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Judge Tells Fisheries Service to Open Up

SAN FRANCISCO (CN) - A federal judge agrees with environmental groups that claim the National Marine Fisheries Service has a "pattern and practice" of delaying responses to Freedom of Information Act requests.

U.S. District Judge Samuel Conti on Monday granted Our Children's Earth Foundation and the Ecological Rights Foundation partial summary judgment against the National Marine Fisheries Service.

The groups say the agency routinely drags its feet in producing requested documents, sometimes months after statutory deadlines mandated by Congress.

The lawsuit was filed in connection with a pending case before Magistrate Judge Elizabeth Laporte, which challenges the Fisheries Service's biological opinion issued to the Army Corps of Engineers, assessing the impact of planned upgrades to two water diversion facilities used by Stanford University as nonpotable water sources.

The groups seek to enjoin the university's "activities" associated with the "Lake Water System" because it adversely affects crucial spawning habitat for the endangered Central California Coast steelhead.

Stanford University is not a party in the lawsuit.

Conti said the request for documents tied in the case were not produced in a timely matter, which has become a habit for the Fisheries Service across the board.

"Here, both the statutory deadlines and their violation are clear, and the repeated, routine violation of these deadlines by agencies has been a continual source of concern for Congress," Conti said in the 28-page order. "Although the court and many others have recognized that agencies' resources are heavily taxed by the quantity and depth of FOIA requests, that does not grant the agency carte blanche to repeatedly violate congressionally mandated deadlines."

The Fisheries Service filed a cross-motion for summary judgment relating, in part, to document redactions, citing exemptions under the Freedom of Information Act.

Conti said those issues would be held in "abeyance" until the agency produces more information to supplement the record.

The plaintiffs also sought summary judgment against the Fish and Wildlife Service for failing to meet statutory time limits in processing "potentially relevant" documents on referral from the Fisheries Service, which is governed by the Department of Commerce's regulations for FOIA referrals.

Fish and Wildlife, arguing in opposition, cited the regulation's language that states that the referred agency must produce the requested documents using "all practicable speed," interpreting it to mean that FOIA statutory timelines don't apply to referrals for consultation between agencies.

Conti said that while the argument is novel, his decision to deny the plaintiffs' motion against the Fish and Wildlife Service is based on other factors.

"Unlike the Fisheries Service, there is no allegation that FWS repeatedly violated the FOIA's time limits with respect to plaintiffs' request," Conti wrote. "Furthermore, FWS is not named as a defendant in the related case, and there is no indication that plaintiffs have made repeated FOIA requests to FWS or that any violations of the FOIA's time limits are likely to recur with respect to plaintiffs."

He added that, "because plaintiffs do not appear to challenge any of the Fish and Wildlife Service's withholdings or redactions under the FOIA, summary judgment is granted in the Service's favor on those issues."

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