Kleinert v. Bureau of Land Mgmt.
| Decision Date | 25 September 2015 |
| Docket Number | Civil Action No. 14–1506 (JDB) |
| Citation | 132 F.Supp.3d 79 |
| Parties | James Kleinert, Plaintiff, v. Bureau of Land Management, Defendant. |
| Court | U.S. District Court — District of Columbia |
Daniel J. Stotter, Stotter & Associates LLC, Corvallis, OR, for Plaintiff.
Claire M. Whitaker, U.S. Attorney's Office, Washington, DC, for Defendant.
James Kleinert, a documentary filmmaker who felt that the Bureau of Land Management was unfairly impeding his work, filed a Freedom of Information Act request for all of the agency's records that referred to him. After waiting more than a year without receiving any records, Kleinert filed this suit to compel BLM to turn them over. BLM has now produced roughly 200 pages of records, many of them partially redacted. With opposing views on both the adequacy of BLM's search and the propriety of many of the redactions, the parties have cross-moved for summary judgment. BLM's current evidence mostly fails to demonstrate that its search was adequate or its redactions justified—but the agency may yet be able to make a convincing case that it complied with FOIA. Hence, the Court will largely deny both parties' motions.
Kleinert is a documentary filmmaker whose work has focused on American wild horses. This vocation has brought Kleinert into repeated contact with BLM, which manages public lands where wild horses live and administers the Wild Free–Roaming Horses and Burros Act of 1971. Kleinert and the agency have not had an entirely cordial relationship: Kleinert has sharply criticized BLM's treatment of wild horses, and the agency has suspected Kleinert of unauthorized filming on BLM lands. In recent years Kleinert has come to believe that "BLM has been targeting [his] filming of wild horses on the public lands ... by seeking to restrict [his] access to film at locations that would depict these issues." Kleinert Decl. [ECF No. 15–2] ¶ 8. This targeting, he suggests, "is related to the agency's opposition to, and disagreement with, the content of [his] films, and [his] advocacy as to these issues," and is aimed at limiting his "ability to facilitate public oversight of the agency's actions." Id.
Prompted by these concerns, Kleinert filed a FOIA request in June 2013 seeking any BLM records that referred to him or his production company. See Ex. 1 to Def.'s Mot. for Summ. J. [ECF No. 10–1] at 2. Several months later, he filed an amended request that sought, in relevant part:
Ex. H to Blome Supp. Decl. [ECF No. 26–1] at 6.1 BLM acknowledged receipt of this amended request on September 16, 2013. See id. at 5.
When nearly a full year passed without the delivery of any records, Kleinert filed this suit to compel BLM to respond to his request. See Compl. [ECF No. 1]. It seems, though, that BLM had sent Kleinert a compilation of responsive records in January 2014, but—for reasons unknown—they never showed up in Kleinert's mail. See Witt Decl. [ECF No. 10–2] ¶¶ 4–6; Kleinert Decl. ¶¶ 3–4. Once BLM received notice of this suit, it re-sent the 168 pages of responsive records it had found. See Witt Decl. ¶ 6. The agency partially redacted many of these records, relying on three FOIA exemptions. In a handful of instances BLM redacted material that it said would reveal predecision deliberations, and so was protected from disclosure under Exemption 5. But for most of the redactions, the agency cited both Exemption 6—which covers private information in personnel, medical, and similar files—and Exemption 7(C)—which covers private information in law-enforcement files. After turning over the redacted responsive records, BLM moved for summary judgment. See Def.'s Mot. for Summ. J. [ECF No. 10] ("Def.'s Mot.").
