Case Detail

FOIA Project Annotation: Judge Richard Roberts has ruled that an ecological assessment prepared for the Forest Service by the Hoosier-Shawnee Ecological Analysis Committee must be disclosed to Heartwood, Inc. after finding that it is not protected by Exemption 5 (deliberative process privilege). The agency put together the committee to prepare an assessment of the Shawnee and Hoosier National Forests. Committee membership consisted of scientists from state universities and government. The members worked independently, but did meet as a group twice. When Heartwood asked for two reports prepared by committee members, the agency denied the request under Exemption 5. Roberts first found that the committee was subject to the Federal Advisory Committee Act and noted that "because the HSEAC is an advisory committee within the meaning of the FACA, the USFS must release the draft reports Heartwood requested, unless the drafts are otherwise protected by the FOIA." He then pointed out that Exemption 5 was not available to the committee itself, but could apply if the committee's reports were used by the agency in its deliberative process. Rejecting the agency's claim, Roberts observed that "although the USFS argues that the drafts are deliberative because they 'convey opinions and offer conclusions and methodology for [the] USFS to embrace or reject,' the record evidence shows that USFS believed the drafts of the ecological assessment and the ecological assessment itself contain no recommendations or policy judgments and should be treated as purely factual documents. . .The HSEAC was explicitly admonished not to include recommendations or opinions in the draft reports of the ecological assessment." He added that "to the extent that the comparison between the drafts and the final assessment would reveal any changes to the drafts the USFS employees made, the release of the HSEAC drafts would not reveal the agency's deliberative process because the purpose of the agency's review â€" to produce the ecological assessment â€" did not culminate in a policy decision, and thus could not reveal any process by which such decisions are made."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2002-09-27	1	COMPLAINT against UNITED STATES FOREST SERVICE ( Filing fee $150 ). Filed by MARK DONHAM, HEARTWOOD, INC.. (nmr, ) (Entered: 09/30/2002)
2002-09-27		SUMMONS (3) Issued as to UNITED STATES FOREST SERVICE , U.S. Attorney and U.S. Attorney General (nmr, ) (Entered: 09/30/2002)
2002-09-27	2	LCvR 26.1 - CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by plaintiff Heartwood, Inc. (nmr, ) (Entered: 09/30/2002)
2002-10-07	3	MOTION for Leave to Appear Pro Hac Vice by MARK DONHAM, HEARTWOOD, INC.. (Attachments: # 1 Affidavit Pro Hac Vice Dec of M. Kenna, Esq.)(Dougherty, James) (Entered: 10/07/2002)
2002-10-07	4	NOTICE re 3 Filing of Draft Court Order by all plaintiffs (Dougherty, James) (Entered: 10/07/2002)
2002-10-17	5	MOTION for Leave to Appear Pro Hac Vice by MARK DONHAM, HEARTWOOD, INC.. (Attachments: # 1 Affidavit Declaration of M Kenna# 2 draft Order for Court)(Dougherty, James) (Entered: 10/17/2002)
2002-10-21	6	ATTORNEY APPEARANCE. (McDaniel, Oliver) (Entered: 10/21/2002)
2002-10-24		Minute Entry: Motions for Matt Kenna to appear pro hac vice as counsel for plaintiffs [5,3] granted and terminated. (TDR) (Entered: 10/24/2002)
2002-11-04	7	MOTION for Extension of Time to File Answer re 1 Complaint by UNITED STATES FOREST SERVICE. (McDaniel, Oliver) (Entered: 11/04/2002)
2002-11-14	8	AMENDED COMPLAINT. Filed by MARK DONHAM, HEARTWOOD, INC.. (nmr, ) (Entered: 11/15/2002)
2002-11-18		Minute Entry: Motion for enlargment of time 7 granted and terminated. Defendant's response to plaintiffs' complaint due by 12/10/2002.(TDR) (Entered: 11/18/2002)
