Caton v. Sec'y of Interior

2005 DNH 155

• Court: District Court, D. New Hampshire
• Decided: November 21, 2005
• Docket: CV-04-439-JD
• Status: Published

Opinion

Caton v. Sec'y of Interior CV-04-439-JD 11/21/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Harold W. Caton

v. Civil No. 04-cv-439-JD Opinion No. 2005 DNH 155 Gale Norton, in her official capacity as Secretary of the Interior

O R D E R

For the second time since this litigation began, the

Secretary of the Interior has moved to dismiss Harold W. Caton's

pro se complaint seeking relief under the Freedom of Information

Act, 5 U.S.C. § 552 ("FOIA"), on the ground that Caton has

already received all of the information he requested and that his

case is therefore moot. Caton objects.

Background

The court denied the Secretary's first motion to dismiss

because Caton had sufficiently raised a question as to the good

faith of the declaration purportedly demonstrating the adequacy

of the response to his FOIA request. 2005 DNH 76, 2005 WL

1009544, at *4-*5 (D.N.H. May 2, 2005). In the declaration, Lee

Hammond, chief of administration for Lowell National Historical

Park (the "LNHP"), sought to explain an apparent irregularity in

her production of documents to Caton on January 20, 2005, following his commencement of this action.

The LNHP had initially withheld some seventy-five documents

identified as responsive to Caton's FOIA request on the basis of

the deliberative process privilege. Following Caton's appeal of

that decision to the Department's FOIA officer, however, the

Department decided to release thirty of those documents to Caton

in their entirety, release forty-three in redacted form, and to

continue withholding the remaining two in their entirety. The

Department's decisions on which documents to release in response

to Caton's appeal, and in what form, were set forth in a

memorandum drafted by a Department lawyer, Timothy E. Murphy, and

provided to Hammond on October 22, 2004. Attached to the

memorandum was a set of the seventy-five documents originally

withheld from Caton. The documents were sequentially numbered,

each with a handwritten, circled numeral in its upper right-hand

corner. In addition, the text of each document to be released in

redacted form had brackets and highlighting to indicate which

passages to redact.

Hammond used this set of documents to assemble the

production to be made to Caton. Instead of making a copy of the

set for use in preparing the redacted documents, however, Hammond

simply covered the appropriate text with black magic marker or

correction fluid. She then made a copy of the redacted documents

2 she had thus created and forwarded them to Caton under cover of a

letter dated November 5, 2004.

Caton commenced this action on November 23, 2004, seeking,

inter alia, unredacted versions of the documents produced on

November 4 as well as the documents the Department continued to

withhold. The Department initially responded by offering to

produce all of these documents in full except for a printout of a

series of e-mails among employees of the LNHP dated October 2,

2001, and produced in redacted form on November 4 as document

number 60. After Caton refused this offer, the Department

relented, agreeing to produce unredacted versions of all of the

documents. Hammond learned of this decision through Robin

Friedman, another attorney for the Department, who instructed

Hammond "to prepare immediately an un-redacted set of the 43

documents" produced to Caton in redacted form and to release them

to him together with the two other documents which had been

withheld in their entirety. Hammond Decl. Supp. Mot. Correct

Rec. ("Second Hammond Decl.") 5 12. Friedman also said "that it

was urgent to act promptly in getting these documents out to Mr.

Caton." Id.

Preparing an unredacted set of documents proved difficult,

however, because Hammond had put permanent redacting marks on the

numbered copies of the documents attached to Murphy's memorandum.

3 Although, as Hammond recalls, she felt "considerable stress" as a

result of this predicament. Second Hammond Decl. 5 13, she

managed to cobble together a set of clean documents from multiple

sources, including a set of documents she had reviewed over the

summer in response to Caton's FOIA request and, in some cases,

the LN H P ''s own files. None of the documents obtained from these

sources was numbered, though, so Hammond had to number them to

correspond to the set attached to Murphy's memorandum. She

produced the documents to Caton in a January 20, 2005, letter.

The January 20 production, however, omitted any version of

the e-mail exchange which had been released in redacted form as

document 6 in the November 5 production. Although the January 20

production included a document bearing the number 6, it was

different from the version of document no. 6 which had been

produced earlier. It was also the same as a document,bearing

the number 60, which was included in the January 20 production.

Caton brought this irregularity to the attention of the

Secretary's counsel in this case. Assistant United States

Attorney T. David Plourde, through a January 21, 2005, e-mail.

Plourde responded by sending a fax to Friedman noting that the

redacted version of document 6 produced earlier represented e-

mails dated September 4 and 5, 2001, while the more recent

version of document 6 represented e-mails dated October 1, 2001.

4 Plourde also observed that "[i]t certainly is curious that all of

the documents were painstakingly numbered and itemized in

[Murphy's] internal memorandum asserting the privileges but that

now, two different documents appear to have the same number."

Mem. O b j . Mot. Compel & Supp. Mot. P r o t . Order Ex. 8, Tab 2, at

2. On January 24, 2005, Plourde forwarded Caton's e-mail to

Hammond and asked her to "figure out what had happened" to cause

the irregularity in the January 20 production. Second Hammond

Decl. 5 14.

