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Case TitleKeeper of the Mountains Foundation v. United States Department of Justice
DistrictSouthern District of West Virginia
CityCharleston
Case Number2:2006cv00098
Date Filed2006-02-09
Date Closed2008-09-04
JudgeJudge John T. Copenhaver, Jr.
PlaintiffKeeper of the Mountains Foundation
Case DescriptionThe Keeper of the Mountains Foundation submitted a FOIA request to various U.S. Attorney's Offices in areas affected by Hurricane Katrina. After hearing nothing further from the agency, Keeper of the Mountains Foundation filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantUnited States Department of Justice
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Opinion/Order [20]
Opinion/Order [36]
FOIA Project Annotation: A federal court in West Virginia has ruled that the Justice Department properly invoked Exemption 5 (deliberative process privilege) to protect a series of emails sent to various components of the agency regarding whether the agency had defended the Army Corps of Engineers against challenges to the levee system in New Orleans brought by environmental groups. The court rejected a claim that a handwritten tally of U.S. Attorneys was protected by Exemption 2 (internal practices and procedures) and found that Justice had both failed to explain the status of some emails and to indicate whether any of the material was segregable. The suit was brought by Keeper of the Mountains Foundation after the Executive Office for U.S. Attorneys and the Office of Information and Privacy withheld some records. DOJ's involvement in the matter stemmed from a request by a staffer for Sen. James Inhofe (R-OK) for information that might show that environmental groups had halted necessary levee improvements by the Corps of Engineers. A poll of U.S. Attorneys ultimately indicated the agency had not been involved in defending the Corps of Engineers against such groups. Other records created as a result of the request included a variety of emails to various offices and an exchange of letters between Rep. John Conyers (D-MI) and Attorney General Alberto Gonzales. The court found that OIP's Vaughn index did not refer to several emails that had been identified and that others were referred to only as having been reviewed by EOUSA without any explanation of what action OIP took. Finding OIP's index inadequate, the court declined the plaintiff's invitation to conduct an in camera review and ordered the parties to resolve the issue through negotiation, including the possibility of a supplemental Vaughn. EOUSA had claimed Exemption 2 to withhold a handwritten tally of U.S. Attorneys' responses, noting that it "reflects the internal practice of DOJ's informal tracking of responses from various USAOs" and that it contained nothing of public interest. But the court, agreeing that it was internal, found that "the DOJ's role in assisting a Senator in assigning blame for a putative government failure on a political constituency is important public information. So, too, are the results reflected in the tally. The tally is, thus, far from trivial." Turning to the Exemption 5 claims, the court found that they were both predecisional and deliberative and noted that "the four EOUSA exchanges and six OIP messages were part of the chain of communication in which employees of the agency brainstormed ways to respond to the Senate committee and the newspaper story. This give-and-take of the deliberative process serves as an adequate basis upon which to deny disclosure." However, finding that OIP had failed to indicate that it had conducted a segregability analysis as to some of the withheld records, the court instructed OIP to provide further substantiation of its claims concerning a lack of segregability.
Issues: Exemption 2 - Risk of circumvention, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Litigation - Segregability analysis
Opinion/Order [38]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2006-02-091COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF. Filing Fee $250.00. Receipt # 17938. (Attachments: # 1 Exhibit(s) A, B and C; and # 2 Civil Cover Sheet) (taq) (Entered: 02/13/2006)
2006-02-09CASE assigned to Judge John T. Copenhaver, Jr. (ras) (Entered: 02/13/2006)
2006-02-132STANDING ORDER IN RE: ASSIGNMENT AND REFERRAL OF CIVIL ACTIONS AND MATTERS TO MAGISTRATE JUDGES ENTERED JULY 21, 2004. This matter referred to Magistrate Judge Stanley for discovery. (cc: attys; any unrepresented party) (taq)
2006-02-143SUMMONS ISSUED by the Clerk on behalf of Keeper of the Mountains Foundation for United States Department of Justice, re: 1 Complaint for Declaratory and Injunctive Relief; returnable 30 days. Original and 5 copies served by Clerk via certified mail, return receipts requested; Fee: $50.00; Receipt #17938. (taq) Modified on 2/22/2006 (Howie, Susan).
2006-03-084SUMMONS RETURNED EXECUTED BY CERTIFIED MAIL for United States Department of Justice, re: 1 Complaint for Declaratory and Injunctive Relief. Return Receipt Card signed by Dee Wriston. U.S. Attorney served on 2/21/2006, answer due 4/24/2006. (taq)
2006-03-085SUMMONS RETURNED EXECUTED BY CERTIFIED MAIL for United States Department of Justice, re: 1 Complaint for Declaratory and Injunctive Relief. Return Receipt Card signed by Dee Wriston. U.S. Attorney's Office, served 2/21/06; answer deadline previously set for 4/24/06. (taq) Modified on 3/10/2006 (Howie, Susan).
