Case Detail

FOIA Project Annotation: Judge Amy Berman Jackson has ruled that the Bureau of Indian Affairs failed to show that two redacted documents concerning a visit by two BIA employees â€" Bryan Bald Eagle and Jimmy Gibson, Jr. â€" to the Cayuga Nation reservation in upstate New York to discuss its court and police department are not privileged under Exemption 5 (privileges) in response to a FOIA request from the Cayuga Nation. The two remaining documents consisted of a five-page "Trip Report" prepared by Gibson concerning the meetings he and Bald Eagle attended during their March 2020 visit to the Cayuga Nation reservation. Three pages were released in full while two pages were redacted under Exemption 5. The second document was a "Briefing Report," a working document prepared by a Special Agent in Charge for the BIA Office of Justice Services and updated several times to provide BIA-OJS leadership with an ongoing analysis about emergencies, disputes, and significant incidents at Cayuga Nation that occurred in February and March 2020. This report was redacted under Exemption 5, as well as Exemption 6 (invasion of privacy), Exemption 7(C) (invasion of privacy concerning law enforcement records), and Exemption 7(D) (confidential sources). The Cayuga Nation challenged the adequacy of the agency's search. Berman Jackson agreed, finding the search inadequate on its face because the agency failed to ask either Gibson or Bald Eagle to search their own records. She observed that "in failing to reach out to either Bryan Bald Eagle or Jimmy Gibson, Jr., the government's search was not 'reasonably calculated to uncover all relevant documents,' as both were likely to have 'notes, memoranda, correspondence, draft or final reports related to the visit.' The relevance of these two men should have been obvious after the Trip Report was located, and it turned out to have been written by Gibson." She pointed out that "here, the agency did not follow through on obvious leads: the names of Bryan Bald Eagle and Jimmy Gibson, Jr. were prominently mentioned in the FOIA request itself." Turning to the exemption claims, Berman Jackson rejected the agency's claim that its redactions were protected by the deliberative process privilege. She found that the agency's explanation of what decision was involved was too vague. She pointed out that "the deliberative process privilege is meant to protect the 'give-and-take of the consultative process,' but it is not meant to shield all communications between a subordinate and a superior." She observed that "the Court's in camera review of the withheld portion here reveals that while the two sentences do include the writer's impressions, they do not consider any future action, on the part of the agency, and they do not appear to be tied to any particular agency decision- or decision-making process." She also rejected the agency's claim that statements made by James Kennedy, the U.S. Attorney for the Western District of New York, were protected by the attorney-client privilege. Instead, Berman Jackson noted that Kennedy "is not identified as an attorney for the agency," and observed that "the in camera review did not reveal that Kennedy was offering an opinion based on information confidentially provided to him by the BIA; he appeared to be summarizing events to which he had personal knowledge." Berman Jackson found that the agency had properly applied Exemption 7(D). She noted that "here, the agency provided the declaration of the investigator with personal knowledge of the express assurance he provided, and it goes on to detail the steps taken to ensure the confidentiality of the information he gathered."
