San Juan Citizens Alliance v. U.S. Dep't of the Interior

• Decision Date: 30 September 2014
• Docket Number: Civil Action No. 13–cv–02466–REB–KMT
• Citation: 70 F.Supp.3d 1214
• Parties: San Juan Citizens Alliance, Plaintiff, v. United States Department of the Interior, an agency of the United States, United States Bureau of Land Management, an agency within the United States Department of the Interior, Defendants.
• Court: U.S. District Court — District of Colorado

70 F.Supp.3d 1214

San Juan Citizens Alliance, Plaintiff

v.United States Department of the Interior, an agency of the United States, United States Bureau of Land Management, an agency within the United States Department of the Interior, Defendants.

Civil Action No. 13–cv–02466–REB–KMT

United States District Court, D. Colorado.

Signed September 30, 2014

Megan McCrea Anderson O'Reilly, Kyle James Tisdel, Taos, NM, for Plaintiff.

Zeyen Julian Wu, U.S. Attorney's Office, Denver, CO, for Defendant.

ORDER CONCERNING MOTIONS FOR SUMMARY JUDGMENT

BLACKBURN, District Judge.

This matter is before me on the following: (1) the defendants' Motion for Summary Judgment [# 42]¹ filed February 26, 2014; (2) the Plaintiff's Cross–Motion for Summary Judgment and Response To Defendant' Motion for Summary Judgment [# 45] filed March 24, 2014. The defendants filed a response [# 47] to the motion of the plaintiff, and both the plaintiff and the defendants filed replies [# 48 & # 49] in support of their motions. I grant the motion of the defendants and deny the motion of the plaintiff.

I. JURISDICTION

I have jurisdiction over this case under 28 U.S.C. XX 1331 (federal question) and 5 U.S.C § 552(a)(4)(B) (Freedom of Information Act).

II. STANDARD OF REVIEW

Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.² Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir.1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Farthing, 39 F.3d at 1134.

A party who does not have the burden of proof at trial must show the absence of a genuine issue of fact. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir.1994), cert. denied , 514 U.S. 1004, 115 S.Ct. 1315, 131 L.Ed.2d 196 (1995). By contrast, a movant who bears the burden of proof must submit evidence to establish every essential element of its claim or affirmative defense. See In re Ribozyme Pharmaceuticals, Inc. Securities Litigation , 209 F.Supp.2d 1106, 1111 (D.Colo.2002).

In either case, once the motion has been properly supported, the burden shifts to the nonmovant to show by tendering depositions, affidavits, and other competent evidence that summary judgment is not proper. Concrete Works, 36 F.3d at 1518. All evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel . Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 528 U.S. 815, 120 S.Ct. 53, 145 L.Ed.2d 46 (1999). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir.), cert. denied, 528 U.S. 933, 120 S.Ct. 334, 145 L.Ed.2d 260 (1999).

III. FACTS

The plaintiff, San Juan Citizens Alliance (SJCA), submitted a request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to the United States Bureau of Land Management (BLM). The Western Environmental Law Center made the submission on behalf of SJCA. [# 45–1]³ . The SJCA sought documents known as expressions of interest (EOI) submitted to the BLM as part of a sale of oil and gas leases announced by the BLM. As part if its response to the FOIA request, the BLM released documents related to an EOI submitted by Mark A. O'Neal and Associates (O'Neal). Out of the 38 pages produced, one of these pages was O'Neal's cover e-mail introducing the EOI. O'Neal's client was copied via e-mail on the EOI, and the cover page included the email address of O'Neal's client.

The sole issue in this case is whether the e-mail address of O'Neal's client was withheld properly from disclosure by the BLM under Exemption 4 of the FOIA. The redacted document disclosed by the BLM in response to the FOIA request is shown in Exhibit 10 [# 42–10] to the BLM motion for summary judgment.