2006-03-086SUMMONS RETURNED EXECUTED BY CERTIFIED MAIL for United States Department of Justice, re: 1 Complaint for Declaratory and Injunctive Relief. Return Receipt Card signed by Ernest L. Parker. Honorable Alberto R. Gonzales served on 2/24/06; answer deadline previously set for 4/24/06. (taq)
2006-03-087SUMMONS RETURNED EXECUTED BY CERTIFIED MAIL for United States Department of Justice, re: 1 Complaint for Declaratory and Injunctive Relief. Return Receipt Card signed on behalf of FOIA/PA, Office of Information and Privacy; answer deadline previously set for 4/24/06. (taq)
2006-03-238ANSWER TO COMPLAINT FOR DECLARATORY JUDGMENT by United States Department of Justice. (Curry, Kelly)
2006-03-249ORDER AND NOTICE: Joinder of Parties, amended pleadings due by 4/13/2006. Rule 12(b) Motions 4/13/2006. Rule 26(f) Meeting 4/24/2006. Last day to file report of Rule 26(f) Meeting 5/1/2006. Scheduling Conference at 10:30 AM on 5/19/2006 in Charleston. Entry of Scheduling Order 5/26/2006. Last Day to make Rule 26(a)(1) disclosures 5/31/2006. Signed by Judge John T. Copenhaver, Jr. on 3/24/2006. (cc:attys) (jkk)
2006-05-0110REPORT AND/OR INITIAL DISCLOSURES by Keeper of the Mountains Foundation, United States Department of Justice. (Curry, Kelly) (Edited text to add plaintiff as a filer) Modified on 5/2/2006 (Howie, Susan).
2006-05-0211MOTION by Keeper of the Mountains Foundation for Vaughn Index. (mkw) (Entered: 05/04/2006)
2006-05-0212MEMORANDUM by Plaintiff Keeper of the Mountains Foundation in support of 11 MOTION for Vaughn Index, with exhibits attached. (mkw) (Entered: 05/04/2006)
2006-05-02MOTION REFERRED TO Magistrate Judge Mary E. Stanley: 11 MOTION by Keeper of the Mountains Foundation for Vaughn Index. (skh) (Entered: 05/04/2006)
2006-05-0413MOTION by United States Department of Justice to Reset Scheduling Conference re 9 Judge Copenhaver's Order and Notice,. (Curry, Kelly)
2006-05-0814ORDER granting deft's 13 MOTION to reset scheduling conference; the conference is rescheduled for 3:00 p.m. on 6/16/06. Signed by Judge John T. Copenhaver, Jr. on 5/8/2006. (cc: attys) (taq)
2006-05-1915BRIEF by Defendant United States Department of Justice in opposition to 11 MOTION by Keeper of the Mountains Foundation for Vaughn Index (Attachments: # 1 Exhibit(s) Unpublished filing# 2 Exhibit(s) Unpublished Filing) (Curry, Kelly)
2006-06-0616NOTICE OF HEARING the parties are NOTIFIED that the court will conduct a telephonic hearing on pltf's 11 MOTION for Vaughn Index on 6/12/2006 at 10:00 AM; the court will initiate the call to both parties. Signed by Magistrate Judge Mary E. Stanley on 6/6/2006. (cc: attys) (taq)
2006-06-1217MOTION HEARING held by Magistrate Judge Mary E. Stanley on 6/12/2006; re: 11 MOTION by Keeper of the Mountains Foundation for Vaughn Index Court Reporter: Courtflow. (taj)
2006-06-1218MOTION by Keeper of the Mountains Foundation to Continue June 16 2006 Scheduling Conference . (DePaulo, William)
2006-06-1319ORDER directing that the conference scheduled for 3:00 p.m. on 06/16/06 be rescheduled for 9:30 a.m. on 06/30/06. Signed by Judge John T. Copenhaver, Jr. on 6/13/2006. (cc: attys) (mkw)
2006-06-1420MEMORANDUM OPINION AND ORDER granting pltf's 11 MOTION for Vaughn Index; deft shall file an index pursuant to Vaughn by 6/26/06. Signed by Magistrate Judge Mary E. Stanley on 6/14/2006. (cc: attys) (opinion posted to the court's website at www.wvsd.uscourts.gov) (taq)
2006-06-2121NOTICE OF CHANGE OF ATTORNEY INFORMATION by Marc A. Perez on behalf of United States Department of Justice. (mkw)
2006-06-2222STATEMENT OF VISITING ATTORNEY from Marc A. Perez. Local counsel: Kelly R. Curry. (Curry, Kelly)
2006-06-2623NOTICE by Defendant United States Department of Justice re 20 Order on Motion / Application / Petition for Miscellaneous Relief, of Filing Vaughn Index (Attachments: # 1 Exhibit(s) A -- Vaughn Index) (Curry, Kelly) (Modified on 6/27/2006 for clarification) (Howie, Susan).
