Case Detail

FOIA Project Annotation: A federal court in Montana has ruled that the U.S. Army Corps of Engineers did not conduct an adequate search and that it failed to show that its Exemption 5 (privileges) and Exemption 7(A) (interference with ongoing investigation or proceeding) appropriate in response to a FOIA request from the ACLU for records concerning cooperation between federal, state, and local law enforcement entities pertaining to anticipated protests against the Keystone XL pipeline. The ACLU submitted requests to the FBI, the Bureau of Land Management, the Department of Justice and the Department of Homeland Security as well, but only challenged the responses from the Corps of Engineers, BLM, and the FBI. Both the Corps of Engineers and BLM located responsive emails but redacted portions of them under Exemption 5. The FBI issued a Glomar response neither confirming nor denying the existence of records. The ACLU challenged the Corps of Engineers search. District Court Judge Donald Malloy found that the agency's affidavits lacked adequate explanations of their searches and his examination of the record also revealed inconsistencies in the existence of responsive records. Malloy pointed out that "without providing even a cursory explanation of [one employee's] search measures, the scope of [a second employee's] search, or its filing and email procedures, the Army Corps cannot meet its burden to prove its search was adequate." Malloy found that two emails the Corps of Engineers had redacted under the deliberative process privilege did not qualify for the privilege because they were not pre-decisional. He also rejected the Corps' Exemption 7(A) claim on one of the emails, noting that "that the Army Corps generally anticipates law enforcement involvement in securing the pipeline does not bring the email and attachment within Exemption 7(A)'s protections for law enforcement proceedings." Malloy rejected the BLM's claim that a communications plan was protected by the deliberative process privilege after concluding that it also was not pre-decisional. He added that, in this case, it was not deliberative either. He pointed out that the communication plan "does not express suggestions or concerns about possible courses of action, nor does it include any editorial comments or proofreading marks, either of which would reflect the views of an individual rather than the agency. Rather, the communication plan appears to be the final statement of BLM's official communication strategy." The ACLU argued that another BLM email sent by a manager to an attorney was not covered by the attorney-client privilege because it related to policy rather than legal advice. Malloy disagreed, noting that "BLM submitted declarations that the email involved legal advice and the forwarded message suggests the advice was whether further NEPA analysis was legally required." The ACLU challenged the FBI's Glomar response, arguing that records disclosed by BLM confirmed that the FBI had responsive records. Malloy observed that "the FBI has not waived its Glomar response merely because BLM disclosed relevant information." But he pointed out that "BLM's disclosures revealing responsive FBI documents are relevant to whether the FBI has sufficiently explained that the records' existence or nonexistence is exempt from disclosure." Malloy rejected the FBI's claim that the records were protected under Exemption 7(E) (investigative methods or techniques) but agreed that the Glomar response was appropriate under Exemption 7(A)
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 7(A) - Interference with ongoing investigation, Determination - Glomar response

Date Filed	Doc #	Docket Text
2018-09-04	1	COMPLAINT against All Defendants, filed by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc.. (Attachments: # 1 Exhibit A-Emails, # 2 Exhibit B-Response Letter, # 3 Exhibit C-Emails, # 4 Exhibit D-Report 2017, # 5 Exhibit E-HS Report 2017, # 6 Civil Cover Sheet) (TAG) (Entered: 09/04/2018)
