Case Detail

FOIA Project Annotation: A federal court in Alaska has ruled that the National Oceanic and Atmospheric Administration and the National Marine Fisheries Service conducted an adequate search for records requested by the Inter-Cooperative Exchange, a cooperative of fishermen who harvest and deliver crab in the Bering Sea and Aleutian Islands, pertaining to the underlying rationale behind a motion introduced by Glenn Merrill, NMFS's Assistant Regional Administrator for the Alaska Region to consider costs under an arbitration system to guide price negotiations between harvesters and processors. The court also found that the agencies had properly withheld records under Exemption 5 (privileges). In response to the Inter-Cooperative Exchange's request, the agencies produced 146 records, including some redacted emails. The Inter-Cooperative Exchange filed an administrative appeal but filed suit before the agency responded, claiming that the search was inadequate and challenging the agency's claim that the attorney-client privilege applied to the withheld records. Merrill's declaration explained that although his first response inadvertently omitted the fact that he searched his cellphone and social media accounts he had conducted such a search and found no responsive records. The court noted that "based on Mr. Merrill's declaration, it is clear that Defendants conducted a search using reasonably calculated search terms and did not uncover any responsive records other than the ones already produced." The court added that "plaintiff infers that messages exchanged between councilmembers during council meetings must be official government business and that the existence of these messages undermines Mr. Merrill's claim that he does not conduct government business on his personal accounts." The Inter-Cooperative Exchange also argued that council members were not clients for purposes of the attorney-client privilege. The court disagreed, finding that "an attorney-client relationship does exist between all active participants in the email thread. The council and NMFS are clients of NOAA Office of General Counsel. The information contained in the email was made in confidence and intended to be protected from disclosure."
Issues: Exemption 5 - Privileges - Attorney-client privilege

Date Filed	Doc #	Docket Text
2018-10-02	1	COMPLAINT for Declaratory and Injunctive Relief Under FOIA against All Defendants ( Filing fee $ 400 receipt number 097--2588438.), filed by Inter-Cooperative Exchange. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3, # 4 Appendix 4, # 5 Appendix 5, # 6 Appendix 6, # 7 Appendix 7, # 8 Appendix 8, # 9 Appendix 9, # 10 Appendix 10, # 11 Appendix 11, # 12 Appendix 12, # 13 Civil Cover Sheet)(Richards, Andrew) (Entered: 10/02/2018)
2018-10-02	2	Corporate Disclosure Statement by Inter-Cooperative Exchange. (Richards, Andrew) (Entered: 10/02/2018)
2018-10-02	3	Civil Cover Sheet. (PXS, COURT STAFF) (Entered: 10/02/2018)
2018-10-02	4	Unissued summons re Defendant U.S. Attorney, (Attachments: # 1 Unissued Summons re Defendant U.S. Attorney General, # 2 Unissued Summons re Defendant United States Department of Commerce, # 3 Unissued Summons re Defendant National Oceanic and Atmospheric Administration, # 4 Unissued Summons re Defendant National Marine Fisheries Service)(PXS, COURT STAFF) (Entered: 10/02/2018)
2018-10-02		Summons Issued as to National Marine Fisheries Service, National Oceanic and Atmospheric Administration, United States Department of Commerce, U.S. Attorney and U.S. Attorney General (PXS, COURT STAFF) (Entered: 10/02/2018)
2018-10-08	5	AFFIDAVIT of Service via Certified Mail by Inter-Cooperative Exchange. (Richards, Andrew) (Entered: 10/08/2018)
2018-12-19	6	MOTION for Extension of Time to File Answer [Unopposed] by National Marine Fisheries Service, National Oceanic and Atmospheric Administration, United States Department of Commerce. (Attachments: # 1 Proposed Order)(Pomeroy, Richard) (Entered: 12/19/2018)