Hammond, however, appears to have made little if any effort

toward that end. In her words, she "did not take the time to sit

down with the file documents to try to re-create as nearly as

possible exactly how the numbering error had been made." Second

Hammond Decl. 5 15. Instead, she simply retrieved another clean

copy of the printout of the September 4 and 5 e-mails and mailed

it to Caton under cover of a letter dated January 25, 2005, which

purported to explain the irregularity in the January 20

production. As Hammond acknowledges, the letter "simply stated

[her] quick assumption that the numbering error had occurred

because the photocopier had cut off the 'zero' on document 60,

leaving only the /6.'" I d .; see also Ex. 11.

Hammond's account of how she went about assembling the

documents to release to Caton on January 20, however, belies this

5 explanation. Again, Hammond had created the redacted version of

the October 1 e-mail exchange released to Caton on November 5 by

using a black marker to cover the designated portions of the copy

of document 60 attached to Murphy's memorandum. Second Hammond

Decl. 5 13; see also Compl. 5 46, Ex. J, Tab 60. This forced her

to retrieve an unredacted version of that document from another

source in preparing the January 20 production, which meant that

she had to write the number 60 in the upper right-hand corner

herself before turning the document over to Caton. Thus, the

numbered version of document 60 which had been attached to

Murphy's memorandum was not copied during the assembly of the

January 20 production.

Hammond claims that this did not occur to her at the time

she gave Caton her explanation of why document 6 from the

November 5 production was missing from the January 20 production.

The fact remains, however, that even a cursory glance at the

record released as document 6 in the January 20 production belies

Hammond's explanation. Because the number appearing in the upper

right-hand corner of each record was circled, part of the circle

around the "60" on the record marked with that number would also

have been missing had the copier in fact cut off the "0" in the

way Hammond claimed. The circle surrounding the number 6 on the

document released on January 20, however, is visible in its

6 entirety. See Mem. Opp. Mot. to Dismiss, Ex. Z, Tab 6.

According to Hammond, this fact also escaped her notice when

she sent the letter to Caton purportedly explaining the absence

of document 6 from the January 20 production. The Secretary

attributes this "erroneous explanation" to "the exceedingly short

time constraints under which Ms. Hammond was operating in making

the disclosures." Mem. Supp. Second Mot. Dismiss at 8. But ten

days after Hammond sent the letter, on February 3, 2005, she

signed a declaration attesting that document 6 from the January

20 production "was a duplicate of a document that was numbered 60

by hand . . . but erroneously displayed only the number 6 as the

0 was missed by the copy machine." First Hammond Decl. 5 5. The

declaration was drafted by Plourde, who at that time had seen

both the version of document 6 released on January 20 and

Hammond's letter of January 25. Nevertheless, he also failed to

recognize that Hammond's explanation could not be correct.

Based on Hammond's declaration, Plourde filed a motion to

dismiss the case on February 4, 2005, arguing that Caton's

receipt of the unredacted version of document 6 completed the

Department's response to his FOIA request and mooted his claim.

Although purportedly submitted pursuant to 28 U.S.C. § 1746, the

declaration was not subscribed to as true under penalty of

perjury as that statute requires. Plourde has since explained

7 that "[t]his error was a result of cutting and pasting text, and

in the process failing to include the proper language." Plourde

Decl. Supp. Mot. Correct Rec. ("First Plourde Decl.") 5 15.

Caton objected to the motion to dismiss and moved to strike

Hammond's declaration, arguing, inter alia, that her explanation

was belied by the version of document 6 included in the January

20 production. Mem. Opp'n Mot. Dismiss, Supp. Mot. Amend, Supp.

Mot. Strike ("Mem. Opp'n Mot. Dismiss") 50-55 ; see also Mem.

Supp. Mot. Strike §§ D.10-13. Specifically, Caton noted that the

copy machine could not have missed the "0" on document number 60

because the circle drawn around the number "6" remained intact.

Both Caton's brief in opposition to the motion to dismiss and his

brief in support of his motion to strike quoted Carney v. Dep't

of Justice. 19 F.3d 807, 812 (2d Cir. 1994), for the proposition

that "to justify discovery once the agency has satisfied its

burden [of showing the adequacy of its FOIA response], the

plaintiff must make a showing of bad faith on the part of the

agency sufficient to impugn the agency's affidavits or

declarations . . . ." Mem. Opp'n Mot. Dismiss 5 57; Mem. Supp.

Mot. Strike at 1. Caton argued that he had made this showing by

pointing out the obvious misstatement in Hammond's declaration.

On March 1, 2005, Plourde filed a reply to Caton's objection

to the motion to dismiss, recognizing that "charitably construed. Plaintiff contends that Ms. Hammond fails to adequately explain

how both [documents] came to be numbered /6 Resp. Ob j .

Mot. Dismiss at 3 n.2. Nevertheless, Plourde argued that Caton

had "undeniably received unredacted copies of both sets of the

emails . . . . Disclosure of the requested documents complete,

there is no basis for allegations of deceit, bad faith, and

unfounded malignment of individuals' personal and professional

integrity, much less for further discovery or sanctions." Id.

