2. Exempt status stated for descriptive information withheld
Plaintiff states that when identifying elements of index entries, such as names and subjects, are themselves withheld pursuant to an exemption, the agency must state that the material has been withheld pursuant to an exemption, and must explain why the exemption applies to that information.
With respect to names of agents, investigatory targets, and third parties, the defendant has fulfilled this obligation by stating, "Each of the persons about whom information was withheld has a substantial privacy interest in not being identified with a criminal law enforcement investigation." (McNemar Decl. at 10) (justifying names withheld under § 552 (b)(6); id. at 14-15 (justifying names withheld under § 552 (b)(7)(C)).
However, where defendant failed to state the "subject" of a withheld document, plaintiff is justified in demanding that the defendant explain generally why it comes within the claimed exception.
3. Ultimate fate of policies discussed in documents withheld under "deliberative process" exemption
Plaintiff demands additional information about policies discussed in documents withheld in whole or in part under FOIA's "deliberative process" exemption. This exemption, intended to protect the quality of agency decisions by exempting documents discussing policy proposals from FOIA's disclosure requirements, arises from § 552(b)(5).
N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 151, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975).
As recognized by numerous decisions interpreting § 552(b)(5), this exemption applies to documents that are both "deliberative," in that they reflect the give and take of agency decisionmaking, and are "predecisional." Sears, Roebuck, 421 U.S. at 150-52; Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 868 (D.C. Cir. 1980). However, if a document covered by this exemption is later expressly adopted or incorporated in a statement of agency policy, the document becomes disclosable, unless exempt for some other reason. 421 U.S. 132 at 161.
Plaintiff interprets this "later incorporation" rule to mean that all discussions of a policy become disclosable if the agency later adopts the policy. (Mem. at 14.) Plaintiff thus asks that for every document withheld pursuant to the deliberative process exemption, the government specify what policy was under consideration and affirm that the policy discussed has neither been adopted nor incorporated by reference. Implied in plaintiff's request is the expectation of disclosure for any document concerning a policy that has been adopted by defendant.
Plaintiff's request goes beyond the disclosure required by Sears, Roebuck. An exempt document does not become disclosable because the policy it discusses is ultimately adopted. Predecisional deliberative communications are protected from disclosure. Sears, Roebuck, 421 U.S. at 151-52 (citations omitted). Rather, an exempt communication becomes disclosable if the document itself is adopted, formally or informally, as a statement of agency policy. "If an agency chooses expressly to adopt or incorporate by reference an intra-agency memorandum previously covered by Exemption 5 . . . that memorandum may be withheld only on the ground that it falls within the coverage of some exemption other than Exemption 5," id. at 161 (emphasis added); Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 866 (D.C. Cir. 1980) ("Even if the document is predecisional at the time it is prepared, it can lose that status if it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public.") (emphasis added).
Although the plaintiff reads the "later incorporation" rule too broadly, its request for more details about documents withheld as deliberative has merit. An agency that claims the deliberative process exemption bears responsibility for establishing what deliberative process is at issue, and the role played by the documents in issue in the course of that process. Coastal States Gas Corp., 617 F.2d at 868; Vaughn v. Rosen ("Vaughn II"), 173 U.S. App. D.C. 187, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975); 5 U.S.C. § 552(a)(4)(B). Agencies may not use the deliberative process exception to shield "orders and interpretations which it actually applies in cases before it." Sterling Drug, Inc. v. FTC, 146 U.S. App. D.C. 237, 450 F.2d 698, 708 (D.C. Cir. 1971). "A strong theme of our opinions has been that an agency will not be permitted to develop a body of 'secret law,' used by it in the discharge of its regulatory duties and in its dealings with the public, but hidden behind a veil of privilege because it is not designated as 'formal,' 'binding,' or 'final.'" Coastal States Gas Corp., 617 F.2d at 867. See also N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 153, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975) ("Exemption 5, properly construed, calls for 'disclosure of all "opinions and interpretations" which embody the agency's effective law and policy") (citations omitted).
While many of the documents for which the deliberative process exemption is claimed are intra-agency communications about active legal controversies, a category that has been called "a classic case of the deliberative process at work," Murphy v. Department of the Army, 198 U.S. App. D.C. 418, 613 F.2d 1151, 1154 (D.C. Cir. 1979), and others are clearly protected from disclosure as attorney work product, additional information is needed to determine whether certain documents are part of the defendant's deliberative process.
Accordingly, defendant must show that any document not clearly connected to an active legal controversy is "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters . . . [as] part of the agency give-and-take . . . by which the decision itself is made." Vaughn v. Rosen, 173 U.S. App. D.C. 187, 523 F.2d 1136, 1144 (D.C. Cir. 1975). Defendant must also affirm that any such document was not later incorporated as agency policy.
