PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ROCKY MOUNTAIN WILD, INC., 

 Plaintiff - Appellant, 

v. 

UNITED STATES FOREST SERVICE; 

UNITED STATES DEPARTMENT OF 

AGRICULTURE, 

 Defendants - Appellees. 

No. 21-1169 

_________________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:18-CV-03065-MEH)

_________________________________ 

Travis E. Stills, Energy and Conservation Law, Durango, Colorado, (Matthew Sandler, 

Rocky Mountain Wild, Denver, Colorado, with him on the briefs) for Plaintiff-Appellant. 

Marissa R. Miller, Assistant United States Attorney (Cole Finegan, United States 

Attorney, with her on the brief), Denver, Colorado, for Defendants-Appellees. 

_________________________________ 

Before TYMKOVICH, EID, and CARSON, Circuit Judges. 

_________________________________ 

CARSON, Circuit Judge. 

_________________________________ 

The Freedom of Information Act (FOIA) makes government records accessible 

to the public, including organizations like Plaintiff Rocky Mountain Wild. But this 

access is not limitless. The statute instructs government agencies to use reasonable—

FILED 

United States Court of Appeals 

Tenth Circuit 

December 30, 2022

Christopher M. Wolpert 

Clerk of Court

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 1
2 

not the utmost—efforts to produce responsive records upon request. Beyond that, 

FOIA also exempts nine categories of records from public disclosure. 

Plaintiff requested and received voluminous records under FOIA, but now 

asserts Defendants United States Forest Service (“USFS”) and United States 

Department of Agriculture (“USDA”) abused these statutory limitations to hide 

information about projects that harm the environment. The district court rejected 

Plaintiff’s speculative theory and found USFS’s efforts to comply with Plaintiff’s 

FOIA request reasonable.1

 Our jurisdiction arises under 28 U.S.C. § 1291. We 

affirm. 

I.

For years the parties have litigated the propriety of a proposed development in 

the Wolf Creek Ski Area—which the USFS manages. The proposed development is a 

plan for highway access known as “the Village at Wolf Creek Access Project.” 

Plaintiff challenges this plan because of alleged environmental risks to the 

surrounding national forest. The highway-access litigation continues, but relevant 

here is a 2018 FOIA request Plaintiff submitted asking Defendant for “all agency 

records regarding the proposed Village at Wolf Creek Access Project.” 

Plaintiff’s request caused an enormous undertaking by Defendant. The request 

sought “all agency records” about the project. The breadth of the request first 

1

 Although Plaintiff sued both the Forest Service and the Department of 

Agriculture, the Forest Service plays the most prominent role in this dispute. So for 

efficiency, we use “Defendant” or “USFS” to refer to the Forest Service. 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 2
3 

required Defendant to determine the relevant period during which its employees 

would have created responsive documents so it could direct those employees to 

search their files within that timeframe. Then Defendant also narrowed the request’s 

scope to include only documents Defendant had not already given Plaintiff, 

documents Defendant had not made public, and documents not statutorily exempt 

from disclosure. 

Defendant next had to find employees who might possess responsive records. 

Defendant determined that twenty-seven employees were substantially involved in 

the Village at Wolf Creek Access Project during the relevant timeframe and likely 

possessed responsive records. All but two of those employees worked in Colorado. 

Defendant allowed the employees to search their own files using custom search 

terms, reasoning that each employee would know the best search terms to find 

responsive documents. The employees reported how they searched their files and 

listed their individual search terms. Between the twenty-seven employees, they 

searched their files with more than two dozen different search terms, including 

variations of similar terms. Some of the twenty-seven employees handed off the 

search to their administrative assistants but still specified the search terms their 

administrative assistants used. Those who searched looked in different locations, 

such as physical hard-copy files, external and internal computer hard drives, and 

emails, including attachments, within their archive system. Finally, most employees 

searched twice for documents, and all the selected employees searched for responsive 

records after March 1, 2019, to make sure none showed up at the last minute. 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 3
4 

After collecting documents from the twenty-seven employees, a team of five 

Forest Service officials worked full-time for months to review the produced 

documents.2

 The team organized documents into three groups: (1) nonresponsive, 

which they removed; (2) responsive but either produced before from a past FOIA 

request, outside the window Defendant calculated, or exempt under FOIA, which 

they also removed but listed the exempt documents in an index; and (3) responsive 

and not previously produced, outside the timeframe, or exempt under FOIA, which 

they gave to Plaintiff. As the team compiled disclosable responsive documents, it 

sent groups of them to Plaintiff in “rolling productions.” 

Over the course of a year, Defendant organized twenty-seven rolling 

productions to Plaintiff after identifying 140,637 responsive pages in 14,740 records. 

Defendant tried to produce these documents in a way Plaintiff preferred, such as 

reproducing documents as individual PDF files and reproducing those documents a 

third time as searchable PDFs once Plaintiff objected to the non-searchable format. 

