Case Detail

FOIA Project Annotation: Judge John Bates has ruled that the Interior Department has not provided a sufficient Vaughn index to allow the court or the plaintiff to assess the agency's exemption claims. The Edmonds Institute, a non-profit organization concerned with maintenance and protection of ecosystems, requested records from the National Park Service concerning that agency's proposal to enter into "benefit sharing" agreements with private parties permitting the collection and commercial use of biological materials from national parks. The agency withheld some documents claiming Exemption 5 (privileges). Pointing out that Interior's Vaughn index, which included a table listing the name of the sender, recipient, brief description, and a number corresponding with one of eight categories, was inadequate, Bates indicated that "the submissions . . .do not tailor the exemption claim to a particular portion of each of the withheld documents, even failing to describe whether a document was withheld in part or in full." He told the agency that it must "provide a brief but sufficiently detailed description of the contents of each document it continues to withhold under Exemption 5. The description need not be long, but should include something more than the nature of the document in question and its title. . . The index nonetheless should contain a short description of the content of each individual document, sufficient to allow Edmonds and this Court to test the claim that the particular document (or portion of a document) comes within Exemption 5." He added that "the new index should connect the claimed exemption to the relevant withheld portions of each document, and explain whether there is any information that can be segregated as non-exempt from the rest of the document." Bates then rejected Edmonds' claim that DOI should have used the date of the release letter as the cut-off date for its search. The agency indicated it had used the date of the search as the cut-off date. Dismissing Edmonds' claim, Bates observed that "this proposal, however, is inherently flawed, leading as it would to an ever-moving target for the production of documents under FOIA. Every postponement in the release of the documents would require the agency to perform a new search to include all documents created before the new release date, which in turn would postpone the date of release once again. This result is both inefficient and uncertain, and the Court sees no reason to adopt it here. The D.C. Circuit [in Public Citizen v. Dept. of State, 276 F.3d 634 (D.C. Cir. 2001)] has all but endorsed the use of date-of-search as the cut-off date for FOIA requests."
Issues: Litigation - Vaughn index

FOIA Project Annotation: Judge John Bates has ruled that the Department of Interior properly invoked Exemption 5 (deliberative process privilege) to withhold some records pertaining to benefits-sharing agreements between the National Park Service and private-sector biotechnology researchers. The agreements govern distribution of monetary and other benefits resulting from private commercial development of research derived from specimens collected in national parks and are currently the focus of a pending environmental impact statement. The agency disclosed nearly 400 pages with redactions. In response to a second FOIA request asking for updated information, the agency denied a fee waiver request from the Edmonds Institute and refused to process the request further until the Institute agreed to pay potential fees. Bates agreed with the agency that factual material considered for a draft EIS and the pending final EIS would