Colorado Wild Public Lands v. United States Forest Service

• Court: District Court, District of Columbia
• Decided: September 11, 2023
• Docket: Civil Action No. 2021-2802
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

COLORADO WILD PUBLIC LANDS,

Plaintiff,

v. Case No. 21-cv-2802 (CRC)

U.S. FOREST SERVICE,

Defendant.

MEMORANDUM OPINION AND ORDER

In early 2021, Colorado Wild Public Lands (“COWPL”) submitted multiple Freedom of

Information Act (“FOIA”) requests to the United States Forest Service (the “Forest Service” or

the “Service”) for documents concerning the agency’s evaluation of a proposed land exchange in

the San Juan National Forest, including third-party appraisals of the relevant parcels. The Forest

Service initially refused to produce most of the requested evaluation documents based on its

internal policies that forbid disclosing such documents until the underlying appraisals have been

approved for agency use and the land exchange has been finalized. After many months of

litigation and delay, the Forest Service eventually turned over almost all the requested documents

except for several redactions under Exemption 5 based on the deliberative process privilege and

Exemption 6 based on privacy concerns. The Service then moved for summary judgment on the

ground that it produced all reasonably segregable, non-exempt portions of responsive records.

COWPL responded by filing a cross motion for summary judgment on its claim that the

Service’s policy and practice of withholding documents until a land exchange is completed

violates FOIA. The Court now assesses these dualling motions.

Beginning with the Forest Service’s motion, the Court concludes that the Service has

failed to show that all materials withheld under Exemption 5 are deliberative or that releasing them would cause foreseeable harm. By contrast, the Service mostly satisfied its burden of

justifying the withholdings under Exemption 6, with one exception regarding the redactions of

realtors’ contact information. The Court will, accordingly, grant the Service’s motion in part and

deny it in part. With respect to COWPL’s cross motion, the Court finds that the Forest Service’s

policies violate FOIA by imposing additional restrictions that go above and beyond the statutory

exemptions. The Court therefore will grant COWPL’s request for a declaratory judgment to that

effect.

I. Background

In November 2019, the Forrest Service announced it was considering a land exchange

proposal in the Valle Seco portion of the San Juan National Forest in Colorado. See Mot. for

Summ. J. (“MSJ”), Ex. 1, U.S. Forest Service’s Statement of Undisputed Material Facts ¶ 1.

Under the proposed terms, the United States would acquire approximately 900 acres of privately

owned land in exchange for eleven parcels of National Forest System land spanning close to 472

acres. Id. ¶ 2.

Concerned about the terms of the proposed land exchange, COWPL emailed the Forest

Service in September 2020 requesting records related to the transaction. Id. ¶ 11. A district

ranger responded with a letter directing COWPL to publicly available materials and providing

the contact information for the San Juan National Forest FOIA Coordinator, id. ¶¶ 12–13, but he

did not assign a FOIA tracking number to this initial inquiry because he determined that the

email was not an official FOIA request, id. ¶ 14. Later that month, COWPL followed up with a

request for “appraisals and related documents” involving the proposed land exchange, which the

Forest Service construed as a formal FOIA request and answered by providing some responsive

2 documents while withholding others. Compl. ¶ 17. COWPL did not challenge these

withholdings before the period to appeal elapsed in January 2021. MSJ, Ex. 1 ¶ 19.

The organization instead lodged what the Forest Service construed as two additional

FOIA requests in early 2021, which are the basis of the current litigation.1 In March, COWPL

requested that the Forest Service turn over the Technical Appraisal Review Report (“TARP”) it

had used when assessing the Valle Seco exchange. Id. ¶ 20. And in May, COWPL asked the

Service to produce all underlying appraisals estimating the fair market value of each parcel that it

had prepared for the proposed exchange. Id. ¶ 25. These appraisals were prepared by an outside

contractor who served as the Service’s “client.” See Forest Service Reply, Ex. B (“Statement of

Work”) at 2, 9. Both the appraisals and the TARP, which assesses the appraisals for accuracy

and completeness, serve an important role in the process by ensuring that the exchanged lands

are of approximately equal value, as required under 43 C.F.R. § 2201.5.

The flow of information in response to these requests was a slow trickle. The first round

of disclosures included hefty redactions, as the Service claimed Exemption 5 based on the

deliberative process privilege and Exemption 6 due to personal privacy concerns. See MSJ, Ex.

B, Declaration of Margaret Scofield (“Scofield Decl.”) ¶ 6 (“[T]he Forest Service produced the

Technical Appraisal Review Reports to Colorado Wild, with two (2) pages released in full, two

(2) pages withheld in part, and 54 pages withheld in full pursuant to Exemption 5.”); id. ¶ 8

(“The Rocky Mountain Regional FOIA Service Center responded to this FOIA request in a letter

dated June 23, 2021, stating that it had located 1,028 pages of responsive records that it would

withhold in full under Exemptions 5 and/or 6.”). In reality, many of these initial redactions were

1 COWPL complains that the Forest Service wrongly “split the original request into three requests and two administrative appeals” in an effort to evade compliance and delay disclosures. See Opp’n to MSJ at 6–7. Because this dispute is not relevant to the disposition of this matter, the Court analyzes the requests in accordance with how the Forest Service processed them.

3 directly predicated not on an interpretation of FOIA’s statutory exemptions but rather on an

application of the Forest Service’s internal policies forbidding the release of valuation documents

until the Service had approved them for agency use and, even then, not until the Service had

finalized the proposed land exchange.

Forest Service Manual Rule 5401.74c.3 states that “[c]ompleted, signed appraisal review

reports, appraisal consulting reports, and other valuation products that have been accepted for

Agency use by an Authorized Officer and are part of the official Agency record may be released

by the Regional Director of Lands or equivalent official, in whole or in part, after review by the

Regional Appraiser.” Opp’n to MSJ, Ex. 7 at 2. Comment 3 further clarifies that, “prior to

releasing the information, the valuation products [must] have been accepted for Agency use by

an Authorized Officer and [be] part of the official Agency record,” id. at 3, and reiterates that,

“[i]f they have not be[en] accepted for Agency use, by policy we cannot release [them],” id. But

even documents that the Forest Service has “accepted for Agency use” are still not necessarily

eligible for release, as Rule 5412.11 instructs:

[T]he final approved appraisal report(s) and appraisal review report(s) for Federal and non-Federal lands in land exchange transactions shall be made available, upon written request, to all interested parties when: [1] An environmental assessment or draft environmental impact statement is released for public comment identifying a preferred alternative, and the appraisal report(s) have been reviewed and approved for agency use, or; [2] The National Environmental Policy Act (42 U.S.C. 4321) decision to approve an exchange is made, and public notice given.

Mot. to Enforce Settlement Agreement, Ex. 12 at 4. Internal emails show that Forest Service

officials were acutely aware of these policies when deciding how to respond to COWPL’s FOIA

requests. These officials repeatedly stated that they should not release draft appraisals that had

not received the Forest Service’s official seal of approval. See, e.g., Opp’n to MSJ, Ex. 13 at 2

(quoting Rule 5401.74’s “accepted for Agency use” requirement). Others insisted that even

4 officially approved documents must be withheld until the Valle Seco land exchange had been

finalized. See, e.g., Opp’n to MSJ, Ex. 5 at 5 (noting the “land exchange decision has not been

finalized yet” when discussing whether to release the TARP); Opp’n to MSJ, Ex. 6 at 1 (“We

ended up moving forward with the heavy redactions of the appraisal reports based on exemption

5 of the FOIA since there has been no decision made on Valle Seco.”); Opp’n to MSJ, Ex. 11 at

2 (“At a minimum, I recommend that appraised values and other valuation information in the

appraisal not be shared until the Agency has made a planning decision on the land exchange.”).

