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NOT FOR PUBLICATION SEP 16 2011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 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. y

552(a)(3)(C); its determination that certain records were properly withheld under

Exemptions 5 and 6, see id. y 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 omitted). If the district court's decision had an

adequate factual basis, we proceed to step two, where 'we review the district

court's [findings] of fact for clear error, while legal rulings, including [the district

court's] decision that a particular exemption applies, are reviewed de novo.' Elec.

Frontier Found., 639 F.3d at 883 (quotation marµs and citations omitted).

Page 2 of 8 Because the district court applied the wrong legal standards and neglected to

engage in the correct legal analyses in its summary judgment orders, we vacate

those orders and remand for further proceedings.

1. The district court erred in holding that the record before it

demonstrated that the USTR had conducted an adequate search for records

responsive to the FOIA request. CBD's request asµed for all records 'related to

the USTR's implementation' of the 'meritorious initiatives' program. The

settlement agreement that created the 'meritorious initiatives' program was

reached in April 2006. Yet, as the USTR concedes, the time frame of its search for

responsive records began in June 2006. We reject the USTR's contention that it

was justified in limiting its search to this time period because 'detailed discussion

of implementation issues' did not occur until June 2006.

CBD's duty under the FOIA is to conduct a search reasonably calculated to

uncover all relevant documents. See 5 U.S.C. y 552(a)(3)(C)-(D) (requiring

agencies to conduct a search reasonably calculated to uncover all records

responsive to the request). Relevance is measured with respect to which records

were requested. Restricting the search for documents to that time period in which

'detailed discussion of implementation issues' occurred is simply not warranted by

CBD's request, which asµed for all records related to the implementation of the

Page 3 of 8 program. Based on the record before us, it is reasonably liµely that records

responsive to CBD's request were generated as early as April or May of 2006; by

failing to search for records during that time period, therefore, the USTR did not

conduct an adequate search.1

Probably a more important point is that none of the USTR's declarations or

Vaughn indices provide specific information regarding what files were searched,

what search terms were used, why further searches are unliµely to produce

additional records, or why additional searches are impractical. We have explained

that '[i]n camera review of the withheld documents by the court is not an

acceptable substitute for an adequate Vaughn index,' for such review 'does not

permit effective advocacy.' Wiener v. FBI, 943 F.2d 972, 979 (9th Cir. 1991)

(citations omitted). 'Therefore, resort to in camera review is appropriate only after

the government has submitted as detailed public affidavits and testimony as

possible.' Id. (quotation marµs and citation omitted). Agency affidavits that do

1 We acµnowledge that the USTR contends that it 're-reviewed the files that it had initially gathered (including email messages from Mr. Mendenhall's computer), which were not limited to the period June 2006-January 2007.' But this statement is ambiguous. On the one hand, the USTR has asserted that the responsive records it 'initially gathered' did not encompass April or May of 2006; yet on the other hand, the statement quoted above suggests that at least some of the materials initially gathered 'were not limited' to the period beginning with June 2006. This ambiguity suggests that the USTR failed to carry its burden on summary judgment of proving that it conducted a sufficient search.

Page 4 of 8 not establish which files were searched and by whom, or which do not provide

specific information adequate to enable the FOIA requestor to challenge the

procedures utilized, are inadequate to permit the federal courts to fulfill the

statutory duty to review the agency's action de novo. See 5 U.S.C. y 552(a)(4)(B);

Lahr v. Nat'l Transp. Safety Bd., 569 F.3d 964, 989 (9th Cir. 2009). On remand,

the USTR must supplement the record with affidavits that meet these criteria

before the district court can determine whether the search was adequate.2

2. The district court also lacµed an adequate factual basis to rule on the

propriety of the USTR's withholding of certain documents under Exemption 5.

That exemption permits agencies to withhold 'inter-agency or intra-agency

memorandums or letters' that qualify for the attorney-client, attorney worµ-

product, and/or deliberative process privileges. 5 U.S.C. y 552(b)(5); see also,

e.g., Maricopa Audobon Soc'y v. U.S. Forest Serv., 108 F.3d 1089, 1092-93 (9th

Cir. 1997). The threshold question with the application of any privilege under

Exemption 5 is whether the records are 'inter-agency or intra-agency.' 5 U.S.C.

y 552(b)(5); Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532

U.S. 1, 12 (2001) ('Klamath'). If a document is neither inter- nor intra-agency,

2 The district court's conclusion that further discovery is unwarranted is, therefore, premature. The court must reconsider this issue after having conducted the correct legal analysis on remand.

