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  • NEW CHANGES>>>
  • General Membership Meetings  Second Thursday of the month
    November, January and March
  • 7:00pm
  • Lord of The Seas Lutheran Church
    1250 Key Deer Blvd. Big Pine Key
  • Annual Meeting for Elections of Officers & Advisors held in January

Update from KDPA Meeting; for the entire documents email: lindahall@visi.com

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FOIA Appeal to USFWS;

August 16, 2018

BY E-MAIL

Freedom of Information Act Appeals Officer

U.S. Department of the Interior

Office of the Solicitor

1849 C Street, NW, Mail Stop 6556

Washington, D.C. 20240

Email: FOIA.Appeals@sol.doi.gov

Re: Freedom of Information Act Appeal (FWS/R4/RF/2017-00946)

Dear Sir or Madam,

On behalf of Last Stand and the Key Deer Protection Alliance, I am writing to appeal the partial denial of a Freedom of Information Act (“FOIA”) request made on June 17, 2017 to the United States Fish and Wildlife Service (“FWS”) for documents pertaining to National Key Deer Refuge. In particular, Last Stand and the Key Deer Protection Alliance appeal (1) the determination that two records comprising approximately 221 pages are exempt in their entirety from disclosure under Exemption 5 of FOIA, 5 U.S.C. §§ 552(b)(5), and (2) the failure to release any “reasonably segregable” portions of records for which exemptions are claimed, as required by 5 U.S.C. § 552(b). Last Stand and Key Deer Protection Alliance also challenge the adequacy of the agency’s search because FWS provided neither permits nor National Environmental Policy Act (“NEPA”) documentation for the mechanical vegetation thinning work in the National Key Deer Refuge in response to the June 17, 2018 request.

This appeal is submitted pursuant to 43 C.F.R. § 2.57. We expect a determination of this appeal within 20 days (excepting Saturdays, Sundays, and legal public holidays), as provided by statute and regulation, 5 U.S.C. § 552(a)(6)(A)(ii) and 43 C.F. R. § 2.62. We have attached copies of the following documents to this letter in chronological order:

• our initial June 17, 2017, FOIA request to Tiffany McClurkin, FWS FOIA Coordinator (Attachment A);

• a follow up letter to Vicki Mott, of the United States Department of the Interior on March 14, 2018 (Attachment B);

• an email chain between Tiffany McClurkin and Jason Totoiu of the Everglades Law Center culminating in a March 21, 2018 email indicating that an initial partial release of documents had been sent by Federal Express (Attachment C);

• an April 5, 2018 email from Tiffany McClurkin indicating that a second partial release had been sent via Federal Express and

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• our initial June 17, 2017, FOIA request to Tiffany McClurkin, FWS FOIA Coordinator (Attachment A);

• a follow up letter to Vicki Mott, of the United States Department of the Interior on March 14, 2018 (Attachment B);

• an email chain between Tiffany McClurkin and Jason Totoiu of the Everglades Law Center culminating in a March 21, 2018 email indicating that an initial partial release of documents had been sent by Federal Express (Attachment C);

• an April 5, 2018 email from Tiffany McClurkin indicating that a second partial release had been sent via Federal Express and that additional potentially responsive documents “currently being routed through the proper channels for review” (Attachment D); and

• the FWS’s May 25, 2018 letter “complet[ing]” its response to our request and withholding two documents pursuant to FOIA Exemption 5 (Attachment E).

I. Background: June 17, 2017 FOIA Request and the Response of FWS

On June 17, 2017, Last Stand and the Key Deer Protection Alliance requested that FWS provide, pursuant to FOIA:

• any and all draft and/or final “step down management plans” prepared pursuant to the National Wildlife Refuge System Improvement Act (“NWRSIA”) for the National Key Deer Refuge, including but not limited to any draft and/or final habitat management plans;

• any and all records related to the Bartram’s Scrub-Hairstreak Butterfly/Pineland Croton Project on Big Pine Key, Florida within the National Key Deer Refuge, specifically including, but not limited to:

• any and all surveys and/or monitoring data for the Bartram’s Scrub Hairstreak within the National Key Deer Refuge. This includes any baseline population studies, counts, or surveys that were performed prior to this project as well as any monitoring data collected during and after the project;

• any and all draft and/or final categorical exclusions, environmental assessments, environmental impact statements, and/or any other documents prepared pursuant to the NEPA for this project;

• any and all draft and/or final biological evaluations, biological assessments, biological opinions, and/or any other documents prepared pursuant to Section 7 of the Endangered Species Act for this project; and

• any and all draft and/or final compatibility determinations for this project pursuant to the NWRSIA.

