Inter-Cooperative Exchange v. United States Department of Commerce et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
INTER-COOPERATIVE EXCHANGE, an
Alaska cooperative corporation,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
COMMERCE, NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION, and
NATIONAL MARINE FISHERIES
SERVICE,
Defendants.
Case No. 3:18-cv-00227-TMB
ORDER ON DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT (DKT. 21)
AND PLAINTIFF’S MOTION FOR
DISCOVERY (DKT. 24)
I. INTRODUCTION
The matter comes before the Court on Defendants the United States Department of
Commerce (“DOC”), the National Oceanic and Atmospheric Administration (“NOAA”), and the
National Marine Fisheries Service’s (“NMFS”) (collectively, “Defendants”) Motion for Summary
Judgment (“Motion for Summary Judgment”).1 On September 24, 2019, Plaintiff Inter-
Cooperative Exchange filed an Opposition to the Motion for Summary Judgment (“Opposition”).2
Plaintiff simultaneously filed a related Motion for Written Discovery (“Motion for Discovery”).3
Defendants filed a Reply to the Opposition (“Defendants’ Reply”) on October 8, 2019, which also
argued their opposition to the Motion for Discovery.4 On October 18, 2019, Plaintiff filed its Reply
1 Dkt. 21 (Motion for Summary Judgment).
2 Dkt. 23 (Opposition).
3 Dkt. 24 (Motion for Discovery).
4 Dkt. 28 (Defendants’ Reply). See Dkt. 29 (Opposition to Motion for Discovery).
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in Support of Motion for Written Discovery (“Plaintiff’s Reply”).5 Both Defendants’ Motion for
Summary Judgment and Plaintiff’s Motion for Discovery are fully briefed. Plaintiff requested oral
argument on both motions and a hearing was held on November 25, 2019.6 Upon careful
consideration of the record, and for the reasons stated below, Defendants’ Motion for Summary
Judgment at docket 21 is GRANTED and Plaintiff’s Motion for Discovery at docket 24 is
DENIED.
II. BACKGROUND
A. Factual Background
Plaintiff is a cooperative of fishermen who harvest and deliver crab in the Bering Sea and
Aleutian Islands.7 Defendants are federal agencies responsible for regulating and enforcing the
nation’s fisheries through regional fishery management councils.8 In 2005, Defendants
implemented a crab price arbitration system to guide price negotiations between harvesters and
processors.9 Historically, business costs were not considered in the price formula.10 However, in
2014, Alaska voters approved an initiative to raise the minimum wage.11 In response, crab fishery
processor representatives requested that Defendants reevaluate whether to consider costs—such as
5 Dkt. 32 (Plaintiff’s Reply).
6 See Dkts. 23; 24; 33 (Order Granting Oral Argument); 34 (Minute Entry).
7 Dkt. 1 at 1 (Complaint).
8 Id. at 1–2.
9 Id. at 2‒5.
10 Id. at 6.
11 Id.
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the now higher wages paid to processor employees—under the arbitration system.12 Defendants
agreed to prepare a discussion paper on the issue and the paper was published in April 2017.13
Thereafter, Glenn Merrill, NMFS’ Assistant Regional Administrator for the Alaska Region
(“ARA”), introduced a motion to include costs for consideration in the arbitration system.14
On July 18, 2017, Plaintiff submitted a Freedom of Information Act (“FOIA”) request to
Defendants in an effort to determine the record behind Mr. Merrill’s motion and his underlying
rationale.15 Plaintiff requested the following two categories of records:
1) All correspondence to or from Glenn Merrill, Assistant Regional
Administrator for the Alaska Region of NMFS, from January 1, 2016 through the
present relating to (a) the interpretation and application of the arbitration system
standards set forth at 50 C.F.R. § 680.20(g) and/or (b) the Alaska state minimum
wage increase approved by voters in November 2014.
For purposes of this request, the term “correspondence” includes without
limitation all emails, text messages, social media messages, voice mails, facsimiles
and letters, regardless of whether sent from or received on government or personal
devices or transmitted through some other means.
[ . . . ]
2) All documents relating to (a) interpretation and application of the arbitration
system standards set forth at 50 C.F.R. § 680.20(g) and/or (b) the Alaska state
minimum wage increase approved by voters in November 2014.