Page 5 of 8 then an agency may not withhold it, regardless of whether or not it reflects the

deliberative process of the agency, attorney worµ product, or is an attorney-client

communication. See Klamath, 532 U.S. at 12.

Many of the records at issue here are communications between government

officials and private third parties. This fact alone suggests they do not meet

Exemption 5's threshold requirement. See id. Under the so-called 'consultant

corollary,' however, an agency can invoµe Exemption 5 with regard to records of

communications with a third party if that private individual was acting 'just as a[]

[government] employee would be expected to do'--meaning that she was not

'represent[ing] an interest of [her] own, or the interest of any other client, when

[she] advise[d] the agency that hire[d] [her],' and that her 'only obligations [were]

to truth and [her] sense of what good judgment calls for.' Id. at 11. If, on the

other hand, the consultant was 'an interested party seeµing a Government benefit

at the expense of other applicants,' id. at 12 n.4, Exemption 5 is wholly

inapplicable.

Here, the district court failed to consider Exemption 5's threshold inquiry. It

stated, instead, that because: (a) the communications furthered the government's

deliberations; and (b) the individuals were 'consulted in confidence,' Exemption 5

applied. This was error. While the first factor is a necessary condition to the

Page 6 of 8 application of the deliberative process privilege, and the second factor may be

relevant to a claim of attorney-client privilege, neither is relevant to the threshold

question of whether Exemption 5 applies at all--that is, whether the records are

inter- or intra-agency. See Klamath, 532 U.S. at 12 (holding that the determination

that records are not inter- or intra-agency 'rules out any application of Exemption

5'). The relevant factual inquiry as to that question is the nature of the

relationships between the government agency and the third party or parties. See id.

at 14. The record is insufficiently developed on that point; nor is it clear which

documents were shared with which third parties. We therefore remand for the

supplementation of the record and for the district court to apply Klamath.3

3. Finally, the district court erred in holding that the USTR was justified

in withholding certain information under Exemption 6, which applies to 'personnel

and medical files and similar files the disclosure of which would constitute a

clearly unwarranted invasion of personal privacy.' 5 U.S.C. y 552(b)(6). CBD

does not challenge the withholding of home addresses or telephone numbers, but it

argues that the district court failed to apply the proper standard in evaluating

3 Upon completing the correct legal inquiry under Klamath, the district court may need to consider the scope of the parties' agreement regarding the so- called 'Canada documents,' which the district court had not assessed previously before holding that Exemption 5 applied to those documents.

Page 7 of 8 whether the USTR could withhold the names of third parties considered for

inclusion on a board of directors of a newly-established foundation created to

receive 'meritorious initiatives' funds. We agree.

In assessing the applicability of Exemption 6 on remand, the district court

should 'consider, first, whether the information is contained in a personnel,

medical, or 'similar' file, and, second, whether release of the information would

constitute a clearly unwarranted invasion of the person's privacy.' Elec. Frontier

Found., 639 F.3d at 886 (quotation marµs and citation omitted). At the second

step, the district court should 'balance the individual's privacy interest against the

extent to which FOIA's central purpose of opening agency action to public

scrutiny would be served by disclosure.' Id. (quotation marµs and citation

omitted); see also Prudential Locations LLC v. U.S. Dep't Housing and Urban

Dev., ÁÁÁ F.3d ÁÁÁÁ, 2011 WL 2276206 at *3-5 (9th Cir. 2011).

VACATED and REMANDED.

Page 8 of 8

FILED

Center for Biological Diversity v. USTR, No. 10-35102 (Seattle - Nov. 2, 2010)16 2011

SEP

MOLLY C. DWYER, CLERK

BYBEE, J., concurring in part and dissenting in part: U.S . CO U RT OF AP PE A LS

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 Zemansµy v. EPA, 767 F.2d

569, 571 (9th Cir. 1985)) (internal quotation marµs omitted). The agency may

meet its burden with 'reasonably detailed, nonconclusory 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 3-4 &

n.1. But as I read the record, the only search that was actually limited to this

timeframe was the search of the bacµup email files stored at the Office of

Administration for the Executive Office of the President ('OA'), and that was a

follow-up search that was limited for reasons explained by USTR. The two

declarations submitted by USTR's FOIA counsel, David Apol, maµe clear that the searches of the paper and electronic files already in USTR's possession (as

opposed to the bacµup files stored on the OA's servers) were without regard to

date. See First Apol Decl. jj 25-27, Second Apol Decl. jj 12-16. These files

included all electronic and paper files in the possession of the two officials most

involved in the negotiations, Assistant General Counsel Jeffrey Weiss and Deputy

Assistant USTR John Melle, as well as all files on the computer of former General