At Plaintiff’s insistence, Defendant also created an almost 800-page “Vaughn index” 

to inventory the thousands of agency records FOIA exempted from disclosure (7,757 

in total). See Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973) (establishing that 

an agency can list exempt documents in an index to allow a court to consider the 

agency’s justifications for exempting them more easily). Defendant even hired an 

outside contractor to help prepare the Vaughn index because so many privilege issues 

2

 Other Forest Service employees helped part-time. 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 4
5 

came into play and Defendant wanted to make sure it had properly withheld or 

redacted documents. Defendant submitted declarations detailing its months-long 

search effort. 

While Defendant gathered responsive documents to include in the rolling 

productions, Plaintiff sued Defendant in federal court for allegedly missing statutory 

deadlines, conducting an inadequate search, and improperly withholding or redacting 

documents. During the litigation, Defendant started producing documents to 

Plaintiff. In one production, Defendant mistakenly included two documents not 

properly redacted and asked Plaintiff to return or destroy the documents and provided 

Plaintiff with properly redacted replacements. But Plaintiff refused. So Defendant 

moved the district court to order Plaintiff to return or destroy the documents. The 

court granted Defendant’s motion, directing Plaintiff to remove the documents from 

any online locations (another organization had posted the documents on its Facebook 

page) and return or destroy them. 

Later, the parties each moved for summary judgment. Defendant argued that 

its declarations describe how its employees reasonably searched for responsive 

documents and prove that the agency reasonably applied FOIA exemptions to redact 

parts of or withhold entire records. Plaintiff countered that Defendant had not proven 

it conducted a FOIA-compliant search or met the standard to exempt documents in 

whole or in part from production. The district court granted Defendant’s summaryjudgment motion. It found that Defendant reasonably searched for records to comply 

with the FOIA request and adequately justified why it redacted or withheld certain 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 5
6 

records. Plaintiff appeals the summary-judgment decision and the order to return the 

improperly redacted documents. 

II.

We review a grant of summary judgment in FOIA cases de novo if the district 

court’s decision “had an adequate factual basis.” Jordan v. U.S. Dep’t of Just., 668 

F.3d 1188, 1192 (10th Cir. 2011) (quoting Audubon Soc’y v. U.S. Forest Serv., 104 

F.3d 1201, 1203 (10th Cir. 1997). The government can develop an adequate factual 

basis by providing a Vaughn index, which an agency typically puts together to allow 

the court to review the agency’s nondisclosures. See Anderson v. Dep’t of Health & 

Hum. Servs., 907 F.2d 936, 942 (10th Cir. 1990). The agency bears the burden of 

justifying its nondisclosures. Friends of Animals, 15 F.4th 1254, 1260 (10th Cir. 

2021) (citing Herrick v. Garvey, 298 F.3d 1184, 1190 (10th Cir. 2002). 

A court should grant summary judgment when “the movant shows that there is 

no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). A mere scintilla of evidence supporting the 

nonmovant’s position will not create a genuine issue of material fact; the fact issue 

must make it so that a reasonable jury could find for the nonmovant. Herrick, 298 

F.3d at 1190. Because the district court granted summary judgment in Defendant’s 

favor, “we review the record and all reasonable inferences . . . drawn therefrom in the 

light most favorable to [Plaintiff].” See Trentadue v. Integrity Comm., 501 F.3d 

1215, 1226 (10th Cir. 2007) [“Trentadue I”]. 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 6
7 

III.

Plaintiff challenges the district court’s decision on four grounds. First, 

Plaintiff claims the court applied the standard of review incorrectly by improperly 

deferring to Defendant’s declarations. Second, Plaintiff argues that the court 

wrongly found that Defendant conducted a reasonable search for records. Third, 

Plaintiff asserts that the court erred in determining that Defendant validly withheld or 

redacted documents under certain FOIA exemptions. And last, Plaintiff appeals the 

district court’s order allowing Defendant to claw back inadvertent disclosures USFS 

made during one of its rolling productions to Plaintiff. 

Congress enacted FOIA to facilitate public access to federal agency records 

and information. Friends of Animals, 15 F.4th at 1260 (citing NLRB v. Robbins Tire 

& Rubber Co., 437 U.S. 214, 221 (1978)). The statute favors disclosure. NLRB, 437 

U.S. at 220. But it also exempts nine categories of records from disclosure for 

confidentiality and privacy reasons. Id. at 220–21; 5 U.S.C. § 552(b). With this 

statutory framework in mind, we address Plaintiff’s assertions.3 

3

 We also grant Plaintiff’s motion to file a supplemental appendix. Plaintiff 

failed to include all the relevant docket entries when it first filed its appendix like the 

Federal Rules of Appellate Procedure and our local rules require. See Lincoln v. 

BNSF Ry. Co., 900 F.3d 1166, 1189 (10th Cir. 2018) (citing Fed. R. App. P. 30 

(a)(1); 10th Cir. R. 10.3(A)). While an appellant who produces an inadequate 

appendix “does so at his peril,” Dikeman v. Nat’l Educators, Inc., 81 F.3d 949, 955 

(10th Cir. 1996) (citation omitted), we see no reason not to allow the supplement 

because it results in no prejudice to either party. See infra at 23–24. 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 7
8 

A.

