United States District Court, Southern District of New York
January 31, 1990
HERMAN BENJAMIN FERGUSON, PLAINTIFF,
FEDERAL BUREAU OF INVESTIGATION, DEFENDANT.
The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
On October 24, 1989, in Ferguson v. FBI, 722 F. Supp. 1137,
1145 (S.D.N.Y. 1989), the Court ordered that:
(1) the Defendant's motion to extend the time required
to respond to Plaintiff's requests under the
Freedom of Information Act [(FOIA)] is GRANTED IN
PART AND DENIED IN PART;
(2) the Plaintiff's motion for a preliminary injunction
is GRANTED IN PART AND DENIED IN PART;
(3) the Defendant, within 85 days of the receipt of
this order, is to complete processing all documents
from the 1963-1970 portion of Plaintiff's April
1989 request for documents relating to himself;
first, the Defendant shall process the January
1965-October 1968 portion of these documents; after
Defendant has prepared and served upon Plaintiff
the January 1965-October 1968 portion of the April
1989 request, Defendant is to commence processing
the documents from the periods January 1963-December
1965 and November 1968-December 1970.
(4) the Defendant, within 32 days of the completion
of its response to the 1963-1970 portion of the
April 1989 request, is to prepare and serve upon
Plaintiff a Vaughn index of the 1963-1970 portion
of the documents produced pursuant to the 1980
(5) the Defendant is to work diligently and in good
faith to respond to the 1971-1989 portion of the
April 1989 request for documents and to prepare
a Vaughn index for the 1971-1980 portion of the
documents produced pursuant to the 1980 request
(6) the parties are to inform the Court after Defendant
responds to Plaintiffs
April 1989 FOIA request, what action, if any, is sought
with respect to Defendant's preparation of a Vaughn
index with respect to the response to the April 1989
Defendant on January 18, 1990 timely provided plaintiff with
the 1963-1970 portion of the April 1989 request. Plaintiff has
provided the Court with a copy of those records produced. Among
these are documents containing redactions and certain documents
are blacked out in their entirety. On January 25, 1990, plaintiff
presented the Court with an order to show cause, requesting a
hearing on why an order should not be issued:
(1) sanctioning defendant for "its deliberate
disobedience of this Court's Opinion and Order of
October 24, 1989 and for arbitrarily and capriciously
withholding documents responsive to plaintiff's
(2) requiring defendant to reprocess of the 1963-1970
portion of the April 1989 request;
(3) requiring defendant to produce a Vaughn index in
120 days for the 1963-1970 portion of the April 1989
(4) requiring defendant to produce for in camera
inspection all documents responsive to the 1989
request which were compiled from 1963 through
Both parties appeared before the Court for oral argument and
defendant has submitted a memorandum in response to plaintiff's
papers and plaintiff has submitted a reply memorandum.
The intentions of Congress govern the Court's response to
plaintiff's allegations that portions of those documents
processed in the last three months were improperly redacted.
Congress provided for a procedure to challenge "agency records
improperly withheld" under FOIA in 5 U.S.C. § 552(a)(4)(B).
FOIA provides that this Court:
has jurisdiction to enjoin the agency from withholding
agency records and to order the production of any
agency records improperly withheld from the complainant.
In such a case the court shall determine the matter de
novo, and may examine the contents of such agency records
in camera to determine whether such records or any part
thereof shall be withheld under any of the [FOIA]
exemptions. . . .
5 U.S.C. § 552(a)(4)(B) (emphasis added). These provisions do
not contemplate that the Court determine, at this stage in the
proceedings, that defendant should either suffer sanctions or
reprocess the documents. The Court must first conduct a de novo
review of the redactions and has options available to it in
pursuing this task.
Plaintiff requests that the Court order an expedited Vaughn
index and simultaneously conduct in camera review. Defendant
responds that the Court should refrain from engaging in in camera
review, await the production of the Vaughn index for the 1980
request before ordering a Vaughn index, and then only require a
generalized Vaughn index.