FWS provided two partial releases of documents to Last Stand and the Key Deer Protection Alliance by Federal Express in late March and early April 2018. In an April 5, 2018 email indicating that the second partial release had been sent via Federal Express, FWS noted that additional potentially responsive documents were “currently being routed through the proper channels for review.” On May 25, 2018, FWS sent a letter “complet[ing]” its response to the June 17, 2017 FOIA request and stating that the Southeast Regional Office had located two additional documents comprising 221 pages. However, FWS claimed both documents –

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unnamed and undescribed – were exempt from disclosure in their entirety under pursuant to Exemption 5 of FOIA. Specifically, the FWS stated (on page 1 of its May 25, 2018 letter) that, “[t]he information redacted pursuant to Exemption 5 includes privileged information involving discussions on matters of policy between subordinates and superiors and were used to guide the Agency in the decision making process.”

II. The FWS’s Assertion of FOIA Exemption 5 is Overbroad.

FWS’s May 25, 2018 letter fails to specify in any way what precisely the two documents being withheld in their entirety are – even in broad categories (e.g., memoranda between employees or consultants, emails with attachments, draft reports). This makes it extremely difficult to determine the propriety of the asserted exemption with respect to the documents and does not satisfy the agency’s obligation to demonstrate the applicability of the claimed exemptions to particular documents. Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973).

FOIA Exemption 5 applies only to intra-agency and interagency records. 5 U.S.C. § 552(b)(5). Communications to and from parties outside the government are not inter-agency or intra-agency documents and must be disclosed. Department of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 12 (2001). FWS has failed to demonstrate that each of the withheld documents is actually an intra- or inter-agency record, including whether any of the documents developed within the agency and/or exchanged among sister agencies was also copied to any other party. Any records circulated beyond an “agency” would likely be ineligible for Exemption 5. See id. Moreover, the deliberative process privilege “must be construed as narrowly as is consistent with efficient government operation.” Army Times Pub. Co., 998 F.2d 1067, 1069 (D.C. Cir. 1993) (citing Wolfe v. HHS, 839 F.2d 768, 773 (D.C. Cir. 1988)). EPA may not invoke the deliberative process privilege unless it can demonstrate both that the documents are “pre-decisional” – i.e., that the materials were “generated before the adoption of an agency policy” – and also “deliberative” – i.e., that they “reflect the give-and-take of the consultative process.” Tax Analysts v. Internal Revenue Service, 117 F.3d 607, 616 (D.C. Cir. 1997) (quoting Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). FWS has failed to meet its burden to demonstrate that each of the withheld documents is actually pre-decisional and deliberative – reflecting the give-and-take of the consultative process. See Coastal States, 617 F.2d at 866 (citing Vaughn v. Rosen, 523 F.2d 1136, 1146 (D.C. Cir. 1975) (burden is on agency)).

At the very least, FWS must individually list the two documents withheld in connection with its ruling on this appeal to demonstrate the applicability of Exemption 5. See Vaughn v. Rosen, 484 F.2d 820; King v. Department of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987) (holding that to demonstrate a record may be withheld, agency must provide “a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply”) (internal quotation omitted).

III. FWS’s Failure to Release Reasonably Segregable Portions of Records it Deems Exempt Violates FOIA.

The FWS has violated the clear, unambiguous, and unqualified statutory requirement to release any “reasonably segregable,” non-exempt portions of records that contain other, exempt material.

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5 U.S.C. § 552(b). According to FWS regulations, FWS will “segregat[e] and releas[e] . . . nonexempt information, unless the nonexempt material is so intertwined with the exempt material that disclosure of it would leave only meaningless words and phrases.” 43 C.F.R. §2.25. However, FWS’s May 25, 2018 letter does not state whether it made any attempt to determine whether there are any reasonably segregable, non-exempt portions of any of the records being withheld. In one sentence (on page 1 of the May 25, 2018 letter) it says that “documents” are being withheld, but in the next it refers only to “information redacted,” suggesting that portions of the withheld documents may be “reasonably segregable.”

