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Ith v. United States Forest Service

June 12, 2009

MARKETA ITH, PLAINTIFF,
v.
UNITED STATES FOREST SERVICE, AN AGENCY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, DEFENDANT.



The opinion of the court was delivered by: John W. Sedwick United States District Judge

ORDER AND OPINION

[Re: Motion at Docket 21]

I. MOTION PRESENTED

At docket 21, plaintiff Marketa Ith requests the court to require defendant United States Forest Service ("Forest Service") to certify by affidavit that all documents responsive to plaintiff's Freedom of Information Act request have either been produced or placed on the privilege log and that the Forest Service has produced all documents from the privilege log requested by plaintiff. At docket 24, defendant Forest Service opposes the motion. Plaintiff Ith replies at docket 25. Oral argument was not requested, and it would not assist the court.

II. BACKGROUND

This action involves Ms. Ith's request that the Forest Service produce certain documents pursuant to her request under the Freedom of Information Act ("FOIA"). FOIA provides in pertinent part that "each agency, upon any request for records which (I) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person."*fn1

By letter dated July 28, 2008, Dennis Bschor, Regional Forrester, informed Ms. Ith that in addition to previously produced documents, the Forest Service had identified 318 documents within the scope of her request, 41 of which were withheld in part and 153 were withheld in their entirety.*fn2 On August 15, 2008, Ms. Ith appealed the Regional Forester's decision to withhold parts of 41 documents and all of 153 documents.*fn3 On January 8, 2009, the Forest Service released most of the documents identified in Ith's appeal, withholding four documents pending further review.*fn4 Ms. Ith subsequently requested production of the four withheld documents.*fn5 The Forest Service purported to produce the additional documents on March 12, 2009.*fn6 Upon discovering that the Forest Service had not in fact produced all of the documents in their entirety, Ms. Ith examined whether additional documents which were designated as produced on the Forest Service's privilege log had actually been produced, and found that several documents identified as produced had not been produced.*fn7 Ms. Ith requested production of the additional documents.*fn8 The Forest Service again purported to produce all of the requested documents, but failed to produce all of the documents in their entirety. On March 25, 2009, Ms. Ith requested the Forest Service to produce the last withheld documents, as well as an "Office of Ethics Assessment" which was referenced in another document and was responsive to her FOIA request but had not been produced nor placed on the privilege log.*fn9

On March 26, 2009, Ms. Ith's counsel requested the Forest Service for the certification that is the subject of this motion.*fn10 On April 22, 2009, counsel for the Forest Service responded that the agency was working on a declaration.*fn11 To date, no declaration has been filed.

On April 24, 2009, Ms. Ith filed a motion requesting the court to order the Forest Service to certify that it has identified all responsive documents and produced all documents requested by Ms. Ith. In support of her motion, Ms. Ith filed several e-mails authored by a Forest Service employee, which were originally withheld as privileged but later produced after Ms. Ith's requests. In the e-mails, the Forest Service employee advises the recipients to destroy the e-mails as well as certain other documents because they are subject to discovery.*fn12

On May 18, 2009, the parties filed a joint status report, representing that "[a]ll that remains in the case is for the Court to decide Plaintiff's pending motion to require Defendant to certify that it has identified all responsive documents and produced all documents requested by plaintiff. . . . Once the Court resolves the motion and parties comply with it, the case will be ready for judgment/dismissal."*fn13

III. DISCUSSION

Ms. Ith requests the Forest Service to certify that it has identified all documents responsive to her FOIA request and produced all previously withheld documents.*fn14

Ms. Ith requests the certification on the grounds that 1) recently disclosed but previously withheld documents contained statements by a Forest Service employee "about the importance of 'destroying' documents so that they will not be discovered in litigation;"*fn15 2) the Forest Service produced the withheld documents only after Ms. Ith's counsel reviewed the Forest Service's productions against its index of previously withheld documents and determined that their production was still incomplete; and, 3) one of the previously withheld documents referred to another document that had neither been produced nor placed on a privilege log although it was responsive to Ms. Ith's FOIA request. Ms. Ith argues that the above events have "raised legitimate doubt about other responsive documents that might exist that were neither produced nor placed on a privilege log."*fn16

The Forest Service opposes the motion on the grounds that 1) the Forest Service made a good faith effort to respond to Ms. Ith's FOIA request and has produced the documents listed in her FOIA appeal; 2) the agency's search for documents was adequate; and, 3) the Forest Service "is working on a declaration regarding the nature and adequacy of the search in response to Plaintiff's FOIA request."*fn17 The Forest Service ...


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