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American Civil Liberties Union v. Department of Defense

United States District Court, D. Montana, Missoula Division

August 21, 2019



          Donald W. Molloy, District United States District Court Judge.

         The American Civil Liberties Union ("ACLU") brings this action against various federal agencies for violations of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, which requires agencies to disclose requested records unless an enumerated statutory exemption applies. The ACLU submitted a FOIA request for information about federal coordination with local law enforcement in anticipation of protests at the Keystone XL pipeline, which is proposed to traverse Montana, South Dakota, and Nebraska. In this suit, the ACLU alleges the agencies failed to adequately search for records in response to its FOIA request and improperly withheld responsive records that were located. It seeks, among other things, an order requiring the agencies to disclose the requested records. (Doc. 1 at 17.) The parties have filed cross-motions for summary judgment. (Docs. 40, 45.) The motions are each granted in part and denied in part.


         On January 23, 2018, the ACLU submitted a FOIA request to the Federal Bureau of Investigation ("FBI"), Office of Legal Counsel, Department of Homeland Security, Army Corps of Engineers, and Bureau of Land Management ("BLM") for records related to cooperation between federal, state, and local law enforcement entities about preparations for anticipated protests against the Keystone XL pipeline. (Doc. 48 at ¶¶ 1-3, 42; Doc. 54 at ¶¶ 1-2, 13.) Specifically, the request sought all records created since January 27, 2017, concerning

(1) Legal and policy analyses and recommendations related to law enforcement funding for and staffing around oil pipeline protests. Such recommendations may include, but are not limited to, declarations of a state of emergency by state and local entities in order to marshal additional funds, and requests by state or local entities for federal agencies to provide funding or personnel for counter-protest operations; and
(2) Travel of federal employees to speaking engagements, private and public meetings, panels, and conferences on the subject of preparation for oil pipeline protests and/or cooperation with private corporations in furtherance thereof; and
(3) Meeting agendas, pamphlets, and other distributed matter at speaking engagements, private and public meetings, panels, and conferences where federal employees are present to discuss preparation for oil pipeline protests and/or cooperation with private corporations in furtherance thereof; and
(4) Communications between federal employees and state or local law enforcement entities or employees thereof, and between federal employees and private security companies or employees thereof, discussing cooperation in preparation for oil pipeline protests.

         With respect to the Office of the Secretary of Defense, the ACLU seeks the release of all records created since January 27, 2017, concerning:

(5) Purchases, requests for purchase, and requests by state and local law enforcement officials of riot gear, including but not limited to tear gas, concussion grenades, and water cannons, from the U.S. Department of Defense's Law Enforcement Support Office, also known as the 1033 program.

(Doc. 48 at ¶¶ 5, 42; Doc. 35-1 at 6.) On April 2, 2018, the ACLU sent another substantially similar request to the FBI. (Doc. 48 at ¶ 59; Doc. 32-1.)

         The ACLU initially challenged each agency's response to its FOIA request. It has since abandoned its claims against all but the Army Corps, BLM, and the FBI. (Doc. 45 at 2; Doc. 46 at 17 n.10.) Accordingly, only those agencies' responses are described below.

         The Army Corps initially identified twelve pages of responsive emails. (Doc. 48 at¶ 12; Doc. 54 at¶ 3.) On July 17, 2018, it disclosed seven of the twelve pages. (Doc. 48 at¶¶ 10, 12, 17; Doc. 54 at¶ 3.) It withheld five pages under FOIA Exemptions 5, 6, and 7(A). (Doc. 48 at ¶¶ 12, 37; Doc. 54 at ¶¶ 3, 12.) On March 29, 2019, BLM located four responsive documents, totaling thirteen pages, that originated with the Army Corps. (Doc. 48 at ¶ 33; Doc. 54 at ¶ 8.) The Army Corps disclosed two of those documents in full and two with redactions pursuant to Exemptions 5 and 6. (Doc. 48 at ¶ 33.) In total, the Army Corps disclosed twenty pages of redacted records and withheld five pages. (Doc. 54 at ¶ 9.)

         BLM identified 184 pages of responsive records. (Doc. 48 at¶ 50; Doc. 54 at¶ 16.) It withheld sixteen documents under Exemptions 4, 5, 6, and 7(C). (Doc. 48 at ¶¶ 52-58; Doc. 54 at ¶ 18.) However, BLM disclosed segregable factual material from the documents withheld under Exemption 5. (Doc. 48 at ¶ 57.) It is unclear how many of the 184 pages were ultimately disclosed, either in full or redacted form.

