Case Detail

FOIA Project Annotation: A federal court in California has ruled that the National Marine Fisheries Service has displayed a pattern and practice of ignoring FOIA's deadlines by excessively delaying processing requests submitted by Our Children's Earth Foundation concerning the effect of the Searsville Dam and Lake Water System, owned and operated by Stanford University, on the habitat of the Central California Coast Steelhead. Although Our Children's Earth Foundation asked the court to find that both the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service were equally guilty of willfully delaying responses, the court concluded that the two agencies had only been the recipients of referrals from NMFS and had not shown a continuing pattern and practice of delay. The court agreed with NMFS that the Foundation continually inundated the agency with complex requests that frequently were submitted just as the agency was getting a handle on processing previous requests. But the court noted that "here, both the statutory deadlines and their violation are clear, and the repeated, routine violations of these deadlines by agencies has been a continual source of concern for Congress. . .Although the Court and many others have recognized that agencies' resources are heavily taxed by the quantity and depth of FOIA requests. . .that does not grant the agency carte blanche to repeatedly violate congressionally mandated deadlines." The agency argued that the holding in CREW v. FEC, 711 F.3d 180 (D.C. Cir. 2013), concluded that the only remedy for agency delay was to allow a requester to go to court. The court found the agency's reliance on CREW was misplaced, pointing out that CREW was considering whether administrative remedies had been exhausted and thus the case could continue, rather than whether declaratory or injunctive relief should issue." The court found the Corps of Engineers and the Fish and Wildlife Service had not shown a pattern and practice of delay similar to that of the NMFS. The court indicated that the statute required an agency to respond to a referral with "all practicable speed," but that it also required a notice stemming from a claim of unusual circumstances "shall specify a date that would result in an extension for more than ten working days." Because the court found the two agencies had not shown the disregard for FOIA's time limits exhibited by NMFS, it declined to decide which of those time limits might apply to referrals. The Foundation had also asked the court to consolidate the current cases with a third case involving similar FOIA requests. Permitting the consolidation, the court observed that "a case that presents another potential violation or�"as the Federal Defendant suggests, proof of compliance undermining thus pattern and practice alleged by Plaintiffs�"should be evaluated in the same light as the other cases involving substantially the same agency responding to the same FOIA requestors seeking information about substantially the same matter."
Issues: Delay, Search - Referral

FOIA Project Annotation: A federal court in California has ruled that the National Marine Fisheries Service has finally shown that it conducted an adequate search for records requested by Our Children's Earth Foundation, properly withheld a document under Exemption 5 (deliberative process privilege), and sufficiently justified its segregability analysis. Further, while the court admonished the agency for its constant lengthy delays in processing FOIA requests, it concluded that the agency's performance in this case had improved sufficiently enough to show that it no longer had a pattern or practice of violating FOIA through delay. The Foundation challenged the search primarily on the basis that the agency's affidavits constituted hearsay because they were not based on personal knowledge. But Judge Samuel Conti noted that "the Court finds that the affidavits submitted are from the supervisor in charge of coordinating the search efforts or person responsible for 'portions of' the search, and thus overrules the objection." Conti agreed with the agency that a draft chart was protected by the deliberative process privilege. He pointed out that "while perhaps not directly meant to assist decisionmakers to arrive at a decision, it is clear the author meant to educate a more senior member of the office on whether and why to request a (perhaps higher-up) decisionmaker to arrive at a specific decision." The Foundation argued that while the document might be predecisional, it was not deliberative. But Conti observed that "the Fisheries Service makes clear that exposure of the remainder of the document in question would provide nothing more than the personal opinions of a single, lower-level worker (opinions based in part on materials later deemed factually erroneous) who was trying to have a frank and open dialogue with a senior employee on whether and how to make a recommendation to a decisionmaker." Conti relied on the Ninth Circuit's recent decision in Hamdan v. Dept of Justice, 797 F.3d 779 (9th Cir. 2015), in which the appellate court found that the FBI and the Department of State had provided adequate explanations of their segregability review, while the DIA's explanation was virtually non-existent. Comparing the appellate court's findings to those of the NMFS, Conti indicated that "on the whole, this case seems most analogous to the submission by the FBI, where the declarations are not ideal but the disclosures and cited exceptions show enough good faith that the Court should accept the agency's explanations at face value." Conti noted that "several pieces of information suggest that insofar as there may have been a pattern-and-practice [of delay], it is being corrected," including quicker processing times. Conti observed that "the evidence is clear as to whether a pattern-and-practice existed in the past. Moreover, Plaintiffs provide the Court a reasonable basis to believe that these infractions will be ongoing." Rather than sanction the agency, Conti ordered it to complete any outstanding requests by the Foundation. He pointed out that "while the Court cannot accept good faith as a shield to fully protect Defendants from rebuke, the ongoing efforts of the Fisheries Service to improve suggested that intervention by the Court may not be necessary to fix ongoing violations. The Court stands by its earlier reasoning, and its belief that some leniency in the exercise of its discretion may be merited. However, the Court cannot turn a blind eye to the evidence put forth by Plaintiffs."
