W. Res. Legal Ctr. v. Nat'l Oceanic & Atmospheric Admin., Case No. 3:19-cv-01119-AC
| Decision Date | 20 November 2020 |
| Docket Number | Case No. 3:19-cv-01119-AC |
| Parties | WESTERN RESOURCES LEGAL CENTER, Plaintiff, v. NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION and NATIONAL MARINE FISHERIES SERVICE, Defendants. |
| Court | U.S. District Court — District of Oregon |
Plaintiff Western Resources Legal Center ("WRLC") brings this action against Defendants National Oceanic Atmospheric Administration and National Marine Fisheries Service (collectively, "NOAA") for violations of the Freedom of Information Act ("FOIA"). On May 8, 2020, both parties filed motions for summary judgment. For the following reasons, the court grants Plaintiff's motion and denies Defendants' motion.
Western Resources Legal Center ("WRLC") is a non-profit legal education organization associated with the Lewis and Clark Law School. (Decl. Caroline Lobdell ("Lobdell Decl.") Ex. A at 2, ECF No. 42.) The National Marine Fisheries Service ("NMFS") is a division of the National Oceanic and Atmospheric Administration ("NOAA"). (Decl. Ellen Sebastian ("Sebastian Decl.") ¶ 1, ECF No. 29.) NOAA is an agency within the Department of Commerce. (Def.'s Answer ¶ 12, ECF No. 11.) On October 28, 2016, WRLC submitted a FOIA request to NMFS. (Lobdell Decl. ¶ 2.)
WRLC requested ten categories of records related to a NMFS document, entitled the "Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing: Underwater Acoustic Thresholds for Onset of Permanent and Temporary Threshold Shifts" ("Technical Guidance"). (Lobdell Decl. Ex A. at 1.) Specifically, WLRC requested information not cited in the final version of the Technical Guidance, "including scientific documents, studies and reports." (Lobdell Decl. Ex. A at 1.) WRLC also sought correspondence about the Technical Guidance sent or received by sixteen individuals, including nine NOAA employees. (Lobdell Decl. Ex A. at 2.)
NOAA's FOIA Central Office determined the request required subject matter experts to identify responsive records. (Decl. Mark H. Graff ("Graff Decl.") ¶ 6, ECF No. 48.) Thus, NOAA assigned the request to NMFS. (Graff Decl. ¶ 6.) NMFS' Office of Protected Resources ("OPR") received the request on December 15, 2016. (Sebastian Decl. ¶¶ 1, 5.) NOAA acknowledged WRLC's request in a December 19, 2016 letter. (Lobdell Decl. ¶ 3.) NOAA's letter stated the agency was extending the FOIA response deadline by ten business days for unusual circumstances under 15 C.F.R. § 4.6(d)(2). (Lobdell Decl. Ex. B at 2.) NOAA described theunusual circumstances as "the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are the subject of a single request; and the need for consultation, which shall be conducted with all practical speed, with another component or Federal agency having a substantial interest in the determination of the request." (Lobdell Decl. Ex. B. at 2.) NOAA anticipated it would complete the request by January 27, 2017. (Lobdell Decl. Ex. B at 2.)
On March 2, 2017, NOAA requested WRLC "modify the scope of WRLC's FOIA request to seek records from the period of July 2015 to July 2016," and "receive responsive records in interim releases due to the volume of records and the fact that NOAA must confer with other federal agencies." (Lobdell Decl. ¶ 4.) WRLC agreed. (Lobdell Decl. ¶ 4.) On March 24, 2017, NOAA provided WRLC with a link to publicly available information related to WRLC's request. (Lobdell Decl. ¶ 5.)
OPR identified seven offices and ten individuals who potentially possessed responsive records. (Graff Decl. ¶ 8.) OPR developed a search plan and decided subject matter experts in each respective office would conduct searches for responsive records. (Graff Decl. ¶ 9.)
On April 4, 2017, NOAA issued a memorandum directing employees to search for records related to WLRC's request. (Sebastian Decl. Ex. B) The memorandum instructed recipients to submit "all responsive agency records within the specified date" by April 28. (Sebastian Decl. Ex. B at 2.) The memorandum recommended search terms for use "singly or in a combination." (Sebastian Decl. Ex. B. at 2.) Although NOAA's FOIA Central Office had the capability to search all employee emails, "line offices do not have the same central search capabilities and do not have permission to run keyword searches over the email messages of all NOAA employees." (Graff Decl. ¶ 5.)
