The Shinnecock Indian Nation v. Kempthorne
| Decision Date | 09 September 2009 |
| Docket Number | No. 06-CV-5013 (JFB)(ARL).,06-CV-5013 (JFB)(ARL). |
| Citation | 652 F.Supp.2d 345 |
| Parties | THE SHINNECOCK INDIAN NATION, Plaintiff, v. Dirk KEMPTHORNE, Secretary of the Department of the Interior, James E. Cason, Associate Deputy Secretary of the Department of the Interior, and The United States Department of the Interior, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Evan A. Davis, Esq. and Christopher H. Lunding, Esq. of Cleary, Gottlieb, Steen & Hamilton, New York, NY, John M. Peebles, Esq., Steven J. Bloxham, Esq., and Darcie L. Houck, Esq. of Fredericks, Peebles & Morgan LLP, Sacramento, CA, for Plaintiff.
Kevin P. Mulry, Esq. of the United States Attorney's Office, Brooklyn, NY, for Defendants.
The Shinnecock Indian Nation (hereinafter, the "Nation" or "plaintiff") commenced this action on September 14, 2006 against defendants Dirk Kempthorne, in his capacity as Secretary of the Department of the Interior, George T. Skibine, in his capacity as Acting Deputy Secretary of the Department of Interior for Policy and Economic Affairs—Indian Affairs, James E. Cason, in his capacity as Associate Deputy Secretary of the Department of the Interior, and the United States Department of the Interior (collectively, "Interior" or "defendants"), pursuant to the Administrative Procedure Act, 5 U.S.C. § 551, arising from Interior's alleged continuing refusal to acknowledge the federal Indian tribal status of the Nation and to fulfill its trust obligations regarding the Nation's land claim pursuant to the Indian Non-Intercourse Act of 1834 (hereinafter, the "Non-Intercourse Act"), 25 U.S.C. § 177.
On August 15, 2008, the Nation filed a second amended complaint in this action, which added two claims, the fifth and sixth claims for relief, to the complaint.1 The subject of the instant Memorandum and Order is the sixth claim in the second amended complaint, which seeks to compel, under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, the full disclosure of two documents, the first of which is being withheld in its entirety and the second having been produced in redacted form by Interior (hereinafter, "the FOIA claim"). Specifically, Interior has invoked the attorney work product doctrine and the executive deliberative process privilege to withhold these documents from full disclosure, pursuant to 5 U.S.C. § 552(b)(5) (hereinafter, "Exemption 5").
Defendants now move for summary judgment with respect to the FOIA claim, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, arguing that they have sufficiently responded to the FOIA request and that the affidavits submitted in support of their motion adequately establish that the remaining material being withheld is exempt from disclosure. Defendants request, in the alternative, in camera review of the two documents. The Nation counters that Interior has failed to sustain its burden of demonstrating that Exemption 5 applies to the documents at issue to justify their nondisclosure and cross-moves for summary judgment in its favor.
On January 29, 2009, during oral argument on the cross-motions, the Court ordered defendants to submit a supplemental affidavit setting forth in more detail the basis for nondisclosure of the documents. After reviewing the supplemental submissions made by both parties thereafter, on July 15, 2009, the Court ruled, in its discretion, that it would review the two documents in camera. Having conducted a de novo review of the agency's position on the FOIA request (including a careful review of the documents in camera), for the reasons set forth below, the Court finds that the withheld material properly falls within the protections of Exemption 5 to FOIA. Accordingly, summary judgment is granted in favor of the defendants, and plaintiff's cross-motion is denied.
The Court has taken the facts described below from the parties' affidavits, exhibits, and respective Rule 56.1 statement of facts.2 Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. New York, 422 F.3d 47, 50 (2d Cir.2005).
By letter dated July 20, 2007, an attorney acting on behalf of the Nation made a request to Interior, pursuant to FOIA (hereinafter, "the FOIA request"), generally seeking twenty-one (21) categories of documents relating to a March 1979 report that attorneys in the Office of the Solicitor for the United States Department of the Interior prepared for a former Solicitor to assist him with his decision on the Nation's litigation request seeking assistance from the United States in the recovery of approximately 3,150 acres of land in the Town of Southampton, New York (hereinafter, "the Nation's land claim request"). (Pl.'s 56.1 ¶ 1.) This report (hereinafter, the "March 1979 report") was referred to in a September 4, 1979 letter by Leo M. Krulitz, then Solicitor of the Department of the Interior, to the Nation's attorneys (hereinafter, the "Krulitz letter"), which responded to the Nation's land claim request.
By letter dated August 17, 2007 from the Director of the Office of Federal Acknowledgement ("OFA"), Interior responded to the FOIA request by releasing in full one responsive two-page letter. (Pl.'s 56.1. ¶ 2; Strayhorn Supp. Decl., Exh. 2.) In the OFA's August 17, 2007 letter, the Nation was further advised that two documents were being withheld pursuant to Exemption 5 to FOIA, based upon the deliberative process privilege and the attorney work product doctrine. (Pl.'s 56.1 ¶ 2.) The August 17, 2007 letter from the OFA described the two documents (hereinafter, "the documents" or "the memoranda") as follows:
The first document is an undated, double-spaced draft memorandum from the Associate Solicitor, Indian Affairs, to the Solicitor, concerns the Shinnecock land claim; and is 25 pages long. It includes handwritten notes.
