Case Detail

FOIA Project Annotation: In a decision concerning an investigation by the U.S. Forest Service into whether or not agency policy was violated in the euthanizing of wild horses and burros by untrained individuals, Judge Lewis Babcock of the U.S. District Court for the District of Colorado has explored some interesting issues as to when an internal investigation qualifies as a law enforcement function. While Babcock ultimately ruled that the investigation had not been conducted with law enforcement purposes, the decision plays into a disturbing trend launched by Justice Samuel Alito's concurrence in Milner v. Dept of Navy, 562 U.S. 562 (2011), to blur the lines between traditional law enforcement functions and security-related functions that previously would not have been considered to qualify under Exemption 7 (law enforcement records). Alito's concurrence was adopted by the D.C. Circuit in PEER v. U.S. Section, International Boundary and Water Commission, 740 F.3d 195 (D.C. Cir. 2014), in which the court characterized the agency's flood inundation projections as security-related, qualifying them for protection under Exemption 7(E) (investigative methods and techniques) and Exemption 7(F) (harm to any person). The PEER decision has subsequently been cited in district court opinions as expanding the coverage of Exemption 7. Babcock's decision that the Forest Service investigation did not qualify under Exemption 7 was predicated upon the concept that while agencies like the FBI have law enforcement as their core function, many other agencies, like the Forest Service, have at best a mixed-function role. As a result, to qualify for Exemption 7, such agencies must show that the claimed records were created or compiled as part of the agency's law enforcement duties, rather than for administrative purposes. That distinction occasionally trips up an agency's attempts to claim Exemption 7. The case before Babcock was brought by Kathy Whitson, an activist who alleged that the Forest Service had directed untrained employees to use firearms to kill wild horses, in part to avoid the costs of paying a veterinarian to euthanize the animals. Whitson submitted a seven-part request for records pertaining to a misconduct investigation of the Jicarilla Ranger District Wild Horse and Burro Program, located in northern New Mexico, which, according to Whitson, was common knowledge among district employees. After the Forest Service employee who was first assigned to process Whitson's request retired, FOIA Analyst Danielle Adams took over the case. After familiarizing herself with the request, Adams concluded that such an investigation would have been conducted by the Human Resources Management Office in Albuquerque. She ascertained which employees had been involved in the investigation and sent a copy of Whitson's request to them. She also had an IT search conducted for emails. The agency withheld 149 pages and released more than 600 pages, many with redactions. Whitson challenged the adequacy of the agency search, arguing that there were no records from employees of the Jicarilla District with whom she had had contact, the agency had not sent her request to the Inspector General's Office, and the agency had not provided a cut-off date for the search. Babcock noted that "the mere fact that Plaintiff had some unspecified contact with these individuals, however, does not mean that the Forest Service's search was inadequate because it did not include specific search requests to those individuals." Babcock found that because Whitson's request cited the investigation by file number there was no reason for the agency to search the Inspector General's Office since it was not involved in the investigation. He observed that "under these circumstances, Plaintiff's FOIA request did not put the Forest Service on notice that it should refer the request to OIG, and the Forest Service's failure to do so does not undermine the reasonableness of the search." As to the cut-off dates, Babcock explained that "here, because of the Forest Service's lengthy delay in responding to Plaintiff's FOIA request, the cutoff dates ranged from June 8, 2016 to June 30, 2016 and the latest responsive document is dated May 2, 2016. I conclude that these cut-off dates were reasonably calculated to lead to the collection of all documents responsive to Plaintiff's FOIA request." Whitson complained about the lack of detail in the agency's exemption claims. While Babcock approved the agency's use of categories to divide the types of records, he questioned the agency's cursory explanations for withholding records under Exemption 7(E). To resolve the 7(E) question, Babcock turned to the threshold requirement for claiming Exemption 7. He pointed out that "the threshold inquiry under Exemption 7 is whether the withheld information was compiled for law enforcement purposes. This in turn requires an examination of the involved agency to determine whether it exercises law enforcement functions. An agency exercises law enforcement functions if it has a clear law enforcement mandate, such as the FBI, or has a 'mixed' function that encompasses both administrative and law enforcement functions." He noted that "here, there can be no dispute that the primary function of the Forest Service, unlike the FBI, is not law enforcement. The Forest Service has also failed to demonstrate that it nonetheless qualifies as a mixed-function agency. Moreover, even if the Forest Service can be properly characterized as a mixed-function agency, it still bears the burden of showing that the withheld information was compiled for adjudicative or enforcement purposes. In the case of internal investigations such as this, the Forest Service must show that the investigation was conducted for law enforcement purposes rather than for general internal monitoring that might reveal evidence that could later rise to a law enforcement investigation. An internal investigation of an agency's employees is for law enforcement purposes if it focuses 'directly on specifically alleged illegal acts, illegal acts of particular identified officials, acts which could, if proved, result in civil or criminal sanctions.'" Babcock observed that "here, the only evidence that the Forest Service cites to show that the subject misconduct investigation was for law enforcement purposes, is a conclusory assertion to this effect by Ms. Adams" that some allegations might have criminal implications. Babcock pointed out that "the cited quotation instead supports a finding that the investigation was focused on alleged violations of the Forest Service's internal policies and regulations that might incidentally reveal evidence of a single violation of criminal law." As a result, he indicated that "the Forest Service has failed to meet its burden of showing either that it is a government agency with law enforcement functions or that the information withheld pursuant to Exemption 7 was compiled for law enforcement purposes." He told the agency to disclose any records withheld under Exemption 7(E), but indicated the agency could reconsider whether any of its Exemption 7(C) (invasion of privacy concerning law enforcement records) claim might qualify under Exemption 6 (invasion of privacy).
