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Southern Environmental Law Center v. Bernhardt

United States District Court, W.D. Virginia, Charlottesville Division

January 9, 2020

DAVID BERNHARDT, et al., Defendants.



         Southern Environmental Law Center (“SELC”) filed this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against David Bernhardt, in his official capacity as Acting Secretary of the Department of the Interior (“DOI”); Daniel Smith, in his official capacity as Deputy Director of the National Park Service (“NPS”), an agency within DOI; and Daniel Jorjani, in his official capacity as Principal Deputy Solicitor of the Office of the Solicitor, an agency within DOI (collectively, the “DOI Defendants”). The case is presently before the court on the DOI Defendants' partial motion to dismiss for lack of subject-matter jurisdiction, in which the DOI Defendants argue that SELC does not have standing to pursue the policy-or-practice claim asserted in Count II of the complaint. For the reasons set forth below, the motion will be denied without prejudice.


         I. SELC's FOIA Request

         SELC is a nonprofit public interest law firm that focuses on environmental issues affecting six southeastern states. Compl. ¶ 9, Dkt. No. 1. “As part of its mission, SELC regularly submits FOIA requests to agencies within the Department of the Interior, including the NPS.” Id. ¶ 12.

         On December 14, 2017, SELC sent NPS a FOIA request seeking “records . . . related to the crossing of the Blue Ridge Parkway or Appalachian National Scenic Trail by the Atlantic Coast Pipeline.” Compl. Ex. 1, Dkt. No. 1-2. NPS did not respond to the FOIA request within twenty days, as required by statute. See 5 U.S.C. § 552(a)(6)(A)(i). Consequently, on January 9, 2018, SELC requested an update on the status of the FOIA request and offered to clarify the scope of the request. Compl. ¶ 39. However, “NPS did not respond.” Id.

         Approximately seven weeks later, on February 28, 2018, NPS acknowledged receipt of the FOIA request and produced two documents, namely, the final permits issued for the Atlantic Coast Pipeline. Id. ¶ 40. In its February 28, 2018 communication, NPS also sought additional clarification regarding the FOIA request, noting that more than 90 NPS staff members in more than six offices would potentially possess responsive records. Id. ¶ 41. In response, SELC clarified the categories of documents sought and attempted to narrow the scope of the request. Id. ¶ 42. SELC also offered to narrow the scope of the request even further if NPS would describe the categories of responsive records. Id.

         On April 4, 2018, NPS advised SELC that “agency staff were ‘working on preparing a list . . . of materials or categories.'” Id. ¶ 43. Seven weeks later, on May 23, 2018, SELC contacted NPS and requested an update on the FOIA request. Id. ¶ 44. NPS replied that it was working on an advanced search query for email searches and that NPS would keep SELC posted on the status. Id.

         On July 9, 2018, nearly seven months after the FOIA request was initially submitted, SELC contacted NPS again and requested an estimated date of completion. Id. ¶ 45. That communication went unanswered. Id. As of February 21, 2019, when the instant action was filed, SELC had received no further communication regarding the FOIA request. Id. ¶ 61.

         II. Policies or Practices Allegedly Affecting SELC's FOIA Request

         SELC alleges that the DOI Defendants have unlawfully delayed responding to the pending FOIA request, and that the delay was caused, at least in part, by policies and practices expressed in certain memoranda. Specifically, SELC cites to policies and practices associated with an “Awareness Process Memorandum” issued by DOI on May 24, 2018, a “Deliberative Process Memorandum” issued to the Fish and Wildlife Service (“FWS”) on September 6, 2018, and a “Foreseeable Harm Memorandum” issued by DOI on December 29, 2017 (collectively, the “Memoranda”). Compl. ¶¶ 46-59.

         The Awareness Process Memorandum requires FOIA personnel to “search responsive emails and attachments to emails for the names and email addresses of current [DOI] employees who are Presidentially Appointed, Senate Confirmed (PAS), Non-Career Senior Executive (NCSE), and/or Schedule C employees.” Awareness Process Mem. 2, Dkt. No. 1-4. If such information is located, FOIA personnel must “notify each PAS, NCSE, and/or Schedule C employee identified in responsive emails and provide him/her access to the full set of responsive records.” Id. at 3. FOIA personnel must also “simultaneously identify a [Solicitor's Office] attorney.” Id. The identified employee and the attorney “have up to 72 hours to review the responsive records.” Id. Additional time may be provided upon request. Id.

         The Deliberative Process Memorandum issued to FWS includes “recommendations and considerations for when withholding records as deliberative under FOIA Exemption 5 (5 U.S.C. [§] 552(b)(5)) may be appropriate.” Deliberate Process Mem. 1, Dkt. No. 1-6. The memorandum indicates that it “is intended to raise awareness of the need to process FOIA requests in a manner most likely to preserve the consistency of information released under FOIA with information that could be subsequently included in an [administrative record] pursuant to Administrative Procedure Act (APA) litigation involving FWS decisions.” Id. According to the memorandum, FWS previously released documents in response to FOIA requests “without undertaking a discerning review for deliberative materials.” Id. at 2. The memorandum emphasizes that “FWS personnel should carefully review responsive documents for deliberative process applicability” in order to “protect[] [agency] decisions in the FOIA context” and “in APA litigation.” Id. at 4. The memorandum goes on to describe “[c]ategories of information and documents that should be considered for withholding in full or in part under Exemption 5's deliberative process privilege.” Id. at 5.

         The Foreseeable Harm Memorandum, which is incorporated by reference in the Deliberative Process Memorandum, creates an additional layer of review before certain documents may be released in response to a FOIA request. Specifically, the memorandum states that if a FOIA officer “plan[s] to release a record (or portion of it) covered by an exemption because [the officer] decide[s] no foreseeable harm would result from the disclosure, ” the officer must “seek additional ...

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