Maine v. U.S. Dept. of Interior

• Decision Date: 26 December 2000
• Docket Number: No. CIV. 00-122-B-C.,CIV. 00-122-B-C.
• Citation: 124 F.Supp.2d 728
• Parties: State of MAINE, Plaintiff v. UNITED STATES DEPARTMENT OF THE INTERIOR, United States Geological Survey, United States Fish and Wildlife Service, United States Department of Commerce, and National Marine Fisheries Service, Defendants
• Court: U.S. District Court — District of Maine

124 F.Supp.2d 728

State of MAINE, Plaintiff v. UNITED STATES DEPARTMENT OF THE INTERIOR, United States Geological Survey, United States Fish and Wildlife Service, United States Department of Commerce, and National Marine Fisheries Service, Defendants

No. CIV. 00-122-B-C.

United States District Court, D. Maine.

December 26, 2000.

Order Amending Opinion, January 2, 2001.

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Christopher C. Taub, Asst Atty General, Augusta, ME, for State of Maine, plaintiff.

Halsey B. Frank, Office of the U.S. Attorney, Portland, OR, for U.S. Dept. of Interior, U.S. Geological Survey, U.S. Fish and Wildlife Service, U.S. Dept. of Commerce, National Marine Fisheries Service, defendants.

MEMORANDUM OF DECISION AND ORDER

GENE CARTER, District Judge.

This case involves a dispute between Plaintiff, the State of Maine, and Defendants, United States Department of the Interior ("DOI"), United States Geological Survey ("USGS"), United States Fish and Wildlife Service ("USFWS"), United States Department of Commerce ("DOC"), and National Marine Fisheries Service ("NMFS"), over Defendants' obligation under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to disclose information regarding a proposal by Defendants USFWS and NMFS (collectively "the Services") to list the Atlantic salmon populations in eight Maine rivers as a discrete population segment eligible for protection under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1543. Now before the Court are Defendants' Motion for Partial Summary Judgment ("Defendants' Motion for Summary Judgment") (Docket No. 14) with respect to Counts II and III of Plaintiff's Complaint, and (Plaintiff's Motion for Partial Summary Judgment and Opposition to Defendants' Motion for Partial Summary Judgment) ("Plaintiff's Motion for Summary Judgment") (Docket No. 15) with respect to these same counts. For the reasons discussed below, the Court will order immediate disclosure of some of the requested documents, deem other documents exempt from disclosure under the FOIA, and review, in camera, the remaining documents to assess the segregability of nonexempt information.

BACKGROUND

Relevant to the motions now before the Court are Counts II and III of Plaintiff's Complaint (Docket No. 1). These counts concern a FOIA request served by Plaintiff upon Defendants on January, 18, 2000.¹ See Plaintiff's Statement of Material Facts ("PSMF") (Docket No. 16) ¶ 3; January 18, 2000, FOIA Request, Defendants' Statement of Material Facts ("DSMF") (Docket No. 13), Exhibit 3. In this request, Plaintiff sought, among other items, documents, data, studies, and correspondence pertaining to Defendants' decision to list as endangered the Atlantic salmon population in eight Maine rivers. See id. In a series of letters between February 25, 2000, and March 3, 2000, Defendants DOI, USFWS, and USGS (collectively "the DOI Defendants") partially denied this request, providing Plaintiff with 1,416 documents of 1,724 documents deemed responsive to Plaintiff's January 18 FOIA request. See PSMF ¶ 4; DSMF ¶¶ 5-8. Plaintiff administratively appealed this denial to DOI by letter dated March 21, 2000. See PSMF ¶ 6; DSMF ¶ 9; March 21, 2000, Letter from Christopher Taub to United States Department of the Interior, DSMF, Exhibit 4, Attachment F. DOI denied this appeal by letter dated April 19, 2000. See PSMF ¶ 7; DSMF ¶ 10; April 19, 2000, Letter from William W. Wolf to Christopher Taub, DSMF, Exhibit 4, Attachment G. Defendants DOC and NMFS (collectively "the DOC Defendants") initially did not respond to Plaintiff's January 18 FOIA request. See PSMF ¶ 4.

Plaintiff filed this lawsuit on June 13, 2000. See Complaint. Count II alleges that the DOC Defendants have failed to respond to Plaintiff's January 18 FOIA request. Count III alleges that the DOI Defendants have improperly withheld 307 files from their response to this request.² With respect to these allegations, Plaintiff has prayed for a finding that Defendants are in violation of the FOIA and an order requiring the prompt production of these files.