The reply did not otherwise address Caton's assertion that the

inadequacy of Hammond's explanation meant that the case could not

be dismissed based on her declaration.

On March 2, 2005, spurred by "Caton's observation that the

circle around the page number /6' in the January 20, 2005,

disclosure was not cut off by the copier," First Plourde Decl.

5 11, Plourde met with Hammond. After retracing her steps in

making the January 20 disclosure, Hammond realized that she had

mistaken the set of e-mails previously identified as document 60

for the set previously identified as document 6 while searching

for a "clean" copy of document 6 to release to Caton in

unredacted form. She also recognized that this mistake, rather

than an error by the copy machine, had caused her to send Caton a

second copy of document 60 in lieu of document 6 on January 20.

After coming to this realization, however, neither Plourde

9 nor Hammond took any steps to inform either Caton or the court

that her declaration submitted in support of the motion to

dismiss contained a false statement. Indeed, Plourde even passed

up the opportunity to do so in the objection he filed to Caton's

motion to strike the Hammond declaration on March 8, 2005, six

days after Plourde's meeting with Hammond. The objection simply

noted that Caton's "allegations regarding the apparent mis-

numbering and substitution of Document #60 are immaterial in

light of his admitted receipt of complete, unredacted copies of

both Documents 6 and 60." O b j . Mot. Strike at 3-4 n.l.

In fact, Hammond and Plourde did not acknowledge that her

declaration contained a false statement until May 18, 2005,

sixteen days after the court issued its order denying the motion

to dismiss and denying, as moot, the motion to strike. The court

noted in its order, as Caton had in his briefing on both motions,

that "affidavits purporting to establish the adequacy of an

agency's FOIA response must be 'relatively detailed and

nonconclusory . . . and . . . submitted by responsible agency

officials in good faith.'" 2005 DNH 76, 2005 WL 1009544, at *4

(quoting Maynard v. CIA. 986 F.2d 547, 559 (1st Cir. 1993)). The

court ruled that, although such affidavits enjoy a presumption of

good faith, Caton had overcome it by showing that Hammond's

explanation as to the substitution of document 60 for document 6

10 in the January 20 production appeared to be untrue. Id. The

court also voiced its own "concern" over that "apparently

counterfactual statement" coupled with the fact that Hammond had

not subscribed to her declaration as true under the penalties of

perjury as required by 28 U.S.C. § 1746. I d . at *5.

The court also addressed the Secretary's argument, contained

in the footnote of its reply brief, that Caton's preliminary

showing of bad faith did not diminish the fact that he had

received an unredacted copy of document 6 on January 25. Id.

The court reasoned that:

Although the Secretary is correct that Hammond's dubious explanation of the document number 6 issue does not necessarily mean that the Department has not made a complete response to Caton's FOIA request, it nevertheless goes to the heart of how that request was processed and therefore constitutes the sort of bad faith which prevents the court from relying on the Hammond declaration in dismissing the case.

Id. Accordingly, the court denied the motion to dismiss and

authorized Caton to "seek discovery concerning only the

circumstances of the creation of the version of document no. 6

contained in the January 20, 2005, production." Id.

Plourde claims that the order on the motion to dismiss

opened his eyes to "the significance of the implausibility of Ms.

Hammond's 'photocopier' explanation to the underlying reliability

of the declaration . . . ." First Plourde Decl. 5 16. Until

11 then, Plourde says, he "had seen no logical or legal connection

between [the] explanation . . . and the sole legal issue as to

whether ultimate full disclosure had been made, particularly when

Plaintiff's own submissions to the court established that fact."

Id. After Plourde's meeting with Hammond, in fact, he had

"considered whether his ethical obligation of candor to the court

required that [he] correct the record," but decided against it

because "how the January 20, 2 0 05, Document 6 came to be numbered

/6' was logically and legally immaterial . . . Id. 12-13.

The court's order, however, followed by a meeting with the

chief of the Civil Division of the United States Attorney's

Office for this district, convinced Plourde that "prompt

correction of the record by filing a supplemental declaration by

Ms. Hammond explaining the true explanation for the document 6

issue possibly might have changed the court's mind regarding Ms.

Hammond's good faith in the processing of Mr. Caton's FOIA

claim." First Plourde Decl. 5 16. On May 16, 2005, Plourde

filed a "motion to correct the record," together with a

supplemental declaration from Hammond recounting her mistakes and

his own declaration "explain[ing] the rationale underlying [his]

considered decision not to amend Ms. Hammond's declaration." Id.

5 17. Nevertheless, "given [Plourde's] perception that the

Document 6 numbering explanation was immaterial to the fact of

12 full disclosure, [he] did not perceive, and does not now believe,

that failure to correct the record on that point would constitute

a material misrepresentation to the court." Id. Plourde allows,

however, that "it appears possible that [his] decision on this

point might be construed as a violation of [his] duty of candor

to the court." Id.