Issues: Adequacy - Search, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 7(D) - Assurance of confidentiality

Date Filed	Doc #	Docket Text
2020-09-18	1	COMPLAINT against U.S. DEPARTMENT OF INTERIOR ( Filing fee $ 400 receipt number ADCDC-7609217) filed by CAYUGA NATION. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Related Case Form)(Nugent, Gabriel) (Entered: 09/18/2020)
2020-09-18	2	NOTICE OF RELATED CASE by CAYUGA NATION. Case related to Case No. 20-cv-1581-ABJ. (adh, ) (Entered: 09/22/2020)
2020-09-22		Case Assigned to Judge Amy Berman Jackson. (adh, ) (Entered: 09/22/2020)
2020-09-22	3	SUMMONS (1) Issued Electronically as to U.S. DEPARTMENT OF INTERIOR. (Attachment: # 1 Notice and Consent)(adh, ) (Entered: 09/22/2020)
2020-09-29	4	ENTERED IN ERROR.....REQUEST FOR SUMMONS TO ISSUE to USAG and DC Dist/US Atty filed by CAYUGA NATION. (Attachments: # 1 Summons Summons to USAO)(Nugent, Gabriel) Modified on 10/1/2020 (zjf). (Entered: 09/29/2020)
2020-10-01		NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 4 Request for Summons to Issue was entered in error and counsel was instructed to refile said pleading using the FOIA Summons. (zjf) (Entered: 10/01/2020)
2020-10-02	5	REQUEST FOR SUMMONS TO ISSUE to Attorney General and US Atty. filed by CAYUGA NATION. (Attachments: # 1 Summons Summons to USAO)(Nugent, Gabriel) (Entered: 10/02/2020)
2020-10-02	6	SUMMONS (2) Issued Electronically as to U.S. Attorney and U.S. Attorney General (zjf) (Entered: 10/02/2020)
2020-11-13	7	NOTICE of Appearance by Darrell C. Valdez on behalf of U.S. DEPARTMENT OF INTERIOR (Valdez, Darrell) (Entered: 11/13/2020)
2020-11-13	8	ANSWER to Complaint by U.S. DEPARTMENT OF INTERIOR.(Valdez, Darrell) (Entered: 11/13/2020)
2020-11-16		MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. The requirements of Local Civil Rule 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure appear to be inapplicable. Defendant shall file a dispositive motion or, in the alternative, a report setting forth the schedule for the completion of its production of documents to plaintiff, on or before December 14, 2020. SO ORDERED. Signed by Judge Amy Berman Jackson on 11/16/2020. (lcabj1) (Entered: 11/16/2020)
2020-12-14	9	STATUS REPORT by U.S. DEPARTMENT OF INTERIOR. (Valdez, Darrell) (Entered: 12/14/2020)
2020-12-21		MINUTE ORDER. The parties must submit a joint status report by January 18, 2021. SO ORDERED. Signed by Judge Amy Berman Jackson on 12/21/2020. (lcabj1) (Entered: 12/21/2020)
2021-01-14	10	NOTICE of Appearance by David W. DeBruin on behalf of CAYUGA NATION (DeBruin, David) (Entered: 01/14/2021)
2021-01-19	11	Joint STATUS REPORT by U.S. DEPARTMENT OF INTERIOR. (Valdez, Darrell) (Entered: 01/19/2021)
2021-01-21		MINUTE ORDER. The parties must submit a joint status report by February 5, 2021. SO ORDERED. Signed by Judge Amy Berman Jackson on 1/21/2021. (lcabj1) (Entered: 01/21/2021)
2021-02-05	12	Joint STATUS REPORT by U.S. DEPARTMENT OF INTERIOR. (Valdez, Darrell) (Entered: 02/05/2021)
2021-02-05		MINUTE ORDER. The parties must submit a joint status report by February 19, 2021. Signed by Judge Amy Berman Jackson on 2/5/2021. (lcabj1) (Entered: 02/05/2021)
2021-02-19	13	Joint STATUS REPORT by U.S. DEPARTMENT OF INTERIOR. (Valdez, Darrell) (Entered: 02/19/2021)
2021-02-22		MINUTE ORDER. Defendant must file its motion for summary judgment by April 6, 2021; plaintiff must file its combined cross-motion and opposition to defendant's motion by May 6, 2021; defendant must file its combined reply and cross-opposition by May 27, 2021; and plaintiff must file its cross-reply by June 17, 2021. SO ORDERED. Signed by Judge Amy Berman Jackson on 2/22/2021. (lcabj1) (Entered: 02/22/2021)
2021-04-02	14	Consent MOTION for Extension of Time to File Dispositive Motions by U.S. DEPARTMENT OF INTERIOR. (Attachments: # 1 Text of Proposed Order)(Valdez, Darrell) (Entered: 04/02/2021)
