Keeper of the Mountains v. U.S. Dept. of Justice
| Decision Date | 28 August 2007 |
| Docket Number | Civil Action No. 2:06-0098. |
| Citation | 514 F.Supp.2d 837 |
| Parties | KEEPER OF THE MOUNTAINS FOUNDATION, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. |
| Court | U.S. District Court — Southern District of West Virginia |
William V. Depaulo, William V. Depaulo, Esq., Charleston, WV, for Plaintiff.
Daniel Martin Riess, Marc A. Perez, U.S. Department of Justice, Washington, DC, Kelly R. Curry, U.S. Attorney's Office, Charleston, WV, for Defendant.
Pending is a motion for summary judgment, filed by the defendant on January 10, 2007.1
On September 16, 2005, the Mississippi newspaper The Clarion-Ledger printed an article indicating that an internal email had been circulated from the U.S. Department of Justice ("DOJ") to various United States Attorneys' Offices. (Newspaper Article, attached as Ex. B to Compl.). The e-mail was sent sometime between September 13 and September 15, 2005, and posed the following question:
Has your district defended any cases on behalf of the (U.S.) Army Corps of Engineers against any claims brought by environmental groups seeking to block or otherwise impede the Corps work on the levees protecting New Orleans? If so, please describe the case and the outcome of the litigation.
(CompL. ¶ 2). The newspaper article surmised that "[f]ederal officials appear to be seeking proof to blame the flood of New Orleans on environmental groups, documents show." (Newspaper Article, attached as Ex. B to Compl.).
Among the documents released in response to the Freedom of Information Act ("FOIA") request that is the subject of this litigation was an e-mail sent on September 13, 2005 from James Clingier of the DOJ Office of Legislative Affairs to various employees of the DOJ. The e-mail states as follows:
I received a call this afternoon from Katherine English, a counsel at the Senate Environment and Public Works Committee. In connection with a series of Katrina-related oversight hearings that Chairman Inhofe is planning, Katherine asked us to provide the Committee with a list of any cases in which the Department has defended the Army Corps of Engineers against claims brought by environmental groups seeking to "block or otherwise impede" the Corps' work on the levees protecting New Orleans. The timing is urgent, according to Katherine. Let me know if you need any more informatino [sic] from me in order to process this request. Thanks.
(OIP Doc. Production at OLA 3, OLA 10, OLA 11, attached as Ex. 1 to Resp.). Plaintiffs concur with the theory expressed in The Clarion Ledger article that the DOJ was attempting to shift blame for the disaster that occurred in the aftermath of Hurricane Katrina onto environmentalists. (Compl. ¶ 4),
On October 4, 2005, counsel on behalf of the plaintiff submitted the FOIA request to the DOJ. . The request referenced the internal DOJ email to all U.S. Attorneys' Offices and sought information based on the following seven items:
(1) Copies of all emails in substantially the form [as the e-mail referenced in the newspaper article] ... that were in fact sent to any person;
(2) Copies of all replies to the referenced emails;
(3) Copies of all documents pertaining to the September 16, 2005 article in The Clarion Ledger;
(4) Copies of all documents addressed to, prepared by, or copied to Cynthia Magnuson of the Department of Justice pertaining to the referenced email or the September 16, 2005 article in The Clarion Ledger;
(5) Copies of any documents pertaining to any inquiry into the source of the leak of the referenced email to The Clarion Ledger;
(6) Copies of any documents recording a communication from the United States Congress or any other source outside the Department of Justice pertaining to the referenced email or requesting that the inquiry incorporated into the email be sent; [and]
(7) Copies of any documents in any other way pertaining to the referenced email or the September 16, 2005 article in The Clarion Ledger.
(Id.). The DOJ referred the FOIA request to its two offices most likely to have the relevant information: the Executive Office of the U.S. Attorneys ("EOUSA") and the Office of Information and Privacy ("OIP"). (Memo. in Supp. of M.S.J. at 1). Each filed a Vaughn Index.2
On February 8, 2006, the EOUSA provided plaintiff with approximately 175 pages of documents without excision. (Boseker Decl. ¶ 8, attached as Ex. 1 to Mot. for S.J.). On June 26, 2006, in accordance with Magistrate Judge Mary E. Stanley's order of June 14, 2006, the DOJ filed the EOUSA Vaughn index describing six documents consisting of ten pages that were withheld in full and excluded from the February 8, 2006, production by the EOSA, (06-26-06 Vaughn Index). Upon further evaluation of these six documents, the EOUSA released two one-page e-mails (listed as documents 2 and 6 in the Vaughn index) in largely unredacted form3 to the plaintiff. (Boseker Decl. ¶ 28, attached as Ex. 1 to Mot. for S.J.; Memo. in Supp. of M.S.J. at 5). The following withheld items described in the EOUSA's Vaughn index remain in controversy: a two-page tally of the various U.S. Attorneys' Offices entitled "Alternative Dispute Resolution Survey of EOUSA Cases" (document 1), one redacted conclusional sentence from an otherwise disclosed one-page e-mail from October 17, 2005 (part of document 2), a three-page email exchange from September 15, 2005 (document 3), a two page e-mail exchange from October 14, 2005 (document 4), and a one page e-mail exchange from September 14, 2005 (document 5). (Id.; 06-26-06 Vaughn Index).