reveal the deliberative process of Park Service staff. He noted that "the quality of policy documents like the DEIS would suffer if agency employees are hesitant to suggest ideas and information for preliminary drafts out of fear that their rejected suggestions could eventually be disclosed. These concerns apply equally to narrative and non-narrative forms of information. The analysis of research-permit data performed by NPS staff represents an exercise of judgment, as the agency's decision not to adopt the proposed methodologies makes clear." Bates also upheld the agency's decision to withhold progress reports, which Edmonds argued were purely procedural. Relying on Wolfe v. Dept of HHS, 839 F.2d 768 (D.C. Cir. 1988), in which the D.C. Circuit found that information concerning the status of FDA regulations was protected by the deliberative process privilege, Bates noted that "the release of 'procedural' information like task lists and progress reports would reveal DOI decisions concerning the amount of time and resources allotted to the development of particular sections of the EIS." Turning to the fee waiver dispute, Bates found that Edmonds had shown its ability to disseminate information through its website, email alerts, and publications. Bates rejected the agency's argument that Edmonds had not shown how it was qualified to analyze and disseminate the information, noting that "the Court declines to evaluate the quality of Edmonds's scholarship or to specify a minimum level of expertise required to obtain a fee waiver. Doing so is unnecessary because Edmonds has demonstrated its ability to convey the information to the public by stating in reasonably 'detailed and non-conclusory terms �" again, all that FOIA requires �" exactly how and to whom it will disseminate the information it receives.'" He also rejected the claim that Edmonds had not shown how it had disseminated records in the past. He pointed out that "while evidence describing a requester's past use of FOIA-disclosed documents can be relevant to a fee-waiver determination, Edmonds is under no statutory or regulatory obligation to provide that evidence in its waiver request. Instead, applications for fee waivers are considered on a case-by-case basis."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2004-09-09	1	COMPLAINT against UNITED STATES DEPARTMENT OF THE INTERIOR (Filing fee $ 150) filed by THE EDMONDS INSTITUTE.(lc, ) (Entered: 09/17/2004)
2004-09-09	2	LCvR 7.1 - CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests (lc, ) (Entered: 09/17/2004)
2004-09-09		SUMMONS (3) Issued as to UNITED STATES DEPARTMENT OF THE INTERIOR, U.S. Attorney and U.S. Attorney General (lc, ) (Entered: 09/17/2004)
2004-09-29	3	ATTORNEY APPEARANCE. (McBarnette, Andrea) (Entered: 09/29/2004)
2004-10-08	4	MOTION for Extension of Time to File Answer by UNITED STATES DEPARTMENT OF THE INTERIOR. (McBarnette, Andrea) (Entered: 10/08/2004)
2004-10-13		MINUTE ENTRY: Upon consideration of 4 defendant's motion for an extension of time, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that defendant shall answer or otherwise respond to the Complaint by not later than November 12, 2004. Signed by Judge John D. Bates on 10/13/04.(lcjdb2) (Entered: 10/13/2004)
2004-10-13		Set/Reset Deadlines: Answer or other response due by 11/12/2004. (lcjdb2) (Entered: 10/13/2004)
2004-11-12	5	ENTERED IN ERROR.....MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF THE INTERIOR. (Attachments: # 1 Exhibit Susan Mills Declaration# 2 Exhibit Vaughn Index# 3 Text of Proposed Order)(McBarnette, Andrea) Modified on 11/15/2004 (lc, ). (Entered: 11/12/2004)
