Case Detail

FOIA Project Annotation: A federal court in Washington has ruled that the National Marine Fisheries Service properly withheld records concerning its response to a report from the Recovery Science Review Panel critical of aspects of the agency's policy on salmon harvest and recovery. The RSRP consists of six independent scientists appointed by the NMFS to review its management decisions pertaining to endangered species. The panel meets several times each year. The agency withheld much of the information under Exemption 5 (deliberative process privilege). While admitting that the records were likely covered by the exemption, the Columbia Snake River Irrigators Association argued that the responses were written mainly by agency scientists and must contain a large amount of factual material that would not be covered by the privilege. The court noted that "[Northwest Fisheries] Science Center employees may have exercised judgment and expressed personal opinion in assessing the RSRP report and in offering suggestions for an appropriate response. Even if Agency employees cited facts included in the RSRP report or from studies conducted independently, the process of prioritizing facts and conclusions and weighing their importance and relevance is often an exercise of judgment that can affect Agency policy." The court pointed out that "the decisions NMFS made in response to the RSRP report required the exercise of discretionary and policy-implicating judgment. The Agency was forced to weigh competing interests and preserve relationships with other stewards of the resources it manages. To the extent that the documents generated by the Agency offer recommendations of policy in addition to presenting, interpreting, and offering observation on facts, they are protected by the privilege." The court then found all but a handful of redactions were appropriate and indicated that they would be reviewed by the court in camera.
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2007-09-07	1	COMPLAINT against all defendants (Summons(es) issued)(Receipt # SEA 11897), filed by Columbia Snake River Irrigators Association. (Attachments: # 1 Civil Cover Sheet)(MKB) (Entered: 09/11/2007)
2007-09-17	2	PRAECIPE TO ISSUE SUMMONS & clerk issued summons by Plaintiff Columbia Snake River Irrigators Association. (MD, ) (Entered: 09/18/2007)
2007-09-28	3	MOTION for Summary Judgment and to Require Documents to be Submitted for In Camera Review and Supporting Memorandum of Authorities by Plaintiff Columbia Snake River Irrigators Assoc. Oral Argument Requested. (Attachments: # 1 Proposed Order [Proposed] Order for Summary Judgment)Noting Date 11/2/2007.(Buchal, James) (Entered: 09/28/2007)
2007-09-28	4	DECLARATION of James L. Buchal filed by Plaintiff Columbia Snake River Irrigators Assoc re 3 MOTION for Summary Judgment and to Require Documents to be Submitted for In Camera Review and Supporting Memorandum of Authorities (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4 through 7# 5 Exhibit 8# 6 Exhibit 9# 7 Exhibit 10 through 21)(Buchal, James) (Entered: 09/28/2007)
2007-09-28	5	SERVICE OF SUMMONS and Complaint returned executed upon defendant United States Department of Commerce on 9/14/2007 (Buchal, James) (Entered: 09/28/2007)
2007-09-28	6	SERVICE OF SUMMONS and Complaint returned executed upon defendant D Robert Lohn on 9/13/2007 (Buchal, James) (Entered: 09/28/2007)
2007-09-28	7	SERVICE OF SUMMONS and Complaint returned executed upon defendant National Marine Fisheries Service on 9/21/2007 US Attorney General (Buchal, James) (Entered: 09/28/2007)
2007-09-28	8	SERVICE OF SUMMONS and Complaint returned executed upon defendant United States Department of Commerce on 9/21/2007 US Attorney for the Western District of WA (Buchal, James) (Entered: 09/28/2007)
2007-10-09	9	ORDER REGARDING INITIAL DISCLOSURES, JOINT STATUS REPORT AND EARLY SETTLEMENTJoint Status Report due by 11/20/2007,FRCP 26f Conference Deadline is 11/6/2007.,Initial Disclosure Deadline is 11/13/2007.by Judge Marsha J. Pechman. (LG, ) (Entered: 10/09/2007)
2007-10-15	10	STATUS REPORT (Joint) by Plaintiff Columbia Snake River Irrigators Assoc, Defendants D Robert Lohn, National Marine Fisheries Service, United States Department of Commerce. (Buchal, James) (Entered: 10/15/2007)
2007-10-22	11	ANSWER to Complaint by D Robert Lohn, National Marine Fisheries Service, United States Department of Commerce.(Stahman, Kayla) (Entered: 10/22/2007)
2007-10-29	12	RESPONSE, by Defendants D Robert Lohn, National Marine Fisheries Service, United States Department of Commerce, to 3 MOTION for Summary Judgment and to Require Documents to be Submitted for In Camera Review and Supporting Memorandum of Authorities . (Attachments: # 1 Proposed Order Proposed Order Denying Motion for Summary Judgment)(Stahman, Kayla) (Entered: 10/29/2007)