Issues: Exemption 7 - Threshold, Adequacy - Search

FOIA Project Annotation: A federal court in Colorado has reconsidered its earlier ruling finding that the U.S. Forest Service had failed to show that it was a mixed-function agency for purposes of claiming Exemption 7 (law enforcement records), instead, accepting the agency's tardy explanation for why its investigation concerning the treatment of wild horses by agency employees should be considered a law enforcement matter. The agency told the court that the misconduct investigation involved 14 specific allegations that could constitute violations of the Wild Free-Roaming Horses and Burros Act, and that although the investigation was conducted by its human resources office, the result could have been referred to either the Office of the Inspector General or Law Enforcement and Investigations. The plaintiff argued that human resources had no apparent law enforcement function. The court observed that "the fact that no further action was taken by LEI or OIG is not dispositive of whether the withheld information was compiled for law enforcement purposes." The court also rejected the argument that the agency should not be rewarded for failing to explain its position earlier. The court noted that "the interests of justice are best served by my consideration of the evidence now presented by the Forest Service. I further conclude that with this evidence the Forest Service has now met its burden of demonstrating that the information it seeks to withhold from Plaintiff pursuant to Exemption 7 was compiled for 'law enforcement purposes.'" As a result, the court indicated that it would consider the agency's exemption claims under Exemption 7(C) (invasion of privacy concerning law enforcement records) and Exemption 7(E) (investigative methods and techniques).
Issues: Exemption 7 - Law enforcement records

Date Filed	Doc #	Docket Text
2016-05-12	1	COMPLAINT against United States Forest Service (Filing fee $ 400,Receipt Number 1082-4970800)Attorney Allison N. Melton added to party Kathy Whitson(pty:pla), filed by Kathy Whitson. (Attachments: # 1 July 27 2015 FOIA Request, # 2 Civil Cover Sheet, # 3 Civil Cover Sheet I.C.)(Melton, Allison) (Entered: 05/12/2016)
2016-05-12	2	Case assigned to Judge Lewis T. Babcock and drawn to Magistrate Judge Nina Y. Wang. Text Only Entry. (jgonz, ) (Entered: 05/13/2016)
2016-05-13	3	Magistrate Judge consent form issued pursuant to 28 U.S.C. 636(c). (jgonz, ) (Entered: 05/13/2016)
2016-05-25	4	SUMMONS REQUEST as to United States Forest Service (USDA United States Forest Service, Civil Process Clerk, United States Attorney's Office, and U.S. Attorney General, U.S. Department of Justice) by Plaintiff Kathy Whitson. (Attachments: # 1 Summons Attorney General Summons, # 2 Summons USFS Summons)(Melton, Allison) (Entered: 05/25/2016)
2016-05-26	5	ADMINISTRATIVE NOTICE: 4 Summons Request was submitted using the incorrect form, and will not be issued. Text Only Entry (dkals, ) (Entered: 05/26/2016)
2016-05-26	6	SUMMONS REQUEST as to United States Forest Service (USDA United States Forest Service, Civil Process Clerk, United States Attorney's Office, and U.S. Attorney General, U.S. Department of Justice) by Plaintiff Kathy Whitson. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(Melton, Allison) (Entered: 05/26/2016)
2016-06-08	7	SUMMONSES issued by Clerk. (dkals, ) (Entered: 06/08/2016)
2016-06-10	8	SUMMONS Returned Executed upon defendant(s) United States Forest Service served on 6/10/2016, answer due 8/9/2016. (Attachments: # 1 Certified mail receipts)(Melton, Allison) (Entered: 06/10/2016)
