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Schoeffler v. United States Department of Agriculture

United States District Court, D. Arizona

March 7, 2018

Fred J. Schoeffler, Plaintiff,
v.
United States Department of Agriculture, Defendant.

          ORDER

          Honorable G. Murray Snow United States District Judge

         Pending 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.

         BACKGROUND

         On June 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.

         Mr. 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.

         DISCUSSION

         I. Legal Standard

         The 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).

         Upon 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).

         FOIA 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).

         II. Analysis

         A. The Government's Affidavits are Sufficient

         As a 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.

         B. Requests 4232-F and 4325-F

         On June 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).

         USFS 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 ...


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