Evans v. U.S. Dep't of the Interior

• Decision Date: 28 September 2015
• Docket Number: Cause No. 2:12–cv–466–RLM–APR.
• Citation: 135 F.Supp.3d 799
• Parties: Cheryl EVANS, Plaintiff, v. U.S. DEPARTMENT OF the INTERIOR and National Park Service, Defendants.
• Court: U.S. District Court — Northern District of Indiana

135 F.Supp.3d 799

Cheryl EVANS, Plaintiff,

v.U.S. DEPARTMENT OF the INTERIOR and National Park Service, Defendants.

Cause No. 2:12–cv–466–RLM–APR.

United States District Court, N.D. Indiana, Hammond Division.

Signed Sept. 28, 2015.

Cheryl Evans, Dune Acres, IN, pro se.

OPINION and ORDER

ROBERT L. MILLER, JR., District Judge.

Cheryl Evans brings this suit against the National Park Service and the U.S. Department of the Interior, alleging that these agencies (collectively, "the government") violated the Freedom of Information Act by refusing to release or releasing in redacted form documents in response to six of her FOIA requests. The court's jurisdiction over a FOIA suit arises under 5 U.S.C. § 552(a)(4)(B)

, which requires the court to "determine the matter de novo" and puts "the burden ... on the agency to sustain its action." If the agency has unlawfully withheld records, the court can enjoin the agency from withholding them and order their production. See id.

I. FACTS

The essential facts of this case aren't in dispute.¹

In 2012 and 2013, Ms. Evans, a licensed attorney representing herself in this case, made a series of FOIA requests to the Park Service seeking documents relating to the Indiana Dunes National Lakeshore ("Lakeshore"). Ms. Evans asked for documents about the extent to which the Park Service has law enforcement authority and/or jurisdiction within specific areas of the Lakeshore. Because much of the parties' dispute concerns timing as it relates to requests, responses, and appeals, the court reviews the timeline of Ms. Evans's six FOIA requests in some detail.

Request 12–360:

Ms. Evans made her first request on February 25, 2012. This request sought three specific categories of records:

1. Indiana Dunes National Lakeshore, Standard Operating Procedure # 2420, Traffic Enforcement—Jurisdiction of Roadways (Updated 02–012006).

2. Indiana Dunes National Lakeshore Law Enforcement General Agreement with Porter County.

3. Two records written by the Park Service in October 1977 and May 1994 which requested concurrent jurisdiction over Indiana Dunes National Lakeshore and Indiana Dunes State Park, as well as two records written by the State of Indiana in May 1978 and August 1994 which conferred such jurisdiction by the State over those two properties; including any supporting documents the State included with the documents that conferred this authority.

This request was assigned the tracking number NPS–2012–00360 ("request 12–360"). The Park Service acknowledged receipt of this request on March 6, 2002, and responded on April 5, 2012 with a letter informing Ms. Evans that the agency had found five documents responsive to the request. The agency produced four of the documents immediately but indicated it was still reviewing whether to release the requested Traffic Enforcement Standard Operating Procedure ("Traffic SOP"). On April 20, 2012, the Park Service sent Ms. Evans a letter advising her that it would only release the Traffic SOP in a heavily redacted form, based on FOIA Exemption 7(E). The version of the Traffic SOP initially released to Ms. Evans contained unredacted sections stating the "Purpose," "Definitions," and "Scope" of the Traffic SOP, but the final four pages of the document under the section "Procedure" were blacked out completely. This letter informed Ms. Evans of her appeal rights and how to exercise them, noting that she would have to appeal (if at all) within 30 days of the agency's response.

Ms. Evans appealed the partial denial of request 12–360—specifically, the redactions to the Traffic SOP—on May 21, 2012. The appeal letter contended that the Park Service hadn't adequately demonstrated that Exemption 7(E) covered the information that was withheld. It also argued that the agency hadn't segregated exempted material from what could be disclosed, because the redactions to the Traffic SOP were overly broad. The Department of the Interior (acting on behalf of the Park Service) responded to Ms. Evans's appeal by letter on June 26, 2012. This letter told Ms. Evans that the agency couldn't make a determination on her appeal within the 20 working days required by statute, so Ms. Evans had the right to seek judicial review.

