Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FOREST COUNTY POTAWATOMI
COMMUNITY,
Plaintiff, Civil Action No. 14-2201 (BAH) v. Chief Judge Beryl A. Howell RYAN ZINKE, Secretary, United States
Department of the Interior, et al. ,
Defendants. MEMORANDUM OPINION
The plaintiff, Forest County Potawatomi Community, a federally recognized Native American tribe located in Crandon, Wisconsin, filed ten requests, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for information relating to a competitor tribe’s unsuccessful application to open a gaming establishment. Pl.’s Statement of Undisputed Material Facts & Resps. to Defs.’ Statement of Undisputed Material Facts (“Pl.’s SUMF”) ¶¶ 19, 37–118, ECF No. 49-2. The FOIA requests were submitted to three components of the U.S. Department of the Interior (“DOI”)—the Bureau of Indian Affairs’ (“BIA”) Central Office (“BIA-Central”) and Midwest Regional Office (“MWRO”), and Office of Indian Gaming (“OIG”). Id. [1] The gaming application died, but the FOIA requests live on. In response to the plaintiff’s requests, DOI released over 22,954 pages of information. ¶ 139. Dissatisfied, the *2 plaintiff sued the defendants to compel disclosure of nine documents withheld in full or part and to challenge the adequacy of the agencies’ search procedures. Pending before this Court are the parties’ cross-motions for summary judgment. See generally Defs.’ Mot. Summ. J. (“Defs.’ MSJ”), ECF No. 44; Pl.’s Cross-Mot. Summ. J., ECF No. 49. The defendants’ motion is granted in part and denied in part, and the plaintiff’s motion is denied.
I. BACKGROUND
Contextual background for the FOIA requests at issue is helpful in understanding the scope and timing of the requests, and the agencies’ rationale for the searches conducted and withholdings. Consequently, the statutory framework for, and participation in, commercial gaming activities of both the plaintiff and the Menominee Indian Tribe of Wisconsin (“Menominee”) are briefly reviewed before turning to the legal challenges to the defendants’ responses to plaintiff’s FOIA requests.
A. Overview of Statutory Framework Governing Indian Gaming
The records sought in this action concern the Menominee’s application to engage in
gaming operations on land approximately 35 miles from the plaintiff’s gaming facility in
Wisconsin.
[2]
Under the Indian Reorganization Act (“IRA”), the Secretary of DOI “is authorized,
in his discretion, to acquire . . . any interest in lands, water rights, or surface rights to lands . . .
for the purpose of providing land for Indians.” 25 U.S.C. § 5108;
see also Citizens Exposing
Truth About Casinos v. Kempthorne
,
In practice, the Secretary makes this two-part determination after a tribe submits an application for a gaming exemption to the applicable BIA Regional Office, which develops and sends a recommendation to OIG. Pl.’s SUMF ¶ 2. OIG then conducts its own review and prepares a draft two-part determination for consideration and final decision by the Assistant Secretary for Indian Affairs. Id.
B. The Menominee’s Gaming Application
In 2004, the Menominee “filed an off-reservation gaming acquisition application with [MWRO] requesting that the Secretary acquire in trust approximately 228 acres of land” in Kenosha, Wisconsin for gaming purposes. Id. ¶¶ 8, 15. “The site of the proposed casino is located approximately 190 miles from the Menominee’s gaming facility in Northern Wisconsin,” and the “Menominee’s existing gaming facility is located approximately 160 miles north of the [plaintiff’s] casino in Milwaukee, [Wisconsin].” ¶ 26. MWRO entered into a three-party *4 agreement (“TPA”) with a third party contractor, Analytical Environmental Services (“AES”), and the Menominee to undertake preparation of Environmental Impact Statements (“EISs”) required by the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. , as part of the Menominee’s gaming application. Decl. of Scott Doig (“First MWRO Decl.”) ¶¶ 6, 9, 11, 16, ECF No. 45-1. AES was responsible “only for the delivery of draft and final EIS documents.” Id. ¶ 16.
The Secretary denied the Menominee’s application to acquire the land in trust on January 7, 2009. Pl.’s SUMF ¶ 29. Thereafter, the Menominee sued DOI challenging the denial, which lawsuit was resolved in 2011 with an agreement that DOI would withdraw its denial letter and reconsider the Menominee’s application.
Following further review, DOI conveyed to the Governor of Wisconsin, on August 23, 2013, a Secretarial Determination, ECF No. 49-25, that gaming at the Kenosha location would be in the Menominee’s best interest and not detrimental to the surrounding community. See id . ¶ 14. On January 23, 2015, the Governor conveyed to the Secretary his non-concurrence with DOI’s determination, prompting DOI to recognize formally, on June 1, 2015, that the Kenosha site could not be acquired in trust. Id . ¶ 124.
C. The Plaintiff’s FOIA Requests
As this process unfolded, the plaintiff filed ten FOIA requests for documents concerning the Menominee’s gaming application with BIA-Central, MWRO, and OIG. Pl.’s SUMF ¶¶ 37– 118. These requests sought “to obtain the Supplemental Information submitted by Menominee or its third party contractor, Analytical Environmental Services (‘AES’), regarding the Kenosha Casino Application” in order to “provide meaningful comments on the Kenosha Casino Application . . . by the comment deadlines.” Pl.’s Cross-Mot. Summ. J., Ex. 3, Decl. of April E. *5 Olson (“Plaintiff Decl.”) ¶ 4, ECF No. 49-3. In response to this multiple FOIA requests, the defendants produced 22,954 pages of documents. Pl.’s’ SUMF ¶¶ 18, 139. Despite the volume of this production, the plaintiff filed the instant suit challenging both the adequacy of the search and the withholdings. ¶ 126.