COWPL responded by timely appealing the Forest Service’s initial productions and then

filing the present action in this Court under 5 U.S.C. § 552(a)(4)(B). COWPL’s complaint

alleges that the Forest Service “violated FOIA by illegally withholding agency records that are

responsive to [its] FOIA Request[s], but which Defendant has not demonstrated are subject to

any FOIA withholding provision,” including Exemptions 5 and 6.2 Compl. ¶¶ 84–85. These

purported violations were not isolated mistakes, the complaint charges, but rather the result of

“agency policies that direct personnel to withhold information regarding property values until

after the [National Environmental Policy Act (“NEPA”)] process is complete, after

administrative review is complete, and after final agency action is taken on a land exchange.” Id.

¶ 19. Additionally, the complaint maintains that the Service has a further “unlawful policy of

only sharing . . . valuation information with persons advocating for the land exchange, and

denying access to Plaintiff and similarly situated persons” who may oppose the exchange. Id. It

further contends that, because of these policies, COWPL had been “denied access to appraisals

for federal land exchanges on multiple occasions” and warns that history will likely repeat itself

2 The complaint also alleged that the Forest Service’s search was inadequate, see Compl. ¶ 83, but COWPL has voluntarily dismissed this claim, see Opp’n to MSJ at 3.

5 without judicial intervention, noting that the group has “definite plans to continue to request”

similar information in the future. Id.

After this case was filed, the Forest Service steadily released more and more information

bit by bit. See Scofield Decl. ¶¶ 7, 9. One of the driving forces behind these subsequent releases

was a fact COWPL alleged in its complaint: The Forest Service already had shared many of the

requested documents with outside parties, such as the Western Land Group, a Denver-based real

estate consultancy which had supported the land exchange. See Compl. ¶ 54; Opp’n to MSJ, Ex.

19, Plaintiff’s Statement of Disputed Material Facts ¶¶ 16, 22, 24. The “Statement of Work for

the Proposed Valle Seco 2019 Land Exchange” lists Western Land Group and other proponents

of the exchange as “intended users” of the appraisals and TARP. See Statement of Work at 2.

The Forest Service thus provided these outside actors with access to the final appraisals and the

TARP “after the technical review [was] completed,” id. at 7, and agency officials later appeared

to acknowledge that this disclosure waived any deliberative process privilege over the distributed

materials, see Scofield Decl. ¶ 7 (“The Washington Office FOIA Service Center came to learn

that some of the withheld records previously had been shared with parties outside the Forest

Service, and on December 22, 2021, it issued an updated production with all deliberative process

redactions removed.”); see also FTC v. Meta Platforms, Inc., No. 20-cv-3590 (JEB), 2022 WL

4078930, at *6 (D.D.C. Sept. 6, 2022) (“The D.C. Circuit has recognized that voluntary

disclosure of privileged material to unnecessary third parties waives the deliberative-process

privilege for the document or information specifically released.” (cleaned up)).

After multiple months of further disclosures, what was once a long list of withholdings

has dwindled to a small set of redactions. See Scofield Decl. ¶ 7 (describing releases relating to

the March request and stating that the “updated production consisted of 58 pages [of the TARP],

6 56 of which were produced in full, and two (2) of which were withheld in part under Exemption

6”); id. ¶ 9 (explaining that the Service has now released 1,086 pages of final and draft appraisals

in response to the May request and that, “[o]f these, it produced 1,034 pages in full and 52 pages

withheld in part with redactions under Exemptions 5 and/or 6.”). Under Exemption 5, the Forest

Service continues to assert the deliberative process privilege over three pieces of information that

appear in draft appraisals: (1) analysis based on legal and factual assumptions that later were

determined to be inapplicable to the exchanged lands; (2) an inaccurate figure for the combined

acreage for the privately owned lands in the exchange; and (3) the names of private individuals

who were not involved in the exchange but whose names were included in the draft appraisals

because of a miscommunication. See MSJ at 4–5. Under Exemption 6, the Forest Service has

redacted from the appraisals and/or the TARP “(1) a work cell phone number of a Forest Service

employee and (2) cell phone numbers and an email address belonging to private citizens who

were involved in recent sales of comparable land parcels.” Id. at 5.

The Forest Service now moves for summary judgment on the ground that it produced all

reasonably segregable, non-exempt portions of the record and that the remaining redactions fall

within the statutory exemptions under 5 U.S.C. § 552(b). The Service submitted in support of its

motion a declaration by its Assistant Director for FOIA, Margaret Scofield, detailing COWPL’s

FOIA requests and explaining the applications of Exemptions 5 and 6 to the withheld materials.

See generally Scofield Decl. COWPL opposes this motion. It contends that the Forest Service

failed to prove that these exemptions apply to the withheld materials and that, regardless, the

Service waived any right to assert these exemptions because those materials were prepared by

and shared with parties outside the agency. See Opp’n to MSJ at 22–36.

7 COWPL does not itself move for summary judgment on these issues, however. It instead

cross-moves for summary judgment on the theory that, beyond the particular dispute in this case,

the Forest Service has an unlawful policy or practice of withholding valuation records from the

opponents of land exchanges (even though it routinely provides some of this information to

outside proponents) until after the Service has officially approved the documents and finalized

the land exchange. See Cross MSJ at 13–21. Such delay, COWPL contends, impedes its ability

to participate fully in the NEPA-review and notice-and-comment processes. See id. The Forest

Service does not mount a substantive defense of these policies. Rather, it asserts that the Court

cannot consider the matter because COWPL did not properly allege a policy-or-practice claim in

its complaint and because any such claim is now moot. See Forest Service Reply at 19–28. To

support the Service’s mootness position, Ms. Scofield submitted a second declaration stating that

the Forest Service is currently in the process of revising its policies and explaining that she has

instructed the agency’s FOIA Coordinators to comply with the proposed revisions immediately.

See id., Ex. 1, Declaration of Margaret Scofield (“Second Scofield Decl.”) ¶¶ 2–5.

II. Legal Standards

FOIA cases are typically resolved on summary judgment. See Brayton v. Off. of U.S.

Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). When reviewing an agency’s motion for

summary judgment under FOIA, “the underlying facts and the inferences to be drawn from them

are construed in the light most favorable to the FOIA requester,” and summary judgment is

appropriate only after “the agency proves that it has fully discharged its FOIA obligations.”

White Coat Waste Proj. v. U.S. Dep’t of Veterans Affs., 404 F. Supp. 3d 87, 95 (D.D.C. 2019)

(cleaned up).

8 Those obligations include satisfying the agency’s duty to justify “any withholdings it

makes under FOIA’s exemptions from disclosure.” Bagwell v. U.S. Dep’t of Justice, 311 F.