“In any FOIA action challenging an agency decision to withhold records, the 

district court reviews de novo the agency’s decision not to disclose.” See Herrick, 

298 F.3d at 1189. Although Plaintiff recognizes that the district court stated the 

correct standard, Plaintiff asserts that the court improperly deferred to Defendant’s 

declarations and failed to conduct a true de novo review. Plaintiff claims the district 

court applied a “bad faith standard to shield litigation declarations from scrutiny.” 

This standard, according to Plaintiff, required Plaintiff to show the agency’s bad faith 

to disprove the declarations’ contents instead of the court analyzing the declarations’ 

veracity. 

The district court applied no such standard. Rather, it applied a good-faith 

presumption to the declarations as our precedent directs. See Trentadue v. F.B.I., 

572 F.3d 794, 808 (10th Cir. 2009) [“Trentadue II”] (quoting SafeCard Servs., Inc. v. 

SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)). This presumption “essentially requires 

us to credit the agency’s sworn statements” absent contrary evidence. Stevens v. 

U.S. Dep’t of State, 20 F.4th 337, 342–43 (7th Cir. 2021). In Trentadue II, we 

adopted the D.C. Circuit’s rule that courts should give agency declarations a 

presumption of good faith that a FOIA plaintiff cannot rebut by merely speculating 

about the possibility of other documents somewhere. 572 F.3d at 808. 

The district court correctly presumed, then, that Defendant submitted its 

declarations in good faith because “declarations and affidavits are the widely 

accepted, even preferable, means for an agency to respond to concerns about the 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 8
9 

adequacy of a FOIA search.” Id. at 807. And although the court discussed bad faith, 

it did so only to address Plaintiff’s numerous accusations of Defendant’s supposed 

bad faith. The court rejected those accusations because Plaintiff could not cite 

supporting caselaw or provide examples of Defendant’s bad faith. Simply put, as 

Plaintiff recognizes, without contrary evidence or proof of inconsistencies, 

Defendant’s detailed declarations comply with FOIA. See id. at 807 (quoting 

Rugiero v. U.S. Dep’t of Just., 257 F.3d 534, 547 (6th Cir. 2001)). 

Thus, Plaintiff needed to present specific, nonspeculative, countervailing 

evidence or evidence of inconsistencies to rebut the good-faith presumption. As 

discussed more below, Plaintiff failed to do so. Meanwhile, the district court 

appropriately discussed why it applied the presumption of good faith to Defendant’s 

declarations and then explained why it rejected each of Plaintiff’s arguments about 

supposed countervailing evidence of Defendant’s bad faith. The district court even 

considered the sufficiency of the agency’s declarations even though Plaintiff did not 

challenge their sufficiency. We thus reject Plaintiff’s argument that the court failed 

to conduct de novo review merely because it presumed Defendant presented its 

declarations in good faith. 

B.

Next, Plaintiff argues that the district court erred by concluding Defendant 

engaged in reasonable search efforts. We agree with the district court that Defendant 

put forth reasonable efforts to comply with Plaintiff’s FOIA request. 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 9
10 

FOIA does not specify how hard an agency must look for requested records. 

Trentadue II, 572 F.3d at 797. But we have joined other circuits that have adopted 

the “reasonableness rule.” Id. (listing circuits). The rule requires agencies to show 

that they reasonably tried to produce responsive records. Id. (citing 5 U.S.C. 

§ 552(a)(3)(C)). Their search must be “reasonable in scope and intensity” and need 

not turn up “every nonexempt requested document regardless of the cost of locating 

it.” Id. That is why we focus on the agency’s search process, not the outcome. Id. 

To that end, the “issue is not whether any further documents might conceivably exist 

but rather whether the government’s search for responsive documents was adequate.” 

Id. (alteration in original) (quoting Weisberg v. U.S. Dep’t of Just., 705 F.2d 1344, 

1351 (D.C. Cir. 1983)). The reasonableness inquiry focuses on the probability that 

the search will discover responsive documents, the availability of other search 

methods, and the feasibility of those alternative methods. See id. at 798 (quoting 

Davis v. Dep’t of Just., 460 F.3d 92, 105 (D.C. Cir. 2006)). We also consider the 

case’s circumstances when analyzing the search. Id. at 797 (citing Weisberg, 705 

F.2d at 1351). 

Plaintiff accuses the agency of not using effective search terms, excluding 

employees likely to have responsive records, avoiding searching the agency’s 

Washington D.C. offices, and ignoring devices likely to have responsive records. 

Plaintiff insists that the district court “uncritically accept[ed]” Defendant’s 

declarations to find the search reasonable despite these alleged failures. But courts 

generally resolve FOIA cases on summary judgment based on affidavits or 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 10
11 

declarations. See World Publ’g Co. v. U.S. Dep’t of Just., 672 F.3d 825, 832 (10th 

Cir. 2012) (first citing Trentadue II, 572 F.3d at 807–08; then Wood v. F.B.I., 432 

F.3d 78, 85 (2d Cir. 2005)). Not to mention, we prefer that agencies use declarations 

or affidavits to ease concerns about a FOIA search’s adequacy. Trentadue II, 572 

F.3d at 807. And we apply a presumption of good faith to an agency’s affidavits or 

declarations, which Plaintiff cannot rebut by merely speculating about the existence 

of other documents. Id. at 808 (citing SafeCard, 926 F.2d at 1200). 