The defendants withheld 71 documents, pursuant to FOIA Exemptions 3, 4, 5, and 6, for reasons set out in a Vaughn Index. See Vaughn Index, ECF No. 45-2. [3] The plaintiff does not contest the defendants’ withholdings under Exemptions 3, 5, and 6, except as to segregable portions of such documents. Pl.’s Mem. Supp. Cross-Mot. Summ. J. & Resp. Defs.’ Mot. Summ. J. (“Pl.’s Mem.”) at 5 & n.2, 7, 24–25, ECF No. 49-1; Pl.’s Reply Supp. Cross-Mot. Summ. J. (“Pl.’s Reply”) at 1, 15–16, ECF No. 60. At issue, then, are the plaintiff’s challenges to withholdings under Exemption 4 and the adequacy of the defendants’ searches for responsive documents. The plaintiff raises the following five grounds for relief, claiming the defendants: (1) improperly withheld six documents under Exemption 4, Pl.’s Mem. at 1; (2) failed to produce or identify in their Vaughn Index two documents that the plaintiff “knows to be in [d]efendants’ possession,” id .; [4] (2) failed to release reasonably segregable information from documents withheld in their entirety, id . at 7; (3) failed to search AES’s computer networks for responsive documents, id . at 1; and (4) engaged in a pattern and practice of violating FOIA, id . at 2.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
*6
entitled to judgment as a matter of law.” F ED . R. C IV . P. 56(a). “In FOIA cases, ‘summary
judgment may be granted on the basis of agency affidavits if they contain reasonable specificity
of detail rather than merely conclusory statements, and if they are not called into question by
contradictory evidence in the record or by evidence of agency bad faith.’”
Judicial Watch, Inc.
v. U.S. Secret Serv.
,
The FOIA was enacted “to promote the ‘broad disclosure of Government records’ by
generally requiring federal agencies to make their records available to the public on
request.”
DiBacco v. U.S. Army
,
In litigation challenging the sufficiency of “the release of information under the FOIA,
‘the agency has the burden of showing that requested information comes within a FOIA
exemption.’”
Pub. Citizen Health Research Grp. v. Food & Drug Admin.
,
An agency may carry its burden of showing an exemption was properly invoked by
submitting sufficiently detailed affidavits or declarations, a
Vaughn
index of the withheld
documents, or both, to demonstrate that the government has analyzed carefully any material
withheld and provided sufficient information as to the applicability of an exemption to enable the
adversary system to operate.
See Judicial Watch, Inc. v. U.S. Secret Serv.
,
The FOIA provides federal courts with the power to “enjoin the agency from withholding
agency records and to order the production of any agency records improperly withheld from the
complainant.” 5 U.S.C. § 552(a)(4)(B). District courts must “determine
de novo
whether non-
disclosure was permissible,”
Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec.
, 777 F.3d
518, 522 (D.C. Cir. 2015), by reviewing the
Vaughn
index and any supporting declarations “to
*9
verify the validity of each claimed exemption.”
Summers v. U.S. Dep’t of Justice
, 140 F.3d
1077, 1080 (D.C. Cir. 1998). In addition, the court has an “affirmative duty” to consider whether
the agency has produced all segregable, non-exempt information.
Elliott v. U.S. Dep’t of
Agric.
,
III. DISCUSSION
The plaintiff challenges the sufficiency of the defendants’ responses to the ten FOIA requests at issue, raising issues as to the adequacy of the search, explanations for withholdings, and delays in responding. Specifically, whether the defendants conducted an adequate search turns on whether (1) their failure to search records held by AES was improper and (2) their search’s failure to turn up two documents the plaintiff knew to exist means it necessarily was inadequate. These issues are addressed first, before turning to whether the defendants (3) improperly withheld or redacted five documents under Exemption 4, (4) failed to disclose all *10 reasonably segregable portions of three documents that they withheld in full, and (5) engaged in a policy or practice of violating FOIA.
A. The Adequacy of DOI’s Search
The plaintiff complains that the defendants’ search was inadequate because the search (1) failed to locate two documents the plaintiff knew to exist because the documents were attached to the Secretarial Determination, and (2) did not include documents held by defendants’ contractor AES. See Pl.’s Reply at 11−14, 17−19 . These issues are addressed following review of the applicable legal standard. For the reasons that follow, the defendants have met their burden to show that the search was adequate as to the AES records, but they must either perform an additional search for responsive documents or provide a supplemental Vaughn Index or declaration explaining the withholdings of the two documents attached to the Secretarial Determination.
1. Failure to Locate Documents The plaintiff asserts that the defendants’ search was unreasonable or inadequate because the defendants did not produce or identify in response to FOIA Requests Nos. 6, 9, and 10, two documents attached to the Secretarial Decision, namely: the KlasRobinson Final Report (Feb. 12, 2012) and a letter, dated June 19, 2013, from Craig Corn, Chairman, Menominee Indian Tribe of Wisconsin, to Troy Woodward, Office of Indian Gaming, with supporting exhibits (“ Corn Letter ”). [5] See Pl.’s Mem. at 23 − 24; Pl.’s Reply, at 13 & n.12; Pl.’s SUMF ¶ 117. *11 According to the plaintiff, these documents were “specifically requested” in Request No. 10, which sought “ [a]ll records listed in the . . . Attachment List to the [Secretarial] Determination ,” Pl.’s Reply at 14 (emphasis in original); Pl.’s SUMF ¶ 117, and, consequently, the defendants should be required “to perform an additional search to locate and disclose these missing records,” and to produce both documents and/or identify withholdings in their Vaughn Index, Pl.’s Mem. at 24 ; Pl.’s Reply at 13−14.