Kleinert cross-moved for summary judgment, arguing that many of the redactions were unjustified, and also that BLM had not conducted an adequate search of its records. See Pl.'s Mot. for Summ. J. [ECF No. 15] ("Pl.'s Mot."). Kleinert's motion prompted BLM to take another look—which revealed that the agency had indeed failed to provide a number of responsive records. See Witt Supp. Decl. [ECF No. 20–1] ¶¶ 6–7. BLM turned over these additional records and then filed a renewed motion for summary judgment. Def.'s Renewed Mot. for Summ. J. [ECF No. 20] ("Def.'s Renewed Mot."). But Kleinert contends that BLM has still not demonstrated the adequacy of its search or the propriety of many redactions, including some in the newly released materials. See Pl.'s Reply & Resp. to Def.'s Renewed Mot. [ECF No. 24] ("Pl.'s Reply").
"FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol , 623 F.Supp.2d 83, 87 (D.D.C.2009). And summary judgment is appropriate when the pleadings and evidence demonstrate "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.56(a).
It is the agency's burden to prove that it has complied with its obligations under FOIA. SeeU.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n. 3, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). To determine whether an agency has carried its burden, the district court may rely on agency affidavits, declarations, or Vaughn indexes that demonstrate the adequacy of the search for responsive records and the applicability of any claimed exemptions. SeeMorley v. CIA, 508 F.3d 1108, 1116 (D.C.Cir.2007) ; Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). When weighing this and other evidence in the record, the Court will review de novo the agency's determination that information requested through FOIA is subject to one of that statute's exemptions. See 5 U.S.C. § 552(a)(4)(B). And "[a]t all times courts must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure.’ " Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C.Cir.2002) (quoting Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) ).
The parties' motions present two distinct questions: whether BLM conducted an adequate search for responsive records, and whether BLM has adequately justified the redactions that Kleinert challenges. For the most part, the answer to both questions is that the Court cannot tell. BLM appears to have forgotten that "[s]pecificity is the defining requirement of the Vaughn index and affidavit," King v. U.S. Dep't of Justice , 830 F.2d 210, 219 (D.C.Cir.1987), instead providing an index and declarations that are so vague and conclusory that—a few exceptions aside—the Court cannot yet be sure that the agency has complied with FOIA.2
Kleinert's first major argument is that BLM failed to conduct a thorough search for records responsive to his request. See Pl.'s Mot. 7–11; Pl.'s Reply at 3–12. Under FOIA, an agency must "demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents." Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C.Cir.2011) (internal quotation marks omitted). "In adjudicating the adequacy of the agency's identification and retrieval efforts, the trial court may be warranted in relying upon agency affidavits," provided they are "relatively detailed," "nonconclusory," and "submitted in good faith." Morley, 508 F.3d at 1116 (internal quotation marks and brackets omitted). And even if they are, "the requester may nonetheless produce countervailing evidence, and if the sufficiency of the agency's identification or retrieval procedure is genuinely in issue, summary judgment is not in order." Id. (internal quotation marks omitted).
Summary judgment is not in order here. To start, BLM's key search term looks faulty. According to BLM, it searched various locations for records referring to, among other terms, "James Kleinart." Witt Supp. Decl. ¶¶ 4–5. But plaintiff's name is James Kleinert. In fairness to BLM, Kleinert himself misspelled his name in his initial FOIA request. But his amended request repeatedly used the correct spelling (though it still used the incorrect spelling once). If BLM nonetheless conducted its search using only the wrong spelling, the search was inadequate. SeeInt'l Counsel Bureau v. U.S. Dep't of Def., 864 F.Supp.2d 101, 107–09 (D.D.C.2012) (); cf.Negley v. FBI, 169 Fed.Appx. 591, 595 (D.C.Cir.2006) (). At the hearing on these motions, counsel for BLM asserted that the agency had in fact used the proper spelling in conducting its search. While the Court presumes that counsel is correct, this information must be presented in an affidavit from the relevant BLM employee. SeeMorley, 508 F.3d at 1121 ().
Even setting the spelling issue aside, BLM's description leaves the Court unsure of the search's reasonableness. Kleinert's revised FOIA request first sought all materials that "reference James Kleinert or Moving Cloud Productions from January 1, 2007, to present," and then identified three nonexcl...
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