278 F. Supp. 3d 181
D.D.C.2017Background
- Forest County Potawatomi Community (tribe) submitted ten FOIA requests to DOI components (BIA Central, BIA Midwest Regional Office, and Office of Indian Gaming) seeking records related to the Menominee Tribe’s off‑reservation Kenosha casino application; DOI produced ~22,954 pages but withheld 71 documents under FOIA Exemptions 3, 4, 5, and 6.
- The Menominee sought DOI trust acquisition and a two‑part IGRA determination for a Kenosha site; DOI initially issued a Secretarial Determination favorable to gaming but the Wisconsin Governor later non‑concured, blocking trust acquisition.
- Plaintiff challenged adequacy of the agencies’ searches (including whether records held by contractor AES were agency records and two specific documents attached to the Secretarial Determination), redactions/withholdings under Exemption 4, and alleged a pattern/practice of FOIA delays.
- Court found: (1) agencies’ searches were adequate with respect to AES internal records because DOI lacked control over AES internal files; (2) agencies failed to show adequacy as to two documents (KlasRobinson Final Report and Corn Letter) attached to the Secretarial Determination and must either search/supplement or explain; (3) six documents withheld under Exemption 4 largely were properly withheld as commercial/confidential, except the KlasRobinson Preliminary Report (parts of which Secretarial Determination already disclosed must be released); (4) segregability obligations were met for most challenged documents, but agency must clarify/release segregable portions of KlasRobinson Preliminary Report; (5) plaintiff did not prove a systemic pattern/practice of FOIA violations.
- Relief: Defendants’ summary‑judgment motion granted in part and denied in part; plaintiff’s cross‑motion denied. DOI must either perform additional search or supplement declarations about the two attached documents and produce all reasonably segregable portions of the parts of the KlasRobinson Preliminary Report already disclosed in the Secretarial Determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of search regarding two documents attached to the Secretarial Determination (KlasRobinson Final Report; Corn Letter) | Requests specifically sought attachments; agencies failed to locate/identify them, so search was inadequate | Agencies contend documents were produced in response to another FOIA request and identification of responsive documents later is not proof of inadequate search | Genuine dispute exists; agencies must either perform additional search or supplement declarations showing production or explain why withheld |
| Whether contractor (AES) internal records are agency records subject to FOIA | AES acted as BIA’s project manager and under BIA supervision; its internal records were created on behalf of BIA and should be searched | DOI lacked control over AES internal files, received only deliverables (drafts/final EIS), and cannot compel AES to produce internal documents | AES internal records are not agency records here because DOI lacked control at time of FOIA request; search adequate as to AES files |
| Withholdings under Exemption 4 for six documents (commercial/confidential) | Information is tribal-governmental and not commercial; disclosure unlikely to cause competitive harm given Governor’s non‑concurrence and project setbacks | Documents contain commercial/financial projections and plans; release would harm Menominee’s competitive position in future casino efforts | Exemption 4 applies to five documents; defendants prevail except for KlasRobinson Preliminary Report—portions already disclosed in Secretarial Determination must be released/segregated |
| Segregability and adequacy of redactions | Agencies failed to release reasonably segregable portions (e.g., cover pages, headings) of withheld documents | Agencies assert they released all reasonably segregable non‑exempt material or that redaction would reveal exempt content | Agencies met segregability burden for most challenged documents; must clarify/release segregable content of KlasRobinson Preliminary Report |
Key Cases Cited
- Citizens Exposing Truth About Casinos v. Kempthorne, 492 F.3d 460 (D.C. Cir.) (discusses DOI authority to acquire trust land)
- Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d 508 (D.C. Cir. 1996) (two‑part test for when third‑party records are agency records)
- U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989) (agency control requirement for FOIA agency records)
- Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280 (D.C. Cir. 1983) (Exemption 4 elements: commercial/financial and privileged/confidential)
- DiBacco v. U.S. Army, 795 F.3d 178 (D.C. Cir. 2015) (agency declarations and search adequacy standard)
- Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208 (D.C. Cir. 2013) (agency affidavits must contain reasonably specific detail for FOIA summary judgment)