Case Detail

FOIA Project Annotation: Judge James Boasberg has ruled that U.S. Fish and Wildlife Services has so far failed to show that Exemption 5 (privileges) applies to all the records it withheld from the Sierra Club concerning the status of the Florida Key deer on the agency's endangered species list. The agency disclosed 936 pages in full and 178 pages in part. The agency also withheld 251 pages under Exemption 5 (privileges), including the final and draft copies of the agency's Species Status Assessment report. The Sierra Club argued that three types of records the agency was withholding under the deliberative process privilege were not deliberative â€" the final SSA report on the deer, the three earlier drafts of the report, and the comments and communications identifying scientific information relevant to the report. The agency took the position that all records were drafts until the final decision was published in the Federal Register. Boasberg found this definition too broad and rejected it. Instead, he pointed out that "the key deliberative-process inquiry is a functional one: courts ask whether disclosure is likely 'to stifle honest and frank communications within the agency,' not whether the document fits into a pre-determined category. Under this functional inquiry, the Court finds that release of the report would in no way 'stifle' conversation within the agency, as it contains no personal opinions, no recommendations, no deliberations, and nothing that would cause the agency's decisionmakers to 'temper candor' in their remarks out of 'a concern for appearances.'" He added that "the January 2018 report appears not to be a draft at all. . .In written communications, [the agency] referred to the report as 'completed in January 2018' and detailed plans to release it to the public in August 2019 after a public information meeting about the status of the deer. In the Court's view, both serve as clear indicators of finality." Boasberg indicated that the earlier drafts of the report were more likely to be deliberative but noted that "this Court has very little idea of how SSA reports are drafted, for whom, and who directs the editing process. Without any sense of the process, the Court is hesitant to rule on their deliberative nature." As a result, Boasberg gave the agency another opportunity to better explain the deliberative nature of the drafts and the relevant comments and communications. He rejected the agency's foreseeable harm analysis, noting that "the Court remains unpersuaded that a non-specific fear of confusion suffices to meet the agency's burden. Should FWS wish to keep the draft SSA reports and corresponding communications confidential, the Court expects a more robust justification on this score in supplemental submissions."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2019-08-01	1	COMPLAINT against U.S. FISH AND WILDLIFE SERVICE ( Filing fee $ 400 receipt number 0090-6295098) filed by SIERRA CLUB. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Schoenhut, Karimah) (Entered: 08/01/2019)
2019-08-01	2	LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests of SIERRA CLUB by SIERRA CLUB (Schoenhut, Karimah) (Entered: 08/01/2019)
2019-08-02		Case Assigned to Judge James E. Boasberg. (zeg) (Entered: 08/02/2019)
2019-08-02	3	SUMMONS (3) Issued Electronically as to U.S. FISH AND WILDLIFE SERVICE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zeg) (Entered: 08/02/2019)
