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Southern Appalachian Biodiversity Project v. United States Forest Service

June 26, 2007

SOUTHERN APPALACHIAN BIODIVERSITY PROJECT AND WILD SOUTH, PLAINTIFFS,
v.
UNITED STATES FOREST SERVICE AND DALE BOSWORTH IN HIS OFFICIAL CAPACITY AS CHIEF OF THE U.S. FOREST SERVICE, DEFENDANTS.



The opinion of the court was delivered by: Leon Jordan United States District Judge

MEMORANDUM OPINION

This is an action for judicial review under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to compel the release of records requested by the plaintiffs from defendant United States Forest Service ("USFS").*fn1 Now before the court are defendants' motion for summary judgment [doc. 27] and plaintiffs' cross-motion for summary judgment [doc. 33]. For the reasons that follow, defendants' motion will be granted, plaintiffs' motion will be denied, and this cause will be dismissed.

I. Background

In August 2004, the USFS issued the Walnut Mountain Project Proposal ("WMPP") pertaining to certain land in the Watauga Ranger District of the Cherokee National Forest in Carter County, Tennessee. The WMPP was prepared by an Interdisciplinary Team ("IDT") of Cherokee National Forest employees at the direction of District Ranger Candace Wyman.

The USFS characterized the WMPP as a plan for "enhancing wildlife habitat and restoring natural communities." Conversely, the plaintiff non-profit environmental organizations considered the project to be little more than a commercial timber sale with no meaningful alternatives offered by the agency.*fn2

On September 29, 2004, plaintiffs submitted an FOIA request to the USFS "deal[ing] with discussion (or lack thereof) of viable alternatives . . . that should have been, but were not[,] considered in the Walnut Mountain Project." The request sought, for example, All letters, emails, documents, memos, informal notes, etc., including sidebars and handwritten or typed margin notes, sent to, from, or among any Forest Service staff, including line officers or any other person in the employment of (including contractors, etc.) the US Forest Service directing or related to the discussion of any and all alternatives, or parts of alternatives, that were formally or informally considered for the Walnut Mountain Project, whether the alternative was (or could be in the future) included in the documents provided for public comment or not.

On December 16, 2004, Regional Forester Robert Jacobs issued a "final response" to plaintiffs' request, advising that only 314 pages of the 1,052 page record would be released. Invoking Exemption 5 of the FOIA, the USFS withheld the records that it deemed "draft documents, draft alternatives, and email messages between colleagues containing opinions, internal debates and deliberations."

On January 21, 2005, plaintiffs filed an FOIA appeal with the USFS regarding the partial denial of their request. After numerous follow-up calls and letters by the plaintiffs, the USFS issued a partial response on July 13, 2005, and a final response on November 3, 2005. Regarding the delay, the USFS cites "a substantial backlog of FOIA appeal requests." Additional records were released as a result of plaintiffs' appeal, but approximately 400 pages remain withheld in whole or in part under Exemption 5.

II. Applicable Legal Standards

The FOIA provides for de novo review of an agency's decision to withhold records. 5 U.S.C. § 552(a)(4)(B). 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 the Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). Compelled agency disclosure is, however, subject to nine exemptions set forth at 5 U.S.C. § 552(b). The exemptions are exclusive and are to be narrowly construed. Rose, 425 U.S. at 361.

Exemption 5 provides that the FOIA "does not apply to matters that are inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency[.]" 5 U.S.C. § 552(b)(5). It is the USFS's burden to prove, and not plaintiffs' burden to disprove, that the disputed materials have been properly withheld under Exemption 5. See United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989).

Courts frequently decide FOIA cases through the use of a "Vaughn index." "A Vaughn index is a routine device through which the defendant agency describes the responsive documents withheld or redacted and indicates why the exemptions claimed apply to the withheld material." Jones v. FBI, 41 F.3d 238, 241 (6th Cir. 1994) (citing Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)). Vaughn indices are commonly relied upon because a more detailed description of the withheld material could bring about the very disclosure that the defendant seeks to avoid. Jones, 41 F.3d at 242. In camera review of the disputed documents is unnecessary if the Vaughn index provides adequate detail and justification. Id. at 243. "If the government fairly describes the content of the material withheld and adequately states its grounds for nondisclosure, and if those grounds are reasonable and consistent with the applicable law, the district court should uphold the government's position." Rugiero v. United States Dep't of Justice, 257 F.3d 534, 544 (6th Cir. 2001) (citation omitted).

Agency actions, and Vaughn indices, are typically entitled to a presumption of good faith. Jones, 41 F.3d at 242. Vaughn indices are often accompanied by detailed affidavits through which the agency may further justify its claims of exemption, and such affidavits are also entitled to a presumption of good faith. Rugiero, 257 F.3d at 544. These presumptions may be overcome either where there is evidence of bad faith by the agency in the handling of the FOIA request, or where there is evidence of bad faith in the agency activities that gave rise to the documents at issue. Jones, 41 F.3d at 242.

Even if a document falls within one of the statute's exceptions, the FOIA requires disclosure of "[a]ny reasonably segregable portion" of the record. 5 U.S.C. ยง 552(b). The agency bears the burden of showing that the portions ...


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