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INFORMATION ACQUISITION CORP. v. DOJ

January 16, 1978

INFORMATION ACQUISITION CORP., Plaintiff,
v.
DEPARTMENT OF JUSTICE, et al., Defendants



The opinion of the court was delivered by: SIRICA

 This action involves a request for information under the Freedom of Information Act (FOIA) wherein plaintiff -- the Information Acquisition Corp. -- seeks to obtain "all records" maintained by the Department of Justice "that in any manner whatsoever relate to the federal employment of Eugene M. Propper." Mr. Propper is an Assistant United States Attorney employed by the Department of Justice in Washington, D.C. The case is presently before the Court on defendants' motion to dismiss, or in the alternative, for summary judgment.

 I.

 Plaintiff's request for release of information regarding Mr. Propper was received by the Department of Justice on May 10, 1977. Defendants concede that they did not respond to the request until May 31, 1977. Meanwhile, on May 24, plaintiff had filed this action seeking to compel release of the requested information. Contemporaneously with its complaint, plaintiff filed a motion to require detailed justification, itemization and indexing of the requested records under the authority of the D.C. Circuit's decision in Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974). In an order dated September 29, 1977, this Court granted plaintiff's Vaughn motion, directing defendant to file "an itemization and index of the records which are the subject of this action and a detailed justification of all claims of exemption."

 Shortly thereafter, the government filed the instant motions, accompanied by the following documents: 1) a two-page affidavit from an official in the information appeals office of the Department of Justice; 2) a copy of the Department's letter of May 31 denying plaintiff's FOIA request; 3) a list of sixty-four documents, consisting of a brief identification and the statutory claim of exemption for each document; 4) a one-page sheet summarizing the various positions, duty stations, grades and salaries which Mr. Propper has held at the Department; and 5) blank copies of various Civil Service Commission standard employment forms. Thirty of the sixty-four identified documents -- which in the aggregate apparently make up Mr. Propper's official personnel file -- are simply completed versions of those standard forms which Mr. Propper has encountered during his tenure at the Department.

 Plaintiff has indicated that the purpose of its FOIA request is generally to investigate the qualifications and competency of Mr. Propper, particularly as they relate to an investigation which Mr. Propper is currently conducting. *fn1"

 Defendant's arguments can be summarized briefly. The government first claims that Information Acquisition Corp. has failed to exhaust its administrative remedies because it filed this lawsuit without taking an administrative appeal from the adverse determination in the May 31 letter. Second, the Department argues that it is entitled to summary judgment because, as a matter of law, the first sixty-three documents fall within the b(6), 5 U.S.C. § 552(b)(6) (1970), exemption to the FOIA and the sixty-fourth falls within the b(7)(A) exemption, 5 U.S.C. § 552(b)(7)(A) (Supp. V 1975). In large part, plaintiff responds to these later contentions with the assertion that defendant has failed to comply with the requirement of detailed itemization and explanation of claims of exemption required under Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1974), and Mead Data Central, Inc. v. Department of the Air Force, 566 F.2d 242 (D.C. Cir. 1977), as well as this Court's order of September 29.

 Turning first to defendant's claim that the plaintiff has failed to exhaust its administrative remedies, the Court is unable to discern how this contention can have any merit in light of 5 U.S.C. § 552(a)(6)(C) (Supp. V 1975). That subsection states: "Any person making a request to any agency for records . . . shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph." The applicable time limit provision provides that the agency shall determine whether to comply with a request within ten days of receipt of the request and "shall immediately notify the person making such request of such determination and the reasons therefore." 5 U.S.C. § 552(a)(6)(A)(i) (Supp. V 1975).

 The plaintiff's request was received on May 10, 1977. By the government's admission, it did not respond to the request until May 31, well after 10 days, excluding Saturdays and Sundays, had passed. The Department does not contend that it issued a written notice for a ten-day extension, as allowed by 5 U.S.C. § 552(a)(6)(B) (Supp. V 1975), or that there existed the particularized "unusual circumstances" required for such an extension. In fact, the government's motion does not address the section 552(a)(6) issue in any manner whatsoever. It merely asserts, in a one paragraph argument, that plaintiff did not appeal the determination announced in the May 31 letter. The Court finds that plaintiff must be deemed to have exhausted its administrative remedies.

 III.

 The Vaughn and Mead Data cases establish a fundamental principal for the resolution of FOIA actions in a district court: the agency cannot sustain its burden of demonstrating that records were properly withheld where there is a genuine factual dispute as to the nature of the underlying documents. See Mead Data Central, Inc. v. Department of the Air Force, 566 F.2d 242 (D.C. Cir. 1977); Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973). As noted by the Court of Appeals in Mead Data : "Where there is . . . a factual dispute over the nature of the information sought in a FOIA suit, the lack of access of the party seeking disclosure undercuts the traditional adversarial theory of judicial dispute resolution." 566 F.2d at 250. To remedy this situation, Vaughn required the agency to provide a "detailed justification" of its claims of exemption, together with specific itemization and indexing of the contents of the withheld records.

 Mead Data further emphasized the need for the agency to address itself to the question of segregability of requested documents, particularly since the FOIA now explicitly requires that "[any] reasonably segregable portion of a record shall be provided . . . after deletion of the portions which are exempt." 5 U.S.C. § 552(b) (Supp. V 1975). The Mead Data court therefore required "that when an agency seeks to withhold information it must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." 566 F.2d at 251.

 The degree of specificity of itemization, justification, and correlation required in a particular case will, however, depend upon the nature of the document at issue and the particular exemption asserted. This is because the Vaughn and Mead Data requirements are not ends in themselves, but only means by which the FOIA plaintiff gains the ability "to present its ...


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