Issues: Adequacy - Search, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Litigation - Segregability analysis

Date Filed	Doc #	Docket Text
2014-09-28	1	COMPLAINT against John McHugh, National Marine Fisheries Service, Penny Pritzker, William Stelle, United States Army Corps Of Engineers ( Filing fee $ 400, receipt number 0971-8953943.). Filed byOur Children's Earth Foundation, Ecological Rights Foundation. (Attachments: # 1 Civil Cover Sheet)(Weisselberg, Patricia) (Filed on 9/28/2014) (Entered: 09/28/2014)
2014-09-29	2	Case assigned to Hon. Charles R. Breyer. Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening. Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (ha, COURT STAFF) (Filed on 9/29/2014) (Entered: 09/29/2014)
2014-09-29	3	Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 1/9/2015. Case Management Conference set for 1/16/2015 08:30 AM. (Attachments: # 1 Standing Order)(mclS, COURT STAFF) (Filed on 9/29/2014) (Entered: 09/29/2014)
2014-09-30	4	Proposed Summons. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(Weisselberg, Patricia) (Filed on 9/30/2014) (Entered: 09/30/2014)
2014-10-01	5	Summons Issued as to John McHugh, National Marine Fisheries Service, Penny Pritzker, William Stelle, United States Army Corps of Engineers, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons - U.S. Attorney General, # 2 Summons - John McHugh, # 3 Summons - Penny Pritzker, # 4 Summons - U.S. Attorney, # 5 Summons - William Stelle)(mclS, COURT STAFF) (Entered: 10/01/2014)
2014-10-02	6	SUMMONS RETURNED EXECUTED by Ecological Rights Foundation, Our Children's Earth Foundation. John McHugh, Penny Pritzker, William Stelle served on 10/2/14, answer due 12/1/14. (Weisselberg, Patricia) (Filed on 10/2/2014) Modified on 10/3/2014 (mclS, COURT STAFF). (Entered: 10/02/2014)
2014-10-09	7	ORDER OF RECUSAL. Signed by Judge Charles R. Breyer on 10/9/2014. (beS, COURT STAFF) (Filed on 10/9/2014) (Entered: 10/09/2014)
2014-10-10	8	ORDER REASSIGNING CASE. Case reassigned to Judge Hon. William H. Orrick for all further proceedings. Judge Hon. Charles R. Breyer no longer assigned to the case. Signed by Executive Committee on 10/10/14. (sv, COURT STAFF) (Filed on 10/10/2014) (Entered: 10/10/2014)
2014-10-14	9	ORDER RELATING CASES C14-1130 SC and C14-4365 CRB. Signed by Judge Samuel Conti on 10/14/2014. (tmi, COURT STAFF) (Filed on 10/14/2014) (Entered: 10/14/2014)
2014-10-15		Case reassigned to Judge Hon. Samuel Conti. Judge Hon. William H. Orrick no longer assigned to the case. (sv, COURT STAFF) (Filed on 10/15/2014) (Entered: 10/15/2014)
2014-10-27	10	STIPULATION Extending Time to Respond to Complaint filed by John McHugh, National Marine Fisheries Service, Penny Pritzker, William Stelle, United States Army Corps of Engineers. (Wall, Robin) (Filed on 10/27/2014) (Entered: 10/27/2014)
2014-10-30	11	AMENDED COMPLAINT against All Defendants. Filed byOur Children's Earth Foundation, Ecological Rights Foundation. (Weisselberg, Patricia) (Filed on 10/30/2014) (Entered: 10/30/2014)
2014-10-30	13	Declaration of Michael A. Costa in Support of 12 MOTION for Summary Judgment filed byEcological Rights Foundation, Our Children's Earth Foundation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34)(Related document(s) 12 ) (Costa, Michael) (Filed on 10/30/2014) (Entered: 10/31/2014)
