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ELY v. CRIMINAL DIV. OF THE DOJ

March 28, 1984

DAVID ELY, Plaintiff
v.
CRIMINAL DIVISION OF THE DEPARTMENT OF JUSTICE, Defendant



The opinion of the court was delivered by: GREEN

 This action, brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, is before the Court on plaintiff's "motion under Vaughn v. Rosen to require detailed justification, itemization, and indexing;" defendant's opposition thereto; plaintiff's response to defendant's opposition; plaintiff's "request for discovery: production of documents and things for inspection and other purposes;" plaintiff's motion for an order allowing him to take "oral depositions via telephone;" defendant's motion for summary judgment; plaintiff's response thereto, and the entire record herein. Plaintiff David Ely is proceeding pro se.

 For the reasons stated below, the Court denies plaintiff's "motion under Vaughn v. Rosen to require detailed justification, itemization, and indexing;" plaintiff's "request for discovery: production of documents and things for inspection and other purposes;" and plaintiff's motion for an order allowing him to take "oral depositions via telephone," and grants defendant's motion for summary judgment.

 I. Findings of Fact

 On June 30, 1983, plaintiff filed the instant action seeking documents pertaining to him from the Criminal Division of the Department of Justice ("Criminal Division"). Three Criminal Division records within the scope of plaintiff's request were located and released in full to plaintiff on September 1, 1983. See Exhibit 1 attached to Defendant's Motion for Summary Judgment. The Criminal Division also located one document that originated in the United States Marshal's Service ("Marshal's Service"). This document was referred to the Marshal's Service for review. Upon review, the Marshal's Service released this document, a one-page letter, in its entirety. See Exhibit 2 attached to Defendant's Motion for Summary Judgment.

 II. Conclusions of Law

 Before addressing defendant's motion for summary judgment, the Court will address three motions filed by plaintiff: plaintiff's "motion under Vaughn v. Rosen to require detailed justification, itemization, and indexing;" and two discovery motions: plaintiff's "request for discovery: production of documents and things for inspection and other purposes," and plaintiff's motion for an order allowing him to take "oral depositions via telephone."

 Plaintiff's Motion for a Vaughn Index

 Plaintiff seeks to compel defendant Criminal Division to prepare a Vaughn index. See Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974). The record indicates, however, that plaintiff has received all documents responsive to his request originating from the Criminal Division and the Marshal's Service. "Once the records are produced the substance of the controversy disappears and becomes moot since the disclosure which the suit seeks has already been made." Crooker v. U.S. State Department, 202 U.S. App. D.C. 9, 628 F.2d 9, 10 (D.C. Cir. 1980) citing Ackerly v. Ley, 137 U.S. App. D.C. 133, 420 F.2d 1336, 1340 (D.C. Cir. 1969) (footnote omitted). Because no documents were withheld or deleted by the Criminal Division or the Marshal's Service, a Vaughn index with respect to these documents is not required.

 The IRS, however, did delete portions of nine pages of documents referred to it by the Criminal Division. For this reason, the IRS has submitted an affidavit detailing its justifications for the deletions. See Elias Affidavit.

 To determine whether this affidavit meets the requirements under Vaughn v. Rosen, the Court must take into account that:

 
the underlying purpose of the Vaughn index is to permit the District Court to make a rational decision whether the withheld material must be produced without actually viewing the documents themselves, as well as to produce a record that will render the District Court's decision capable of meaningful review on appeal.

 Dellums v. Powell, 206 U.S. App. D.C. 383, 642 F.2d 1351, 1360 (D.C. Cir. 1980) (footnote omitted). The Elias Affidavit, read together with the redacted versions of the nine pages, enables the Court to make a rational decision whether the deleted portions of the nine pages must be produced without viewing the withheld portions. See discussion infra pp. 10-11. Accordingly, the Court denies plaintiff's "motion under Vaughn v. Rosen to require detailed ...


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