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 * CIV 20-5034
ALLIANCE, *
*
Plaintiff, *
*
vs. *
* ORDER
UNITED STATES FOREST SERVICE, *
UNITED STATES DEPARTMENT OF *
AGRICULTURE, *
*
*
*
Defendants.
INTRODUCTION
PlaintiffBlack Hills Clean Water Alliance("BHCWA")brings this action under the Freedom
ofInformation Act,5 U.S.C. § 552,etseq.("FOIA") See generally Docket I. BHCWA alleges the
Defendants,the United States Forest Service and United States Department Agriculture(collectively
"the agency"), violated the FOIA by improperly withholding records responsive to a FOIA request
submitted to the agency by BHCWA.^id at pp. 13-14. Pending are cross-motions for summary
judgment filed by the BHCWA and the agency. S^ Dockets 25 & 30. The Court referred both
motions to Magistrate Judge Veronica L. Duffy pursuant to 28 U.S.C. § 636(b)(1)(B). See Docket
40.
Judge Duffy filed a Report and Recommendation(R&R)recommending the Court grant in
part and deny in part both motions for summaryjudgment. See Docket 41 at pp.62-64. The parties
had fourteen days to file written objections to the R&R. See 28 U.S.C. § 636(b)(1)(C). The agency
did not file any objections, however,it submitted a "response" to the R&R in which it indicated the
agency is "prepared to comply with [the R&R's]proposed requirements" but thought it pertinent to
provide the Court with additional factual information related to three individuals identified in the
R&R as possible records custodians.(Docket 42 at p. 1). BHCWA timely filed objections and also
filed objections to the"response"to the R&R in that it provided additional factual information. The
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 1 of 26 PageID #: <pageID>

objection to the "response" to the extent it provides additional factual information is granted. ^
Docket 44 and 45.
Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files written objections
to the Magistrate Judge's proposed findings and recommendations,the District Court is required to
"make a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made." Id, The Court may "accept, reject, or modify, in
whole or in part, the findings or reeommendations made by the magistrate judge." Id,
Upon a complete review of the record in this case, including a de novo review of those
portions of the R&R to which objections were filed, and for the reasons given below, the Court
sustains in part and overrules in part BHCWA's objections and adopts the R&R in part, consistent
with the Court's analysis and findings below.
FACTS
Neither party objects to the Magistrate Judge's factual recitation. The Court finds it is an
accurate and helpful summary of the facts in the record. Therefore, the Court adopts the factual
background section in the R&R(Docket41 at pp.2-7)in full, supplementing it in the analysis below
with additional facts drawn from the record as the Court finds helpful.
DISCUSSION
I. Legal Standard
FOIA cases are often resolved at the summary judgment stage. See Harrison v. Exec. Off,
of U.S. Atfvs. 377 F. Supp.2d 141,145(D.D.C. 2005). Summaryjudgment is proper where "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). "Only disputes over facts that might affect the outcome ofthe suit under
the governing law will properly preclude the entry of summary judgment." Anderson v. Libertv
Lobbv.Ine..477 U.S. 242,248(1986). The moving party carries the burden to establish no genuine
issue ofmaterial fact exists on any given issue and that it is therefore entitled tojudgment as a matter
of law on that issue. See Fed. R. Civ. P. 56(a).
In evaluating a motion for summary judgment, the Court views the facts and inferences
drawn from the facts "in the light most favorable to the nonmoving party." Mo. Coal, for Env't
Found. V. U.S. Armv Corps of Eng'rs. 542 F.3d 1204,1209(8th Cir. 2008); Anderson.477 U.S. at
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 2 of 26 PageID #: <pageID>

255. Summaryjudgmentfor a defendant agency is only appropriate"'where the agency proves that
it has fully discharged its obligations under FOIA, after the underlying facts and the inferences to
be drawn from them are construed in the light most favorable to the FOIA requester. Mo. Coal,
542 F.3d at 1209(quoting Miller v. U.S. Den't of State. 779 F.2d 1378,1382(8th Cir. 1985)). The
agency meets this burden by showing"that each documentthat falls within the class requested either
has been produced, is unidentifiable, or is wholly exemptfrom the Act's inspection requirements."
Miller. 779 F.2d at 1382-83 (internal quotation omitted). This Court must also be mindful of the
FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 533 (2016) which added a
foreseeable harm standard which 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."
II. Plaintiff Black Hills Clean Water Alliance's Objections
BHCWA filed legal objections to the Magistrate Judge's R&R,which the Court summarizes
as follows:
1. BHCWA objects to the Magistrate Judge's finding that BHCWA's claims
related to the 2019 search conducted by the agency are moot. Docket 44
at pp. 4-7.
2. BHCWA objects to the Magistrate Judge's findings as to the adequaey ofthe
agency's 2020 post-complaint search in several respects.^jd at pp. 8-12.
Specifically, BHCWA objects to:
a. The Magistrate Judge's finding that the agency unreasonably
limited its search to 21 records custodians by excluding three
additional potential custodians identified in the filings, the
search of whose files would remediate the search's
inadequacy in this regard. See id. at pp. 9-10.
b. The Magistrate Judge's finding did not go far enough in
finding what additional locations had to be searched by the
agency. See id at pp. 10-11.
c. The Magistrate Judge's finding that the search terms
employed by the agency were reasonable. S^id. at pp.11-12.
3. BHCWA objects to the Magistrate Judge's finding that the agency properly
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 3 of 26 PageID #: <pageID>

withheld responsive material identified in its 2020 search under certain
exemptions to the FOIA disclosure requirements. id at pp. 12-20.
Specifically, BHCWA objects to:
a. The Magistrate Judge's finding that the Court can only
evaluate the appropriateness of withholdings of material
under Exemption 3 to protect the disclosure of the locations
of significant caves, as required by federal statute, based on
a supplemental Vaughn' index providing additional detail.
id. at pp. 14-15.
b. The Magistrate Judge's finding that the agency properly
withheld responsive material under Exemption 5 pursuant to
the attorney-client privilege. id at pp. 15-17. BHCWA
further objects to the Magistrate Judge's recommendation that
the Court require the agency to submit a supplemental
Vaughn index so the Court may evaluate the appropriateness
of the agency's withholdings pursuant to the attorney work-
product doctrine. See id. at pp.17-18.
c. The Magistrate Judge's finding that the agency properly
withheld personal identifying information under Exemption
6. id at pp. 18-20.
4. BHCWA objects to the Magistrate Judge's findings on its form and format
claims pertaining to the agency's 2020 search-particularly:
a. That BHCWA lacks standing to challenge the form in which
the agency produced the information responsive to BHCWA's
request-specifically, via a filesharing website, instead of on
physical storage media—because BHCWA failed to show it
suffered a cognizable injury, id at pp.20-21.
b. The Magistrate Judge's recommendation that the Court enter
an order requiring the agency to produce any future
documents responsive to BHCWA's 2018 FOIA request in
the format requested by BHCWA-as searchable rather than
unsearchable PDFs. See id. at pp.21-22. BHCWA claims
such an order is merely a "partial remedy" and urges the
Court instead to order the agency to reproduce all of the
records disclosed so far as searchable PDFs. Id at p, 21.
'Vaughan v. Rosen. 484 F.2d 820(D.C. Cir. 1973).
4
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 4 of 26 PageID #: <pageID>