The defendants assert the “well-settled” principle that “the identification of potentially
responsive documents that were not identified in response to a request is not proof of an
unreasonable or inadequate search.” Def.’s Opp’n Pl.’s Cross-Mot. Summ. J. & Reply Supp.
Def.’s Mot. Summ J. (“Defs.’ Reply”) at 8, ECF No. 59 (citing
DiBacco
, 795 F.3d at 191−92;
SafeCard Services, Inc. v. SEC
,
This dispute raises a genuine issue of material fact as to the adequacy of the defendants’ search, requiring denial of both the defendants and plaintiff’s motions for summary judgment. The defendants’ suggestion that this issue is “moot” is predicated on their assumption that the *12 two documents, the KlasRobinson Final Report and Corn Letter , were actually produced, but the defendants have not shown that such production occurred.
Nevertheless, the defendants assert that “BIA has met the reasonableness standard in
conducting its search for records concerning the Menominee Indian Tribe’s Kenosha Casino
application and various documents required as a part of the gaming application process,” and cite
to declarations detailing their process of searching for records responsive to the plaintiff’s FOIA
requests. Defs.’ Mem. at 6;
see generally
First MWRO Decl.; Defs.’ Mot., Ex. 2, Decl. of
Michelle R. Corbine, MWRO’s FOIA Coordinator (“Second MWRO Decl.”), ECF No. 44-2;
id
.,
Ex. 4, Decl. of Kayla Danks, MWRO’s Realty Officer (“Third MWRO Decl.”), ECF No. 44-4;
id
., Ex. 3, Decl. of OIG Director Paula Hart (“DOI OIG Decl.”), ECF No. 44-3. An agency is not
entitled to summary judgment, however, if “a review of the record raises substantial doubt,
particularly in view of ‘well defined requests and positive indications of overlooked materials.’”
Iturralde v. Comptroller of Currency
,
In this case, the plaintiff submitted a “well defined” request for all records attached to the
Secretarial Determination.
See
Pl.’s SUMF ¶ 117;
Valencia-Lucena
,
2. Records Held by Contractor AES The parties also dispute whether AES internal records are “agency records” for the purpose of FOIA’s disclosure requirements. See Pl.’s Mem. at 34; Defs.’ Reply at 9. The plaintiff seeks an order requiring the defendants to conduct a search for records responsive to Request No. 7, of internal AES records as “likely includ[ing] information and analysis relating to AES’s preparation of” records and documents ultimately provided to the BIA. Pl.’s Mem. at 25−26 . [7]
The defendants argue that the MWRO “conducted a reasonable search for AES files” by “provid[ing] emails between its employees and AES, as those emails were incorporated into the agency’s files, but did not conduct a search of AES’s internal files because those files do not *14 meet the standard for agency records.” Defs.’ Mem. at 8; First MRWO Decl. ¶¶ 17 − 24. The defendants aver that “they lack the authority to command [AES] to retain or dispose of AES’s records,” and that because the plaintiff “cannot point to a specific document custody arrangement between AES and Defendants, it is reasonable that potentially responsive documents may remain solely within AES’s custody and control, meaning [d]efendants’ search was adequate and [d]efendants are entitled to summary judgment.” Defs.’ Reply at 9.
Records held by third-party contractors may under certain circumstances be “agency
records.” This inquiry does not turn on who created the document or where the document is
currently located. Rather, to qualify as “agency records,” requested documents must satisfy two
requirements: the agency must (1) “either create or obtain the requested materials” and (2) “be in
control of [them] at the time the FOIA request is made.”
Burka v. U.S. Dep’t of Health &
Human Servs.
,
a) Creating or Obtaining Requested Materials
An agency “created or obtained” records possessed by third-party firms when “the
extensive supervision and control exercised by the agency over collection and analysis of the
data indicates that these [third-party] firms acted on behalf of [the agency] in creating the
[records].”
Burka
,
The plaintiff’s points are well taken. AES “acted on [BIA’s] behalf” in serving as project
manager, TPA Exhibit § 5.0, meaning that any internal documents created by AES in the course
of serving as project manager were made on BIA’s behalf as well. BIA thus exercised
“extensive supervision and control” over AES’s “collection and analysis of the data.”
Burka
, 87
F.3d at 515. As such, the defendants “created or obtained” AES’s internal records for purposes
of FOIA’s disclosure rules even though these records “were neither created by agency
employees, nor [we]re they currently located on agency property.” That the defendants did
not understand AES’s internal records to be agency records,
see
Second MWRO Decl. ¶ 117, is
immaterial—the objective nature of an agency-third party relationship, not the agency’s
*16
subjective understanding of a document’s status, controls whether an agency “created or
obtained” the document.
See Burka
,
b) Agency control of the AES internal documents at the time the FOIA request was made
A document that an agency “created or obtained” is not an “agency record” within
FOIA’s meaning if the agency lacked “control of [them] at the time the FOIA request [wa]s
made.”
Id.
(quoting
Tax Analysts
,
(1) the intent of the document’s creator to retain or relinquish control over the records; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency’s record system or files.
Judicial Watch, Inc. v. Fed. Hous. Fin. Agency
,
The first factor, “the intent of the document’s creator to retain or relinquish control over
the records,” weighs in a requester’s favor when a third-party firm transfers documents to an
agency “with full knowledge that the agency might use them.”
Judicial Watch, Inc.
, 646 F.3d at
926–27 (quoting
Burka
,
As to the second factor, “the ability of the agency to use and dispose of the record as it
sees fit,”
Judicial Watch, Inc.