The Secretary's motion to correct the record did not seek

reconsideration of the order denying the motion to dismiss or

authorizing Caton to take limited discovery or, for that matter,

any relief other than allowing its supporting declarations to be

filed.1 Caton therefore proceeded to propound document requests,

interrogatories, and requests for admission to the Secretary,

demanding that nineteen different individuals provide sworn

responses to the interrogatories.2 Although the Secretary

objected to that request, she nevertheless provided sworn

interrogatory answers from five different Department employees.

1Caton filed an "objection" to the motion, noting that he did not object to the entry of the declarations but that he did object to their "correctness and completeness." O b j . Mot. Correct Record at 1. The motion was referred to the magistrate, who denied it as moot, presumably because the declarations had already been filed with the motion itself. Neither party has objected to the magistrate's ruling.

2Caton also asked for the depositions of five Department employees. Plourde provided Caton with a number of different dates to depose each of them, but Caton never responded.

13 including Hammond, produced documents, and responded to the

requests for admission.

The Secretary also objected to particular interrogatories

and document requests on the ground that they sought information

protected by the attorney-client or work product privileges.

Caton moved to compel responses to these interrogatories, as well

as interrogatory answers from the balance of the individuals. He

also propounded additional interrogatories, again seeking sworn

responses from a number of different individuals. The Secretary

objected to the motion and cross-moved for a protective order

against the additional interrogatories, to which Caton objected.

These motions were referred to the magistrate, who denied the

motion to compel and granted the motion for a protective order.3

Hammond states in her interrogatory answers, as she had in

her declaration in support of the motion to correct the record,

that nobody instructed her to substitute another copy of document

60 for document 6 in the January 20 production, but that the

substitution resulted from her error in assembling the documents.

Hammond also reiterates that she obtained the printout of the

e-mails constituting document 6 from either the copy of the Park

Service file which had been returned from the Department's FOIA

3Caton has not objected to the rulings on these motions.

14 appeal office or from one of the LN H P ''s own files.4

Hammond acknowledges that, in the summer of 2004, she

reviewed the documents that had been withheld from Caton at the

request of the Department's FOIA appeals officer. During this

review, she may have placed the handwritten bracketing,

strikethroughs, and notations of the word "release" which appear

on the version of document 60 produced on January 20, although

she has no present memory of doing so. In any event, Hammond

avers that nobody instructed her to make those markings, and

everybody else who has provided answers to Caton's

interrogatories denies making the markings.5 Finally, as for the

provenance of document 6 itself, Charles Parrot, the author of

two of the three constituent e-mails and a recipient of the

following the very first release of documents to Caton, Hammond's predecessor, Audrey Ambrosino, made two copies of each of the seventy-five documents which had been withheld from that release. Ambrosino sent one set of the copies to the FOIA appeals office and retained the other set in her own file. Hammond recalls that this file was the source of the unredacted version of document 60 released on January 20 and that unredacted version of document 6 released on January 25 came from the original LNHP contract file.

5Hammond also states that she relied solely on the instructions contained in the copies of the documents attached to Murphy's memorandum, rather than any of her own notations, in creating the redacted version of the document released to Caton.

15 third, states that he did nothing with those communications after

sending and receiving them.6

Discussion

In support of her second motion to dismiss, the Secretary

argues, again, that Caton's FOIA claim is moot because he has by

now received unredacted copies of all of the documents within the

scope of his FOIA request. Specifically, the Secretary notes

that Caton's extensive discovery on how a second copy of document

60 came to take the place of document 6 in the January 20 release

has revealed only the innocent explanation that Hammond mistook

the e-mails constituting document 60 for those constituting

document 6 in searching for a clean copy of document 6.

As the court noted in its previous order, an agency can

secure dismissal of a plaintiff's FOIA action as moot by

demonstrating the adequacy of its response to the plaintiff's

FOIA request. 2005 DNH 76, 2005 WL 1009544, at *4. Generally,

the agency must make this showing through a detailed and

nonconclusory affidavit from one of its responsible employees,

submitted in good faith. I d . (quoting Maynard. 986 F.2d at 559).

"Such affidavits enjoy 'a presumption of good faith, which cannot

6Peter Aucella, who received all of the e-mails, tells the same story.

16 be rebutted by purely speculative claims about the existence and

discoverability of other documents.'’" I d . (quoting Maynard. 986

F.2d at 560) (internal quotation marks omitted).

In its prior order, the court found that Caton had overcome

this presumption by casting doubt on Hammond's explanation for

the substitution of document 60 for document 6 in the January 20

production, particularly because that explanation went "to the

heart of how [Caton's FOIA] request was processed." I d . at *5.

Hammond's subsequent declaration, however, recounts in detail how

she prepared both the November 4 and January 20 releases of

documents to Caton, giving a plausible explanation for how she

came to confuse document numbers 6 and 60. Indeed, because each

document is a printout of a series of e-mail messages among more

or less the same correspondents, the documents appear nearly

identical; the differences becomes apparent only when one

examines the actual text. Hammond therefore credibly explains

how she confused one document for the other while searching

through unnumbered file copies for an unredacted version to

release to Caton on January 20.