Indeed, we routinely rely on declarations to make sure an agency fulfilled its 

FOIA duties. For example, in Trentadue II, we thought that the F.B.I.’s searches 

were “very thorough.” 572 F.3d at 807. The F.B.I. attested in declarations that it had 

searched its indices, manually searched two files, and indexed the entire principal file 

about the event at issue. Id. The only task the F.B.I. did not do would have required 

manually searching through one million pages of the principal file, which would take 

“thousands of hours of work”—an effort we described as “unreasonably 

burdensome.” Id. Because the F.B.I.’s declarations “provide[d] an internally 

consistent and uncontradicted record” of its search efforts, we determined that the 

plaintiff could not justify the additional discovery he requested. Id. at 808. Thus, 

like the plaintiff in Trentadue II, Plaintiff must come forward with “countervailing 

evidence or apparent inconsistency of proof” to rebut the good-faith presumption for 

Defendant’s detailed declarations. See id. at 807 (quoting Rugiero, 257 F.3d at 547). 

Otherwise, the court has no reason not to believe the agency’s sworn statements. 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 11
12 

Plaintiff asserts that the agency did not use effective search terms, excluded 

from its search employees likely to have responsive records, avoided searching the 

agency’s Washington D.C. offices, and ignored devices likely to have responsive 

records. These failures, Plaintiff complains, caused the agency’s search to violate its 

duties under FOIA. We disagree. 

The agency allowed its employees to come up with their own search terms 

while looking for documents about the project. In Plaintiff’s view, this led to 

inconsistent search results that likely left out responsive records. The Seventh 

Circuit recently rejected a similar attack on a State Department document search. 

See Stevens, 20 F.4th at 343. There, a FOIA plaintiff objected to the State 

Department allowing its officers to decide what to search based on their familiarity 

with the Department’s way of keeping records. Id. The court determined that the 

Department sufficiently detailed its account of search methods and found the 

methods reasonable. Id. at 343–44; see also Inter-Coop. Exch. v. U.S. Dep’t of 

Com., 36 F.4th 905, 911 (9th Cir. 2022) (recognizing the discretion that agencies 

enjoy in crafting search terms designed to identify responsive records because they 

know best how they keep their own files and what vocabulary they use for certain 

projects). 

We reach the same conclusion here. Defendant’s decision to allow its 

employees to customize the terms they employed to search their own records is not 

inherently unreasonable, especially given that Defendant listed the terms each 

employee used. And that list included more than two dozen search terms with 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 12
13 

different variations of similar terms. Cf. Inter-Coop. Exch., 36 F.4th at 911–12 

(finding an agency’s choice to use just two search terms insufficient because those 

terms could not have found responsive records to both requests the plaintiff 

submitted, did not adequately reflect the breadth of the requests, and did not include 

variant terms). Although Defendant did not use precisely the terms Plaintiff would 

have used to look for the same information, Plaintiff presents no reasoned authority 

demonstrating the unreasonableness of Defendant’s search terms. We therefore 

reject Plaintiff’s argument to the extent that it rests on Defendant’s allegedly 

unreasonable search terms. 

Plaintiff further alleges that Defendant purposefully excluded other employees 

likely to have responsive records. According to Plaintiff, the district court 

improperly deferred to Defendant’s identification of which employees may have 

responsive records. Defendant attested in its declarations that it chose employees 

based on who created documents about the project or whether relevant documents 

were routed through those employees. Plaintiff argues that the district court ignored 

the possibility that Defendant may have omitted other employees, but Plaintiff does 

not identify who Defendant overlooked. 

Plaintiff asserts that any person listed on the Vaughn index should have 

searched their files as well. Plaintiff directs us to three individuals who allegedly 

possess responsive documents but did not search for them. The first two people 

Plaintiff names no longer work for the agency, but the employees who took over their 

positions did search their records to comply with the FOIA request. So that leaves 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 13
14 

one person—the District Ranger on the Divide District of the Rio Grande National 

Forest—who Plaintiff identifies as possibly possessing responsive records that 

Defendant could have included in its search. Defendant did not ask this employee to 

search her files because she has worked so little on the project that Defendant did not 

expect her to have responsive records. Plus, Defendant says, any responsive records 

she may possess would come up in other employees’ searches who were more 

substantially involved in the project. 

Plaintiff insists that leaving out any employees who potentially have 

responsive documents frustrates “a FOIA search designed to find all agency records.” 

But Plaintiff misunderstands the standard—a FOIA search need not locate every 

conceivable responsive record no matter the cost. See Trentadue II, 572 F.3d at 797. 

Plaintiff identifies only persons whose files contain documents duplicative of those 

searched for by other employees. Defendant’s choice to exclude those persons was 

not unreasonable. 