12 Id.
13 Id. at 6‒7.
14 Id. at 7.
15 Id. at 8; Dkt. 1-5 (FOIA Request).
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For purposes of this request, the term “documents” includes without limitation
all analyses, memoranda, minutes, motions, notes, papers and other records, and all
drafts of the same.16
Defendants responded to Plaintiff’s FOIA request and produced 146 records, including
several emails with redactions.17 Finding Defendants’ FOIA response insufficient, on
December 15, 2017, Plaintiff filed an administrative appeal on the grounds that the response did
not include any of Mr. Merrill’s text messages, social media messages, and voicemail messages
and redacted certain email correspondence.18
B. Procedural Background
On October 2, 2018, having received no response to its administrative appeal, Plaintiff filed
the Complaint in this Court.19 Plaintiff alleges that Defendants violated FOIA on two grounds:
(1) Defendants failed to make reasonable efforts to search for, and has improperly withheld,
records responsive to Plaintiff’s FOIA request, and (2) Defendants improperly redacted certain
records subject to production.20 Specifically, Plaintiff believes that there are further agency records
reflecting discussion between Mr. Merrill and others concerning Mr. Merrill’s motion to consider
costs in pricing arbitration.21 Plaintiff further argues that the redacted emails in Defendants’
production were improperly redacted because the emails constitute part of the publicly available
administrative record and because Defendants failed to explain how disclosure of the emails could
16 Dkt. 1-5 at 2‒3.
17 Dkts. 1 at 9; 1-6 (FOIA Response).
18 Dkts. 1 at 10; 1-7 (FOIA Appeal).
19 Dkt. 1.
20 Id. at 12‒14.
21 Id. at 11.
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foreseeably harm an interest protected by their asserted exemptions to disclosure.22 Plaintiff,
therefore, requests a judicial declaration that Defendants have violated FOIA, an order compelling
Defendants to search for and produce the sought-after agency records without redaction, and an
award of attorneys’ fees and litigation costs.23
On February 22, 2019, Defendants filed an Answer and lodged the decision in Plaintiff’s
administrative appeal of its FOIA request (“Appeal Decision”).24 The Appeal Decision granted
Plaintiff’s appeal with respect to the foreseeable harm issue and revised redactions to release
information contained in three previously produced records.25 However, Plaintiff’s appeal was
denied with respect to the adequacy of the search and the remaining redactions.26 The Appeal
Decision states that Mr. Merrill does not have a government-issued cellphone or official
government social media account.27 Moreover, the Appeal Decision states that Mr. Merrill has no
recollection of sending or receiving responsive text, social media, or voicemail messages
responsive to Plaintiff’s request but reviewed his personal records to confirm that no such
responsive records exist.28
22 Id. at 13‒14.
23 Id. at 14.
24 Dkts. 11 (Answer); 11-1 (Appeal Decision).
25 Dkt. 11-1 at 2.
26 Id.
27 Id.
28 Id.
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1. Defendants’ Motion for Summary Judgment
Then, on September 3, 2019, Defendants filed a Motion for Summary Judgment arguing
that they have adequately discharged their obligations under FOIA.29 First, Defendants argue that
they conducted a reasonable search for responsive records.30 Defendants allege that they performed
a search of NMFS’ Alaska Region offices and “examined all of Mr. Merrill’s correspondence, as
that term is defined in Plaintiff’s FOIA request.”31 Defendants reference the single search log from
their initial response.32 The search log states that Mr. Merrill searched his emails, network drive,
and desktop for the terms “binding arbitration,” “arbitration,” and “crab.”33 Defendants explain
that the omission of any search of Mr. Merrill’s cellphone and social media was an “inadvertent
error.”34 Defendants confirm that Mr. Merrill searched his personal cellphone since he does not
have a government-issued work cellphone and found no responsive records.35 Therefore,
Defendants contend that their search was reasonably calculated to uncover all relevant
documents.36
29 Dkt. 21.
30 Id. at 21.
31 Id. at 6‒7.
32 Id. at 7; Dkt. 21-4 (Search Log).
33 Dkt. 21 at 7.
34 Id.
35 Id. at 21.
36 Id.
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Next, as for the redacted records, Defendants allege that NOAA withheld portions of seven
records pursuant to certain statutory exemptions from disclosure under FOIA.37 Six documents
were partially redacted to protect information subject to attorney-client privilege and one
document was partially redacted to protect personal information from a clearly unwarranted
invasion of privacy.38 Defendants justify that the six documents redacted due to attorney-client
privilege contain confidential communications between NMFS employees, fishery council staff,
and NOAA Office of General Counsel attorneys.39 Defendants argue that an exemption from
disclosure was properly invoked because those emails are exactly the communications the
privilege is designed to protect.40
Plaintiff filed the Opposition and requested oral argument on the issues.41 Plaintiff argues
that the Court should deny summary judgment on both the adequacy of the search and the propriety
of the redactions. Plaintiff claims that the Motion for Summary Judgment “presents a new set of
facts” and undermines the adequacy of Defendants’ search by not providing sufficient details
regarding the search.42 Plaintiff argues that Defendants’ search parameters and process were not
reasonably calculated to uncover responsive communications.43 Plaintiff further alleges that