2006-06-2824NOTICE OF CHANGE OF ATTORNEY INFORMATION by Kelly R. Curry for on behalf of United States Department of Justice. (Curry, Kelly)
2006-06-2825MOTION by United States Department of Justice to Continue Scheduling Conference (Unopposed) . (Curry, Kelly)
2006-06-2926ORDER re 22 Statement of Visiting Attorney and Designation of Local Counsel, directing that Marc A. Perez is admitted pro hac vice as counsel for deft in this action. Signed by Judge John T. Copenhaver, Jr. on 6/29/2006. (cc: attys) (taq)
2006-06-3027ORDER granting deft's unopposed 25 MOTION to Continue the scheduling conference; the conference is rescheduled for 1:30 p.m. on 9/8/06; further directing that the parties file a status report by 9/1/06, advising the court of the status of the production of responsive documents, which report should include an update, if any, to the parties' 10 Joint Rule 26(f) report. Signed by Judge John T. Copenhaver, Jr. on 6/30/2006. (cc: attys) (taq)
2006-06-30SET DEADLINES/HEARINGS: Scheduling Conference rescheduled for 01:30 PM on 9/8/2006; and Status Report due by 9/1/2006 pursuant to the court's 27 order entered of even date. (taq)
2006-09-0128STATUS REPORT by United States Department of Justice, Keeper of the Mountains Foundation. (Attachments: # 1 Exhibit(s) letter) (Curry, Kelly) (Modified on 9/5/2006 to add plaintiff as a filer) (Howie, Susan).
2006-11-0129ORDER directing that the parties are to file no later than 11/15/06, a joint proposed schedule leading to the final disposition of this action. Signed by Judge John T. Copenhaver, Jr. on 11/1/2006. (cc: attys) (mkw)
2006-11-1530RESPONSE by Keeper of the Mountains Foundation to the Court's 29 Order. (Curry, Kelly)
2007-01-1031MOTION by United States Department of Justice for Summary Judgment (Attachments: # 1 Exhibit(s) 1# 2 Exhibit(s) 2# 3 Exhibit(s) Unpublished Case)(Curry, Kelly)
2007-01-1032MEMORANDUM by United States Department of Justice in support of 31 MOTION by United States Department of Justice for Summary Judgment. (Curry, Kelly)
2007-01-3133RESPONSE by Keeper of the Mountains Foundation in opposition to 31 MOTION by United States Department of Justice for Summary Judgment (Attachments: # 1 Exhibit(s))(DePaulo, William) (Modified title of entry on 2/1/2007) (Howie, Susan).
2007-02-1634REPLY by United States Department of Justice to 33 Memorandum In Opposition. (Attachments: # 1 Exhibit(s))(Curry, Kelly)
2007-03-0235MEMORANDUM by Keeper of the Mountains Foundation in opposition to 31 MOTION by United States Department of Justice for Summary Judgment (DePaulo, William)
2007-08-2836MEMORANDUM OPINION AND ORDER directing that the issues raised in defendant's 31 MOTION for Summary Judgment are granted and denied as more fully set forth herein; directing the parties to confer with plaintiff with respect to PAO 4 and OLA 17, 22, 23, 24, 25, and 26 and PAO 5, 9, 11, 12 and OLA 9, 14, 15, and 21; directing the defendant, specifically OIP, to file by 10/01/07 a supplemental Vaughn index addressing the disclosure of these documents; directing the defendant, specifically OIP, to review the draft letters from the Assistant Attorney General to Congressman Conyers, identified as OLA 7 and 8, to determine whether any portions of the letters are disclosable and shall file its determination by 10/01/07. Signed by Judge John T. Copenhaver, Jr. on 8/28/2007. (cc: attys) (mkw) (Modified for clarification on 8/29/2007) (Howie, Susan).
2007-10-0137STATUS REPORT by Keeper of the Mountains Foundation, United States Department of Justice (Attachments: # 1 Second Declaration of Melanie Ann Pustay)(Riess, Daniel)
2008-09-0438MEMORANDUM OPINION AND ORDER directing that the issues raised in defendant's 31 MOTION for Summary Judgment are resolved as follows: 1) the motion as to withholding the two-page tally of U.S. Attorneys' Offices entitled "Alternative Dispute Resolution Survey of EOUSA Cases" (which has been ordered released) is denied; 2) the motion as to withholding POA 4 (which has been released) is denied; 3) the motion as to withholding PAO 5, 9, 11, 12 and OLA 9, 14, 15, 17, 21, 22, 23, 24, 25, 26 is granted; 4) the motion as to withholding OLA 7 and 8, the two draft letters from Assistant Attorney general to Congressman Conyers is granted. Signed by Judge John T. Copenhaver, Jr. on 9/4/2008. (cc: attys) (mkw)
2008-09-0439JUDGMENT ORDER in accordance with the Court's memorandum opinions and orders filed 08/28/07 and this same day, directing that plaintiffs, having received the U.S. Attorney's two-page tally and PAO 4, take nothing further and judgment be entered for the defendant and against the plaintiffs in the remainder of this action and that this action be dismissed; further directing that this action be stricken from the docket of the court. Signed by Judge John T. Copenhaver, Jr. on 9/4/2008. (cc: attys) (mkw)
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by FOIA Project Staff
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