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ACLU FOUND. v. UNITED STATES DOJ

October 1, 1993

AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.


Leval


The opinion of the court was delivered by: PIERRE N. LEVAL

PIERRE N. LEVAL, U.S.D.J.

 Plaintiff American Civil Liberties Union Foundation (ACLUF) moves for an order requiring the defendant, the United States Department of Justice (DOJ), to provide a more informative "Vaughn index," see Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), covering 188 documents demanded by plaintiff in this action for disclosure under the Freedom of Information Act, 5 U.S.C. § 552. The sole issue on the motion is the adequacy of the index that defendant has supplied. Plaintiff alleges that the Vaughn index already provided by DOJ is not sufficient to allow the court to determine whether, as claimed by DOJ, these documents meet the specific criteria set out in FOIA for exemption from disclosure.

 In mid-1991, plaintiff filed a Freedom of Information Act request that defendant DOJ supply certain documents about its National Obscenity Enforcement Unit and Child Exploitation and Obscenity Section. After experiencing what it regarded as delays in obtaining the documents sought, and exhausting administrative appeals, plaintiff filed the complaint underlying this motion in March 1992. In May 1992, defendant answered the complaint, asserting that it held 229 documents responsive to plaintiff's request. Of these documents, defendant produced 41 in full, 95 redacted in part, and withheld 93. Defendant claimed that documents not disclosed in full were exempt from disclosure under various provisions of the Freedom of Information Act, 5 U.S.C. § 552(b).

 The Freedom of Information Act, or FOIA, sets a policy favoring government disclosure of documents. EPA v. Mink, 410 U.S. 73, 79-80, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973) (Act is "broadly conceived"); Department of the Air Force v. Rose, 425 U.S. 352, 361, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976) (Act's "basic policy" is disclosure); N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 220-21, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978). Documents are exempt from disclosure only if they come within one of the nine exemptions specified in the Act. 5 U.S.C. § 552(b); Robbins Tire & Rubber, 437 U.S. at 221.

 When an agency withholds documents pursuant to a FOIA exemption, the petitioner is placed in the difficult position of having to argue for their disclosure without knowing what they contain. Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 823-24 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974). A court has the option of examining contested documents in camera, 5 U.S.C. § 552(a)(4)(B). But the court may lack the information necessary to establish whether the documents are protected. Also, this can place a substantial burden on the court. Vaughn, 484 F.2d at 825-26.

 The D.C. Circuit Court long ago responded to these difficulties by requiring that when agencies withhold documents under a FOIA exemption claim, they must provide detailed information including descriptions of all documents withheld in full or in part and identification of the FOIA exemptions claimed for each document. This detailed listing is known as a Vaughn index. Its purpose is to "(1) assure that a party's right to information is not submerged beneath governmental obfuscation and mischaracterization, and (2) permit court system effectively and efficiently to evaluate the factual nature of disputed information." Id. at 826. The Second Circuit has adopted the use of the Vaughn index to assist litigants and the court in evaluating FOIA exemptions. E.g. Donovan v. F.B.I., 806 F.2d 55 (2d Cir. 1986); Brown v. F.B.I., 658 F.2d 71 (2d Cir. 1981). The FOIA statute places the burden on the government to justify withholding documents. 5 U.S.C. § 552(a)(4)(B).

 DOJ agreed to supply a Vaughn index to all documents it withheld in full or in part, and did so. Plaintiff claims that the Vaughn index supplied is deficient in both form and content. This claim is to be evaluated not by measuring defendant's submission against a model Vaughn index, but by assessing whether it provides the information required to fulfill the purpose of an index:

 
Although the requirements for an index and explanation have been widely recognized as useful tools, it must be emphasized that these requirements "are not ends in themselves," but are merely methods or procedures that assist the trial court in its de novo review.

 Donovan, 806 F.2d at 58-59 (quoting Brown, 658 F.2d 71 at 74).

 Discussion

 The plaintiff makes numerous objections to defendant's index, which are discussed below:

 A. Segregability

 Plaintiff asserts that defendant has not met FOIA's requirement that where disclosable and exempt information are intermingled, "Any reasonably segregable portion of a record shall be provided . . . after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b). Thus, agencies responding to FOIA requests must furnish disclosable portions of documents even though portions of the document may be exempt. Donovan v. F.B.I., 806 F.2d 55, 58 (2d Cir. 1986); Brown v. F.B.I., 658 F.2d 71, 74 (2d Cir. 1981); Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 827 n.22 ((D.C. Cir. 1973).

 Plaintiff protests that DOJ has given no assurance that the requirement of § 552(b) has been met. Plaintiff asks that defendant be required to expressly certify that the documents withheld have been inspected to determine whether any portions are disclosable.

 Defendant counters that "the extent to which redacted documents were produced to plaintiff shows . . . . conscientious agency segregation of information" (Opp'n at 4), and that further assurances that segregable material has been disclosed are unnecessary.

 It appears to the court that the plaintiff is justified in asking for specific assurance of compliance with § 552(b). Defendant is directed to furnish such certification.

 B. Identification of recipients of each document

 Plaintiff demands that defendant disclose the names and positions of each person to whom a withheld document was addressed, circulated or disclosed.

 Identification of recipients can be relevant to evaluation of claimed exemptions, for in some cases the fact of circulation or of disclosure to third parties after preparation may undermine a claim of exemption. Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 868 (D.C. Cir. 1980) (identity of parties to a memorandum is important to evaluating deliberative process exemption); Coastal Corp. v. Department of Energy, 496 F. Supp. 57, 60 (D. Del. 1980) (circulation list has "obvious importance" for evaluating deliberative process and law enforcement exemptions); Education/Instruccion, Inc. v. H.U.D., 471 F. Supp. 1074, 1081-82 (D. Mass. 1979) (authorized disclosure waives § 552(b)(5) exemption for inter-office memoranda). Defendant responds that it would be unreasonable to require it to investigate the circulation of documents. I agree. That argument, however, does not excuse defendant from furnishing such circulation information as is known without need of investigation or is apparent, including indications of distribution that appear on the face of the documents, or are readily apparent upon inspection of the file, or known to those making the examination. DOJ is directed to furnish such information.

 C. Identification of custodian of each document

 The parties similarly dispute whether defendant should be required to identify the custodian of withheld documents. Such information can be pertinent to the evaluation of a claimed exemption. The defendant makes the same objection as above. The court's ruling is similar. Defendant is not required to do research to determine the custodian, but must disclose facially apparent information. Thus if the index entry relates to a document DOJ found in the files of X, the index should so state.

 D. More detailed information about index entries

 Plaintiff has requested more detailed information on particular documents. (Mem. at 12.) The court has evaluated these requests by asking whether the additional information sought is needed to evaluate the claimed exemption. These requests ...


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