37 Id. at 7‒8.
38 Id.
39 Id. at 10‒14.
40 Id. at 21.
41 Dkt. 23.
42 Id. at 10, 12.
43 Id. at 12‒15.
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additional evidence contradicts Mr. Merrill’s assertions that he does not use his personal cellphone
to conduct government business.44
Moreover, Plaintiff argues that Defendants cannot claim attorney-client privilege to justify
the email redactions on two grounds.45 First, Plaintiff claims that no attorney-client relationship
existed between councilmembers and NOAA attorneys.46 Second, Plaintiff claims that there was
no reasonable expectation of confidentiality because the emails prepared for or by council
members incident to a public meeting form part of the public record.47 So, for the sake of argument,
even if attorney-client privilege existed, the emails at issue now would still be subject to disclosure
because no reasonable expectation of confidentiality attached to the communications.48
In Defendants’ Reply,49 Defendants repeat that they adequately searched Mr. Merrill’s
email, network, desktop, and personal cellphone for any items containing the search terms
“binding arbitration,” “arbitration,” and “crab.”50 In response to Plaintiff’s claims that Defendants
did not provide sufficient detail of the search, Defendants lodged a Declaration by Mr. Merrill.51
Defendants assert that the previously submitted Declaration of Dr. Balsiger,52 Mr. Merrill’s direct
44 Id. at 16‒19.
45 Id. at 22.
46 Id. at 23‒24.
47 Id. at 28.
48 Id. at 29.
49 Dkt. 28.
50 Id. at 3.
51 Dkt. 28-1 (Declaration of Mr. Merrill).
52 Dkt. 21-1 (Declaration of Dr. Balsiger).
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supervisor, was sufficient; the addition of Mr. Merrill’s own Declaration “remove[s] any doubt
and counter[s] Plaintiff’s suggestions of bad faith.”53 Furthermore, Defendants counter Plaintiff’s
denial of any attorney-client relationship between NOAA Office of General Counsel attorneys and
the regional crab fishery council.54 Defendants contend that attorney-client privilege extends to the
redacted emails because they involve a legal question and response between an NOAA attorney, a
NMFS official, and information provided by a councilmember.55 Defendants conclude that they
have discharged their duties under FOIA, the Motion for Summary Judgment should be granted,
and the case should be dismissed.56
2. Plaintiff’s Motion for Written Discovery
Concurrent with its Opposition to the Motion for Summary Judgment, Plaintiff filed a
related Motion for Written Discovery.57 Plaintiff argues that it should be allowed to propound
written interrogatories and requests for production of documents to further examine whether the
scope and depth of Defendants’ search were reasonably calculated to uncover responsive records
to Plaintiff’s FOIA requests.58 Plaintiff claims that countervailing evidence shows that Defendants
have not satisfied their burden of proving an adequate search.59 The evidence consists of a text
message log obtained by Plaintiff through a supplemental FOIA request to another agency; the
53 Dkt. 28 at 6.
54 Id. at 17.
55 Id. at 20‒22.
56 Id. at 23.
57 Dkt. 24.
58 Id. at 3.
59 Id. at 5.
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message log shows that Mr. Merrill used his personal cellphone to text another councilmember’s
government-issued cellphone during council meetings.60 Plaintiff asserts that this evidence
indicates there are “significant factual gaps” in the Defendants’ FOIA production and arguments
in the Motion for Summary Judgment.61 Therefore, Plaintiff requests permission to issue written
discovery.62
Defendants incorporated their Opposition to Plaintiff’s Motion for Discovery into their
Reply to Plaintiff’s Opposition to Motion for Summary Judgment.63 In summary, Defendants
assert that they conducted an adequate search and, as such, no basis exists for Plaintiff’s discovery
requests.64
Plaintiff then filed a Reply in Support of Motion for Written Discovery on
October 15, 2019.65 Plaintiff contests that the Declaration of Mr. Merrill, submitted with
Defendants’ Reply, still leaves important questions unanswered.66 Plaintiff expresses doubt as to
Defendants’ claim that Mr. Merrill only exchanged text messages of a personal nature with another
councilmember and that the Defendants are relying on Mr. Merrill’s recollection instead of simply
verifying whether the messages were personal.67 Finally, Plaintiff argues that Defendants