2004-11-15	6	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF THE INTERIOR. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Mills Declaration# 3 Exhibit Vaugh Index)(McBarnette, Andrea) (Entered: 11/15/2004)
2004-12-06	7	Unopposed MOTION for Extension of Time to File Response/Reply as to 6 MOTION for Summary Judgment by THE EDMONDS INSTITUTE. (Attachments: # 1 Text of Proposed Order)(Dougherty, James) (Entered: 12/06/2004)
2004-12-08		MINUTE ORDER: Upon consideration of 7 plaintiff's motion for an extension of time, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that plaintiff shall file its opposition to defendant's motion to dismiss by not later than December 30, 2004. Signed by Judge John D. Bates on 12/8/2004. (lcjdb2) (Entered: 12/08/2004)
2004-12-08		Set/Reset Deadlines: Opposition due by 12/30/2004. (lcjdb2) (Entered: 12/08/2004)
2004-12-30	8	Memorandum in opposition to motion re 6 Defendant's Motion to Dismiss filed by THE EDMONDS INSTITUTE. (Attachments: # 1 Supplement Statement of Facts Not in Dispute# 2 Exhibit #1# 3 Exhibit #2# 4 Exhibit #3# 5 Exhibit #4# 6 Exhibit #5# 7 Exhibit Declaration of Beth Burrows)(Dougherty, James) (Entered: 12/30/2004)
2005-01-07	9	MOTION for Extension of Time to Reply Re 6 in Support of Defendant's Motion for Summary Judgment by UNITED STATES DEPARTMENT OF THE INTERIOR. (Attachments: # 1 Text of Proposed Order)(McBarnette, Andrea) Modified on 1/10/2005 (lc, ). (Entered: 01/07/2005)
2005-01-25		MINUTE ENTRY: Upon consideration of 9 defendant's motion for extension of time, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that defendant shall file its reply in support of to its motion for summary judgment by not later than January 26, 2005. Signed by Judge John D. Bates on 1/25/2005. (lcjdb2) (Entered: 01/25/2005)
2005-01-25		Set/Reset Deadlines: Reply due by 1/26/2005. (lcjdb2) (Entered: 01/25/2005)
2005-01-26	10	REPLY to opposition to motion re 6 summary judgment filed by UNITED STATES DEPARTMENT OF THE INTERIOR. (Attachments: # 1 Exhibit 1# 2 Exhibit Supplemental Declaration)(McBarnette, Andrea) (Entered: 01/26/2005)
2005-02-25	11	MOTION for Summary Judgment (incl. Memo and Statement of Facts) by THE EDMONDS INSTITUTE. (Attachments: # 1 Text of Proposed Order)(Dougherty, James) (Entered: 02/25/2005)
2005-03-14	12	ENTERED IN ERROR.....Memorandum in opposition to motion re 11 plaintiff's summary judgment filed by UNITED STATES DEPARTMENT OF THE INTERIOR. (McBarnette, Andrea) Modified on 3/15/2005 (lc, ). (Entered: 03/14/2005)
2005-03-15	13	Memorandum in opposition to motion re 11 plaintiff's motion for summary judgment filed by UNITED STATES DEPARTMENT OF THE INTERIOR. (McBarnette, Andrea) (Entered: 03/15/2005)
2005-04-15	14	Consent MOTION for Extension of Time to File Response/Reply as to 13 Memorandum in Opposition to Motion for Summary Judgment by THE EDMONDS INSTITUTE. (Attachments: # 1 Text of Proposed Order)(Dougherty, James) (Entered: 04/15/2005)
2005-04-18		MINUTE ORDER: Upon consideration of 14 plaintiff's motion for extension of time, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that plaintiff shall file its reply in support of its motion for summary judgment by not later than April 29, 2005. Signed by Judge John D. Bates on 4/18/2005. (lcjdb2) (Entered: 04/18/2005)
2005-04-18		Set/Reset Deadlines: Reply due by 4/29/2005. (lcjdb2) (Entered: 04/18/2005)
2005-04-28	15	REPLY to opposition to motion re 11 Summary Judgment filed by THE EDMONDS INSTITUTE. (Attachments: # 1 Exhibit Plaintiff's Exh # 6)(Dougherty, James) (Entered: 04/28/2005)
2005-06-08		MINUTE ORDER: It is hereby ORDERED that a motions hearing is scheduled in this case on August 10, 2005, at 10:00 a.m. Signed by Judge John D. Bates on 6/8/2005. (lcjdb2) (Entered: 06/08/2005)