The Court addresses each objection in turn below.
III. Analysis
A. Mootness of Claims Pertaining to the Ageney's 2019 Search
The agency argues BHCWA's claims related to the agency's initial search conducted in 2019
are moot. (Docket 35 at pp. 1-5.) The Magistrate Judge agreed. ^Docket 41 at pp. 10-20.
BHCWA objects, arguing its claims related to the agency's 2019 search are not moot. (Docket 44
at pp. 4-7.)
Generally, a "claim for relief under FOIA becomes moot... ifthe ... agency produces the
requested documents after a complaint has been filed." Kuntz v. U.S. Dep'tofJust., Case No. 1:17-
cv-223,2018 WL 3381395,at *2(D.N.D. July 11,2018);see alsoHeidev. LaHood.406 Fed. App'x
83 (8th Cir. 2010)(unpublished per curium opinion). Flowever, post-complaint production of
responsive documents by an agency "will not moot a claim that an agency policy or practice will
impair the party's lawful access to information in the future." Payne Enters.. Inc. v. United States,
837 F.2d 486,491 (D.C. Cir. 1988). Successful policy and practice claims entail a showing that the
"agency's refusal to supply information evidences a policy or practice ofdelayed disclosure or some
other failure to abide by the terms of FOIA, not "merely isolated mistakes by agency officials" in
the instance underlying the case. Id. Upon a finding ofsuch a policy or practice, whether formal or
informal, a district court may enforce FOIA through its equitable powers by ordering production of
the records specifically sought and enjoining the agency from continuing to withhold or delay
disclosure of records under the improper policy or practice. See Judicial Watch. Inc. v. Dep't of
Homeland Sec.. 895 F.2d 770, 777(D.C. Cir. 2018).
As a threshold matter, after BHCWA filed its Complaint in this case on May 15, 2020,the
agency conducted a second search for records responsive to BHCWA's 2018 FOIA request. S^
Docket41 at pp.3-5. The agency's 2020 search resulted in over 23,000 pages ofdocuments and 130
megabytes ofGIS files whieh it produced to BHCWA in several installments from September 2020
to January 2021. S^ jft at p. 5. The ageney's 2020 search and corresponding disclosures render
BHCWA's claims for relief under FOIA due to alleged deficiencies of the agency's 2019 search
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 5 of 26 PageID #: <pageID>

moot," unless those deficiencies indicate a policy or practice of noncompliance with FOIA by the
agency that will continue to impair BHCWA's access to information in the future. Payne,837
F.2dat491.
As possible grounds for determining its claims pertaining to the agency's 2019 search are not
moot,BHCWA asserts:(1)thatthe agency will impermissibly continue to withhold proposed mining
proposals in the future, as it did in its 2019 search,absent an injunction preventing it from doing so;
and (2)the agency will continue to violate FOIA's prompt-disclosure requirement pursuant to its
practice, as evidenced by the agency's conduct on two occasions when it failed to meet deadlines to
respond to FOIA requests by BHCWA,ofpersistently delaying disclosure ofresponsive documents.
Asto the first point,federal regulations permitthe agency to"promptly provide written notice
to [a] submitter of confidential commercial information whenever records containing such
information are requested under the FOIA if the [agency] determines that it may be required to
disclose the records" and it"has a reason to believe that the requested information may be protected
from disclosure ... but has not yet determined [so]." 7 C.F.R. § 1.8(d). The agency represents it
initially withheld the proposed plans identified in its 2019 search while it sought confirmation from
the submitters ofthose plans whether they in fact contained, as the agency suspected, confidential
cormnercial information that would be exempt from FOIA's disclosure requirements. Docket
36 at pp. 3-4. All the proposed plans identified in the 2019 search were subsequently released. Id
at p. 4. This is not in any way to condone the initial disclosure of absolutely nothing. Ultimately
recognizing its obligations under the federal regulations and under FOIA's prompt-disclosure
requirements,the agency represents to the Court it has subsequently "adjusted [its] practices" based
on its recognition that the federal regulations place a responsibility upon submitters to identify
confidential commereial information at the time ofsubmission. (Docket 36 at p.4;^also 7 C.F.R.
§ 1.8(e)). The agency further represents that its new practice has thus far proven effective in limiting
^To the extent, as BHCWA points out in its objections, there is still "a dispute over the search
and documents that are still being withheld," those claims are properly addressed in the context
ofthe agency's 2020 search, which was much more comprehensive. (Docket 44 at p.5.) The
court takes up the reasonable ofthe agency's 2020 search next, infra section III.B.
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 6 of 26 PageID #: <pageID>

the initial withholding ofproposed plans, and it provides as an example its release ofrecords ofthe
same type as are at issue here in response to another more recent FOIA request by Plaintiff similar
to the one giving rise to this case. (Docket 36 at p. 5.) These facts do not evince an ongoing policy
or practice by the agency that will impermissibly impair BHCWA's access to information in the
future.
As to the second point, the facts incontrovertibly show the agency failed to meet FOIA-
imposed deadlines on two occasions. First,the agency failed to timely respond to the FOIA request
underlying this litigation, which BHCWA submitted to the agency on December 7,2018. Second,
the agency failed to timely respond to another FOIA request submitted by BHCWA to the agency
on October 20, 2020. As the Magistrate Judge correctly pointed out, there is no evidence that the
agency has a formal policy ofresponding late to FOIA requests. See Docket 41 atp. 17. One would
hardly expect any such policy would be a formal policy. Therefore, the question is whether these
two instances in which the agency failed to timely respond to FOIA requests by BHCWA are
sufficient evidence to show an informal agency policy ofresponding late to FOIA requests. While
the Court does not condone the agency's failure to meet FOIA-imposed deadlines on these two
occasions identified by BHCWA,it cannot reach the conclusion based on these examples alone that
the agency operates under an informal policy or practice of responding late to FOIA requests and,
thus, BHCWA's access to information in the future will be impaired. The two examples here
occurred nearly two years apart and in both instances the agency ultimately responded within a
couple of months. Once again, while not condoning that conduct, they do not show a "persistent"
pattern of"prolonged delay." Judicial Watch. 895 F.3d at p. 780.
The evidence does not indicate a policy or practice ofnoncompliance with FOIA by the agency
that will continue to impair BHCWA's access to information in the future. See Pavne, 837 F.2 at
491. The Court agrees with the Magistrate Judge's legal analysis of this issue and finds her
recommendation is an appropriate resolution ofBHCWA's claims pertaining to the agency's 2019
search. Accordingly,the Court overrules BHCWA's first objection and finds BHCWA's claims for
relief under FOIA due to alleged deficiencies of the agency's 2019 search are moot. The Court
adopts the relevant portion of the R&R and grants summary judgment for the agency and denies
summary judgment for BHCWA on this issue.
7
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 7 of 26 PageID #: <pageID>