2018-12-26	7	TMB TEXT ORDER GRANTING 6 Motion for Extension of Time to File Answer. As agreed by the parties, Defendants' Answer is due on or before 1/4/2019. (NMG, CHAMBERS STAFF) (Entered: 12/26/2018)
2019-02-05	8	STIPULATION Recalculation of U.S. Answer Deadline by National Marine Fisheries Service, National Oceanic and Atmospheric Administration, United States Department of Commerce. (Attachments: # 1 Proposed Order)(Pomeroy, Richard) (Entered: 02/05/2019)
2019-02-06	9	TMB TEXT ORDER GRANTING 8 Stipulation Re Recalculation of U.S. Answer Deadline. The U.S. shall file its Answer to the Complaint on or before 2/22/2019. (NMG, CHAMBERS STAFF) (Entered: 02/06/2019)
2019-02-06	10	NOTICE of Withdrawal and Substitution of Counsel by Inter-Cooperative Exchange (Richards, Andrew) (Entered: 02/06/2019)
2019-02-22	11	ANSWER to 1 Complaint, by National Marine Fisheries Service, National Oceanic and Atmospheric Administration, United States Department of Commerce. (Attachments: # 1 Exhibit 1- Appeal Decision)(Pomeroy, Richard) (Entered: 02/22/2019)
2019-03-05	12	INITIAL CASE STATUS REPORT/CASE SCHEDULING AND PLANNING ORDER: Counsel for plaintiff shall serve and file the Rule 26 Meeting Report within 28 days of service of this order. (RMC, COURT STAFF) (Entered: 03/05/2019)
2019-04-02	13	REPORT of Rule 26(f) Planning Meeting. (DeLappe, Michelle) (Entered: 04/02/2019)
2019-05-24	14	Joint STIPULATION to Extend Briefing Schedule by National Marine Fisheries Service, National Oceanic and Atmospheric Administration, United States Department of Commerce. (Attachments: # 1 Proposed Order)(Pomeroy, Richard) (Entered: 05/24/2019)
2019-05-29	15	ORDER GRANTING 14 Joint Stipulation to Extend Briefing Schedule. Signed by Judge Timothy M. Burgess on 5/29/2019. (NMG, CHAMBERS STAFF) (Entered: 05/29/2019)
2019-05-29		Docket Annotation: For the purpose of tracking the briefing as ordered at docket 15 , when filing the Opening Brief the attorney shall file the document using the event Motion Miscellaneous Relief and text in the relief being sought. Responsive filings should be filed using the event Response in Opposition to Motion or Response to Motion (Non-Opposition) . The reply, if any, shall be filed using the event Reply to Response to Motion . (RMC, COURT STAFF) (Entered: 05/29/2019)
2019-06-17	16	Joint STIPULATION to Extend Briefing Schedule by National Marine Fisheries Service, National Oceanic and Atmospheric Administration, United States Department of Commerce. (Attachments: # 1 Proposed Order)(Pomeroy, Richard) (Entered: 06/17/2019)
2019-06-18	17	ORDER GRANTING 16 Joint Stipulation to Extend Briefing Scheduled. Signed by Judge Timothy M. Burgess on 6/18/2019. (NMG, CHAMBERS STAFF) (Entered: 06/18/2019)
2019-06-19		Docket Annotation: For the purpose of tracking the briefing as ordered at docket 17 , when filing the Opening Brief the attorney shall file the document using the event Motion Miscellaneous Relief and text in the relief being sought. Responsive filings should be filed using the event Response in Opposition to Motion or Response to Motion (Non-Opposition) . The reply, if any, shall be filed using the event Reply to Response to Motion . (RMC, COURT STAFF) (Entered: 06/19/2019)
2019-07-01	18	Joint STIPULATION to Extend Briefing Schedule by National Marine Fisheries Service, National Oceanic and Atmospheric Administration, United States Department of Commerce. (Attachments: # 1 Proposed Order)(Pomeroy, Richard) (Entered: 07/01/2019)
2019-07-02	19	ORDER GRANTING 18 Joint Stipulation to Extend Briefing Schedule. Signed by Judge Timothy M. Burgess on 7/2/2019. (NMG, CHAMBERS STAFF) (Entered: 07/02/2019)
2019-08-26	20	Joint STIPULATION to Extend Briefing Schedule by National Marine Fisheries Service, National Oceanic and Atmospheric Administration, United States Department of Commerce. (Attachments: # 1 Proposed Order)(Pomeroy, Richard) (Entered: 08/26/2019)