2005-06-08		Set/Reset Hearings: Motions Hearing set for 8/10/2005 10:00 AM before Judge John D. Bates. (lcjdb2) (Entered: 06/08/2005)
2005-06-22	16	MOTION for Leave to Appear Pro Hac Vice by THE EDMONDS INSTITUTE. (Dougherty, James) (Entered: 06/22/2005)
2005-07-18		MINUTE ORDER: Upon consideration of 16 Daniel J. Stotter's Motion for Leave to Appear Pro Hac Vice, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that Daniel J. Stotter is admitted to the bar of this Court pro hac vice. Signed by Judge John D. Bates on 7/18/2005. (lcjdb2) (Entered: 07/18/2005)
2005-07-26	17	WITHDRAWN pursuant to second motion filed 5/24/2006 (#38)..... MOTION In Camera Review by THE EDMONDS INSTITUTE. (Attachments: # 1 Text of Proposed Order)(Dougherty, James) Modified on 5/25/2006 (lc, ). (Entered: 07/26/2005)
2005-07-26	18	NOTICE Re Defendant's Taking No Position on Motion for In Camera Review by THE EDMONDS INSTITUTE (Dougherty, James) (Entered: 07/26/2005)
2005-08-05	19	RESPONSE to 17 Motion for In Camera Review filed by UNITED STATES DEPARTMENT OF THE INTERIOR. (Attachments: # 1 Exhibit 1# 2 Exhibit 1a)(McBarnette, Andrea) Modified on 8/8/2005 (lc, ). (Entered: 08/05/2005)
2005-08-10		Minute Entry for proceedings held before Judge John D. Bates : Motion Hearing held on 8/10/2005 re 6 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF THE INTERIOR,, 11 MOTION for Summary Judgment (incl. Memo and Statement of Facts) filed by THE EDMONDS INSTITUTE,. Motion heard and takened under advisement. (Court Reporter Bryan Wayne) (tb) (Entered: 08/10/2005)
2005-08-24	20	MEMORANDUM OPINION AND ORDER granting in part and denying in part 6 defendant's motion for summary judgment; granting in part and denying in part 11 plaintiff's motion for summary judgment; and setting schedule for submission of revised Vaughn index and renewed cross-motions for summary judgment. Signed by Judge John D. Bates on 8/24/2005. (lcjdb2) (Entered: 08/24/2005)
2005-08-24		Set/Reset Deadlines: Revised Vaughn index due by 9/22/2005. Summary Judgment motions due by 10/24/2005. Responses due by 11/23/2005. Replies due by 12/7/2005. (lcjdb2) (Entered: 08/24/2005)
2005-09-22	21	NOTICE of Filing Revised Vaughn Index by UNITED STATES DEPARTMENT OF THE INTERIOR (Attachments: # 1 Exhibit Vaughn Index)(McBarnette, Andrea) (Entered: 09/22/2005)
2005-10-18	22	Consent MOTION to Stay re Set/Reset Deadlines for Summary Judgment Briefing by THE EDMONDS INSTITUTE. (Attachments: # 1 Affidavit Declaration of Daniel Stotter# 2 Text of Proposed Order)(Dougherty, James) (Entered: 10/18/2005)
2005-10-18	23	ORDER granting 22 plaintiff's consent motion to stay the briefing schedule to accommodate discovery depositions, pursuant to Rule 56(f) of the Federal Rules of Civil Procedure. Signed by Judge John D. Bates on 10/18/2005. (lcjdb2) (Entered: 10/18/2005)
2006-01-26	24	ORDER requiring the parties to report on the status of depositions by not later than February 3, 2006. Signed by Judge John D. Bates on 1/26/2006. (lcjdb2) (Entered: 01/26/2006)
2006-02-03	25	NOTICE of Appearance by Daniel Franklin Van Horn on behalf of UNITED STATES DEPARTMENT OF THE INTERIOR (Van Horn, Daniel) (Entered: 02/03/2006)
2006-02-03	26	STATUS REPORT by THE EDMONDS INSTITUTE, UNITED STATES DEPARTMENT OF THE INTERIOR. (Attachments: # 1 Text of Proposed Order)(Van Horn, Daniel) (Entered: 02/03/2006)
2006-02-03		MINUTE ORDER: It is hereby ORDERED that the parties shall appear for a status conference with the Court on February 13, 2006, at 9:00 a.m. in Courtroom 8. Signed by Judge John D. Bates on 2/3/2006. (lcjdb2) (Entered: 02/03/2006)