In his objection to the motion, Caton strives valiantly to

call this explanation into question. He suggests that, because

all of the documents originally withheld in response to his FOIA

request tend to undermine in some way the LN H P 's position in what

17 appears to be an ongoing dispute over work that Caton's

construction company did at the park, the LNHP would have good

reason to falsify those documents or to hide others.

Specifically, Caton characterizes document 60 as evidence that

the LNHP interfered with his performance of the work. But

whatever the strength of this characterization, it suggests no

particular ulterior motive for keeping document 6 from Caton.

His argument in this regard therefore amounts to the sort of

speculation insufficient to overcome the presumption of good

faith. See Maynard. 986 F.2d at 560.

Caton also recounts the tortured path of the response to his

FOIA request in great detail, suggesting that its is marked by

"not in good faith acts" on the part of the Department. Mem.

O b j . Second Mot. Dismiss at 8. The court notes that it shares

Caton's frustration in this regard, to a degree. The Supreme

Court has observed that "disclosure, not secrecy, is the dominant

objective of [FOIA]." Dep't of Interior v. Klamath Water Users

Protective Ass'n. 532 U.S. 1, 8 (2001) (internal quotation marks

omitted). Similarly, the First Circuit has held that "[t]he

policy underlying [FOIA] . . . 'is . . . one of broad disclosure,

and the government must supply any information requested by an

individual unless it determines that a specific exemption,

narrowly construed, applies.'" Maine v. Dep't of Interior. 298

18 F.3d 60, 65 (1st Cir. 2002) (quoting Church of Scientology Int'l

v. Dep't of Justice. 30 F.3d 224, 228 (1st Cir. 1994)).

The Department does not appear to have taken these

principles to heart in processing Caton's FOIA request. As

discussed in the court's prior order, Ambrosino initially

responded to the request by allowing Caton to review the subject

LNHP files at its office. 2005 DNH 76, 2005 WL 1009544, at *1;

see also Second Hammond Decl. 5 3. It was at this early stage,

in preparing for Caton's visit, that the Department's careless

handling of his FOIA request began. According to Murphy's

memorandum, when Ambrosino received the files from the

contracting officer ("CO"), she "believed the CO [had] removed

exempt information from the files and the CO believed [Ambrosino]

would remove the exempt documents."7 I d . 5 7(b), Ex. 8, at 4.

This misunderstanding resulted in Caton's unfettered access to

all of the documents in the files, including information

potentially exempt from disclosure. So he must have been

surprised to learn, in response to his request that the LNHP

provide him with copies of certain records he had seen there.

7Caton, however, alleges that the CO told him that Ambrosino had marked payroll records in the files with adhesive tape and instructed him not to look at those documents, an order which he obeyed. Compl. 5 13. Caton also states that he never requested copies of any of the payroll records.

19 that the LNHP was refusing to produce some seventy-five documents

on the ground that they were protected by the deliberative

process privilege.

Caton appealed this determination to the Department, which

decided in the first instance that the privilege did not shield

some thirty of the documents in their entirety and another forty-

three of the documents in part. But the Department rejected

Caton's argument that the LNHP had waived any privilege by

letting him see the documents, reasoning that "as soon as [the

LNHP] recognized its mistake in allowing Mr. Caton to review

exempt information, it took immediate steps to remedy the

situation." Second Hammond Decl. 5 7(b), Ex. 8, at 4.

According to Murphy's memorandum, however, the only remedial

step the LNHP took after realizing it had disclosed such

documents was to claim the privilege in refusing to provide Caton

with copies in a letter sent six weeks after the disclosure. Cf.

Astlev v. Lawson. 1991 WL 7162, at *8 (D.D.C. Jan. 11, 1991)

(finding no waiver of privilege as to documents mistakenly

attached as exhibits to motion to dismiss FOIA action where

agency's counsel moved to seal documents as soon as mistake

recognized and plaintiff, who was incarcerated, presumably never

saw them). By Murphy's account, the LNHP also made no effort to

remove any potentially exempt documents from its files before

20 allowing Caton to rummage through them. C f . Fleet Nat'l Bank v.

Tonneson & C o ., 150 F.R.D. 10, 15 (D. Mass. 1993) (finding no

waiver of work product privilege as to three-volume report where

one volume inadvertently left among documents to be inspected by

opposing counsel but other two volumes removed as part of pre­

inspection screening for privileged materials).

Most importantly, the very documents the Department later

claimed were privileged had been disclosed to Caton himself, so

the asserted waiver was not based on the agency's release of

exempt information to a third party, c f . LaRouche v. Dep't of

Justice, No. 90-2573, slip op. at 24 (D.D.C. July 5, 2001), or

the agency's release of different records covering a similar

subject, c f . Fort Hall Landowners Alliance. Inc. v. Bureau of

Indian Affairs. No. 99-00052, slip op. at 13-14 (D. Idaho Mar.

