Center for Biological Diversity v. Office of United States Trade Representative

FILED

NOT FOR PUBLICATION SEP 16 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

CENTER FOR BIOLOGICAL No. 10-35102

DIVERSITY; CONSERVATION

NORTHWEST, non-profit corporations, D.C. No. 2:07-cv-01979-RAJ

Plaintiffs - Appellants,

MEMORANDUM *

v.

OFFICE OF THE UNITED STATES

TRADE REPRESENTATIVE,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Argued and Submitted November 2, 2010 Seattle, Washington

Before: B. FLETCHER, FERNANDEZ, and BYBEE, Circuit Judges.

In this action under the Freedom of Information Act ('FOIA'), 5 U.S.C.

y 552 et seq., plaintiff-appellant Center for Biological Diversity ('CBD') appeals

the district court's grant of summary judgment to defendant-appellee Office of the

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. United States Trade Representative ('USTR'). CBD sought information…

MEMORANDUM *

In this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 *607 et seq., plaintiff-appellant Center for Biological Diversity (“CBD”) appeals the district court’s grant of summary judgment to defendant-appellee Office of the United States Trade Representative (“USTR”). CBD sought information regarding the Softwood Lumber Agreement (“SLA”) between the United States and Canada, particularly details of the distribution of the so-called “meritorious initiatives” funding. CBD challenges the district court’s holding that the USTR conducted an adequate search for documents responsive to CBD’s FOIA request, see id. § 552(a)(3)(C); its determination that certain records were properly withheld under Exemptions 5 and 6, see id. § 552(b)(5) & (6); and its refusal of CBD’s request to conduct further discovery.

We employ a two-step test in reviewing summary judgment in a FOIA case. See Elec. Frontier Found, v. Dir. Nat’l Intelligence, 639 F.3d 876, 883 (9th Cir.2010). We first review de novo “whether the district court had an adequate factual basis for its decision.” Lion Raisins Inc. v. U.S. Dep’t of Agric., 354 F.3d 1072, 1078 (9th Cir.2004) (citations…

concurring in part and dissenting in part:

I concur in parts two and three of the memorandum disposition. For the reasons below, I respectfully dissent from part one.

An agency in receipt of a FOIA request must “demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents.” Lahr v. NTSB, 569 F.3d 964, 986 (9th Cir.2009) (quoting Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir.1985)) (internal quotation marks omitted). The agency may meet its burden with “reasonably detailed, nonconclusory *610 affidavits submitted in good faith.” Id. In evaluating the adequacy of the search, we must bear in mind that the issue “is not whether there might exist any other documents possibly responsive to the [FOIA] request, but rather whether the search for those documents was adequate.” Id. at 987.

The memorandum disposition faults USTR for limiting the search to documents generated from June 2006 until January 2007. Mem. Dispo. at 607-08 & n. 1. But as I read the record, the only search that was actually limited to this timeframe was the search of the backup email files stored at the Office of Administration for the Executive Office of the President (“OA”), and…