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Maricopa Audubon Soc'y v. U.S. Forest Serv.

ELR Citation: 27 ELR 20842
Nos. 95-16919, 108 F.3d 1082/(9th Cir., 03/07/1997)

The court holds that exemption 2 of the Freedom of Information Act (FOIA) does not exempt the U.S. Forest Service from disclosing documents revealing the locations of northern goshawk nest sites. The government has failed to demonstrate how the nest sites related "solely," or even predominantly, "to the internal personnel rules and practices of an agency" as exemption 2 requires. The Tenth Circuit has already rejected the identical argument in a case involving the same questions and the same parties, and the D.C. Circuit has also rejected the sweeping interpretation of exemption 2 urged by the government in this and other cases. To find goshawk nest site information related through some chain of circumstances to the internal personnel rules and practices of an agency would render exemption 2 potentially all-encompassing. Moreover, it would stretch the language of exemption 2 in such a manner as to flout Congress' unmistakable intent that FOIA's exemptions be narrowly construed. The court also rejects the Forest Service's argument that the information is the type of law enforcement information that the court has previously held that exemption 2 includes. Nothing in the court's prior decisions and no commonsense definition suggests that goshawk nest site information can be deemed law enforcement material. The court next holds that the district court lacked equitable discretion to deny the FOIA request. The notion that a district court may exempt materials that do not fall within one of FOIA's nine enumerated exemptions runs contrary not only to the fact that the exemptions are explicitly exclusive, but also to the unmistakable intent of Congress. A district court lacks inherent power, equitable or otherwise, to exempt materials that FOIA itself does not exempt. The court finally holds that FOIA does not permit selective disclosure of information only to certain parties, and that once the information is disclosed to plaintiffs, it must also be made available to all members of the public who request it.

Counsel for Plaintiffs
Matthew Kenna
Kenna & Associates
1300 Meadow Rd., Durango CO 81301
(970)385-6941

Counsel for Defendants
John P. Schnitker
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202)514-2000

Before: BOOCHEVER, REINHARDT, and RYMER, Circuit Judges.