2007-10-30	13	REPLY, filed by Plaintiff Columbia Snake River Irrigators Assoc, TO RESPONSE to 3 MOTION for Summary Judgment and to Require Documents to be Submitted for In Camera Review and Supporting Memorandum of Authorities (Buchal, James) (Entered: 10/30/2007)
2007-11-01	14	AMENDMENT to 13 Reply to Response to Motion for Summary Judgment [Corrected] by Plaintiff Columbia Snake River Irrigators Assoc. (Buchal, James) (Entered: 11/01/2007)
2007-11-27	15	MINUTE ORDER Joint Status Report due by 12/6/2007by Judge Marsha J. Pechman. (LG, ) (Entered: 11/27/2007)
2007-12-11	16	ORDER granting Defendants until January 4, 2008 to submit further briefing and re-noting 3 MOTION for Summary Judgment and to Require Documents to be Submitted for In Camera Review and Supporting Memorandum of Authorities by Judge Marsha J. Pechman. (LG, ) (Entered: 12/11/2007)
2007-12-21	17	Agreed Stipulated MOTION and [Proposed] Order to Note Defendants' Cross-Motion for Summary Judgment and Plaintiff's Motion for Summary Judgment on January 25, 2007 by Plaintiff Columbia Snake River Irrigators Assoc. Noting Date 12/21/2007.(Buchal, James) (Entered: 12/21/2007)
2008-01-02	18	AGREED MOTION AND ORDER RE-NOTING Defendants' cross motion for summary judgment and 3 Plaintiff's MOTION for Summary Judgment and to Require Documents to be Submitted for In Camera Review and Supporting Memorandum of Authorities . RE-Noting Date 1/25/2008, by Judge Marsha J. Pechman. (MD, ) (Entered: 01/03/2008)
2008-01-04	19	MOTION for Summary Judgment by Defendants D Robert Lohn, National Marine Fisheries Service, United States Department of Commerce. (Attachments: # 1 Proposed Order)Noting Date 1/25/2008.(Stahman, Kayla) (Entered: 01/04/2008)
2008-01-04	20	DECLARATION of Frank D. Lockhart filed by Defendants D Robert Lohn, National Marine Fisheries Service, United States Department of Commerce re 19 MOTION for Summary Judgment (Attachments: # 1 Exhibit Exhibit 1 Vaughn Index# 2 Exhibit Exhibits 2-7)(Stahman, Kayla) (Entered: 01/04/2008)
2008-01-21	21	RESPONSE, by Plaintiff Columbia Snake River Irrigators Assoc, to 3 MOTION for Summary Judgment and to Require Documents to be Submitted for In Camera Review and Supporting Memorandum of Authorities , 19 MOTION for Summary Judgment. Oral Argument Requested. (Buchal, James) (Entered: 01/21/2008)
2008-01-25	22	REPLY, filed by Defendants D Robert Lohn, National Marine Fisheries Service, United States Department of Commerce, TO RESPONSE to 19 MOTION for Summary Judgment (Stahman, Kayla) (Entered: 01/25/2008)
2008-03-19	23	ORDER granting in part and denying in part 3 Motion for Summary Judgment; granting in part and denying in part 19 Motion for Summary Judgment. Defendants are directed to submit certain documents to the Court for in camera review within twenty days of this order. by Judge Marsha J. Pechman.(LG, ) (Entered: 03/19/2008)
2008-03-31	24	MOTION for Extension of Time for Submission of Documents for In Camera Review by Defendants D Robert Lohn, National Marine Fisheries Service, United States Department of Commerce. Noting Date 3/31/2008.(Stahman, Kayla) (Entered: 03/31/2008)
2008-04-01	25	ORDER granting 24 CONSENTED Motion for Extension of Time for submission of documents for in camera review by Judge Marsha J. Pechman.(MD, ) (Entered: 04/02/2008)
2008-04-22	26	E-FILING ERROR, see 27 for correction: NOTICE of Filing Documents requested in a Court's March 19, 2008 Order in Paper or Physical Form with the Clerk's Office by Defendants D Robert Lohn, National Marine Fisheries Service, United States Department of Commerce. (Stahman, Kayla) Modified on 4/23/2008 (KN, ). (Entered: 04/22/2008)
2008-04-22	27	NOTICE of Filing documents for in camera review in Paper or Physical Form with the Clerk's Office by Defendants D Robert Lohn, National Marine Fisheries Service, United States Department of Commerce. (Stahman, Kayla) (Entered: 04/22/2008)
2008-04-22	28	MEMORANDUM filed by Defendants D Robert Lohn, National Marine Fisheries Service, United States Department of Commerce re 19 MOTION for Summary Judgment in Response to Court's March 19, 2008 Order (Stahman, Kayla) (Entered: 04/22/2008)
2008-04-22	29	DECLARATION of Frank Lockhart re 28 Memorandum of Supplemental Briefing in Response to Court's March 19, 2008 Order by Defendants D Robert Lohn, National Marine Fisheries Service, United States Department of Commerce. (Attachments: # 1 Exhibit Amended Vaughn Index)(Stahman, Kayla) (Entered: 04/22/2008)
2008-06-09	30	ORDER FOLLOWING IN CAMERA REVIEW OF WITHHELD DOCUMENTS. This decision leaves no further issue for the Court's review and the case is hereby dismissed by Judge Marsha J. Pechman. (MD) (Entered: 06/09/2008)
2008-06-09	31	JUDGMENT BY COURT - IT IS ORDERED AND ADJUDGED: The Court finds that the Government has met its burden and the deliberative process privilege applies to the remaining withheld documents. This decision leaves no further issue for the Court's review and the case is hereby dismissed. (MD) (Entered: 06/10/2008)
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