Plaintiff also objects to the employees who recruited their assistants to search 

their records for them. Plaintiff reasons that if each employee supposedly knew their 

own records well enough to come up with their own search terms, then they should 

have searched the files themselves. But Plaintiff offers no evidence that the 

employees’ assistants did not know the best way to find responsive records. Nor 

does Plaintiff claim that the assistants used deficient search terms. Instead, Plaintiff 

implicitly speculates that the employees themselves would have used different terms 

if they had personally searched their files. Plaintiff’s lack of evidence showing the 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 14
15 

inadequacy of having an assistant search files for responsive documents dooms its 

argument. 

Plaintiff also appears to object—on a numerical basis—to Defendant’s 

decision to involve twenty-seven (and not more) employees to conduct the search. 

These conclusory assertions do not rebut the good-faith presumption we apply to 

Defendant’s declarations explaining why it did not include more employees in the 

search. See Trentadue II, 572 F.3d at 808. 

Next, Plaintiff contends that the agency might have found additional 

responsive records in its Washington, D.C. offices had it only required more 

employees to search their documents. But Defendant’s declarations explain that 

although it considered employees across offices, most employees it identified as 

likely to have responsive records worked in Colorado because the project involves 

federal land in that state. Plaintiff responds by pointing out that Defendant’s Vaughn 

index proves that the D.C. offices contain responsive records. True enough. But 

even if there are responsive documents in Washington D.C., there is no evidence in 

the record before us that they are not duplicative or otherwise exempt from 

production. And even if there are more documents in Washington D.C., their mere 

existence does not mean that Defendant’s search was unreasonable. 

Finally, Plaintiff objects to Defendant’s choice of which devices to search and 

where to search on those devices. Plaintiff apparently expected the employees to 

describe where they searched, whether they searched the entirety of each document 

or device, and how they made sure they searched every possible responsive document 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 15
16 

they possessed. This goes far beyond the reasonableness standard; FOIA searches 

need only be “reasonable in scope and intensity.” See Trentadue II, 572 F.3d at 797. 

The record in this case demonstrates a herculean effort by Defendant to comply with 

Plaintiff’s requests. Defendant deployed a team of employees who worked full-time 

for months locating and reviewing responsive records; produced 14,740 documents 

totaling 140,637 pages from the personal files of twenty-seven identified custodians; 

and hired an electronic discovery specialist to provide Plaintiff an 800-page Vaughn 

index containing nearly 8,000 individual entries. To hold that such an effort was 

unreasonable could result in such a burden on agencies that they could not both 

comply with FOIA and complete the core functions of their jobs. 

As part of its final point, Plaintiff objects to the employees not searching their 

work cellphones, which Plaintiff says might contain responsive text messages, notes, 

or records in other email accounts. This complaint misses the mark for a few 

reasons. For one, not every Forest Service employee uses a work cellphone. And 

those that do have a work cellphone sync the phone’s email account with their work 

computer’s email account, meaning any computer search would have caught 

responsive emails on employees’ phones. For another, Plaintiff does not pinpoint 

any responsive documents that the phones possess. Rather, Plaintiff speculates that 

the phones contain “potentially responsive” records. This speculation fails in the 

face of Defendant’s declarations explaining that Defendant entrusted its employees to 

decide where to search because they know best where responsive records might be 

located, and that they did not search their cellphones because they did not expect 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 16
17 

their phones to have any responsive records that a computer search would not have 

already found. Because Plaintiff does not rebut this explanation with concrete 

evidence to the contrary, we presume Defendant trusted its employees in good faith. 

See Trentadue II, 572 F.3d at 808. And without countervailing evidence suggesting 

that employees worked on the project using personal text messaging or other email 

accounts, we similarly presume the employees chose not to search their text messages 

and personal email accounts in good faith. Id. at 808. So considering all the places 

the employees did search, their good-faith decision to not include personal text 

messages and email accounts in their search does not render Defendant’s search 

unreasonable, either. 

Ultimately, Plaintiff’s arguments rely on speculation. While Plaintiff remains 

unsatisfied, it offered no evidence to show what additional documents other 

employees or offices possibly possessed. At the same time, Defendant’s declarations 

describe a thorough investigation for employees who might have responsive records, 

detailed lists of how each employee searched their own records, and explanations of 

how the team who received those records separated them out to respond to the FOIA 

request. Based on Defendant’s declarations and Plaintiff’s failure to rebut them, we 

agree with the district court that Defendant performed an adequate search. Again, we 

focus not on whether “any further documents might conceivably exist,” but whether 

the government adequately searched for responsive documents. Trentadue II, 572 

F.3d at 797. At bottom, Plaintiff failed to produce evidence sufficient to create a 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 17
18 

genuine issue for trial on whether the agency reasonably tried to produce responsive 

documents, making summary judgment on this issue proper. 

C.

Plaintiff also challenges the district court’s determination that Defendant 

properly withheld or redacted documents under certain FOIA exemptions. Plaintiff 

first protests Defendant’s decision to hire an outside contractor to help prepare the 

Vaughn index. But Plaintiff did not dispute Defendant’s outside contractor below, 

forfeiting the issue. See Richison v. Ernest Grp., 634 F.3d 1123, 1128 (10th Cir. 

