United States District Court, D. Arizona
Fred J. Schoeffler, Plaintiff,
United States Department of Agriculture, Defendant.
Honorable G. Murray Snow United States District Judge
before the Court is the Motion for Summary Judgment of
Defendant United States Department of Agriculture (USDA).
(Doc. 22). For the following reasons, the Court grants the
motion in part and denies the motion in part.
30, 2013, nineteen firefighters from the Granite Mountain
Hotshots perished while working to fight the Yarnell Hill
Fire near Yarnell, Arizona. Pursuant to the Freedom of
Information Act (FOIA), 5 U.S.C. § 552, Plaintiff Fred
J. Schoeffler sent several requests for information to the
USDA. The United States Forest Service (USFS) is an agency
within the USDA. USFS manages an Aerial Firefighting Use and
Effectiveness (AFUE) study which collects data to determine
“optimal combinations of firefighting aircraft for
multiple types of firefighting suppression operations.”
(Doc. 22, p. 3). During the Yarnell Hill Fire, AFUE teams
were in the area and collecting data. (Doc. 23, p. 2). Other
than the AFUE teams, the other firefighting and governmental
agencies working on the fire were from the State of Arizona.
Similarly, it was the State of Arizona that led the
investigation into the deaths of the Granite Mountain
Hotshots. Id. at pp. 1-2.
Schoeffler's FOIA requests largely fall into two
categories. First, Mr. Schoeffler seeks voice recordings or
written transcripts of air-to-ground (A2G) radio
transmissions that AFUE may have collected. The USFS
determined that all data collected by the AFUE study had been
turned over to the State of Arizona, and subsequently made
public in an electronic dropbox folder. USFS informed Mr.
Schoeffler of this and provided the dropbox link. Second, Mr.
Schoeffler seeks documents related to himself that may have
been sent or received by employees of the USFS, particularly
Coconino National Forest. USFS searched employees' emails
and records and gave Mr. Schoeffler a DVD with 585 pages of
results. Mr. Schoeffler appeals these decisions, alleging
that USDA and its subsidiary agencies did not complete an
adequate search and did not turn over all relevant
information. The USDA moved for summary judgment.
Court grants summary judgment when the movant “shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Substantive law determines which facts
are material, and “[o]nly disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The moving party bears the burden to show that there
are no genuine disputes of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986).
proper request, federal agencies must disclose records to a
member of the public. 5 U.S.C. § 552. An agency has a
duty to construe a FOIA request liberally. Truitt v.
Dep't of State, 897 F.2d 540, 544-45 (D.C. Cir.
1990). The agency has an obligation to conduct a search
“reasonably calculated to uncover all relevant
documents.” Zemansky v. U.S. E.P.A., 767 F.2d
569, 571 (9th Cir. 1985) (quoting Weisberg v. United
States Dep't of Justice, 745 F.2d 1476, 1485 (D.C.
Cir. 1984); Campbell v. United States Dep't of
Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). The
question “is not whether there might exist any other
documents possibly responsive to the request, but rather
whether the search for those documents was
adequate.” Zemansky, 767 F.2d at 571
(quoting Weisberg, 745 F.2d at 1485) (emphasis in
original). An agency's “failure to turn up a
particular document, or mere speculation that as yet
uncovered documents might exist, does not undermine the
determination that an agency conducted an adequate search for
the requested records.” Lawyers' Committee for
Civil Rights of San Francisco Bay Area v. U.S. Dep't of
the Treasury, 534 F.Supp.2d 1126, 1130 (N.D. Cal. 2008).
determinations should be resolved at summary judgment stage.
Nat'l Wildlife Fed'n v. U.S. Forest Service,
861 F.2d 1114 (9th Cir. 1988). Courts review an agency's
decision de novo. 5 U.S.C. § 552(a)(4)(B);
see also Louis v. United States Dep't of Labor,
419 F.3d 970, 977 (9th Cir. 2005) (noting that de
novo review “require[es] no deference to the
agency's determination or rationale regarding
disclosures”). However, courts “accord
substantial weight to an affidavit of an agency concerning
the agency's determination as to technical feasibility .
