Case Detail

FOIA Project Annotation: A federal court in Washington has ruled that a biological evaluation prepared for BP by a consultant is not protected by Exemption 5 (privileges), although the court also found that the biological evaluation did not qualify as an agency record under FOIA. Friends of the Earth filed a request with the U.S. Army Corps of Engineers for records about the potential environmental impact of the North Wing Dock at the Cherry Point Refinery Marine Terminal, a second dock at the Terminal that BP was hoping to construct. BP hired a consultant that prepared a biological evaluation that the Corps reviewed and adopted. But the agency refused to disclose the biological evaluation to Friends of the Earth, claiming it was privileged under Exemption 5. The Corps argued that once it adopted BP's biological evaluation, it became the agency's decision as well. The agency also contended that the BP biological evaluation was protected under the consultant corollary because BP and the agency shared a common interest. The court pointed out that, regardless of being adopted by the Corps, the BP biological evaluation was not an agency record. The court explained that "the Corps has not identified a single case in which an agency's 'adoption' transforms a third-party document into a federal agency-created document. The March 2017 BE was created by a third-party consultant for BP, and BP â€" not the consultant â€" submitted the BE to the Corps. As a result, the March 2017 BE is not a federal agency document subject to exemption." The court then found that even if the record qualified as an agency record, it was not privileged because it was not pre-decisional but instead represented the agency's final decision. Further, the court noted that any privilege the agency could assert was waived because the document originated with BP, a third party. The court observed that "in this case, BP is a third party seeking a permit from the Corps, and it has received preferential treatment (i.e. advance disclosure of the March 2017 BE) relative to other members of the public. The interests of BP are inconsistent with Plaintiff's interest in disclosure and the outcome of the permitting process. As a result, the document is not protected by Exemption 5 because it has already 'seen the light of day.'"
Issues: Exemption 5 - Inter- or intra-agency record, Agency Record

Date Filed	Doc #	Docket Text
2018-05-10	1	COMPLAINT against defendant(s) U.S. Army Corps of Engineers (Receipt # 0981-5313089), filed by Friends of the Earth. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Kampmeier, Paul) (Entered: 05/10/2018)
2018-05-10	2	CORPORATE DISCLOSURE STATEMENT indicating no Corporate Parents and/or Affiliates. Filed pursuant to Fed.R.Civ.P 7.1. Filed by Friends of the Earth (Kampmeier, Paul) (Entered: 05/10/2018)
2018-05-11		Judge Thomas S. Zilly added. (RE) (Entered: 05/11/2018)
2018-05-11	3	Summons(es) electronically issued as to defendant(s) U.S. Army Corps of Engineers. (RE) (Entered: 05/11/2018)
2018-05-15	4	CERTIFICATE OF SERVICE by Plaintiff Friends of the Earth (Kampmeier, Paul) (Entered: 05/15/2018)
2018-05-25	5	ORDER directing counsel to confer and file a Joint Status Report due by 8/24/2018, by Judge Thomas S. Zilly. (SWT) (Entered: 05/25/2018)
2018-05-29	6	SERVICE OF SUMMONS and Complaint returned executed upon defendant U.S. Army Corps of Engineers on 5/21/2018 (Kampmeier, Paul) (Entered: 05/29/2018)
2018-06-18	7	NOTICE of Appearance by attorney Michelle R. Lambert on behalf of Defendant U.S. Army Corps of Engineers. (Lambert, Michelle) (Entered: 06/18/2018)
2018-06-18	8	ANSWER to 1 Complaint by U.S. Army Corps of Engineers.(Lambert, Michelle) (Entered: 06/18/2018)
2018-07-16	9	NOTICE of Appearance by attorney Brian Alan Knutsen on behalf of Plaintiff Friends of the Earth. (Knutsen, Brian) (Entered: 07/16/2018)
2018-08-02	10	JOINT STATUS REPORT signed by all parties estimated Trial Days: 0. (Kampmeier, Paul) (Entered: 08/02/2018)
2018-08-02	11	Joint Stipulated MOTION for Entry of Order Establishing Briefing Schedule , filed by Plaintiff Friends of the Earth. (Attachments: # 1 Proposed Order) Noting Date 8/2/2018, (Kampmeier, Paul) (Entered: 08/02/2018)