2011) (explaining that “if the theory simply wasn’t raised before the district court, we 

usually hold it forfeited”); Appellant’s App. Vol. I at 208–54. And Plaintiff does not 

argue on appeal that the district court committed plain error. We thus do not consider 

the issue because Plaintiff waived it by not arguing for plain-error review after 

forfeiting it. See Richison, 634 F.3d at 1128, 1131 (citing McKissick v. Yuen, 618 

F.3d 1177, 1189 (10th Cir. 2010) (clarifying that a party waives plain-error review of 

a forfeited argument by failing to explain how the forfeited argument survives plainerror review)). 

Plaintiff waived the issue about Defendant preparing an insufficient Vaughn 

index as well. Unlike Plaintiff’s outside-contractor argument, which it forfeited at 

the district court, Plaintiff did contest the index entries below. But to preserve issues 

for appeal, a party must draft arguments that go beyond general claims of error, 

Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005), and 

include the “contentions and reasons for them, with citations to the authorities and 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 18
19 

parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(8)(a) 

(emphasis added). 

Despite this standard, Plaintiff argues only generally that Defendant created an 

insufficient Vaughn index. Plaintiff does not name even one specific entry where 

Defendant failed to include the necessary information to justify applying a FOIA 

exemption. Still, Plaintiff argues it sufficiently briefed the issue by objecting below 

to groups of entries that lacked information and then citing those objections in its 

appellate briefs. These objections also do not identify individual entries; Plaintiff 

merely groups allegedly deficient entries into categories with hundreds of entries in 

each. 

But “[j]udges are not like pigs, hunting for truffles buried in briefs.” Gross v. 

Burggraf Const. Co., 53 F.3d 1531, 1546 (10th Cir. 1995) (quoting United States v. 

Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). “[A]ppellants, rather than courts of 

appeals, [must] ferret out and articulate the record evidence considered material to 

each legal theory advanced on appeal.” Conto v. Concord Hosp., Inc., 265 F.3d 79, 

81–82 (1st Cir. 2001). So without a specific reference to the purportedly insufficient 

entries, we will not scour the record to determine whether evidence exists that might 

require the case to go to a jury. Gross, 53 F.3d at 1546 (quoting Thomas v. Wichita 

Coca-Cola Bottling Co., 968 F.2d 1022, 1025 (10th Cir. 1992)). 

Plaintiff claims Defendant’s Vaughn index contains 4,110 deficient entries. 

Plaintiff apparently invites us to comb through the entire index to see if we agree. 

We decline the invitation. If Plaintiff wanted to challenge the index’s sufficiency, 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 19
20 

Plaintiff needed to specifically reference the problematic entries and explain what 

makes them insufficient.4

 Its failure to do so means Plaintiff waived this issue. See 

Garrett, 425 F.3d at 841 (quoting Utahns for Better Transp. v. U.S. Dep’t of Transp., 

305 F.3d 1152, 1175 (10th Cir. 2002) (noting that a party waives issues inadequately 

briefed). 

Plaintiff also quarrels with the district court’s exemption analysis. FOIA 

requires agencies to hand over any requested agency records unless an exemption 

listed in 5 U.S.C. § 552(b) prevents their disclosure. Prison Legal News v. Exec. 

Off. for U.S. Att’ys, 628 F.3d 1243, 1251 (10th Cir. 2011) (citing U.S. Dep’t of Just. 

v. Tax Analysts, 492 U.S. 136, 150–51 (1989)). So as we consider Defendant’s 

justifications for invoking exemptions, we keep in mind that we must construe FOIA 

broadly and apply any exemptions narrowly. Trentadue I, 501 F.3d at 1226. Indeed, 

“the required balance is not an even one. Because FOIA’s core purpose is to shed 

light on the government’s performance of its duties,” we broadly construe the statute 

to favor disclosure. Friends of Animals, 15 F.4th at 1267. So we start with a 

“presumption of disclosure.” Id. At the same time, “we recognize that the FOIA 

exemptions serve important interests.” Id. at 1261 (citing John Doe Agency v. John 

Doe Corp., 493 U.S. 146, 152 (1989)). 

4

 Plaintiff did not specify which entries are allegedly deficient in the 

proceedings below, either. The district court randomly spot-checked some entries 

and found them “reasonably clear, specific, and detailed.” 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 20
21 

Although Defendant invoked many FOIA exemptions, Plaintiff challenges 

only Exemption 5’s application on appeal. This exemption “excuses disclosure of 

‘inter-agency or intra-agency memorandums or letters which would not be available 

by law to a party other than an agency in litigation with the agency.’” Trentadue I, 

501 F.3d at 1226 (quoting 5 U.S.C. § 552(b)(5)). Put differently, Exemption 5 

protects documents a privilege would cover in a civil proceeding involving an 

agency. Id.; see also F.T.C. v. Grolier Inc., 462 U.S. 19, 26–27 (1983) (“Exemption 

5 incorporates the privileges which the Government enjoys under the relevant 

statutory and case law in the pretrial discovery context.”) (emphasis omitted) 

(quoting Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184 

(1975)). 