. . and reproducibility.” 5 U.S.C. § 552(a)(4)(B).
If the FOIA dispute presents a genuine issue of material
fact, courts proceed to bench trial or adversarial hearing.
Animal Legal Def. Fund v. U.S. Food & Drug
Admin., 836 F.3d 987, 990 (9th Cir. 2016). The Court may
award summary judgment on the basis of information provided
by the agency in affidavits or declarations. These affidavits
or declarations must be “relatively detailed and
non-conclusory, and . . . submitted in good faith.”
SafeCard Services, Inc. v. S.E.C., 926 F.2d 1197,
1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc.
v. C.I.A., 692 F.2d 770, 771 (D.C. Cir. 1981). The
agency's affidavits are “accorded a presumption of
good faith, which cannot be rebutted by ‘purely
speculative claims about the existence and discovery of other
documents.” SafeCard, 926 F.2d at 1200
(quoting Ground Saucer Watch, 692 F.2d at 771).
The Government's Affidavits are Sufficient
preliminary matter, Plaintiff asserts that the
government's affidavits of Mr. Harald Fuller-Bennet and
Ms. Marie Derobertis and insufficient and inadmissible
because they are “based on inadmissible hearsay
statements[, ] . . . on documents that are not part of the
record[, ] . . . [and] offer various conclusory statements
about where documents were most likely to be found, or which
persons were most likely to have time, or what types of
searches would be unreasonably broad.” (Doc. 28, p. 9).
However, a Court may rely on government affidavits “so
long as the affiants are knowledgeable about the information
sought and the affidavits are detailed enough to allow the
court to make an independent assessment of the
government's claim.” Lane v. Dep't of
Interior, 523 F.3d 1128, 1135 (9th Cir. 2008) (quoting
Lion Raisins, Inc. v. U.S. Dep't of Agriculture,
354 F.3d 1072, 1079 (9th Cir. 2004). Here, the government
affidavits were submitted by the chief information officers
of the Washington Office and the Southwest Region Office of
the USFS. These are individuals who are knowledgeable and who
have access to the information in agency files. The
affidavits detail the process followed by the USFS to search
for the information Mr. Schoeffler requested. Cf.
Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 371
(D.C. Cir. 1980) (noting that an affidavit which states only
that “I have conducted a review of FBI files which
would contain information Mr. Weisberg has requested. . . .
The FBI files to the best of my knowledge do not include any
information requested by Mr. Weisberg other than the
information made available to him” is insufficient
because it “gives no detail as to the scope of the
examination”). The affidavits are proper and may be
considered by the Court.
Requests 4232-F and 4325-F
7, 2016, Mr. Schoeffler submitted a FOIA request to the
Washington Office of the USDA. He requested the following:
(1) All voice recordings and written transcripts thereof
related to the 30 June 2013 Yarnell Hill Fire (YHF) Panebaker
and/or Moore and/or USFS Aerial Firefighting Study, also
known as the Aerial Firefighting Study, AIR-TO-GROUND (A2G
and/or A/G) RADIO TRANSMISSIONS.
(2) Between, to, and/or from any and all air resources and
any and all Incident Management Team and any and all
operational and ground personnel.
(3) The timeframe for this request is 30 June 2013 between
1500 and 1700 hours.
(Doc. 23, Ex. 1, Attachment A).
assigned this request the FOIA case number of
2016-FS-R3-04232-F. (Doc. 23, p. 2). USFS routed the request
to the Forest Service Southwest Regional Office (SRO). Raquel
Cantu, a government information specialist, determined that
the Prescott National Forest was most likely to have
possession of the relevant records and instructed them to
search for Mr. Schoeffler's request. Id. at p.
3. The Prescott National Forest informed Ms. Cantu that they
did not have any radio communication with the USFS AFUE team,
and thus had no responsive records. Id. The SRO
informed Mr. Schoeffler that they had no responsive records
on June ...