Supp. 3d 223, 228 (D.D.C. 2018). Because FOIA is designed to “establish a general philosophy

of full agency disclosure unless information is exempted under clearly delineated statutory

language,” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975) (citation omitted), the

statute’s exemptions are construed narrowly, and the agency bears the burden of justifying every

withholding, Bagwell, 311 F. Supp. 3d at 229. Additionally, under the FOIA Improvement Act

of 2016, an agency may withhold information that falls within a statutory exemption only if “the

agency reasonably foresees that disclosure would harm an interest protected by [that] exemption”

or if the “disclosure is prohibited by law.” 5 U.S.C. § 552(a)(8)(A)(i). “The foreseeable harm

requirement imposes an independent and meaningful burden on agencies.” Reps. Comm. for

Freedom of the Press v. FBI, 3 F.4th 350, 369 (D.C. Cir. 2021) (cleaned up). To satisfy its

burden, an agency that withholds documents under the deliberative process privilege must

provide “a focused and concrete demonstration of why disclosure of the particular type of

material at issue will, in the specific context of the agency action at issue, actually impede those

same agency deliberations going forward.” Id. at 370.

Beyond challenging an agency’s withholdings in response to a particular request, a

plaintiff may be entitled to declaratory or equitable relief if it can show that the agency employs

a “policy or practice [that] will impair [its] lawful access to information in the future.” Payne

Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988) (emphasis removed). “To state

a policy-or-practice claim, a plaintiff must plausibly allege ‘that the agency has adopted,

endorsed, or implemented some policy or practice that constitutes an ongoing ‘failure to abide by

the terms of the FOIA.’” Am. Ctr. for L. & Just. v. U.S. Dep’t of State, 249 F. Supp. 3d 275, 281

9 (D.D.C. 2017) (quoting Muttitt v. Dep’t of State, 926 F. Supp. 2d 284, 293 (D.D.C. 2013)).

“That is to say, a plaintiff must plead (1) some policy or practice that (2) results in a repeated

violation of FOIA.” Id. At the summary judgment stage, a party bringing a policy-or-practice

claim “must establish that ‘there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.’” Nat’l Sec. Couns. v. CIA, 960 F. Supp. 2d 101, 133

(D.D.C. 2013) (quoting Fed. R. Civ. P. 56(a)).

III. Analysis

Regarding the Forest Service’s motion for summary judgment, the Service uniformly

failed to justify its assertions of the deliberative process privilege under Exception 5 because it

either failed to show that the withheld material was deliberative or that disclosure would harm an

interest protected by that exemption. By contrast, the Service for the most part met its burden of

proving that it validly withheld material under Exception 6, with the lone exception that it did

not demonstrate that real estate agents have a substantial privacy interest in keeping their contact

information private given that it is likely already in the public domain. The Court will thus grant

the Service’s motion in part and deny it in part. As to the cross motion, the Court finds COWPL

adequately alleged a policy-or-practice claim in its complaint and that the Service’s intervening

actions do not moot this claim because their preliminary steps to amend the Manual policies have

not alleviated COWPL’s ongoing injury or ensured against future violations. On the merits, the

Court finds that the Service’s current policies do not comport with FOIA’s requirements and thus

will grant COWPL’s motion and enter a declaratory judgment in its favor. The Court addresses

these two motions in turn.

10 A. Forest Service’s Motion for Summary Judgment

Beginning with the Forest Service’s motion, the Service is still withholding portions of

draft appraisals under Exemption 5 based on the deliberative process privilege as well as

personal contact information under Exemption 6 based on privacy concerns. For both sets of

redactions, the onus is on the Forest Service to show that the information it is withholding falls

within the exemption and that disclosure would harm an interest that exemption seeks to protect.

The Court concludes that the Service failed to carry this burden on Exemption 5 but, for the most

part, sufficiently justified its Exemption 6 withholdings. A split decision on the motion for

summary judgment is therefore in order.

1. Exemption 5

Exemption 5 permits an agency to withhold “intra-agency memorandums or letters that

would not be available by law to a party other than an agency in litigation with the agency.” 5

U.S.C. § 552(b)(5). “This means, in effect, privileged documents that originated with the

agency.” Touarsi v. U.S. Dep’t of Just., 78 F. Supp. 3d 332, 344 (D.D.C. 2015). The Forest

Service has invoked the deliberative process privilege, which is “rooted in the obvious

realization that officials will not communicate candidly among themselves if each remark is a

potential item of discovery and front page news.” U.S. Fish & Wildlife Serv. v. Sierra Club,

Inc., 141 S. Ct. 777, 785 (2021) (citation and quotation marks omitted). The privilege applies if

“the disclosure of the materials would expose an agency’s decisionmaking process in such a way

as to discourage candid discussion within the agency and thereby undermine the agency’s ability

to perform its functions.” Env’t Integrity Proj. v. Small Bus. Admin., 125 F. Supp. 3d 173, 176–

77 (D.D.C. 2015) (quoting Formaldehyde Inst. v. U.S. Dep’t of Health & Hum. Servs., 889 F.2d

1118, 1122 (D.C. Cir. 1989)).

11 To fall within Exemption 5 based on the deliberative process privilege, a document must

be both “predecisional” and “deliberative.” Machado Amadis v. Dep’t of State, 971 F.3d 364,

370 (D.C. Cir. 2020). A given document is predecisional if it was “generated before the

adoption of an agency policy” and is prepared to assist the agency decisionmaker in arriving at

an opinion. Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir.

1980). This is typically a simple determination. “Determining whether a document is

deliberative is less straightforward,” as the test is “dependent upon the individual document and

the role it plays in the administrative process.” Jud. Watch, Inc. v. U.S. Dep’t of Just., 20 F.4th

49, 55 (D.C. Cir. 2021) (citation omitted). At one end of the spectrum, an “agency can establish

deliberativeness by showing that the withheld record makes recommendations or expresses

opinion on legal or policy matters.” Jud. Watch v. U.S. Dep’t of State, 557 F. Supp. 3d 52, 59

(D.D.C. 2021) (cleaned up). At the opposite end, purely factual information generally is not

protected because mere facts do not reflect the deliberative give-and-take that the exemption

safeguards. See Reps. Comm., 3 F.4th at 365. “While the fact/opinion distinction is not a

wooden rule, it is a rough guide for sifting out non-deliberative factual content from deliberative

policy judgments.” Id. (citation and quotation marks omitted). Whether information appears in

a draft document is also not conclusive, as the D.C. Circuit has held that documents entitled

“draft” are not “per se exempt” and that the agency must segregate and release all non-

deliberative portions of draft documents. Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257–58

(D.C. Cir. 1982).

Before addressing whether the Forest Service has met this dual requirement, COWPL

contends that the Forest Service’s assertions of the deliberative process privilege stumble out the

gate because the draft appraisals were prepared by an outside appraiser and shared with third

12 parties. As a result, COWPL contends that the draft appraisals do not constitute “intra-agency”

communications under Exemption 5. Opp’n to MSJ at 28–31. The Court disagrees.

Starting with the fact that a private appraiser prepared the draft appraisals, the so-called

consultant-corollary doctrine “extends [Exemption 5] to communications between Government

agencies and outside consultants hired by them” so long as “the consultant does not represent an

interest of its own, or the interest of any other client, when it advises the agency that hires it.”

Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 10 (2001). Here, the

Forest Service hired the appraiser to perform appraisal services in connection with the Valle

Seco land exchange, and nothing in the record suggests that this neutral appraiser represented the

interests of any party other than the Forest Service. See Forest Service Reply at 6; Second

Scofield Decl. ¶ 7. Although COWPL notes that outside parties are listed as “intended users” of

the appraiser’s work product, the Service is the only listed client. See Statement of Work at 2, 9.

Accordingly, there does not appear to be a genuine dispute over whether the appraiser acted as a

disinterested, expert consultant and thereby falls under the Service’s ambit for FOIA purposes.

See, e.g., Nat’l Inst. of Mil. Just. v. U.S. Dep’t of Def., 512 F.3d 677, 682–83 (D.C. Cir. 2008)

(holding that outside lawyers’ comments were exempt from FOIA because the Department had

“sought these individuals out and solicited their counsel based on their undisputed experience

and qualifications” and there was no indication of bias in the record).

COWPL’s assertion that the Forest Service shared the withheld documents with outside

parties is also unsupported. To be sure, it is undisputed that the Forest Service shared some

materials with the Western Land Group and other proponents of the land exchange. See, e.g.,

COWPL Reply, Ex. 1 at 1 (Forest Service emails sharing the Statement of Work with Western

Land Group); COWPL Reply, Ex. 8 (Western Land Group requesting the TARP). But there is

13 no evidence in the record that the Service ever shared the portions of the draft appraisals that it is

currently withholding with any outside entity. If anything, the record suggests the opposite. The

appraiser’s Statement of Work specifies that “[t]he appraiser may provide information about the

assignment, appraisals results, or portions thereof only to the Senior Review Appraiser” and that

final “[a]ppraisals may only be distributed to the intended users after the technical review is

completed.” Statement of Work at 7. Ms. Scofield also averred the draft appraisals “were never

shared beyond the Forest Service,” Second Scofield Decl. ¶ 8, and this declaration is accorded a

presumption of good faith, see SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.

1991). Ultimately, COWPL bore the “burden of producing at least some evidence that the

deliberative process privilege has been waived,” but it provides no concrete evidence that these

draft appraisals were divulged. Elec. Frontier Found. v. U.S. Dep’t of Just., 890 F. Supp. 2d 35,

46 (D.D.C. 2012).

Given that the documents at issue here were “intra-agency” in the relevant sense, the

Court can turn its attention to whether those documents are both predecisional and deliberative.

To recap, the Forest Service is currently withholding three pieces of information that appeared in

draft appraisals and were all removed before the appraisals were finalized: (1) analysis based on

legal and factual assumptions that later were determined to be inapplicable to the land at issue;

(2) an inaccurate figure for the combined acreage for the privately owned lands in the exchange;

and (3) the names of private persons not involved in the exchange whose names were included in

draft appraisals due to a miscommunication. See MSJ at 4. It is undisputed that these records

were predecisional because they all appear in draft appraisals that were prepared in advance of

the Forest Service’s decision to proceed with the Valle Seco land exchange. The key question is

whether they are also deliberative.

14 For the latter two pieces of withheld information, the answer is clearly no. The names of

private individuals in no way reflect “advisory opinions, recommendations and deliberations

comprising part of a process by which governmental decisions and policies are formulated.”

Sears, Roebuck & Co., 421 U.S. at 149 (citation omitted). These names do not “bear on the

formulation or exercise of agency policy-oriented judgment.” Petroleum Info. Corp. v. U.S.

Dep’t of Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992) (emphasis removed). They are instead

simple facts that fall outside the scope of Exemption 5, even if the names appear in a “draft”

appraisal, because they do not reflect the give-and-take of the deliberative process. See Am.

Immigr. Council v. U.S. Customs & Border Patrol, 590 F. Supp. 3d 306, 325 (D.D.C. 2022).3

The erroneous useable-acreage figure for the private parcels similarly appears to be purely

factual (albeit inaccurate) information, and the Forest Service has not indicated that these

estimates reflect a “complex set of judgments” that would trigger the deliberative process

privilege’s protections. Quarles v. Dep’t of Navy, 893 F.2d 390, 392–93 (D.C. Cir. 1990)

(holding that the Navy had properly withheld cost estimates under Exemption 5 because they are

“derive[d] from a complex set of judgments—projecting needs, studying prior endeavors and

assessing possible suppliers.”).

The first piece of withheld information—the appraiser’s analysis in a draft appraisal that

was based on incorrect factual and legal assumptions—presents a much closer question. The

3 The Forest Service mentions in a footnote that this information “also falls within Exemption 6’s scope,” MSJ at 12 n.4, but this gesture to Exemption 6 is insufficient to meet the Service’s burden at summary judgment. Furthermore, the Scofield Declaration does not list this information in its description of the “[i]nformation withheld under Exemption 6,” Scofield Decl. ¶¶ 12–17, and it is “a foundational principle of administrative law that judicial review of agency action is limited to the grounds the agency invoked when it took the action,” DHS v. Regents of the Univ. of Cal.,140 S. Ct. 1891, 1907 (2020) (citation and quotation marks omitted).

15 first Scofield declaration states that the “draft [a]ppraisals contained analysis that assumed that

conveyance of certain parcels would not be subject to certain administrative requirements under

Colorado law” but that the “Forest Service subsequently determined that these requirements did

apply to the parcels at issue.” Scofield Decl. ¶ 10. It further explains that the “draft [a]ppraisals

also calculated the usable acreage of certain parcels to the Forest Service specifically, which

differed from what the usable acreage would be to another purchaser given the Forest Service’s

ownership of abutting parcels.” Id. From these statements, which constitute the entire extent of

the Forest Service’s description of the withheld material, the Court is not entirely confident that

all withheld material reflects the give-and-take of the deliberative process. The word “analysis”

suggests the appraiser may have conducted a complicated estimation of the land value based on a

flawed understanding of state law, which very likely would fall under the deliberative process

privilege. However, the declaration fails to explain what the relevant law was, how it affected

the calculations, and what analysis is currently being withheld. It also provides no detail on how

the appraiser tabulated the useable acreage, leaving open the possibility that this error resulted

from a mere mistake of fact rather than faulty analysis. Perhaps it was a bit of both, in which

case the Service must segregate and release all non-deliberative material. See 5 U.S.C.

§ 552(a)(8)(A)(ii)(I). But the Court is left guessing, and certainty (or close to it) is required

when awarding summary judgment.

Even if the Court were to determine that this material is deliberative, that finding would

not end the inquiry because the FOIA Improvement Act of 2016 adds an additional requirement:

foreseeable harm. Troubled that agencies were overusing the deliberative process privilege and

thereby frustrating FOIA’s basic goal of transparency, see H.R. Rep. No. 114-391, at 10 (2016),

Congress restricted agencies’ ability to withhold internal, deliberative records to situations where

16 an agency “reasonably foresees that disclosure would harm an interest protected by [Exemption

5].” 5 U.S.C. § 552(a)(8)(A)(i)(I). This foreseeable harm requirement has real teeth. An agency

claiming the deliberative process privilege “cannot rely on mere speculative or abstract fears, or

fear of embarrassment, to withhold information. Nor may the government meet its burden with

generalized assertions.” Reps. Comm., 3 F.4th at 369 (cleaned up). The agency instead must

point to a “specific, identifiable harm that would be caused by a disclosure.” Jud. Watch, Inc. v.