2016-07-14	9	ANSWER to 1 Complaint, Attorney Katherine Ann Ross added to party United States Forest Service(pty:dft) by United States Forest Service.(Ross, Katherine) (Entered: 07/14/2016)
2016-07-26	10	ORDER REFERRING CASE to Magistrate Judge Nina Y. Wang by Judge Lewis T. Babcock on 7/26/2016. (ebuch) (Entered: 07/26/2016)
2016-07-29	11	ORDER by Magistrate Judge Nina Y. Wang on 07/29/16, Setting Rule 16(b) Scheduling Conference. Scheduling Conference set for 9/6/2016 10:30 AM in Courtroom C204 before Magistrate Judge Nina Y. Wang. (nmarb, ) (Entered: 07/29/2016)
2016-08-10	12	WITHDRAWN on 10/17/16-MOTION for Partial Summary Judgment by Plaintiff Kathy Whitson. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit Declaration of Kathy Whitson, # 22 Proposed Order (PDF Only) Proposed Order)(Melton, Allison) Modified on 10/18/2016 to add withdraw(bwilk, ). (Entered: 08/10/2016)
2016-08-30	13	Proposed Scheduling Order by Plaintiff Kathy Whitson. (Melton, Allison) (Entered: 08/30/2016)
2016-08-31	14	Unopposed MOTION for Leave to Appear by Telephone by Plaintiff Kathy Whitson. (Stills, Travis) (Entered: 08/31/2016)
2016-09-01	15	MEMORANDUM regarding 14 Unopposed MOTION for Leave to Appear by Telephone filed by Kathy Whitson. Motion referred to Magistrate Judge Nina Y. Wang by Judge Lewis T. Babcock on 9/1/2016. Text Only Entry (ebuch) (Entered: 09/01/2016)
2016-09-01	16	ORDER granting 14 Motion for Leave to Appear. Mr. Stills may appear telephonically for the 9/6/2016 Scheduling Conference by contacting Chambers at 303.335.2600 at the designated time. By Magistrate Judge Nina Y. Wang on 9/1/2016. Text Only Entry (nywlc1) (Entered: 09/01/2016)
2016-09-06	17	RESPONSE to 12 MOTION for Partial Summary Judgment filed by Defendant United States Forest Service. (Ross, Katherine) (Entered: 09/06/2016)
2016-09-06	18	COURTROOM MINUTES/MINUTE ORDER for Scheduling Conference held on 9/6/2016 before Magistrate Judge Nina Y. Wang. Defendant shall produce all pages of documents on or before 9/30/2016. A Status Conference is set for 10/14/2016 11:00 AM in Courtroom C204 before Magistrate Judge Nina Y. Wang. A joint Status Report is due on or before 10/11/2016 outlining issues of production, redaction, further dispositive motions, and any other issues the parties intend to discuss at the Status Conference. FTR: Courtroom C-204. (bwilk, ) (Entered: 09/07/2016)
2016-09-20	19	REPLY to Response to 12 MOTION for Partial Summary Judgment filed by Plaintiff Kathy Whitson. (Attachments: # 1 Exhibit)(Melton, Allison) (Entered: 09/20/2016)
2016-09-29	20	MOTION for Extension of Time to Produce the Re-Processed Records by Defendant United States Forest Service. (Attachments: # 1 Proposed Order (PDF Only))(Ross, Katherine) (Entered: 09/29/2016)
2016-09-30	21	RESPONSE to 20 MOTION for Extension of Time to Produce the Re-Processed Records filed by Plaintiff Kathy Whitson. (Melton, Allison) (Entered: 09/30/2016)
2016-09-30	22	MEMORANDUM regarding 20 MOTION for Extension of Time to Produce the Re-Processed Records filed by United States Forest Service. Motion referred to Magistrate Judge Nina Y. Wang by Judge Lewis T. Babcock on 9/30/2016. Text Only Entry (ebuch) (Entered: 09/30/2016)
2016-09-30	23	ORDER granting 20 Motion for Extension of Time. Defendant shall produce re-processed records responsive to Plaintiff's FOIA request on or before 10/4/2016. By Magistrate Judge Nina Y. Wang on 9/30/2016. Text Only Entry (nywlc1) (Entered: 09/30/2016)