4. Providing facts that documents compiled for law enforcement purposes
Plaintiff proposes that for each of the many documents claimed to be exempt as "investigatory records compiled for law enforcement purposes," 5 U.S.C. § 552(b)(7), defendant must "supply sufficient facts" to enable the Court to determine that the records were in fact compiled for law enforcement. (Mem. at 15.)
The sole case plaintiff supplies in support of this contention is John Doe Corp. v. John Doe Agency, 850 F.2d 105 (2d Cir. 1988). But John Doe does not address the government agency's obligation to supply facts about law enforcement records; rather, it rejected exemptions under the law enforcement provisions where the district court had "made no finding as to whether the records sought were 'compiled for law enforcement purposes.'" Id. at 108. Here, the defendant has specifically stated that all records withheld in whole or in part under § 552(b)(7) were compiled as part of criminal investigations into possible criminal violations of obscenity and related statutes, and are thus records or information compiled for law enforcement purposes. (McNemar Decl. at 13, 14, 17, 18.) The Court holds that this representation is sufficient.
5. Information on status of law enforcement proceedings
Plaintiff asserts that documents pertaining to law enforcement proceedings may be withheld only if the proceedings are "active or prospective," and accordingly demands detailed information about each case, prosecution, or investigation referred to in the index. Specifically, plaintiff asks for the name, jurisdiction, docket number, and current status of all proceedings, as well as whether any "official action" has been taken in the proceeding.
Nothing in the cases cited by plaintiff supports its demand for such detailed information. However, the cases plaintiff cites, N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978); Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir. 1980); and Ehringhaus v. F.T.C., 525 F. Supp. 21, 23 (D.D.C. 1980) do support the proposition that investigatory files compiled for closed cases may be disclosable. The Supreme Court has written that the exemption under § 552(b)(7) "does not endlessly protect material simply because it was in an investigatory file," N.L.R.B. v. Robbins Tire & Rubber, 437 U.S. 214, 230, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978), and the D.C. Circuit has stated, "There is no reason to protect yellowing documents contained in long-closed files." Coastal States Gas Corp., 617 F.2d at 870. In addition, the court cannot adequately evaluate claims that documents are exempt as attorney work product without knowing whether they have been prepared in anticipation of specific litigation or for trial. See Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947); Coastal States Gas Corp., 617 F.2d at 865 ("It is firmly established that there is no privilege at all unless the document was initially prepared in contemplation of litigation, or in the course of preparing for trial.").
These cases impose an obligation on the defendant to specify whether the investigations listed in the index refer to particular cases or to generalized classes of prospective cases; to disclose whether particular cases are open or closed; and if closed, to explain why documents about them nonetheless remain exempt from disclosure. The defendant is directed to provide this information in its revised index.
6. Information about alleged interference or circumvention
Plaintiff seeks further justification for documents withheld pursuant to 5 U.S.C. § 552(b)(7)(A), which protects investigatory records compiled for law enforcement purposes when production would "interfere with enforcement proceedings," and for those withheld under § 552(b)(7)(E), which protects such documents when production would "disclose investigative techniques and procedures." Plaintiff would oblige defendant to make an individualized showing of likely interference or circumvention for each document or part thereof withheld pursuant to these exemptions. (Mem. at 18.)
Plaintiff is correct that defendant "must supply sufficient facts about the alleged interference or circumvention for the Court to adequately test the claimed exemption," (Mem. at 18.) Supplying facts for the court's evaluation of exemptions is the whole purpose of a Vaughn index. Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 826 (D.C. Cir. 1973). This does not, however, necessarily require an individualized showing for each document. A court is entitled to decide that "with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally 'interfere with enforcement proceedings.'" N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 236, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978); United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 777, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989); Wright v. O.S.H.A., 822 F.2d 642, 646 (7th Cir. 1987); J.P. Stevens & Co. v. Perry, 710 F.2d 136, 141-42 (4th Cir. 1983).
According to the defendant's declaration that accompanied the Vaughn index already supplied, release of the documents withheld under § 552(b)(7)(A) could interfere with enforcement proceedings because they "relate to strategies, investigative trends, emphasis, and targeting schemes which could reasonably enable targets or potential violators to circumvent prosecution." (McNemar Decl. at 13.) It is readily apparent that revealing information about prosecution strategy for pending cases could lead to interference with enforcement proceedings. But the possibility of interference is not so evident when the "investigations" referred to comprise closed cases or a generalized class of prospective cases. Accordingly, the court directs that for investigative documents claimed exempt under 7(A) but not related to any particular, pending case, the defendant must provide sufficient information for the court to decide whether disclosure will actually threaten "enforcement proceedings." Following Robbins, the defendant may, if it wishes, provide this information by categorizing both types of documents and types of investigations.
The Vaughn index provided by defendant is insufficient in certain respects to allow this court to determine whether documents withheld by the government are properly exempt from disclosure under the Freedom of Information Act. The motion for a Vaughn index is granted, with additional information to be supplied by the defendant as directed in this Opinion.
Dated: New York, N.Y.
October 1, 1993
Pierre N. Leval, U.S.D.J.