in the future. 	BHCWA’s claim as to the lawfulness
of the agency’s 2019 withholding under Exemption 4 is moot because there has
been no showing of a policy or practice of withholding that is likely to impair
BHCWA’s access to records in the future.
3. 	Timeliness
Under FOIA, federal agencies must respond to properly received FOIA
requests within 20 business days. 	5 U.S.C. § 552(a)(6)(A)(i). 	In “unusual
circumstances,” an agency can extend the 20-day time limit for processing a
FOIA request if it tells the requester in writing why it needs the extension and
when it will decide the request. 	5 U.S.C. § 552 (a)(6)(B)(i).
To the extent BHCWA seeks relief based on the agency’s withholding
records in violation of FOIA’s prompt-disclosure requirement, Docket No. 30 at
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p. 2, that claim was mooted by the agency’s February 12, 2019, response.
When a plaintiff challenges the timeliness of the agency’s response, the claim
becomes moot when the agency provides any response at all. 	Meyer v. Comm’r,
No. 10-cv-767 (JNE/JJK), 2010 WL 4157173, at *6 (D. Minn. Sept. 27, 2010)
(collecting cases), report and recommendation adopted, 2010 WL 4134958
(D. Minn. Oct. 19, 2010); see also In Def. of Animals v. Nat’l Insts. of Health,
543 F. Supp. 2d 83, 112 (D.D.C. 2008) (finding FOIA claim moot after agency
provided all responsive documents); Greene v. U.S. Dep’t of Justice, No. 20-cv-
1207 (ECT/LIB), 2021 WL 1340066, at *5 (D. Minn. Apr. 9, 2021).
BHCWA also makes the claim, for the first time in its reply brief, that it is
entitled to injunctive and declaratory relief stemming from the agency’s practice
of belatedly responding to FOIA requests. 	Docket No. 38 at p. 6. 	The BHCWA
FOIA request at the center of this dispute was filed on December 7, 2018, and
the agency did not respond until February 12, 2019. 	See Docket No. 28-2. 	It
is beyond question this response was untimely; it was served well over 20
working days after it was received. 	BHCWA has also submitted the agency’s
response to a FOIA request dated October 20, 2020. 	Docket No. 38-2.
According to the response, the agency received the request on November 3,
2020, and responded on December 16, 2020, more than 20 working days after
receipt of the request. 	Id. 	There is no indication in the record that the agency
notified BHCWA it needed an extension of time for unusual circumstances.
Accordingly, the agency’s responses to these two FOIA requests were untimely.
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The question then is whether the agency’s tardy responses suggest a
policy or practice that will impair BHCWA’s lawful access to information in the
future. 	There has been no assertion that the agency has a formal policy of
responding late to FOIA requests; the court therefore considers whether the
evidence suggests an informal policy.
The court concludes the record does not evince a practice or policy of
delay. 	While the court expresses concern that the agency did not provide
BHCWA responses to these two FOIA requests within the timeframe established
by law, these two occurrences are not enough to show a “persistent failure to
adhere to FOIA’s requirements.” 	Judicial Watch, 895 F.3d at 777. 	Put another
way, even making all reasonable inferences in favor of BHCWA, it is not clear
that the agency will interfere with BHCWA’s lawful right of access to non-
exempt information in the future based only upon the agency’s untimely
responses to these two FOIA requests.
The D.C. Circuit’s decision in Judicial Watch is an instructive
counterbalance to the circumstances of this case. 	In Judicial Watch, the
plaintiff submitted 19 FOIA requests to the Secret Service between July 2014
and August 2015. 	Judicial Watch, 895 F.3d at 776. 	The Secret Service
acknowledged receipt of and assigned tracking numbers to 17 of the requests,
then took no further action in responding to them. 	Id. 	In November 2015—
between 3 and 18 months after the agency received the requests—Judicial
Watch filed suit. 	Id. 	Part of Judicial Watch’s claim was that the Secret Service
had a policy and practice of violating FOIA’s procedural requirements,
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including the timeliness requirement, which hampered their lawful access to
non-exempt information. 	Id.
In asserting this non-responsive conduct was part of a policy or practice
calculated to deny requesters prompt access to non-exempt information,
Judicial Watch directed the court to five other lawsuits it had filed against the
Secret Service when it had previously engaged in this nonresponsive conduct.
Id. at 779. 	The D.C. Circuit considered that six nearly identical lawsuits had
not deterred the Secret Service from its practice of acknowledging receipt of
FOIA requests and then taking no action on them until Judicial Watch sought
redress in court. 	Id. at 780. 	The court found that, with this showing, Judicial
Watch met its burden of showing a pattern of prolonged delay amounting to a
persistent failure to adhere to FOIA’s requirements and that the pattern will
interfere with its right under FOIA to promptly obtain non-exempt records from
the agency in the future. 	Id. at 780-81.
Here, even making all reasonable inferences in BHCWA’s favor, the
agency conduct here is not so persistent as to amount to a pattern. 	First, the
agency here was not so evasive as the Secret Service in Judicial Watch.
Although the agency’s responses were tardy, the agency substantively
responded to the requests within approximately two months of each request.
And—unlike in Judicial Watch, where there were seven lawsuits, the last of
which involved 19 FOIA requests—the record includes reference to only two
FOIA requests. 	From these two relatively weak data points the court is unable
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to identify a persistent pattern of activity that would prevent BHCWA from
receiving timely disclosures in the future.
The court concludes the record, with its facts interpreted in favor of
BHCWA and all reasonable inferences made in BHCWA’s favor, does not
suggest a pattern or policy of delayed responses that would prevent BHCWA’s
timely access to non-exempt records in the future.
4. 	Unlawfully Narrow Search
BHCWA, in its reply brief, appears to be arguing that the 2019 search
was unlawfully narrow. 	Docket No. 38 at p. 8. 	As evidence of this
unlawfulness, BHCWA points to the over 23,000 pages of responsive records
the agency has since disclosed. 	First, the issue of the reasonableness of the
2019 search is moot. 	BHCWA has not made a policy and practice claim as to
the reasonableness of the scope of the 2019 search. 	Generally, a FOIA case
becomes moot “when requested documents have already been produced.”
Urban v. United States, 72 F.3d 94, 95 (8th Cir. 1995) (quotation omitted).
Because BHCWA has not made a colorable claim that this generality should
not apply, e.g., by making a policy and practice claim, the court must conclude
any claim related to the adequacy of the 2019 search was mooted by the
subsequent disclosures.
Second, the argument that the inadequacy of the 2019 search is proved
by the subsequent disclosures is misplaced. 	“[C]ontinuing discovery and
release of documents does not prove that the original search was inadequate,
but rather shows good faith on the part of the agency that it continues to
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search for responsive documents.” 	Landmark Legal Found. V. Envtl. Prot.
Agency, 272 F. Supp. 2d 59, 63 (D.D.C. 2003) (citing Meeropol v. Meese, 790
F.2d 942, 952-53 (D.C. Cir. 1986)). 	Accordingly, even if this claim were not
moot, the agency’s subsequent disclosure is not evidence of the 2019 search’s
inadequacy or lack of good faith.
There is no genuine issue of material fact whether the 2019 search was
unlawful or evidences a policy or practice of agency conduct that is likely to
harm BHCWA’s access to non-exempt information in the future. 	The court
recommends granting summary judgment for the agency and denying
summary judgment for BHCWA on this issue.
C. 	Whether the 2020 Search Was Reasonable
When considering the reasonableness of the search, summary judgment
turns on whether the “search’s adequacy, particularly in view of well defined
requests and positive indications of overlooked materials.” 	Reporters Comm.
for Freedom of the Press v. Fed. Bureau of Investigation, 877 F.3d 399, 402
(D.C. Cir. 2017) (citations and internal quotation omitted). 	The court reviews
de novo whether the agency has satisfied its burden of demonstrating a FOIA-
compliant search. 	In re Dep’t of Justice, 999 F.2d 1302, 1305 (8th Cir. 1993)
(citing 5 U.S.C. § 552(a)(4)(B)).
“The adequacy of an agency’s search for requested documents is judged
by a standard of reasonableness, i.e., ‘the agency must show beyond material
doubt . . . that it has conducted a search reasonably calculated to uncover all
relevant documents.’ ” 	Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383 (8th
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Cir. 1985) (quoting Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351
(D.C. Cir. 1983)). 	But the search need only be reasonable; it does not have to
be exhaustive. 	Mace v. Equal Emp’t Opportunity Comm’n, 197 F.3d 329, 330
(8th Cir. 1999) (per curiam) (citing Miller, 779 F.2d at 1383). 	“[O]nce the
agency has shown by convincing evidence that its search was reasonable, i.e.,
that it was especially geared to recover the documents requested, then the
burden is on the requester to rebut that evidence by a showing that the search
was not in fact in good faith.” 	Miller, 779 F.2d at 1383 (citing Weisberg, 705
F.2d at 1351).