17, 2000). The authorities the memorandum cites in support of

the Department's position that the LNHP had not waived any

privilege, then, simply do not support that conclusion.8 In

8Three of the cases, in fact, do not even address the issue of an agency's waiver of FOIA exemptions. See Pub. Citizen Health Res. Group v. FDA. 953 F. Supp. 400, 404 (D.D.C. 1996) (issuing temporary protective order forbidding public dissemination of table erroneously disclosed in response to FOIA request when similar tables withheld as confidential commercial information, without any discussion of whether disclosure effected waiver); Kav v. F CC, 867 F. Supp. 11, 23-24 (D.D.C. 1994) (rejecting argument that FCC's inadvertent release of letters to possible witnesses for potential enforcement action

21 fact, there does not appear to be any reported case suggesting

that an agency can respond to a FOIA request by simply opening

its files to the requester, without any attempt to segregate

potentially exempt material beforehand, only to subsequently

refuse to provide the requester with copies of the documents he

has already seen, on the basis of privilege.9 C f . North Dakota

"undermine[d] the FCC's position that all of the material still withheld" remained protected by law enforcement privilege, without any discussion of whether privilege waived as to letters themselves); Nation Magazine v. Dep't of State. 805 F. Supp. 68, 72 (D.D.C. 1992) (denying motion for temporary restraining order requiring agency's immediate processing of plaintiff's FOIA request for files on presidential candidate despite argument that agency had expedited requests for similar files on another presidential candidate). Although the court in Am. Lawyer Media. Inc. v. SEC. 2002 U.S. Dist. LEXIS 16940 (D.D.C. Sept. 6, 2002), refused to find waiver of a FOIA exemption based on the fact that the agency allowed the plaintiff to inspect the document at issue, the court, for reasons that are unclear from the opinion, limited its inquiry to whether the plaintiff could show that the document had entered the public domain. I d . at *3. But an agency need not go as far as placing a document in the public domain to waive potential FOIA exemptions; " [w]aiver can occur when communications are disclosed to private individuals . . . ." Chilivis v. SEC. 673 F.2d 1205, 1212 (11th Cir. 1982); see also United States v. Metro. St. Louis Sewer Dist.. 952 F.2d 1040, 1045 & n.2 (8th Cir. 1992); Mobil Oil Corp. v. E PA, 879 F.2d 698, 700 (9th Cir. 1989) .

9Indeed, outside of the FOIA context, the First Circuit has rejected the same argument premised on nearly identical facts, noting that it "beggars credulity." Texaco P.R., Inc. v. Dep't of Consumer Affairs. 60 F.3d 867, 883 (1st Cir. 1995). There, just like the LNHP in this case, the party responding to a request for information told the party seeking it, "here is a room full of papers, you can take a look at them." I d . at 883

22 ex rel. Olson v. Andrus, 581 F.2d 177, 181-82 (8th Cir. 1978);

Ed u c ./Instruccion. Inc. v. H UD. 471 F. Supp. 1074, 1081 (D. Mass.

1979). As the Eighth Circuit noted in Andrus, when the records

in question have already been disclosed, an agency cannot

credibly claim that releasing them in response to a FOIA request

will "impede the proper functioning of the administrative process

or inhibit the free and frank exchange of opinions among

government personnel," because the agency "has already indicated

a diminished expectation of privacy concerning these documents

through its prior voluntary disclosure." 581 F.2d at 181-82;

accord In re Sealed Case. 877 F.2d 976, 980 (D.C. Cir. 1989)

("Normally the amount of care taken to ensure confidentiality

reflects the importance of that confidentiality to the holder of

the privilege.")

In any event, shortly after Caton filed suit challenging the

determination that the LNHP had not waived any privilege, the

Department proposed to settle the case by releasing all of the

n.9. After the party seeking discovery asked for copies of certain documents it had seen during this exercise, however, the responding party, just like the LNHP, refused to provide them on the basis of privilege. I d . The district court ruled that the responding party had waived any such privilege, and the circuit agreed. I d . at 883.

23 subject documents in their entirety except for document 60.10

When Caton refused that offer, the Department agreed to turn over

unredacted copies of all of the documents. Caton argues that the

Department's initial refusal to release an unredacted copy of

document 60 evinces "a furtive design to keep disclosed

information from [him]." Mem. O b j . Second Mot. Dismiss at 12-13.

The court disagrees with Caton's suggestion that the Department's

offer to settle embodies the kind of bad faith tending to show

that the response to his FOIA request remains incomplete. See

Military Audit Project v. Casev. 656 F.2d 724, 754 (D.C. Cir.

1981). Nevertheless, the court notes again that it shares Caton

frustration that the Department's response to his FOIA request

stands at odds with the purposes of FOIA.

Congress amended FOIA in 1974 in an attempt to remedy "a

general dissatisfaction with the administrative response to the

policy of open government embodied in the Act," including

"substantial foot-dragging on the part of administrative

officials who . . . forced citizens requesting information under

10Before communicating this offer to Caton, Plourde "examined the document under the criteria set out in FOIA exemption 5 and determined that there appeared to be reasonable grounds to assert the exemption as to some of the information in the document." Second Plourde Decl. 5 9. Plourde does not say, however, whether he also determined that the Department had "reasonable grounds" to assert that the claimed privilege had not been waived.

24 . . . FOIA to resort to expensive litigation for vindication of

their statutory rights."11 Nationwide Bldq. Maintenance. Inc. v.

