Case Detail

FOIA Project Annotation: A federal court in Idaho has ruled that former Idaho Governor Cecil Andrus is entitled to review under the Administrative Procedure Act as to whether the Department of Energy failed to consider CFR § 1004.1, which requires the agency to disclose records in the public interest. Andrus requested records regarding a possible waiver of the 1995 Batt Agreement, governing the treatment and disposal of nuclear waste in Idaho at the Idaho National Laboratory. The agency informed Andrus that four of five offices had been searched, yielding 41 documents, which contained redactions under Exemption 5 (privileges). Andrus appealed the disclosures, which were upheld on appeal. After he filed suit, the fifth office responded, disclosing another 38 documents with redactions made under Exemption 5. Andrus did not separately appeal the second disclosure, but amended his complaint to include those documents. The agency argued Andrus had failed to exhaust his administrative remedies as to the second batch of documents. Agreeing with the D.C. Circuit that the exhaustion requirement was jurisprudential rather than jurisdictional, the court noted that "the underlying policy of exhaustionâ€"to provide the agency an opportunity to review its own decisionmaking process before judicial interventionâ€"must still carry the day." The court added that "because the agency has not yet had the opportunity to implement a review of its FOIA redactions pertaining to [the second disclosure], the Court must. . .dismiss Andrus's FOIA claims. . ." Turning to the 41 redacted documents for which Andrus had filed an appeal, the court found the agency's Vaughn index insufficient and ordered an in camera review. Pointing to an email that was sent to Sen. Mike Crapo (R-ID) and others, the court noted that "although the 'update' is exactly what one would expectâ€"an entirely factual summary of the Batt Agreement negotiations as of January 15, 2015â€"the emails were originally redacted in their entirety. Not only is factual information not protected under the Deliberative Process Privilege, the privilege does not apply because it was sent to a Congressional Delegation." The court found the agency had violated its regulation requiring consideration of the public interest in making a disclosure determination. Rejecting the agency's argument that Andrus had an adequate remedy under FOIA, the court observed that "there is no provision under FOIA that requires the agency to consider the general public interest, whereas that is the gravamen of § 1004.1. In this particular instance, FOIA alone does not provide 'special and adequate review procedures' by which Andrus could ensure documents in the public interest should be released. For example, there could be information properly redacted under a FOIA exemption which includes information that the public has such a high interest in. In those circumstances, the DOE would be required to disclose under 10 C.F.R. § 1004.1."
Issues: Exemption 5 - Privileges

Date Filed	Doc #	Docket Text
2015-09-29	1	COMPLAINT against US Department of Energy ( Filing fee $ 400 receipt number 0976-1353239.), filed by All Plaintiffs. (Attachments: # 1 Cover Sheet, # 2 Summons)(Lucas, Laurence)
2015-09-29	2	Summons Issued as to US Department of Energy, (Print attached Summons for service.) (cjs)
2015-10-19	3	AMENDED COMPLAINT against US Department of Energy, filed by Cecil D Andrus. (Attachments: # 1 Summons)(Shumaker, Marc)
2015-10-20	4	Summons Issued as to US Department of Energy, U.S. Attorney and U.S. Attorney General (Print attached Summons for service.) (cjs)
2015-11-06	5	ANSWER to 3 Amended Complaint by US Department of Energy.(Rodriguez, Joanne)