Request 12–513

On April 6, 2012 (the day after the Park Service's initial response to request 12–360), Ms. Evans sent the Park Service two emails asserting that the agency's response to request 12–360 was deficient. Ms. Evans complained that while the Park Service had turned over three of the four requested letters between Indiana and the Lakeshore, it hadn't produced the final letter or produced four attachments originally included with those letters. The Park Service treated these emails as a new FOIA request, acknowledged the request in a letter dated April 17, 2012, and assigned it the tracking number NPS–2012–00513 ("request 12–513").

The Park Service issued a final response to request 12–513 on August 2, 2012, providing Ms. Evans with the requested letter and one of the four requested attachments. The agency stated that park staff had searched for the remaining three attachments but couldn't find them. This letter advised Ms. Evans about her appeal rights and how to appeal the agency's determination. Ms. Evans never administratively appealed the response to request 12–513.

Request 12–514

Ms. Evans made another email FOIA request to the Park Service on April 13, 2012, asking for:

1. Any documents or electronic records in which the Lakeshore and either the field solicitor, U.S. Attorney's Office, or another federal agency discussed enforcement authority issues or discussed clarification of the extent of National Park Service jurisdiction relative to the Lakeshore—particularly any correspondence in which authority was concurred with or denied.

2. Any correspondence between the Lakeshore and the Town of Porter concerning buoys in Lake Michigan—particularly those records in which the Lakeshore discussed removing those buoys.

3. Any correspondence between the Lakeshore and the State of Indiana or one of its agencies concerning buoys in Lake Michigan—particularly those records in which the Lakeshore discussed removing those buoys from Porter Beach.

4. Any correspondence between the Lakeshore and the Coast Guard concerning swimming buoys in Lake Michigan at Porter Beach—particularly those records in which the Lakeshore discussed removing those buoys from Porter Beach.

5. Any correspondence between the Lakeshore and the State of Indiana or one of its agencies concerning the operation of jet skis on Lake Michigan.

The Park Service acknowledged receipt of this request on April 17, 2012, assigned it number NPS–2012–00514 ("request 12–514"), and told Ms. Evans that processing of the request would begin after the Park Service received an advance processing fee.

The Park Service provided Ms. Evans with 27 documents in response to request 12–514 on August 28, 2012. The letter also said that fifteen additional responsive documents were being withheld pending consultation with the Department of the Interior Solicitor's Office, and informed Ms. Evans of her right to appeal and the procedures necessary to do so. The Park Service sent a "final response" to Ms. Evans on September 27, 2012 releasing in full one of the fifteen documents under consideration, releasing one other in redacted form, and withholding the remaining thirteen documents entirely. This letter told Ms. Evans about her appeal rights and how to exercise them, and included an index listing the withheld documents and the exemptions the Park Service asserted applied to them.

On July 3, 2013 (after this litigation began), the Park Service informed Ms. Evans by email that the agency had reconsidered two of the originally withheld documents and now believed that they were public records to which Ms. Evans was entitled. Attached to the email were the two records in unredacted form. Ms. Evans appealed the response to request 12–514 on July 17, 2013. On December 12, 2013, the Park Service again emailed additional documents to Ms. Evans in what it styled a "revised release determination." Some of the nine documents released with this email were responsive to request 12–514, and many were released only in redacted form. The email advised Ms. Evans that she could appeal this response. She appealed the response to request 12–514 again on July 5, 2014, claiming that the Park Service hadn't provided a written response to her first appeal.

Request 12–999

In an August 31, 2012 email to the Park Service, Ms. Evans asserted that the response to request 12–514 was deficient. She identified five types of documents that were referred to by some of the 27 documents the Park Service had released to her on August 28; none of these referenced documents were included in the agency's response to request 12–514. The Park Service again treated this as a new FOIA request, assigning it tracking number NPS–2012–00999 ("request 12–999").

The Park Service issued a partial response to this new request by letter on December 21, 2012, after this suit was filed. This letter said that of the five requested records, two were being released to her, one didn't exist, and one couldn't be located. The remaining record requested was a binder regarding jurisdictional issues. The Park Service included a list of the 77 documents in the binder and released some of them to Ms. Evans, informing her that sixteen of the documents were still under consideration for release. The letter said Ms. Evans was entitled to treat the delayed response to her request as a denial, and could appeal it immediately. On June 19, 2013, the Park Service issued a final response concerning the sixteen remaining documents from the binder. The agency released some of the documents to Ms. Evans in their entirety, and released others in redacted form. The final response letter informed Ms. Evans of her right to appeal the partial denial.

Ms. Evans appealed the response to request 12–999 on July 16, 2013. On December 12,...