U.S. Dep’t of Com., 375 F. Supp. 3d 93, 100 (D.D.C. 2019) (quoting H.R. Rep. No. 114-391, at

9 (2016)).

In its motion for summary judgment, the Forest Service failed to show that the release of

any of the above material withheld under Exemption 5 would cause reasonably foreseeable harm.

Because it is plainly obvious that releasing the redacted names would not harm any deliberative

processes, the Court focuses on the other withheld records—the incorrect acreage figures and the

inaccurate analysis based on mistaken assumptions about Colorado law. The Service makes two

sets of arguments for why release of these records would cause harm, but neither carries the day.

For starters, the original Scofield declaration asserts that “[r]eleasing this information

would undermine the Forest Service’s ability to prepare complete, accurate, and high-quality

[a]ppraisals, which are necessary to effectuate land exchanges, by chilling the open and candid

identification, discussion, and correction of factual and analytical errors in draft [a]ppraisals.”

Scofield Decl. ¶ 11. But this sort of “boilerplate” and “generic” assertion of a chilling effect is

insufficient to satisfy the meaningful burden of providing a “concrete demonstration of why

disclosure of the particular type of material at issue will . . . actually impede [the Service’s]

deliberations going forward.” Reps. Comm., 3 F.4th at 370. There is no reason to believe that

revealing this information would prevent the free flow of ideas within the Service or thwart the

17 agency from producing “accurate” and “high-quality” appraisals given that these records do not

appear to contain any policy proposals or recommendations. They are simply inaccuracies, and

disclosing these errors may improve (rather than stymie) the appraisal process. The Court cannot

nullify the FOIA Improvement Act by allowing an agency to bypass its harm requirement with

such a “perfunctory statement that disclosure of all the withheld information—regardless of

category or substance—would jeopardize the free exchange of information.” Id. at 370 (cleaned

up); see also Ams. for Fair Treatment v. USPS, No. 22-cv-1183-RCL, 2023 WL 2610861, at *12

(D.D.C. Mar. 23, 2023) (rejecting a generic assertion of a chilling effect and insisting that an

“agency cannot carry its burden simply by turning that generic rationale into a game of Mad Libs

and filling in the blanks with the name of the agency and the things that it does” (cleaned up)).

Perhaps sensing the weakness in its generic chilling effect argument, the Forest Service

attempts to supplement its reasoning in its reply brief by submitting a second declaration from

Ms. Scofield detailing an alternative, winding path through which disclosing these errors could

harm the Service’s internal appraisal processes. This supplemental declaration opines that the

“Forest Service sometimes struggles to procure the services [of] qualified appraisers, who fear

that working with the Forest Service unduly risks exposing their work product and proprietary

information to their competitors.” Second Scofield Decl. ¶ 11. It then notes that “[t]hree factors

contribute to this concern”: (1) the Forest Service is subject to FOIA’s disclosure requirements

and thus the appraisers fear that proprietary information may be released; (2) the Service owns

less land that the Bureau of Land Management (“BLM”)—193 million acres compared to 245

million acres—so appraisers are less willing to work with the Service; and (3) appraisers are in

high demand and can afford to refuse to work with the Service. Id. ¶¶ 12–14. Under these three

conditions, Scofield contends that “[r]eleasing the redacted portions of the draft appraisals would

18 further discourage qualified appraisers from working with the Forest Service” because it would

“embarrass the appraiser” who drafted them and make other “appraisers less willing to work with

the Forest Service on future land exchange proposals.” Id. ¶ 15.

This theory does not rise to the level of reasonably foreseeable harm. First of all, these

background conditions have little if anything to do with the challenged withholdings here and are

otherwise unpersuasive. If some appraisers fear the release of their proprietary information,

which is not included in the redacted records and is separately protected under Exemption 4,

those fears will remain regardless of the outcome in this case. It is also hard to fathom how the

fact that the Service owns four-fifths the acreage of the BLM matters given that both entities are

among the largest landowners in America and major sources of potential appraisal business. To

the extent the core argument is that releasing these mistakes will embarrass the appraiser and

scare off future partnerships, color the Court skeptical. It seems implausible that appraisers

would turn down the Forest Service’s business if it revealed the appraiser’s error, especially

given that the public already knows that the appraiser made these errors in his draft appraisals.

Plus, everyone knows that mistakes happen and that corrections will be made during the review

process. If the error here happens to be so egregious that it would cause embarrassment (which,

again, the Court doubts), severing ties with this one appraiser would not scare off more

competent partners and could potentially be a boon for appraisal accuracy and quality. That is

all to say that this round-about hypothesis of harm is far too speculative given that “agencies

must concretely explain how disclosure ‘would’—not ‘could’—adversely impair internal

deliberations.” Reps. Comm., 3 F.4th at 369–70 (quoting Machado Amadis, 971 F.3d at 371).

In addition to interfering with the agency’s internal appraisal process, the Forest Service

also contends that disclosing this information possibly could sow confusion among the public.

19 Ms. Scofield asserts that the “release of factual and analytical inaccuracies in the draft

[a]ppraisals may confuse or mislead the public as to the reasons for the Forest Service’s eventual

decision regarding the proposed land exchange, by erroneously suggesting that the Forest

Service’s potential decision-making rested on these factual and analytical inaccuracies that the

Forest Service in fact did not rely on.” Scofield Decl. ¶ 11 (emphasis added). Once more, such

conjecture about the possibility of confusion is insufficient to show harm. That is especially true

in this case because it would be a simple task for the Forest Service to clear up any confusion by

doing exactly what Scofield did in her declaration: explain that these errors appeared in draft

appraisals and that the errors were corrected and removed from the final appraisals that the

agency used when assessing the land exchange. Easy enough. When such a straightforward

explanation will do the trick, the harm requirement—and the overall logic of FOIA—forbids an

agency from opting to keep the public in the dark. Cf. Petroleum Info. Corp., 976 F.2d at 1433

(rejecting an assertion of Exemption 5 where the agency did “not convincingly explain why its

concerns with public confusion and harming its own reputation could not be allayed by

conspicuously warning FOIA requesters that the LLD file is as yet unofficial and that the Bureau

disclaims responsibility for any errors or gaps”).

The Court therefore concludes that the Forest Service has not shown that the release of

any of the withheld material would cause reasonably foreseeable harm because its worries over

its effect on the appraisal process appear overblown and its concerns over public confusion are

speculative at best. In addition to its failure to demonstrate that much (if any) of the withheld

material is deliberative, this failure to show foreseeable harm is a sufficient reason to deny the

Service’s motion for summary judgment with respect to its applications of Exemption 5.

20 2. Exemption 6

The Forest Service fares better when it comes to Exemption 6. That exemption protects

“personnel and medical files and similar files the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The threshold question is

whether the requested information implicates a “substantial, as opposed to a de minimis, privacy

interest.” Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989). If an

agency clears this threshold, a court must then weigh that privacy interest against any public

interest in disclosure. Multi Ag Media LLC v. U.S. Dep’t of Agriculture, 515 F.3d 1224, 1229–

30 (D.C. Cir. 2008). “The only relevant public interest in disclosure to be weighed in this

balance is the extent to which disclosure would . . . contribut[e] significantly to public

understanding of the operations or activities of the government.” Bartholdi Cable Co. v. FCC,

114 F.3d 274, 282 (D.C. Cir. 1997) (cleaned up). The Service’s two sets of Exemption 6

withholdings mostly pass this test, with one exception for realtors’ redacted contact information.4

The first piece of information that the Forest Service is withholding under Exemption 6 is

a Service employee’s work cell phone number that appeared in the appraisals. Scofield Decl.

