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Donham v. United States Forest Service

May 21, 2008

MARK DONHAM AND HEARTWOOD, INC., PLAINTIFFS,
v.
UNITED STATES FOREST SERVICE, DEFENDANT.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

A. Introduction and Factual/Procedural Background

On February 12, 2007, Plaintiffs filed a complaint against the United States Forest Service (USFS) alleging violations of the Freedom of Information Act (FOIA). Plaintiffs allege that their FOIA request was improperly denied by the USFS with respect to three documents, labeled Documents 1, 2, and 3 in the USFS's Vaughn Index*fn1 (Doc. 17-2, Exh. E). The USFS describes Document 1 as a copy of ISO 14001, Document 2 as a draft USFS document entitled "NEPA, EMS, and the New Forest Planning Rule," and Document 3 as a draft USFS document entitled "Greening of the FS (EO13148): 'Big Picture' Integrated Approach to NFMA/NEPA/EMS."

On September 14, 2007, the parties filed cross motions for summary judgment (Docs. 25 & 26). Plaintiffs argue that the USFS is required to produce ISO 14001 under FOIA because 36 C.F.R. § 219.5 (2007) requires USFS compliance with ISO 14001 making it an agency record by virtue of its incorporation (Doc. 25). Plaintiffs argue that no exemption protects any of the documents at issue from disclosure.*fn2

The USFS argues that ISO 14001 is a non-governmental copyrighted document, to which it only has access pursuant to a licensing agreement. As such, the USFS argues that ISO 14001 is not an agency document, as the USFS lacks adequate control over it. In the alternative, the USFS argues that ISO 14001 is exempt from disclosure under 5 U.S.C. § 552(b)(4) because it constitutes confidential commercial information. The USFS also argues that the other two documents are intra-agency memoranda exempt from disclosure under 5 U.S.C. § 552(b)(5).

The Court set a hearing for May 9, 2008 and ordered the USFS to submit Documents 1, 2, and 3for in camera review in accordance with 5 U.S.C. § 552(a)(4)(B). Having fully reviewed the parties' filings, the Court DENIES Plaintiffs' motion for summary judgment (Doc. 25) and GRANTS IN PART AND DENIES IN PART the USFS's motion for summary judgment (Doc. 26). Additionally, the Court DIRECTS Plaintiff to join the American National Standards Institute (ANSI) to this action no later than July 15, 2008. Consequently, the Court also CONTINUES the bench trial in this matter to 9:00 a.m. on December 1, 2008.

B. Required Parties Under Rule 19

As explained above, Plaintiffs allege that their FOIA request was improperly denied by the USFS with respect to three documents, the first of which is described as ISO 14001, a non-governmental copyrighted document to which it has access pursuant to a licensing agreement with ANSI. According to the USFS, the license only permits the USFS and its employees to view the ISO 14001 "and does not permit access of any kind by third parties" (Doc. 20-2, ¶ 6; see Exh. B, ¶ 2(c), (d)).However, the ISO 14001 is available for sale on ANSI's website, and ANSI clearly has a proprietary interest in the document.

To date, neither party has sought joinder of ANSI. Consequently, the Court set a hearing for May 9, 2008 and directed the parties to address the issue of whether ANSI is a required party under FEDERAL RULE OF CIVIL PROCEDURE 19. Having fully considered the parties' arguments, the Court finds that ANSI is a required party under Rule 19 and must be joined to this suit.

Under Rule 19(a)(1),

A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:

(A) in that person's absence, the court cannot accord complete relief among existing parties; or

(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:

(i) as a practical matter impair or impede the person's ability to protect the interest; or

(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent ...


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