“An agency may prove the reasonableness of its search through affidavits
of responsible agency officials so long as the affidavits are relatively detailed,
nonconclusory, and submitted in good faith.” 	Miller, 779 F.2d at 1383 (citing
Goland v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978). 	“[I]n
the absence of countervailing evidence or apparent inconsistency of proof,
affidavits that explain in reasonable detail the scope and method of the search
conducted by the agency will suffice to demonstrate compliance with the
obligations imposed by the FOIA.” 	Judicial Watch v. U.S. Dep’t of Homeland
Sec., 857 F. Supp. 2d 129, 139 (D.D.C. 2012) (quoting Perry v. Block, 684 F.2d
121, 127 (D.C. Cir. 1982)). 	FOIA directs the court to “accord substantial
weight to an affidavit of an agency concerning the agency’s determination as to
technical feasibility . . . and reproducibility.” 	5 U.S.C. § 552(a)(4)(B).
Here, the agency has submitted the declaration of Jenna Sloan in
support of the reasonableness of its 2020 records search. 	Ms. Sloan is the
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Strategic Planning Director for the U.S. Forest Service, Rocky Mountain Region.
Docket No. 28 at p. 1, ¶ 1. 	The agency asserts that, because Ms. Sloan’s
declaration is detailed, nonconclusory, and reasonably describes the agency’s
search and withholdings in response to BHCWA’s FOIA request, it is entitled to
substantial weight and a presumption of good faith. 	The court agrees. 	The
declaration sets out in detail the agency’s methodologies in identifying records
custodians, searching for documents responsive to the FOIA request, review of
documents responsive to the FOIA request, and production of non-exempt
responsive documents. 	Accordingly, the court considers whether BHCWA has
shown the agency’s search was not undertaken in good faith by submitting
countervailing evidence or apparent inconsistency of proof.
1. 	Whether the Agency’s Identification of Records Custodians
Was Reasonable
First, BHCWA asserts the agency unreasonably limited its search to the
21 records described in Ms. Sloan’s declaration. 	See Docket No. 34 at pp. 6-8.
BHCWA’s argument starts out on the wrong foot. 	BHCWA argues the agency’s
limiting the search to the 21 identified records custodians was unreasonable
because it is a “purely speculative assertion that all communications ‘would
have been routed through or originated by’ one of these 21 persons.” 	Docket
No. 34 at p. 6 (citing Docket No. 26 at p. 17). 	The agency’s search for
documents need not be exhaustive; it need only be reasonable. 	Mace, 197 F.3d
at 330. 	While it is true Eighth Circuit precedent also requires the agency to
conduct “a search reasonably calculated to uncover all relevant documents” in
places where such records “might be found,” Miller, 779 F.2d at 1383, the
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standard is reasonableness, not exhaustiveness. 	The agency has submitted a
detailed declaration to support the reasonableness of its search by 21 records
custodians. 	BHCWA’s assertion that the search was unreasonable simply
because it was not exhaustive is unpersuasive.
BHCWA further argues the agency’s use of only 21 records custodians
was unreasonable because, based upon its review of the over 23,000 pages
produced by the agency, it has identified 78 agency personnel2 who are named
in the agency disclosures. 	Of these 78, 10 are among the 21 records
custodians identified by the agency. 	Of the remaining 68 agency personnel,
BHCWA does not indicate what record-creating activity it believes 57 of the
agency personnel engaged in. 	See Docket No. 34-3 at pp. 5-10. 	For those 57
people, the record suggests they were merely named in the agency disclosures;
there is no showing that they would reasonably be expected to possess non-
cumulative documents responsive to BHCWA’s FOIA request, and it was
reasonable for the agency not to identify these people as records custodians.
Based upon BHCWA’s submission, it is clear it expects the agency to
solicit documents from every person whose name appears in the records
2 BHCWA makes several misrepresentations about this number. 	First, to dispel
any misapprehensions, the correct number is 78. 	Yes, there are 79 rows in the
table at Docket No. 34-3 at pp. 5-10. 	But row number one defines the
columns. 	Second, BHCWA represents this number of people is “approximately
100 persons.” 	Docket No. 34 at p. 5. 	The court is reluctant to round so
generously. 	Third, BHCWA represents it has identified “an additional 79”
agency personnel, implying these people were not among the 21 agency records
custodians. 	Based on the court’s review, ten of these people were among the
21 agency records custodians. 	A fair reading of BHCWA’s submission suggests
it has identified 68 additional agency personnel from the over 23,000 pages
produced already.
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produced by the agency. 	But not every name that appears in a record relates
to a person who is likely to have information responsive to the FOIA request.
See Morley v. Central Intelligence Agency, 508 F.3d 1108, 1121 (D.C. Cir.
2007) (“[M]ere reference to other files does not establish the existence of
documents that are relevant to [a] FOIA request. 	If that were the case, an
agency responding to FOIA requests might be forced to examine virtually every
document in its files, following an interminable trail of cross-referenced
documents like a chain letter winding its way through the mail.” (quoting
Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994)). 	The
court will not impose on the agency a duty to exhaustively search the files of
every person named in its disclosures. 	Again, the standard applicable to an
agency’s search is reasonableness, not exhaustiveness.
Eight of the remaining 11 people BHCWA references are not reasonably
likely to possess responsive documents.
1. 	BHCWA has given no indication of what location and position
Bethany Doten holds. 	Docket No. 34-3 at p. 5. 	BHCWA’s submission
does not even indicate whether she is employed by the agency. 	Without
this information, the court cannot ascertain whether Ms. Doten is likely
possessing responsive records.
2. 	The same rationale applies to Jonathan Word. 	Docket No. 34-3 at
p. 10.
3. 	BHCWA has alleged Customer Service Representative Teresa
Dringman received public comments on Rochford mining on October 26,
2017, before the FOIA request’s start date of January 1, 2018. 	Docket
No. 34-3 at p. 5. 	Accordingly, there is no likelihood Ms. Dringman
possesses responsive records.
4. 	BHCWA asserts David Hartley, an agency law enforcement officer,
is reasonably likely to possess responsive information, Docket No. 34-3
at p. 7, but the agency has shown Captain Hartley’s involvement was
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limited to security at public information meetings regarding mining
operations. 	Docket No. 39 at p. 5. 	This activity is not reasonably likely
to generate or result in Cap. Hartly’s possession of responsive records.
5. 	BHCWA alleges Twila Morris, an executive assistant, is reasonably
likely to possess responsive records. 	Docket No. 34-3 at p. 8. 	But the
agency has shown that Ms. Morris did not play a substantive role in
exploratory gold mining in the Mystic Ranger District and therefore is not
reasonably likely to generate or possess responsive records. 	Docket
No. 39 at p. 5.
6. 	BHCWA asserts Forest Geologist Karl Emmanuel possesses
responsive records from communications with the public regarding F3
Gold. 	Docket No. 34-3 at p. 6. 	But, because BHCWA has not alleged
when these communications took place, the court cannot determine
whether any records created therefrom would be responsive to BHCWA’s
FOIA request.
7. 	The same is true regarding Chelsea Vollmer. 	Docket No. 34-3 at p.
10.
8. 	Lastly, BHCWA asserts Adam Weaver was involved in the Triple G
project but offers no more concrete description of his suspected record-
generating activity. 	Docket No. 34-3 at p. 10.
BHCWA has not shown that the agency’s exclusion of these people from its
pool of records custodians was unreasonable or in bad faith.
However, the remaining three people BHCWA has referenced appear
reasonably likely to possess responsive documents. 	In its response to the
agency’s motion for summary judgment, BHCWA points to Brian Hoelscher, an
agency administrative contact with the Black Hills National Forest, who
participated in meetings about the Mineral Mountain Mining Plan and acted as
the agency contact person with the mining company. 	Docket No. 34-3 at p. 7;
Docket No. 34 at p. 7. 	BHCWA alleges Mr. Hoelscher was listed as the
administrative contact on a memorandum of understanding between the
agency and the company. 	Docket No. 34 at p. 7.
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Based upon this activity, there is a reasonable likelihood that
Mr. Hoelscher possesses responsive documents. 	And, although BHCWA
discussed Mr. Hoelscher in its response to the agency’s motion for summary
judgment, the agency in its reply did not discuss Mr. Hoelscher or attempt to
explain how documents generated or possessed by Mr. Hoelscher would be
cumulative of the records possessed by other custodians—i.e., that the 2020
search, even without Mr. Hoelscher, was “reasonably calculated to uncover all
relevant documents.” 	Miller, 779 F.2d at 1383 (quotation omitted). 	Nor has
the agency alleged that Mr. Hoelscher is not reasonably likely to possess
responsive documents. 	See Docket No. 39 at p. 5 (asserting other personnel
listed in the BHCWA table have no reasonable likelihood of possessing
responsive documents without mentioning Mr. Hoelscher). 	Accordingly, the
agency’s decision to exclude Mr. Hoelscher from its records custodians appears
to have omitted a potential source of relevant documents.