2015-11-06	6	NOTICE of Availability of Magistrate Judge and Requirement for Consent sent to counsel for Cecil D Andrus, US Department of Energy re 5 Answer to Amended Complaint, 3 Amended Complaint Consent/Objection to Magistrate due by 1/8/2016. (cjs)
2015-11-10	7	NOTICE OF HEARING: A Telephonic Scheduling Conference is set for 12/15/2015 at 10:00 AM before Judge B. Lynn Winmill. (Attachments: # 1 Litigation Plan Letter, # 2 Litigation Plan)(jlb)
2015-12-09	8	SCHEDULING CONFERENCE FORM - LITIGATION PLAN by Cecil D Andrus. (Attachments: # 1 Supplement Attachment A, # 2 Service Information Sheet Attachment B)(Shumaker, Marc)
2015-12-09	9	NOTICE of Substitution - Attorney Joanne P Rodriguez terminated. (Rodriguez, Joanne)
2015-12-15	10	CASE MANAGEMENT ORDER. Defendant's Motion for summary judgment due by 2/19/2016. Plaintiff's Cross-Motion for summary judgment due by 3/18/2016. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
2016-01-11		The 60 day deadline has expired. Case will remain with District Judge. No more notice of availability will be sent out. Consent deadline(s) termed. (cjs)
2016-02-19	11	MOTION for Summary Judgment Gary Feldon appearing for Defendant US Department of Energy. Responses due by 3/14/2016 (Attachments: # 1 Memorandum in Support Memorandum in Support, # 2 Exhibit Vaughn Index, # 3 Proposed Order, # 4 Certificate of Service, # 5 Statement of Material Facts Not in Dispute with Exhibits)(Feldon, Gary)
2016-02-19		CORRECTIVE ENTRY - The entry document number 11 MOTION for Summary Judgment filed by US Department of Energy in regards to the proposed order, was filed incorrectly in this case. Pursuant to the ECF Procedures, section 12B, all proposed orders are to be submitted by email to the appropriate Judges proposed order email box. The filing party shall re-submit their proposed order. (cjs)
2016-02-23	12	DOCKET ENTRY NOTICE OF HEARING regarding 11 Motion for Summary Judgment: A Motion Hearing is set for 6/15/2016 at 3:00 PM in Boise - Courtroom 3 before Judge B. Lynn Winmill. (jlb)
2016-02-24		Reset Deadlines as to 11 MOTION for Summary Judgment. Responses due by 3/18/2016. Per Order Dkt. 10 . (cjs)
2016-03-16	13	Consent MOTION for Extension of Time to File Unopposed Motion To Extend Briefing Deadlines From Case Management Order Laurence J Lucas appearing for Plaintiff Cecil D Andrus. Responses due by 4/11/2016 (Lucas, Laurence)
2016-03-17	14	DOCKET ENTRY ORDER granting 13 Motion for Extension of Time. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (js)
2016-03-17		Reset Deadlines as to 11 MOTION for Summary Judgment. Responses due by 4/4/2016. Per Order Dkt. 14. (cjs)
2016-04-04	15	MOTION for Summary Judgment Laurence J Lucas appearing for Plaintiff Cecil D Andrus. Responses due by 4/28/2016 (Attachments: # 1 Memorandum in Support Plaintiff's Combined Opening/Response Brief on Cross-Motions for Summary Judgment, # 2 Plaintiff's Separate Statement of Undisputed Facts, # 3 Attachment A: July 2015 documents, # 4 Attachment B: Oct 2015 documents, # 5 Attachment C: OHA Appeal Denial, # 6 Attachment D: Draft Vaughn index, # 7 Attachment E: Gov Andrus editorial)(Lucas, Laurence)
2016-04-04	16	MEMORANDUM in Opposition re 11 MOTION for Summary Judgment , 15 MOTION for Summary Judgment Plaintiff's Combined Opening/Response Brief on Cross-Motions for Summary Judgment filed by Cecil D Andrus. Replies due by 4/21/2016. (Attachments: # 1 Plaintiff's Separate Statement of Facts, # 2 Attachment A: July 2015 documents, # 3 Attachment B: Oct 2015 documents, # 4 Attachment C: OHA appeal denial, # 5 Attachment D: Draft Vaughn index, # 6 Attachment E: Andrus editorial)(Lucas, Laurence) Modified on 4/5/2016 to reflect applicable Certificate of Service is attached to Dkt. 15 (cjs).