2014-10-31	12	MOTION for Summary Judgment filed by Ecological Rights Foundation, Our Children's Earth Foundation. Motion Hearing set for 12/5/2014 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. Responses due by 11/14/2014. Replies due by 11/21/2014. (Attachments: # 1 Proposed Order)(Weisselberg, Patricia) (Filed on 10/31/2014) (Entered: 10/31/2014)
2014-10-31	14	Declaration of Christopher Sproul in Support of 12 MOTION for Summary Judgment filed byEcological Rights Foundation, Our Children's Earth Foundation. (Related document(s) 12 ) (Costa, Michael) (Filed on 10/31/2014) (Entered: 10/31/2014)
2014-11-10	15	STIPULATION WITH PROPOSED ORDER Setting Briefing Schedule for Cross Motions for Summary Judgment filed by John McHugh, National Marine Fisheries Service, Penny Pritzker, William Stelle, United States Army Corps of Engineers. (Wall, Robin) (Filed on 11/10/2014) (Entered: 11/10/2014)
2014-11-19	16	STIPULATION AND ORDER Setting Briefing Schedule for Cross Motions for Summary Judgment. Set/Reset Deadlines as to 12 MOTION for Summary Judgment. Responses due by 12/5/2014. Replies due by 12/19/2014. Motion Hearing set for 1/9/2015 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. Signed by Judge Samuel Conti on 11/19/2014. (tmi, COURT STAFF) (Filed on 11/19/2014) (Entered: 11/19/2014)
2014-12-05	17	MOTION for Partial Summary Judgment on FOIA Claims and Opposition to Plaintiffs' Motion for Partial Summary Judgment filed by John McHugh, National Marine Fisheries Service, Penny Pritzker, William Stelle, United States Army Corps of Engineers. Motion Hearing set for 1/9/2015 01:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. Responses due by 12/19/2014. Replies due by 1/2/2015. (Wall, Robin) (Filed on 12/5/2014) (Entered: 12/05/2014)
2014-12-05	18	Declaration of Sandra Dowdy in Support of 17 MOTION for Partial Summary Judgment on FOIA Claims and Opposition to Plaintiffs' Motion for Partial Summary Judgment filed byJohn McHugh, National Marine Fisheries Service, Penny Pritzker, William Stelle, United States Army Corps of Engineers. (Attachments: # 1 Exhibit 1)(Related document(s) 17 ) (Wall, Robin) (Filed on 12/5/2014) (Entered: 12/05/2014)
2014-12-05	19	Declaration of Ana Liza Malabanan in Support of 17 MOTION for Partial Summary Judgment on FOIA Claims and Opposition to Plaintiffs' Motion for Partial Summary Judgment filed byJohn McHugh, National Marine Fisheries Service, Penny Pritzker, William Stelle, United States Army Corps of Engineers. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Related document(s) 17 ) (Wall, Robin) (Filed on 12/5/2014) (Entered: 12/05/2014)
2014-12-05	20	Declaration of Gary Stern in Support of 17 MOTION for Partial Summary Judgment on FOIA Claims and Opposition to Plaintiffs' Motion for Partial Summary Judgment filed byJohn McHugh, National Marine Fisheries Service, Penny Pritzker, William Stelle, United States Army Corps of Engineers. (Related document(s) 17 ) (Wall, Robin) (Filed on 12/5/2014) (Entered: 12/05/2014)
2014-12-05	21	Proposed Order re 17 MOTION for Partial Summary Judgment on FOIA Claims and Opposition to Plaintiffs' Motion for Partial Summary Judgment by John McHugh, National Marine Fisheries Service, Penny Pritzker, William Stelle, United States Army Corps of Engineers. (Wall, Robin) (Filed on 12/5/2014) (Entered: 12/05/2014)
