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SIBILLE v. FED. RESERVE BANK OF NEW YORK

July 11, 1991

CHRISTINE M. SIBILLE, PLAINTIFF,
v.
FEDERAL RESERVE BANK OF NEW YORK, DEFENDANT.



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

MEMORANDUM AND ORDER

This suit under the Freedom of Information Act ("FOIA") arises out of a request by plaintiff Christine M. Sibille for notes prepared by certain officers of defendant Federal Reserve Bank of New York ("Bank"). On this motion, plaintiff seeks to compel the production of an index of the requested documents, pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). The Bank cross-moves for summary judgment on grounds of lack of subject matter jurisdiction, and intervenor-defendant Board of Governors of the Federal Reserve System ("Board") moves to dismiss also for lack of subject matter jurisdiction.

BACKGROUND

On May 31, 1990, Sibille made similar FOIA requests on the Bank and the Board, seeking documents relating to communications of the Bank and Board referring to Drexel Burnham Lambert Group Inc. Sibille, who is an attorney associated with the law firm of Jones, Day, Reavis & Pogue, made the requests in connection with the firm's representation of the Official Committee of Unsecured Creditors of Drexel Burnham Lambert Group Inc.

On June 7, 1990, the Bank responded, stating that it believed it was not subject to FOIA, but nevertheless had a policy to "comply with the spirit of FOIA." The Bank wrote that it would need additional time to respond to the request, citing 5 U.S.C. § 552(a)(6)(B), and delayed its response time to June 28, 1990.

On June 28, 1990, the Bank informed Sibille of the existence of responsive documents, but asserted that the documents would be withheld pursuant to Exemption 5 of FOIA.*fn1 On July 11, 1990, Sibille appealed the decision. On August 13, 1990, this administrative appeal was denied. Throughout this process, Sibille claimed entitlement to a Vaughn index of documents to which she was denied access. The Bank refused to provide an index.

On July 20, 1991, the Board informed Sibille that it had located no responsive documents.

On September 12, 1990, Sibille filed this complaint seeking a Vaughn index and the production of the requested documents. According to plaintiff, the Bank subsequently informed her that she should address her request to the Board, as the documents requested concerned information of the Board. On October 23, 1990, the Board denied plaintiff's FOIA request, stating that the responsive documents were not agency records within the meaning of FOIA and further stating that the documents were also subject to FOIA exemptions 5 and 8.*fn2 Plaintiff appealed the Board's denial of her FOIA request. The appeal was denied on November 20, 1990.

DISCUSSION

A.  Vaughn Index

Under the provisions of FOIA, agency records may be exempt from disclosure on various grounds. See 5 U.S.C. § 552(b). When an agency claims an exemption, the party requesting disclosure faces the difficult task of contesting the claim without being able to review the documents. To help compensate for the informational imbalance, courts may order the agency to provide an index of the documents, to segregate the diselosable from the non-diselosable portions, and to correlate each non-disclosable portion to a specific FOIA exemption. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974); see also Brown v. Federal Bureau of Investigation, 658 F.2d 71, 73-74 (2d Cir. 1981). Such a "Vaughn index" affords the party seeking disclosure a better opportunity to evaluate the agency's claims, and the more robust adversary process which results assists the court in its in camera review of the documents.

A Vaughn index does not appear necessary at this time. The defendants have submitted affidavits of the authors of the documents at issue. Because the affidavits are sufficient for resolving the dispositive issue of whether the documents are agency records, I will not ...


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