2019-08-15	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/6/2019. Answer due for ALL FEDERAL DEFENDANTS by 9/5/2019. (Attachments: # 1 Exhibit Certified Mail Card)(Schoenhut, Karimah) (Entered: 08/15/2019)
2019-08-15	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 08/06/2019. (Attachments: # 1 Exhibit Certified Mail Card)(Schoenhut, Karimah) (Entered: 08/15/2019)
2019-08-15	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. FISH AND WILDLIFE SERVICE served on 8/3/2019 (Attachments: # 1 Exhibit Certified Mail Card)(Schoenhut, Karimah) (Entered: 08/15/2019)
2019-08-15	7	NOTICE of Appearance by Marsha Wellknown Yee on behalf of U.S. FISH AND WILDLIFE SERVICE (Yee, Marsha) (Entered: 08/15/2019)
2019-09-05	8	ANSWER to Complaint by U.S. FISH AND WILDLIFE SERVICE.(Yee, Marsha) (Entered: 09/05/2019)
2019-09-05		MINUTE ORDER: The Court ORDERS that the parties shall confer and submit a joint briefing schedule by September 19, 2019. So ORDERED by Judge James E. Boasberg on 9/5/2019. (lcjeb1) (Entered: 09/05/2019)
2019-09-05		Set/Reset Deadlines: Joint Status Report due by 9/19/2019. (znbn) (Entered: 09/06/2019)
2019-09-19	9	Joint STATUS REPORT by U.S. FISH AND WILDLIFE SERVICE. (Yee, Marsha) (Entered: 09/19/2019)
2019-09-20		MINUTE ORDER: The Court ADOPTS the parties' 9 Joint Status Report and ORDERS that they shall file a further joint status report by November 6, 2019. So ORDERED by Judge James E. Boasberg on 09/20/2019. (lcjeb1) (Entered: 09/20/2019)
2019-11-06	10	Joint STATUS REPORT by U.S. FISH AND WILDLIFE SERVICE. (Yee, Marsha) (Entered: 11/06/2019)
2019-11-06		MINUTE ORDER: The Court ADOPTS the parties' 10 Joint Status Report and ORDERS that they shall file a further joint status report by December 13, 2019. So ORDERED by Judge James E. Boasberg on 11/6/2019. (lcjeb2) (Entered: 11/06/2019)
2019-11-06		Set/Reset Deadlines: Joint Status Report due by 12/13/2019. (nbn) (Entered: 11/07/2019)
2019-12-13	11	Joint STATUS REPORT by U.S. FISH AND WILDLIFE SERVICE. (Yee, Marsha) (Entered: 12/13/2019)
2019-12-13		MINUTE ORDER: The Court ADOPTS the parties' 11 Joint Status Report and ORDERS that they shall file a further Joint Status Report by January 23, 2020. So ORDERED by Judge James E. Boasberg on 12/13/2019. (lcjeb1) (Entered: 12/13/2019)
2019-12-13		Set/Reset Deadlines: Joint Status Report due by 1/23/2020. (nbn) (Entered: 12/13/2019)
2020-01-23	12	Joint STATUS REPORT by U.S. FISH AND WILDLIFE SERVICE. (Yee, Marsha) (Entered: 01/23/2020)
2020-01-23		MINUTE ORDER: The Court ADOPTS the parties' 12 Joint Status Report and ORDERS that they shall file a further Joint Status Report by March 25, 2020. So ORDERED by Judge James E. Boasberg on 1/23/2020. (lcjeb1) (Entered: 01/23/2020)
2020-03-25	13	Joint STATUS REPORT by U.S. FISH AND WILDLIFE SERVICE. (Yee, Marsha) (Entered: 03/25/2020)
2020-03-25		MINUTE ORDER: The Court ADOPTS the parties' 13 Joint Status Report and ORDERS that they shall file a further Joint Status Report by May 7, 2020. So ORDERED by Judge James E. Boasberg on 3/25/2020. (lcjeb1) (Entered: 03/25/2020)
2020-03-25		Set/Reset Deadlines: Joint Status Report due by 5/7/2020. (nbn) (Entered: 03/26/2020)
2020-04-09	14	NOTICE of Appearance by Andres J. Restrepo on behalf of SIERRA CLUB (Restrepo, Andres) (Entered: 04/09/2020)
2020-05-07	15	Joint STATUS REPORT by U.S. FISH AND WILDLIFE SERVICE. (Yee, Marsha) (Entered: 05/07/2020)
