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Star Publishing Co. v. United States Fish and Wildlife Service

United States District Court, D. Arizona

April 22, 2014

STAR PUBLISHING COMPANY; TONY DAVIS, Plaintiffs,
v.
UNITED STATES FISH AND WILDLIFE SERVICE; UNITED STATES DEPARTMENT OF THE INTERIOR, Defendants.

ORDER

CINDY K. JORGENSON, District Judge.

On February 7, 2014, Magistrate Judge D. Thomas Ferraro issued a Report and Recommendation (Doc. 36) in which he recommended that the parties' Motions for Summary Judgment (Docs. 22 and 24) be granted in part and denied in part. The magistrate judge advised the parties that written objections to the Report and Recommendation were to be filed within fourteen days of service of a copy of the Report and Recommendation pursuant to 28 U.S.C. § 636(b). Plaintiffs and Defendants have each filed objections.

I. Report and Recommendation

The magistrate judge recommended Defendants' Motion for Summary Judgment should be granted as to the Memo contained in Document Three and as to Documents Four and Six on the Vaughn Index, finding these documents were properly exempted from disclosure under Freedom of Information Act ("FOIA") Exemptions 6 and 7(C). See 5 U.S.C. §§ 552(b)(6) and (7)(C). The magistrate judge further recommended Defendants' Motion for Summary Judgment should be granted as to the Interview Transcript contained in Document Three and as to Document Five to the extent that personal information should not be disclosed. The magistrate judge also recommended Defendants' Motion for Summary Judgment should be denied as to the Interview Transcript contained in Document Three and as to Document Five, finding these documents had been overly redacted under Exemptions 6 and 7(C).

The magistrate judge recommended Plaintiffs' Cross-Motion for Summary Judgment should be granted as to the Interview Transcript contained in Document Three and as to Document Five to the extent that Defendants should disclose less redacted versions of these documents. The magistrate judge further recommended Plaintiffs' Cross-Motion for Summary Judgment should be denied (1) as to the Interview Transcript contained in Document Three and as to Document Five to the extent that personal information should not be disclosed, (2) as to the Memo contained in Document Three, and (3) as to Documents Four and Six.

Lastly, the magistrate judge recommended the parties' Motions for Summary Judgment should be denied as moot as to Documents One and Two on the Vaughn Index.

This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C. § 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then this Court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." The statute does not "require [] some lesser review by [this Court] when no objections are filed." Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Rather, this Court is not required to conduct "any review at all... of any issue that is not the subject of an objection." Id. at 149.

II. In Camera Review

The Court has reviewed the documents that are the subject of this litigation. These documents were provided to the magistrate judge by Defendants; the magistrate judge has provided them to this Court. This Court will return the documents to the magistrate judge at this time. Upon conclusion of this case, the Court will issue an order regarding the return or the retention of these documents.

III. Privacy Interests - Names of Public Officials and Other Private Individuals

Plaintiffs argue the names of administrative employees of the United States Fish and Wildlife Service ("Service") involved in the Macho B case, including Erin Fernandez ("Fernandez") and her supervisors, should be disclosed in all of the investigative records produced to date by the Service, including Documents Three, Five and Six on the Government's Vaughn Index. Plaintiffs also argue that redaction of the names of Janay Brun ("Brun") and Emil McCain ("McCain") in the records advances no cognizable privacy interest and serves only to obfuscate the public's ability to interpret the Macho B records and evaluate the Service's handling of the case.

Plaintiffs point out that Exemptions 6 and 7(C) of FOIA require a court "to balance the privacy interests of the individuals protected against the public interest at stake." Rosenfeld v. U.S. Dep't of Justice, 57 F.3d 803, 808 (9th Cir. 1995). Like all of FOIA's statutory exceptions, Exemptions 6 and 7(C) "must be narrowly construed[, ]" and "the burden is on the agency to sustain its action." Lion Raisins Inc. v. U.S. Dep't of Agriculture, 354 F.3d 1072, 1079 (9th Cir. 2004); 5 U.S.C. § 552(a)(4)(B). Records that shed light on government negligence, failure to perform duties, malfeasance in office or other official misconduct satisfy the "public interest" standard. Lahr v. National Transp. Safety Bd., 569 F.3d 964 (9th Cir. 2009); Rosenfeld, 57 F.3d at 811. "Where the public interest advanced is that officials were negligent or that they otherwise improperly performed their duties, the requester must establish more than a bare suspicion' of wrongdoing, by produc[ing] evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.'" Lahr, 569 F.3d at 974, citation omitted.

The evidence of wrongdoing, as set forth by Plaintiffs, is as follows: information already known to the public suggests that permits held by Arizona Game and Fish that would have allowed it to capture an endangered jaguar under the ESA had expired; there is significant evidence that the Service knew of the plan to capture Macho B and did nothing to stop it based on alleged email correspondence; an Arizona Congressman criticized the Service for attempts to manipulate and cover up actions; Service agents accuse an individual of concealing or destroying records and making false statement; an Interior Department Inspector General's report exonerated all federal employees regarding the Macho B incident and only two State of Arizona employees were prosecuted; the U.S. Attorney's Office allegedly declined to prosecute an individual for criminal prosecution, and; and a witness has admitted that he or she was negligent in failing to protect Macho B.

Plaintiffs argue that the public deserves to know why Service officials were not held accountable for their actions (i.e., why the Service's Jaguar Lead' was not prosecuted). Plaintiffs also assert the "[d]isclosure of the redacted names of public officials and witnesses involved in the investigation would allow [Plaintiffs] to fully evaluate the Service's involvement in the Macho B investigation, from its oversight duties under the [Endangered Species Act] to its decision not to prosecute employees for obstructing justice." (Pls.' MSJ at 12). Plaintiffs argue this evaluation would allow them to determine whether employees accused of wrongdoing still oversee the ...


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