60 Id.
61 Id. at 7
62 Id.
63 Dkts. 29; 28.
64 Dkt. 28 at 3.
65 Dkt. 32.
66 Id. at 3‒4.
67 Id. at 5‒6.
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incorrectly assume Plaintiff must show bad faith to obtain discovery.68 Rather, Plaintiff believes
that Defendants have failed in their obligation to conduct a reasonable search and that discovery
should be permitted, including in camera inspection of certain text messages.69
3. Oral Argument
At the November 25, 2019, hearing, the Parties largely reargued the points made in their
written briefs. Defendants maintained that their search was reasonable and that attorney-client
privilege indeed justified redacting certain portions of emails between NMFS and council
employees and an NOAA attorney. In addition, Defendants submitted the redacted emails for in
camera review. In response, Plaintiff suggested two tests to assess the reasonableness of
Defendants’ search. Plaintiff also reiterated its position that an attorney-client relationship did not
exist and, even to the extent a relationship may have existed between Mr. Merrill and the NOAA
attorney, they waived privilege by including the council staff member. The Court will address the
foregoing issues in turn.
III. LEGAL STANDARD
A. Summary Judgment
A party may move for summary judgment on a claim, a defense, or a part of either under
Federal Rule of Civil Procedure 56(a). Summary judgment is appropriate where, viewing the
evidence and drawing all reasonable inferences in the light most favorable to the nonmoving
party,70 “the movant shows that there is no genuine dispute as to any material fact and the movant
68 Id. at 7.
69 Id.
70 Scott v. Harris, 550 U.S. 372, 379 (2007).
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is entitled to judgment as a matter of law.”71 Material facts are those which might affect the
outcome of the case.72 A genuine issue of material fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”73 “There is no genuine issue of
fact if, on the record taken as a whole, a rational trier of fact could not find in favor of the party
opposing the motion.” 74 A movant’s burden may be met by “‘showing’—that is, pointing out to
the district court—that there is an absence of evidence to support the nonmoving party’s case.”75
Thus, “at the summary judgment stage the judge's function is not himself to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for trial.”76
Once a movant has met its initial burden, Rule 56(e) requires the nonmoving party to go
beyond the pleadings and identify facts which show a genuine issue for trial.77 Evidence introduced
in opposition to a summary judgment motion does not have to be admissible at trial; the permissible
evidence is identified in Fed. R. Civ. P. 56(c).78 However, “conclusory assertions are wholly
71 Fed. R. Civ. P. 56(a). See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986); Jensinger v.
Nev. F. Credit Union, 24 F.3d 1127, 1130-31 (9th Cir. 1994).
72 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the entry of summary
judgment.”).
73 Id.
74 Mills v. Wood, No. 4:10-CV-00033-RRB, 2015 WL 2100849, at *1 (D. Alaska May 6, 2015),
aff’d in part, 726 F. App’x 631 (9th Cir. 2018) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)).
75 Celotex, 477 U.S. at 325.
76 Anderson, 477 U.S. at 249.
77 Celotex, at 323–24.
78 See, e.g., id.; T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th
Cir. 1987).
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insufficient to sustain either the [moving party’s] burden or the district court's grant of summary
judgment.”79 Moreover, “[a] party opposing a summary judgment motion must produce
‘specific facts showing that there remains a genuine factual issue for trial’ and evidence
‘significantly probative as to any [material] fact claimed to be disputed.’” 80
B. Summary Judgment in FOIA Cases
“Most FOIA cases are resolved by the district court on summary judgment, with the district
court entering judgment as a matter of law.”81 To prevail on summary judgment in a FOIA case,
the federal agency must establish: (1) that its search for responsive documents was “reasonably
calculated to uncover all relevant documents;”82 and (2) that any non-disclosure is properly
justified by a FOIA exemption.83 An agency can demonstrate the adequacy of its search through
“reasonably detailed, nonconclusory affidavits submitted in good faith.”84 Similarly it is the
79 Walker v. Sumner, 917 F.2d 382, 387 (9th Cir. 1990). See also Hilsinger v. Enerco Group,
Inc., No. 3:13-cv-00003-TMB, 2014 WL 12569381 (D. Alaska Sept. 3, 2014); Mills, 2015 WL
2100849, at *1 (citing Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1036 (9th Cir.
2005) and Walker, 917 F.2d at 387 (“In general, in ruling on a motion for summary judgment, a
court may not weigh the evidence or judge the credibility of witnesses . . . However, this rule does
not apply to conclusory statements unsupported by underlying facts.”)).
80 Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983) (quoting Ruffin v. County of Los
Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979)).
81 Animal Legal Defense Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016).
82 Zemansky v. U.S. Envtl. Prot. Agency, 767 F.2d 569, 571 (9th Cir. 1985) (quoting Weisberg v.
United States Dept. of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)).