The memorandum directed employees to conduct email searches using a "cascade" approach "designed to limit duplication of responsive emails and records from the main record custodian and Subject Matter Expert Amy Scholik." (Sebastian Decl. ¶ 12.) The memorandum displayed three hierarchies labeled as "cascades." (Sebastian Decl. Ex. B. at 3.) Each cascade listed three to five individuals. (Sebastian Decl. Ex. B. at 3.) Amy Scholik-Schlomer ("Scholik-Schlomer"), the Technical Guidance's author, placed herself at the top of each cascade. (Decl. Amy Scholik-Schlomer ("Scholik-Schlomer Decl.") ¶¶ 1, 3, 12, ECF No. 30.) The memorandum stated, "records sent to or from persons higher on the cascade, may be excluded from the search of persons lower in the cascade." (Sebastian Decl. Ex. B. at 3.) Scholik-Schlomer explained, "[as] you go down the cascade, the individuals at the bottom are increasingly unlikely to have responsive records that were not already collected from individuals higher on the cascade." (Scholik-Schlomer Decl. ¶ 12.) All employees listed in the "cascades" searched for responsive records. (Scholik-Schlomer Decl. ¶ 14; Decl. Jolie Harrison ¶ 7, ECF No. 31; Decl. Jason Gedamke ¶ 10, ECF No. 32; Decl. Manuel Castellote Morales ¶ 5, ECF No. 33; Decl. Alicia Bishop ¶ 10, ECF No. 34; Decl. Deborah Ben-David ¶ 7, ECF No. 35; Decl. Leila Hatch ¶ 7, ECF No. 36; Sebastian Decl. ¶ 15.) One NOAA custodian, who was not listed on the cascades, also searched for responsive records. (Decl. Alicia Bishop ("Bishop Decl.") ¶ 6-7, ECF No. 34.)
WRLC received NOAA's first document release on either March 30, 2017, or July 3, 2017. (Lobdell Decl. ¶ 6.) In its first interim response, NOAA stated, "We continue to process your request for additional responsive records." (Sebastian Decl. Ex. D at 2.) NOAA issued a second interim response on September 27, 2017. (Sebastian Decl. Ex. E.) The second response stated the first release occurred on March 30, 2017. (Sebastian Decl. Ex. E at 2.) NOAA issued a third interim response on January 9, 2018. (Sebastian Decl. Ex. F.) The third response letter indicatedthat the first response occurred on July 3, 2017. (Sebastian Decl. Ex. F.) NOAA issued three additional interim responses on March 6, 2018, April 9, 2018, and June 18, 2019. (Sebastian Decl. Ex. J at 3.) Each interim responses stated: "Although we do not consider this a denial of your request, you have the right to file an administrative appeal if you are not satisfied with our response to your FOIA request." (Sebastian Decl. Exs. D-I.)
In a September 20, 2018 email, a NOAA employee asked WRLC via email if it would like to keep its FOIA request open. (Lobdell Decl. Ex. H. at 2). WRLC responded and attached a list of outstanding documents WRLC had not received. (Lobdell Decl. Ex. H. at 1.) NOAA acknowledged WRLC's list on October 16, 2018. (Lobdell Decl. Ex. I at 1.)
WRLC filed this action for declaratory and injunctive relief on July 19, 2019. (Pl.'s Comp., ECF No. 1.) WRLC's complaint alleged that NOAA had not provided any records since the sixth interim release on June 18, 2018. (Pl.'s Comp. ¶ 38.)
On August 8, 2019, the agency's counsel notified WRLC that NOAA had issued a seventh and final response on June 18, 2019. (Lobdell Decl. ¶ 18.) WRLC stated it had not received any written correspondence from NOAA in June or July 2019. (Lobdell Decl. ¶ 18.) The agency provided a link to the records and attached its final response letter because "it appears that the letter was not transmitted to WRLC." (Lobdell Decl. Ex. J at 1.) NOAA's response stated: (Lobdell Decl. Ex. J at 4.) The letter included information about WRLC's right to file an administrative appeal. (Lobdell Decl. Ex. J at 4.)
On May 8, 2020, WRLC and NOAA filed cross motions for summary judgment.
A court grants summary judgment when "the movant shows there is no genuine dispute asto any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). District courts typically resolve FOIA cases on summary judgment. Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016). "When simultaneous cross-motions for summary judgment on the same claim are before the court, the court must consider the appropriate evidentiary material identified and submitted in support of both motions, and in opposition to both motions, before ruling on each of them." Fair Hous. Council of Riverside Cnty., Inc., v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001).
An agency that has withheld records in response to a FOIA request has the burden "to sustain its action." 5 U.S.C. § 552(a)(3)(A). A district court reviews the agency's denial de novo. Id. The district court may enjoin an agency from withholding records or order the release of improperly withheld records. Id. § 552(a)(4)(B). "In utilizing its equitable powers to enforce the provisions of the FOIA, the district court may consider injunctive relief where appropriate." Long v. IRS, 693 F.2d 907, 909 (9th Cir. 1982).
Plaintiffs move for summary judgment on four grounds: (1) NOAA failed to make a timely determination; (2) NOAA failed to promptly produce records; (3) NOAA did not conduct a reasonable search for responsive records; and (4) NOAA provided an inadequate Vaughn index. Defendants move for summary judgment on two grounds: (1) WRLC failed to exhaust administrative...
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