Bison Trophy Supporters Stumble in FOIA Action

     WASHINGTON (CN) – The U.S. government need not provide unredacted documents as to why it barred the importation of Canadian bison carcasses, a federal judge ruled.
     It has been 14 years since Conservation Force first teamed up with a group of hunters seeking import permits to bring Canadian wood bison hunting trophies into the United States, U.S. District Judge Ketanji Brown Jackson said.
     After U.S. Fish and Wildlife Service mooted the first action by finally denying the applications it had sat on for years, Conservation Force subsequently persuaded a court that the agency failed to state a “satisfactory explanation” for its permit denials.
     The denials were apparently prompted by a governmental adviser’s policy-based disagreement with any decision to issue the permits, but that rationale was redacted from the record on the grounds of attorney-client privilege.
     Conservation Force filed a 2012 request for agency records under the Freedom of Information Act, and the government produced 1,026 of redacted responsive documents, followed by a second set of 577 partially redacted pages.
     In a March 2013 motion for summary judgment, the government said its “withholding of certain documents in their entirety and its redaction of portions of other documents are supported by appropriate exemptions.”
     Conservation Force fired back, demanding more information as to why the agency withheld information, and claiming that the redactions contained nonexempt records that would reveal the hidden reasons for the permit denials.
     At issue are two of nine exemptions in FOIA law; Exemption 5 protects attorney-client privilege, while Exemption 6 protects medical files.
     Though Conservation Force claimed that the government’s explanations as to why it withheld the documents fell “woefully short,” Judge Jackson shot the group down Tuesday as to the documents protected by attorney-client privilege.
     “Although plaintiff contends that the attorney-client privilege entries in the index fail to distinguish between emails that an attorney wrote to the client and those that the client wrote to the attorney, the attorney-client privilege shields communications from both sides of the relations,” Jackson said.
     Conservation Force’s claim that the government is using this privilege to conceal its “political” reasons failed to sway the judge.
     “Plaintiff has failed to prove that any crime or fraud was committed here, let alone that the communications at issue were made with an intent to further the unlawful act,” Jackson wrote.
     The Exemption 5 redactions were less successful, however, with Jackson noting that the government has not “sufficiently justified” its reliance on the deliberative-process privilege of the work-product doctrine.
     The government also tried to hide behind the notion that the documents in question were in draft form and therefore not subject to disclosure.
     But simply noting that something is a “draft” does not protect it from disclosure, Jackson said, citing D.C. Circuit precedent “that simply designating a document as a ‘draft’ does not automatically make it privileged under the deliberative process privilege.”
     “A document that does not reflect the genuine evolution of an agency’s decision-making process and instead merely recites ‘factual information which does not bear on policy formation … is not entitled to protection under the deliberative process privilege,” Jackson added.
     The government failed to show that the so-called “draft” documents express the “ideas and theories which go into the making of the law” rather than “the law itself,” Jackson wrote.
     “Nor do defendants submissions clarify whether the redacted drafts merely summarized factual matters relevant to an agency decision or where the type of documents related to the ‘formulation or exercise of agency policy-oriented judgment’ that the privilege properly protects,” Jackson added.
     “And without providing the type of information described above, defendants have yet to carry their burden of convincing this court that the designated redactions are entitled to protection under exemption 5 on the basis of deliberative process privilege,” Jackson wrote.
     Also at issue is the role of the documents’ author in the decision-making process, and what the effect of that process was.
     “Not a single entry in defendant’s explanation provides sufficient detail as to the identities, positions and job duties of any of the authors or recipients of the withheld documents,” Jackson wrote. “Consequently, this court cannot properly determine whether the deliberative process privilege applies.”
     The Department of Interior has 30 days to provide more details as to its redactions.

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