         On April 6, 2018, the FBI informed the ACLU that "unusual circumstances" applied to the FOIA request, which would result in delayed processing. (Doc. 48 at ¶ 61; Doc. 54 at ¶ 21.) On January 9, 2019, the FBI provided a Glomar response, meaning it refused to confirm or deny the existence or nonexistence of responsive records. (Doc. 48 at ¶ 67; Doc. 54 at ¶ 23; Doc. 32-5.)

         The ACLU filed this suit on September 4, 2018, alleging various FOIA violations by seven different agencies. (Doc. 1.) It has since narrowed its claims. The issues that remain are (1) whether the Army Corps failed to conduct an adequate search for records in response to the ACLU's FOIA request, [1] (2) whether the Army Corps and BLM properly invoked Exemptions 5 and 7(A) to redact and withhold certain records, and (3) whether the FBI's Glomar response was proper. Pursuant to this Court's September 10, 2018 Order, (Doc. 7), the agencies filed Vaughn indices, [2] (Docs. 21-1, 30-1, 31-1, 53), identifying the documents withheld, the FOIA exemptions claimed, and why each document falls within the claimed exemption. See Wiener v. FBI, 943 F.2d 972, 977 (9th Cir. 1992). The agencies have also filed declarations describing their searches. (Docs. 21, 30, 36 (Army Corps); Docs. 31, 51 (BLM); Doc. 32 (FBI).) On May 1, 2019, the agencies moved for summary judgment. (Doc. 40.) The ACLU filed a cross-motion for summary judgment on May 22, 2019. (Doc. 45.)

         Legal Standard

         Summary judgment is proper where "the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Most FOIA cases are resolved at summary judgment because the facts are rarely in dispute. See Animal Legal Def. Fund v. Food & Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016) (en banc) (per curiam).


         FOIA "was enacted to facilitate public access to Government documents." Dep't of State v. Ray, 502 U.S. 164, 173 (1991). It requires government agencies to make records "promptly available to any person" upon request. 5 U.S.C. § 552(a)(3)(A). An agency may avoid disclosure only if it proves that the requested documents fall within one of nine enumerated exemptions. See 5 U.S.C. § 552(b)(1)-(9); see also Lane v. Dep't of Interior, 523 F.3d 1128, 1137 (9th Cir. 2008). In limited circumstances, "a government agency may issue a 'Glomar Response,' that is, refuse to confirm or deny the existence of certain records, if the FOIA exemption would itself preclude the acknowledgment of such documents." Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996) (italics added). Here, the ACLU alleges (1) the Army Corps failed to conduct an adequate search for responsive records, (2) the Army Corps and BLM improperly relied on Exemptions 5 and 7(A) to withhold and redact certain records, and (3) the FBI's Glomar response was unjustified.

         I. Adequacy of the Army Corps' search

         Agencies responding to a FOIA request must perform "a search reasonably calculated to uncover all relevant documents." Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985) (internal quotation marks omitted). "An agency may prove the reasonableness of its search through affidavits from responsible agency officials, as long as such affidavits are relatively detailed, nonconclusory, and submitted in good faith." Pollack v. U.S. Bureau of Prisons, 879 F.2d 406, 409 (9th Cir. 1989). "[T]he issue is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate" Hamdan v. Dep't of Justice, 797 F.3d 759, 770-71 (9th Cir. 2015) (internal quotation marks omitted). "[T]he failure to produce or identify a few isolated documents cannot by itself prove the searches inadequate." Id. (internal quotation marks omitted) (alteration in original). However, "if a review of the record raises substantial doubt, particularly in view of well-defined requests and positive indications of overlooked materials, summary judgment is inappropriate." Id. (internal quotation marks omitted). When evaluating an agency's search, the facts are construed in the light most favorable to the requestor. Citizens Comm 'n on Human Rights v. Food & Drug Admin., 45 F.3d 1325, 1328 (9th Cir. 1995).

         Here, the Army Corps' declarations are not detailed enough to establish the search's reasonableness. Further, the FOIA record confirms the Army Corps' search was inadequate as a matter of law.