,
Notwithstanding the legitimate concerns implicated by the plaintiff’s arguments, the
second factor weighs against the plaintiff’s assertion that internal AES documents were “agency
records.” Here, the defendants lacked the ability to use or dispose of internal AES documents as
they saw fit.
See
First MRWO Decl. ¶ 19–20 (asserting that BIA “cannot use the documents” or
“require AES to dispose of the documents”). AES’s submission of some documents to BIA does
not show that the defendants could use or dispose of different, internal AES documents as they
saw fit. The TPA allowed BIA to provide technical direction, review, and quality control with
respect only to “the Scoping Report, EIS, technical studies, and other NEPA-related documents,”
not all internal AES documents related to the casino project. TPA Exhibit § 5.0. Likewise, the
TPA allowed BIA to review “for accuracy, completeness, compliance with required standards,
and responsiveness to the requirements of this agreement” only “[w]ork in progress, deliverables,
and finished products,” not all internal AES documents related to the project.
Id.
§ 7.0.
Moreover, even if the defendants could have demanded access to AES’s internal documents, this
would not make such internal documents subject to FOIA. “[D]ocuments an agency had the
*19
right to acquire [do] not become agency records subject to FOIA ‘unless and until the right is
exercised.’”
Judicial Watch, Inc.
,
As to the third factor, “the extent to which agency personnel have read or relied upon the
document,”
id.
at 927 (quoting
Burka
,
As to the fourth factor, “the degree to which the document was integrated into the
agency’s record system or files,”
Judicial Watch, Inc.
,
For these reasons, the defendants lacked control of internal AES records at the time of the FOIA requests. Accordingly, the plaintiff’s challenge to the adequacy of the defendants’ search on this basis fails.
B. Documents Withheld Under Exemption 4
The plaintiff challenges the defendants’ withholding, under Exemption 4, of the
following six documents: (1)
KlasRobinson Preliminary Report
(Feb. 9, 2012) (
Vaughn
Index Rows 28, 30, 39, 63); (2)
Memorandum of Agreement
(
Vaughn
Index Rows 27, 37); (3)
Menominee Report on Impact of Kenosha
(
Vaughn
Index Rows 17, 22, 29, 38); (4)
Use of
Funding Data
(
Vaughn
Index Row 14); (5)
Interim Report—LaFollette School of Public Affairs
(
Vaughn
Index Row 18); and (6)
KlasRobinson Rebuttal Report
(
Vaughn
Index Row 63).
[9]
Pl.’s
Mem. at 33. Exemption 4 exempts from disclosure “trade secrets and commercial or financial
information obtained from a person” that is “privileged or confidential.” 5 U.S.C. § 552(b)(4).
Where withheld records do not contain trade secrets, an agency must establish that the records
are “(1) commercial or financial, (2) obtained from a person, and (3) privileged or confidential”
to sustain the burden of showing that Exemption 4 was properly applied.
Pub. Citizen Health
*21
Research Grp. v. FDA
,
1. Whether The Withheld Documents Are “Commercial”
FOIA does not define the term “commercial” used in Exemption 4 and, thus, the D.C.
Circuit has instructed that “the term[] ‘commercial’ . . . in this exemption should be given [its]
ordinary meaning[].”
Pub. Citizen Health Research Grp.
,
The defendants have met their burden of showing that the six documents withheld under Exemption 4 contain commercial or financial information. Gaming, as a general matter, is “commercial . . . by its nature,” particularly in connection with establishing a casino as a “commercial enterprise.” Nat’l Ass’n of Home Builders , 309 F.3d at 39. Moreover, information relating to this project is commercial “in its function,” as the Menominee have “a commercial interest at stake in its disclosure.” Id . This conclusion is fully supported by the declarations submitted by the defendants describing the commercial or financial information contained in each of the six disputed documents. The KlasRobinson Preliminary Report contains “projected revenues of a gaming facility,” as well as “information regarding: traffic patterns in and around the proposed Kenosha Facility, demographic and population statistics related to persons living within various distances from the proposed Kenosha Facility,” which is pertinent to evaluating potential revenue streams,” and the “description of gaming facilities, projected size and phasing of the Kenosha Facility, and projected breakdown of revenue and expenses of the Kenosha Facility.” Defs.’ Opp’n. Pl.’s Cross-Mot. Summ. J., Ex. 2, Decl. of Joan R. Delabreau, Chairperson of the Menominee Tribal Legislature ¶¶ 7–8 (“Menominee Decl.”), ECF No. 58-2. The Memorandum of Agreement contains “information regarding the rights and liabilities of both the Menominee Kenosha Gaming Authority and the Menominee Indian Tribe.” ¶ 13. The Menominee Report on Impact of Kenosha contains “information regarding detailed analysis of Tribal assets and their potential for development, an analysis of how potential Kenosha Casino gaming revenue would be used, and information on long term . . . business, and economic[,] goals of the Menominee Tribe,” id. ¶ 9, as well as “documents summarizing the Tribes’ financial *23 decision” and summaries of financial documents, DOI OIG Decl. ¶ 74. The Use of Funding Data contains “projected revenues of a gaming facility,” Menominee Decl. ¶ 7, as well as “documents summarizing the Tribes’ financial decision” and summaries of financial documents found in the other withheld and redacted documents, DOI OIG Decl. ¶ 74. The Interim Report— LaFollette School of Public Affairs contains “information regarding detailed analysis of Tribal assets and their potential for development, an analysis of how potential Kenosha Casino gaming revenue would be used, and information on long term [Menominee] business[] and economic goals.” Menominee Decl. ¶ 9. Finally, the KlasRobinson Rebuttal Report contains “information regarding: traffic patterns in and around the proposed Kenosha Facility, demographic and population statistics related to persons living within various distances from the proposed Kenosha Facility, description of gaming facilities, projected size and phasing of the Kenosha Facility, and projected breakdown of revenue and expenses of the Kenosha Facility.” ¶ 8. [11]
Notwithstanding these descriptions of the commercial or financial information contained
in each of the six disputed documents, the plaintiff asserts that the withhold information in these
six documents “is not ‘commercial or financial,’ because the information relates to the
Menominee’s governmental operations, and thus ‘is commercial neither by its nature (having
been created by the government rather than in connection with a commercial enterprise) nor in
its function (as there is no evidence that the parties who supplied the . . . information have a
commercial interest at stake in its disclosure).’” Pl.’s Mem. at 17− 23 (citing
Nat’l Ass’n of
Home Builders
,
For these reasons, the defendants have met their burden with respect to the first prong of the test to determine whether Exemption 4 is properly applied to withhold information from the five documents here.