Sampson. 559 F.2d 704, 710 (D.C. Cir. 1977) (footnote omitted);

see also Crooker v. Dep't of Justice. 632 F.2d 916, 920 (1st Cir.

1980). In light of this history, an agency's release of

documents it had previously withheld as soon as litigation

commences tends to undermine the legitimacy of the decision to

withhold the documents in the first place.

The court recognizes that this course is preferable to an

agency's defending a questionable refusal to release the records

until a court rules against it. See Military Audit Project. 656

F.2d at 754. More generally, the court also recognizes that the

simple act of bringing a lawsuit often provides the necessary

impetus for a recalcitrant party to fulfill its legal

obligations. For the purposes underlying FOIA to be given full

effect, however, an agency must thoroughly examine and re-examine

its invocation of any FOIA exemptions before forcing the

requester to resort to the judicial process. Ignoring this

responsibility, as Congress noted, leaves the impression that the

agency is hoping the requester will simply give up on his or her

11The amendment, inter alia, provided for the award of attorneys' fees and costs to successful FOIA plaintiffs and imposed time limits on agency responses to FOIA requests. Pub. L. No. 93-502, 88 Stat. 1561 (1974).

25 rights under the statute rather than starting what could become a

protracted and expensive court battle with the federal

government.

This case leaves just such an impression. Again, while the

Department's willingness to produce all of the information once

Caton had filed suit does not itself indicate bad faith, that

sudden reversal of course, coupled with the Department's dubious

conclusion that the LNHP had not waived any exemption to

disclosure, suggests that the Department did not take its FOIA

obligations seriously. Indeed, that much is apparent from nearly

every step in the Department's handling of Caton's FOIA request,

both before and after he filed suit.

In addition to its admitted failure to segregate exempt

documents from the files it made available to Caton for

inspection, the LNHP bungled its response to the request at

almost every turn. Hammond did not retain a clean copy of the

numbered set of documents attached to Murphy's memorandum,

despite the significant possibility that she might have to

produce one or more of them in unredacted form if Caton were

dissatisfied with the redacted versions. Her carelessness in

this regard led directly to her further error in substituting a

second copy of document 60 for document 6 in the January 20

production. Hammond then appears to have completely disregarded

26 Plourde's request that she "figure out what had happened" to give

rise to that mistake after Caton brought it to his attention.

Hammond simply forwarded a copy of document 6 to Caton together

with an explanation that made no sense whatsoever in light of

either her method of assembling the unredacted documents for the

January 20 production or the face of document 6 itself.

Worse yet, at a point ten days removed from what Hammond

describes as the "considerable stress" of making a complete

response to Caton's FOIA request, she signed a declaration to be

submitted to this court giving the same explanation, despite the

fact that she had yet to consider whether it was true. Plourde,

for his part, managed to draft the declaration to include that

explanation without noticing that it could not have been correct.

This point should have been apparent to Plourde from the copy of

document 60 from the January 20 production, which Caton had

forwarded to him by then. Plourde's declaration in support of

the motion to correct the record, however, gives no indication

that he did anything to assure himself of the accuracy of

Hammond's assertion before submitting her declaration to the

court as the evidentiary basis of the motion to dismiss, despite

his prior acknowledgment of the irregularity in the January 20

production as "curious." In fact, both Plourde and Hammond

appear to have waited until Caton pointed out the apparent

27 falsity before checking the accuracy of her "quick assumption" as

to how the error in production had occurred.

Plourde subsequently met with Hammond for this purpose and

learned that the statement in her declaration explaining this

error was indeed false. Under the New Hampshire Rules of

Professional Conduct, which govern practice in this court, L.R.

83.5, DR-1, "[a] lawyer shall not knowingly . . . offer evidence

that the lawyer knows to be false. If a lawyer has offered

material evidence and comes to know of its falsity, the lawyer

shall take reasonable remedial measures." N.H. R. Prof. Conduct

3.3(a)(3). Although Plourde did not know Hammond's statement was

false when he submitted her declaration to the court, he came to

know of its falsity on March 2, 2005. At that point, he had

already filed the Department's reply to Caton's objection to the

motion to dismiss, but had yet to respond to his motion to

strike, which also argued that Hammond's explanation of the

irregularity in the January 20 production was wrong. Plourde,

however, did not disclose his knowledge of this fact to the court

by way of the Department's objection to the motion to strike.

Instead, he characterized Caton's "allegations regarding the

apparent mis-numbering and substitution of Document #60" as

"immaterial in light of his admitted receipt of complete,

unredacted copies of both Documents 6 and 60."

28 Plourde does not suggest that this statement, contained in a

footnote to the objection, constitutes the "reasonable remedial

measures" which Rule 3.3 requires of a lawyer who comes to know

that he or she has offered material evidence which he later

discovers to be false. Plourde states instead that he simply did

not consider Hammond's explanation to be material to whether the

Department had fully responded to Caton's FOIA request.

