Maricopa Audubon Soc. v. U.S. Forest Service
| Decision Date | 07 March 1997 |
| Docket Number | No. 95-16919,95-16919 |
| Parties | , 27 Envtl. L. Rep. 20,842, 97 Cal. Daily Op. Serv. 1733, 97 Daily Journal D.A.R. 3248 MARICOPA AUDUBON SOCIETY, a non-profit Arizona corporation, and Dr. Robin Silver, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE and Jack Ward Thomas, Chief, United States Forest Service, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Matthew Kenna, Kenna & Associates, Durango, Colorado, for plaintiffs-appellants.
John P. Schnitker, United States Department of Justice, Washington, D.C., for defendants-appellees.
Appeal from the United States District Court for the District of Arizona, Stephen M. McNamee, District Judge, Presiding. D.C. No. CV-94-01129-SMM.
Before: BOOCHEVER, REINHARDT and RYMER, Circuit Judges.
The Maricopa Audubon Society and one of its members, Dr. Robin Silver (collectively
referred to as "Audubon"), appeal the denial of a request they filed pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The request sought material that identifies the nest sites of northern goshawks on national forest land. The United States Forest Service denied the request on the ground that the information fell within exemption 2 of FOIA, which exempts from disclosure matters that are "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). The district court agreed and ruled, in the alternative, that it would exercise its equitable discretion to deny the request. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.
Dr. Robin Silver, on behalf of the Maricopa Audubon Society, wrote to the Regional Forester for the Southwestern Region of the Forest Service, requesting the release of certain documents pursuant to the Freedom of Information Act. The letter requested, inter alia, a copy of "the transcript and/or the manuscript" of a public presentation by Forest Service researchers to the annual meeting of the Raptor Research Foundation in 1993. The Regional Forester responded that the manuscript was exempt from disclosure under exemption 5 of FOIA 1 because it formed part of the Forest Service's deliberative process in preparing a scientific document for publication. Audubon appealed this decision to appellee Jack Ward Thomas, Chief of the Forest Service, and when the Forest Service failed to respond within twenty working days as required by FOIA, see 5 U.S.C. § 552(a)(6)(A)(ii), filed suit in district court challenging the agency's failure either to release the manuscript or to respond within the specified time.
The Forest Service eventually responded to Audubon's administrative appeal by releasing the manuscript, entitled "Goshawk Reproduction and Forest Management in Northern Arizona," after redacting two sets of information, one of which Audubon now contests. The Forest Service refused to disclose the locations of northern goshawk nest sites on the ground that such information fell within exemption 2 of FOIA, 5 U.S.C. § 552(b)(2). 2 Exemption 2 exempts from disclosure matters that are "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). 3
Following oral argument on the parties' cross-motions for summary judgment, the district court granted summary judgment for the Forest Service. It first ruled that it would exercise its "equitable discretion" to deny disclosure of the nest site locations. The district court expressed concern that if it were to require disclosure to Audubon, the Forest Service would be bound to disclose the same information to others who might harm the goshawks. It rejected the argument that it could prevent such harm by requiring Audubon to enter into a confidentiality agreement as a condition of disclosure. The district court then ruled "in the alternative" that goshawk nest site information fell within exemption 2. It found that goshawk nest site information "is used to carry out the mandates of the forest service" and was therefore related to the agency's "internal policies and procedures" for law enforcement. It reasoned further that disclosure of goshawk nest sites would place "a greater burden" on the Forest Service to protect the goshawks, particularly in light of the threat
posed by Arizona's "burgeoning population" and concomitantly "overtaxed" natural resources. The district court expressed considerable doubt as to the correctness of its rulings, however, and expressed its hope that the relevant law would be "fleshed out" on appeal.