2006-02-03		Set/Reset Hearings: Status Conference set for 2/13/2006 09:00 AM in Courtroom 8 before Judge John D. Bates. (lcjdb2) (Entered: 02/03/2006)
2006-02-07		Set/Reset Hearings: Status Conference set for 2/15/2006 09:00 AM in Courtroom 8 before Judge John D. Bates. (lcjdb2) (Entered: 02/07/2006)
2006-02-08	27	ENTERED IN ERROR.....NOTICE OF FILING OF AMENDED COMPLAINT by THE EDMONDS INSTITUTE (Dougherty, James) Modified on 2/9/2006 (lc, ). (Entered: 02/08/2006)
2006-02-08	28	First AMENDED COMPLAINT against UNITED STATES DEPARTMENT OF THE INTERIORfiled by THE EDMONDS INSTITUTE.(lc, ) (Entered: 02/09/2006)
2006-02-09		NOTICE OF CORRECTED DOCKET ENTRY: re 27 Notice (Other) was entered in error and has been refiled correctly by the Court (see docket entry #28). (lc, ) (Entered: 02/09/2006)
2006-02-14	29	ANSWER to Amended Complaint by UNITED STATES DEPARTMENT OF THE INTERIOR. Related document: 28 Amended Complaint filed by THE EDMONDS INSTITUTE,.(Van Horn, Daniel) (Entered: 02/14/2006)
2006-02-15		MINUTE ORDER: Based upon the parties' representations at the status conference held on this date, it is hereby ORDERED that defendant's motion for summary judgment and, if necessary, revised Vaughn index shall be filed by not later than March 30, 2006; plaintiff's opposition to that motion and its cross-motion for summary judgment shall be filed by not later than April 14, 2006; defendant's reply in further support of its motion and its opposition to plaintiff's cross-motion shall be filed by not later than April 28, 2006; and plaintiff's reply in further support of its cross-motion shall be filed by not later than May 9, 2006. Signed by Judge John D. Bates on 2/15/2006. (lcjdb2) (Entered: 02/15/2006)
2006-02-15		Set/Reset Deadlines: Defendant's Summary Judgment Motion due by 3/30/2006. Response to Summary Judgment Motion due by 4/14/2006. Plaintiff's Cross Motion due by 4/14/2006. Reply to Summary Judgment Motion due by 4/28/2006. Response to Cross Motion due by 4/28/2006. Reply to Cross Motion due by 5/9/2006. (lcjdb2) (Entered: 02/15/2006)
2006-02-15		Minute Entry Status Conference held on 2/15/2006 before Judge John D. Bates : SEE MINUTE ORDER PREVIOUSLY ENTERED FOR DETAILS. (Court Reporter Chrystal Pilgrim) (tb, ) (Entered: 02/15/2006)
2006-03-06	30	MOTION to Strike 29 DEFENDANT?S ANSWER TO PLAINTIFF?S FIRST AMENDED COMPLAINT, AND INCORPORATED MEMORANDUM IN SUPPORT THEREOF by THE EDMONDS INSTITUTE. (Stotter, Daniel) Modified on 3/7/2006 (lc, ). (Entered: 03/06/2006)
2006-03-07	31	ERRATA to 30 by THE EDMONDS INSTITUTE. (Attachments: # 1 Plaintiff's Corrected Motion to Strike Defendant's Answer to First Amended Complaint (Stotter, Daniel) Modified on 3/8/2006 (lc, ). (Entered: 03/07/2006)
2006-03-13		MINUTE ORDER: Upon consideration of 30 plaintiff's motion to strike as insufficient certain portions of 29 defendant's answer to the amended complaint, it is hereby ORDERED that the motion is DENIED. Signed by Judge John D. Bates on 3/13/2006. (lcjdb2) (Entered: 03/13/2006)
2006-03-29	32	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF THE INTERIOR. (Attachments: # 1 Statement of Facts # 2 Text of Proposed Order # 3 Exhibit Mills Declaration I# 4 Exhibit Mills Declaration II# 5 Exhibit Mills Declaration III# 6 Exhibit Preston Scott Deposition Transcript# 7 Exhibit Cooke Declaration)(Van Horn, Daniel) (Entered: 03/29/2006)
2006-04-14	33	Second MOTION for Summary Judgment by THE EDMONDS INSTITUTE. (Attachments: # 1 Memorandum in Support# 2 Statement of Facts # 3 Supplemental Declaration of Beth Burrows# 4 Text of Proposed Order Proposed Order)(Stotter, Daniel) (Entered: 04/14/2006)