2. Whether The Withheld Documents Are “Confidential”
To invoke Exemption 4, the defendants must show that the withheld information, in
addition to being “commercial,” is “privileged” or “confidential.” 5 U.S.C. § 552(b)(4). The
defendants contend that the withheld information is “confidential.” Defs.’ Mem. at 10 − 11.
Different tests apply to voluntarily and involuntarily submitted documents in determining
whether information is “confidential.”
See Critical Mass Energy Project v. Nuclear Regulatory
Comm’n
,
submits to the government
involuntarily
may be deemed “confidential” under Exemption 4 if the
information’s disclosure is likely “(1) to impair the Government’s ability to obtain necessary
information in the future; or (2) to cause substantial harm to the competitive position of the
person from whom the information was obtained.”
Id.
at 873 (quoting
Nat’l Parks &
Conservation Ass’n v. Morton
,
“[A]ctual legal authority, rather than parties’ beliefs or intentions, governs judicial
assessments of the character of submissions” as voluntary or involuntary.”
Ctr. for Auto Safety
v. Nat'l Highway Traffic Safety Admin.
,
a) The Defendants’ Ability to Obtain Necessary Information
The first prong of the confidentiality standard for involuntarily-submitted information
asks whether the information’s disclosure “is likely to . . . impair the Government’s ability to
obtain necessary information in the future.”
Critical Mass Energy Project
,
Generally, “the governmental impact inquiry . . . focus[es] on the possible effect of
disclosure on [the] quality” of information supplied.
Ctr. for Auto Safety
,
To be sure, a tribe applying for an off-reservation gaming license might understandably
be reluctant to submit information that the tribe knows may be disclosed publicly. Indeed, the
Menominee’s Chairperson has asserted that she would recommend submitting less detailed
information in future off-reservation gaming applications if information of the sort that the six
documents contain is released. Menominee Decl. ¶ 6. In this case, however, regulations
governing off-reservation gaming applications require submission of specific commercial or
financial information,
see, e.g.
, 25 C.F.R. §§ 151.11(c), 292.17(a), (j)(2)-(3), 292.18(g), and
failure to provide sufficiently specific, detailed, and relevant information would adversely affect
any approval of a gaming application. Accordingly, the disclosure of the information in the six
documents cannot be found to pose serious risk to the government’s ability to obtain similar
information in the future from the Menominee or any other tribe seeking approval for off-
reservation gaming.
See Ctr. for Auto Safety
,
b) Likelihood of Substantial Competitive Harm
Since the defendants cannot show that disclosure of the withheld information would impair the government’s ability to obtain necessary information in the future, Exemption 4 may *28 only be invoked successfully here upon a showing that disclosure likely would cause the Menominee substantial competitive harm. The defendants satisfy that burden by showing disclosure likely would substantially injure the Menominee with respect to actual competition.
Substantial competitive harm is “limited to harm flowing from the affirmative use of
proprietary information
by competitors
,”
Pub. Citizen Health Research Grp.
,
The defendants contend that disclosure of the withheld and redacted information would
cause the Menominee substantial competitive harm, DOI OIG Decl. ¶ 68, a position also urged
by the Menominee, Menominee Decl. ¶¶ 7–13. According to the defendants, disclosure of the
withheld information in the six documents would give gaming competitors “insight into the
actual or projected financial plans” of the Menominee and allow such competitors “to use such
information to gain an advantage in the gaming marketplace.” DOI OIG Decl. ¶ 68.