The Second Circuit has held, "In camera review is the
exception, not the rule, and the propriety of such review is a
matter entrusted to the district court's discretion." Local 2,
I.B.E.W., AFL-CIO v. N.L.R.B., 845 F.2d 1177, 1180 (2d Cir. 1988)
(citations omitted). Inspection of files in camera is a
burdensome demand on a federal trial court, Id. (citing Mead Data
Cent., Inc. v. United States Dep't of the Air Force,
566 F.2d 242, 250 a. 10 (D.C.Cir. 1977)), and consequently is most often
appropriate "when only a small number of documents are to be
examined." Donovan v. FBI, 806 F.2d 55, 59 (2d Cir. 1986). Since
a "sufficiently detailed" Vaughn affidavit can make in camera
review unnecessary, Id. (citing Brinton v. Department of State,
636 F.2d 600, 606 (D.C.Cir. 1980), cert. denied, 452 U.S. 905,
101 S.Ct. 3030, 69 L.Ed.2d 405 (1981)), the Court declines to
engage in an in camera inspection at this time and orders the
production of a so called Vaughn affidavit or index.
The Court in its Opinion and Order of October 24, 1989,
explained what constitutes a Vaughn index and its purpose:
Preparation of a Vaughn index `require[s] agencies to
itemize and index the documents requested, segregate
their disclosable and non-disclosable portions, and
correlate each non-disclosable portion with the FOIA
provision which exempts it from disclosure.' Brown v.
FBI, 658 F.2d  at 74. [2nd Cir. 1981]. The courts
created the concept of a Vaughn index as a tool to
`assist the trial court in its de novo review' of
agency refusals to disclose materials or portions
of materials. Donovan v. FBI, 806 F.2d  at 58-59.
See Vaughn, 484 F.2d  at 826 (index `permit[s] the
court system effectively and efficiently to evaluate
the factual nature of disputed information').
722 F. Supp. at 1144.
There is no merit to defendant's contentions that plaintiff's
request for an index is premature and that a detailed Vaughn
index is unnecessary. In the Opinion and Order of October 24,
1989, the Court held that a court order to produce a Vaughn index
for the April 1989 request would be premature because
"[d]ecisions by the defendant to refuse to disclose portions of
the material requested have not even been made yet." 722 F. Supp.
at 1145 (citing Knight Publishing Co. v. United States,
608 F. Supp. 747, 749 (W.D.N.C. 1984)). That Opinion and Order then
added that if the FBI denies plaintiff access to portions of the
1989 request then a Vaughn index would be required. The defendant
has made the decision to refuse to disclose certain documents and
plaintiff has objected to defendant's decision; hence, the
Court's ordering the production of a Vaughn index at this time is
The Court disagrees with defendant's second contention that a
detailed Vaughn index is not necessary. The plaintiff has made
serious allegations concerning the propriety of defendant's
decisions not to disclose certain documents and has produced
versions of the same documents which the FBI has made available
to others which contain fewer redactions. Justification of a
decision to withhold a portion of a document requested pursuant
to FOIA is no simple matter. The challenge of de novo review is
especially difficult when the redactions are as extensive as they
are in this case. Approximately 400 pages are entirely withheld
and the majority of the writing on the other pages is blacked
out. To aid the court in this mammoth task of de novo review,
defendant must produce a fully detailed Vaughn index, as
described in the section of the Opinion and Order of October 24,
1989 quoted above. See 722 F. Supp. at 1144.
The final issue is the scheduling of the Vaughn index. The
Opinion and Order of October 24, 1989, explained why expedited
commencement of the process of compiling a Vaughn index is
imperative in this case. 722 F. Supp. at 1144-45 ("FOIA requires
the de novo review process to be expedited and plaintiff has
demonstrated a particularly urgent need for such review of
defendant's non-disclosure"). Defendant has submitted affidavits
that it would take 60 days to prepare a Vaughn index for 984
pages of documents. 722 F. Supp. at 1139. At issue here are 1,411
pages, for which it should proportionately take defendant 86 days
to produce a Vaughn affidavit.
IT IS, THEREFORE ORDERED that: Defendant produce a detailed
Vaughn index of the 1963-1970 portion of the April 1989 request
within 86 days of the receipt of this order. Plaintiff's requests
for contempt sanctions and reprocessing are denied at this time.
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