Story of Stuff Project v. U.S. Forest Serv., No. 17-00098, 2018 WL 4637357 (D.D.C. Sept. 27, 2018) (Mehta, J.)

Story of Stuff Project v. U.S. Forest Serv., No. 17-00098, 2018 WL 4637357 (D.D.C. Sept. 27, 2018) (Mehta, J.)

Re:  Request for records concerning government's management of company operations in San Bernardino National Forest in California

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Exemption 4:  Regarding plaintiff's public domain argument, "[the submitter's] declaration satisfies the court that much of the information in the 1999 [report released by the California State Water Resources Control Board] is not the same as the information withheld by the Forest Service here pursuant to Exemption 4."  However, the court also finds that, "[i]n light of the agency's failure to clarify [whether the release of some information "render[s] [certain] information from the . . . report as . . . obsolete"] . . . the court denies the parties' cross-motions for summary judgment with regard to Exemption 4."  Regarding the competitive harm at issue, the court finds that "Plaintiffs frame the 'actual competition' that [the submitter] faces too narrowly."  "The inquiry here is not whether disclosure of the withheld information will cause competitive harm to [the submitter] solely as to its ability to obtain a special use permit to draw water from the San Bernardino National Forest, but instead whether disclosure will cause competitive harm to [the submitter] as to 'day-to-day competition' with other businesses offering bottled spring water."  Also, the court finds that "Plaintiffs offer no response to the submitter's] detailed allegations of substantial competitive harm."  "Accordingly, because the Forest Service's explanation is sufficiently detailed to establish a likelihood of substantial competitive harm to NWNA caused by disclosure of the withheld information, the court concludes that the non-disclosed withheld information is 'confidential' within the meaning of Exemption 4."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "the redacted information is properly withheld under Exemption 5."  The court relates that "[t]he withheld information 'reflects the internal comments and discussions between members of the Forest Service interdisciplinary team assigned to that project and predate a final Agency decision on the special use permit renewal project.'"  "According to the Forest Service, disclosure of this information would cause the following harms to its deliberative process."  Specifically regarding plaintiff's argument concerning one withholding, the court finds that "the Forest Service's discussions pertaining to data collection reflect deliberative 'policy judgments' because the Forest Service is engaged in a 'back and forth' as to the best method of accomplishing a particular agency objective."
   
• Exemption 5, Attorney Work-Product Privilege:  "[T]he court grants summary judgment in favor of the Forest Service as to Exemption 5."  The court relates that "[t]he Forest Service relies on the attorney-client privilege to withhold communications between Forest Service staff and government attorneys discussing active or anticipated litigation, 'specifically an appeal of [a district court decision].'"  The court also specifically finds that "[certain] emails in question relay among agency employees confidential advice supplied by the agency's lawyer."  "The emails are therefore properly protected by the attorney-client privilege."
   
• Exemption 6:  "In light of the agency's unsatisfactory explanation, the court denies summary judgment to the Forest Service as to Exemption 6."  "The court, however, also denies summary judgment to Plaintiffs, because Plaintiffs' Exemption 6 argument arose for the first time in their reply brief, thereby denying the Forest Service the opportunity to respond to those arguments and to cure any shortcomings in its affidavits."  "[T]he court cannot accept its conclusory assertions that disclosure of the withheld names would compromise a substantial privacy interest."  "Rather than provide detailed information about why disclosing the withheld names would constitute an invasion of privacy, the Forest Service merely concludes that these individuals have a privacy interest in the nondisclosure of their names."  "Such a conclusory assertion is clearly insufficient to satisfy an agency's burden to invoke Exemption 6."