2014-12-12		Set/Reset Deadlines as to 17 MOTION for Partial Summary Judgment on FOIA Claims and Opposition to Plaintiffs' Motion for Partial Summary Judgment . Correcting Time of Hearing. Motion Hearing set for 1/9/2015 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. (tmi, COURT STAFF) (Filed on 12/12/2014) (Entered: 12/12/2014)
2014-12-19	22	RESPONSE (re 17 MOTION for Partial Summary Judgment on FOIA Claims and Opposition to Plaintiffs' Motion for Partial Summary Judgment ) filed byEcological Rights Foundation, Our Children's Earth Foundation. (Attachments: # 1 Costa Reply Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Proposed Order)(Weisselberg, Patricia) (Filed on 12/19/2014) (Entered: 12/19/2014)
2015-01-02	23	REPLY (re 17 MOTION for Partial Summary Judgment on FOIA Claims and Opposition to Plaintiffs' Motion for Partial Summary Judgment ) filed byJohn McHugh, National Marine Fisheries Service, Penny Pritzker, William Stelle, United States Army Corps of Engineers. (Wall, Robin) (Filed on 1/2/2015) (Entered: 01/02/2015)
2015-01-06	24	CLERK'S NOTICE Vacating Motion Hearings. The Motion Hearings, which have been noticed for Friday, 01/09/2015, will be decided on papers submitted without oral argument. Accordingly, the hearings are hereby VACATED. This is a text only docket entry. There is no document associated with this notice. (tmi, COURT STAFF) (Filed on 1/6/2015) (Entered: 01/06/2015)
2015-07-20	25	ORDER by Judge Samuel Conti granting (64) Motion to Relate Case in case 3:14-cv-01130-SC; granting in part and denying in part and holding in abeyance in part (12) Motion for Summary Judgment; granting in part and denying in part (17) Motion for Partial Summary Judgment in case 3:14-cv-04365-SC. Supplemental briefing ordered within 30 days of the signature date of this order, and leave for opposing counsel to reply within 14 days of receipt of the supplemental brief. (sclc2, COURT STAFF) (Filed on 7/20/2015) (Entered: 07/20/2015)
2015-07-20	26	ORDER RELATING CASES C14-1130 SC, C14-4365 SC, and C15-2558 JSC. Signed by Judge Samuel Conti on 07/20/2015. (tmiS, COURT STAFF) (Filed on 7/20/2015) (Entered: 07/20/2015)
2015-08-19	27	Supplemental Brief re 25 Order on Motion to Relate Case,,, Order on Motion for Summary Judgment,,, Order on Motion for Partial Summary Judgment,, filed byNational Marine Fisheries Service. (Attachments: # 1 Declaration of Robin Wall, # 2 Declaration of Robert Swisher, # 3 Declaration of Gary Stern, # 4 Declaration of Ana Liza Malabanan)(Related document(s) 25 ) (Wall, Robin) (Filed on 8/19/2015) (Entered: 08/19/2015)
2015-09-02	28	Supplemental Response In Support Of 12 Motion For Summary Judgment filed byEcological Rights Foundation, Our Children's Earth Foundation. (Attachments: # 1 Declaration of Patricia Weisselberg, # 2 Declaration of Christopher Sproul, # 3 Declaration of Annaliese Beaman)(Weisselberg, Patricia) (Filed on 9/2/2015) Modified on 9/3/2015 (aaaS, COURT STAFF). (Entered: 09/02/2015)
2015-09-02	29	Declaration of Michael A. Costa in Support of 28 Supplemental Response, In Support Of Motion For Summary Judgment filed byEcological Rights Foundation, Our Children's Earth Foundation. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10, # 11 Exhibit Exhibit 11, # 12 Exhibit Exhibit 12, # 13 Exhibit Exhibit 13, # 14 Exhibit Exhibit 14, # 15 Exhibit Exhibit 15, # 16 Exhibit Exhibit 16, # 17 Exhibit Exhibit 17, # 18 Exhibit Exhibit 18, # 19 Exhibit Exhibit 19, # 20 Exhibit Exhibit 20, # 21 Exhibit Exhibit 21, # 22 Exhibit Exhibit 22)(Related document(s) 28 ) (Costa, Michael) (Filed on 9/2/2015) Modified on 9/3/2015 (aaaS, COURT STAFF). (Entered: 09/02/2015)