The same is true for Archaeologist Luke Hittner and Range Specialist
Scott Albrecht. 	BHCWA has alleged Mr. Hittner was involved in the Cutty Sark
and Triple G mining proposals. 	Docket No. 34-3 at p. 7. 	BHCWA has alleged
Mr. Albrecht was named in the work plan for the F3 Gold mining proposal. 	Id.
at p. 5. 	The agency does not attempt to explain why these two are not
reasonably likely to possess responsive documents. 	See Docket No. 39 at p. 5.
The agency’s decision not to include Mr. Hittner and Mr. Albrecht from its
records custodians may have resulted in overlooking responsive documents.
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The agency’s initial decision to search the records of only the 21
identified records custodians may have been reasonable at the outset of the
search. 	“However, courts ‘evaluate[] the reasonableness of an agency’s search
based on what the agency knew at [the search’s] conclusion rather than what
the agency speculated at its inception.’ ” 	Am. Oversight v. U.S. Gen. Servs.
Admin., Civil Action No. 18-2419 (CKK), 2020 WL 1911559, at *6 (D.D.C. Apr.
20, 2020) (quoting Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir.
1998)). 	During the agency’s search of custodians’ records, it discovered
records demonstrating that at least three other individuals could have
information responsive to BHCWA’s FOIA request. 	The agency was required to
“revise its assessment of what [was] ‘reasonable’ . . . to account for leads that
emerge[d] during its inquiry.” 	Campbell, 164 F.3d at 28. 	The court concludes
that, taking the facts and inferences in the light most favorable to BHCWA as
the requester, Mr. Hoelscher, Mr. Hittner, and Mr. Albrecht are reasonably
likely to possess records responsive to BHCWA’s FOIA request. 	Accordingly,
the court recommends an order compelling the agency to search for responsive
records possessed by these individuals.
2. 	Whether the Search Locations Were Reasonable
As discussed in full herein, the agency had its records custodians—or
the people searching on their behalf—search their records in three waves.
In the first and second batches, the records custodians searched their own
records using their own search parameters based upon the agency’s
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explanation of the subject matter of BHCWA’s FOIA request. 	Docket No. 28 at
pp. 6, 8, ¶¶ 16, 19.
The locations searched by the 15 records custodians who managed the
search of their own records were primarily email communications, email
attachments, and computer hard drives; some custodians searched shared
network drives and other locations, like external storage media. 	Id. at p. 9,
¶ 20. 	As for the remaining six records custodians—those in the third batch
who had retired or left the agency—the agency’s eDiscovery program personnel
searched email accounts for potentially responsive documents according to
search parameters applied by the Black Hills National Forest’s FOIA
Coordinator. 	Id. at p. 9, ¶ 21.
BHCWA argues the locations searched by the records custodians are
vague and there are no indication calendars, meeting minutes, or other records
created for, or obtained at, meetings with mining proponents or other events
were targeted by the search. 	See Docket No. 34 at p. 9. 	BHCWA also argues
the locations searched by the records custodians were overly narrow because
there is no evidence any custodian searched paper files, text messages, private
messages, or other common methods of communication for potentially
responsive documents. 	Id.
Therefore, BHCWA argues, the agency’s search does not conform with
the Electronic FOIA Amendments of 1996, Pub. L. No. 104-231, 110 Stat.
3047, which expanded the definition of “record” in 5 U.S.C. § 552(f) to include
“any information that would be an agency record . . . when maintained by an
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agency in any format, including an electronic format.” 	Pub. L. No. 104-231, §
3, 110 Stat. at 3049. 	Accordingly, BHCWA argues, the agency has not
searched in all places where records might be found, which requires the finding
that the agency has not met its burden to show the search was reasonable.
“An agency’s search ‘need not be perfect, only adequate, and adequacy is
measured by the reasonableness of the effort in light of the specific request.’ ”
Judicial Watch, 177 F. Supp. 3d at 457 (quoting Meeropol, 790 F.2d at 956)
(emphasis added). 	See also SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201
(D.C. Cir. 19991) (citation omitted) (holding an agency need only show that “the
search was reasonably calculated to discover the requested documents, not
whether it actually uncovered every document extant”).
Here, the plaintiff requested:
[A]ny and all agency records created or obtained by the Mystic District
Office or the Black Hills National Forest Office that relate to plans of
operation 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.
Docket No. 28-1 at p. 1.
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The agency argues it has discharged its duty under FOIA to search
locations “reasonably calculated to discover the requested documents,”
SafeCard, 926 F.2d at 1201, because its records custodians—or the people
searching on their behalf—searched email accounts and electronic storage
drives for responsive documents. 	The agency has not, however, carried its
burden of showing it was reasonable to exclude from its search all paper
records maintained by its records custodians. 	The agency has not stated facts
suggesting mining applicants exclusively—during the timeframe relevant to
BHCWA’s FOIA request—submitted proposed plans of operation or other
responsive documents electronically as opposed to in hard copy. 	Without facts
suggesting no responsive documents were received or produced in hard copy,
the court simply cannot conclude it was reasonable to forego searching paper
files entirely. 	Similarly, construing BHCWA’s request broadly, responsive
documents reasonably include such categories as notes, agendas, and
handouts from meetings with the public and mining proponents. 	See Am.
Oversight, 2020 WL 1911559, at *10 (finding search that excluded paper
records unreasonable because “it [was] reasonable to think [the FBI Director]
might have notes, handouts, or other [responsive] material that are in paper
form and not electronically stored”).
Therefore, there exists a genuine issue of material fact whether the
agency’s search was reasonable because all paper files were, for no clear
reason, excluded from the agency’s search entirely. 	The agency has not carried
its burden to establish “that any limitations on the search it undert[ook] in
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[this] case comport with its obligation to conduct a reasonably thorough
investigation,” McGehee v. Cent. Intelligence Agency, 697 F.2d 1095, 1101
(D.C. Cir. 1983), because, absent any indication from the agency to the
contrary, it is reasonable to expect at least some responsive documents to exist
in hard copy. 	The court recommends granting summary judgment for BHCWA
and denying summary judgment for the agency on this issue. 	The court
further recommends an order requiring the agency to direct its records
custodians, including the three additional custodians identified in section C.1.,
to search their paper records for potentially responsive documents.
3. 	Whether the Search Terms Were Unreasonably Limited
Next, the parties dispute whether the search terms employed by the
agency were unreasonably limited. 	The agency provided a list of what search
terms each of the 15 records custodians in the first and second waves used to
search their records. 	Docket No. 28 at pp. 6-8, ¶ 18. 	The agency supplied
each of these custodians with a directive to help frame their search, id. at p. 8,
¶ 19, but left to the custodians the task of deciding what search terms to use
because, according to the agency, each custodian was in the best position to
determine what search parameters would turn up potentially responsive
documents in their records. 	Id. at p. 6, ¶ 17. 	The records of the six records
custodians who had retired or left the agency were searched using search
terms applied by the FOIA Coordinator for the Black Hills National Forest. 	Id.
at p. 9, ¶ 21.
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BHCWA argues the search terms were unreasonable because they were
randomly selected by each record custodian in waves one and two, no two
custodians used the same search terms, no synonyms were used, and the
searches did not capture common misspellings. 	Docket No. 34 at p. 11.
Further, according to the agency’s list of search locations and terms, some of
the custodians used project names, while others did not, and some used
company names, while others did not. 	Id. 	None of the custodians searched for
names of contact persons for the mining companies or the names of
contractors the agency hired to review mining proposals. 	Id. 	BHCWA notes
that none of the custodians used Boolean connectors or otherwise altered the
terms to search their records. 	Id. 	BHCWA asserts a new search, according to
more sophisticated and standardized parameters, is required due to the
inadequacy of the agency’s 2020 search.
FOIA requires that an agency “make reasonable efforts to search for the
records in electronic form or format, except when such efforts would
significantly interfere with the operation of the agency’s automated information
system.” 	5 U.S.C. § 552(a)(3)(C). 	However, “[w]here the search terms are
reasonably calculated to lead to responsive documents, a court should neither
‘micromanage’ nor second guess the agency’s search.” 	Bigwood v. U.S Dep’t of
Def., 132 F. Supp. 3d 124, 140 (D.D.C. 2015) (quoting Agility Pub.
Warehousing Co. K.S.C. v. U.S. Nat’l Sec. Agency, 113 F. Supp. 3d 313, 339
(D.D.C. 2015)). 	FOIA requesters, like BHCWA, generally cannot dictate the
search terms for their FOIA request. 	Physicians for Human Rights v.U.S. Dep’t
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of Def., 675 F. Supp. 2d 149, 164 (D.D.C. 2009) (quoting Nielsen v. U.S.
Bureau of Land Mgmt., 252 F.R.D. 499, 514 (D. Minn. 2009)). 	“Rather, a
federal agency has ‘discretion in crafting a list of search terms that they
believe[] to be reasonably tailored to uncover documents responsive to the FOIA
request.’ ” 	Bigwood, 132 F. Supp. 3d at 140 (quoting Agility Pub. Warehousing
Co. K.S.C., 113 F. Supp. 3d at 339 (quotation omitted)).