B. Adequacy of the Agency's 2020 Search
"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 material.' " Miller. 779 F.2d at 1383 (quoting
Weisberg v. U.S. Dep't of Just.. 705 F.2d 1344,1351 (D.C. Cir. 1983)). The search "need only be
reasonable; it does not have to be exhaustive." Miller.779 F.2d at 1383. "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." Id.Under FOIA,the
Court "accord[s] substantial weight to an affidavit of an agency concerning the agency's
determination as to technical feasibility [of a search] . . . and reproducibility" of requested
documents. 5 U.S.C. § 552(a)(4)(B).
"[OJnce the agency has shown by convincing evidence that its search was reasonable,. . .
then the burden is on the requester to rebut that evidence." Miller. 779 F.2d at 1383. "This can be
done either by contradicting the [agency's] account ofthe search procedure or by raising evidence
ofthe [ageney's] bad faith." Id at 1384.
The Magistrate Judge made several findings regarding the reasonableness ofthe agency's
2020 search. See Docket 41 at pp. 20-34. First, she found the agency's determination of21 records
custodians and limitation ofits search to the records ofthose 21 custodians was unreasonable insofar
as it excluded three additional individuals who "appear reasonably likely to possess responsive
documents" and, therefore, whose files should have been searched. See id at pp. 22-27.
Defendant's Response to Report and Recommendation provided information regarding those three
individuals, but that was not a proper addition to the record and was not considered. Second, the
Magistrate Judge found the records locations searched by the agency, which primarily included e-
mail accounts and electronic storage drives, were unreasonably limited insofar as paper records were
entirely excluded. S^id at pp. 27-31. Finally, she found the search terms employed by the agency
were reasonable. S^jd,at pp.31-34. BHCWA objects to each ofthese findings,arguing the search
should have included the records of a total 78 records custodians instead ofthe 24 identified in the
R&R,that it should have included additional electronic search locations, and that the search terms
employed by the agency were not reasonable. See Docket 44 at pp. 9-12.
8
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 8 of 26 PageID #: <pageID>

BHCWA also suggests the defieiencies it alleges warrant a Court order requiring a wholesale
new search, rather than additional searches specifically aimed at addressing each deficiency
identified by the Court. ^id at pp. 8-9. The Court disagrees with this last point. Ordering an
entirely new search would be an unnecessarily resource-intensive approach when any inadequacies
are curable through specifically tailored additional searches. The Court addresses each ofBHCWA's
specific objections to the Magistrate Judge's findings regarding the adequacy ofthe 2020 search in
turn.
i. Records Custodians Identified by the Agency
As stated above, an agency "must show beyond material doubt.. . that it has conducted a
search reasonably calculated to uncover all relevant documents." Miller. 779 F.2d at 1383(internal
quotation omitted). The agency's search need only be reasonable,not exhaustive. See id BHCWA
objects to the Magistrate Judge's conclusion that the agency unreasonably limited its search to the
records of21 identified records custodians, and that this inadequacy can be cured by a search ofthe
records ofthree additional potential records custodians whose names appear in the records already
produced by the agency to BHCWA and who "appear reasonably likely to possess responsive
documents"—^Brian or Robert Hoelseher, he is referred to by both names, Luke Hittner and Scott
Albrecht. (Docket41 atp.25:see also Docket44 at pp. 9-10). BHCWA asserts"a reasonable FOIA
search must query those persons likely to have 'created or obtained' an agency record responsive to
the FOIA request." Id at p. 9 (quoting U.S. Den't of Just, v. Tax Analvsts. 492 U.S. 136, 144
(1989)). It grounds its argument in the Tax Analvsts ease, which identifies two requirements for
materials to be subject to FOIA disclosure requirements as agency records:(1)the agency must have
"create[d] or obtain[ed] the requested material, and (2) the "agency must be in control of the
requested material at the time the FOIA request is made." Tax Analvsts. 492 U.S. at 144-45.
BHCWA asserts"indications in email addresses and other information in the released agency records
identify 78 persons who created or obtained responsive agency records via participation in emails
regarding the underlying subject matter." (Docket 44 at p. 9.) BHCWA contends the search will
only be reasonable if all 78 individuals' records are searched. S^jd at pp. 9-10.
BHCWA misapprehends Tax Analvsts. which holds that a requested record must have been
created or obtained by the agency for it to qualify as an agency record subject to FOIA disclosure
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 9 of 26 PageID #: <pageID>

requirements. See Tav Analysts. 492 U.S. at 144-46. The case does not espouse the standard
BHCWA suggests it does—that, based on the two-pronged definition of agency records which are
subject to FOIA disclosure requirements,the records ofevery person within the agency who created
or obtained any material responsive to a FOIA request must be searched in order for a search to be
reasonable. It is plausible that records ofagency personnel who create or possess responsive material
may be reasonably excluded firom the agency's search if the search is nevertheless designed to
capture that information in some other way. That is the case here. Records of many of the 78
individuals identified by BHCWA were reasonably excluded from the search because the agency
determined any responsive records in those individuals' possession would otherwise be identified
in its search ofthe records of its named records custodians and,therefore, searching the records of
these additional individuals would be needlessly cumulative and time consuming. This general
approach does not undermine that the agency's search—albeit not an exhaustive one ^was
reasonably calculated to uncover all relevant material.
Upon a review ofthe record and the relevant portion ofthe R&R,the Court agrees with the
Magistrate Judge's factual and legal analysis and finds her recommendation is an appropriate
resolution ofthis issue. The Court finds the agency's 2020 search was unreasonable only insofar as
it excluded the records of the three additional custodians identified in the R&R who appeared
reasonably likely to possess non-cumulative responsive documents—Brian or Robert Hoelscher,
Luke Hittner and Scott Albrecht. The Court overrules the Defendant's objection that the search is
unreasonable short ofincluding the records of all 78 individuals identified by BHCWA. The Court
grants in part and denies in part summaryjudgmentfor BHCWA on this issue and directs the agency
to conduct searches ofthe records ofBrian and Robert Hoelscher, Luke Hittner, and Scott Albrecht
for material responsive to BHCWA's 2018 FOIA request.
ii. Records Locations Searched by the Agency
As the Magistrate Judge observed, most of the agency's records custodians conducted
searches oftheir own records using their own search parameters based on the agency's explanation
of BHCWA's FOIA request. See Docket 41 at pp. 27-28. The agency's eDiscovery program
personnel searched the records ofthe remaining custodians, who were no longer with the agency at
the time the search was conducted. See id. at p. 28. The only records searched were electronic
10
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 10 of 26 PageID #: <pageID>