According to a sworn declaration from the DOJ,
[Document 1, the] "Alternative Dispute [sic] Survey of EOUSA Cases," [is a] printed form (2 pages), appearing to have been employed by EOUSA personnel to tally and record by hand the numerous responses to USAO searches for records responsive to inquiry regarding levees and environmental injunction. Contains names of USAOs, contacts responding, and whether or not anything was located as result of search therein. (All recorded responses on this document are "No.").
(Boseker Decl. ¶ 28 at Doc. 1, attached as Ex. 1 to Mot. for S.J.). The EOUSA's Vaughn index indicates that the undated, unsigned, and preprinted tally contains notes compiled by the EOUSA staff. (06-26-06 Vaughn index).
With respect to the e-mails, the EOSA's Vaughn index lists the date the item was originally sent, the sender by name and recipients by name, the number of pages of the e-mail exchange, and the text in the subject line. (Id.). The index then explains the general subject matter of the message. (Id.). For example, one of the descriptions states this much about the contents of the message:
This e-mail contains internal Department of Justice communications between EOUSA and other DOJ components regarding the Katrina-related survey, and it contains intra-agency deliberations regarding possible courses of action in response to a forwarded press inquiry concerning the Katrina-related survey at issue.
(Id.). The other e-mail descriptions in the EOUSA's Vaughn index are similar to this example inasmuch as they describe e-mail conversations in which "possible courses of action" were discussed in the context of either a response to the press inquiry about the survey immediately prior to publication of the article (document 3) or a response to the congressional inquiry relating to the newspaper article (documents 4 and 5).(Id.). For each e-mail exchange the index clarifies which exemption is being invoked and why and explains whether the document was fully or partially withheld. (Id.).
The defendant claims the two-page survey is exempt from disclosure under 5 U.S.C. § 552(b)(2) (), and the e-mail exchanges are properly excluded under 5 U.S.C. § 552(b)(5) ().4 (Id.).
On August 28, 2006, OIP provided counsel for plaintiff with eighteen pages of documents.5 (OIP Doc. Production, attached as Ex. 1 to Resp. to M.S.J.). Two of those pages consisted of a letter from Congressman John Conyers, Jr. to Attorney General Alberto Gonzales and were unredacted. . The remaining sixteen pages consisted of several e-mails per page, many of which were redacted in full. (OIP Doc. Production, attached as Ex. 1 to Resp. to M.S.J.).
In its document production, the OIP, unlike the EOUSA, coded each individual message in the sixteen pages of e-mails as follows: PAO 1 through PAO 26 and OLA 1 through OLA 30.6 (Id.). PAO 1, 3, 14, 15, 18, 21, 22, 23, 25, 26, and OLA 1, 3, 4, 5, 6, 10, 1.1, 18, and 27 were all disclosed in full in the production on August 28, 2006.(Id.).
OLA 2 was referred to the Civil Division of the DOJ,7 OLA 12 was referred to the Environmental and Natural Resources Division ("ENRD") of the DOJ, and PAO 16/19, 17/20,8 and 24 were referred to the EOUSA before all of these referred emails were later disclosed in full to the plaintiff. (09-01-06 Vaughn index, attached as Ex. 2-B to Mot. for S.J.; Putsay Decl. ¶ 5, attached as Ex. 2-A to Mot. for S.J.; 09-01-06 Jt. Status Rpt. at 2; Boseker Decl. ¶¶ 15-16, attached as Ex. 2 to Mot. for S.J.; Memo. in Supp. of M.S.J. at 3-4).
OIP justified the redactions of PAO 5, 9, 11, 12 and OLA 9, 14, 15, and 21 by indicating in its document production that these e-mails were "processed by EOSA." (Id.; 08-28-06 Pustay Ltr. to De-Paulo, attached as Ex. 2-C to Mot. for S.J.). It is unclear what is meant by the term "processed." (Id.). Presumably, these e-mails were described in the EOSA's Vaughn index, although OIP does...
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