2018-09-04		Filing fee: $ 400, receipt number 0977-2188899 (TAG) (Entered: 09/04/2018)
2018-09-04	2	Summons Issued as to Department of Homeland Security, Department of Defense, Department of Justice, Department of the Interior. Originals mailed to counsel for plaintiffs (TAG) (Entered: 09/04/2018)
2018-09-04	3	Corporate Disclosure Statement by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc. as to American Civil Liberties Union and American Civil Liberties Union Foundation. (Rate, Alexander) (NOS) (Entered: 09/04/2018)
2018-09-04	4	Corporate Disclosure Statement by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc. as to American Civil Liberties Union of Montana Foundation, Inc. (Rate, Alexander) (NOS) (Entered: 09/04/2018)
2018-09-06	5	MOTION Brett Max Kaufman to Appear Pro Hac Vice ( Filing fee $ 255 receipt number 0977-2190816.) Alexander H. Rate appearing for Plaintiffs American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc. (Attachments: # 1 Affidavit Brett Max Kaufman, # 2 Text of Proposed Order PO PHV) (Rate, Alexander) (Entered: 09/06/2018)
2018-09-07	6	ORDER granting 5 Motion to Appear Pro Hac Vice for Brett Max Kaufman. Acknowledgment of PHV Order due within fifteen (15) days. Signed by Judge Donald W. Molloy on 9/7/2018. (NOS) (Entered: 09/07/2018)
2018-09-10	7	ORDER: Preliminary Pretrial Statement due by 10/26/2018. Proposed Case Management Plan due by 12/10/2018. Signed by Judge Donald W. Molloy on 9/10/2018. (NOS) (Entered: 09/10/2018)
2018-09-12	8	NOTICE of Acknowledgment of Pro Hac Vice Order by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc. (Kaufman, Brett) (Entered: 09/12/2018)
2018-09-20	9	Proof of Service filed by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc.. Service by certified mail on 09/17/18. (Kaufman, Brett) (Entered: 09/20/2018)
2018-09-20	10	Proof of Service filed by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc.. Service by certified mail on 09/14/18. (Kaufman, Brett) (Entered: 09/20/2018)
2018-09-20	11	Proof of Service filed by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc.. Service by certified mail on 09/20/18. (Kaufman, Brett) (Entered: 09/20/2018)
2018-09-20	12	Proof of Service filed by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc.. Service by certified mail on 09/14/18. (Kaufman, Brett) (Entered: 09/20/2018)
2018-09-20	13	Proof of Service filed by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc.. Service by certified mail on 09/14/18. (Kaufman, Brett) (Entered: 09/20/2018)
2018-09-25		Set/Reset Deadlines: Answer due date as to all Defendants. (NOS) (Entered: 09/25/2018)
2018-10-25	14	MOTION Emerson Sykes to Appear Pro Hac Vice ( Filing fee $ 255 receipt number 0977-2214576.) Alexander H. Rate appearing for Plaintiffs American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc. (Attachments: # 1 Affidavit Emerson S, # 2 Text of Proposed Order) (Rate, Alexander) (Entered: 10/25/2018)
2018-10-26	15	ORDER granting 14 Motion to Appear Pro Hac Vice of Emerson Sykes. Acknowledgment of PHV Order due within fifteen days of the date of this Order. Signed by Judge Donald W. Molloy on 10/26/2018. (NOS) (Entered: 10/26/2018)
2018-10-31	16	NOTICE of Acknowledgment of Pro Hac Vice Order by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc. re 15 Order on Motion to Appear Pro Hac Vice (Sykes, Emerson) (Entered: 10/31/2018)
2018-10-31	17	ANSWER to 1 Complaint, by DEPARTMENT OF HOMELAND SECURITY, Department of Defense, Department of Justice, Department of the Interior. (Smith, Mark) (Entered: 10/31/2018)
2018-11-19	18	Unopposed MOTION for Extension of Time to File Pretrial Deadlines Mark Steger Smith appearing for Defendants DEPARTMENT OF HOMELAND SECURITY, Department of Defense, Department of Justice, Department of the Interior (Attachments: # 1 Text of Proposed Order) (Smith, Mark) (Entered: 11/19/2018)
