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LIVING RIVERS, INC. v. U.S. BUREAU OF RECLAMATION

March 25, 2003

LIVING RIVERS, INC., PLAINTIFF
v.
UNITED STATES BUREAU OF RECLAMATION, DEFENDANT.



The opinion of the court was delivered by: Tena Campbell, United States District Judge

ORDER

Plaintiff Living Rivers, Inc. ("Living Rivers"), a non-profit, incorporated environmental group, claims that Defendant the United States Bureau of Reclamation (the "BOR") violated the Freedom of Information Act ("FOIA") by refusing to disclose documents that Living Rivers requested under FOIA. The documents are inundation maps prepared by the BOR for the areas below Hoover Dam and Glen Canyon Dam. The BOR contends that disclosure of the maps could endanger the dams and those who live downstream from the dams, and therefore are exempt from disclosure under FOIA. The matter is before the court on the parties' cross-motions for summary judgment. For the reasons set for below, the court GRANTS BOR's motion and denies Living Rivers' motion.

BACKGROUND

I. Procedural Background

On September 19, 2001, Living Rivers requested pursuant to FOIA that the BOR disclose all inundation maps, including those pertaining to dam failure, for the areas below Hoover Dam and Glen Canyon Dam. On November 9 and November 19, 2001, the BOR denied the requests on the ground that the maps were exempt from disclosure under FOIA's Exemption 2. The BOR explained that the inundation maps related to the BOR's internal practices and that disclosure of the maps would risk circumvention of a statute or regulation. Living Rivers appealed the decisions administratively on December 10, 2001. On April 2, 2002, the United States Department of the Interior—of which the BOR is a part—denied the appeal. On July 3, 2002, Living Rivers filed this lawsuit.

I. Factual Background

In support of their motion, the BOR submitted the Declaration of Larry L. Todd. (Todd Decl., Ex. 3, attached to BOR's Mem. in Support of Def. BOR's Cross Mot. for Summ. J. and in Opp'n to Pl.'s Mot. for Summ. J.)*fn1 Mr. Todd has been the Director of Security, Safety and Law Enforcement of the BOR since June 30, 2002. This position was created after September 11, 2001. Before September 11, security, safety and law enforcement matters were handled by the Director of Operations. Mr. Todd held that position until his present position was created.

Mr. Todd explained that the BOR created the maps

to allow evaluation of the effects of dam failure, to protect the public downstream of the dam from the consequences of dam failure, and to assist federal and local law enforcement and emergency officials by providing timely and concise emergency information in the event of dam failure. In addition, the inundation maps are a key element in allowing the BOR to determine the risks at various dams and to set priorities in addressing issues of dam safety.
(Todd. Decl. ¶ 10)

Mr. Todd described the information shown in the inundation maps:

Inundation maps show which downstream areas and communities would be flooded and are at risk in the event of a dam failure. The maps reveal populated areas, communities and recreational areas that would be at risk due to dam failure. The maps also show critical infrastructure, such as power plant sites, that would be affected by the failure. The maps show estimated travel times for the flood progression at key locations, which are usually communities or populated areas. Most of the maps also show estimated flow volumes and water depths at these key locations.
(Id. ¶ 12)

According to Mr. Todd, "[t]he inundation maps include information that is unique and not otherwise readily ascertainable by the public." (Id. ¶ 21). Therefore, "[t]he precise nature of flood damage that would result from a failure of the dams, as depicted in the inundation maps, is not known by the general public." (Id.)

Mr. Todd explained that, in his opinion,

[t]he information shown on the inundation maps would comprise dam security and the security of the surrounding populations if the maps fell into the hands of a terrorist or other person intending to harm one or more of the Colorado River dams (collectively, "terrorist"). The inundation maps would give the terrorist information about the amount of damage that could be caused by destroying a dam. Because the inundation maps are based upon a worst-case scenario, they present a broad view of the extent of damage resulting from breaching the dam, thus making the dam a more attractive target to the terrorist.
In addition to identifying the populations that would be affected by the destruction of a dam, the inundation maps could be used to identify critical infrastructures, buildings, and facilities which would be destroyed by attacking the dam. This information too is valuable to terrorists.
Because the inundation maps show flood travel times and water depths, terrorists could use the inundation maps to help plan and execute sequenced attacks, which could include attacks on bridges and roads to cut off evacuation routes or attacks on communications facilities to disrupt emergency response.
(Id. ¶¶ 16-18.)

Mr. Todd described the measures that the BOR takes to ensure the security of the inundation maps. These include keeping the maps in locked areas and limiting the distribution of the maps to those who "demonstrate a `need to know' [including State and Federal law enforcement and emergency officials] in accordance with the criteria set forth in the BOR directives." (Id. ¶ 24).

ANALYSIS

I. The Legal Standard for Summary Judgment in FOIA Cases

"FOIA generally provides that the public has a right of access, enforceable in court, to federal agency records." Audobon Soc'y v. United States Forest Serv., 104 F.3d 1201, 1203 (10th Cir. 1997). FOIA requires federal agencies to disclose records to the public upon request, "unless the requested records fall within one or more of nine categories of exempt material." Assassination Archives and Research Ctr. v. Cent. Intelligence Agency, 177 F. Supp.2d 1, 5 (D.C. Cir. 2001); see also Audobon, 104 F.3d at 1203. If a requested document contains exempt information, the agency must release "[a]ny reasonably segregable portion" after deleting exempt portions. 5 U.S.C. § 552(b); see also Anderson v. Dep't of Health & Human Servs., 907 F.2d 936, 941 (10th Cir. 1990) (stating that the district court "may not simply conclude that an entire file or body of information is protected without consideration of the component pans").

"FOIA is to be broadly construed in favor of disclosure, and its exemptions are to be narrowly construed. . . . The federal agency resisting disclosure bears the burden of justifying nondisclosure." Audobon, 104 F.3d at 1203 (internal citation omitted). District courts review de novo agency decisions to withhold information requested under FOIA. See Anderson, 907 F.2d at 941.

Here, the BOR claimed initially that its inundation maps fit under Exemption 2, which permits withholding of information "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). On this review of the agency action, the BOR claims that it also need not disclose its inundation maps pursuant to Exemptions 7(E) and 7(F), 5 U.S.C. § 552(b)(7), which pertain to information compiled for law enforcement ...


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