Thus, the question is whether the agency’s search terms are reasonably
calculated to lead to responsive documents. 	The court finds they are. 	The
search terms employed by the records custodians in the first and second waves
all revolve around locating documents relating to gold mining proposals, letters
of intent, plans of operations, and exploratory drilling in the Mystic District,
sometimes searching for specific projects or companies—exactly the material
requested by BHCWA. 	Because the custodians’ search terms are reasonably
calculated to uncover potentially responsive documents, the agency’s use of
search terms comports with FOIA. 	While the court agrees that other, more
inclusive, search terms—things like common misspellings, individuals’ names,
and Boolean connectors—might turn up additional responsive documents, the
question is whether the agency’s search was reasonable, not whether it was
exhaustive or perfect. 	And, “[w]here the agency’s search terms are reasonable,
the Court will not second guess the agency regarding whether other search
terms might have been superior.” 	Liberation Newspaper v. U.S. Dep’t of State,
80 F. Supp. 3d 137, 146-47 (D.D.C. 2015).
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For these reasons, the court recommends granting the agency’s motion
for summary judgment and denying BHCWA’s motion for summary judgment
on the issue of whether the agency’s 2020 search locations and terms were
reasonable. 	The court recommends granting BHCWA’s motion for summary
judgment and denying the agency’s motion for summary judgment on the issue
of whether the agency’s 2020 search was improperly limited to its 21 records
custodians. 	As discussed fully in section C.1., the court recommends an order
directing the agency to search for responsive records possessed by
Mr. Hoelscher, Mr. Hittner, and Mr. Albrecht.
D. 	Whether the Agency’s Withholdings Are Unlawful
Next, the parties dispute whether the agency’s withholdings are
unlawful. 	Here, the agency withheld material from its 2020 search under FOIA
Exemptions 3, 5, and 6, and identified those documents in a Vaughn index.
See Docket No. 28-5. 	“To help determine whether a governmental agency has
discharged its burden under FOIA, Vaughn indices may be used.” 	Mo. Coal.
for Env’t Found., 542 F.3d at 1209 (quoting Crancer v. U.S. Dep’t of Justice,
999 F.3d 1302, 1305 (8th Cir. 1993)). 	“[S]uch an index includes a general
description of each document’s contents, including information about the
document’s creation, such as date, time, and place. 	For each document, the
exemption claimed by the government is identified, and an explanation as to
why the exemption applies to the document in question is provided.” 	Id. at
1209-10 (quoting Crancer, 999 F.2d at 1306). 	The purpose of a Vaughn index
is to “allow[] both the district court and the requesting party to evaluate the
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decision to withhold records and ensure compliance with FOIA.” 	Id. at 1210
(citing Barney v. Internal Revenue Serv., 618 F.2d 1268, 1272 (8th Cir. 1980)).
An agency may withhold information responsive to a FOIA request only if
it “reasonably foresees that disclosure would harm an interest protected by an
exemption described in [5 U.S.C. § 552(b)]; or” “disclosure is prohibited by law.”
5 U.S.C. § 552(a)(8)(A)(i). 	Agencies are under a duty to “consider whether
partial disclosure of information is possible whenever the agency determines
that a full disclosure of a requested record is not possible” and “take
reasonable steps necessary to segregate and release nonexempt information.”
5 U.S.C. § 552(a)(8)(A)(ii).
The FOIA exemptions must be “narrowly construed to ensure that
disclosure, rather than secrecy, remains the primary objective of the Act.” 	Mo.
Coal. for Env’t Found, 542 F.3d at 1208 (citation omitted). 	The court may
examine the contents of agency records in camera to determine whether such
records, or any part thereof, qualifies under any of the FOIA exemption. 	5
U.S.C. § 552(a)(4)(B).
The agency’s Vaughn index identifies each withheld document by subject
matter, author, recipient, and date of creation or receipt, the basis for its
withholding, and whether redactions have been applied to withhold the
document in full or in part. 	See Docket No. 28-5. 	The index also describes the
bases for the withholdings, namely whether each withholding is under FOIA
Exemptions 3, 5, or 6. 	Id. 	There is some indication in the record the agency
has provided BHCWA with an amended Vaughn index. 	Docket No. 34 at p, 1
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n.1. 	The court has only the Vaughn index submitted by the agency as Docket
No. 28-5. 	Therefore, when considering the parties’ arguments about the
agency’s claimed exemptions, the court considers only the information supplied
in Docket No. 28-5.
BHCWA argues generally that the agency’s Vaughn index is inadequate.
“While agency affidavits [in support of the application of exemptions] receive
‘substantial weight,’ they must include more than ‘barren assertions’ that a
document is exempt.” 	Madel v. U.S. Dep’t of Justice, 784 F.3d 448, 452 (8th
Cir. 2015) (quoting Miller, 779 F.2d at 1387). 	“Boilerplate or conclusory
affidavits, standing alone, are insufficient to show that no genuine issue of fact
exists as to the applicability of a FOIA exemption.” 	Mo. Coal. for Env’t Found.,
542 F.3d at 1210. 	“If the affidavits provide specific information sufficient to
place the documents within the exemption category, 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.” 	Quinon v. FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996) (quoting
Hayden v. Nat’l Sec. Agency/Central Sec. Serv., 608 F.2d 1381, 1387 (D.C. Cir.
1979).
1. 	Agency Withholdings Under Exemption 3
Exemption 3 permits agencies to withhold records that are “specifically
exempted from disclosure by statute” if that statute “requires that the matters
be withheld from the public in such a manner as to leave no discretion on the
issue; or” it “establishes particular criteria for withholding or refers to
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particular types of matters to be withheld; and” “if enacted after [October 28,
2009], specifically cites to [5 U.S.C. § 552(b)(3)]. 	5 U.S.C. § 552(b)(3).
The agency asserts Exemption 3 applies to documents depicting maps
and GIS data that includes specific locations of significant caves and
abandoned mines. 	The agency asserts the Federal Cave Resources Protection
Act, Pub. L. No. 100-691, 102 Stat. 4546 (1988) (“FCRPA”), requires the
withholding of this information. 	The FCRPA prohibits disclosure of information
concerning the specific location of any “significant cave,” unless the agency
determines that the disclosure of such information would further the purposes
of the FCRPA and would not create a substantial risk of harm to, theft from, or
destruction of the cave. 	16 U.S.C. § 4304(a). 	The FCRPA does not define what
a “significant cave” is, but it does require the USDA or Department of the
Interior to keep a list of all significant caves on federal lands. 	16 U.S.C.
§ 4303(b)(1). 	Presumably, a cave would need to appear on this list for its
location to be protected from disclosure by § 4304(a).
According to its Vaughn index, the agency withheld seven pages of
documents in full and an unknown quantity of GIS files under Exemption 3
and the FCRPA. 	Docket no. 28-5 at p. 5. 	The Vaughn index indicates these
documents include a “Wildlife Map” that was withheld because it “includes
specific locations of significant caves/abandoned mines” and “GIS files of karst
and cave data” that “includes specific locations of significant caves/abandoned
mines.” 	Id.
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BHCWA disputes this application of Exemption 3 on several grounds.
The court analyzes them in turn.
a. 	Substantial Risk of Harm, Threat, or Destruction
First, BHCWA asserts the agency has not shown that the caves at issue
here must be withheld subject to 16 U.S.C. § 4304(a) because there has been
no showing of a substantial risk of harm, threat, or destruction of the caves.
This argument is unpersuasive. 	The FCRPA requires withholding of location
information regarding significant caves unless the disclosure does not create a
substantial risk of harm, theft, or destruction of the cave and the agency
determines such disclosure would further the purposes of the FCRPA. 	16
U.S.C. § 4304(a). 	Because BHCWA has not alleged the agency should have
found such disclosure would further the purposes of the FCRPA, the agency’s
alleged failure to consider the substantial risk of harm, theft, or destruction—
taken alone—is not enough to cast material doubt upon the agency’s
application of the FCRPA. 	To the extent BHCWA has alleged withholding under
Exemption 3 is improper because the agency has not shown that it reasonably
foresees harm stemming from the disclosure, FOIA specifies that no such
showing is needed if disclosure is prohibited by law. 	5 U.S.C. § 552(a)(8)(A)(i).
Therefore, no such showing of reasonably foreseen harm is needed when the
agency has withheld documents under Exemption 3.
b. 	Abandoned Mines
Next, BHCWA argues the agency’s assertion of Exemption 3 over location
information regarding abandoned mines is improper because the FCRPA
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prohibits the disclosure of location information for significant caves, not mines
or other man-made cavities. 	The court agrees. 	The FCRPA’s confidentiality
provision applies only to significant caves. 	16 U.S.C. § 4304(a). 	And the
FCRPA expressly excludes mines (and other manmade excavations except
manmade entrances to naturally occurring caves) from its definition of “cave.”