¶ 13. The Forest Service explains that it “has released the employee’s office phone number and

email address, which are the proper points of contact for members of the public,” but believes

that releasing the employee’s cell phone number would unnecessarily intrude upon the

employee’s privacy “given that Forest Service employees generally are expected to carry their

work cell phone[s] . . . on their persons outside of the office and normal work hours.” Id. The

Court agrees (and wonders why COWPL would persist in objecting to this withholding). As

courts in this district have recognized, “[c]ell phone numbers implicate a different privacy

4 This framework, which requires showing a substantial privacy interest, bakes into its assessment the foreseeable harm requirement under 5 U.S.C. § 552(a)(8)(A)(i).

21 interest from landline office phone numbers because employees carry cell phones with them

outside the office and regular work hours.” Smith v. U.S. Dep’t of Treasury, No. 17-cv-1796

(TSC), 2020 WL 376641, at *4 (D.D.C. Jan. 23, 2020). “Disclosing the numbers of work cell

phones, which employees maintain in their homes and on their person, could subject them to the

type of harassment exemption 6 was designed to prevent.” Id. The Court accordingly concludes

that the cell phone number here implicates a substantial privacy interest. On the other side of the

ledger, there is limited public interest in disclosing the cell phone number because the public can

readily contact the official by emailing him or dialing his landline. The balance of interests is

thus lopsided against disclosure.

The second tidbits that the Service has redacted under Exemption 6 consists of the cell

phone numbers and an email address of private citizens who were involved in recent sales of

comparable parcels of land but not connected to the land exchange itself. Scofield Decl. ¶ 14.

The Forest Service notes that it has already disclosed these private citizens’ names but insists

that releasing their contact information risks subjecting them to annoying or harassing calls or

“unwanted contact from realtors, marketers, and other solicitors based on these individuals’

recent real estate transactions” without “providing any additional insight or information about the

proposed land exchange.” Id. ¶ 15. The Court agrees to the extent the redactions involve the

truly private contact information of citizens who bought comparable property in the surrounding

area. For this class of individuals, it is well-accepted that their private contact information

implicates a substantial privacy interest. See, e.g., Hall & Assocs. v. EPA, No. 19-cv-1095 (RC),

2020 WL 4673411, at *5 (D.D.C. Aug. 12, 2020) (“Courts in this District have routinely held

that release of privately held email addresses would implicate a privacy interest.”); Pejouhesh v.

USPS, No. 17-cv-1684 (RDM), 2019 WL 1359292, at *6 (D.D.C. Mar. 26, 2019) (“[T]elephone

22 numbers are precisely the sort of bits of personal information the release of which would create a

palpable threat to privacy.” (cleaned up)). Meanwhile, COWPL has advanced no real argument

for why disclosing these citizens’ contact information will shed any light on the Forest Service’s

operations. The Court therefore “need not linger over the balance” because “something, even a

modest privacy interest, outweighs nothing every time.” Horner, 879 F.2d at 879.

But as COWPL contends, see Opp’n to MSJ at 32–33, the Forest Service papers over

some key facts when suggesting that the records withheld under Exemption 6 consist solely of

the contact information of individuals who recently bought nearby properties, see MSJ at 16.

COWPL notes in its opposition —and the Forest Service acknowledges in its reply—that some

of the material withheld under Exemption 6 consists of contact information for real estate agents

who marketed and sold comparable parcels to those included in the land exchange. Opp’n to

MSJ at 33; Forest Service Reply at 10–11. COWPL contends it is disingenuous to say that

disclosure of realtors’ contact information would risk unwanted intrusions and solicitations when

“realtors regularly publish their contact information and market their services to the public to

generate business, including publicizing sales of the parcels at issue in this exchange.” Opp’n to

MSJ at 33. This reasonable claim that realtors publicly advertise their business contact

information changes the calculus here because courts have held that, unlike privately held phone

numbers and email addresses, “[p]ublicly available” contact information does “not implicate a

privacy interest protected by Exemption 6.” Hall & Assocs., 2020 WL 4673411, at *5 (citing

Multi Ag Media LLC, 515 F.3d at 1228). The Court therefore does not even get to the balancing

stage because the Forest Service fails to clear the initial threshold of showing a substantial

privacy interest.

23 As a final note, COWPL asserts the Forest Service waived its right to Exemption 6 for

any of the redacted records when it shared its materials with outside groups. Opp’n to MSJ at

32–33. But it once more fails to point to concrete evidence in the record that shows this specific

information was shared with third parties. More importantly, unlike the deliberative process

privilege, the private privacy interests protected under Exemption 6 are not waived through

selective disclosure. See Sherman v. U.S. Dep’t of Army, 244 F.3d 357, 363–64 & n.12 (5th Cir.

2001). Accordingly, the Court will grant the Service’s motion for summary judgment on its

Exemption 6 redactions except for any withholdings of realtors’ business contact information.

* * *

In sum, the Court will deny the Forest Service’s motion for summary judgment with

respect to the Exemption 5 withholdings but grant the motion for the Exemption 6 redactions—

with one caveat regarding realtors’ business contact information. Because COWPL did not

cross-move on the withholdings that the Service failed to justify, however, the Court cannot at

this time award COWPL summary judgment on this matter. The Court invites COWPL to file a

motion for summary judgment on these remaining redactions.

B. COWPL’s Cross Motion

Turning to the cross motion, COWPL contends that the Forest Service has an unlawful

policy and practice of withholding land exchange records until after the Service has officially

approved of the documents and finalized the land exchange, even though it often provides this

information to third-party proponents of these exchanges. The Forest Service mounts two

defenses in response. First, the Service contends that COWPL did not raise a policy-or-practice

claim in its complaint so the Court cannot entertain it at summary judgment. Second, it argues

that any such claim is now moot because the Forest Service has vitiated the policy that COWPL

24 challenges. Both defenses fail. COWPL adequately alleged a policy-or-practice claim, and that

claim is not mooted by the Service’s voluntary cessation because the Service cannot show that its

intervening actions “completely or irrevocably eradicated the effects of the alleged violation”

and that there is “no reasonable expectation that the alleged violation will recur.” Nat’l Black

Police Ass’n v. District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997) (citations omitted).

Advancing past these two defenses, the Forest Service lets its guard down by failing to defend its

still existing policies, and any effort to do so would be futile because these policies clearly

conflict with FOIA. The Court will thus grant COWPL’s cross motion and its request for a

declaratory judgment.

1. Pleadings

First, the Court rejects the Forest Service’s argument that it cannot consider COWPL’s

cross motion because COWPL did not allege a policy-or-practice claim in its complaint. Under

Federal Rule of Civil Procedure 8, a complaint must include “a short and plain statement of the

claim showing that the pleader is entitled to relief” and “a demand for the relief sought.” Fed. R.