2018-11-20	19	ORDER granting 18 Unopposed MOTION for Extension of Time to File Pretrial Deadlines. Preliminary Pretrial Statement due by 1/10/2019. Proposed case management plan due by 1/27/2019. The September 10, 2018, Order remains in full force and effect in all other respects. Signed by Judge Donald W. Molloy on 11/20/2018. (NOS) (Entered: 11/20/2018)
2019-01-09	20	MOTION for Extension of Time to File Documents Victoria L. Francis appearing for Defendants DEPARTMENT OF HOMELAND SECURITY, Department of Defense, Department of Justice, Department of the Interior (Attachments: # 1 Text of Proposed Order) (Francis, Victoria) (Entered: 01/09/2019)
2019-01-10	21	AFFIDAVIT/DECLARATION re 19 Order Setting,, Terminate Motions, [Declaration of Michelle Bartlett, FOIA Officer for Dept of Defense, Army Corps of Engineers with attached Vaughn Index] by Department of Defense. (Attachments: # 1 Vaughn Index for Dept of Defense, Army Corps of Engineers) (Francis, Victoria) (Entered: 01/10/2019)
2019-01-10	22	ORDER denying 20 Motion for Extension of Time to File Signed by Judge Donald W. Molloy on 1/10/2019. (CDH) (Entered: 01/10/2019)
2019-01-10	23	PRELIMINARY PRETRIAL STATEMENT by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc.. (Sykes, Emerson) (Entered: 01/10/2019)
2019-01-10	24	AMENDED DOCUMENT by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc.. Amendment to 23 Preliminary Pretrial Statement . (Sykes, Emerson) (Entered: 01/10/2019)
2019-01-10	25	PRELIMINARY PRETRIAL STATEMENT by DEPARTMENT OF HOMELAND SECURITY, Department of Justice, Department of the Interior. (Smith, Mark) (Entered: 01/10/2019)
2019-01-10	26	Redaction Index by DEPARTMENT OF HOMELAND SECURITY, Department of Justice, Department of the Interior. (Attachments: # 1 FBI's Glomar letter dated 01-09-2019 sent to the ACLU re this lawsuit) (Smith, Mark) (Entered: 01/10/2019)
2019-01-10	27	AMENDED DOCUMENT by DEPARTMENT OF HOMELAND SECURITY, Department of Defense, Department of Justice, Department of the Interior. Amendment to 25 Preliminary Pretrial Statement [UNITED STATES' AMENDED PRELIMINARY PRETRIAL STATEMENT] . (Smith, Mark) (Entered: 01/10/2019)
2019-01-25	28	JOINT DISCOVERY PLAN by DEPARTMENT OF HOMELAND SECURITY, Department of Defense, Department of Justice, Department of the Interior. (Francis, Victoria) (Entered: 01/25/2019)
2019-01-28	29	Case Management Order: Amended Pleadings due by 2/22/2019. Discovery due by 4/12/2019. Joint Record due by 4/19/2019. Summary Judgment Motion due by 5/1/2019. Cross Motions due by 5/22/2019. Signed by Judge Donald W. Molloy on 1/28/2019. (NOS) (Entered: 01/28/2019)
2019-04-12	30	AMENDED DOCUMENT by Department of Defense. Amendment to 21 Affidavit/Declaration, [AMENDED DECLARATION OF MICHELLE BARTLETT, FOIA Officer for Dept. of Defense, Army Corps of Engineers] . (Attachments: # 1 Appendix - Army Corps of Engineer's First Amended and Supplmental Vaughn Index) (Smith, Mark) (Entered: 04/12/2019)
2019-04-12	31	AFFIDAVIT/DECLARATION OF SALLY SHEEKS, Information Specialist in FOIA Office in BLM Montana-Dakotas State Office by Department of the Interior. (Attachments: # 1 Appendix - Bureau of Land Management's Vaughn Index) (Smith, Mark) (Entered: 04/12/2019)
2019-04-12	32	AFFIDAVIT/DECLARATION OF DAVID HARDY, FBI Section Chief of the Record/Information Dissemination Section of the Information Management Division by Department of Justice. (Attachments: # 1 Exhibit A - ACLU letter to FBI dated 4-2-2018, # 2 Exhibit B - FBI letter to ACLU dated 4-6-2018, # 3 Exhibit C - FBI letter to ACLU dated 4-6-2018, # 4 Exhibit D - FBI letter to ACLU dated 4-24-2018, # 5 Exhibit E - FBI letter to ACLU dated 1-09-2019 (errata stated as 1-09- 2018)) (Smith, Mark) (Main Document 32 replaced on 4/12/2019) (EMH). (Attachment 1 replaced on 4/15/2019) (EMH). (Attachment 2 replaced on 4/15/2019) (EMH). (Attachment 3 replaced on 4/15/2019) (EMH). (Attachment 4 replaced on 4/15/2019) (EMH). (Attachment 5 replaced on 4/15/2019) (EMH). Modified on 4/15/2019 Per IT documents downloaded and refiled so they could be accessed on CM ECF(EMH). (Entered: 04/12/2019)