83 Berman v. C.I.A., 501 F.3d 1136, 1139–40 (9th Cir. 2007). See Natl. Imm. Law Center v. U.S.
Imm. and Customs Enforcement, CV 14-9632 PSG (MANx), 2015 WL 12684437, at *2 (C.D. Cal.
Dec. 11, 2015) (citing Zemansky, 767 F.2d at 571).
84 Zemansky, 767 F.2d at 571 (internal quotations omitted).
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agency’s burden to demonstrate that the materials sought have not been improperly withheld.85
“Courts are permitted to rule on summary judgment in FOIA cases solely on the basis of
government affidavits describing the documents sought.”86 However, if the record raises
“substantial doubt, particularly in view of well defined requests and positive indications of
overlooked materials, summary judgment is inappropriate.”87
IV. ANALYSIS
A. Adequacy of Defendants’ Search
Here, Plaintiff filed the Complaint, in part, on the basis that Defendants’ search for
responsive correspondence—particularly the search of Mr. Merrill’s text, social media, and
voicemail messages—was insufficient.88 Defendants move for summary judgment and submit
declarations of Mr. Merrill and his direct supervisor, Dr. Balsiger, to confirm that Mr. Merrill
searched his cellphone and social media accounts.89 In Opposition, Plaintiff contends that the
declarations leave important questions unanswered.90 At oral argument, Plaintiff asserted that,
according to their electronic discovery expert, a manual search of cellphone messages is not
85 Rojas v. Federal Aviation Admin., 941 F.3d 392, 396 (9th Cir. 2019) (quoting Dep’t of Justice
v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989)).
86 Lion Raisins v. U.S. Dep’t of Agric., 354 F.3d 1072, 1082 (9th Cir. 2004), overruled on other
grounds by Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987 (9th Cir. 2016).
See also Lane v. Dep’t of Interior, 523 F.3d 1128, 1135‒36 (9th Cir. 2008) (“If the affidavits
contain reasonably detailed descripts of the documents and allege facts sufficient to establish an
exemption, the district court need look no further.”) (internal quotations omitted).
87 Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (internal quotations
and citations omitted).
88 Dkt. 1 at 12.
89 Dkts. 21, 21-1, 28, and 28-1.
90 Dkt. 23 at 12.
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reliable. Rather, the typical protocol for cellphone evidence requires first backing up the phone,
then searching the extracted phone data. Plaintiff’s counterpoints are unavailing and fail to cast
doubt on Defendants’ reasonable search.
As stated above, FOIA obligations require the federal agency’s search be “reasonably
calculated to uncover all relevant documents.”91 The issue “is not whether there might exist any
other documents possibly responsive to the request, but rather whether the search for those
documents was adequate.”92
Defendants have conducted an adequate search for correspondence responsive to Plaintiff’s
FOIA requests. The record shows that Defendants did in fact conduct adequate search of
Mr. Merrill’s text, social media, and voicemail messages. In the Motion for Summary Judgment,
Defendants admit that they made an “inadvertent error” when their initial response to Plaintiff’s
FOIA request did not show that Mr. Merrill searched his text, social media, and voicemail
messages.93 Defendants attempt to correct this omission by clarifying that Mr. Merrill does not
have a government-issued work cellphone or social media account.94 Instead, Mr. Merrill
“confirmed that he in fact searched his personal cell phone, including his text messaging
application and social media accounts.”95 Defendants further provide the Declaration of
Dr. Balsiger, in which Dr. Balsiger avers that he oversees NMFS’ review and responses to FOIA
91 Zemansky, 767 F.2d at 571 (internal quotations omitted).
92 Id. (internal quotations omitted) (emphasis in original).
93 Dkt. 21 at 7.
94 Id. at 21.
95 Id.
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requests and that, based on his personal knowledge, Mr. Merrill searched his personal cell phone.96
Specifically, Dr. Balsiger states that Mr. Merrill searched his text messaging application and social
media accounts using the same three search terms, “binding arbitration,” “arbitration,” and
“crab.”97 Defendants assert that the search of Mr. Merrill’s personal records did not uncover any
responsive material to Plaintiff’s request.98
Even though the Declaration of Dr. Balsiger is sufficient,99 Defendants also submitted a
Declaration of Mr. Merrill to address in additional detail the questions raised by Plaintiff.100
Mr. Merrill explains that he met with the FOIA and Records Coordinator for NMFS Alaska Region
and an NOAA Office of General Counsel attorney to discuss how to respond to Plaintiff’s FOIA
Request.101 They selected the three search terms because those terms “reflected the specific
parameters of Plaintiff’s FOIA request, and were likely to appear in any potentially responsive
documents.”102 He then checked his iMessage, Facebook, and WhatsApp accounts on his personal
cellphone and found no records responsive to Plaintiff’s FOIA request.103 Mr. Merrill does not
have other social media accounts or any recollection of using other text messaging applications
