Rocky Mountain Wild, Inc. v. United States Forest Service
| Citation | 56 F.4th 913 |
| Decision Date | 30 December 2022 |
| Docket Number | 21-1169 |
| Parties | ROCKY MOUNTAIN WILD, INC., Plaintiff - Appellant, v. UNITED STATES FOREST SERVICE ; United States Department of Agriculture, Defendants - Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Travis E. Stills, Energy and Conservation Law, Durango, Colorado, (Matthew Sandler, Rocky Mountain Wild, Denver, Colorado, with him on the briefs) for Plaintiff-Appellant.
Marissa R. Miller, Assistant United States Attorney (Cole Finegan, United States Attorney, with her on the brief), Denver, Colorado, for Defendants-Appellees.
Before TYMKOVICH, EID, and CARSON, Circuit Judges.
The Freedom of Information Act (FOIA) makes government records accessible to the public, including organizations like Plaintiff Rocky Mountain Wild. But this access is not limitless. The statute instructs government agencies to use reasonable—not the utmost—efforts to produce responsive records upon request. Beyond that, FOIA also exempts nine categories of records from public disclosure.
Plaintiff requested and received voluminous records under FOIA, but now asserts Defendants United States Forest Service ("USFS") and United States Department of Agriculture ("USDA") abused these statutory limitations to hide information about projects that harm the environment. The district court rejected Plaintiff's speculative theory and found USFS's efforts to comply with Plaintiff's FOIA request reasonable.1 Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.
For years the parties have litigated the propriety of a proposed development in the Wolf Creek Ski Area—which the USFS manages. The proposed development is a plan for highway access known as "the Village at Wolf Creek Access Project." Plaintiff challenges this plan because of alleged environmental risks to the surrounding national forest. The highway-access litigation continues, but relevant here is a 2018 FOIA request Plaintiff submitted asking Defendant for "all agency records regarding the proposed Village at Wolf Creek Access Project."
Plaintiff's request caused an enormous undertaking by Defendant. The request sought "all agency records" about the project. The breadth of the request first required Defendant to determine the relevant period during which its employees would have created responsive documents so it could direct those employees to search their files within that timeframe. Then Defendant also narrowed the request's scope to include only documents Defendant had not already given Plaintiff, documents Defendant had not made public, and documents not statutorily exempt from disclosure.
Defendant next had to find employees who might possess responsive records. Defendant determined that twenty-seven employees were substantially involved in the Village at Wolf Creek Access Project during the relevant timeframe and likely possessed responsive records. All but two of those employees worked in Colorado. Defendant allowed the employees to search their own files using custom search terms, reasoning that each employee would know the best search terms to find responsive documents. The employees reported how they searched their files and listed their individual search terms. Between the twenty-seven employees, they searched their files with more than two dozen different search terms, including variations of similar terms. Some of the twenty-seven employees handed off the search to their administrative assistants but still specified the search terms their administrative assistants used. Those who searched looked in different locations, such as physical hard-copy files, external and internal computer hard drives, and emails, including attachments, within their archive system. Finally, most employees searched twice for documents, and all the selected employees searched for responsive records after March 1, 2019, to make sure none showed up at the last minute.
After collecting documents from the twenty-seven employees, a team of five Forest Service officials worked full-time for months to review the produced documents.2 The team organized documents into three groups: (1) nonresponsive, which they removed; (2) responsive but either produced before from a past FOIA request, outside the window Defendant calculated, or exempt under FOIA, which they also removed but listed the exempt documents in an index; and (3) responsive and not previously produced, outside the timeframe, or exempt under FOIA, which they gave to Plaintiff. As the team compiled disclosable responsive documents, it sent groups of them to Plaintiff in "rolling productions."