2002-12-10	9	MOTION for Summary Judgment and Memorandum in Support Thereof; Statement of Material Facts Not In Genuine Dispute by UNITED STATES FOREST SERVICE. Responses due by 12/26/2002 (Attachments: # 1 Declaration of Rita Morgan# 2 Declaration of Kelle Reynolds# 3 Declaration of Dr. Frank Thompson, III# 4 Text of Proposed Order)(McDaniel, Oliver) (Entered: 12/10/2002)
2002-12-19	10	Cross MOTION for Summary Judgment by MARK DONHAM, HEARTWOOD, INC.. Responses due by 12/30/2002 (Attachments: # 1 Statement of Material Facts# 2 Memorandum in Support/Response to Cross-Motion# 3 Exhibit Exhibit A# 4 Exhibit Exhibit B# 5 Text of Proposed Order Proposed Order)(Kenna, Matthew) (Entered: 12/19/2002)
2002-12-23	11	Joint MOTION for Order Setting Briefing Schedule on Cross-Motions for Summary Judgment by UNITED STATES FOREST SERVICE. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 12/23/2002)
2002-12-24		Minute Entry: Joint MOTION for Order Setting Briefing Schedule on Cross-Motions for Summary Judgment 11 granted. Defendant's combined reply/response due 1/17/03. Plaintiff's reply due 1/31/03. (TDR) (Entered: 12/24/2002)
2003-01-17	12	REPLY in support of motion re 9 and Memorandum in Opposition to Plaintiff's Cross Motion for Summary Judgment filed by UNITED STATES FOREST SERVICE. (McDaniel, Oliver) (Entered: 01/17/2003)
2003-01-29	13	REPLY in support of motion re 10 summary judgment filed by MARK DONHAM, HEARTWOOD, INC.. (Kenna, Matthew) (Entered: 01/29/2003)
2003-02-04	14	MOTION for Leave to File Supplemental Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment by UNITED STATES FOREST SERVICE. (McDaniel, Oliver) (Entered: 02/04/2003)
2003-02-04	15	ENTERED IN ERROR..... Memorandum in opposition to motion re 10 (Supplemental) filed by UNITED STATES FOREST SERVICE. (McDaniel, Oliver) Modified on 2/5/2003 (mpt, ). (Entered: 02/04/2003)
2003-02-10	16	Memorandum in opposition to motion re 14 leave to file supplemental memorandum filed by MARK DONHAM, HEARTWOOD, INC.. (Kenna, Matthew) (Entered: 02/10/2003)
2003-02-26		MINUTE ENTRY ORDER denying Motion for Leave to File Supplemental Memorandum 14 . Signed by Judge Richard W. Roberts on 2/26/03. (TDR) (Entered: 02/26/2003)
2005-02-11	17	ENTERED IN ERROR..... MOTION to Expedite & to Take Judicial Notice by HEARTWOOD, INC., MARK DONHAM. (Attachments: # 1 Text of Proposed Order Granting Plaintiffs' Motion)(Kenna, Matthew) Modified on 2/14/2005 (jf, ). (Entered: 02/11/2005)
2005-02-11		NOTICE OF CORRECTED DOCKET ENTRY. Document No. 17 was entered in error and counsel was instructed to re-file said pleading following ECF filing procedures. (jf, ) (Entered: 02/14/2005)
2005-02-14	18	MOTION to Expedite & to Take Judicial Notice by HEARTWOOD, INC., MARK DONHAM. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Text of Proposed Order)(Kenna, Matthew) (Entered: 02/14/2005)
2005-02-25	19	MOTION for Extension of Time to File Response/Reply as to 18 MOTION to Expedite & to Take Judicial Notice by UNITED STATES FOREST SERVICE. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 02/25/2005)
2005-03-01	20	RESPONSE to Plaintiff's Motion To Take Judicial Notice and To Expedite Decision filed by UNITED STATES FOREST SERVICE. (McDaniel, Oliver) (Entered: 03/01/2005)
2005-03-07	21	REPLY to opposition to motion re 18 To Expedite & To Take Judicial Notice filed by HEARTWOOD, INC., MARK DONHAM. (Kenna, Matthew) (Entered: 03/07/2005)
2005-03-18		MINUTE ORDER granting, nunc pro tunc, defendant's Motion 19 for extension of time to file response. Issued by Judge Richard W. Roberts on 3/18/2005. NB: The court will no longer send attorneys courtesy paper copies of opinions and orders. Opinions and orders will be sent to attorneys only electronically under LCvR 5.4(b)(1). (es) (Entered: 03/18/2005)
2005-09-21	22	NOTIFICATION OF SUPPLEMENTAL AUTHORITY by HEARTWOOD, INC., MARK DONHAM (Attachments: # 1 Exhibit CBD v. USMC)(Kenna, Matthew) (Entered: 09/21/2005)