Additionally, the Menominee express a continuing interest in opening a casino in Kenosha,
Wisconsin, noting that the tribe has in effect a gaming compact with the State of Wisconsin
authorizing gaming pursuant to approval under the IGRA, and has even intervened as a party in
Forest County Potawatomi Community v. United States
,
The defendants identify specific competitive concerns regarding release of the six disputed documents. For example, release of the KlasRobinson Preliminary Report “would benefit any Indian Tribe interested in pursuing an off-reservation casino in Kenosha, Wisconsin to the detriment of the Menominee,” id. ¶¶ 7–8, “allowing a competitor casino to identify and compete for the key revenue sources and amounts identified in the report,” Vaughn Index at 15. Production of the Memorandum of Agreement “would reveal the legal rights and/or legal commitments of the parties, including information about the financial risk and responsibilities borne by each party.” Menominee Decl. ¶ 13; accord Vaughn Index at 14. Production of the Menominee Report on Impact of Kenosha “would allow a competitor to identify proposed revenue amounts from the Kenosha Casino and the businesses and governmental activities that the [Menominee] proposes to fund with Kenosha Casino revenues,” Menominee Decl. ¶ 9, which in turn “would allow a competitor tribe to identify elements of the [t]ribe’s long-term plan and acquire key assets or revenue streams in advance of the [t]ribe’s ability to do so, thwarting the [t]ribe’s economic development and/or driving up the cost to the [t]ribe of purchasing key assets.” Vaughn Index at 7, 10, 15. Production of the Use of Funding Data “would benefit any Indian Tribe interested in pursuing an off-reservation casino in Kenosha, Wisconsin to the detriment of the Menominee,” Menominee Decl. ¶ 7, and “cause substantial harm to the competitive position of the Casino and the [t]ribe,” Vaughn Index at 6. Production of the Interim Report “would allow a competitor to identify proposed revenue amounts from the Kenosha *30 Casino and the businesses and governmental activities that the [Menominee] proposes to fund with Kenosha Casino revenues.” Menominee Decl. ¶ 9. Release of the KlasRobinson Rebuttal Report would “would benefit any Indian Tribe interested in pursuing an off-reservation casino in Kenosha, Wisconsin to the detriment of the Menominee.” Id. ¶ 8. Finally, release of the Menominee Report on Impact of Kenosha and Interim Report “would cause competitive harm to the [Menominee] by placing [it] at a disadvantage in any commercial dealings with third parties necessary to accomplish its long term goals by allowing them access to the [Menominee’s] priorities and proposed level of funding,” allow competitors “to identify elements of the [Menominee’s] long-term plan and acquire key assets or revenue streams in advance of the [Menominee’s] ability to do so, thwarting the [t]ribe’s economic development,” and “allow [t]ribes and other persons or entities in competition with the [Menominee’s] Kenosha Casino including the [plaintiff] to utilize the [Menominee’s] commercial and financial information related to its intended use of Kenosha Casino revenue to bolster public relations or government relations efforts to oppose the Kenosha Casino development.” ¶¶ 10–12.
The plaintiff points to the fact that the Governor rejected the Menominee’s application to build a casino in Kenosha, and argues, on this basis, that the defendants are unable to show any effect on either actual competition or a likelihood of substantial competitive harm. Pl.’s Mem. at 14. Moreover, the Menominee have not renewed its option agreement to purchase the Kenosha site for the planned casino, the property is back on the market, and the Menominee’s intergovernmental agreement for the casino with the City and County of Kenosha has expired. Id . at 15. Under these circumstances, the plaintiff contends that any future competition the Menominee may face for a gaming operation in Kenosha is “highly speculative,” which “is insufficient under Exemption 4.” Id . at 14–15 (citing Niagara Mohawk Power Corp. , 169 F.3d *31 at 19). In addition, according to the plaintiff, disclosure would not cause substantial competitive harm to the Menominee’s existing casino operations, which are located 190 miles from Kenosha, as the information at issue is largely specific to the proposed casino in Kenosha. Id . at 15. The plaintiff also asserts that production of the withheld documents would not cause the Menominee substantial competitive harm because the documents are several years old and that the defendants have not explained how the information they contain is still competitively valuable, id . at 15–23, noting, in particular, that the KlasRobinson Preliminary Report analyzed a public PricewaterhouseCoopers report from 2004 and was discussed in the Secretarial Determination, id . at 18–19. These arguments are not persuasive.
The defendants have met their burden to show that the Menominee face actual
competition with respect to gaming operations in Kenosha and that production of the withheld
documents likely would cause them substantial competitive harm. Despite the Governor of
Wisconsin’s non-concurrence with DOI’s determination, the Menominee continue to seek a
gaming operation in Kenosha. Menominee Decl. ¶¶ 14–17. The Menominee thus face not just
“future or potential competition,” which is “legally inadequate” to justify withholding or
redaction information, but “
actual
competition.”
Niagara Mohawk Power Corp.
,
The disputed documents’ ages, though relevant, do not alter this conclusion, given that
the Menominee continue to seek a gaming operation in Kenosha. The plaintiff cites
Center for
*32
Auto Safety v. U.S. Dep’t of Treasury
, 133 F. Supp. 3d 109 (D.D.C. 2015), and
Biles v.
Department of Health & Human Services
, 931 F. Supp. 2d 211 (D.D.C. 2013)), to argue that the
information at issue is too old for its production to cause the Menominee substantial competitive
harm. Pl.’s Mem. at 15–16.
Center for Auto Safety
and
Biles
each determined that production of
five-year old documents likely would not cause substantial competitive harm, but
Center for
Auto Safety
’s analysis rested in meaningful part on the facts that (1) the companies involved had
undergone significant bankruptcy restructuring and (2) companies in the industry rarely planned
more than five years ahead, 133 F. Supp. 3d at 134, while
Biles
’s analysis rested in meaningful
part on the fact that the health care industry had undergone major structural reform due to the
Patient Protection and Affordable Care Act’s (“ACA”) enactment, which altered rebate
calculation, 931 F. Supp. 2d at 226. No analogous restructuring has occurred here, nor is there
any indication that obtaining an off-reservation gaming license rarely entails planning more than
five years ahead. Given the Menominee’s continuing interest in a Kenosha gaming operation
and the “defer[ence due] to [an] agency’s predictive judgments as to ‘the repercussions of
disclosure,’”
Jurewicz
,
The defendants have withheld in full the
KlasRobinson Preliminary Report
, even though
the Secretarial Determination partially disclosed its contents as part of the Secretarial
Determination. Pl.’s SUMF ¶ 35. “To the extent that any data requested under FOIA are in the
public domain, the submitter is unable to make any claim to confidentiality—a
sine qua non
of
*33
Exemption 4.”
