Hertzberg v. Veneman

• Decision Date: 28 July 2003
• Docket Number: No. CIV.A. 01-2494PLF.,CIV.A. 01-2494PLF.
• Parties: Michael A. HERTZBERG, Plaintiff, v. Ann M. VENEMAN, United States Department of Agriculture, Defendant.
• Court: U.S. District Court — District of Columbia

Page 67

273 F.Supp.2d 67

Michael A. HERTZBERG, Plaintiff, v. Ann M. VENEMAN, United States Department of Agriculture, Defendant.

No. CIV.A. 01-2494PLF.

United States District Court, District of Columbia.

July 28, 2003.

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Karen Louise Manos, Howrey SAimon Arnold & White, LLP, Washington, DC, for plaintiff.

Stratton C. Strand, U.S. Attorney's Office, Washington, DC, for defendant.

OPINION

PAUL L. FRIEDMAN, District Judge.

This matter is before the Court on the parties' cross-motions for summary judgment. Upon consideration of the parties' arguments, declarations submitted and the applicable law, the Court grants defendant's motion and enters summary judgment for defendant on all claims, except with respect to the application of Exemption 6 withholding to six videotapes and the issue of segregability with respect to six documents.

I. BACKGROUND

Plaintiff Michael A. Hertzberg brings this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., to compel the United States Department of Agriculture ("USDA") to release documents and videotapes relating to its investigation of wildfire suppression efforts undertaken in the midst of raging wildfires in and around the Bitterroot National Forest in Montana ("the Bitterroot") in August 2000. Plaintiff is an attorney who represents "Backfire 2000," a group of individuals who allege that their properties were destroyed by fires resulting from a Forest Service firing operation performed in the Bitterroot on August 6, 2000. See Memorandum of Points and Authorities In Support of Defendant's Motion for Summary Judgment at 2 ("Def.'s Mot."). Seeking information relating to the August 6 firing operation and the Forest Service's ensuing investigation, plaintiff filed four FOIA requests with defendant on October 12, 2000, November 7, 2000, November 19, 2000, and May 21, 2001.

In response to plaintiff's requests and appeals, defendant ultimately released 3,068 pages of documents and 11 videotapes, some in their entirety and some in redacted form. Plaintiff now seeks the information identified but not released by defendant — approximately 87 pages withheld in full, the unredacted versions of 81 pages produced in redacted form, and two withheld videotapes and the unredacted versions of four redacted videotapes. Plaintiff argues that: (1) defendant has no legal basis for its withholdings and redactions; (2) defendant waived its right to assert work product privilege by selectively releasing documents; (3) defendant should be equitably estopped from withholding information based on its promises of full disclosure to the public; and (4) the internal USDA guideline pursuant to which defendant withheld certain documents was promulgated in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553 et seq., and is otherwise contrary to law. In response, defendant contends that its withholdings and redactions are fully justified under Exemptions 5 and 6 of the FOIA; the selective release of other documents requested by plaintiff does not waive the work product privilege with respect to those documents not released; equitable estoppel does not apply in these circumstances; and the guideline challenged by plaintiff is lawful under the APA and was properly applied.

II. DISCUSSION

A. Summary Judgment in FOIA Cases

Under the Freedom of Information Act, an agency may withhold documents responsive to a FOIA request only if the responsive documents fall within one of nine enumerated statutory exemptions. See 5 U.S.C. § 552(b). The agency bears the burden of justifying the withholding, and the court reviews the agency claims of exemption de novo. See § 552(a)(4)(B); see also United States Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991); Assassination Archives and Research Center v. CIA, 334 F.3d 55, 57 (D.C.Cir.2003); Summers v. Dep't of Justice, 140 F.3d 1077, 1079-80 (D.C.Cir.1998). To enable the Court to determine whether documents were properly withheld, the agency must provide a detailed description of the information withheld through the submission of a so-called "Vaughn Index," sufficiently detailed affidavits or declarations, or both. See Oglesby v. United States Dep't of the Army, 79 F.3d 1172, 1178 (D.C.Cir.1996); Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). Furthermore, the FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided ... after deletion of the portions which are exempt." 5 U.S.C. § 552(b). "[N]on-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Kimberlin v. Dep't of Justice, 139 F.3d 944, 949 (D.C.Cir.1998) (quoting Mead Data Central, Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 260 (D.C.Cir.1977)). To withhold the entirety of a document, the agency must demonstrate that it cannot segregate the exempt material from the non-exempt and disclose as much as possible. See Kimberlin v. Dep't of Justice, 139 F.3d at 949-50.

The Court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In a FOIA case, the Court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations when the affidavits or declarations describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see also Vaughn v. Rosen, 484 F.2d at 826-28. Agency affidavits or declarations must be "relatively detailed and non-conclusory ...." SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by `purely speculative claims about the existence and discoverability of other documents.'" Id. (internal citation and quotation omitted). An agency must demonstrate that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978) (internal citation and quotation omitted).

There is no dispute in this case as to the identity of the documents and videotapes in question, or whether the Department of Agriculture fulfilled its duty in locating the information requested by the plaintiff.¹ The Court therefore must decide whether the Department was correct in withholding documents under Exemption 5 or Exemption 6 of the FOIA.

B. Exemption 5

Exemption 5 of the FOIA protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency." 5 U.S.C. § 552. This provision applies to materials that normally are privileged in the civil discovery context, including those protected by the attorney work product privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 154, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); see also FTC v. Grolier, Inc., 462 U.S. 19, 26, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983) ("The test under Exemption 5 is whether the documents would be `routinely' or `normally' disclosed upon a showing of relevance."); Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C.Cir.1987) (same). As with all FOIA exemptions, the burden is on the agency invoking Exemption 5 to "establish its right to withhold evidence from the public.... [C]onclusory assertions of privilege will not suffice" to carry the agency's burden. Senate of the Commonwealth of Puerto Rico v. United States Dep't of Justice, 823 F.2d 574, 585 (D.C.Cir.1987) (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 861 (D.C.Cir.1980)).

As incorporated into Exemption 5, the attorney work product doctrine is intended to preserve a zone of privacy in which lawyers can prepare and develop legal theories and strategy with an eye toward litigation free from unnecessary intrusion by an adversary. Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947). It protects from disclosure any materials prepared by or for a party or its attorney or by or for a party's representative in anticipation of litigation. See FED. R. CIV. P. 26(b)(3). The protected materials may be either deliberative or factual in nature — for the former, sometimes called opinion work product, there is special protection, nearly absolute privilege, in order to protect an attorney's mental processes and impressions from discovery, while for fact work product there is a qualified privilege which can be overcome only upon a showing of special need for the materials and undue hardship. See FED. R. CIV. P. 26(b)(3); Upjohn Co. v. United States, 449 U.S. 383, 400-03, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981); Hickman v. Taylor, 329 U.S. at 512-13, 67 S.Ct. 385; United States v. Adlman, 134 F.3d 1194, 1197, 1204 (2d Cir.1998); Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C.Cir.1997); Martin v. Office of Special Counsel, 819 F.2d at 1187. While litigation need not be imminent or certain in order to satisfy the anticipation-of-litigation prong of the test, this circuit has held that "at the very least some articulable claim, likely to lead to litigation, must...