The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
Pending are cross-motions for summary judgment on Plaintiff's Freedom of Information Act (the "FOIA") claims. These claims concern Plaintiff's requests that Defendant Bureau of Reclamation ("Reclamation") provide records relating to Reclamation's announcement that it would allocate less water to Plaintiff in 2007 than what is specified in a water supply contract made with Plaintiff in 1983 (the "1983 Contract").
Generally, FOIA requires a federal agency, "upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, [to] make the records promptly available . . . ." 5 U.S.C. § 552(a)(3)(A). An agency must "determine within 20 [working] days . . . after the receipt of any such request whether to comply with such request and [must] immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination."
5 U.S.C. § 552 (a)(6)(A)(i).
Defendants argue Plaintiff's FOIA claims are moot because Defendants have provided Plaintiff all records responsive to its requests. Defendants rely on Papa v. United States of Am., 281 F.3d 1004, 1013 (9th Cir. 2002) (citation omitted), in which the Ninth Circuit stated "[p]roduction of all . . . material [that is responsive to a request], . . . moots FOIA claims."
Plaintiff counters the claims are not moot because Defendants have not shown that all responsive records have been produced; unreasonably delayed in responding to Plaintiff's FOIA requests; failed to notify Plaintiff whether any records were being withheld; and failed to inform Plaintiff of its right to appeal Defendants' adverse determinations on its FOIA requests. Injunctive relief is appropriate where an agency has "repeatedly hindered the timely disclosure of [requested] documents . . . ." Long v. United States Internal Revenue Service, 693 F.2d 907, 909 (9th Cir. 1982),
Defendants rejoin they have conducted an adequate search and provide declarations concerning that search from Reclamation's FOIA Officer Kathleen Christian, and Mario Manzo, Regional Repayment Specialist of the Water Contracts, Transfers, and Banking Branch of Reclamation. Christian declares Reclamation conducted searches for responsive records at each of its office locations that would likely contain records relating to the 1983 Contract. She identifies the employees at each office location who conducted searches. She describes how the files were organized in each office and the criteria used for each search. She also describes the records that were found and avers all responsive records were produced. (Christian Decl. ¶¶ 25-46; Christian Supp. Decl. ¶¶ 54-55.) Manzo declares he searched Reclamation's files and online Departmental Manual and found three records responsive to Plaintiff's requests. These three records were provided to Plaintiff. (Manzo Decl. ¶ 4; Christian Decl. Exhs. 17, 18, 19.) These declarations show Defendants conducted an adequate search in response to Plaintiff's FOIA requests and provided Plaintiff the records found.
Plaintiff rejoins Defendants failed to timely respond to its FOIA requests made in its March 7, 2007 letter. Defendants contend they had no obligation to respond to this letter because the letter was not a proper FOIA request, citing Thomas v. F.C.C., 534 F. Supp. 2d 144, 145 (D.C. Cir. 2008) (citations omitted), in which the court held "[a]n agency's obligation under the FOIA does not arise . . . until a proper request is received." Defendants argue under 43 C.F.R. § 2.8 (b)(1), § 2.8 (d)(1), and § 2.10, a proper FOIA request should include a confirmation that the requester is willing to pay all fees associated with its request, have the words "FOIA REQUEST" prominently displayed on the request letter, and be addressed to Reclamation's FOIA Officer. Christian declares Reclamation staff did not process the March 7 letter as an FOIA request because they "perceived it to be part of [the] longstanding and ongoing communications and litigation between [Plaintiff] and Reclamation regarding [the 1983 Contract]." (Christian Decl. ¶ 13.) Plaintiff rejoins its March 7 letter was a proper FOIA request which contained the words "Freedom of Information Act" and did not have to comply with the advisory regulations cited by Defendants. However, the reference to the FOIA in that letter was in a context which did not clearly show the letter was meant to be a request under the FOIA. The reference is in the last paragraph of Plaintiff's discussion concerning its disappointment about the reduction of water and states: "[Plaintiff is] entitled to [the] information [requested] pursuant to the terms of its 1983 Contract with [Defendants] as well as the Freedom of Information Act." (Spaletta Decl. Exh. B; Christian Decl. Exh. 1.) This sentence is followed by text which includes matters that are not appropriate for a FOIA request. In light of the context in which the FOIA is mentioned, Defendants' interpretation of this letter as a non-FOIA request does not weigh in favor of granting Plaintiff's requested equitable relief.