records—^primarily e-mail communications and attachments,eomputer hard drives, shared network
drives and some external storage media. See id. The agency provides no explanation in its Vaughn
index or in its briefing as to why no paper records were searched. See id. at p. 30. It supplies no
facts suggesting it was reasonable to exclude hard copy records. See id. The Magistrate Judge
found—and the Court agrees based on its de novo review of the record and the relevant portion of
the R&R—^that,absentfacts showing otherwise,a reasonable search should have included electronic
and non-electronic records locations.
BHCWA,however, argues this finding does not go far enough. BHCWA seeks an order
requiring the agency to search additional electronic records locations, including "potentially
responsive text messages, notes" or other potentially responsive material on other internet-based
programs or platforms used by the agency.^ (Docket 44 at p. 10.) Additionally,BHCWA argues the
searches ofcustodians' e-mail accounts were not reasonable because the facts do not show archived
e-mails were searched. ^id, at p. 11. As support for its position, BHCWA cites Ctr. For
Biological Diversity v. U.S. Env't Prot. Agencv. 279 F. Supp. 3d 121 (D.D.C. 2017)and Ancient
Coin Collectors Guild v. U.S. Den't of State. 641 F. 3d 504(D.C. Cir. 2011).
The Court in Ctr. For Biological Diversity coneluded the U.S. Environmental Protection
Agency's("EPA")search at issue was unreasonable insofar as the EPA failed to either include in
its search potentially responsive "text messages, instant messages, or other similar agency
communications" or explain in its Vaughn index why or how it is "not feasible to search these
[communications]for responsive material." Ctr. For Biological Diversity. 279 F. Supp. 3d at 143-
44. The court in Ancient Coin Collectors held that the U.S. State Department "failed to show the
adequacy of its seach[] because it didn't address its [custodians'] archived emails." Ancient Coin
Collectors. 641 F.3d at p. 514. The State Department did not "explain whether it possesses email
^ To the extent BHCWA continues to suggest in its objection that the agency's search is
unreasonable so long as it excludes the records custodians' private internet-based accounts and
communications, such as Gmail or other accounts not associated with the agency, the court
denies this portion of BHCWA's objection. Private search locations are generally beyond the
purview of FOIA. Tax Analysts. 492 U.S. at 144-45 (holding that, for material to he deemed
agency records within the meaning of FOIA:(1)the agency must have "create[d] or obtain[ed]"
the requested material, and(2)the ''agency must be in control ofthe requested material at the
time the FOIA request is made")(emphasis added).
11
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 11 of 26 PageID #: <pageID>

archives for[current]employees"in addition to former ones,and,ifso, whether those archives were
included in the e-mail searches conducted by its records custodians and, if not, why not—for
example, because such a search would be "impossible, impractical, or futile." Id
Similarly, in this case, the agency identified broadly that locations such as "email" or
"Outlook" or "[Ojutlook mail" were searched by its records custodians who were presently with the
agency when the search was conducted. See Docket 28 at pp. 6-8. The Court cannot glean from
these statements whether or not these searches included archived e-mail and attachments,and,ifnot,
why not. Additionally, the agency provides no indication as to whether other electronic locations,
such as chat programs, are used by the agency and were searched or, if programs in addition to
Microsoft Outlook are used by the agency and were not searched, why not. The Court agrees with
BHCWA that the agency's records custodians may reasonably be expected to have responsive
materials in both archived and non-archived e-mail locations, as well as in other communications
programs used by the agency in addition to Microsoft Outlook, unless otherwise shown.
The Court sustains BHCWA's objection as to the issue ofthe reasonableness ofthe search
locations. The Court adopts in part the relevant portion ofthe R&R and grants summaryjudgment
for BHCWA and denies summary judgment for the agency on this issue. The Court directs the
agency to conduct searches of its records custodians' hard copy records, as well as archived e-mail
records and agency communications in any programs used by the agency in addition to Microsoft
Outlook,or to establish ifsearches ofthese additional locations are notfeasible—and,ifso, why the
agency's search is nevertheless reasonably calculated to uncover all relevant material if such
locations are excluded. As for paper records,the Court adopts the discussion and recommendation
ofthe Magistrate Judge and orders that the agency direct its records custodians to search their paper
records for potentially responsive documents.
ill. Search Terms Used by the Agency
The Magistrate Judge determined the search terms employed by the agency were reasonable.
See Docket 41 at 31-34. BHCWA objects, arguing that the "narrow and unsophisticated search
terms"identified by the agency in its explanation ofits search procedure do not show the search was
reasonably calculated to uncover all relevant material requested by BHCWA.(Docket 44 at p. 11.)
The Magistrate Judge correctly identified the applicable law, which holds that FOIA requesters
12
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 12 of 26 PageID #: <pageID>

"generally cannot dictate the search terms for their FOIA request." (Docket 41 at p. 32 (citing
Physicians for Hum. Rts. v. U.S. Dep't of Def.. 675 F. Supp. 2d 149, 164 (D.D.C. 2009)).
Furthermore,"[wjhere the search terms are reasonably calculated to lead to responsive documents,
a court should neither micromanage nor second guess the agency's search.'"(Docket 41 at p. 32
(quoting Bigwood v. U.S. Dep't of Def. 132 F. Supp. 3d 124, 140 (D.D.C. 2015))). While the
Magistrate Judge agreed with BHCWA that "other, more inclusive search terms ... might turn up
additional responsive documents," she noted the agency's search was not required to be "exhaustive
or perfect" and ultimately concluded the search terms employed by the agency were reasonably
calculated to uncover all relevant documents. (Docket 41 at p. 33.)
However,"[a]n agency also has a duty to construe a FOIA requestliberally," which"includes
searching for synonyms and logical variations ofthe words used in the request." Judicial Watch.Inc.
V. U.S. Dep't of Just. 373 F. Supp. 3d 120,125 (D.D.C. 2019)(internal quotations omitted) Here,
where the agency generally deferred to each individual records custodian to choose their own search
terms, the resulting search failed to consistently employ synonyms and logical variations, such as
abbreviations, of even the most basic and obvious search terms and phrases found in or suggested
by the text ofBHCWA's FOIA request. For example,some custodians searched the term "plan of
operations," some searched "plans of operation," some searched the abbreviation "PoO," some
searched a combination ofthose terms and still others searched none ofthose terms. See Docket 28
at pp.6-8. Some searched "notice ofintent" but none searched the obvious abbreviation"NOI." See
id Some searched the names of the four projects specifically identified in the FOIA request and
others did not. See id Some searched "gold," some searched "mining,"some searched both "gold"
and "mining," some searched one or the other and others searched neither. See id
The result is that any given records custodian may not have captured responsive documents
in their possession that were perhaps created by other individuals who used common synonyms or
variations of terms the custodian searched—^potentially even those synonyms and variations
commonly used and searched by their fellow records custodians. The individual searches were often
narrow and at the same time, uncoordinated between searchers. The searches in general were not
as well calculated to uncover all relevant documents as they could have been. Despite that,the Court
directing a flirther search with additional terms does seem to be micro-managing, which is to be
13
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 13 of 26 PageID #: <pageID>