CNA Fin. Corp. v. Donovan
,
C. Segregability
The plaintiff argues that the defendants have not released all segregable information from three documents: (1) the KlasRobinson Preliminary Report ( Vaughn Index Rows 28, 30, 39), (2) the Memorandum of Agreement ( Vaughn Index Rows 27, 37); and (3) the Draft Memo re: Recommendation of Menominee Indian Tribe’s Off Reservation Trust Application (Nov. 5, 2012) ( Vaughn Index Row 70). Pl.’s Mem. at 24–25. According to the plaintiff, “[a]t a minimum, [d]efendants should release the cover pages or headings of these documents, which would likely indicate information such as the sender, recipient, date, and title of the documents.”
“FOIA requires that ‘any reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which are exempt.’”
Morley
,
The defendants assert that “BIA has performed adequate and reasonable searches for responsive records; has processed all such records and released all reasonably segregable non- exempt information from documents responsive to plaintiff’s . . . requests that are subject to FOIA; and has properly denied access to records and information pursuant to FOIA Exemptions 3, 4, 5, and 6.” Defs.’ Mem. at 21. They also assert that any release of non-exempt information in the Draft Memo would also reveal information covered under Exemption 5 which is not challenged, and that the KlasRobinson Preliminary Report “could not be redacted with any information provided without revealing the substance of the information withheld properly.” Defs.’ Reply at 7; see Vaughn Index at 32. Finally, they assert that the plaintiff’s claim is moot with respect to the Memorandum of Agreement because they released a redaction version of the document on July 29, 2015. Defs.’ Reply at 7.
The defendants have met their burden of showing that they have released all segregable
information from the
Draft Memo
and
Memorandum of Agreement
. The
Vaughn
Index entry for
the
Draft Memo
asserts that the document cannot be redacted without revealing exempt
information,
Vaughn
Index at 32, which suffices to show that the defendants met their burden to
“provide a ‘detailed justification’ for . . . non-segregability.”
Johnson
,
Despite their assertion to the contrary, the defendants identify no attestation they have
made, in any declaration or in the
Vaughn
Index, that they have “released all segregable
material” from the
KlasRobinson Preliminary Report
.
Loving
,
D. Pattern or Practice of Violating FOIA
Finally, the plaintiff argues that the defendants have engaged in a “pattern and practice” of violating FOIA, for which it seeks declaratory and injunctive relief. Pl.’s Mem. at 35. The defendants assert that the “[p]laintiff has not (and cannot) show some general policy or practice whereby [d]efendants have affirmatively elected to not process FOIA requests . . . that would require extraordinary relief.” Defs.’ Reply at 13.
FOIA requires agencies to “determine within 20 days (excepting Saturdays, Sundays, and
legal public holidays) after the receipt of any such request whether to comply with such request
and [to] immediately notify the person making such request of such determination and the
reasons therefor.” 5 U.S.C. § 552(a)(6)(A)(i). This deadline may be extended in accordance
with FOIA.
See, e.g.
,
id.
§ 552(a)(6)(B)(i), (ii). Even when a requester has “obtained relief as to
a
specific request
under the FOIA,” the requester may raise a “claim that an agency
policy or
practice
will impair [its] lawful access to information in the future.”
Payne Enters., Inc. v.
United States
,
The plaintiff asserts that the defendants’ delays evidence a policy or practice of FOIA
noncompliance. Pl.’s Mem. at 35. Specifically, it asserts that the defendants failed to make
timely determinations for eight of its ten FOIA requests, identify “the date on which a
determination is expected to be dispatched,” or offer the plaintiff an opportunity to narrow the
scope of its claims or access to a FOIA Public Liaison to aid its requests.
Id
. at 37–39 (citing 5
U.S.C. § 552(a)(6)(B)(i), (ii)) (internal quotation marks omitted). The plaintiff also asserts that
the defendants also failed to make records “promptly available,” identifying long delays in the
defendants’ response to its FOIA requests.
Id
. at 41–43 (citing 5 U.S.C. § 552(a)(3)(A);
Citizens
for Responsibility & Ethics in Wash. v. FEC
,
Although the defendants missed many FOIA deadlines and in some cases failed to act
altogether, the plaintiff must show that the defendants’ delays were not due “merely [to] isolated
mistakes by agency officials” to establish a FOIA policy or practice claim.
Payne Enters., Inc.
,
The plaintiff’s complaint that the defendants did not release requested materials until late
July 2012, in response to FOIA Request No. 2 made in early June 2012, Pl.’s Mem. at 41−42,
seems almost frivolous since this delay is brief, this request’s scope was broad, and the
defendants gave multiple partial responses throughout June and July. Plaintiff Decl. ¶¶ 40–41;
Pl.’s SUMF ¶ 55. The plaintiff asserts that it did not receive final responses as to FOIA Requests
No. 4, 6, and 9 until July 2015, but concedes that it received partial responses in February and
December of 2014. Pl.’s Mem. at 42 n.13. Though this delay was more significant, the
defendants requested that the plaintiff narrow the scope of these requests, which sought “‘any
and all documentation and communication’ over a five year period of time,” as they were “overly
burdensome and vague,” and would require searching 47 storage boxes over a period of years.
*38
Plaintiff Decl. ¶¶ 71–72; DOI OIG Decl. ¶ 31. The plaintiff also complains that the defendants
repeatedly produced “old documents that had been resubmitted by [the Tribe],” even though the
plaintiff had asked that the government focus on more recent information. Pl.’s Mem. at 43. To
the extent, however, that the plaintiff requested documents that were duplicates of earlier
submitted documents, so long as those documents were resubmitted after September 9, 2009, the
defendants fulfilled their FOIA obligations. Plaintiff Decl. ¶ 13. In any event, the plaintiff fails
to show that the defendants’ production of duplicative documents amounted to a “policy or
practice” of FOIA noncompliance.