2021-04-06		MINUTE ORDER. Consent Motion to Amend Dispositive Motions Schedule 14 is GRANTED. Defendant must submit its motion for summary judgment by May 7, 2021; plaintiff must file its combined opposition and cross-motion by June 7, 2021; defendant must file its combined reply and opposition to plaintiff's cross-motion by June 28, 2021; and plaintiff must file its reply by July 19, 2021. SO ORDERED. Signed by Judge Amy Berman Jackson on 4/6/2021. (lcabj1) (Entered: 04/06/2021)
2021-04-30	15	Consent MOTION for Extension of Time to File Dispositive Motions by U.S. DEPARTMENT OF INTERIOR. (Attachments: # 1 Text of Proposed Order)(Valdez, Darrell) (Entered: 04/30/2021)
2021-05-03		MINUTE ORDER. 15 Motion for Extension of Time is GRANTED. Defendant must submit its motion for summary judgment by May 21, 2021; plaintiff must file its combined opposition and cross-motion by June 21, 2021; defendant must file its combined reply and opposition to plaintiff's cross-motion by July 12, 2021; and plaintiff must file its reply by August 2, 2021. SO ORDERED. Signed by Judge Amy Berman Jackson on 5/3/2021. (lcabj1) (Entered: 05/03/2021)
2021-05-21	16	MOTION for Summary Judgment by U.S. DEPARTMENT OF INTERIOR. (Attachments: # 1 Statement of Facts, # 2 Declaration Rebecca Smith, # 3 Declaration Cynthia Elia, # 4 Declaration SAC Terrell Leonard, # 5 Text of Proposed Order)(Valdez, Darrell) (Entered: 05/21/2021)
2021-06-14	17	Consent MOTION for Extension of Time to File Dispositive Motions by CAYUGA NATION. (Attachments: # 1 Text of Proposed Order)(DeBruin, David) (Entered: 06/14/2021)
2021-06-14		MINUTE ORDER. 17 Motion for Extension of Time is GRANTED. Plaintiff must file its combined cross-motion and opposition to defendants' motion by July 6, 2021; defendants must file their combined reply and cross-opposition by July 27, 2021; and plaintiff must file its reply in support of the cross-motion by August 17, 2021. SO ORDERED. Signed by Judge Amy Berman Jackson on 6/14/2021. (lcabj1) (Entered: 06/14/2021)
2021-07-06	18	Cross MOTION for Summary Judgment by CAYUGA NATION. (Attachments: # 1 Memorandum in Support, # 2 Declaration of Gabriel M. Nugent, # 3 Exhibit A to Declaration, # 4 Exhibit B to Declaration, # 5 Exhibit C to Declaration, # 6 Exhibit D to Declaration, # 7 Exhibit E to Declaration, # 8 Exhibit F to Declaration, # 9 Exhibit G to Declaration, # 10 Exhibit H to Declaration, # 11 Exhibit I to Declaration, # 12 Exhibit J to Declaration, # 13 Exhibit K to Declaration, # 14 Exhibit L to Declaration, # 15 Exhibit M to Declaration, # 16 Statement of Material Facts Not In Genuine Dispute, # 17 Text of Proposed Order)(DeBruin, David) (Entered: 07/06/2021)
2021-07-06	19	Memorandum in opposition to re 16 MOTION for Summary Judgment filed by CAYUGA NATION. (DeBruin, David) (Entered: 07/06/2021)
2021-07-23	20	Consent MOTION for Extension of Time to File Response/Reply as to 18 Cross MOTION for Summary Judgment, 16 MOTION for Summary Judgment by U.S. DEPARTMENT OF INTERIOR. (Attachments: # 1 Text of Proposed Order)(Valdez, Darrell) (Entered: 07/23/2021)
2021-07-26		MINUTE ORDER. 20 Motion for Extension of Time is GRANTED. Defendant must file its combined reply and cross-opposition by July 30, 2021; plaintiff must file its cross-reply by August 20, 2021. SO ORDERED. Signed by Judge Amy Berman Jackson on 7/26/2021. (lcabj1) (Entered: 07/26/2021)
2021-07-30	21	MOTION to Strike 18 Cross MOTION for Summary Judgment, 19 Memorandum in Opposition by U.S. DEPARTMENT OF INTERIOR. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Valdez, Darrell) (Entered: 07/30/2021)
