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Whitson v. United States Forest Service

United States District Court, D. Colorado

May 23, 2017

KATHY WHITSON, Plaintiff,
v.
UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture, Defendant.

          MEMORANDUM OPINION AND ORDER

          LEWIS T. BABCOCK, JUDGE

         This case is before me on Defendant's Motion for Summary Judgment [Doc # 27] and Plaintiff's Cross Motion for Summary Judgment [Doc # 30]. After consideration of the motions, all related pleadings, and the case file, I grant both motions in part and deny them in part and hold the case in abeyance pending further proceedings.

         I. Facts

         In this case in which Plaintiff alleges that Defendant United States Forest Service (The “Forest Service”) violated the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, by failing to fully respond to her July 27, 2015 FOIA request for agency records, the following facts are undisputed unless otherwise noted.

         A. Background

         The Forest Service is an agency within the United States Department of Agriculture (“USDA”) charged with managing 193 million acres of National Forests and National Grasslands. Forest Service lands are divided into nine geographic regions. The Carson National Forest, located in north-central New Mexico, is one of 11 National Forests in Region 3. The Jicarilla Ranger District (the “District”), located in Bloomfield, New Mexico, is one of seven administrative units within the Carson National Forest and one of over 600 Forest Service Ranger Districts nationwide. The District had approximately 17 employees, and there was considerable tension among the District's employees during the time period relevant to this case.

         In coordination with the Bureau of Land Management, the Forest Service administers a number of wild horse or burro territories including the Jicarilla Wild Horse Territory. The Forest Service's responsibilities for the Wild Horse and Burro Program includes euthanasia of wild horses and burros to minimize the suffering of sick and/or injured animals. The Wild Horse and Burro Program is controversial, and there are organizations dedicated to these animals. In administering the Program, Plaintiff alleges that the Forest Service directed untrained employees to use firearms to kill wild horses, in part, to avoid the cost of paying a veterinarian to perform euthanasia services.

         The subject of Plaintiff's FOIA request is a misconduct investigation related, in part, to administration of the District's Wild Hose and Burro Program. The fact of this investigation was common knowledge among the District's employees. Plaintiff alleges that the Forest Service made no contemporaneous request that District employees keep the details of the investigation or any related records confidential and never contacted any person involved in the investigation to determine if they had privacy concerns. Plaintiff further alleges that the Forest Service made no effort to withhold specific information gathered during the investigation from District employees. The Forest Service disputes this allegation and alleges that it did not provide specific information regarding the misconduct investigation to District employees.

         B. Plaintiff's FOIA Request and the Forest Service's Search for Responsive Documents

         On July 28, 2015, the Forest Service received Plaintiff's FOIA request for “records pertaining to employee misconduct investigation MI-2015-29, Jicarilla Ranger District, Carson National Forest.” Specifically, Plaintiff requested the following nine items or categories of documents:

1. Request for Misconduct Investigation Form
2. Correspondence between the Employee Relations Program Manager and Assigned Investigator
3. Investigation Plan
4. Report of Investigation (ROI) and List of Exhibits
5. All Exhibits
6. Documentation
7. Evidence
8. Depositions
9. Conclusions and Final Disposition Documents

Numbers 1, 3, 4, and 5 of Plaintiff's request reference specific documents though Plaintiff nonetheless asserts these requests could encompass other documents.

         With respect to category Number 2, “Correspondence between the Employee Relations Program Manager and Assigned Investigator, ” the Forest Service interpreted this request to include letters, emails, and similar documents between the Employee Relations (“ER”) Program Manager and the Assigned Investigator, as well as the ER Specialist though this individual is not specifically named in the request. Plaintiff asserts that this interpretation is too narrow and that this request included other persons who exchanged correspondence regarding the misconduct investigation.

         With respect to Number 6, “Documentation, ” the Forest Service interpreted this request to mean documentation of the investigation, i.e., records that were generated or obtained during the course of the subject investigation that did not clearly fit into any other category of records.

         With respect to Number 7, “Evidence, ” the Forest Service interpreted this request to mean material identified by the investigators as having evidentiary value. Plaintiff assets that this interpretation is too narrow and excludes agency records created or obtained by unidentified individual investigators. Plaintiff also asserts that the Forest Service provided no evidence of the method used during the FOIA records search to determine which records had “evidentiary value.” With respect to Number 8, “Depositions, ” the Forest Service interpreted this request to include formal depositions though witness statements were included as exhibits to the ROI in response to Number 4. Plaintiff asserts that this request includes witness statements, interviews, and other means used to gather employee statements.

         With respect to Number 9, “Conclusions and Final Disposition Documents, ” the Forest Service's FOIA analyst interpreted this request in light of her review of other responsive documents and her basic understanding of what concludes the investigatory process in cases such as this. Plaintiff asserts that this interpretation is too narrow and in support of this assertion cites the conclusions and final disposition documents from a purportedly similar investigation that were posted online.

         The FOIA analyst initially assigned to handle Plaintiff's request compiled 294 pages of documents before retiring. After this case was filed on May 12, 2016, the Forest Service assigned Danielle Adams to work on Plaintiff's FOIA request. After reviewing the file and familiarizing herself with the investigative process through discussions with Forest Service personnel involved in the subject misconduct investigation, Ms. Adams concluded that supplemental searches for documents responsive to Plaintiff's FOIA request were appropriate and conducted additional searches over a period of approximately two months.

         Specifically, Ms. Adams determined that Forest Service internal misconduct investigations are generally conducted by personnel in the Human Resources Management (“HRM”) office located at the Forest Service's Albuquerque Service Center. Ms. Adams then identified the following HRM employees responsible for conducting the subject misconduct investigation: (1) the assigned Personnel Misconduct Investigator who conducted the investigation and prepared the ROI; (2) the Investigator's supervisor; (3) the assigned ER Specialist who reviewed the ROI and supporting materials and directed any supplemental investigation; and (4) the assigned ER supervisor and ER manager who also reviewed the ROI and supporting materials and made a recommendation to the official who requested the investigation. Ms. Adams also identified the Requesting Official who requested the investigation and ultimately decided what personnel action, if any, to take based on the results of the investigation as someone who might have responsive documents.

         On June 8, 2106, Ms. Adams sent a request for documents (“RFD”) via email to each person she had identified as being involved in the misconduct investigation either directly or through their designated liaison. Ms. Adams' June 8, 2016 RFD provided a near-verbatim list of the nine items Plaintiff was seeking relating to misconduct investigation MI-2015-29 and had a copy of Plaintiff's FOIA request attached. On June 9, 2016, Plaintiff sent a similar request to the Requesting Official.

         In reviewing the documents received pursuant to the RFD, Ms. Adams determined that she had been mistaken about the identity of the ER Specialist and sent an email on June 20, 2016 to the actual ER Specialist with a copy of the June 8, 2016 RFD with Plaintiff's FOIA request attached. Ms. Adams also determined that ER had requested a “ management inquiry” - i.e., a request for specific information from management personnel in the Carson National Forest Supervisor's Office. Ms. Adams identified the person who responded to the management inquiry and ...


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