Plaintiff also argues Defendants failed to timely respond to its April 11, 2007 letter, which was a proper FOIA request since it was addressed to Reclamation's FOIA Officer Kathleen Christian, and stated "FOIA Request" in the subject line. The April 11 letter also enclosed the March 7 letter, and referred to that enclosed letter as part of its April 11 FOIA request. (Spaletta Decl. Exh. C.) Defendants counter Plaintiff's April 11 letter was not a proper FOIA request because it did not "describe the requested records in enough detail to enable an employee familiar with the subject area of the request to locate the record(s) with a reasonable amount of effort," as required by 43 C.F.R. § 2.8 (a)(1). However, since it was clear that Plaintiff was making FOIA requests in its April 11 letter, if Defendants opined that letter did not sufficiently describe the requested records, Defendants were required under 43 C.F.R. § 2.8 (a)(2) to "contact [Plaintiff] to identify and clarify the records [Plaintiff was] seeking."
Plaintiff also argues Defendants failed to timely respond to its FOIA requests made in its June 28, 2007 letter since Defendants failed to produce the requested records within twenty working days of receiving that letter, citing South Yuba River Citizens League v. National Marine Fisheries Service, No. CIV. S-06-2845, 2008 WL 2523819 at *5 (E.D. Cal. June 20, 2008) (citations omitted), in which the court held "[a]lthough the statute in terms provides that an agency must merely notify the requester within twenty days of whether [it would] respond to the request, courts consistently treat the twenty-day deadline as the agency's deadline to provide the responsive documents." Defendants rejoin they were not required to produce the requested records within twenty working days of receiving Plaintiff's June 28 letter because that letter only confirmed that Plaintiff would pay copying costs, but did not state Plaintiff would pay search and review costs as well, as required by 43 C.F.R. §§ 2.8 (b)(1), 2.16.
43 C.F.R. § 2.8 (b)(1) states an agency does "not begin processing [a FOIA] request until  written assurance [to pay costs] has been received." Thus, Defendants properly responded within twenty working days of Plaintiff's June 28, 2007 letter that they would not comply with Plaintiff's requests until they received confirmation of Plaintiff's willingness to pay all costs. After receiving Plaintiff's confirmation of its willingness to pay all costs on July 25, 2007, Defendants timely produced the requested records in a August 22, 2007 letter within twenty working days of receiving the confirmation.
Plaintiff also argues Defendants failed to timely produce all responsive records in their August 22, 2007 response since Defendants later agreed they had additional records they would produce. Plaintiff's counsel Jennifer L. Spaletta declares "[a]t [a] meeting [held on September 24, 2007], Reclamation verbally agreed to provide the requested information to Stockton East . . . ." (Spaletta Decl. ¶ 20.) Defendants object to the phrase, "the requested information," arguing it is vague; the objection is sustained. Plaintiff has not shown that additional records existed which Defendants agreed to produce.
Plaintiff also argues Defendants failed to respond to its FOIA requests made in its October 1, 2007 letter. Spaletta declares this letter "demand[ed] the records that Reclamation was required by the  Contract and the FOIA to provide, and that Reclamation had verbally agreed to produce." (Spaletta Decl. ¶¶ 22-28 & Exh. M.) Defendants counter Spaletta's averment mischaracterizes the October 1, 2007 letter because this letter did not request any records; rather, it asked questions about Plaintiff's rights under the 1983 Contract. Defendants argue they were not obligated to respond to those questions, citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-62 (1975), in which the United States Supreme Court held the FOIA "only requires disclosure of . . . documents . . . . [It does not] require the agency to create explanatory material." Defendants further argue this letter was not a proper FOIA request because it was not addressed to Reclamation's FOIA Officer and did not make any reference to the FOIA. The October 1 letter was a follow-up letter to a meeting between Plaintiff and representatives of Reclamation concerning Reclamation's 2007 water allocations under the 1983 Contract. Since the letter asked questions which are not appropriate for a FOIA request, was not addressed to Reclamation's FOIA Officer, and did not make any reference to the FOIA, Defendants were not required to respond to it under the FOIA.
Plaintiff also argues Defendants' production of three additional records in a February 14, 2008 letter was an untimely response to Plaintiff's June 28, 2007 request for "evidence of a delegation of authority" from the Secretary of the Interior to the Regional Director to act as the "Contracting Officer pursuant to Article 9(a) of the" 1983 Contract. (Spaletta Decl. Exh. P; Christian Decl. Exhs. 16-19.) Two of these three records are sections of the Department of the Interior's Departmental Manual, showing the authority of the Secretary of Interior to delegate his powers, and a list of functions delegated to the Commissioner of Reclamation. (Christian Decl. Exhs. 17, 18.) The third record is a memorandum dated March 3, 1998, in which the Commissioner delegated authority to the Regional Director to approve and sign water supply contracts. (Christian Decl. Exh. 19.) Defendants counter "[d]elay in locating a document is significant only to the extent that evidence shows that the delay resulted from bad faith refusal to cooperate," citing Maynard v. CIA, 986 F.2d 547, 564 (1st Cir. 1993) (internal quotations and citations omitted). Manzo declares these three records were found in a search concerning the Secretary's delegation of authorities in general, conducted as part of his response to Plaintiff's October 1, 2007 letter in which Plaintiff inquired about the roles of the ...