96 Dkt. 21-1 at 1, 27.
97 Id. at 5.
98 Dkt. 21 at 21.
99 See Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 990 (9th Cir. 2009) (“As a general matter,
‘[a]n affidavit from an agency employee responsible for supervising a FOIA search is all that is
needed to satisfy’ the personal knowledge requirement of Federal Rule of Civil Procedure 56(e).”)
(quoting Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 814 (2d Cir. 1994)).
100 Dkt. 28-1.
101 Id. at 3.
102 Id. at 4.
103 Id.
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during the time period at issue.104 Finally, Mr. Merrill listened through his voicemail and found no
responsive records.105 Despite its contention otherwise, Plaintiff is not entitled to a forensic search
of Mr. Merrill’s cellphone.106
Mr. Merrill further clarifies that he used “a standard internal form that NOAA
prepares . . . in response to a FOIA request.”107 Subsequent to completing the form, Mr. Merrill
realized that he had “inadvertently omitted” listing the search of his personal cellphone and reached
out to the supervising agencies to clarify and correct that omission.108 Based on Mr. Merrill’s
declaration, it is clear that Defendants conducted a search using reasonably calculated search terms
and did not uncover any responsive records other than the ones already produced. To this point,
Defendants have met their burden for summary judgment.
Now, it is Plaintiff’s burden to show that material facts remain at issue and that Defendants’
affidavits are impugned by bad faith.109 To do so, Plaintiff refers to a message log obtained in a
separate FOIA request showing that Mr. Merrill exchanged text messages with another
councilmember, Mr. Tweit, during council meetings.110 Plaintiff infers that messages exchanged
between councilmembers during council meetings must be official government business and that
104 Id.
105 Id.
106 See Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 772 (9th Cir. 2015) (“Plaintiffs were entitled
to a reasonable search for records, not a perfect one. And a reasonable search is what they got.”).
107 Dkt. 28-1 at 4.
108 Id. This perhaps explains why the Appeal Decision references Mr. Merrill’s “personal records”
in parentheses.
109 Zemansky, 767 F.2d at 573.
110 Dkt. 23 at 17‒18.
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the existence of these messages undermines Mr. Merrill’s claim that he does not conduct
government business on his personal accounts.111
Plaintiff’s conclusion is directly contradicted by Mr. Merrill’s declaration and other
information obtained in the separate FOIA request. Mr. Merrill has definitively stated that his
personal cellphone does not contain any messages that are responsive to Plaintiff’s FOIA
request.112 Moreover, Plaintiff acknowledges that even the messages between Mr. Merrill and
Mr. Tweit were not produced in response to their subsequent FOIA request, indicating that the
content of those messages were not relevant, official government business, or responsive to the
FOIA request. Therefore, the existence of these additional messages does not create an issue of
material fact or establish bad faith on Defendants’ part. Plaintiff has not met its burden.
Accordingly, Defendants’ Motion for Summary Judgment is GRANTED as to the
adequacy of their search.
B. Propriety of Defendants’ Redactions
Plaintiff complains that Defendants improperly redacted email correspondence between
various agency and council representatives that should otherwise be publicly available.113 In
response to Plaintiff’s initial FOIA request, Defendants had produced 146 records; six of those
records contained redactions under 5 U.S.C. § 552(b)(5) (“Exemption 5”) and one record contained
redactions under 5 U.S.C. § 552(b)(6) (“Exemption 6”).114 Plaintiff then only appealed the
redactions made under Exemption 5. The Appeal Decision granted in part and denied in part
111 Id.
112 Dkt. 28-1 at 4.
113 Dkt. 1 at 13‒14.
114 Dkt. 1-6 at 3.
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Plaintiff’s appeal and enclosed revised redactions for three of the six records.115 On Motion for
Summary Judgment, Defendants describe the six email records to involve communications
between Mr. Merrill, Ms. Smoker, a NOAA Office of General Counsel attorney, and
Ms. Marrinan, a council staff member.116 The content of these emails purportedly seek, offer, or
comment upon legal counsel relating to the crab arbitration price formula.117 Defendants assert
these emails fall squarely within attorney-client privilege.118
Pursuant to Exemption 5, “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” are generally
protected from FOIA disclosure.119 Exemption 5 incorporates traditional privileges found in civil
discovery, including attorney-client privilege.120 Once again, it is the agency’s burden “to show
that an exemption properly applies to the records it seeks to withhold.”121 “[A] party asserting the
attorney-client privilege has the burden of establishing the relationship and the privileged nature
of the communication.”122 Courts should give “considerable deference to agency affidavits made
115 Dkt. 21-7.
116 Dkt. 21 at 10.
117 Id. at 12‒14.
118 Id. at 10.
119 5 U.S.C. § 552(b)(5).