After receiving the FOIA request of SJCA and other requests, the BLM sent a letter [# 42–3] to Helen Hoffpauir, an O–Neal representative, concerning the FOIA requests. Under regulations of the Department of Interior, the BLM must notify private parties about potentially confidential commercial or financial information which may be disclosed in response to a FOIA request. O'Neal responded and objected to the release of O'Neal's information. [# 42–4]. The BLM requested more information from O'Neal. [# 42–5]. O'Neal objected to release of its client's e-mail address, which it equated with a release of the identity of its client. [# 42–7 & # 42–8]. In an e-mail sent June 14, 2013, O'Neal noted that the “EOI in question was submitted in 2011, when the BLM was operating under the former regulations that assured submitter confidentiality until after a lease sale was completed.” [# 42–8], p. 3. In its final response, BLM redacted the e-mail address of O'Neal's client under Exemption 4 of the FOIA. [# 42–9 & # 42–10].

SJCA filed an administrative appeal. During that appeal, the BLM sought additional information from O'Neal relevant to Exemption 4. SJCA sought to compel a response to it's appeal from the BLM. Affidavit [# 45–1], ¶ 10. The BLM did not issue a decision, and SJCA then filed this case. Id., ¶ 11. The information sought by SJCA has not been released.

IV. FOIA & EXEMPTION 4

The FOIA was enacted “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). Congress recognized that an open government ensures accountability through transparency, and that an informed citizenry is “vital to the functioning of a democratic society.” N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). “FOIA is ... a means for citizens to know what their Government is up to. This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy.” Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171–172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) (internal citations and quotations omitted). FOIA's plain language requires that an agency of the federal government disclose documents and information to any person, except when the document falls under a specifically enumerated exemption. See 5 U.S.C. § 552(a)(3)(A) (“each agency, upon any request for records ... shall make the records promptly available to any person.”). FOIA exemptions “must be construed narrowly, in such a way as to provide the maximum access consonant with the overall purpose of the Act.” Vaughn v. Rosen, 484 F.2d 820, 823 (D.C.Cir.1973), cert. denied , 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

The burden is on the government to justify its decision to withhold or redact documents. Johnson v. United States Department of Justice, 739 F.2d 1514, 1516 (10th Cir.1984) ; Lacefield v. United States, 1993 WL 268392 at *2 (D.Colo. March 10, 1993). To meet this burden, the government may not rely on conclusory assertions, but “must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the [FOIA's] inspection requirements.” Lacefield, 1993 WL 268392 at *2 (quoting Perry v. Block , 684 F.2d 121, 126 (D.C.Cir.1982) ). It may do so by providing affidavits or declarations that specify “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981) ; see also Badalamenti v. United States Department of State, 899 F.Supp. 542, 546 (D.Kan.1995). Such affidavits are afforded a presumption of good faith, absent concrete evidence to the contrary. See SafeCard Services, Inc. v. Securities & Exchange Commission, 926 F.2d 1197, 1200 (D.C.Cir.1991) ; Board of County Commissioners of Kane County v. Department of the Interior of the U.S., 2007 WL 2156613 at *6 (D.Utah July 26, 2007). In any FOIA action challenging an agency decision to withhold records, the district court reviews de novo the agency's decision not to disclose. Herrick v. Garvey, 298 F.3d 1184, 1189 (10th Cir.2002).

Exemption 4 of FOIA exempts from release under FOIA “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). Exemption 4 is unique because it requires the government to account for the interests of third parties by asking for their input when it decides to release or withhold information in response to FOIA requests. See 43 C.F.R. Part 2, Subpart F; National Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 767 (D.C.Cir.1974) (“The exemption ... is intended to protect interests of both the Government and the individual.”). Information falls within Exemption 4 only of the information is (1) a trade secret or (2) information which is (a) commercial or financial, (b) obtained from a person, and (c) privileged or confidential. Anderson v. Department of Health and Human Services, 907 F.2d 936, 943–945 (10th Cir.1990).

V. ANALYSIS

In the present case, there is no contention that the e-mail address at issue is a trade secret. In addition, there is no dispute that the e-mail address was obtained from a person, Mark A. O'Neal and Associates. Thus, the dispute focuses on whether the email address is commercial or...