Civ. P. 8(a)(2), (3). The purpose of this rule is to “give the defendant fair notice of what the . . .

claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (citation omitted). In the context of a FOIA policy-or-practice claim, the plaintiff “must

[plausibly] allege . . . that the agency has adopted, endorsed, or implemented some policy or

practice that constitutes an ongoing failure to abide by the terms of FOIA.” Muttitt, 926 F. Supp.

2d at 293 (cleaned up).

COWPL did exactly that in this case. Paragraph 19 of the complaint alleges:

Plaintiff has requested, and has definite plans to continue to request, property value information created or obtained by federal agencies when scrutinizing federal land exchanges. Plaintiff has been denied prompt access, based on agency policies that direct personnel to withhold information regarding property values

25 until after the NEPA process is complete, after administrative review is complete, and after final agency action is taken on a land exchange. All valuation information was created with the intention of sharing the agency records with non-federal persons early in the land exchange and NEPA processes. The federal agencies and personnel charged with overseeing land exchanges (Bureau of Land Management and U.S. Forest Service) have an unlawful policy of only sharing the valuation information with persons advocating for the land exchange, and denying access to Plaintiff and similarly situated persons. Plaintiff has been denied access to appraisals for federal land exchanges on multiple occasions.

Compl. ¶ 19. This paragraph includes all the elements necessary to allege a policy-or-practice

claim. First, it alleges that the Forest Service has a policy of withholding valuation materials

from FOIA requesters until after the land-exchange process is finalized even though it regularly

shares these materials with outside parties who support the exchanges. It further claims COWPL

has been denied access to appraisals on multiple occasions based on these policies and practices.

Additionally, to show it has standing to assert this claim and seek declaratory or injunctive relief,

COWPL alleges it has “definite plans to continue to request” this information in the future and

will thus continue to suffer harm due to these policies absent judicial intervention. Later in the

complaint when describing the statutory framework, COWPL calls out that “FOIA provides

statutory authority to refer this matter to the Special Counsel to investigate and make binding

recommendations to remedy an agency’s conduct and policies based on potentially arbitrary and

capricious circumstances surrounding the withholding of agency records.” Id. ¶ 40 (emphasis

added). And then in its claim for relief, COWPL reiterates that it “seeks remedy for its statutory

right to promptly access all agency records provided to non-agency third parties, particularly

those provided to Western Land Group, Inc. on October 26, 2020. That right was violated by

agency policies and practices designed to avoid FOIA disclosure of controversial land exchange

information.” Id. ¶ 86 (emphasis added). Together, these statements adequately allege a policy-

or-practice claim and provided the Service with sufficient notice that COWPL was challenging

26 not just its specific redactions to the produced documents but also the Forest Service’s broader

policies.

The Forest Service notes that COWPL’s complaint included only a single count entitled

“Violation of FOIA: Unlawfully [W]itholding Agency Records Responsive to FOIA Request.”

Forest Service Reply at 20. It therefore compares this case to Muttitt v. Department of State,

where the plaintiff “concede[d] that he did not state a separate cause of action for any policy or

practice,” and the court found that Rule 8 was not satisfied. 926 F. Supp. at 293. But while it

might have been preferrable if COWPL had broken out its claims, Rule 8 was meant to move us

beyond the rigidity of the common-law pleading system by enacting a notice standard under

which “pleadings are to be construed liberally so as to do justice.” 5 Charles A. Wright & Arthur

Miller, Federal Practice and Procedure § 1202 (4th ed. 2023); see also Fed. R. Civ. P. 8(e).

Refusing to entertain the policy-or-practice claim because COWPL consolidated its claims when

it otherwise provided sufficient notice and adequately stated a policy-or-practice claim would be

a reversion to the antediluvian days before the Field Code and the opposite of just. That sets this

case apart from Muttitt, where the only allegations in the complaint that even hinted at a policy-

or-practice claim were stray remarks in the prayer for relief asking the court to “[o]rder [the

defendants] to grant [the plaintiff] public interest fee waivers where appropriate,” and “[g]rant

such other relief as the Court may deem just and proper.” Id. at 293. The court in Muttitt rightly

recognized that “[p]ermitting the plaintiff to raise a policy-or-practice claim for the first time at

summary judgment based solely on vague language in his Prayer for Relief would run contrary

to Rule 8’s purpose.” Id. at 294. But the cryptic allusion buried in the prayer for relief in Muttitt

is a far cry from the concrete allegations in COWPL’s complaint.

27 A fair reading of COWPL’s complaint reveals that it adequately alleged a policy-or-

practice claim and placed the Forest Service on notice that it would have to defend its challenged

policies. This claim is therefore fair game for summary judgment.

2. Mootness

The Forest Service nonetheless insists that any such claim is now moot because it has

effectively vitiated the challenged policies. “Federal courts lack jurisdiction to decide moot

cases because their constitutional authority extends only to actual cases or controversies.” Iron

Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983). Even if a case presented a live case or

controversy when the plaintiff filed its complaint, an intervening event may render a claim moot.

See Leonard v. U.S. Dep’t of Def., 38 F. Supp. 3d 99, 104 (D.D.C. 2014). Yet, “[u]nlike some

jurisdictional questions such as standing or ripeness, the party asserting mootness . . . bears the

initial heavy burden of establishing that the case is moot.” Atlas Brew Works, LLC v. Barr, 391

F. Supp. 3d 6, 11 (D.D.C. 2019) (citation and quotation marks omitted). That heavy burden

carries over to cases where the intervening cause is the defendant’s “voluntary cessation” of the

challenged conduct. Nat’l Black Police Ass’n, 108 F.3d at 349; see also Payne, 837 F.2d at 491–

92 (describing the “heavy burden” of proving voluntary cessation). In such cases, the defendant

must prove that “(1) there is no reasonable expectation that the alleged violation will recur, and

(2) [the] interim relief or events have completely or irrevocably eradicated the effects of the

alleged violation.” Nat’l Black Police Ass’n, 108 F.3d at 349 (citation and quotation marks

omitted). The Forest Service has failed to satisfy that burden here because its intervening actions

have not entirely solved the policy problem or cured the plaintiff’s ongoing injuries.

In her second declaration, Ms. Scofield explains that the Forest Service is in the midst of

updating its Manual and Handbook regarding FOIA compliance. Second Scofield Decl. ¶ 2. She

28 states that the “Forest Service has finished drafting these revisions, and is currently in the process

of bringing them into compliance with Section 508 of the Rehabilitation Act of 1973 prior to

their final approval by senior agency leadership.” Id. Particularly relevant here, Scofield

informs us that the “revision of Section 5412 of the Manual, ‘Requests for appraisal or appraisal

information under Freedom of Information Act,’ will remove all language directing FOIA

processors to withhold [finalized] [a]ppraisals and related materials under Exemption 5 based on

the deliberative process privilege.” Id. ¶ 3. In the meantime, Scofield “instructed the FOIA

Coordinators” at a meeting in Washington in March 2022 that, “effective immediately, the Forest

Service will no longer withhold appraisals approved for agency use, or portions thereof, and

related materials under Exemption 5 based on the deliberative process privilege.” Id. ¶ 4. She

“further explained that even before an [a]ppraisal is approved for agency use, the Forest Service

cannot withhold, under Exemption 5 based on the deliberative process privilege, any materials

that have been shared with individuals or entities outside the Forest Service (other than the

appraiser).” Id. She told these FOIA Coordinators that “the proposed revisions to the Manual

and Handbook will reflect these changes, and that while these revisions remain pending, the

instructions [she] provided during the meeting supersede any inconsistent provision in the

current versions of the Manual and Handbook.” Id. Scofield then concludes by reassuring the

Court that “[n]either the Department of Agriculture nor more senior Forest Service officials have

overridden [her] decisions with respect to the policy at issue.” Id. ¶ 5.