avoided, if possible. BHCWA's objection to this portion of the R&R is denied.
C. Lawfulness of Agency Withholdings Under FOIA Exemptions
FOIA exempts nine categories ofinformation from its disclosure requirements. 5 U.S.C.
§ 552(b)(l)-(9). However,these nine exemptions are "narrowly construed to ensure that disclosure,
rather than secrecy, remains the primary objective of [FOIA.]" Mo. Coah 542 F.3d at 1208.
Therefore, an agency may only withhold information under FOIA ifit is ofa type described by one
ofthe nine exemptions and "the agency reasonably foresees that disclosure would harm an interest
protected by an exemption," or disclosure is prohibited by law. See 5 U.S.C. § 552(a)(8)(A)(i).
Even if an agency determines requested information is subject to one ofthe nine FOIA exemptions
or is otherwise prohibited from disclosure under the law,it must"consider whether partial disclosure
ofinformation is possible" and"take reasonable steps necessary to segregate and release nonexempt
information." Id § 552(a)(8)(A)(ii). Agencies commonly use Vaughn indices as tools for
determining whether to withhold any ofthe requested information.^Mo.Coal.542 F.3d at 1209.
A Vanpbn index "includes a general description ofeach 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 (internal quotation omitted). The purpose of a
Vaughn index is ultimately to permit the FOIA requester and potentially the court "to evaluate [an
agency's] decision to withhold records and ensure compliance with FOIA." Id at 1210.
In this ease, the agency provided a Vaughn index indicating it withheld information under
three FOIA exemptions—exemptions 3,5 and 6. See Docket 28-5. The Magistrate Judge evaluated
the agency's withholdings under each ofthese three exemptions. Docket 41 at pp. 36-55. She
ultimately recommended that: (a) the court deny summary judgment for the agency and grant
summaryjudgmentfor BHCWA on the issue ofthe agency's exemption 3 withholdings,and that the
court require the agency to submit a supplemental Vaughn index to adequately explain and permit
the court to evaluate its withholdings related to the locations of allegedly significant caves, as well
as a supplemental declaration to explain and permit the court to evaluate whether there are any
segregable,non-exemptportions ofthe GIS data withheld by the agency;(b)the court grantsummary
judgment for the agency and deny summary judgment for BHCWA on the issue of the agency's
14
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 14 of 26 PageID #: <pageID>

withholdings on the basis of the attomey-elient privilege under exemption 5;(c) the court deny
summary judgment for the agency and grant summary judgment for BHCWA on the issue of the
agency's withholdings on the basis of the attorney work-product doctrine under exemption 5 and
require the agency to submit a supplemental Vaughn index or declaration providing the court with
adequate information to evaluate the agency's withholdings in this regard; and (d)the court grant
summary judgment for the agency and deny summary judgment for BHCWA on the issue of the
agency's exemption 6 withholdings. See Docket 41 at pp. 41-43,46,48 and 53. BHCWA objects,
arguing the agency's withholdings under exemptions 3,5 and 6 are notjustified. See Docket 44 at
pp. 12-20. The Court takes up BHCWA's objections regarding each exemption in tum.
1. Exemption 3 Withholdings
Exemption 3 permits an agency to withhold information responsive to a FOIA request ifthat
information is "specifically exempted from disclosure by statute, if that statute ...(i)requires that
the matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(ii) establishes particular criteria for withholding or refers to particular types of matters to be
withheld." 5U.S.C.§ 552(b)(3)(A). Here,the agency indicates it has withheld information pursuant
to the Federal Cave Resources Protection Act, 16U.S.C. §4301 etseq.("FCRPA"). See Docket 28-
5 atp. 5. The FCRPA dictates that"[ijnformation concerning the specific location ofany significant
cave may not be made available to the public under [FOIA] unless the [agency] determines that
disclosure of such information would further the purposes of[the FCRPA]and would not create a
substantial risk of harm, theft, or destruction of such cave." 16 U.S.C. § 4304. The agency notes
twice in its Vaughn index that it withheld information pursuant to the FCRPA. Docket 28-5 at
p. 5. The first withholding is a [w]ildlife map which includes specific locations of significant
caves/abandoned mines." Id The seeond withholding is"CIS data which includes specific locations
of significant caves/abandoned mines." Id,
As the Magistrate Judge noted, significant caves are protected from disclosure under the
FCRPA,however,the Vaughn index does not contain sufficientinformation for the Courtto evaluate
whether the ageney's withholdings were proper here. See Docket 41 at pp. 40-41. The Vaughn
index contains only cursory statements that, in two instanees,information which "includes specifie
loeations ofsignificant caves/abandoned mines" was withheld. (Docket 41 at p. 37.) The FCRPA
15
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 15 of 26 PageID #: <pageID>

requires the U.S. Department of the Interior to maintain a list of significant caves,^16 U.S.C.
§ 4303(b)(1), butthe agency's Vaughn index does not indicate how the agency determined the eaves
at issue here are significant—i.e., the agency does not state in the Vaughn index or its declarations
the criteria for the caves on this list. Furthermore,"abandoned mines" are not explicitly protected
under the FCRPA. ^Docket 41 at pp. 38-39. The FCRPA protects the confidentiality of
information concerning the nature and location of significant eaves. It defines "cave" as "any
naturally occurring void,cavity,recess,or system ofinterconnected passages which occurs beneath
the surface ofthe earth..." 16 U.S.C. §4302(1)(emphasis added). Although not beyond the realm
of possibility, the Court is skeptical that the abandoned mines noted by the agency are naturally
occurring and thus subject to the FCRPA. Neither the Vaughn index nor the agency's declarations
show any mines to also be significant caves. The Court holds that on the basis of the record, any
abandoned mines on maps in question are not significant caves under the FCRPA.
BHCWA asserts the Magistrate Judge improperly "dispense[d] with the [FOIA] harm
provision"in her R&R.(Docket44 at p. 14.) The FOIA harm provision does not apply here because
the disclosure is prohibited by law—namely,the FCRPA. See 5 U.S.C.§ 552(a)(8)(A)(i). BHCWA
fiirther asserts the FCRPA imposes an independent requirement on the agency to make a"showing[]
of harm"to justify its withholdings under exemption 3. (Docket 44 at p. 14.) Instead, the default
under the FCRPA is the prohibition ofdisclosure unless an agency determines that disclosure would,
in fact,fiirther the purposes ofthe FCRPA—i.e.,the protection ofsignificant eaves—and would not
create a substantial risk of harm to any significant cave. S^ 16 U.S.C. § 4304(a). There is no
information anywhere in the record to indicate the agency determined the disclosure of the
information it withheld under exception 3 would actually further the purposes ofthe FCRPA—i.e.,
protect any of the allegedly significant caves in question in this litigation—and would not create a
substantial risk of harm,theft, or destruction to those caves.
The Magistrate Judge"urge[d]the parties to confer on the records withheld under Exemption
3" and, in the event "they do not agree whether the FCRPA applies to the eaves in question," she
recommends the Court require the agency to submit"a supplemental Vaughn index that adequately
explains the basis for their exclusion." (Docket 41 at p. 41.) She also recommended the Court
require the agency to submit a supplemental declaration providing further detail as to the
16
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 16 of 26 PageID #: <pageID>