2021-08-02		MINUTE ORDER. On July 23, 2021, defendant filed a consent motion for extension of time 20 proposing to file its combined opposition to plaintiff's cross motion for summary judgment and reply in support of its motion for summary judgment on July 30, 2021. ("Due to witness availability issues caused by holiday and summer vacation schedules Defendants have been unable to timely prepare a necessary declaration in this matter. Defendants believe that they will be able to finalize the declaration and the Reply/Cross- Opposition with a three-day extension. Accordingly, Defendants request that the Court modify the dispositive motion schedule by three days to allow Defendants time to complete their Reply/Cross-Opposition.") But on July 30, defendant filed a Motion to Strike 21 in lieu of the opposition that was due. See Minute Order dated 7/26/21. It is hereby ORDERED that further briefing of the motion 21 is STAYED pending further order of the Court, the schedule for summary judgment briefing is hereby SUSPENDED, and a telephonic scheduling conference on the record will be held on August 5, 2021 at 2:00 PM. The call-in information will be provided by the Court's Deputy Clerk by separate email. SO ORDERED. Signed by Judge Amy Berman Jackson on 8/2/2021. (lcabj1) (Entered: 08/02/2021)
2021-08-03	22	RESPONSE re 21 MOTION to Strike 18 Cross MOTION for Summary Judgment, 19 Memorandum in Opposition filed by CAYUGA NATION. (DeBruin, David) (Entered: 08/03/2021)
2021-08-05		Minute Entry for Proceedings held before Judge Amy Berman Jackson: Telephone Scheduling Conference Call held on 8/5/2021. For the reasons stated on the record during the call, Defendant's 21 Motion to Strike is DENIED. The following revised schedule shall now apply: Defendant's Reply in Support of its Motion for Summary Judgment and Opposition to Plaintiff's Cross Motion for Summary Judgment is due by 8/13/2021; any Reply by Plaintiff to its Cross Motion for Summary Judgment is due by 9/3/2021. (Court Reporter: Janice Dickman) (jth) (Entered: 08/05/2021)
2021-08-13	23	Memorandum in opposition to re 18 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF INTERIOR. (Attachments: # 1 Statement of Facts, # 2 Declaration Smith Supp., # 3 Declaration AUSA Valdez, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Text of Proposed Order)(Valdez, Darrell) (Entered: 08/13/2021)
2021-08-13	24	REPLY to opposition to motion re 16 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF INTERIOR. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Valdez, Darrell) (Entered: 08/13/2021)
2021-09-03	25	REPLY to opposition to motion re 18 Cross MOTION for Summary Judgment filed by CAYUGA NATION. (DeBruin, David) (Entered: 09/03/2021)
2022-02-24		MINUTE ORDER. In order to assist the Court in making a responsible de novo determination, defendant is ORDERED to submit unredacted versions of the documents that are at issue in this case (the Briefing Report and the Trip Report) for in camera inspection. See Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). The documents must be submitted by March 1, 2022. SO ORDERED. Signed by Judge Amy Berman Jackson on 2/24/2022. (lcabj1) (Entered: 02/24/2022)
2022-02-25		Set/Reset Deadline: In Camera submission from Defendant is due by 3/1/2022. (jth) (Entered: 02/25/2022)
2022-02-28	26	NOTICE of Delivery of Documents for In Camera Review by U.S. DEPARTMENT OF INTERIOR re Order,, Set Deadlines, (Valdez, Darrell) (Entered: 02/28/2022)
2022-03-25	27	ORDER. For the reasons stated in the accompanying Memorandum Opinion, Defendant's Motion for Summary Judgment 16 is GRANTED in part and DENIED in part, and Plaintiff's Cross-Motion for Summary Judgment 18 is also GRANTED in part and DENIED in part. See Order for details. Signed by Judge Amy Berman Jackson on 3/25/2022. (lcabj1) (Entered: 03/25/2022)
2022-03-25	28	MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 3/25/2022. (lcabj1) (Entered: 03/25/2022)
2022-04-20	29	NOTICE of Change of Address by Darrell C. Valdez (Valdez, Darrell) (Entered: 04/20/2022)