16 U.S.C. § 4302(1). 	Therefore, the FCRPA does not provide a basis for
withholding location information about abandoned mines, and the agency cites
no other law to justify the withholding of records showing the locations of
abandoned mines under Exemption 3. 	The agency has not carried its burden
to show location information related to abandoned mines is protected from
disclosure by Exemption 3.
c. 	Adequacy of the Vaughn Index as to Exemption 3
Lastly, BHCWA asserts the map data should be released in full or in part
because the agency has not segregated the data concerning significant caves
from data concerning non-significant caves, which are not covered by the
FCRPA. 	Docket No. 34 at p. 15. 	Under Eighth Circuit law, a Vaughn index is
adequate when the withheld material is fairly described “and the reason for
nondisclosure is adequately stated and supported by the law.” 	Mo. Coal. for
Env’t Found., 542 F.3d at 1210 (citing Barney, 618 F.2d at 1272). 	Conclusory
assertions that an exemption applies are insufficient. 	Id.
The Vaughn index fairly describes the material withheld under
Exemption 3—a map and GIS data. 	But the Vaughn index indicates only that
the agency believes the FCRPA prohibits the disclosure of the records, and
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Ms. Sloan’s declarations offer no further explanation of how the agency came to
this conclusion. 	See Docket No. 28 at p. 12, ¶ 33; Docket No. 36 at p. 5, ¶ 20.
Accordingly, the court cannot conclude that the Vaughn index, taken with the
information provided in the agency affidavits, demonstrates how the FCRPA
operates to prohibit the disclosure of location information for these specific
caves.
The agency’s submissions leave the court questioning whether the caves
whose locations are being withheld are identified on the agency list of
significant caves as required by 16 U.S.C. § 4303(b) and, if so, why the agency
did not so state in its affidavits. 	If not, and the caves are non-significant, the
FCRPA does not prohibit the disclosure of location information. 	As written, the
Vaughn index and agency affidavits offer only conclusions that the FCRPA
protects this location information from disclosure without giving BHCWA or the
court sufficient information to evaluate this claim. 	Compare Mo. Coal. for Env’t
Found., 542 F.3d at 1210 (finding Vaughn index adequate because
accompanying affidavit explained how Exemption 5 operated to protect
withheld records).
However, the remedy is not, as BHCWA wishes, full disclosure of the
withheld records. 	The agency must be afforded an additional opportunity to
explain itself and, if necessary, produce the location information or provide a
supplemental Vaughn index explaining the basis for its application of the
FCRPA. 	See Dellums v. Powell, 642 F.2d 1351, 1359 (D.C. Cir. 1980) (finding
the “District Court should have afforded Mr. Nixon one more opportunity to
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submit a satisfactory index, rather than to ignore his objections and order the
immediate release of all of the transcripts to appellee’s counsel”). 	See also
Campaign for Responsible Transplantation v. U.S. Food & Drug. Admin., 219
F. Supp. 2d 106, 112-16 (D.D.C. 2002) (ordering the FDA to confer with
plaintiff to resolve disputes about its inadequate Vaughn index and then, if
necessary, provide a supplemental Vaughn index remedying deficiencies in the
original index). 	Accordingly, the court recommends denying the agency’s
motion for summary judgment and granting BHCWA’s motion for summary
judgment on this issue. 	The court urges the parties to confer on the records
withheld under Exemption 3. 	To the extent they do not agree on whether the
FCRPA applies to the caves in question, the court can only evaluate the
appropriateness of the redactions based on a supplemental Vaughn index that
adequately explains the basis for their exclusion.
d. 	Segregability
“In a FOIA action, the focus is on the information sought, not the
documents themselves.” 	Mo. Coal. for Env’t Found., 542 F.3d at 1211-12
(citing Schiller v. Nat’l Labor Relations Bd., 964 F.2d 1205, 1209 (D.C. Cir.
1992)). 	“Any reasonably segregable portion of a record shall be provided to any
person requesting such record after deletion of the portions which are exempt
under this subsection.” 	5 U.S.C. § 552(b). 	“The withholding of an entire
document by an agency is not justifiable simply because some of the material
therein is subject to an exemption.” 	Mo. Coal. for Env’t Found., 542 F.3d at
1212 (citing Rugiero v. U.S. Dep’t of Justice, 257 F.3d 534, 553 (6th Cir. 2001).
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Instead, non-exempt portions of documents must be disclosed unless they are
“inextricably intertwined” with exempt portions. 	Id. (citing Mead Data Cent.,
Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)).
In every FOIA case, the district court must make an express finding on
the issue of segregability. 	Id. (citing Morley, 508 F.3d at 1123). 	It is the
agency’s burden to show that the exempt portions of the documents are not
segregable from the non-exempt material. 	Id. (citing Davin v. U.S. Dep’t of
Justice, 60 F.3d 1043, 1052 (3d Cir. 1995). 	“The agency’s justification must be
relatively detailed, correlating specific parts of the requested documents with
the basis for the applicable exemption.” 	Id. (citing Schiller, 964 F.2d at 1209-
10). 	If the agency’s justification is inadequate, the court may require it to
submit a more specific affidavit. 	Id. (citation omitted). 	“The requisite
specificity of an affidavit and the reasonableness of segregation are dependent
upon the proportion and distribution of non-exempt information on a given
document[.]” 	Id.
Here, the Vaughn index indicates the wildlife map and the GIS data were
withheld in full. 	Consistent with the court’s previous recommendation, it is not
clear whether there are non-exempt portions of the GIS data withheld under
Exemption 3—whether they relate to non-significant caves or abandoned
mines—that are segregable from any properly-withheld GIS data. 	Accordingly,
the court recommends that the agency submit a more specific affidavit
describing the segregability of properly-withheld GIS data from any non-exempt
GIS data that have been improperly withheld.
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As for the wildlife map, unless there are technical applications unknown
to the court, it does not seem feasible to redact exempted map locations and
disclose the map with redactions; the locations of the redactions would betray
the very locations properly withheld under the FCRPA. 	Accordingly, the court
recommends that if a map contains properly withheld locations, the entire map
may be permissibly withheld from disclosure.
2. 	Agency Withholdings Under Exemption 5
The agency has withheld numerous documents in full and in part
according to FOIA Exemption 5. 	Exemption 5 permits agencies to withhold
“inter-agency or intra-agency memorandums or letters that would not be
available by law to a party other than an agency in litigation with the agency.”
5 U.S.C. § 552(b)(5). 	“To qualify [under Exemption 5], a document must . . .
satisfy two conditions: its source must be a Government agency, and it must
fall within the ambit of a privilege against discovery under judicial standards
that would govern litigation against the agency that holds it.” 	Dep’t of Interior
v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).
Here, the agency alleges the records were withheld under this exemption
because they were inter- or intra-agency documents that were shared among
the Forest Service, the Office of the General Counsel, and the Department of
Justice, and they were not shared with any non-government personnel other
than the contractor hired by the agency to assist with FOIA processing. 	These
documents are, the agency argues, protected from disclosure by the attorney-
client privilege and the attorney work-product doctrine.
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a. 	Attorney-Client Privilege
The attorney-client privilege protects both the giving of legal advice by an
attorney, as well as the giving of information by the client for the purpose of
receiving legal advice. 	Upjohn Co. v. United States, 449 U.S. 383, 390 (1981).
Factual material is also protected under the attorney-client privilege if the facts
were divulged by the client in confidence to the attorney and relate to the
solicitation of legal advice. 	Brinton v. U.S. Dep’t of State, 636 F.2d 600, 603
(D.C. Cir. 1980). 	Confidentiality extends to most employees of clients that are
institutions, as opposed to individuals. 	Upjohn, 449 U.S. at 392-93. 	The
attorney-client privilege covers information and communications between
employees of an institutional client who possesses facts or hold positions
relevant to the ability to give or receive legal advice. 	Id. at 394-95. 	“[I]t is clear
that an agency can be a ‘client’ and agency lawyers can function as ‘attorneys’
within the relationship contemplated by the privilege . . . .” 	Coastal States Gas
Corp. v. Dep’t of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980). 	It is undisputed
that these records originated in and were shared among government agencies.
BHCWA asserts the agency has failed to assert these communications
were not circulated to larger groups of individuals, making the documents not
confidential. 	BHCWA offers no facts to refute Ms. Sloan’s averment that
documents withheld in full or in part under Exemption 5 were shared only
among agency and government personnel and remained confidential. 	See
Docket No. 28 at p. 13, ¶ 37. 	Therefore, BHCWA has not cast material doubt
on the agency’s assertion of the attorney-client privilege on this basis.
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BHCWA’s primary challenge to the application of the attorney-client
privilege is that the agency has not shown a specific harm linked to the
purpose of Exemption 5. 	See 5 U.S.C. § 552(a)(8)(A). 	In 2016, Congress
passed the FOIA Improvement Act of 2016 (the “FIA”), Pub. L. No. 114-185, 130
Stat. 538 (2016), which, inter alia, “add[ed] an additional 'foreseeable harm'
requirement.” 	Seife v. Food & Drug Admin., 492 F. Supp. 3d. 269, 277
(S.D.N.Y. 2020). 	The foreseeable harm standard prohibits agencies from
withholding information unless (i) “the agency reasonably foresees that
disclosure of the record would harm an interest protected by an exemption,” or
(ii) “disclosure is prohibited by law.” 	Ctr. for Investigative Reporting v. U.S.