2019-09-03	21	MOTION for Summary Judgment by National Marine Fisheries Service, National Oceanic and Atmospheric Administration, United States Department of Commerce. (Attachments: # 1 Balsiger Declaration, # 2 Exhibit 1 to Balsiger Declaration Vaughn Index, # 3 Exhibit 2 to Balsiger Declaration, # 4 Exhibit 3 to Balsiger Declaration, # 5 Exhibit 4 to Balsiger Declaration Final Disposition Letter, # 6 Exhibit 5 to Balsiger Declaration, # 7 Exhibit 6 to Balsiger Declaration)(Pomeroy, Richard) (Entered: 09/03/2019)
2019-09-16	22	ORDER RE BRIEFING SCHEDULE. The 20 Joint Stipulation to Extend Briefing Schedule is ACCEPTED. Defendant's Motion at 21 is accepted as filed. Signed by Judge Timothy M. Burgess on 9/16/2019. (NMG, CHAMBERS STAFF) (Entered: 09/16/2019)
2019-09-24	23	RESPONSE in Opposition re 21 MOTION for Summary Judgment filed by Inter-Cooperative Exchange. (Attachments: # 1 Affidavit Declaration of Joseph M. Sullivan, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 9, # 11 Exhibit Exhibit 10)(DeLappe, Michelle) (Entered: 09/24/2019)
2019-09-24	24	MOTION for Discovery by Inter-Cooperative Exchange. (Attachments: # 1 Proposed Order [Proposed] Order Granting Motion for Discovery)(DeLappe, Michelle) (Entered: 09/24/2019)
2019-10-04	25	MOTION for Extension of Time to File Response/Reply as to 24 MOTION for Discovery by National Marine Fisheries Service, National Oceanic and Atmospheric Administration, United States Department of Commerce. (Attachments: # 1 Proposed Order)(Pomeroy, Richard) (Entered: 10/04/2019)
2019-10-04	26	NOTICE of Change of Law Firm Name and Address by Inter-Cooperative Exchange (DeLappe, Michelle) (Entered: 10/04/2019)
2019-10-04	27	RESPONSE in Opposition re 25 MOTION for Extension of Time to File Response/Reply as to 24 MOTION for Discovery filed by Inter-Cooperative Exchange. (Attachments: # 1 Proposed Order)(DeLappe, Michelle) (Entered: 10/04/2019)
2019-10-08	28	REPLY to Response to Motion re 21 MOTION for Summary Judgment filed by National Marine Fisheries Service, National Oceanic and Atmospheric Administration, United States Department of Commerce. (Attachments: # 1 Exhibit A- G. Merrill Declaration)(Pomeroy, Richard) (Entered: 10/08/2019)
2019-10-08	29	RESPONSE in Opposition re 24 MOTION for Discovery filed by National Marine Fisheries Service, National Oceanic and Atmospheric Administration, United States Department of Commerce. (Pomeroy, Richard) (Entered: 10/08/2019)
2019-10-09	30	ERRATA by National Marine Fisheries Service, National Oceanic and Atmospheric Administration, United States Department of Commerce 28 Reply to Response to Motion, filed by United States Department of Commerce, National Marine Fisheries Service, National Oceanic and Atmospheric Administration. (Attachments: # 1 Exhibit 1 to Merrill Declaration)(Pomeroy, Richard) (Entered: 10/09/2019)
2019-10-10	31	TMB TEXT ORDER DENYING as moot 25 Motion for Extension of Time to File Response/Reply. Defendants filed their 29 Response to 24 on 10/8/2019. (NMG, CHAMBERS STAFF) (Entered: 10/10/2019)
2019-10-15	32	REPLY to Response to Motion re 24 MOTION for Discovery Reply In Support of Motion for Written Discovery filed by Inter-Cooperative Exchange. (DeLappe, Michelle) (Entered: 10/15/2019)
2019-11-07	33	ORDER GRANTING ORAL ARGUMENT REQUESTS . The Motion Hearing on 21 and 24 is set for 11/25/2019 at 3:00 PM in Anchorage Courtroom 1 before Judge Timothy M. Burgess. Signed by Judge Timothy M. Burgess on 11/7/2019. (NMG, CHAMBERS STAFF) (Entered: 11/07/2019)
2019-11-25	34	Minute Entry for proceedings held before Judge Timothy M. Burgess: Hearing on Motion for Summary Judgment 21 and Motion for Discovery 24 held 3:09 p.m. to 3:39 p.m. on 11/25/2019. Oral arguments heard. MATTERS TAKEN UNDER ADVISEMENT; written rulings to issue. APPEARANCES: Michelle DeLappe for plaintiff; Richard L. Pomeroy for defendants. (RMC, COURT STAFF) (Entered: 11/25/2019)
2019-12-16	35	ORDER GRANTING 21 Motion for Summary Judgment; and DENYING 24 Motion for Discovery. Signed by Judge Timothy M. Burgess on 12/16/2019. (NMG, CHAMBERS STAFF) (Entered: 12/16/2019)
2020-01-03	36	JUDGMENT: plaintiff take nothing, action is dismissed. Signed by Judge Timothy M. Burgess on 1/3/20. (RMC, COURT STAFF) (Entered: 01/03/2020)
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