A court can look to, among other things, detailed affidavits for the factual 

basis necessary to decide whether the agency sufficiently justified withholding or 

redacting records. See Anderson, 907 F.2d at 942. As long as the affidavits 

reasonably specify how the documents fall within the exemption, the agency satisfies 

its burden under FOIA. Hull v. I.R.S., U.S. Dep’t of Treasury, 656 F.3d 1174, 1177 

(10th Cir. 2011) (quoting Quiñon v. F.B.I., 86 F.3d 1222, 1227 (D.C. Cir. 1996)). 

But affidavits that “merely parrot” the statute’s language or supply conclusions 

without explanation do not suffice. Anderson, 907 F.2d at 942 (quoting Carter v. 

U.S. Dep’t of Com., 830 F.2d 388, 393 (D.C. Cir. 1987)). 

Plaintiff challenges Defendant’s invocation of Exemption 5 on two grounds. 

First, Plaintiff argues Defendant never specified the harm it would suffer if it had to 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 21
22 

disclose each exempt entry like FOIA requires. Second, it asserts that Defendant did 

not prove the attorney-client privilege or the work-product doctrine applied to each 

entry in the index under this exemption. 

Plaintiff also waived its second theory, but for a different reason than the first 

two waived issues. Plaintiff did not include all the relevant docket entries in its 

appendix like the Federal Rules of Appellate Procedure and our local rules require. 

See Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1189 (10th Cir. 2018) (first citing Fed. 

R. App. P. 30 (a)(1); then 10th Cir. R. 10.3(A)). So it tried to add a third volume to 

its appendix when filing its reply brief. This third volume contained one document: 

Plaintiff’s reply to the cross-motion for summary judgment in the district court. 

Plaintiff needed this reply to disprove Defendant’s allegation that Plaintiff waived 

any challenge to the elements of the attorney-client privilege or the work-product 

doctrine by not mentioning this issue below or arguing for plain-error review in its 

opening brief. Turns out, Plaintiff did brief this issue below, but just in a reply. So 

the district court did not consider the issue, likely because Plaintiff raised it for the 

first time in a reply. See Appellant’s App. Vol. II at 364 (“Plaintiff does not 

specifically challenge the withholdings under any particular theory of exemption; in 

other words, Plaintiff does not argue that Defendant has failed to demonstrate a 

particular element of the attorney-client privilege, for example.”). After all, reply 

briefs “do not provide the moving party with a new opportunity to present yet another 

issue for the court’s consideration.” Home Design Servs., Inc. v. B & B Custom 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 22
23 

Homes, LLC, 509 F. Supp. 2d 968, 971 (D. Colo. 2007) (quoting Pacific Gas and 

Elec. Co. v. U.S., 69 Fed. Cl. 784, 817 (Fed. Cl. 2006). 

 So Plaintiff asks us to consider an issue (1) asserted once in a reply brief 

below (2) that the district court did not consider, yet (3) not challenged for plain error 

on appeal, let alone (4) in its original appendix. These failures “surely mark[ ] the 

end of the road for an argument for reversal not first presented to the district court.” 

Richison, 634 F.3d at 1131; see also Singleton v. Wulff, 428 U.S. 106, 120 (1976) 

(“It is the general rule, of course, that a federal appellate court does not consider an 

issue not passed upon below.”). 

Plaintiff’s remaining argument—that Defendant insufficiently justified its 

exemptions by failing to prove harm for each entry in the Vaughn index—fails, too. 

Congress amended FOIA in 2016 to allow an agency to withhold information only if 

the agency “reasonably foresees that disclosure would harm an interest protected by 

an exemption.” 5 U.S.C § 552(a)(8)(A)(i). The D.C. Circuit has interpreted this 

amendment to impose a duty on agencies to show not only that an exemption applies, 

but also how disclosure would harm the interest sought to be protected by that 

exemption, at least in the context of withholdings based on the deliberative-process 

privilege. See Reps. Comm. for Freedom of the Press v. F.B.I., 3 F.4th 350, 369–70 

(D.C. Cir. 2021). 

Plaintiff insists that Defendant could not invoke Exemption 5 without also 

explaining how disclosure would harm the agency. We have yet to decide whether 

§ 552(a)(8)(A)(i) requires agencies to show not just that an exemption applies but 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 23
24 

also how sharing the information would harm the interest protected by that 

exemption. But we need not do so here. Like the district court determined, even if 

that heightened burden applies, Defendant made the required showing of harm. 

Defendant asserted that it applied Exemption 5 to withhold or redact documents 

covered by the attorney-client privilege, the work-product doctrine, and the 

confidential-information privilege. 