2016-10-07	24	MINUTE ORDER by Magistrate Judge Nina Y. Wang on 10/7/16. Due to an unforeseen conflict in the court's calendar, the Status Conference set for 10/14/2016 is VACATED and RESET for 10/17/2016 11:30 AM in Courtroom C204 before Magistrate Judge Nina Y. Wang. Text Only Entry (bwilk, ) (Entered: 10/07/2016)
2016-10-11	25	Joint STATUS REPORT by Defendant United States Forest Service. (Ross, Katherine) (Entered: 10/11/2016)
2016-10-17	26	COURTROOM MINUTES/MINUTE ORDER for Status Conference held on 10/17/2016 before Magistrate Judge Nina Y. Wang. Plaintiff WITHDRAWS the Partial Motion for Summary Judgment 12 and any remaining issues to be presented by Plaintiff shall be incorporated into her forthcoming cross motion for summary judgment.FTR: Courtroom C-204. (bwilk, ) (Entered: 10/18/2016)
2016-11-21	27	MOTION for Summary Judgment by Defendant United States Forest Service. (Attachments: # 1 Exhibit Duran Declaration, # 2 Exhibit Adams Declaration, # 3 Exhibit Vaughn Index)(Ross, Katherine) (Entered: 11/21/2016)
2016-12-15	28	Response to 27 MOTION for Summary Judgment filed by Plaintiff Kathy Whitson. (Attachments: # 1 Exhibit 23, # 2 Exhibit 24, # 3 Exhibit 25, # 4 Exhibit 26, # 5 Exhibit 27, # 6 Exhibit 28, # 7 Exhibit 29, # 8 Exhibit 30, # 9 Exhibit 31, # 10 Exhibit 32-1, # 11 Exhibit 32-2, # 12 Exhibit 33, # 13 Exhibit 34)(Stills, Travis) Modified on 12/16/2016 to correct text (dkals, ). (Entered: 12/15/2016)
2016-12-15	29	Cross MOTION for Summary Judgment by Plaintiff Kathy Whitson. (Stills, Travis) (Entered: 12/15/2016)
2016-12-15	30	Cross MOTION for Summary Judgment by Plaintiff Kathy Whitson. (Stills, Travis) Modified on 12/16/2016 to note as duplicative (dkals, ). (Entered: 12/15/2016)
2017-01-13	31	RESPONSE to 29 Cross MOTION for Summary Judgment filed by Defendant United States Forest Service. (Attachments: # 1 Exhibit 5 (Supplemental Adams Declaration), # 2 Exhibit 6 (Lasko Declaration), # 3 Exhibit 7 (OIG Letter))(Ross, Katherine) (Entered: 01/13/2017)
2017-01-13	32	REPLY to Response to 27 MOTION for Summary Judgment filed by Defendant United States Forest Service. (Ross, Katherine) (Entered: 01/13/2017)
2017-01-17	33	Exhibits in Support of 31 Response to Motion, SIGNED Supplemental Declaration of Danielle Adams by Defendant United States Forest Service. (Ross, Katherine) (Entered: 01/17/2017)
2017-01-19	34	Unopposed MOTION for Extension of Time to File Response/Reply as to 29 Cross MOTION for Summary Judgment , 27 MOTION for Summary Judgment , Unopposed MOTION for Leave to file Surreply by Plaintiff Kathy Whitson. (Melton, Allison) (Entered: 01/19/2017)
2017-01-20	35	MINUTE ORDER granting 34 Plaintiff's Unopposed Motion for Reply and Surreply Deadline of February 15, 2017, by Judge Lewis T. Babcock on 1/20/2017. (ebuch) (Entered: 01/20/2017)
2017-02-06	36	NOTICE of Change of Address/Contact Information by Katherine Ann Ross (Ross, Katherine) (Entered: 02/06/2017)
2017-02-15	37	REPLY to Response to 29 Cross MOTION for Summary Judgment filed by Plaintiff Kathy Whitson. (Stills, Travis) (Entered: 02/15/2017)
2017-02-15	38	SURREPLY re 27 MOTION for Summary Judgment filed by Plaintiff Kathy Whitson. (Attachments: # 1 Exhibit, # 2 Exhibit)(Stills, Travis) (Entered: 02/15/2017)
2017-05-23	39	MEMORANDUM OPINION AND ORDER granting in part and denying in part 27 Defendant's Motion for Summary Judgment. Granting in part and denying in part 30 Plaintiff's Cross-Motion for Summary Judgment, by Judge Lewis T. Babcock on 5/23/2017. (ebuch) (Entered: 05/23/2017)