2006-04-28	34	REPLY to opposition to motion re 32 MOTION for Summary Judgment and Opposition to 33 Plaintiff's Second Motion for Summary Judgment filed by UNITED STATES DEPARTMENT OF THE INTERIOR. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Mills Declaration IV)(Van Horn, Daniel) (Entered: 04/28/2006)
2006-04-28	35	Memorandum in opposition to re 33 Second MOTION for Summary Judgment and Reply in further support of 32 Defendant's Renewed Motion for Summary Judgment filed by UNITED STATES DEPARTMENT OF THE INTERIOR. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Mills Declaration IV)(Van Horn, Daniel) (Entered: 04/28/2006)
2006-05-09	36	Unopposed MOTION for Extension of Time to File Response/Reply on Plaintiff's Renewed Motion for Summary Judgment by THE EDMONDS INSTITUTE. (Attachments: # 1 Text of Proposed Order)(Stotter, Daniel) (Entered: 05/09/2006)
2006-05-09		MINUTE ORDER: Upon consideration of 36 plaintiff's motion for an extension of time to file a reply in further support of its cross-motion for summary judgment, it is hereby ORDERED that the motion is GRANTED, and it is further ORDERED that plaintiff shall file any reply memorandum by not later than May 24, 2006. Signed by Judge John D. Bates on 5/9/2006. (lcjdb2) (Entered: 05/09/2006)
2006-05-24	37	REPLY to opposition to motion re 33 Second MOTION for Summary Judgment filed by THE EDMONDS INSTITUTE. (Stotter, Daniel) (Entered: 05/24/2006)
2006-05-24	38	Second MOTION In Camera Review by THE EDMONDS INSTITUTE. (Attachments: # 1 Text of Proposed Order)(Stotter, Daniel) (Entered: 05/24/2006)
2006-07-11	39	NOTICE OF SUBSTITUTION OF COUNSEL by James B. Dougherty on behalf of THE EDMONDS INSTITUTE Substituting for attorney D. Stotter for Bromley Newton LLP (Dougherty, James) (Entered: 07/11/2006)
2006-10-19	40	ORDER granting in part and denying in part 38 plaintiff's revised motion for in camera review. Signed by Judge John D. Bates on 10/19/2006. (lcjdb2) (Entered: 10/19/2006)
2006-10-24	41	NOTICE Of In Camera Filing by UNITED STATES DEPARTMENT OF THE INTERIOR re 40 Order on Motion for Miscellaneous Relief (Van Horn, Daniel) (Entered: 10/24/2006)
2006-10-30	42	ORDER granting in part and denying in part 32 defendant's renewed motion for summary judgment, and granting in part and denying in part 33 plaintiff's renewed motion for summary judgment. Signed by Judge John D. Bates on 10/30/2006. (lcjdb2) (Entered: 10/30/2006)
2006-10-30	43	MEMORANDUM AND OPINION explaining 42 order granting in part and denying in part 32 defendant's renewed motion for summary judgment and granting in part and denying in part 33 plaintiff's renewed motion for summary judgment. Signed by Judge John D. Bates on 10/30/2006. (lcjdb2) (Entered: 10/30/2006)
2007-12-10	44	NOTICE of Change of Address by James B. Dougherty (Dougherty, James) (Entered: 12/10/2007)
2008-08-28	45	MOTION for Hearing by EDMONDS INSTITUTE (Attachments: # 1 Exhibit Exhibit A)(Dougherty, James) (Entered: 08/28/2008)
2008-09-03	46	Memorandum in opposition to re 45 MOTION for Hearing filed by UNITED STATES DEPARTMENT OF THE INTERIOR. (Attachments: # 1 Declaration of Susan Mills, # 2 Text of Proposed Order)(Van Horn, Daniel) (Entered: 09/03/2008)
2008-09-04	47	REPLY to opposition to motion re 45 MOTION for Hearing Telephone Status Conference filed by EDMONDS INSTITUTE. (Attachments: # 1 Order (Proposed))(Dougherty, James) (Entered: 09/04/2008)
2008-09-09	48	ORDER denying 45 plaintiff's request for a telephone status conference. See order for details. Signed by Judge John D. Bates on 9/9/2008. (lcjdb2) (Entered: 09/09/2008)
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