2020-05-07		MINUTE ORDER: The Court ADOPTS the parties' 15 Joint Status Report and ORDERS that they shall file a further Joint Status Report by July 9, 2020. So ORDERED by Judge James E. Boasberg on 5/7/2020. (lcjeb1) (Entered: 05/07/2020)
2020-05-07		Set/Reset Deadlines: Joint Status Report due by 7/9/2020. (znbn) (Entered: 05/08/2020)
2020-07-08	16	Joint STATUS REPORT by U.S. FISH AND WILDLIFE SERVICE. (Yee, Marsha) (Entered: 07/08/2020)
2020-07-08		MINUTE ORDER: The Court ADOPTS the parties 16 Joint Proposed Briefing Schedule and ORDERS that: (1) Defendant shall file its motion for summary judgment by August 13, 2020; (2) Plaintiff shall file its opposition and any cross-motion for summary judgment by September 15, 2020; (3) Defendant shall file its reply in support of its motion and opposition to any cross-motion for summary judgment by October 15, 2020; and (4) Plaintiff shall file its reply in support of any cross-motion for summary judgment by November 17, 2020. So ORDERED by Judge James E. Boasberg on 07/08/2020. (lcjeb2) (Entered: 07/08/2020)
2020-07-08		Set/Reset Deadlines: Summary Judgment motions due by 8/13/2020. Response to Motion for Summary Judgment due by 9/15/2020. Cross Motions due by 9/15/2020. Response to Cross Motions due by 10/15/2020. Reply to Motion for Summary Judgment due by 10/15/2020. Reply to Cross Motions due by 11/17/2020. (znbn) (Entered: 07/08/2020)
2020-08-12	17	Unopposed MOTION for Extension of Time to File Defendant's Motion for Summary Judgment , Unopposed MOTION to Modify Remainder of Briefing Schedule by U.S. FISH AND WILDLIFE SERVICE (Attachments: # 1 Text of Proposed Order)(Yee, Marsha) (Entered: 08/12/2020)
2020-08-12		MINUTE ORDER GRANTING Consent 17 Motion for Extension of Time and to Modify Remainder of Briefing Schedule. The Court ORDERS that: 1) Defendant shall file its motion for summary judgment by September 17, 2020; 2) Plaintiff shall file its combined opposition and any cross-motion for summary judgment by October 19, 2020; 3) Defendant shall file its combined reply in support of its motion and opposition to any cross-motion for summary judgment by November 18, 2020; and 4) Plaintiff shall file its reply in support of any cross-motion for summary judgment by December 18, 2020. So ORDERED by Judge James E. Boasberg on 8/12/2020. (lcjeb1) (Entered: 08/12/2020)
2020-08-12		Set/Reset Deadlines: Summary Judgment motions due by 9/17/2020. Response to Motion for Summary Judgment due by 10/19/2020. Cross Motions due by 10/19/2020. Reply to Motion for Summary Judgment due by 11/18/2020. Response to Cross Motions due by 11/18/2020. Reply to Cross Motions due by 12/18/2020. (znbn) (Entered: 08/13/2020)
2020-09-17	18	Unopposed MOTION for Extension of Time to File Defendant's Motion for Summary Judgment , Unopposed MOTION to Modify Remainder of Briefing Schedule by U.S. FISH AND WILDLIFE SERVICE (Attachments: # 1 Text of Proposed Order)(Yee, Marsha) (Entered: 09/17/2020)
2020-09-17		MINUTE ORDER GRANTING Consent 18 Motion for Extension of Time and to Modify Remainder of Briefing Schedule. The Court ORDERS that: 1) Defendant shall file its motion for summary judgment by September 23, 2020; 2) Plaintiff shall file its combined opposition and any cross-motion for summary judgment by October 27, 2020; 3) Defendant shall file its combined reply in support of its motion and opposition to any cross-motion for summary judgment by December 3, 2020; and 4) Plaintiff shall file its reply in support of any cross-motion for summary judgment by January 15, 2021. So ORDERED by Judge James E. Boasberg on 9/17/2020. (lcjeb1) (Entered: 09/17/2020)