2017-06-19	40	MOTION for Reconsideration re 39 Order on Motion for Summary Judgment,,, by Defendant United States Forest Service. (Attachments: # 1 Exhibit A (Supplemental Lasko Declaration), # 2 Exhibit B (Bates 000001-000019), # 3 Exhibit C (Bates 000865-868), # 4 Exhibit D (Bates 000605-606), # 5 Exhibit E (Bates 000816-824))(Ross, Katherine) (Entered: 06/19/2017)
2017-06-19	41	MOTION for Extension of Time to Comply With Court's Order (ECF No. 39) by Defendant United States Forest Service. (Ross, Katherine) (Entered: 06/19/2017)
2017-06-20	42	MINUTE ORDER setting the briefing schedule on 40 Motion by Judge Lewis T. Babcock on 6/20/17. (dkals, ) (Entered: 06/20/2017)
2017-06-20	43	Unopposed MOTION for Extension of Time to File Response/Reply as to 40 MOTION for Reconsideration re 39 Order on Motion for Summary Judgment,,, , 41 MOTION for Extension of Time to Comply With Court's Order (ECF No. 39) by Plaintiff Kathy Whitson. (Stills, Travis) (Entered: 06/20/2017)
2017-06-21	44	MINUTE ORDER granting 43 Unopposed Motion to Extend Time by Judge Lewis T. Babcock on 6/21/17. (dkals, ) (Entered: 06/21/2017)
2017-07-12	45	Unopposed MOTION for Extension of Time to File Response/Reply as to 40 MOTION for Reconsideration re 39 Order on Motion for Summary Judgment,,, , 41 MOTION for Extension of Time to Comply With Court's Order (ECF No. 39) (Second Unopposed Motion) by Plaintiff Kathy Whitson. (Stills, Travis) (Entered: 07/12/2017)
2017-07-13	46	MINUTE ORDER granting 45 Plaintiff's Unopposed Second Motion to Extend Time by Judge Lewis T. Babcock on 7/13/2017. (ebuch) (Entered: 07/13/2017)
2017-07-24	47	RESPONSE to 40 MOTION for Reconsideration re 39 Order on Motion for Summary Judgment,,, , 41 MOTION for Extension of Time to Comply With Court's Order (ECF No. 39) filed by Plaintiff Kathy Whitson. (Attachments: # 1 Ex 37 Third Whitson Declaration)(Stills, Travis) (Entered: 07/24/2017)
2017-08-04	48	REPLY to Response to 40 MOTION for Reconsideration re 39 Order on Motion for Summary Judgment,,, , 41 MOTION for Extension of Time to Comply With Court's Order (ECF No. 39) filed by Defendant United States Forest Service. (Attachments: # 1 Exhibit A (Departmental Personnel Manual), # 2 Exhibit B (OIG Agreement))(Ross, Katherine) (Entered: 08/04/2017)
2017-08-29	49	MEMORANDUM OPINION AND ORDER granting 40 Defendant's Motion for Reconsideration, by Judge Lewis T. Babcock on 8/29/2017. (ebuch) (Entered: 08/29/2017)
2017-08-29	50	ORDER granting 41 Defendant's Motion for Extension of Time, by Judge Lewis T. Babcock on 8/29/2017. (ebuch) (Entered: 08/29/2017)
2017-09-27	51	STATUS REPORT by Defendant United States Forest Service. (Attachments: # 1 Attachment A)(Ross, Katherine) (Entered: 09/27/2017)
2017-09-27	52	RESTRICTED DOCUMENT - Level 2: by Defendant United States Forest Service.. (Attachments: # 1 Attachment A)(Ross, Katherine) (Entered: 09/27/2017)
2017-10-23	53	ORDER granting 27 Forest Service's MOTION for Summary Judgment on the issue that its redactions pursuant to FOIA Exemptions 6, 7(C), and 7(E) are proper. Judgment is entered in favor of the Forest Service on Plaintiff's sole claim which asserts a violation of FOIA. The case is dismissed with prejudice, by Judge Lewis T. Babcock on 10/23/2017. (ebuch) (Entered: 10/23/2017)
2017-10-23	54	FINAL JUDGMENT in favor of United States Forest Service and against Kathy Whitson pursuant to 53 Order, by Clerk on 10/23/2017. (ebuch) (Entered: 10/23/2017)
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