Customs & Border Patrol, 436 F. Supp. 3d 90, 105 (D.D.C. 2019) (quoting 5
U.S.C. § 552(a)(8)(A)(i)). 	Therefore, “FOIA now requires that an agency ‘release
a record—even if it falls within a FOIA exemption—if releasing the record would
not reasonably harm an exemption-protected interest and if its disclosure is
not prohibited by law.’ ” 	Id. (quoting Judicial Watch, Inc. v. U.S. Dep’t of
Justice, No. 17 Civ. 832 (CKK), 2019 WL 4644029, at *3 (D.D.C. Sept. 24,
2019)); see also Ctr. for Investigative Reporting v. U.S. Dep’t of Labor, 424 F.
Supp. 3d 771, 780 (N.D. Cal. 2019) (“[E]ven if information falls within the scope
of a discretionary exemption, [under the FIA] it cannot be withheld from the
public unless the agency also shows that disclosure will harm the interest
protected by that exemption.”).
The FIA thus “imposes an independent and meaningful requirement on
agencies before they may withhold a record under one of FOIA’s exemptions.”
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Seife, 492 F. Supp. 3d at 278 (quoting Nat. Res. Def. Council, Inc. v. Envtl.
Prot. Agency, No. 17 Civ. 5928 (JMF), 2019 WL 4142725, at *3 (S.D.N.Y. Aug.
30, 2019)); see also Judicial Watch, Inc. v. U.S. Dep't of Commerce, 375
F. Supp. 3d 93, 100 (D.D.C. 2019) (holding that the FIA’s foreseeable harm
standard imposes a “heightened standard for an agency’s withholdings”).
Here, the agency has alleged that the redacted information, if disclosed,
would reveal confidential, privileged material. 	See Docket No. 28 at p. 12, ¶ 35.
The protection of confidential attorney-client communications is at the heart of
the attorney-client privilege as applied through Exemption 5. 	Therefore, the
agency has met its heightened burden under the FIA to show it reasonably
foresees harm to its interest in keeping confidential information protected by
the attorney-client privilege.
b. 	Attorney Work-Product Doctrine
Records that would be protected from disclosure by the work-product
doctrine are properly withheld under Exemption 5. 	Klamath Water Users
Protective Ass’n, 532 U.S. at 8. 	The attorney work-product doctrine protects
“documents and tangible things that are prepared in anticipation of litigation
or for trial by or for another party or its representative” by a party’s attorney or
the attorney’s agent. 	See FED . R. CIV . P. 26(b)(3)(A). 	Attorney work product also
includes an attorney’s mental processes. 	United States v. Nobles, 422 U.S.
225, 237 (1975).
The Agency’s Vaughn index provides descriptions of the documents
withheld under the work-product doctrine, including the author, recipient, date
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created or received, and general subject matter, and it indicates whether each
document was withheld in part or fully. 	See Docket No. 28-5. 	The agency has
stated that this information, much of which overlapped with information
withheld under the attorney-client privilege, includes information that was
prepared by, or at the direction of, attorneys in the context of ongoing or
foreseeable litigation and information that contains an attorney’s mental
impressions in the course of ongoing or anticipated litigation. 	See Docket
No. 28 at pp. 12-13, ¶ 36. 	The agency avers there is a reasonably foreseeable
harm that attorney mental impressions and factual work product would be
revealed should these documents be disclosed in full.
BHCWA challenges the agency’s application of the work-product doctrine
on the basis that the agency has not shown that each of these documents was
actually prepared in reasonable anticipation of litigation, as opposed to being
prepared in the ordinary course of business or with only a remote possibility of
litigation.
“The mere relation of documents to litigation does not automatically
endow those documents with privileged status.” 	Maine v. U.S. Dep’t of Interior,
298 F.3d 60, 69 (1st Cir. 2002). 	The burden is on the agency “to make the
correlation between each withheld document and the litigation for which the
document was created.” 	Id. (internal quotation marks omitted) (finding
insufficient Vaughn index which described the documents withheld under the
work-product doctrine but failed to link those documents to specific litigation
for which the documents were created).
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The agency argues this challenge should fail because the documents over
which it has asserted work-product protection were created in reasonable
anticipation of this litigation. 	Docket No. 39 at p. 11. 	But this fact is asserted
only in the agency’s reply brief; it is nowhere to be found in the Vaughn index,
the agency’s statement of facts, its response to BHCWA’s statement of facts, or
either of Ms. Sloan’s sworn declarations. 	Rule 56 requires a party asserting a
fact to cite record evidence to support it. 	See FED. R. C IV . P. 56(c)(1)(A). 	The
agency does not support this assertion of fact with citations to the record, and,
based upon the court’s review of the record, the record does not support this
fact. 	Therefore, the court cannot say the agency has carried its burden to show
the applicability of the work-product doctrine to these documents. 	There exists
a genuine issue of fact as to whether litigation prompted the creation of these
records. 	The court recommends denying the agency’s motion for summary
judgment and granting BHCWA’s motion for summary judgment on this issue.
Consistent with the court’s recommendation as to Exemption 3 and Rule
56(e)(1), the court recommends requiring the agency to submit a supplemental
Vaughn index and/or sworn affidavit providing the court with all facts
necessary to evaluate its claim that Exemption 5 protects from disclosure
attorney work-product material.
BHCWA also makes the claim that documents relating to the now-
abandoned settlement negotiations were improperly withheld because the
Eighth Circuit has not recognized a formal settlement privilege. 	While this is
an accurate description of applicable law, the agency has not asserted a
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settlement privilege. 	Instead, the agency has asserted independent attorney-
client communication and work-product privileges over certain information
related to the settlement. 	Therefore, BHCWA’s argument about the settlement
privilege is misplaced, and the court has considered the agency’s assertions of
attorney-client and work-product privileges regarding settlement documents
according to the standards applicable to those privileges.
c. 	Segregability
As previously stated, the agency has withheld documents in full and in
part under Exemption 5 and has noted to what extent each document was
withheld in its Vaughn index. 	Although the Vaughn index indicates only
whether a document was “withheld” or “disclosed in part,” the agency has
averred that “documents responsive to the FOIA request were reviewed to
ensure that all reasonably segregable information not subject to a FOIA
exemption was released in the documents produced to Plaintiff.” 	Docket No. 28
at p. 11, ¶ 31. 	There is no indication in the record that this representation is
untrue, and BHCWA has not alleged facts to cast material doubt upon the
agency’s segregation of exempt information from non-exempt information.
Therefore, the court concludes that the agency has carried its burden to
show that the exempt portions of the documents were reasonably segregated
from the non-exempt portions.
3. 	Agency Withholdings Under Exemption 6
The agency has also withheld information under FOIA Exemption 6.
Exemption 6 permits the withholding of “personnel and medical files and
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similar files[,] the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy.” 	5 U.S.C. 552(b)(6). 	The agency’s Vaughn index
indicates it has redacted a number of documents to exclude personal
information, such as individuals’ addresses, telephone numbers, cell phone
numbers, and email addresses. 	See Docket No. 28-5. 	The agency avers “[t]he
disclosure of this information would serve little to no public interest and would
constitute an unwarranted invasion of the individuals’ privacy.” 	Docket No. 28
at p. 13, ¶ 38.
a. 	Applicability of Exemption 6
BHCWA first argues the agency has failed to show that Exemption 6
applies to the personal identifying information, specifically as to its assertion
that Exemption 6 protects from disclosure information, like private email
addresses and phone numbers. 	BHCWA also argues it should have
unrestricted access to this category of information because “it is well
established that contact and other information regarding individuals provide
important investigatory tools useful to both government investigation into
citizens and citizens’ investigations into government officials’ activities.”
Docket No. 34 at p. 21 (citing In re Clinton, 973 F.3d 106 (D.C. Cir. 2020)).
BHCWA does not indicate to what part of the In re Clinton opinion it refers,
and BHCWA provides no further support for its proposition that the right of
citizens to government agents’ personal contact information is well established.
In re Clinton, for its part, considered an issue not present in this
proceeding—a government official’s use of a private email account to conduct
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government business related to the September 11, 2012, attack on the U.S.
consulate in Benghazi, Libya, possibly in an attempt to take those
communications outside the purview of FOIA. 	973 F.3d at 109-11. 	It is an
overgeneralization to conclude that, because one government official may have
used a private email account to conduct government business, all private email
and contact information is fair game for FOIA requesters. 	Absent any
indication in the record that agency officials used private means of
communication to conduct government business regarding the exploratory
mining at issue in this FOIA request, the court rejects BHCWA’s invitation to
abolish FOIA’s protection of personal identifying information for the sake of
unfettered civilian oversight.