Payne Enters., Inc.
,
Given this background and close examination of the plaintiff’s specific complaints about delays in the defendants’ responses, the plaintiff has failed to establish a policy or practice of FOIA noncompliance and, accordingly, the defendants are entitled to summary judgment and the plaintiff is not entitled to summary judgment as to this claim.
IV. CONCLUSION
The defendants’ Motion for Summary Judgment is denied as to the plaintiff’s claims for (1) an additional search for the KlasRobinson Final Report and Corn Letter, and (2) production of all segregable portions of the KlasRobinson Preliminary Report , and otherwise granted in full. The plaintiff’s Cross-Motion for Summary Judgment is denied in full.
An appropriate Order accompanies this Memorandum Opinion.
Date : September 30, 2017
__________________________ BERYL A. HOWELL Chief Judge
Notes
[1] The plaintiff sued the U.S. Department of the Interior, Bureau of Indian Affairs (“BIA”); BIA’s Office of Indian Gaming; BIA’s Central Office; Sally Jewel, Secretary of the Interior, in her official capacity; Kevin Washburn, Assistant Secretary for Indian Affairs, in his official capacity; Paula Hart, Director, Office of Indian Gaming, in her official capacity; and Diane Rosen, Regional Director for the Midwest Region Bureau of Indian Affairs, in her official capacity. Pursuant to Federal Rule of Civil Procedure 25(d), federal employees named in their official capacities are automatically substituted. Accordingly, Ryan Zinke is substituted for Sally Jewell, Michael Black is substituted for Kevin Washburn, and Tammie Poitra is substituted for Diane Rosen.
[2] The land the Menominee sought to acquire, known as the Dairyland Greyhound Park, is located in Kenosha, Wisconsin, Pl.’s SUMF ¶¶ 2, 8, approximately 35 miles from Milwaukee, where the plaintiff operates a gaming facility, id. ¶ 15. The distance between the two locations is judicially noticed, as “not subject to reasonable dispute because” this distance “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” F ED . R. E VID . 201(b).
[3] “A
Vaughn
index describes the documents withheld or redacted and the FOIA exemptions invoked, and
explains why each exemption applies.”
Prison Legal News v. Samuels
,
[4] As described in more detail, infr a n.5, the plaintiff originally complained about five missing documents, but three were ultimately disclosed, leaving only two such documents at issue.
[5] The plaintiff initially challenged the defendants’ withholding of three other documents attached to the Secretarial Determination as well, but has since acknowledged that only the KlasRobinson Final Report and Corn Letter remain at issue. Pl.’s Reply at 13 & n.12. The plaintiff acknowledges that the defendants might have produced these documents in entirely redacted form, although “it is impossible to know due to the complete redaction of documents and due to Defendant’s failure to update their Vaughn Index to identify the documents withheld and the grounds for withholding.” at 13 n.13. In any event, the plaintiff waives any challenge to the redactions on these three documents, id. at 12–13 & n.11, and, thus, the defendants are entitled to summary judgment as to those documents.
[6] In addition, the defendants argued that most of the documents attached to the Secretarial Determination “were not part of the search parameters” because they “post-date the FOIA requests at issue.” Defs.’ Reply at 9. This argument fails because the plaintiff’s Reply focuses on Request No. 10, which was submitted after the Secretarial Determination issued. See Pl.’s SUMF ¶ 117.
[7] Request No. 7 sought “[a]ll records produced by or held by AES or its subcontractors relating to the BIA, the Menominee Tribe, the Menominee Tribe’s business partners and its third party agent, AES, including counsel or representatives of the foregoing, regarding the National Environmental Policy Act review and evaluation process conducted by AES for the Menominee Tribe’s Kenosha Casino Project.” Pl.’s Reply at 26.
[8] The plaintiff’s reliance on
Chicago Tribune
is misplaced. In that case, the agency did not deny that it could
use or dispose of the contractor’s documents at issue and, in fact, directed the contractor to provide some
information for the FOIA request.
[9] The Vaughn Index identifies the KlasRobinson Rebuttal Report as withheld under Exemption 5, see Vaughn Index at 28, but that appears to have been a typographical error. The Vaughn Index also identifies this document only as KlasRobinson Report , but the plaintiffs describe this to be a rebuttal report, see Pl.’s Mem. at 19 − 20; Pl.’s SUMF ¶ 33, a description adopted here for specificity’s sake.
[10] Under 5 U.S.C. § 551(2), a “‘person’ includes an individual, partnership, corporation, association, or public or private organization other than an agency.” Id .
[11] The defendants stress the obvious context that the “[p]laintiff wants the proprietary information of a rival
group – submitted at the behest of [DOI] – to better compete against that rival.” Defs.’ Reply at 5. Even if so,
“agencies must generally release requested records without regard to the identity or motive of the requestor.”
Chiquita Brands Int’l Inc., v. S.E.C.
,
[12] The plaintiff’s reliance on
National Association of Home Builders
for this proposition is misplaced. Pl.’s
Mem. at 17−18 (quoting
Nat’l Ass’n of Home Builders
,
[13] In
Forest County Potawatomi Community
, the plaintiff here seeks to reverse DOI’s disapproval of an
agreement between the plaintiff and the State of Wisconsin that effectively would have created a fifty-mile zone of
noncompetition around the plaintiff’s Milwaukee gaming facility.