2020-09-18		Set/Reset Deadlines: Summary Judgment motions due by 9/23/2020. Response to Motion for Summary Judgment due by 10/27/2020. Cross Motions due by 10/27/2020. Response to Cross Motions due by 12/3/2020. Reply to Motion for Summary Judgment due by 12/3/2020. Reply to Cross Motions due by 1/15/2021. (znbn) (Entered: 09/21/2020)
2020-09-23	19	MOTION for Summary Judgment by U.S. FISH AND WILDLIFE SERVICE (Attachments: # 1 Statement of Facts, # 2 McClurkin Decl. and Exhibits, # 3 Text of Proposed Order)(Yee, Marsha) (Entered: 09/23/2020)
2020-10-26	20	Cross MOTION for Summary Judgment by SIERRA CLUB (Attachments: # 1 Declaration Decl. of Diana Umpierre, # 2 Declaration Decl. of Karimah Schoenhut, # 3 Exhibit Exhibits 1 through 20, # 4 Exhibit Exhibit 21, # 5 Exhibit Exhibits 22 through 26, # 6 Text of Proposed Order)(Schoenhut, Karimah) (Entered: 10/26/2020)
2020-10-26	21	Memorandum in opposition to re 19 MOTION for Summary Judgment filed by SIERRA CLUB. (Attachments: # 1 Declaration Diana Umpierre, # 2 Declaration Karimah Schoenhut, # 3 Exhibit Exhibits 1 through 20, # 4 Exhibit Exhibit 21, # 5 Exhibit Exhibits 22 through 26, # 6 Text of Proposed Order)(Schoenhut, Karimah) (Entered: 10/26/2020)
2020-12-03	22	REPLY to opposition to motion re 19 MOTION for Summary Judgment filed by U.S. FISH AND WILDLIFE SERVICE. (Attachments: # 1 McClurkin Suppl.Decl., # 2 Defendant's Responses to Plaintiff's SMF, # 3 Text of Proposed Order)(Yee, Marsha) (Entered: 12/03/2020)
2020-12-03	23	Memorandum in opposition to re 20 Cross MOTION for Summary Judgment filed by U.S. FISH AND WILDLIFE SERVICE. (Attachments: # 1 McClurkin Suppl.Decl., # 2 Defendant's Responses to Plaintiff's SMF, # 3 Text of Proposed Order)(Yee, Marsha) (Entered: 12/03/2020)
2021-01-14	24	REPLY to opposition to motion re 20 Cross MOTION for Summary Judgment filed by SIERRA CLUB. (Attachments: # 1 Declaration Second Decl. of Karimah Schoenhut, # 2 Exhibit 1 and 2)(Schoenhut, Karimah) (Entered: 01/14/2021)
2021-02-26	25	ORDER: The Court ORDERS that: 1) Plaintiff's 20 Cross-Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART; 2) Defendant's 19 Motion for Summary Judgment is DENIED; 3) Fish and Wildlife shall turn over the final January 2018 SSA report by March 3, 2021; 4) Fish and Wildlife shall submit to Plaintiff by March 12, 2021, further declarations as described in the Memorandum Opinion; and 5) By March 26, 2021, the parties shall file either a stipulation of dismissal or a joint status report with proposed dates for further briefing. Signed by Judge James E. Boasberg on 2/26/2021. (lcjeb1) (Entered: 02/26/2021)
2021-02-26	26	MEMORANDUM OPINION re 25 Order on Motions for Summary Judgment. Signed by Judge James E. Boasberg on 2/26/2021. (lcjeb1) (Entered: 02/26/2021)
2021-02-26		Set/Reset Deadlines: Fish and Wildlife shall turn over the final January 2018 SSA report by 3/3/2021. Fish and Wildlife shall submit to Plaintiff by 3/12/2021. Status Report due by 3/26/2021. (znbn) (Entered: 02/26/2021)
2021-03-02	27	Consent MOTION to Stay Order Requiring Disclosure by U.S. FISH AND WILDLIFE SERVICE. (Attachments: # 1 Text of Proposed Order)(Yee, Marsha) (Entered: 03/02/2021)