2015-09-09	30	Supplemental Brief re 27 Supplemental Brief, Supplemental Reply filed byNational Marine Fisheries Service. (Attachments: # 1 Declaration of Ana Liza Malabanan, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Related document(s) 27 ) (Wall, Robin) (Filed on 9/9/2015) (Entered: 09/09/2015)
2015-10-21	31	ORDER re (12 in 3:14-cv-04365-SC) Motion for Summary Judgment; (17 in 3:14-cv-04365-SC) Motion for Partial Summary Judgment on FOIA Claims and Opposition to Plaintiffs' Motion for Partial Summary Judgment . Signed by Judge Samuel Conti on October 21, 2015. (sclc2, COURT STAFF) (Filed on 10/21/2015) (Entered: 10/21/2015)
2015-10-30	32	Statement re 31 Order, Joint Statement in Response to Order To Show Cause by Ecological Rights Foundation, Our Children's Earth Foundation. (Sproul, Christopher) (Filed on 10/30/2015) (Entered: 10/30/2015)
2015-11-03	33	ORDER REASSIGNING CASE. Case reassigned to Judge Hon. William H. Orrick for all further proceedings. Judge Hon. Samuel Conti no longer assigned to the case. Signed by Executive Committee on 11/3/15. (sv, COURT STAFF) (Filed on 11/3/2015) (Entered: 11/03/2015)
2015-11-20	34	Response to Order to Show Cause 31 Order, byNational Marine Fisheries Service. (Attachments: # 1 Declaration of Paul Doremus, # 2 Declaration of Barry Thom)(Wall, Robin) (Filed on 11/20/2015) (Entered: 11/20/2015)
2015-12-08	35	RESPONSE TO DEFENDANT NATIONAL MARINE FISHERIES SERVICE'S 34 RESPONSE TO THE OCTOBER 21, 2015 ORDER TO SHOW CAUSE; by Ecological Rights Foundation, Our Children's Earth Foundation . (Attachments: # 1 Declaration of Christopher Sproul with exhibits, # 2 Declaration of Michael Costa, # 3 Ex. 1, # 4 Ex. 2, # 5 Ex. 3, # 6 Ex. 4, # 7 Ex. 5, # 8 Ex. 6, # 9 Ex. 7, # 10 Ex. 8)(Weisselberg, Patricia) (Filed on 12/8/2015) Modified on 12/9/2015 (aaaS, COURT STAFF). (Entered: 12/08/2015)
2015-12-17	36	Supplemental Brief re 35 Response to Order to Show Cause, 34 Response to Order to Show Cause Reply in Support of Defendant's Response to Order to Show Cause filed byNational Marine Fisheries Service. (Related document(s) 35 , 34 ) (Wall, Robin) (Filed on 12/17/2015) (Entered: 12/17/2015)
2016-01-11	37	Brief re 36 Supplemental Brief, Objection to NMFS Reply filed byEcological Rights Foundation, Our Children's Earth Foundation. (Related document(s) 36 ) (Sproul, Christopher) (Filed on 1/11/2016) (Entered: 01/11/2016)
2016-01-29	38	STIPULATION WITH PROPOSED ORDER Joint Stipulation for Extension of Time filed by John McHugh, National Marine Fisheries Service, Penny Pritzker, William Stelle, United States Army Corps of Engineers. (Wall, Robin) (Filed on 1/29/2016) (Entered: 01/29/2016)
2016-01-29	39	ORDER by Judge William H. Orrick granting (76) Stipulation in case 3:14-cv-01130-WHO; and (38) Stipulation in case 3:14-cv-04365-WHO. The time for the parties to submit a stipulated form of judgment as directed by the Court in its order dated January 20, 2016 is hereby continued to February 15, 2016. (jmdS, COURT STAFF) (Filed on 1/29/2016) (Entered: 01/29/2016)
2016-02-16	40	STIPULATED JUDGMENT. Signed by Judge William H. Orrick on 02/16/2016. (jmdS, COURT STAFF) (Filed on 2/16/2016) (Entered: 02/16/2016)
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