The reasons for protecting attorney communications are long-established. See 

Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998) (first citing Upjohn Co. 

v. United States, 449 U.S. 383, 389 (1981); then Hunt v. Blackburn, 128 U.S. 464, 

470 (1888)) (“The attorney-client privilege is one of the oldest recognized privileges 

for confidential communications.”); see also Hickman v. Taylor, 329 U.S. 495, 510 

(1947) (recognizing the work product doctrine). Defendant attested in declarations 

that documents withheld or redacted under Exemption 5 mainly involved attorneyclient communications. The declarations detail the kinds of documents involved, 

including drafts of legal documents, and explain why disclosure of that information 

would harm Defendant. It should surprise no one that Defendant and Plaintiff, who 

have been litigating the Village at Wolf Creek Access Project for years, have 

privileged materials related to this dispute. And Defendant would suffer harm if 

Plaintiff got its hands on those documents. The attorney-client privilege and workproduct doctrine prevent that harm. For this reason, Congress created Exemption 5. 

See Hunton v. U.S. Dep’t of Just., 590 F.3d 272, 278–79 (4th Cir. 2010) (explaining 

that Congress drafted Exemption 5 to prevent private parties from using the FOIA to 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 24
25 

deprive the government of the work-product and attorney-client protections otherwise 

available to it in litigation). So Defendant’s declarations sufficiently show that the 

agency would suffer harm from disclosing documents protected by either the 

privilege or the doctrine. See, e.g., F.T.C., 462 U.S. at 23 (recognizing that 

“Congress had the attorney’s work-product privilege specifically in mind when it 

adopted Exemption 5”) (quoting NLRB v. Sears Roebuck & Co., 421 U.S. 132, 154 

(1975)). Thus, the district court properly determined that Defendant met its 

Exemption 5 burden. 

D.

Plaintiff lastly appeals the district court’s order that Plaintiff return or destroy 

two improperly redacted documents Defendant inadvertently disclosed. Plaintiff 

argues that the documents were no longer confidential or privileged because another 

organization posted them online and thus the district court could not order their 

return.5

 In support, Plaintiff cites Anderson, where we said that because text taken 

from journal publications “appear to be in the public domain, no meritorious claim of 

confidentiality” can exist to assert a FOIA exemption. 907 F.2d at 952 (citing 

C.N.A. Fin. Corp. v. Donovan, 830 F.2d 1132, 1154 (D.C. Cir. 1987)). Plaintiff fails 

to explain, however, the similarity between a deliberate journal publication and the 

inadvertently disclosed confidential or privileged information here. It is one thing to 

5

 Plaintiff actually argues that it posted the documents online, but the 

screenshot it submitted as proof shows another organization posting the FOIA 

production. In fact, that same page lists Plaintiff as a “related page,” proving the 

organization that posted the documents differs from Plaintiff. 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 25
26 

afford no confidentiality to a journal containing information purposefully made 

public, but it is quite another to afford no confidentiality to documents mistakenly 

disclosed and then made public after Plaintiff shared those documents with another 

organization to disseminate. Thus, Anderson does not apply. 

Plaintiff also relies on cases holding that an agency cannot tell a FOIA 

requester who it can share records with once the agency properly discloses the 

records. See Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 174 (2004) 

(“[O]nce there is disclosure, the information belongs to the general public. There is 

no mechanism under FOIA for a protective order allowing only the requester to see 

whether the information bears out his theory, or for proscribing its general 

dissemination.”); Maricopa Audubon Soc’y v. U.S. Forest Serv., 108 F.3d 1082, 1088 

(9th Cir. 1997) (“FOIA does not permit selective disclosure of information only to 

certain parties . . . once the information is disclosed to Audubon, it must also be 

made available to all members of the public who request it.”). But for those cases to 

control, the agency must have properly divulged the documents. Here, Defendant 

accidentally turned over two documents without proper redactions that Plaintiff never 

had a right to possess under FOIA. So the issue is not one of who received them, but 

whether any member of the public had a right to receive them. 

At bottom, Plaintiff argues that the district court could not authorize Defendant 

to claw back mistakenly disclosed documents because another organization posted 

them online. But the government waives the ability to exempt a document under 

FOIA only after it has already released the same information to the public. See 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 26
27 

Herrick, 298 F.3d at 1193. Plaintiff does not claim that Defendant made the 

information public before the inadvertent disclosure occurred. Plus, none of the 

cases we relied on in Herrick involved inadvertent disclosures of exempt records. 

See id. (citing Pub. Citizen v. Dep’t of State, 11 F.3d 198, 201 (D.C. Cir. 1993) 

(information previously disclosed through congressional testimony); Davis v. U.S. 

Dep’t of Just., 968 F.2d 1276, 1279 (D.C. Cir. 1992) (information previously 

disclosed through tapes played during a trial); Afshar v. Dep’t of State, 702 F.2d 

1125, 1129–31 (D.C. Cir. 1983) (information not previously disclosed, but similar 

information that the government never acknowledged had allegedly been previously 

released to the public)). What is more, Plaintiff cites no authority barring courts 

from ordering the return or destruction of inadvertently disclosed records subject to 

FOIA exemptions. We agree with the district court that the public dissemination by a 

third party of inadvertently disclosed documents does not erase their exempt status 

and also affirm its claw-back order. 

AFFIRMED. 

Appellate Case: 21-1169 Document: 010110791250 Date Filed: 12/30/2022 Page: 27