120 See N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (“it is reasonably to construe
Exemption 5 to exempt those documents, and only those documents, normally privileged in the
civil discovery context.”).
121 Hamdan, 797 F.3d at 772 (citing Lahr, 569 F.3d at 973).
122 United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (quoting United States v. Bauer, 132
F.3d 504, 507 (9th Cir. 1997)) (emphasis added).
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in apparent good faith where the affidavits reasonably describe the justifications for nondisclosure
and show that the content withheld falls within one of FOIA’s exemptions.”123
The Ninth Circuit follows an eight-part test to determine whether information is protected
under the attorney-client privilege:
(1) Where legal advice of any kind is sought (2) from a professional legal advisor
in his [or her] capacity as such, (3) the communications relating to that purpose, (4)
made in confidence (5) by the client, (6) are at [the client’s] insistence permanently
protected (7) from disclosure by [the client] or by the legal adviser, (8) unless the
protection be waived.124
The Court has conducted an in camera review of the emails and finds that attorney-client
privilege warrants the redactions at issue. Applying the eight-part test, the first three factors
concern the content of the communications. First, it is clear that Ms. Marrinan initiated the email
chain as a “head’s up” to start a conversation seeking legal advice. Second, Ms. Smoker acts in
her capacity as a professional legal advisor by giving her legal opinions and instructing on the
legal process. Third, the redacted communications clearly focus on a shared interest in a legal
issue. There is no dispute that the redacted content qualifies as legal advice.
As for the remaining five factors, Plaintiff contends that an attorney-client relationship
cannot exist between Ms. Marrinan and Ms. Smoker because Ms. Marrinan’s position as a council
staff member does not qualify as federal employment under NOAA. Plaintiff argues the council is
a unique creature that is neither federal nor state. To the contrary, regional fishery councils were
established by the federal government under the Magnuson-Stevens Act.125 Each council operates
123 Hamdan, 797 F.3d at 772.
124 United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010) (quoting Ruehle, 583 F.3d at 607).
125 16 U.S.C. § 1852; 50 C.F.R. § 600.10.
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under the authority of the Secretary of Commerce.126 At oral argument, Defendants stated that
councils do not have independent legal advisors of their own so they obtain legal advice from the
NOAA Office of General Counsel.127 For example—and of particular relevance to this case—
FOIA requests received by a council are coordinated through the appropriate NMFS Regional
Office and denials of requested information must be approved by the NOAA General Counsel’s
Office.128 Therefore, council staff members, like Ms. Marrinan, may invoke the attorney-client
relationship with NOAA Office of General Counsel.
Even if, for the sake of argument, no clear attorney-client relationship existed between
Ms. Smoker and Ms. Marrinan, the communications including Ms. Marrinan are still protected
from disclosure. “[C]ourts have agreed that [attorney-client] privilege should not be defeated by
some limited circulation beyond the attorney and the person within the group who requested the
advice.”129 The agency must show that the confidential information was “circulated no further than
among those members of the organization who are authorized to speak or act for the organization
in relation to the subject matter of the communication.”130 Here, Ms. Marrinan is a staff economist
for the council, to whom Plaintiff’s attorney, Joe Sullivan, specifically reached out to discuss the
126 50 C.F.R. § 600.5(a) (“The Councils are institutions created by Federal law and must conform
to the uniform standards established by the Secretary in this part.”).
127 See Dkt. 21-1 at 3.
128 50 C.F.R. § 600.155. See also 50 C.F.R. § 600.135(e) (requiring the council to consult with
NOAA Office of General Counsel before closing public meetings).
129 Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 863 (D.D.C. 1980).
130 Id. (quoting Mead Data Central, Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 253 n.24 (D.D.C.
1977)).