segregability of properly withheld GIS data versus improperly withheld GIS data so that the Court
may properly assess whether there are non-exempt portions ofthe GIS data thus far withheld by the
agency under exception 3. id at p. 42. The Court agrees with both recommendations for a
supplemental Vaughn index that adequately explains the basis for exclusion and a supplemental
affidavit regarding segregability. To this extent, summary judgment is granted to BHCWA and
denied as to Defendants. Finally, as to the wildlife map,the Magistrate Judge concluded that it is
likely infeasible to "redact exempted map locations and disclose the map with redactions" because
"the locations of the redactions would betray the very locations properly withheld under the
FCRPA." Id, at p. 43. Accordingly, she recommended that, ifthe map contains properly withheld
locations,the entire map may be withheld. id,.The Court adopts that recommendation as far as
it goes. The Court has yet to determine whether the cave/mine locations were properly withheld.
Once that is determined, the map disclosure will finally be ruled upon.
ii. Exemption 5 Withholdings
Exemption 5 permits an agency to withhold "inter-agency and 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 ofa privilege
against discovery underjudicial standards that would govern litigation against the agency that holds
it." U.S.Dep't ofInterior v. Klamath Water Users Protective Ass'n.532 U.S. 1,8(2001). Here,the
agency withheld records pursuant to exemption 5 based on the attorney-client privilege and the
attorney work-product doctrine. See Docket 28-5.
As accurately stated in the R&R,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." (Docket 41 at p. 44(citing Upiohn 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."
(Docket41 at p.44 fciting Brinton v. U.S.Dep't ofState.636 F.2d 600,603(D.C. Cir. 1980))). The
privilege"covers information and communications between employees ofan institutional client who
possess facts or hold positions relevant to the ability to give or receive legal advice," which may
17
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 17 of 26 PageID #: <pageID>

include a government ageney and ageney lawyers. (Docket 41 at p. 44 (eiting Coastal States Gas
Com. V. U.S. Den't of Energy. 617 F.2d 854, 863 (D.C. Cir. 1980))). However, in the context of
FOIA, before an agency may withhold records pursuant to the attorney-client privilege under
exemption 5,the ageney must not only show that the record is subject to the attomey-elient privilege
but also that the agency "reasonably foresees that disclosure would harm an interest proteeted by[a
FOIA] exemption." 5 U.S.C. § 552(a)(8)(A)(i)(I).
As also aeeurately stated in the R&R,the attomey work-product doctrine "proteets [from
disclosure]'documents and tangible things that are prepared in antieipation oflitigation or for trial'
by a party's attomey or the attorney's agent." (Docket 41 at p. 46 (quoting Fed. R. Civ. P.
26(b)(3)(A))). "Attomey work product also includes an attomey's mental processes." (Docket 41
at p.46(citing United States v. Nobles.422 U.S. 225,237(1975))). However,the"'mere relation
of documents to litigation does not automatically endow those documents with privileged status.'"
(Docket 41 at p. 47(quoting Maine v. U.S. Dep't ofInterior. 298 F.3d 60,62(2002))). An agency
invoking the attomey work-product doctrine to withhold records under exemption 5 must specifically
"'make the correlation between each withheld document and the litigation for which the document
was created.'"(Docket 41 at p. 47(quoting Maine. 298 F.3d at 69)). And, again the agency must
show that it "reasonably foresees that diselosure would harm an interest protected by [a FOIA]
exemption." 5 U.S.C. § 552(a)(8)(A)(i)(I).
The agency,through the declaration of Jenna Sloan, represents that the records it identifies
in its VaiKTbn index as being withheld under exemption 5 were only shared among individuals with
the Forest Service,the Offiee ofthe General Counsel and the Department of Justice, and they were
not shared with any non-govemmental persons other than the contractor hired by the Forest Service
to assist with processing the FOIA diselosures in this case. (Docket 28 at p. 13.) The Vaughn index
indicates whether a reeord was withheld in full or in part under exemption 5,as well as whether each
such record was withheld based on the attomey-elient privilege or the attomey work-product
doctrine. S^ Docket 28-5. Ms. Sloan's deelaration provides additional description ofthe eontents
of the records withheld by the agency under exemption 5. S^ Doeket 28 at pp. 12-13. She
indieates:
The information redacted ... pursuant to [the attomey-elient privilege] consists of:
(i) communications among Forest Service personnel,attomeys at USDA's Office of
18
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 18 of 26 PageID #: <pageID>

the General Counsel. .., and/or attorneys at the Department of Justice ... in the
course of seeking or providing the attorneys' legal advice, or seeking or providing
information necessary to provide legal advice; and (ii) documents reflecting [those]
attorneys' legal advice in the form of comments or drafts. If disclosed,the redacted
information would reveal confidential, attorney-client privileged material.
(Docket 28 at p. 12.) As for records the agency withheld pursuant to the attorney work-product
doctrine, Ms. Sloan indicates:
The redactions often, though not always, overlapped with redactions for attorney-
client privilege. Some draft documents, and communications relating to draft
documents,were redacted for attorney work-product privilege as they were prepared
by, or at the direction or supervision of, attorneys in the context of ongoing or
foreseeable litigation. The information redacted from the documents pursuant to
attorney work-product privilege protection includes information that contains an
attorney's mental impressions in the course ofongoing and/or anticipated litigation,
or materials prepared at the direction or under the supervision of attorneys in the
context of ongoing and/or anticipated litigation. If disclosed, the redacted material
would reveal attorney mental impressions and factual work product.
Id, at pp. 12-13.
The Magistrate Judge found, based on facts gleaned from the agency's Vaughn index and
declarations from Ms. Sloan and unrefuted by other facts in the record, the agency adequately
identified and deseribed records subject to the attomey-client privilege in its Vaughn index and
showed it reasonably foresees harm to its interest in keeping confidential information protected by
the attomey-client privilege ifthose records are disclosed. Docket 41 at p. 46. However, she
found the record does not contain facts to support the agency's assertion that the records it withheld
pursuant to the attomey work-product doctrine under exemption 5 were created in reasonable
anticipation ofany particular litigation. See id. at p.48. Rather,Ms.Sloan's declaration broadly and
cursorily connects the information redacted from the records based on the doctrine was "prepared
...in the context ofongoing or foreseeable litigation." (Docket 28 at p. 13; see also Madel v. U.S.
Den't of Just.. 784 F.3d 448, 452 (8th Cir. 2015)("While agency affidavits receive substantial
weight, they must include more than barren assertions that a document is exempt." (intemal
quotation omitted)). The Magistrate Judge therefore recommended granting summaryjudgmentfor
BHCWA and denying summaryjudgment for the agency on the issue ofthe agency's withholdings
pursuant to the attomey work-product doctrine under exemption 5. S^ Docket 41 at p. 48. She
recommended requiring the agency to submit a supplemental Vaughn index and declaration
19
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 19 of 26 PageID #: <pageID>