2018-08-03	12	MINUTE ORDER re parties' 10 Joint Status Report. The Court sets the following dates and deadlines: Bench Trial is set for 7/15/2019 before Judge Thomas S. Zilly; Deadline for defendant to file any dispositive motion is 8/24/2018; Agreed pretrial order due 6/20/2019; Trial briefs and proposed findings of fact and conclusions of law due 6/20/2019; Pretrial conference scheduled for 1:30 p.m. on 6/28/2019. The parties' joint motion, docket no. 11 , to establish a briefing schedule for dispositive motions is GRANTED. The dates and deadlines set forth herein are firm and can be changed only by order of the Court. Authorized by Judge Thomas S. Zilly. (TH) (Entered: 08/03/2018)
2018-08-24	13	MOTION for Summary Judgment , filed by Defendant U.S. Army Corps of Engineers. (Attachments: # 1 Proposed Order) Noting Date 10/19/2018, (Lambert, Michelle) (Entered: 08/24/2018)
2018-08-24	14	DECLARATION of Hynes filed by Defendant U.S. Army Corps of Engineers re 13 MOTION for Summary Judgment (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Lambert, Michelle) (Entered: 08/24/2018)
2018-08-24	15	DECLARATION of Martin filed by Defendant U.S. Army Corps of Engineers re 13 MOTION for Summary Judgment (Lambert, Michelle) (Entered: 08/24/2018)
2018-09-06	16	Unopposed MOTION Clarify Scope of Review and Extend Administrative Record Deadlines , filed by Plaintiff Friends of the Earth. (Attachments: # 1 Proposed Order) Noting Date 9/6/2018, (Kampmeier, Paul) (Entered: 09/06/2018)
2018-09-19	17	MINUTE ORDER granting in part and deferring plaintiff's 16 Motion to Clarify Scope of Review and Extend Certain Deadlines; striking deadline for filing administrative record and filing any motion to supplement the administrative record. Authorized by Judge Thomas S. Zilly. (SWT) (Entered: 09/19/2018)
2018-09-21	18	CROSS-MOTION AND RESPONSE re 13 MOTION for Summary Judgment ., filed by Plaintiff Friends of the Earth. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 10/19/2018, (Kampmeier, Paul) (Entered: 09/21/2018)
2018-09-21	19	DECLARATION of Fred Felleman filed by Plaintiff Friends of the Earth re 18 CROSS-MOTION AND RESPONSE re 13 MOTION for Summary Judgment . (Kampmeier, Paul) (Entered: 09/21/2018)
2018-09-21	20	DECLARATION of Marcelin Keever filed by Plaintiff Friends of the Earth re 18 CROSS-MOTION AND RESPONSE re 13 MOTION for Summary Judgment . (Kampmeier, Paul) (Entered: 09/21/2018)
2018-09-21	21	DECLARATION of Paul Kampmeier filed by Plaintiff Friends of the Earth re 18 CROSS-MOTION AND RESPONSE re 13 MOTION for Summary Judgment . (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Kampmeier, Paul) (Entered: 09/21/2018)
2018-10-05	22	REPLY, filed by Defendant U.S. Army Corps of Engineers, TO RESPONSE to 13 MOTION for Summary Judgment (Lambert, Michelle) (Entered: 10/05/2018)
2018-10-05	23	DECLARATION of Martin filed by Defendant U.S. Army Corps of Engineers re 13 MOTION for Summary Judgment (Lambert, Michelle) (Entered: 10/05/2018)
2018-10-19	24	REPLY, filed by Plaintiff Friends of the Earth, TO RESPONSE to 18 CROSS-MOTION AND RESPONSE re 13 MOTION for Summary Judgment . (Kampmeier, Paul) (Entered: 10/19/2018)
2019-01-18	25	NOTICE of Supplemental Authority by Plaintiff Friends of the Earth (Kampmeier, Paul) (Entered: 01/18/2019)
2019-01-30	26	ORDER granting in part plaintiff's 18 Motion for Summary Judgment; granting in part defendant's 13 Motion for Summary Judgment; dismissing Claim 4 of 1 Complaint. Signed by Judge Thomas S. Zilly.(SWT) (Entered: 01/30/2019)
2019-02-14	27	JUDGMENT BY COURT: Plaintiff's Motion for Summary Judgment is GRANTED in part and DENIED in part. With respect to Claim 1, the Court finds that Defendant the U.S. Army Corps of Engineers did not resolve Plaintiff's FOIA Appeal within the deadline set forth in the FOIA. 5 U.S.C. § 552(a)(6)(A)(ii). The Court further finds that the Corps' delay in resolving Plaintiff's FOIA Appeal warrants summary judgment and declaratory relief in Plaintiff's favor on Claim 1. With respect to Claim 2, the Court GRANTS Plaintiff's Motion for Summary Judgment and Defendant is ORDERED to provide the March 2017 BE to Plaintiff on or before 2/19/2019. Defendant's Motion for Summary Judgment is GRANTED in part. Claim 4 of the Complaint is DISMISSED. (LW) (Entered: 02/14/2019)
Hide Docket Events