2016-04-05		Reset Deadlines as to 11 MOTION for Summary Judgment. Replies due by 5/2/2016. Per Order Dkt. 14 . (cjs)
2016-04-05		Reset Deadlines as to 15 MOTION for Summary Judgment. Responses due by 5/2/2016. Per Order Dkt. 14 . (cjs)
2016-04-05	17	DOCKET ENTRY NOTICE OF HEARING - The following motions are set for oral argument on 6/15/2016 at 3:00 PM in Boise - Courtroom 3 before Judge B. Lynn Winmill: 11 Motion for Summary Judgment and 15 Motion for Summary Judgment. (jlb)
2016-04-28	18	Consent MOTION to Clarify Page Limit Gary Feldon appearing for Defendant US Department of Energy. Responses due by 5/23/2016 (Attachments: # 1 Service Information Sheet)(Feldon, Gary)
2016-05-02	19	REPLY to Response to Motion re 11 MOTION for Summary Judgment filed by US Department of Energy. (Attachments: # 1 Appendix, # 2 Affidavit, # 3 Service Information Sheet)(Feldon, Gary) Modified on 5/3/2016 to remove erroneous link to Dkt. 15 (cjs).
2016-05-03		DISREGARD - CORRECTIVE ENTRY - The entry docket number 19 Reply to Response to Motion, filed by US Department of Energy was filed incorrectly in this case as it pertains to the Certificate of Service only as it is missing. The filing party shall refer to ECF Procedure 8 and re-submit their correct certificate of service using Certificate of Service located under Service of Process and link to the docket entry. (cjs) Modified on 5/3/2016 to refer to Certificate of Service in Attachment #3 (cjs).
2016-05-03	20	MEMORANDUM in Opposition re 15 MOTION for Summary Judgment filed by US Department of Energy. Replies due by 5/20/2016. (Attachments: # 1 Appendix, # 2 Affidavit, # 3 Service Information Sheet)(Feldon, Gary)
2016-05-03		Reset Deadlines as to 15 MOTION for Summary Judgment. Replies due by 5/23/2016. Per Order Dkt. 14. (cjs)
2016-05-16	21	DOCKET ENTRY ORDER granting 18 Motion to Clarify. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (js)
2016-05-23	22	REPLY to Response to Motion re 15 MOTION for Summary Judgment filed by Cecil D Andrus. (Attachments: # 1 Shumaker Decl, # 2 Ex A April 8 2016 response)(Lucas, Laurence)
2016-06-15	23	Minute Entry for proceedings held before Judge B. Lynn Winmill: Motion Hearing held on 6/15/2016 re 15 Motion for Summary Judgment filed by Cecil D Andrus, and 11 Motion for Summary Judgment filed by US Department of Energy. (Court Reporter Tammy Hohenleitner.) (jlb) (Entered: 06/16/2016)
2016-08-08	24	MEMORANDUM DECISION AND ORDER granting in part and denying in part 11 Motion for Summary Judgment; granting in part and denying in part 15 Motion for Summary Judgment. The Court understands from informal communications that Court staff had with counsel after the hearing that Defendant will be able to provide the Court with the documents for in camera review in short order. Accordingly, counsel for Defendant shall provide the Court with the documents within one week of the date of this Order. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
2016-12-02	25	NOTICE by Cecil D Andrus Withdrawal of Counsel (Shumaker, Marc)
2017-09-14	26	MOTION to Substitute Party Rule 25(a) Laurence J Lucas appearing for Plaintiff Cecil D Andrus. Responses due by 10/5/2017 (Attachments: # 1 Tracy Andrus declaration)(Lucas, Laurence)
2018-02-06	27	ORDER - IT IS ORDERED: 1. Plaintiffs the Motion to Substitute Party Plaintiff Under Rule 25(a) (Dkt. 26 ) is GRANTED. 2. The Court will sustain DOEs assertion of privilege, and not require it to provide the plaintiff with a copy of any of the documents provided to the Court for in camera review. The Court will note that it made two copies of the documents in order to do the thorough review of the documents. The Court will shred those two copies. The Court will also shred the original copy provided by DOE unless DOE counsel prefers the Court return them. Counsel shall contact the Courts Law Clerk, Jeff Severson, at (208) 334- 9027, and inform him of their preference. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
2018-02-22	28	DOCKET ENTRY ORDER: The Clerk of the Court is ordered to close this case. Signed by Judge B. Lynn Winmill. (js)
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