Exemption 6 protects “bits of personal information, such as names and
addresses, the release of which would create a palpable threat to privacy.” 	See
Prison Legal News v. Samuels, 787 F.3d 1142, 1147 (D.C. Cir. 2015) (alteration
and quotation omitted). 	These “bits of information” are protected only if they
“can be identified as applying to that individual.” 	See U.S. Dep’t of State v.
Wash. Post Co., 456 U.S. 595, 602 (1982) (citation omitted); accord Gov’t
Accountability Project v. U.S. Dep’t of State, 699 F. Supp. 2d 97, 106 (D.D.C.
2010) (“Because those email addresses can be identified as applying to
particular individuals, they qualify as ‘similar files’ under Exemption 6 . . . .”).
“[U]nder Exemption 6, the presumption in favor of disclosure is as strong as
can be found anywhere in the Act.” 	Wash. Post Co. v. U.S. Dep’t of Health &
Human Servs., 690 F.2d 252, 261 (D.C. Cir. 1982).
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While “[t]o justify their Exemption 6 withholdings, the [agency] must
show that the threat to employees’ privacy is real rather than speculative,”
Elec. Privacy Info. Ctr. v Dep’t of Homeland Sec., 384 F. Supp. 2d 100, 116
(D.D.C. 2005) (citation omitted), the agency here has carried that burden. 	If
the withheld information is disclosed, the personal contact information of these
individuals would be disclosed; this is a real threat to those individuals’
privacy. 	Contrary to BHCWA’s representations, personal email addresses are
properly withheld under Exemption 6. 	See People for the Ethical Treatment of
Animals v. U.S. Dep’t Housing & Human Servs., 464 F. Supp. 3d 385, 394-95
(D.D.C. 2020) (finding withholding of personal email addresses proper under
Exemption 6 where plaintiff made only general assertions that disclosure would
serve the public interest).
Having found the personal email addresses are subject to Exemption 6,
the court next considers whether disclosure would constitute a clearly
unwarranted invasion of privacy. 	Wash. Post Co., 690 F.2d at 260. 	To make
this determination, a court balances the public interest in disclosure against
the individual privacy interests in the information contained in the files. 	Id. 	At
summary judgment, the FOIA requestor bears the burden of articulating a
significant public interest, Schwaner v. Dep’t of Army, 696 F. Supp. 2d 77, 82
(D.D.C. 2010), and of showing that disclosure would advance that interest.
ACLU v. Dep't of Justice, 698 F. Supp. 2d 163, 165 (D.D.C. 2010). 	See also
Milton v. U.S. Dep’t of Justice, 783 F. Supp. 2d 55, 58 (D.D.C. 2011). 	There is
no public interest in disclosure of information about private citizens that
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reveals “little or nothing about an agency’s own conduct.” 	Reed v. Nat’l Labor
Relations Bd., 927 F.2d 1249, 1251 (D.C. Cir. 1991) (quoting U.S. Dep't of
Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989)).
Here, BHCWA fails to proffer the public interest in disclosing the
excluded material, save the general assertion that discovering this personal
information would benefit the interest of civilian oversight of the government.
BHCWA has failed to “adequately support[] its ‘public interest’ claim with
respect to the specific information being withheld.” 	Judicial Watch, 876 F.3d
at 351 (quotation omitted). 	BHCWA has not met its burden of showing a public
interest in disclosing the material withheld under Exemption 6, and, having
engaged in balancing the private and public interests, the court concludes that
releasing this information would constitute an unwarranted violation of
privacy. 	Therefore, the court recommends granting summary judgment for the
agency and denying summary judgment for BHCWA as to the Exemption 6
withholdings.
b. 	Showing of Harm
BHCWA also asserts the Exemption 6 withholdings are unlawful because
the agency has not made the required showing of reasonably foreseeable harm
required by the FIA. 	The foreseeable harm standard prohibits agencies from
withholding information unless (i) “the agency reasonably foresees that
disclosure of the record would harm an interest protected by an exemption,” or
(ii) “disclosure is prohibited by law.” 	Ctr. for Investigative Reporting, 436 F.
Supp. 3d at 105 (quoting 5 U.S.C. § 552(a)(8)(A)(i)).
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But the agency has averred that “[t]he disclosure of this information . . .
would constitute an unwarranted invasion of the individuals’ privacy.” 	Docket
No. 28 at p. 13, ¶ 38. 	Dissemination of private information is a harm which
Exemption 6 protects against. 	The agency has adequately shown that it
reasonably foresees harm in the form of unwarranted invasion of individuals’
privacy were the Exemption 6 withholdings disclosed.
c. 	Segregability
According to the Vaughn index, the agency disclosed, in part, all the
records that had redactions under Exemption 6. 	See Docket No. 28-5. 	The
agency has averred it redacted the personal identification information and
released the remained of the record. 	See Docket No. 36 at p. 5, ¶ 19. 	There
are no facts in the record that suggest the agency has misrepresented the
breadth of its redactions under Exemption 6. 	Therefore, the court concludes
that the agency has adequately segregated the information withheld under
Exemption 6 from the non-exempt information and disclosed the non-exempt
information.
4. 	Contractor Redactions
BHCWA also asserts the agency unlawfully withheld information
redacted by contractors. 	Docket No. 34 at p. 22. 	The Vaughn index indicates
seven sets of documents were previously redacted by the contractors that
submitted them to the agency. 	Docket No. 28-5 at pp. 1, 5. 	BHCWA argues
these withholdings are unlawful because FOIA does not provide a basis for
contractors to redact information submitted to the agency. 	BHCWA’s argument
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is puzzling. 	BHCWA submitted its FOIA request to the agency, and the agency
can provide BHCWA only the information in its possession. 	If a contractor
redacted information before submitting it to the agency, clearly the agency does
not possess the withheld information and cannot, in turn, provide it to
BHCWA. 	Absent any indication in the record that the agency is withholding
information it possesses from BHCWA in the form of contractor redactions, the
court recommends granting summary judgment for the agency on the issue of
pre-agency redactions made by third parties.
E. 	Form and Format of the Agency’s Production
BHCWA also asserts the agency has violated FOIA by not producing over
23,000 pages in the precise form and format requested. 	In its FOIA request,
BHCWA requested that records be produced in electronic format saved on
physical storage media as searchable PDFs. 	Docket No. 28-1 at p. 2. 	In
producing responsive information to BHCWA, the agency uploaded non-
searchable PDFs to a public-facing filesharing platform and provided BHCWA
with the web addresses where it could download those documents. 	See Docket
No. 28-4. 	The web addresses provided by the agency remained active for 30
days, subject to renewal by BHCWA. 	BHCWA challenges both the agency’s
production of the documents as non-searchable PDFs and its use of the
filesharing website to serve its production.
1. 	Whether BHCWA Has Suffered a Cognizable Injury
As a preliminary matter, the court considers whether BHCWA has
suffered a cognizable injury sufficient to sustain its claim that the agency
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unlawfully withheld information in contravention of FOIA’s form and format
requirements. 	To have standing to bring a claim in federal court, the claimant
must have suffered an injury in fact, meaning that the injury is of a legally
cognizable interest which is (a) concrete and particularized and (b) actual or
imminent. 	Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992.) 	“Having
documents improperly withheld in response to a FOIA request is a well-
established cognizable injury.” 	Frank LLP v. Consumer Fin. Prot. Bureau, 288
F. Supp. 3d 46, 58 (D.D.C. 2017). 	However, at least in the context of
exemptions, “the focus of the FOIA is information, not documents.” 	Am.
Immigration Lawyers Ass’n v. Exec. Office for Immigration Review, 830 F.3d
667, 677 (D.C. Cir. 2016) (quotation omitted). 	Therefore, the court considers
whether the agency has improperly withheld information from BHCWA through
its alleged form and format violations; if the summary judgment record
demonstrates that the agency has not improperly withheld any information
from BHCWA in the form and format of its disclosures, the court recommends
a finding that BHCWA lacks standing to raise these claims.
The first step in this inquiry is determining whether the agency has
withheld information at all. 	As for the non-searchable PDFs, the court accepts
that the omission of optical character recognition (“OCR”) data could support a
claim of cognizable injury. 	OCR data are information which the agency did not
produce when it provided BHCWA with over 23,000 pages of unsearchable
PDFs. 	Therefore, the court will consider whether this apparent of information
withholding was improper.
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But as for the method by which the agency provided BHCWA with
records, the court recommends the finding that BHCWA lacks standing to raise
this claim because it has suffered no cognizable injury. 	The agency has
averred that BHCWA has accessed and downloaded all the production files
made available to it by the agency. 	Docket No. 36 at p. 8, ¶ 32. 	BHCWA does
not dispute this, and nowhere does it claim it could not access the agency
productions. 	Based upon the summary judgment record, it is undisputed that
BHCWA has in its possession all the documents disclosed by the agency, and
the court strains to understand how, then, the agency has withheld any
information from BHCWA in providing its production files via a filesharing
website instead of physical storage media.