Since the filing of this lawsuit, the DOI Defendants have subsequently released two of the initially withheld documents. See DSMF ¶ 14. The DOC Defendants also took action after the filing of this lawsuit, formally recognizing Plaintiff's January 18, 2000, FOIA request on April 5, 2000, by stating that they would respond to Plaintiff's request "in the near future." April 5, 2000, Letter from Penelope D. Dalton to Christopher Taub, DSMF, Exhibit 5; DSMF ¶ 4; DSMF ¶ 11. On July 10, 2000, NMFS did respond to the request, providing Plaintiff with documents deemed responsive to the request and advising Plaintiff of its decision to withhold twenty-three documents pursuant to various FOIA exemptions. See July 10, 2000, Letter from Penelope D. Dalton to Christopher Taub, DSMF, Exhibit 6; PSMF ¶ 11; DSMF ¶ 12. On August 25, 2000, DOC released the portions of two of these documents that it deemed nonexempt under the FOIA. See DSMF ¶ 13.

DISCUSSION

In their Motion for Summary Judgment, Defendants contend that all of the documents withheld are exempt from FOIA disclosure under 5 U.S.C. § 552(b)(5) ("Exemption 5") and 5 U.S.C. § 552(b)(6) ("Exemption 6"). Specifically, the DOI Defendants claim that Exemption 5, which exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not otherwise be available by law to a party other than an agency in litigation with the agency," encompasses the attorney-client privilege and the work product privilege, and that these privileges justify the withholding of 303 documents.³ Additionally, the DOI Defendants claim Exemption 6, which exempts from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy," to justify the withholding of two documents.⁴ The DOC Defendants also invoke Exemption 5 as a ground for withholding documents from Plaintiff, claiming that this exemption encompasses the deliberative process privilege, and that this privilege justifies the withholding of all twenty-three documents. The DOC Defendants additionally claim the attorney-client and/or work product privileges as grounds for withholding eight documents. Defendants maintain that because the requested documents fall under these exemptions to the FOIA, the Court does not have subject matter jurisdiction to require their disclosure and should, therefore, grant summary judgment in favor of Defendants. Both sets of Defendants have filed indices itemizing the various documents that have been withheld, summarizing the contents of each document, and listing the FOIA exemptions applicable to each document; the Court will refer to these indices as "Vaughn indices" for the purposes of this motion. See Interior Vaughn Index, DSMF, Exhibit 4, Attachment H; Commerce Vaughn Index, DSMF, Exhibit 9, Attachment A.⁵

Plaintiff challenges Defendants' Motion to Dismiss on a number of grounds. With respect to the DOI Defendants, Plaintiff first contends that the Vaughn index submitted in support of their exemption claims is insufficiently detailed to allow either Plaintiff the opportunity to challenge or the Court the ability to evaluate the applicability of Defendants' claimed exemptions. Alternatively, using the information that the DOI Defendants have provided in their Vaughn index, Plaintiff argues that these Defendants have failed to establish either the attorney-client privilege as a ground for withholding any of the 186 documents claimed exempt under this privilege or the work product privilege as a ground for withholding any of the 254 documents claimed exempt under this privilege. Plaintiff maintains that, in these ways, the DOI Defendants have failed to sustain their burden of establishing a FOIA exemption, and that the Court should, therefore, grant summary judgment in favor of Plaintiff and order the immediate production of all documents withheld by these Defendants under these claimed privileges. Plaintiff does not challenge the DOI Defendants' invocation of FOIA Exemption 6 as a ground for withholding two documents.⁶ Plaintiff does not challenge the adequacy of the Vaughn index submitted by the DOC Defendants or the applicability of the claimed privileges with regard to seventeen of the withheld documents, but does challenge the complete withholding of six documents under the deliberative process privilege. Plaintiff contends that five of these documents appear to contain some nonexempt factual information and that Defendants have not demonstrated why this information is not segregable from the privileged information. Plaintiff requests that the Court conduct an in camera review of these five documents to determine whether they contain segregable nonprivileged information. Plaintiff challenges the withholding of the other document on the ground that it does not reflect a permissible deliberation under the ESA.

In reply, the DOI Defendants maintain that their Vaughn index contains sufficient details for the effective evaluation of their claims of exemption and that the information they have provided in this index and their supporting affidavits does fulfill their burden of proof. They also argue that, should the Court decide that their Vaughn index lacks sufficient detail, the proper procedure is to order the Defendants to supplement the index rather than to order disclosure of the documents. The DOC Defendants maintain the applicability of the deliberative process privilege and oppose the use of in camera review, arguing that its index makes resort to this measure unnecessary. In addition to this reply, Defendants have also filed a motion opposing Plaintiff's Cross-Motion for Summary Judgment and a responsive statement of material facts. However, these opposition papers were untimely filed.

I. DEFENDANTS' UNTIMELY RESPONSE

As a preliminary matter, the Court must decide...