providing the Court with all facts necessary to evaluate whether the information is, in fact, properly
withheld under exemption 5. See id.
BHCWA objects to the finding that the agency has met its burden to show that its
withholdings pursuant to the attorney-client privilege under exemption 5 are proper. See Docket 44
at p. 16-17. Specifically,BHCWA argues the agency did not adequately show it reasonably foresees
harm to its interest in keeping confidential information protected by the attorney-client privilege if
the records it has withheld pursuant to the privilege are disclosed. See id. BHCWA asserts all such
records should therefore be disclosed. S^ jd Furthermore, while BHCWA agrees with the
Magistrate Judge's finding that the agency has not met its burden to show it has properly withheld
records pursuant to the attorney work-product privilege by connecting the records to specific
litigation based on the facts contained in the record,BHCWA takes issue with her recommendation
that the Court require the agency to submit a supplemental Vaughn index and declaration with
additional factual information to permit the Court to fully evaluate whether the agency's
withholdings pursuant to the attorney work-product privilege are proper. jd, at pp. 17-18.
BHCWA asserts the proper remedy is for the Court to order the agency to disclose the records
identified in its Vaughn index as previously having been withheld pursuant to the privilege. jd
As for the records withheld by the agency pursuant to the attorney-client privilege,the Court
agrees with BHCWA that the agency has not met its burden to show it reasonably foresees harm to
its interest in keeping confidential information protected ifthe records are disclosed. The Magistrate
Judge based her conclusion to the contrary on the fact "the agency has alleged that the redacted
information, if disclosed, would reveal confidential, privileged material." (Docket 41 at 46(citing
docket 28 at p. 12)). She reasoned the "protection of confidential attorney-client communications
is at the heart ofthe attorney-client privilege as applied through Exemption 5," and,therefore,"the
agency has met its heightened burden." (Docket 41 at p. 46.) The Court disagrees. The agency s
allegation that the redacted information,ifdisclosed, would reveal confidential, privileged material
does nothing more than bring that information within the gambit ofthe attorney-client privilege. It
does not, on its own, specifically identify any harm the agency foresees would result to its interest
in keeping confidential information protected. Ifit did, all information subjeet to the attomey-elient
privilege would be protected from disclosure under FOIA,effectively nullifying FOIA's additional
requirement that the agency must show it reasonably foresees harm to a FOIA protected interest if
20
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 20 of 26 PageID #: <pageID>

the records are disclosed. The agency did not identify, and the Court cannot find facts in the record
identifying, a harm the agency reasonably foresees would result from the disclosure ofthe record at
issue here.
The proper recourse in response to this deficiency,however,is not—asBHCWA asserts—an
order immediately requiring the agency to disclose the records it previously withheld pursuant to the
attorney-client privilege. Rather, the agency must submit a supplemental Vaughn index and
declaration providing the Court with additional factual information for it to evaluate whether the
records identified by the agency are properly withheld pursuant privilege and produce the documents
for in camera inspection by the Court. See e.g.. Dellums v. Powell.642 F.2d 1351,1359(D.C. Cir.
1980) (finding, upon agreeing with the district court's determination that the Vaughn index
submitted was inadequate to support the withholding of certain records, that the district court
"should have afforded... one more opportunity to submit a satisfactory index,rather than... order
the immediate release of all" the records at issue). The agency's failure to meet its burden to show
it has properly withheld records pursuant to the attorney work-product privilege warrants the same
approach.
Therefore,the Court sustains in part and overrules in part BHCWA's objection to the portion
of the R&R concerning the agency's withholdings pursuant to the attorney-client privilege,
consistent with the above analysis. The Court adopts in part and rejects in part the relevant portions
of the R&R. Accordingly, the Court grants summary judgment for BHCWA on the issue of the
agency's withholdings pursuantto the privilege and denies summaryjudgmentfor the agency on the
same. The Court does not, however,find—as BHCWA urges—the proper recourse is for the Court
to immediately order the agency to disclose the records it withheld pursuantto the privilege. Rather,
the agency shall prepare a supplemental Vaughn index and declaration with additional factual
information to permit the Court to evaluate whether each of the agency's withholdings pursuant to
the attomey-client privilege are proper, coupled with providing the documents for in camera
inspection.
Furthermore,the Court overrules BHCWA's objection to the portion ofthe R&R concerning
the agency's withholdings pursuant to the attorney work-product doctrine. The Court grants
summary judgment for BHCWA and denies summary judgment for the agency on the issue and
adopts the relevant portion ofthe R&R. Again, the agency shall prepare a supplemental Vaughn
21
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 21 of 26 PageID #: <pageID>

index and declaration with additional factual information to permitthe Court's evaluation ofwhether
each ofthe agency's withholdings pursuantto the attomey work-product doctrine are proper together
with providing the claimed documents for in camera inspection,
iii. Exemption 6 Withholdings
Exemption 6 permits an agency to withhold "personnel and medical files and similar files
the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
5 U.S.C. § 552(b)(6)."'Similar files' include detailed Government records on an individual which
can be identified as applying to that individual." Prison Legal News v. Samuels, 787 F.3d 1142,
1146-47(D.C. Cir. 2015)(internal quotation omitted). However, the exemption covers "not just
files, but also bits ofpersonal information,such as names and addresses,the release of which would
createQ a palpable threat to privacy." Id, at 1147 (internal quotation omitted); see also Gov't
Accountabilitv Proieet v. U.S.Den't ofState.669 F.Supp.2d 97,106(D.D.C.2010)(finding e-mail
addresses among the types of personal information that may properly be withheld as similar files
under exemption 6). "The scope ofthe privacy interest under Exemption 6 will always be dependent
on the context in which it has been asserted." Prison Legal News. 787 F.3d at 1147 (internal
quotation omitted).
"To apply exemption 6,a court must first determine whether disclosure would compromise
a substantial...privacy interest." Id (Internal quotation omitted). "Ifa substantial privacy interest
is at stake, then the court must balance the individual's right of privacy against the public interest
in disclosure" to determine whether disclosure in that particular instance would constitute a clearly
unwarranted invasion ofprivacy. Id (internal quotation omitted). "The focus ofthe public interest
analysis is the citizens' right to know what their government is up to." Id (intemal quotation
omitted). The government,through reasonably specific Vaughn indices, affidavits or declarations,
"bears the burden of showing that a substantial invasion of privacy will occur ifthe documents are
released." Id Finally,ifdisclosure would constitute a clearly unwarranted invasion of privacy,then
the court must determine whether the agency has met its burden of showing—as it must in any
situation where it withholds information under a FOIA exemption, the disclosure of which is not
prohibited by law—that the agency "reasonably foresees that disclosure would harm an interest
protected by [a FOIA] exemption." 5 U.S.C. § 552(a)(8)(A)(i)(l).
Here,the agency redacted private e-mail addresses,phone numbers and addressesfrom some
22
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 22 of 26 PageID #: <pageID>