The Freedom of Information Act, 5 U.S.C. § 552, "mandates a policy of broad disclosure of government documents." Church of Scientology v. Department of the Army, 611 F.2d 738, 741 (9th Cir.1980). When a request is made, an agency may withhold a document, or portions thereof, only if the material at issue falls within one of the nine statutory exemptions found in § 552(b). See Kamman v. IRS, 56 F.3d 46, 48 (9th Cir.1995); Church of Scientology, 611 F.2d at 742. These exemptions are "explicitly exclusive," Department of Justice v. Tax Analysts, 492 U.S. 136, 151, 109 S.Ct. 2841, 2851, 106 L.Ed.2d 112 (1989) (quoting FAA Administrator v. Robertson, 422 U.S. 255, 262, 95 S.Ct. 2140, 2146, 45 L.Ed.2d 164 (1975)), and "must be narrowly construed" in light of FOIA's "dominant objective" of "disclosure, not secrecy." Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976); see also, e.g., Kamman, 56 F.3d at 48; Church of Scientology, 611 F.2d at 742. FOIA imposes on agencies the burden of proving that withheld materials are exempt from disclosure. 5 U.S.C. § 552(a)(4)(B).
Our standard of review in FOIA cases is unclear. Recent cases in this circuit have applied different standards: some have reviewed the summary judgment de novo, Schiffer v. FBI, 78 F.3d 1405, 1409 (9th Cir.1996); Minier v. CIA, 88 F.3d 796, 800 (9th Cir.1996), while others have decided only whether the district court's ruling was clearly erroneous. See, e.g., Frazee v. United States Forest Serv., 97 F.3d 367 (9th Cir.1996). We need not resolve this issue here, because under either standard of review we conclude that the district court erred and we therefore reverse.
We conclude that the government has failed to demonstrate how the nest sites of northern goshawks relate "solely," or even predominantly, "to the internal personnel rules and practices of an agency" as required by the provisions of exemption 2. The Forest Service argues initially that the creation of nest-site location information "relates to" an agency "practice" because (1) the creation of such information itself constitutes a "practice," and (2) the "practice" of creating the information "also 'casts light' on other 'practices' of the Forest Service, including the inventorying of goshawk populations and use of that information in management of [Forest Service] lands." Brief for Appellees at 24-25. The Forest Service's analysis in itself provides a fairly compelling demonstration that the relationship of northern goshawk nest sites to the "internal personnel rules and practices" of the Forest Service is, at best, remote. Under the approach taken by the Service, almost all information collected or created by the government would be exempt from disclosure. The government's position in the case before us justifies the concerns expressed by Judge Leventhal of the D.C. Circuit over twenty years ago:
In some attenuated sense, virtually everything that goes on in the Federal Government, and much that goes on outside of it, could be said to be "related" through some chain of circumstances to the "internal personnel rules and practices of an agency." The potentially all-encompassing sweep of a broad exemption of this type undercuts the vitality of any such approach.
Vaughn v. Rosen, 523 F.2d 1136, 1150 (D.C.Cir.1975) (Leventhal, J., concurring). We categorically reject the government's approach.
Our task is made even simpler by the fact that the Tenth Circuit has already rejected the identical arguments in a case involving the same questions and the same parties, although the bird at issue before the Tenth Circuit was the Mexican spotted owl rather than the northern goshawk. In Audubon Society v. United States Forest Service, 104 F.3d 1201 (10th Cir.1997), the Tenth Circuit The Tenth Circuit is not alone in rejecting the sweeping interpretation of exemption 2 urged by the government in this and other cases. In Schwaner v. Department of the Air Force, 898 F.2d 793 (D.C.Cir.1990), the D.C. Circuit rejected the argument that a roster containing the names and military duty addresses of low-ranking Air Force personnel fell within the language of exemption 2. The government argued in that case that the personnel data at issue was "exclusively derived from, and thus ... 'related solely to,' the Air Force's 'practice' of extracting selected personnel data" for compilation in a computerized database. Id. at 795. The court aptly observed that such an interpretation of exemption 2 would enable an agency to withhold practically all of the information that it ever gathers:
held that even under the broadest available interpretation, the statutory language of exemption 2 simply does not encompass maps that identify the locations of birds. See id. at 1203-05. Observing that "virtually all written material that the Forest Service publishes would at least to some extent assist its employees in their work," the District Court for the District of New Mexico had rejected the argument that the maps "relate predominantly" to the Forest Service's "internal personnel rules and practices" simply because "personnel use the maps in fulfilling their responsibilities of protecting the owl." Maricopa Audubon Society v....To continue reading
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