We note that it is very likely that such reasonably segregable portions of records do exist. For example, internal memoranda or communications between FWS and other agencies or outside technical consultants are likely to include substantial non-deliberative technical materials. These would include technical analyses of raw data, or records otherwise representing the objective application of scientific techniques or reasoning to a particular issue, which are essentially factual in nature and do not reflect any internal decision making processes. See Assembly of California v. United States Department of Commerce, 968 F.2d 916 (9th Cir.1992) (holding that “adjusted” data from 1990 Census did not fall within the deliberative privilege exception in Exemption 5 because, inter alia, they were not “deliberative” in nature, but, rather, factual); see also Petroleum Information Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1435 (D.C.Cir.1992) (holding that objective acreage estimates based on manipulation of raw data were not protected under the deliberative process privilege). Even if a document is pre-decisional, courts have upheld a distinction between “materials reflecting deliberative or policy-making process on the one hand, and purely factual, investigative matters on the other,” confirming that the exemption protects the former, not the latter. See EPA v. Mink, 410 U.S. 73, 89-91 (1973), superseded by statute on other grounds, 5 U.S.C. § 552(b)(1). Those portions of a document which are not exempt must be disclosed unless they are “inextricably intertwined” with the exempt portions. Ryan v. Dept. of Justice, 617 F. 2d 781, 790-91 (D.C. Cir. 1980); Vaughn v. Rosen, 484 F.2d at 825 (“an entire document is not exempt merely because an isolated portion need not be disclosed”)(citing EPA v. Mink, 410 U.S. at 93).

IV. The Search Appears to Have Been Inadequate

Last Stand and Key Deer Protection Alliance also challenge the adequacy of FWS’s search in response to the June 17, 2018 FOIA request. See Oglesby v. U.S. Dep’t. of Army, 920 F.2d 57, 67-68 (D.C. Cir. 1990), overruled in part on other grounds, 79 F.3d 1172 (D.C. Cir. 1996). Although page 2 of one document released in response to the June 17, 2017 request – the 2016 Cooperative Recovery Initiative Annual Report for the Bartram’s Hairstreak Project in the National Key Deer Refuge (Attachment F) – stated that “[c]oordination, permitting, compliance was completed prior to implementation of mechanical vegetation thinning treatments on 46 acres during August-September 2015,” no permits, NEPA compliance documents (for example, a categorical exemption worksheet), or NWRSIA compatibility determinations for the mechanical vegetation thinning in the National Key Deer Refuge were provided. The FWS’s National Refuge Handbook (Attachment G) outlines the general rules and policies that govern the agency’s compliance with NEPA with regard to activities in national refuges.

V. Conclusion

We respectfully request a prompt resolution to this appeal, in the interests of a full and fair opportunity for public participation in decision making regarding ongoing clearing of globally

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critically imperiled pine rockland habitat in the National Key Deer Refuge. Please contact me at (718) 809-3126 or ansley@evergladeslaw.org if I can provide any further information that would be of use in adjudicating this appeal.

Sincerely,

S. Ansley Samson


URGENT ALERT: on Key Deer Delisting Plans

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HELP  SAVE  the  KEY  DEER  and  BIG  PINE  KEY !

Attend a Public Meeting About Changes in Federal Regulations

When:  THIS Thursday, August 22, 6:00 p.m.  

Where: Marathon Government Center (EOC), 2nd floor

2798 Overseas Highway, Bayside

Why:  U.S. Fish & Wildlife Service (FWS) is discussing the removal of the 

Key deer from the Endangered Species list

Background:

  • The Key deer are still very much in danger of extinction.  
  • Key deer researchers estimate less than 600 deer survive today.
  • Weakened Federal regulations will lead to more growth and development on Big Pine Key and increased habitat loss for the Key deer.

There will be a FWS presentation, after which we will be able to ask questions.  

Numbers Count!    Be There!    You Can Make a Difference!  

Key Deer Protection Alliance

www.keydeer.org

 


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