Counsel James Mendenhall and Apol's computer. First Apol Decl. j 25 ('USTR's

FOIA officer instructed . . . Weiss and Melle[] to search their files for responsive

documents without reference to date.'); id. j 27 ('USTR re-reviewed the files that

it had initially gathered (including the email messages from Mr. Mendenhall's

computer), which were not limited to the period June 2006-January 2007.');

Second Apol Decl. jj 12-16.

From the information in Apol's affidavit, it is clear that the electronic and

paper files of the two officials most involved in the negotiations, Weiss and Melle,

were searched without regard to date. First Apol Decl. j 25. The computer of

another official closely involved in the negotiations, Mendenhall, was also

searched without regard to date, as was Apol's computer. Id. jj 26-27. The only

responsive information from before June 2006 found as a result of these searches

was found in four email chains in which USTR sought counsel from DOJ on

2 structuring the meritorious initiatives program. See id. j 27; Supp. Rev. Vaughn

Index Doc. Nos. P296-99.

The only search limited to the June 2006-January 2007 period was the OA's

search of its email archive for emails sent to and from the accounts of Mendenhall,

U.S. Trade Representative Susan C. Schwab, and her chief of staff Timothy J.

Keeler. These searches were so limited because the initial searches of

Mendenhall's computer, along with the search of the files of Weiss and Melle (who

were more closely involved in the negotiations than any of the other officials), did

not turn up responsive documents from the pre-June 2006 period. First Apol Decl.

j 26, Second Apol Decl. jj 16-18. The timeframe of these searches was also so

limited because the plaintiffs had only requested documents relating to

'implementation' of the meritorious initiatives program, FOIA Request, and

implementation did not begin until June 2006, First Apol Decl. jj 25-26.

I do not thinµ, contrary to what the memorandum disposition suggests, that

the record is 'ambiguous' as to whether USTR's search for documents

encompassed the April-May 2006 timeframe. Mem. Dispo. at 4 n.1. The search

of the files most liµely to contain responsive documents was unambiguously

conducted without regard to date. First Apol Decl. j 25. Since the search of these

files did not turn up responsive documents that were generated during the

3 April-May 2006 timeframe, id., there is no reason why USTR's search of the email

archive of other accounts less liµely to contain responsive documents should also

have encompassed this period. To the extent the memorandum disposition holds

that the search was inadequate because of the limited timeframe, I respectfully

disagree.

The memorandum disposition also concludes that the search was inadequate

because USTR failed to 'provide specific information regarding what files were

searched, what search terms were used, why further searches are unliµely to

produce additional records, or why additional searches are impractical.' Mem.

Dispo. at 4. But Apol's declarations explain exactly what files were searched. The

search included the email accounts of U.S. Trade Representative Susan Schwab

and her chief of staff, Timothy Keeler. Second Apol Decl. j 17. The two officials

most involved in the negotiation of the SLA and the implementation of the

meritorious initiatives program, Jeffrey Weiss and John Melle, 'conducted

thorough searches of their paper and electronic records, including e-mails, word

processing files, and archive files for all [responsive] records.' Id. jj 12-13.

USTR also conducted a search of former General Counsel James Mendenhall's

computer. Id. j 16. When it became clear that the computer did not include

complete email chains, USTR asµed the OA to search its electronic archive for the

4 complete files. Id. jj 16-17. Finally, Apol searched his own computer for

responsive files. First Apol Decl. j 27. Therefore, contrary to what the

memorandum disposition suggests, USTR explains in great detail what files were

searched.

The memorandum disposition faults USTR for failing to provide 'specific

information' on what search terms it used, why further searches would not produce

additional records, or why additional searches would be impractical. See Mem.

Dispo. at 4. The operative standard 'is not whether there might exist any other

documents possibly responsive to the request, but rather whether the search for

those documents was adequate.' Lahr, 569 F.3d at 987 (quoting Zemansµy, 767

F.2d at 571) (internal quotation marµs omitted). In my view, USTR has met that

standard, and I would affirm the judgment of the district court on this point.

5