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September 18, 1987

Edward Nishnic, et al., Plaintiffs,
United States Department of Justice, Defendant


The opinion of the court was delivered by: OBERDORFER



 This memorandum addresses the second, third, fourth, and fifth phases of a voluminous Freedom of Information Act ("FOIA") suit in which plaintiffs seek access to various government documents relating to the investigation of John (a/k/a Ivan) Demjanjuk by the Justice Department's Office of Special Investigations ("OSI") and to his subsequent denaturalization. The first phase of this FOIA request was the subject of a memorandum filed May 15, 1987, holding that the work product privilege contained in 5 U.S.C. ยง 552(b)(5) protected certain investigative reports sought by plaintiffs from disclosure. See Nishnic v. United States Dept. of Justice, 671 F. Supp. 771 (D.D.C. 1987), appeal pending. That Memorandum, together with the Memorandum filed March 16, 1987, relates the factual circumstances of these requests so that it is not necessary to reiterate them here.

 The second phase of this FOIA request concerns 159 diplomatic messages transmitted from OSI or the Immigration and Naturalization Service ("INS") through the State Department to and from foreign governments. Of these documents, defendant has withheld one in its entirety (Doc. 292), released eleven in full (Docs. 134-142, 252 and 278), and released in part and withheld in part, one hundred and forty seven (Docs. 143-251, 253-277, and 279-291). Fifteen additional diplomatic cables described in defendant's Vaughn index No. 3 (Docs. 487-500, 504), which were released in part, will also be considered in this phase.

 Defendant bases its exemption claims variously on Exemption 2 (matters relating solely to an agency's internal personnel rules and practices); Exemption 5 (work product and deliberative process material involved in trial preparation and evidence evaluation); Exemption 6 (personnel and medical files and similar files whose disclosure would constitute a clearly unwarranted invasion of privacy); Exemption 7(A) (law enforcement records or information whose production could reasonably be expected to interfere with enforcement proceedings); Exemption 7(C) (law enforcement records or information whose production could reasonably be expected to constitute unwarranted invasion of personal privacy, in this case privacy of potential witnesses, individuals of investigative interest to OSI, OSI targets, third parties mentioned in reports, and Justice Department staff); and Exemption 7(D) (confidential sources, i.e., names of foreign entities which provided and are still providing information to OSI).

 Defendant contends that these exemptions have been correctly applied to the documents in question and moves for partial summary judgment. Defendant has supported its motion with a Vaughn index which describes each of the 159 documents at issue, with copies of 141 redacted cables attached, as well as a Declaration by L. Jeffrey Ross ("2d Ross Dec."), Chief of the FOIA Unit in the Criminal Division of the Justice Department, which describes the exemptions that apply to those portions of the documents that have been withheld. Defendant also provides an Affidavit from Neal M. Sher ("Sher Aff."), Director of OSI, which analyzes in detail 12 sample diplomatic messages, an Affidavit from Bruce J. Einhorn, Senior Trial Attorney, OSI, and a detailed Statement of Material Facts Not in Dispute ("DSMF2").



 Plaintiffs contend that defendant has not provided a sufficiently detailed factual foundation in its Vaughn index and supporting affidavits to justify the FOIA exemptions claimed. Plaintiff's Memorandum in Opposition to Defendant's Second Motion for Partial Summary Judgment ("Plaintiffs' 2d Opp.") at 1-4.

 The Court of Appeals recently addressed the standard of specificity required of Vaughn indexes in FOIA cases. See Senate of the Commonwealth of Puerto Rico v. United States Dept. of Justice, 823 F.2d 574, slip op. at 16-23 (D.C. Cir. 1987). In that case, the Department of Justice ("DOJ") sought to withhold a number of documents enumerated in a FOIA request. In support of its withholdings, the DOJ submitted a Vaughn index that the district court described as "set[ting] out 'each document being withheld, why it is being withheld, and the nature of the document to the extent feasible without revealing any details regarding the privileged contents of the document.'" Id. at 17 (quoting Memorandum, No. 84-1829, mem. op. at 7 (D.D.C. Feb. 7, 1986)). The Court of Appeals rejected the district court's view that such explanations provided sufficient justification for the DOJ's claimed exemptions. The case was remanded with directions that the DOJ "supply additional information so that a reviewing court can sensibly determine whether each invocation of [the exemptions] is properly grounded." Puerto Rico, 823 F.2d at 584.