Over the course of a year, Defendant organized twenty-seven rolling productions to Plaintiff after identifying 140,637 responsive pages in 14,740 records. Defendant tried to produce these documents in a way Plaintiff preferred, such as reproducing documents as individual PDF files and reproducing those documents a third time as searchable PDFs once Plaintiff objected to the non-searchable format. At Plaintiff's insistence, Defendant also created an almost 800-page " Vaughn index" to inventory the thousands of agency records FOIA exempted from disclosure (7,757 in total). See Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973) (). Defendant even hired an outside contractor to help prepare the Vaughn index because so many privilege issues came into play and Defendant wanted to make sure it had properly withheld or redacted documents. Defendant submitted declarations detailing its months-long search effort.
While Defendant gathered responsive documents to include in the rolling productions, Plaintiff sued Defendant in federal court for allegedly missing statutory deadlines, conducting an inadequate search, and improperly withholding or redacting documents. During the litigation, Defendant started producing documents to Plaintiff. In one production, Defendant mistakenly included two documents not properly redacted and asked Plaintiff to return or destroy the documents and provided Plaintiff with properly redacted replacements. But Plaintiff refused. So Defendant moved the district court to order Plaintiff to return or destroy the documents. The court granted Defendant's motion, directing Plaintiff to remove the documents from any online locations (another organization had posted the documents on its Facebook page) and return or destroy them.
Later, the parties each moved for summary judgment. Defendant argued that its declarations describe how its employees reasonably searched for responsive documents and prove that the agency reasonably applied FOIA exemptions to redact parts of or withhold entire records. Plaintiff countered that Defendant had not proven it conducted a FOIA-compliant search or met the standard to exempt documents in whole or in part from production. The district court granted Defendant's summary-judgment motion. It found that Defendant reasonably searched for records to comply with the FOIA request and adequately justified why it redacted or withheld certain records. Plaintiff appeals the summary-judgment decision and the order to return the improperly redacted documents.
We review a grant of summary judgment in FOIA cases de novo if the district court's decision "had an adequate factual basis." Jordan v. U.S. Dep't of Just., 668 F.3d 1188, 1192 (10th Cir. 2011) (quoting Audubon Soc'y v. U.S. Forest Serv., 104 F.3d 1201, 1203 (10th Cir. 1997) ). The government can develop an adequate factual basis by providing a Vaughn index, which an agency typically puts together to allow the court to review the agency's nondisclosures. See Anderson v. Dep't of Health & Hum. Servs., 907 F.2d 936, 942 (10th Cir. 1990). The agency bears the burden of justifying its nondisclosures. Friends of Animals v. Bernhardt, 15 F.4th 1254, 1260 (10th Cir. 2021) (citing Herrick v. Garvey, 298 F.3d 1184, 1190 (10th Cir. 2002) ).
A court should grant summary judgment when "the movant shows 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). A mere scintilla of evidence supporting the nonmovant's position will not create a genuine issue of material fact; the fact issue must make it so that a reasonable jury could find for the nonmovant. Herrick, 298 F.3d at 1190. Because the district court granted summary judgment in Defendant's favor, "we review the record and all reasonable inferences ... drawn therefrom in the light most favorable to [Plaintiff]." See Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007) [" Trentadue I"].
Plaintiff challenges the district court's decision on four grounds. First, Plaintiff claims the court applied the standard of review incorrectly by improperly deferring to Defendant's declarations. Second, Plaintiff argues that the court wrongly found that Defendant conducted a reasonable search for records. Third, Plaintiff asserts that the court erred in determining that Defendant validly withheld or redacted documents under certain FOIA exemptions. And last, Plaintiff appeals the district court's order allowing Defendant to claw back inadvertent disclosures USFS made during one of its rolling productions to Plaintiff.
Congress enacted FOIA to facilitate public access to federal agency records and information. Friends of Animals, 15 F.4th at 1260 (citing NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 221, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) ). The statute favors disclosure. NLRB, 437 U.S. at 220, 98 S.Ct. 2311. But it also exempts nine categories of records from disclosure for confidentiality and privacy reasons. Id. at 220–21, 98 S.Ct. 2311 ; 5 U.S.C. § 552(b). With this statutory framework in mind, we address Plaintiff's assertions.3
"In any FOIA action challenging an agency decision to withhold records, the district court...
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