         A. Army Corps' affidavits

         The Army Corps relies on three declarations from its FOIA Officer Michelle Bartlett to establish that its search was adequate. (Docs. 21, 30, 36.) According to Bartlett, the Army Corps began its search by having David Paravecchia, [3] the Chief of the Operational Protection Division, determine who would likely have responsive information. (Doc. 30 at ¶ 7.) Paravecchia concluded his office, which is responsible for security of the Army Corps' infrastructure, would be the primary source of responsive records. (Id.; Doc. 36 at ¶ 2.) As Chief, he would have received or been aware of all potential security concerns involving Army Corps infrastructure. (Doc. 36 at ¶ 2.) Accordingly, he searched his email and computer files. (Id.) Paravecchia also determined Steve Kopeclcy, the Deputy for the Civil Works Directorate, which manages the Army Corps' infrastructure, might have responsive information. (Doc. 30 at ¶ 7; Doc. 36 at ¶ 2.) Kopecky searched the Civil Works Directorate's email and meeting notes using the search terms "Keystone," "Security," "Law enforcement," and "Consultation." (Doc. 36 at ¶ 2.)

         As discussed above, the Army Corps located twelve pages of responsive emails. (Doc. 48 at ¶ 12; Doc. 54 at ¶ 3.) BLM subsequently located thirteen pages of responsive documents that had originated with the Army Corps. (Doc. 48 at ¶ 33; Doc. 54 at ¶ 8.)

         Bartlett's declarations are insufficient to establish the adequacy of the Army Corps' search. Her Second Supplemental Declaration, (Doc. 36), the last of the three she submitted, is the most detailed. Even so, it lacks the information necessary to evaluate the search. The declaration provides no information on Paravecchia's search methodology, such as the search terms he employed. Nor does it explain how Paravecchia organizes and manages the records he searched- his own emails and computer files. Paravecchia's determination that as Chief he would have access to all responsive records within his department is taken in good faith. See Ray, 502 U.S. at 179. But the declaration merely states that Paravecchia "searched his email and computer files and confirmed they did not contain any responsive documents beyond those produced. All documents are preserved through his email vault and/or electronic files." (Doc. 36 at ¶ 2.) Without more, whether Paravecchia searched for the relevant records in the appropriate place, even among his own files, cannot be determined.

         Further, though Bartlett's declaration lists the search terms Kopecky used, (see id), it does not explain how the Civil Works Directorate organizes the emails and meeting notes he searched. Nor does it describe whose email and notes he reviewed. Unlike with Paravecchia, nothing suggests Kopecky's own files would contain all the Directorate's potentially responsive records. But it is impossible to tell from the declaration whether Kopecky searched only his own files or whether he searched the entire Directorate's files. Without providing even a cursory explanation of Paravecchia's search measures, the scope of Kopecky's search, or its filing and email procedures, the Army Corps cannot meet its burden to prove its search was adequate.

         B. FOIA record

         Summary judgment for the ACLU on the adequacy of the search is warranted based solely on the Army Corps' insufficient declarations. But the record also makes clear the Army Corps' search was inadequate. For example, BLM identified records the Army Corps failed to locate, indicating the Army Corps' search was incomplete. (Doc. 48 at ¶ 33.) Specifically, BLM identified the Army Corps' communication plan for the Keystone XL pipeline, (Doc. 35-1 at 56-62), and three emails about the plan from Army Corps personnel, (id. at 63-68).

         The Army Corps argues these documents were nonresponsive because they pertain to communication and environmental permitting, not security or protests. (Doc 42 at 17; Doc. 55 at 11.) This position is belied by the Army Corps' decision to disclose the documents, as well as the documents' explicit reference to potential protests. For example, under the heading "Threats," the communication plan states that "Protests may be staged on Federal lands, including Corps-managed land at Fort Peck," (Doc. 35-1 at 58), and one of the emails explains, "There's [sic] no current protests planned and most likely won't happen until there's a definite physical place where protests can happen," (id. at 64).

         The Army Corps next argues that failing to identify some relevant material does not render its search inadequate. The Army Corps is correct that the inquiry is whether the search as a whole was reasonable, not whether the search uncovered individual documents. See Hamdan, 797 F.3d at 771. But the issue here is not that the Army Corps missed four responsive documents; it is that those documents reveal inadequacies in the Army Corps' search. Specifically, the documents repeatedly reference Army Corps personnel in Omaha, indicating the Army Corps should have searched for responsive records in its Omaha office, rather than limiting its search to its Washington, DC headquarters. (See Doc. 36 at ¶ 2.) For example, the communication plan lists Captain Ryan Hignight of the Omaha District as the Army Corps' contact for the Keystone XL pipeline. (Doc. 35-1 at 56.) Further, the emails about the communication plan, dated April 24, June 12, and September 8, 2017, include Hignight and Thomas O'hara, also of the Omaha District. (Id. ...

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