ofthe records it disclosed to BHCWA. Docket 28-5;^also Docket 28 at p. 13. The agency
asserts in a declaration by Ms. Sloan that the disclosure of the information it has redacted and
withheld under exemption 6 "would serve little to no public interest and would constitute an
unwarranted invasion ofthe individuals' privacy." Id.
The Magistrate Judge found that disclosure of the information, which is personal contact
information of agency employees, would pose "a real threat to those individuals' privacy," thus
compromising a substantial privacy interest. (Docket 41 at p. 52). She then considered whether,
based on the facts in the record, disclosure of the personal contact information would constitute a
clearly unwarranted invasion of privacy and concluded it would. See id. at pp. 52-53. In so doing,
she found BHCWA failed "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 ofthe government," which was not an adequately specific showing to carry its burden. S^
id Finally,in assessing whether the agency met the FOIA foreseeable harm requirement to properly
withhold the information,the Magistrate Judge concluded that by "averr[ing] that'[t]he disclosure
of this information ... would constitute an unwarranted invasion of the individuals' privacy' ...
[t]he agency has adequately shovm that it reasonably foresees harm in the form of unwarranted
invasion of individuals' privacy were [the information to be] disclosed." (Docket 41 at p. 54
(quoting Docket 28 at p. 13)).
BHCWA objects on two fronts. See Docket 44 at pp. 18-20. First, it objects to the
Magistrate Judge's determination that personal e-mail addresses, phone numbers and addresses
qualify as"similar files" which may be protected from disclosure under exemption 6. See,jd,at pp.
18-19. The Court disagrees and overrules BHCWA's objection in this regard. See, e.g.. Prison
Legal News. 787 F.3d at 1147 (finding names and addresses to be among the bits of personal
information that may qualify a similar files subject to exemption 6); Gov't Accountabilitv Project.
699 F. Supp. 2d at 106 (finding the same with regard to personal e-mail addresses).
Second, BHCWA objects to the Magistrate Judge's finding that the agency met its burden
of showing it reasonably foresees that disclosure would harm an interest protected by a FOIA
exemption. See Docket44 at pp. 19-20. BHCWA argues the agency"made a generalized, eii
assertion ofharm that does not identify a FOlA-protected privacy interest No foreseeable harm
was connected to any withheld record." Id at p. 20. Ms. Sloan's declaration states that the agency
23
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 23 of 26 PageID #: <pageID>

withheld, by redacting,"personal information . . . [t]he disclosure [of which] would serve little to
no public interest and would constitute an unwarranted invasion of the individuals' privacy."
(Docket28 at p. 13). The agency's Vaughn index includes only limited justifications for each entry
apparently withheld under exemption 6—for example, stating in numerous instances simply "PII
[personal identifying information] redacted - private email" or "PII redacted - address and phone
numbers." (Docket 28-5 at pp. 1-5).
Exemption 6 requires "a balancing of the individual's right of privacy against the
preservation ofthe basic purpose of the Freedom ofInformation Act to open agency action to the
light of public scrutiny." Dep't of the Air Force v. Rose. 425 U.S. 352, 372, 96 S.Ct. 1592, 48
L.Ed.2d 11(1976)(internal quotation marks and citation omitted);^United States Dep't ofJustice
V. Reporters Comm.for Freedom ofthe Press.489 U.S. 749,756,109 S.Ct, 1468,103 L.Ed.2d 774
(1989). The privacy interest at stake belongs to the individual, not the agency. Reporters Comm.
for Freedom ofthe Press.489 U.S. at 763-65,109 S.Ct 1468:Nat'lAss'n ofRetired Fed.Emplovees
V. Homer. 879 F.2d 873, 875 (D.C.Cir. 1989)(acknowledging an individual's significant privacy
interest"in avoiding the unlimited disclosure ofhis or her name and address"),cert, denied. 494 U.S.
1078, llOS.Ct. 1805,108 L.Ed.2d 936(1990). It is the requester's obligation to articulate a public
interest sufficient to outweigh an individual's privacy interest, and the public interest must be
significant. See Nat'l Archives and Records Admin, v. Favish. 541 U.S. 157,172,124 S.Ct. 1570,
158 L.Ed.2d 319(2004).
The privacy interest here is more than de minimus. By comparison, the general claim by
BHCWA that such disclosure would benefit the interests of civilian oversight of government does
not warrant a balancing ofinterests in favor ofdisclosing the personal information in question. That
is not to say that personal information can never be disclosed. Such a disclosure overriding the
privacy interest of an individual would have to be more than applicant has claimed here. The
challenges to the Exemption 6 withholdings are denied.
D. Lawfulness of Form and Format of the Agency's Productions
FOIA requires that"an agency shall provide [] records[s] in any form or format requested .
. . if the record is readily reproducible by the ageney in that form or format." 5 U.S.C.
§ 552(a)(3)(B). BHCWA requested the information from the ageney be provided to BHCWA in the
form of"electronie records" and that the records be "provided on CD-ROM,DVD,flash drive, or
24
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 24 of 26 PageID #: <pageID>

other electronic media" in whatever way was "most expeditious." (Docket 32-1 at p. 2). BHCWA
requested the electronic records be formatted as searchable PDFs. See id. However, the agency
ultimately provided electronic records via afilesharing website as non-searchable PDFs. Docket
41 at pp. 5-6. BHCWA asserts the agency thus violated FOIA's form and format provisions and that
it suffered cognizable harm as a result. See Docket 44 at p. 20. BHCWA seeks an order requiring
the agency to reproduce as searchable PDFs on physical electronic media all the documents the
agency already provided. See Docket 30 at p. 8.
The Court differs on the analysis by the Magistrate Judge but not on the result. The result
still is that the Defendants need not reproduce the 23,000 documents formatted as searchable PDFs.
BHCWA does have standing to challenge the form or format of the Agency's Production.
This is so given the straightforward language of 5 U.S.C. § 552(a)(3)(B). There was a specific
request that the electronic records be formatted as searchable PDFs. They were not. BHCWA had
standing to object. The question then becomes whether "the record is readily reproducible by the
agency in thatform or format." The agency adequately showed that under the exigencies applicable
at the time of production, the 23,000 pages were not readily reproducible in that form or format.
Accordingly,that objection by BHCWA is denied. However,those same exigencies have not been
shown to still exist, so all future information productions by the agency will be formatted as
searchable PDFs unless otherwise requested.
ORDER
Based on the discussion above,
IT IS ORDERED:
1. That Plaintiff Black Hills Clean Water Alliance's objections to the Report and
Recommendation(Docket 44)are sustained in part and overruled in part.
2. ThatPlaintiffBlack Hills Clean Water Alliance's Motion for Summary Judgment
(Docket 30)is granted in part and denied in part.
3. That Defendants the United States Forest Service's and United States Department
of Agriculture's Motion for Summary Judgment(Docket 25)is granted in part
and denied in part.
4. That the Report and Recommendation(Docket 41)is adopted in part, consistent
25
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 25 of 26 PageID #: <pageID>

with the Court's analysis and findings above.
5. That within thirty(30)days ofentry ofthis Order,Defendants shall complete the
additional searches required by this Order and shall provide to Plaintiff all
additional records responsive to Plaintiffs 2018 FOIA request. Defendants shall
also provide to Plaintiff:
(A) a supplemental Vaughn index identifying additional withholdings,if
any,and containing additional detail required by this Order to permit
the Court to evaluate whether each of the agency's withholdings is
proper, including the documents in question, which will be for in
camera review, and
(B) a supplemental declaration providing additional detail required by this
Order to permit the Court to evaluate whether each of the agency's
withholdings is proper.
6. That within sixty(60)days ofentry ofthis Order,the parties shall meet to discuss
whether, at that point. Defendants have fully discharged their duty under FOIA
related to this litigation. The parties shall prepare and file with the Court ajoint
status report identifying any outstanding issues over which they still do not agree,
if any, and a brief statement of each party's position with respect to any such
issue or issues.
Dated this day of June, 2022.
BY THE COURT:
^(iUL>lfUJUU
Lawrence L. Piersol
United States District Judge
ATTEST:
MATTHEW W.THELEiLTLERK
26
Case 5:20-cv-05034-LLP Document 48 Filed 06/29/22 Page 26 of 26 PageID #: <pageID>