The only suggestion of a cognizable injury by BHCWA is that, without
physical storage media of the agency disclosure, BHCWA does not have a
verifiable record of the FOIA disclosure. 	Docket No. 34-3 at p. 3, ¶ 12. 	First,
the court does not see how a physical storage media—to which files can be
written and overwritten and labels can be applied and removed—is more
verifiable than the production files themselves. 	Nor does BHCWA attempt to
explain how a physical storage media would provide a verifiable record of the
disclosure, but the production files themselves, along with the emails and
letters sent by the agency memorializing the productions, see Docket No. 28-4,
do not. 	Second, BHCWA has not challenged the authenticity of the agency
disclosures. 	Therefore, lack of verifiability is a purely speculative harm; it is
not concrete and actual or imminent as required by Lujan.
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BHCWA also suggests it has incurred harm because, without physical
storage media, it has difficulty disseminating the agency disclosures to persons
in its community whose internet connections might have difficulty downloading
the agency disclosures. 	But it is not the agency’s job to disseminate
information on BHCWA’s behalf. 	BHCWA, through its president, made a FOIA
request to the agency. 	The agency discharged its duty under FOIA by providing
BHCWA, through its president, more than 23,000 pages of responsive
documents. 	Moreover, BHCWA has not suggested any reason why it could not
save the disclosures to physical media to disseminate them to persons in the
community—something which would ameliorate this concern at little expense
to BHCWA. 	Accordingly, the court recommends a finding that BHCWA lacks
standing to challenge the agency’s use of cloud sharing to produce its FOIA
disclosures because BHCWA has not shown that this form of production
caused it cognizable injury.
2. 	Whether the Agency Improperly Withheld Information by
Producing Unsearchable PDFs
Next, the court considers whether the agency improperly withheld
information when it provided BHCWA with unsearchable PDFs instead of
searchable PDFs. 	FOIA mandates that agencies disclose records in “any form
or format requested by the person if the record is readily reproducible by the
agency in that form or format.” 	5 U.S.C. § 552(a)(3)(B). 	FOIA requires that
“[e]ach agency shall make reasonable efforts to maintain its records in forms or
formats that are reproducible for purposes of this section.” 	Id. 	FOIA does not
define the words “form” or “format,” so the Court must consider the ordinary
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meanings of these words. 	See BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91
(2006) (“Unless otherwise defined, statutory terms are generally interpreted in
accordance with their ordinary meaning.”). 	The United States District Court for
the District of Columbia recently analyzed the ordinary meanings of “form or
format” as used in 5 U.S.C. § 552(a)(3)(B). 	See Sai v. Transp. Sec. Admin., 466
F. Supp. 3d 35, 48 (D.D.C. 2020). 	In Sai, the court “constru[ed] ‘form’ to refer
to the media—e.g., paper or thumb drive—and constru[ed] ‘format’ to refer to
the electronic ‘structure for the processing, storage, or display’ of data . . . e.g.
a PDF or JPEG.” 	Id. (citations omitted). 	This court finds no reason to depart
from this analysis. 	Applying these definitions here, BHCWA’s challenge
regarding searchable versus unsearchable PDFs is one of format.
BHCWA asserts the agency records are readily reproducible as
searchable PDFs, and, therefore, the agency’s withholding of the OCR data
amounts to an improper withholding of information in contravention of FOIA.
This question will turn on whether the agency records are readily reproducible
in a searchable PDF format. 	BHCWA marshals several arguments to suggest
the agency records are readily reproducible in a searchable PDF format. 	They
are unpersuasive.
First, BHCWA asserts the agency records are—or should be—readily
reproducible because the District of South Dakota’s electronic filing system
rules require litigants to file documents in a searchable PDF format. 	Docket
No. 30 at p. 8. 	But the veracity of this claim has no bearing on the question at
hand—i.e., whether the agency records are readily reproducible in that format.
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Just because this court imposes certain requirements on parties appearing
before it does not mean the agency—which is not even part of the same branch
of the federal government—has adopted the same protocols such that this
document format is readily reproducible by it in the context of FOIA. 	BHCWA’s
reference to the court’s electronic filing guidelines does not inform the issue of
whether the agency records are reproducible in the requested format.
Second, BHCWA asserts searchable PDFs are reasonably reproducible by
the agency because this court has found “that searchable PDF format is a
‘reasonably usable’ means to produce records.” 	Docket No. 38 at p. 15 (citing
Copperhead Agric. Prods., LLC v. KB AG Corp., LLC, No. 4:18-cv-04127-LLP,
2019 WL 6717699, at *10 (D.S.D. Dec. 10, 2019)). 	But whether searchable
PDF is a reasonable usable format is not dispositive of the issue of whether the
agency’s records in this case were reasonably reproducible in that format.
To inform that question, the court looks to the agency’s submissions in
support of its motion for summary judgment. 	Here, the agency has averred
that its FOIAXpress software, which it used to process the documents
responsive to BHCWA’s FOIA request, does not always produce PDFs in a text-
searchable format because the software’s OCR process takes such a long time
and draws so heavily on system resources that running OCR is not reasonably
feasible when the production at issue includes large numbers of pages and
documents. 	See Docket No. 36 at p. 7, ¶ 28. 	The agency further avers
processing the disclosures with a separate document management platform to
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achieve OCR would take multiple days of processing time and require
corresponding additional effort and expense. 	Id. at ¶ 29.
“[A] court shall accord substantial weight to an affidavit of an agency
concerning the agency’s determination as to technical feasibility under
paragraph (2)(C) and subsection (b) and reproducibility under paragraph
(3)(B).” 	5 U.S.C. 552(a)(4)(B). 	The agency has shown beyond material doubt
that its records were not readily reproducible through FOIAXpress in a
searchable format due to the size and volume of the disclosures in this case.
However, the record, viewed in the light most favorable to BHCWA,
suggests the pre-FOIAXpress documents—those that were converted from their
native format to PDF in FOIAXpress (Docket No. 28 at p. 10, ¶ 24)—were text-
searchable (see Docket No. 34-3 at p. 4, ¶ 18). 	As other courts have held,
“[w]hen an agency already creates or converts documents in a certain format—
be it for FOIA requestors, under a contract, or in the ordinary course of
business—requiring that it provide documents in that format to others does not
impose an unnecessarily harsh burden, absent specific, compelling evidence as
to significant interference or burden.” 	TPS, Inc. v. U.S. Dep’t of Defense, 330
F.3d 1191, 1195 (9th Cir. 2003); see also Scudder v. Cent. Intelligence Agency,
25 F. Supp. 3d 19, 32 (D.D.C. 2014). 	So too here, where the only burden
alleged by the agency is processing time and related expenses, and BHCWA
cites evidence showing the government produces at least some records as
searchable PDFs in response to FOIA requests. 	See Docket No. 38-5 at p. 4 (in
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response to another FOIA request, the agency produced text-searchable PDF
documents).
Although the Court will not require the agency to reformat records
already turned over, see Crooker v. U.S. State Dep't, 628 F.2d 9, 11 (D.C. Cir.
1980) (finding “[w]here the records have already been furnished, it is abusive
and a dissipation of agency and court resources to make and process a second
claim”), the court will require the government to provide any future productions
in searchable-PDF form. 	Accord Eakin v. U.S. Dep’t of Def., Civil Case No.
5:16-972, 2019 WL 2368683, at *3-4 (W.D. Tex. June 5, 2019).
The court recommends an order granting summary judgment for the
agency and denying summary judgment for BHCWA on the issue of the
agency’s alleged form and format violations. 	However, the court recommends
an order that any future disclosures be made in text-searchable PDF format.
CONCLUSION
In summary, the court recommends an order granting in part and
denying in part the agency’s motion for summary judgment and granting in
part and denying in part BHCWA’s motion for summary judgment. 	Specifically,
the court recommends granting summary judgment for the agency on:
(1) BHCWA’s policy and practice claims related to the 2019 search;
(2) BHCWA’s claim that the search terms used in the 2020 search were
unreasonably limited;
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(3) BHCWA’s claim that the agency improperly withheld attorney-client
communications under Exemption 5;
(4) BHCWA’s claim that it improperly withheld information under
Exemption 6; and
(5) BHCWA’s claim that the agency has violated FOIA in the form and
format of its disclosures.
The court recommends granting summary judgment for BHCWA on:
(1) its claim that the 2020 search was unreasonable because the agency
excluded records custodians;
(2) its claim that the search locations used in the 2020 search were
unreasonable;
(3) its claim that the agency improperly withheld documents under
Exemption 3; and
(4) its claim that the agency improperly withheld attorney work-product
documents under Exemption 5.
The court further recommends an order requiring the agency to produce
documents as searchable PDFs going forward. 	Also, the court recommends an
order directing the agency to submit a supplemental Vaughn index so the court
can properly evaluate its claims of exemption under Exemptions 3 and 5.
Lastly, the court recommends an order requiring the agency to direct its
records custodians, including the three additional custodians identified in
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Section C.1., to search their paper records for potentially responsive
documents.
DATED this 30th day of September, 2021.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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