In the court's view, Plourde was mistaken in concluding that

a false statement as to how Caton's FOIA request was processed,

contained in a declaration submitted to show the adequacy of the

Department's response to that request, would have no bearing on

whether the Department had successfully demonstrated that fact so

as to merit dismissal of the case as moot. Both Caton's brief

objecting to the motion to dismiss and his brief in support of

his motion to strike argued that he could obtain discovery,

despite the Department's claim that it had fully responded to his

FOIA request, because he had made "'a showing of bad faith on the

part of the agency sufficient to impugn the agency's affidavits

or declarations.'" Mem. Opp'n Mot. Dismiss 5 57 (quoting Carney.

19 F.3d at 812). Caton based this argument on, inter alia, the

apparent falsity in Hammond's declaration. Id. 50-55, 68.

Caton's brief therefore demonstrated the materiality of the false

statement to the adequacy of the FOIA response.

29 Even if Plourde had somehow missed this point, however, he

should have realized as a matter of common sense that a

declaration falsely attesting as to how an agency processed a

FOIA response simply cannot serve to demonstrate its adequacy as

is required to secure dismissal of a FOIA case as moot. Plourde

had an obligation to notify the court and Caton promptly when he

became aware of Hammond's false statement and to file a corrected

version of that statement promptly. At the same time he could

have pursued his contention that the falsity of the statement was

immaterial to the first motion to dismiss by seeking leave to

file a memorandum making that argument.12 The cumulative effect

of the Department's intransigence, the LN H P 's carelessness, and

Plourde's mistaken conclusion was to further delay the final

resolution of Caton's FOIA request. This delay has in turn

unnecessarily consumed Caton's resources, as well as those of the

Department, the United States Attorney's Office, and the court.

12A s it is, Plourde has yet to call the court's attention to any authority for the proposition that an agency can show the adequacy of its response to a FOIA request through a declaration containing a false statement as to how the request was processed. Plourde's suggestion that Caton's own submissions established the adequacy of the Department's response, rendering any deficiencies in Hammond's declaration irrelevant, ignores the basis of Caton's objection to the first motion to dismiss. Although Caton did not contest that he received an unredacted version of a document numbered 6, he vigorously disputed--and still does--that this document was in fact an accurate copy of the record in question.

30 Nevertheless, the court concludes that the Department's

mistakes in handling Caton's FOIA request do not suffice to

overcome the presumption of good faith which accompanies the

Second Hammond Declaration. As previously noted, Hammond has by

now convincingly explained those mistakes, and her explanations

leave no room for any real possibility that further documents

exist which are responsive to Caton's request. See Maynard. 986

F.2d at 559-565. In the FOIA context, "what is expected of a

law-abiding agency is that it admit and correct error when error

is revealed." Meeropol v. Meese. 790 F.2d 942, 953 (D.C. Cir.

1986). Now that the Department has done that, albeit belatedly,

Caton's FOIA case has become moot.

In his objection to the second motion to dismiss, Caton

notes that he seeks "reasonable attorneys' fees and all . . .

litigation costs" associated with this lawsuit.13 Mem. O b j .

Second Mot. Dismiss at 21. Because Caton has prosecuted this

action in a pro se capacity, he cannot recover attorneys' fees

under controlling First Circuit law. See Aronson v. H UD. 866

13Caton also seeks "agency records concerning the 5 construction contracts." Mem. O b j . Second Mot. Dismiss at 21. To the extent Caton wants the agency to provide copies of those files in their entirety, rather than just the particular documents from the files he designated for copying in December, 2003, that relief is barred, as the court ruled in denying Caton's motion to amend. 2005 DNH 76, 2005 WL 1009544, at *3.

31 F.2d 1, 4 (1st Cir. 1989); Crooker, 632 F.2d at 920-22. If Caton

wishes to pursue his request for costs, he shall do so by way of

a bill for costs served and filed in accordance with the time

limitations and other provisions of Local Rule 54.1. Caton's

memorandum in support of any such bill, see L.R. 54.1(b), shall

address the issue of whether he has "substantially prevailed" in

this action within the meaning of 5 U.S.C. § 552(a)(4)(E) as well

as the "equitable factors" set forth in Crooker. See Maynard.

986 F.2d at 568. The Secretary shall be entitled to file any

objections to the bill in accordance with L.R. 54.1(c).

Conclusion

For the foregoing reasons, the Secretary's second motion to

dismiss the case as moot (document no. 36) is GRANTED. The clerk

shall enter judgment accordingly and close the case.

It is most unfortunate that the resources of the plaintiff,

the Department of the Interior, the United States Attorney's

Office, and this court were expended in litigation that did not

have to occur. In the interest of avoiding such waste of

resources in the future in matters involving FOIA and the

Department of the Interior, the court is directing counsel for

the defendant to forward copies of this order to Secretary of the

Interior Gale Norton, the Department's Division of General Law,

32 and the Chief of the Civil Division of the United States

Attorney's Office for the District of New Hampshire. Secretary

Norton would be well advised to undertake a comprehensive review

of all aspects of how the Department responds to FOIA requests.

What happened in this case is not good government and should not

be repeated.

SO ORDERED.

jN^^Jeph A. DiClerico, Jr. United States District Judge

November 21, 2 0 05

cc: Harold W. Caton, pro se T. David Plourde, Esquire