The Forest Service asserts that this case is moot because “there [cannot] be any doubt as

to Ms. Scofield’s authority and competence to provide this assurance.” Forest Service Reply at

28. But greater assurance is required to deprive this Court of jurisdiction to consider the matter.

29 First, Ms. Scofield’s declaration makes clear the challenged policies have not yet been

revised and remain a part of the Forest Service Manual. The Service is thus asking the Court to

ignore the agency’s rule on the books and take Scofield’s conflicting word for it because no

higher ups at the agency have contradicted her. That critical fact distinguishes this case from

Porup v. CIA, 997 F.3d 1224 (D.C. Cir. 2021), on which the Service chiefly relies. In Porup, the

CIA initially refused to process the plaintiff’s request because it construed an executive order to

bar disclosure related to assassination conspiracy theories but reversed course when it “adopted a

new policy for processing requests of the sort submitted by Porup.” Id. at 198. The only CIA

policy on the matter was therefore the internal guidance stating that the agency could not

categorically refuse to process these types of requests. Under these conditions, the D.C. Circuit

upheld this Court’s determination that Porup’s policy-or-practice claim was moot. Id. at 201–03.

Here, by contrast, the only official policies are those that appear in the Forest Service Manual.

Mary Scofield does not purport to have the power to make or modify these official policies. Nor

could she. Ms. Scofield is not the Department of Agriculture’s Chief FOIA Officer. See 5

U.S.C. § 552(j)(1) (“Each agency shall designate a Chief FOIA Officer who shall be a senior

official of such agency[.]”). And even if she were, her recommendations would still be “subject

to the authority of the head of the agency.” Id. § 552(j)(2)(C). The Forest Service instead relies

on Scofield’s assertion that these more senior officials at the agency have not “overridden [her]

decisions with respect to the policy at issue.” Second Scofield Decl. ¶ 5. Yet the fact that she

has not been overruled does not transform her verbal statements into official agency policy. And

the D.C. Circuit held in Payne Enterprises, Inc. v. United States that statements made by lower-

level officials who cannot bind the agency cannot moot a case. 837 F.2d at 492; see also Porup,

997 F.3d at 1233 (“[T]he court [in Payne] rejected an affidavit offered by the government to

30 support its claim that the contested practice in that case had been voluntarily terminated . . .

[because] the disputed affidavit did not purport to speak for the affiant’s superiors in the agency,

nor did it pledge future compliance by agency officials who were authorized to offer such an

assurance.”). The Court credits the Service’s ongoing efforts to bring its policies in line with

FOIA. But the proper manner to change the Service’s policies is by revising its Manual. The

Service may be in the process of rewriting the Manual’s challenged rules, but this case is not

moot until suitable revisions are actually enacted.

Second, while the Court has no reason to question Ms. Scofield’s description of her

instructions to the Service’s FOIA staff, the record casts serious doubt on their effectiveness.

Forest Service officials appear to have continued to withhold requested records from COWPL

for months after her March 2022 directive because the exchange was not finalized even though

the Service had shared much of this material with outside entities, such as the Western Land

Group. See COWPL Reply at 6–9. When officials are carrying on and continuing to apply the

rules written into the Handbook, the Court cannot conclude that Scofield’s directives have

irrevocably eradicated COWPL’s injury and that there is no reasonable expectation that the

alleged violation will recur.

Finally, even if Scofield’s statement somehow amended the Forest Service’s policies, it

would still not bring the Service into compliance with FOIA because her directive reiterates the

Manual’s requirement that officials withhold valuation documents until they are “approved for

agency use.” Second Scofield Decl. ¶ 4. But there is no blanket FOIA exemption for draft

materials that have not been approved by the agency, and the Service cannot layer additional

restrictions on top of the law. Essentially the Service is treating all draft appraisals as if they fall

under Exemption 5. Although it may be true that “a draft document will typically be

31 predecisional because . . . it is not yet final,” Sierra Club, 141 S. Ct. at 788, the D.C. Circuit has

squarely rejected the view that all material found in drafts is walled off from disclosure by the

deliberative process privilege. In Arthur Anderson, the circuit held that its prior decision in

“Coastal States foreclose[d] the . . . argument that any document identified as a ‘draft’ is per se

exempt. Even if a document is a ‘draft of what will become a final document,’” the court

insisted that we “must also ascertain ‘whether the document is deliberative in nature.’” 679 F.2d

at 257 (quoting Coastal States, 617 F.2d at 866). The Circuit doubled down on this position

recently when writing that, if there were “any doubt that drafts are not automatically exempt

under the deliberative process privilege, [the Circuit] dispelled it last term in Reporters

Committee for Freedom of the Press v. FBI, where the government ‘failed to identify any

deliberative component’ to draft PowerPoint slides.” Jud. Watch, Inc., 20 F.4th at 55–56

(quoting Reps. Comm., 3 F.4th at 367). These statements apply with equal force to draft

appraisals, as evidenced by the Exemption 5 analysis above. The Forest Service is required to

release all responsive appraisal documents—even if those documents have not been officially

blessed by the agency—unless it can show that the requested information falls within an

exemption and that releasing the material would cause foreseeable harm. While some material in

draft appraisals may satisfy this statutory test, the Service is required to perform this analysis for

each document and then produce all reasonably segregable, non-exempt information. See 5

U.S.C. § 552(a)(8)(A)(ii)(I), (b). Applying a blanket restriction over an entire category of

“draft” documents clearly conflicts with this more tailored approach, reinforcing the fact that

COWPL’s policy-or-practice claim is not moot.

32 3. Merits

On the merits, the Forest Service wisely does not try to defend its (still-existent) policies

and practices. The Service is not permitted to withhold records because a land exchange has not

been finalized, especially when it has already released these documents to outside parties. Nor

can the Service categorically refuse to release any documents that it has not officially approved

for agency use. Instead, the Service in each case must apply FOIA’s rules to determine whether

the information falls within a statutory exemption, whether it has waived the exemption through

prior disclosures, whether releasing the information will cause harm, and whether there is a way

to reasonably segregate and release all non-exempt information.

4. Remedy

As to the remedy, COWPL primarily seeks declaratory relief stating that the challenged

policies violate FOIA, which the Court has provided through this decision. COWPL also asks

this Court to refer the matter to a Special Counsel under 5 U.S.C. § 552(a)(4)(F) for additional

investigation and recommendations to remedy the Forest Service’s violations. The Court does

not believe such referral is appropriate in this case because it is confident that the Forest Service

will act to bring its policies into compliance with FOIA, as interpreted in this opinion.

33 IV. Conclusion

For these reasons, it is hereby

ORDERED that [Dkt. No. 26] Defendant’s Motion for Summary Judgment is

GRANTED in part and DENIED in part. It is further

ORDERED that [Dkt. No. 30] Plaintiff’s Cross Motion for Summary Judgment is

GRANTED.

SO ORDERED.

CHRISTOPHER R. COOPER United States District Judge

Date: September 11, 2023