United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
T. BABCOCK, JUDGE
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.
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.
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
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.
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.
Plaintiff's FOIA Request and the Forest Service's
Search for Responsive Documents
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
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.
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
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.
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.
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.
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.
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.
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.
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 ...