2022-04-20	30	Consent MOTION for Extension of Time to Comply with Court Order by U.S. DEPARTMENT OF INTERIOR. (Attachments: # 1 Text of Proposed Order)(Valdez, Darrell) (Entered: 04/20/2022)
2022-04-21		MINUTE ORDER. 30 Motion for Extension is GRANTED. Defendant is ORDERED to provide plaintiff with the documents and other matters related to Count II of the Complaint by May 9, 2022. The parties must submit a joint status report concerning the results of a further search of records, per Count I of the Complaint, by May 23, 2022. SO ORDERED. Signed by Judge Amy Berman Jackson on 4/21/2022. (lcabj1) (Entered: 04/21/2022)
2022-04-29	31	MOTION to Amend/Correct 28 Memorandum & Opinion, 27 Order on Motion for Summary Judgment,,,, Set/Reset Deadlines, by U.S. DEPARTMENT OF INTERIOR. (Attachments: # 1 Text of Proposed Order)(Valdez, Darrell) (Entered: 04/29/2022)
2022-04-29	32	MOTION for Extension of Time to disclose disputed record , MOTION to Clarify by U.S. DEPARTMENT OF INTERIOR. (Attachments: # 1 Text of Proposed Order)(Valdez, Darrell). Added MOTION to Clarify on 4/29/2022 (zjf). (Entered: 04/29/2022)
2022-05-03		MINUTE ORDER. In order to assist with consideration of the pending motions, the defendant is ORDERED to again submit unredacted versions of the documents that are at issue in this case (the Briefing Report and the Trip Report) for in camera inspection by May 6, 2022. The Court apologizes for the inconvenience. Signed by Judge Amy Berman Jackson on 5/3/2022. (lcabj1) (Entered: 05/03/2022)
2022-05-05	33	NOTICE of Delivery of Documents for In Camera Review by U.S. DEPARTMENT OF INTERIOR re Order,, Set Deadlines, 31 MOTION to Amend/Correct 28 Memorandum & Opinion, 27 Order on Motion for Summary Judgment,,,, Set/Reset Deadlines, (Valdez, Darrell) (Entered: 05/05/2022)
2022-05-09	34	NOTICE OF SUPPLEMENTAL AUTHORITY by U.S. DEPARTMENT OF INTERIOR (Attachments: # 1 Declaration, # 2 Exhibit Revised Redacted Trip Report)(Valdez, Darrell) (Entered: 05/09/2022)
2022-05-09	35	NOTICE of Compliance with Court Order by U.S. DEPARTMENT OF INTERIOR re 27 Order on Motion for Summary Judgment,,,, Set/Reset Deadlines, (Valdez, Darrell) (Entered: 05/09/2022)
2022-05-11		MINUTE ORDER. Defendant's motion for clarification 31 is GRANTED. Defendant need not produce "[t]he first sentence of the second paragraph under 'District Office Response and Other Coordination' on page three" of the Briefing Report, as that sentence is indeed protected by FOIA Exemption 7(D). As a result, the motion for an extension of time to produce the record 32 is moot. Additionally, the Court finds that defendant's supplemental declaration [34-1] is sufficient to support the agency's invocation of FOIA Exemption b(5), and the attorney-client privilege, to withhold that portion of pages 4-5 of the Trip Report under the heading "Cayuga BIA Outreach Continued," summarizing a March 18, 2020 meeting with the then-U.S. Attorney James Kennedy. Thus, the withholdings proposed in the Revised Redacted Trip Report [34-2] are proper, and defendant's motion for summary judgment 16 will be granted with respect to that issue and the plaintiff's cross-motion 18 will be denied as to that issue. SO ORDERED. Signed by Judge Amy Berman Jackson on 5/11/2022. (lcabj1) (Entered: 05/11/2022)
2022-05-23	36	Joint STATUS REPORT by U.S. DEPARTMENT OF INTERIOR. (Valdez, Darrell) (Entered: 05/23/2022)
2022-05-24		MINUTE ORDER. Pursuant to the recent status report 36 , it is ORDERED that the parties submit a further status report by June 15, 2022 if a stipulation of dismissal is not filed by that date. SO ORDERED. Signed by Judge Amy Berman Jackson on 5/24/22. (DMK) (Entered: 05/24/2022)
2022-06-15	37	STIPULATION of Dismissal by U.S. DEPARTMENT OF INTERIOR. (Valdez, Darrell) (Entered: 06/15/2022)
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