2021-03-03		MINUTE ORDER GRANTING Consent 27 Motion to Stay. The Court ORDERS that the portion of its February 26, 2021, Order requiring the agency to turn over the final January 2018 SSA report by March 3, 2021, is hereby STAYED until March 31, 2021. So ORDERED by Judge James E. Boasberg on 3/3/2021. (lcjeb1) (Entered: 03/03/2021)
2021-03-25	28	Joint STATUS REPORT by U.S. FISH AND WILDLIFE SERVICE. (Yee, Marsha) (Entered: 03/25/2021)
2021-03-25		MINUTE ORDER: The Court ADOPTS the parties' 28 Joint Status Report and ORDERS that they shall file a further joint status report by April 26, 2021. So ORDERED by Judge James E. Boasberg on 3/25/2021. (lcjeb1) (Entered: 03/25/2021)
2021-03-25		Set/Reset Deadlines: Joint Status Report due by 4/26/2021. (nbn) (Entered: 03/25/2021)
2021-04-26	29	Joint STATUS REPORT by U.S. FISH AND WILDLIFE SERVICE. (Yee, Marsha) (Entered: 04/26/2021)
2021-04-26		MINUTE ORDER: The Court ADOPTS the parties' 29 Joint Status Report and ORDERS that they shall file a further joint status report by June 8, 2021. So ORDERED by Judge James E. Boasberg on 4/26/2021. (lcjeb1) (Entered: 04/26/2021)
2021-04-26		Set/Reset Deadlines: Joint Status Report due by 6/8/2021. (nbn) (Entered: 04/29/2021)
2021-06-08	30	Joint STATUS REPORT by U.S. FISH AND WILDLIFE SERVICE. (Yee, Marsha) (Entered: 06/08/2021)
2021-06-08		MINUTE ORDER: The Court ADOPTS the parties' 30 Joint Status Report and ORDERS that they shall file a further joint status report by July 28, 2021. So ORDERED by Judge James E. Boasberg on 6/8/2021. (lcjeb1) (Entered: 06/08/2021)
2021-06-09		Set/Reset Deadlines: Joint Status Report due by 7/28/2021 (lsj) (Entered: 06/09/2021)
2021-07-28	31	Joint STATUS REPORT by U.S. FISH AND WILDLIFE SERVICE. (Yee, Marsha) (Entered: 07/28/2021)
2021-07-28		MINUTE ORDER: The Court ADOPTS the parties' 31 Joint Status Report and ORDERS that they shall file a further joint status report by September 10, 2021. So ORDERED by Judge James E. Boasberg on 7/28/2021. (lcjeb1) (Entered: 07/28/2021)
2021-07-28		Set/Reset Deadlines: Joint Status Report due by 9/10/2021. (nbn) (Entered: 07/28/2021)
2021-09-10	32	Joint STATUS REPORT by U.S. FISH AND WILDLIFE SERVICE. (Yee, Marsha) (Entered: 09/10/2021)
2021-09-10		MINUTE ORDER: The Court ADOPTS the parties' 32 Joint Status Report and ORDERS that they shall file a further joint status report by October 28, 2021. So ORDERED by Judge James E. Boasberg on 9/10/2021. (lcjeb1) (Entered: 09/10/2021)
2021-09-10		Set/Reset Deadlines: Joint Status Report due by 10/28/2021. (znbn) (Entered: 09/13/2021)
2021-10-28	33	Joint STATUS REPORT by SIERRA CLUB. (Restrepo, Andres) (Entered: 10/28/2021)
2021-10-28		MINUTE ORDER: The Court ADOPTS the parties' 33 Joint Status Report and ORDERS that they shall file a further joint status report by November 19, 2021. So ORDERED by Judge James E. Boasberg on 10/28/2021. (lcjeb1) (Entered: 10/28/2021)
2021-10-28		Set/Reset Deadlines: Joint Status Report due by 11/19/2021. (znbn) (Entered: 11/02/2021)
2021-11-05	34	STIPULATION of Dismissal by U.S. FISH AND WILDLIFE SERVICE. (Yee, Marsha) (Entered: 11/05/2021)
2021-11-05		MINUTE ORDER: Per the parties' 34 Stipulation, the Court ORDERS that the case is DISMISSED WITH PREJUDICE. So ORDERED by Judge James E. Boasberg on 11/5/2021. (lcjeb1) (Entered: 11/05/2021)
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