2019-04-12	33	AFFIDAVIT/DECLARATION OF GREGORY BRIDGES, Acting Chief of Disclosure Branch, Records Management Division, Federal Emergency Management Agency by DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A - Letter from ACLU dated 01-23-2018, # 2 Exhibit B - Letter from FEMA to ACLU dated 3-23-2018, # 3 Exhibit C - Letter from FEMA to ACLU dated 8-31-2018, # 4 Exhibit D - Systems searched & search terms, # 5 Exhibit E - FEMA's Vaughn Index) (Smith, Mark) (Attachment 1 replaced on 4/15/2019 due to inability to open correctly; NEF regenerated.) (NOS) (Entered: 04/12/2019)
2019-04-12	34	AFFIDAVIT/DECLARATION OF TERRI MILLER, FOIA Officer for Transporation Security Administration by DEPARTMENT OF HOMELAND SECURITY. (Smith, Mark) (Entered: 04/12/2019)
2019-04-19	35	REDACTION [JOINT RECORD containing redacted documents] by DEPARTMENT OF HOMELAND SECURITY, Department of Defense, Department of Justice, Department of the Interior. (Attachments: # 1 Appendix 35-1 - ACE_1-68 (redacted bates no. docs for Army Corps of Engineers), # 2 Appendix 35-2 - BLM_1-167 (Bureau of Land Management), # 3 Appendix 35-3 - FBI_1-18, # 4 Appendix 35-4 - FEMA_1-253 (Federal Emergency Management Agency - Part 1), # 5 Appendix 35-5 - FEMA_254-506 (Part 2), # 6 Appendix 35-6 - OLC_1-20 (Dept. of Justice, Office of Legal Counsel), # 7 Appendix 35-7 - TSA_1-24 (Transportation Security Administration), # 8 Appendix 35-8 - DHS-I&A_1-286 (Dept. of Homeland Security, Office of Intelligence and Analysis)) (Francis, Victoria) (Entered: 04/19/2019)
2019-04-26		Remark: Joint Record (ACE, BLM, FBI) received and placed on shelf in Missoula clerk's office (3 notebooks). (NOS) (Entered: 04/26/2019)
2019-04-26	36	AFFIDAVIT/DECLARATION re 30 Amended Document, [Second Supplemental Declaration of Michelle Bartlett] by Department of Defense. (Smith, Mark) (Entered: 04/26/2019)
2019-04-26	37	AFFIDAVIT/DECLARATION OF PAUL P. COLBORN, Special Counsel, Office of Legal Counsel by Department of Justice. (Attachments: # 1 Exhibit A - ACLU ltr dated 01-23-2018, # 2 Exhibit B - DOJ, Office of Legal Counsel ltr to ACLU dated 1-31-2018, # 3 Exhibit C - DOJ, OLC ltr to ACLU dated 1-23-2019 advising no responsive documents) (Smith, Mark) (Entered: 04/26/2019)
2019-05-01	38	REDACTION [FIRST SUPPLEMENTAL JOINT RECORD supplementing Doc. 35-8] by DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Appendix 38-1 - DHS-I&A_287-464 (Dept. of Homeland Security, Office of Intelligence and Analysis)) (Francis, Victoria) (Entered: 05/01/2019)
2019-05-01	39	AFFIDAVIT/DECLARATION OF BRENDAN HENRY by DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A - ACLU letter dated 1/23/2018, # 2 Exhibit B - DHS, I&A letter dated 2/16/2018, # 3 Exhibit C - ACLU and I&A emails, 2/2018 to 3/2018, # 4 Exhibit D - I&A email dated 6/22/18, # 5 Exhibit E - Vaughn Index) (Francis, Victoria) (Entered: 05/01/2019)
2019-05-01	40	MOTION for Summary Judgment Victoria L. Francis appearing for Defendants DEPARTMENT OF HOMELAND SECURITY, Department of Defense, Department of Justice, Department of the Interior (Francis, Victoria) (Entered: 05/01/2019)
2019-05-01	41	Statement of Undisputed Fact re: 40 MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY, Department of Defense, Department of Justice, Department of the Interior filed by DEPARTMENT OF HOMELAND SECURITY, Department of Defense, Department of Justice, Department of the Interior. (Francis, Victoria) (Entered: 05/01/2019)
2019-05-01	42	Brief/Memorandum in Support re 40 MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY, Department of Defense, Department of Justice, Department of the Interior. (Francis, Victoria) (Entered: 05/01/2019)