2005-09-28		MINUTE ORDER: It is hereby ORDERED that plaintiff's motion 18 be, and hereby is, DENIED in part and GRANTED in part. There is no need to take judicial notice of the final Ecological Assessment. It will be treated as a supplemental exhibit to plaintiff's summary judgment filings. Consideration of the motion shall be expedited. Issued by Judge Richard W. Roberts on 9/28/05. (lcrwr1) (Entered: 09/28/2005)
2006-04-21	23	MEMORANDUM AND OPINION. Signed by Judge Richard W. Roberts on 4/20/06. (lcrwr1) (Entered: 04/21/2006)
2006-04-21	24	ORDER denying motion 9 for summary judgment, granting motion 10 for summary judgment. Signed by Judge Richard W. Roberts on 4/20/06. (lcrwr1) (Entered: 04/21/2006)
2006-04-26	25	Unopposed MOTION for Extension of Time to File Plaintiffs' Motion for Litigation Costs, Including Attorney Fees by HEARTWOOD, INC., MARK DONHAM. (Attachments: # 1 Text of Proposed Order Granting Motion to Extend Time to File Motion for Litigation Costs, Including Attorney Fees)(Kenna, Matthew) (Entered: 04/26/2006)
2006-05-05		MINUTE ORDER: It is hereby ORDERED that the motion 25 for extension of time to file motion be, and hereby is, GRANTED. Issued by Judge Richard W. Roberts on 5/5/06. (lcrwr1) (Entered: 05/05/2006)
2006-05-09	26	MOTION to Enforce Judgment EXPEDITED CONSIDERATION REQUESTED by HEARTWOOD, INC., MARK DONHAM. (Attachments: # 1 Affidavit of Plaintiff Mark Donham)(Kenna, Matthew) (Entered: 05/09/2006)
2006-05-12	27	MOTION to Stay Case Pending Appeal Decision by UNITED STATES FOREST SERVICE. (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 05/12/2006)
2006-05-16	28	Memorandum in opposition to re 27 MOTION to Stay Case Pending Appeal Decision EXPEDITED CONSIDERATION REQUESTED filed by HEARTWOOD, INC., MARK DONHAM. (Kenna, Matthew) (Entered: 05/16/2006)
2006-05-17	29	REPLY to opposition to motion re 27 MOTION to Stay Case Pending Appeal Decision filed by UNITED STATES FOREST SERVICE. (McDaniel, Oliver) (Entered: 05/17/2006)
2006-07-03	30	NOTICE OF WITHDRAWAL OF MOTION by HEARTWOOD, INC., MARK DONHAM, UNITED STATES FOREST SERVICE re 29 Reply to opposition to Motion, 28 Memorandum in Opposition, 27 MOTION to Stay Case Pending Appeal Decision , 26 MOTION to Enforce Judgment EXPEDITED CONSIDERATION REQUESTED (Kenna, Matthew) (Entered: 07/03/2006)
2006-07-20	31	MOTION for Attorney Fees by HEARTWOOD, INC., MARK DONHAM. (Kenna, Matthew) (Entered: 07/20/2006)
2006-07-20	32	Unopposed MOTION for Extension of Time to File Brief in Support of Motion for Attorney Fees by HEARTWOOD, INC., MARK DONHAM. (Attachments: # 1 Text of Proposed Order)(Kenna, Matthew) (Entered: 07/20/2006)
2006-08-01		MINUTE ORDER: It is hereby ORDERED that plaintiffs' motion 32 for extension of time to brief its motion for litigation costs be, and hereby is, GRANTED. The parties shall submit a joint status report by August 28, 2006, or in the alternative, the plaintiffs shall submit a brief of their motion for litigation costs by August 28, 2006. Issued by Judge Richard W. Roberts on 8/1/06. (lcrwr1) (Entered: 08/01/2006)
2006-08-02		Set/Reset Deadlines: Status Report due by 8/28/2006. (lin, ) (Entered: 08/02/2006)
2006-08-24	33	Unopposed MOTION for Extension of Time to File Brief in Support of Motion for Litigation Costs, Including Attorney Fees by HEARTWOOD, INC., MARK DONHAM. (Kenna, Matthew) (Entered: 08/24/2006)
2006-09-08	34	Joint MOTION to Enter Stipulation of Settlement and Dismissal by HEARTWOOD, INC., MARK DONHAM, UNITED STATES FOREST SERVICE. (Attachments: # 1 Stipulation of Settlement and Dismissal (with order))(McDaniel, Oliver) (Entered: 09/08/2006)
2006-09-25	35	STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL. Signed by Judge Richard W. Roberts on 9/20/06. (lin, ) (Entered: 09/25/2006)
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