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underlying crab arbitration issue.131 This indicates that Plaintiff believed Ms. Marrinan to be in a
position to speak on behalf of the council regarding the issue. Ms. Marrinan then emailed
Mr. Merrill and Ms. Smoker for their input. The communications thereafter seek and involve legal
advice and circulated only between Ms. Marrinan, Mr. Merrill, and NOAA General Counsel.132
Therefore, it is clear the emails circulated within an attorney-client relationship and including
Ms. Marrinan does not defeat attorney-client privilege.133
Now, turning back to the last five factors of the test, the Court finds that an attorney-client
relationship does exist between all active participates in the email thread. The council and NMFS
are clients of NOAA Office of General Counsel. The information contained in the email was made
in confidence and intended to be protected from disclosure. This is clear from Mr. Balsiger’s
Declaration134 and the fact that Defendants actively considered and revised redactions in their
FOIA response. Moreover, the privilege was not waived. Ms. Marrinan could have simply included
Mr. Sullivan in the email thread to continue their discussion about the crab arbitration issue but
did not do so. It appears Ms. Marrinan hoped to seek the advice of Mr. Merrill and Ms. Smoker
outside Mr. Sullivan’s presence. Finally, Plaintiff does not offer additional evidence to raise an
issue of material fact or show bad faith on the Defendants’ behalf with respect to the redactions.
131 Dkt. 23-1 at 5 (Declaration of Joseph M. Sullivan).
132 At some point, Maura Sullivan was included in the email threat. See Dkt. 23-5 (Emails).
Although the Parties have not explained this, the Court takes judicial notice that Ms. Sullivan is
the Deputy Chief of NOAA’s General Counsel Office. See NOAA Office of General Counsel Staff
Directory, https://www.gc.noaa.gov/gcil_sullivan_bio.html (last visited November 29, 2019).
133 Finding otherwise in this case may allow a party to circumvent claims of attorney-client
privilege by approaching a third-party with a legal question in anticipation that the third-party will
broach the issue with the agency and its counsel, thereby piercing the privileged relationship.
134 Dkt. 21-1 at 7‒8.
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Therefore, Defendants’ Motion for Summary Judgment is GRANTED as to the redacted
emails.
C. Plaintiff’s Motion for Written Discovery
Plaintiff contends that the Court should permit discovery concerning the adequacy of
Defendants’ search.135 Plaintiff seeks permission to serve interrogatories and request production
of documents concerning the search of Mr. Merrill’s cell phone and any measures Defendants have
taken to preserve potentially responsive records.136 Defendants oppose the Motion for Written
Discovery on the very same grounds as they are moving for summary judgment.137
A district court has wide latitude in controlling discovery and, in FOIA cases, discovery is
generally “limited because the underlying case revolves around the propriety of revealing certain
documents.”138 Discovery may be granted “if a plaintiff has made a sufficient showing of bad faith,
raised a sufficient question of an agency’s good faith, or when a factual dispute exists and a
plaintiff questions the affidavits submitted by the agency.”139 Otherwise, a court may grant
summary judgment before the plaintiff conducts discovery.140
135 Dkt. 24.
136 Id. at 7.
137 Dkts. 28; 29.
138 Lane, 523 F.3d at 1134.
139 Pebble Limited Partnership v. U.S. Envtl. Prot. Agency., No. 3:14-cv-0199-HRH, 2015 WL
6123614, at *2 (D. Alaska Aug. 24, 2015) (quoting Bangoura v. U.S. Dep’t of Army, No. Civ. A.
05-0311, 2006 WL 3734164, at *3 (D.D.C. Dec. 8, 2006)).
140 Lane, 523 F.3d at 1134 (citing Miscavige v. IRS, 2 F.3d 366, 36 (11th Cir. 1993), Nolan v. Dep’t
of Justice, 973 F.2d 843, 849 (10th Cir. 1992), and Simmons v. Dep’t of Justice, 796 F.2d 709,
711‒12 (4th Cir. 1986)).
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Here, Plaintiff acknowledges that “courts generally decide [FOIA] cases without
discovery” but argues that this is a rare instance where limited discovery is appropriate.141 The
Court disagrees this case warrants such an exception. Where Plaintiff cites “significant factual
gaps,”142 the Court finds Defendants’ allegations—although at times forsaking clarity for
brevity—have consistently reiterated the same fact: Defendants searched Mr. Merrill’s records,
including text, social media, and voicemail messages on his personal cellphone, and found no
correspondence responsive to Plaintiff’s FOIA request. Because the Court finds that Defendants’
search is adequate and Plaintiff’s “countervailing evidence” inadequate,143 there is no further need
for discovery concerning Defendants’ search.
Therefore, Plaintiff’s Motion for Written Discovery is DENIED.
V. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment at docket 21 is
GRANTED and Plaintiff’s Motion for Discovery at docket 24 is DENIED.
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 16th day of December, 2019.
/s/
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
141 Dkt. 28 at 2.
142 Id. at 7.
143 Supra, Section A.
Timothy M. Burgess
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