2019-05-03	43	NOTICE of Appearance by Lillian M. Alvernaz on behalf of All Plaintiffs (Alvernaz, Lillian) (Entered: 05/03/2019)
2019-05-08	44	NOTICE of Change of Address by Lillian M. Alvernaz (Alvernaz, Lillian) (Entered: 05/08/2019)
2019-05-22	45	MOTION for Partial Summary Judgment Emerson Sykes appearing for Plaintiffs American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc. (Sykes, Emerson) (Entered: 05/22/2019)
2019-05-22	46	Brief/Memorandum in Support re 45 MOTION for Partial Summary Judgment , 40 MOTION for Summary Judgment and in Opposition to Defs.' Motion for Summary Judgment filed by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc.. (Sykes, Emerson) (Entered: 05/22/2019)
2019-05-22	47	AFFIDAVIT in Support re 45 MOTION for Partial Summary Judgment , 40 MOTION for Summary Judgment and in Opposition to Defs.' Motion for Summary Judgment filed by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc.. (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) (Sykes, Emerson) (Entered: 05/22/2019)
2019-05-22	48	Statement of Disputed Facts re: 41 Statement of Undisputed Fact, 45 MOTION for Partial Summary Judgment , 40 MOTION for Summary Judgment filed by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc.. (Sykes, Emerson) (Entered: 05/22/2019)
2019-05-22	49	Statement of Undisputed Fact re: 45 MOTION for Partial Summary Judgment by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc. filed by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc.. (Sykes, Emerson) (Entered: 05/22/2019)
2019-06-12	50	NOTICE of Change of Phone Number. Counsel Alexander Rate appearing for American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc. (Rate, Alexander) (Docket text updated.) (NOS) (Entered: 06/12/2019)
2019-06-12	51	AFFIDAVIT/DECLARATION OF KEIOSHA ALEXANDER, Acting FOIA Officer in BLM headquarters in Washington, D.C. by Department of the Interior. (Francis, Victoria) (Entered: 06/12/2019)
2019-06-12	52	REDACTION [SECOND SUPPLEMENTAL JOINT RECORD] by Department of the Interior. (Attachments: # 1 Appendix 52-1 - BLM 168-169 wherein attorney-client (b)(5) redactions contained in BLM 57-58 have been removed) (Francis, Victoria) (Entered: 06/12/2019)
2019-06-12	53	SUPPLEMENT re 31 Affidavit/Declaration [Supplement to Doc. 31-1, Bureau of Land Management's Vaughn Index] by Department of the Interior. (Attachments: # 1 Appendix - BLM's 1st Supplemental Vaughn Index) (Francis, Victoria) (Entered: 06/12/2019)
2019-06-12	54	Statement of Disputed Facts re: 49 Statement of Undisputed Fact, 45 MOTION for Partial Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY, Department of Defense, Department of Justice, Department of the Interior. (Francis, Victoria) (Entered: 06/12/2019)
2019-06-12	55	RESPONSE to Motion re 45 MOTION for Partial Summary Judgment , 40 MOTION for Summary Judgment [DEFENDANTS' COMBINED RESPONSE AND REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT] , REPLY to Response to Motion filed by DEPARTMENT OF HOMELAND SECURITY, Department of Defense, Department of Justice, Department of the Interior. (Attachments: # 1 Exhibit 1 - Keystone XL Pipeline Meeting Agenda, # 2 Exhibit 2 - ACE's Operation Order 2014-32 (Integrated Protection)) (Francis, Victoria) (Entered: 06/12/2019)
2019-06-26	56	REPLY to Response to Motion re 45 MOTION for Partial Summary Judgment filed by American Civil Liberties Union, American Civil Liberties Union Foundation, American Civil Liberties Union of Montana Foundation, Inc.. (Sykes, Emerson) (Entered: 06/26/2019)
2019-08-21	57	OPINION and ORDER granting in part and denying in part 40 Motion for Summary Judgment, 45 Motion for Partial Summary Judgment. Signed by Judge Donald W. Molloy on 8/21/2019. (NOS) (Entered: 08/21/2019)
2019-08-21	58	CLERK'S JUDGMENT. (NOS) (Entered: 08/21/2019)
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