The second document is a single-spaced, 18-page memorandum, similar to the prior draft. It is undated and unsigned.
(Strayhorn Supp. Decl., Exh. 2.)3
The Nation appealed the partial denial of its FOIA request by letter dated September 28, 2007. (Strayhorn Decl., Exh. 3.) In its appeal, the Nation argued that the privileges asserted by the OFA were not sufficiently explained, had been waived, or were inapplicable because of Interior's publication of the staff memoranda as final decisions or made meaningless by the passage of time and, furthermore, that the memoranda should be released to the Nation as the beneficiary of the trust decisions contained within the memoranda. (See Stayhorn Supp. Decl., Exh. 3, at 11.) The Nation further argued that, in any event, the deliberative process privilege did not protect factual material and a redacted copy of the withheld documents containing factual information and conclusions should be disclosed. (See Stayhorn Supp. Decl., Exh. 3, at 11.)
By letter dated November 9, 2007, Interior acknowledged receipt of the Nation's appeal. (Strayhorn Supp. Decl. ¶ 9.) On May 14, 2008, Interior responded to the FOIA appeal, concluding that the deliberative process privilege and attorney work product doctrine were properly invoked pursuant to Exemption 5 and fully adopting the rationale of the Bureau of Indian Affairs for withholding the two documents at issue. (Pl.'s Decl. ¶ 7;4 Strayhorn Supp. Decl., Exh. 5.)
The Nation filed its initial complaint in this action on September 14, 2006. On October 5, 2007, plaintiff filed its first amended complaint, and on December 14, 2007, defendants moved to dismiss the first amended complaint. The Court denied defendants' motion to dismiss with respect to the fourth claim for relief in the first amended complaint and granted it with respect to all other claims on September 30, 2008.
By letter to the Court dated May 8, 2008, the Nation requested leave to file a second amended complaint. The Court granted such leave, and plaintiff filed a second amended complaint on August 15, 2008, the sixth claim of which is the subject of the instant motion.
On October 28, 2008, defendants moved for, inter alia, summary judgment with respect to plaintiff's sixth claim for relief.5 The Nation submitted its opposition to Interior's motion on December 19, 2008, and Interior replied on January 16, 2009. Oral argument was held on January 29, 2009. During oral argument, the Court agreed with the Nation that the government's initial declarations submitted in support of its motion lacked the requisite specificity to establish the applicability of an exemption to disclosure, see, e.g., Halpern v. FBI, 181 F.3d 279, 293 (2d Cir.1999), and directed defendants to submit a supplemental affidavit establishing, with sufficient detail, the basis for any Exemption 5 privilege with respect to the documents at issue.
Defendants thereafter filed a supplemental letter and declarations in support of their motion on February 17, 2009, and further disclosed, in redacted form, substantial portions of the second document at issue, in light of President Barack Obama's Memorandum on the FOIA, dated January 21, 2009. Plaintiff responded via letter brief on February 20, 2009.
After consideration of the supplemental declarations and submissions made by the parties, on July 15, 2009, during a conference held with the parties to address various pending motions in this case, the Court directed, in its discretion and in light of the substantial disclosure of the second document in redacted form, as well as the small number of documents and pages at issue, that the two documents be submitted under seal for in camera inspection. These documents were then submitted to the Court, in unredacted form, on July 20, 2009.
The standard for summary judgment is well-settled....
To continue reading
Request your trial
-
N.Y. Times Co. v. U.S. Dep't of Justice
...not automatically mean that the government waived the privilege with respect to the whole documents. See Shinnecock Indian Nation v. Kempthorne, 652 F. Supp. 2d 345, 363 (E.D.N.Y. 2009) (surveying case law and concluding that "the production of a document in redacted form does not automatic......
-
Cui v. Fed. Bureau of Investigation
...112 (1989) ); Roman v. C.I.A. , No. 11-CV-5944, 2013 WL 210224, at *3 (E.D.N.Y. Jan. 18, 2013) ; The Shinnecock Indian Nation v. Kempthorne , 652 F. Supp. 2d 345, 355 (E.D.N.Y. 2009). A district court may force disclosure only when all three elements are met. Grand Cent. P'ship , 166 F.3d a......
-
Am. Civil Liberties Union v. U.S. Dep't of Justice
...Tax Analysts v. I.R.S. , 117 F.3d 607, 620 (D.C.Cir.1997) (internal quotation marks omitted); see also Shinnecock Indian Nation v. Kempthorne , 652 F.Supp.2d 345, 371 (E.D.N.Y.2009) ("With respect to the work product doctrine, because the protection applies to both factual and opinion-relat......
-
Thomas v. Soc. Sec. Admin.
...136, 142 (1989)); Romano v. C.L.A., No. 11-CV-5944, 2013 WL 210224, at *3 (E.D.N.Y. Jan. 18, 2013); The Shinnecock Indian Nation v. Kempthorne, 652 F. Supp. 2d 345, 355 (E.D.N.Y. 2009). A district court may force disclosure only when all three elements are met. Grand Cent. P'ship, 166 F.3d ......