 The Court in Puerto Rico relied on criteria established in Mead Data Central, Inc. v. United States Dept. of the Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242 (D.C. Cir. 1977). See Puerto Rico, 823 F.2d at 587 (noting that the "decision in Mead Data remains perhaps the best general guide" to the detail agencies must provide to support FOIA exemptions). Mead Data addressed withholding claims under FOIA Exemption 5. Before evaluating the particulars of the disputed claim, the Court announced a general rule:


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.

 Mead Data, 566 F.2d at 251 (citing, inter alia, Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974)). A two-fold purpose appears to underlie this rule. First, a relatively detailed index permits "the requesting party to present its case effectively." Mead Data, 566 F.2d at 251 (footnote omitted). Second, a detailed explanation "allow[s] the courts to determine the validity of the Government's claims without physically examining each document." Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 861 (D.C. Cir. 1980).

 In an effort to achieve these purposes in FOIA litigation, a broad standard of specificity has been imposed on defendants seeking to withhold requested information. Vaughn v. Rosen, while announcing "that courts will [not] . . . accept conclusory and generalized allegations of exemptions," 484 F.2d at 826 (citing E.P.A. v. Mink, 410 U.S. 73, 35 L. Ed. 2d 119, 93 S. Ct. 827 (1973)), held that "an analysis sufficiently detailed would not have to contain factual descriptions that if made public would compromise the secret nature of the information," Vaughn, 484 F.2d at 826. In Mead Data, the defendant had submitted affidavits in which "the source, subject matter, and nature of each document were described separately, and although not individually stated for each document, it [was] clear from the nature of the documents . . . which justifications apply to which documents." Mead Data, 566 F.2d at 252. The court there found that "the withheld documents [had been] described in sufficient detail to allow [plaintiff] to argue effectively against [defendant's] exemption claims." Id. at 251. Accordingly, the justifications provided an adequate foundation for judicial review of those claims.

 Upon undertaking that review, the Mead Data Court ruled that "an agency must show by detailed and specific justification that information it seeks to withhold from public disclosure falls within one of the exemptions to the FOIA." Id. at 259. With respect to at least one document at issue, the court ruled that the Air Force had fallen short of that standard. The court admonished, "An agency cannot meet its statutory burden of justification by conclusory allegations" concerning an essential element of a FOIA exemption. Id. at 258.

 In Coastal States, Mead Data served as the standard against which the Department of Energy's ("DOE's") exemption justifications were evaluated and found to be insufficient. The court noted that a typical entry in the DOE's index only


identifie[d] who wrote the memorandum, to whom it was addressed, its date, and a brief description of the memorandum such as "Advice on audit of reseller whether product costs can include imported freight charges, discounts, or rental fees."

 Coastal States, 617 F.2d at 861. The DOE had relied on such skeletal justifications to withhold entire documents under FOIA Exemption 5 as attorney work product and deliberative process information. Id. Citing the fact that the affidavits purporting to support the index were themselves no more than conclusory reiterations of the index's brief descriptions, the court ruled that the DOE's index was "inadequate to permit a court to decide whether the exemption was properly claimed." Id. The court found, for example, that descriptions like that quoted above could not establish that the withheld information had been compiled "in contemplation of litigation," id. at 864-66; nor that it was "predecisional," id. at 868-69. Because these two elements of Exemption 5 had been neither proven nor even addressed in the DOE's index and affidavits, the court could not "determine whether all elements of the privileges were present in each document." Coastal States, 617 F.2d at 861 (interpreting standard articulated in Mead Data). The court ruled, "Conclusory assertions of privilege will not suffice to carry the Government's burden of proof in defending FOIA cases." Id.

 Puerto Rico adopted Coastal States ' standard, Puerto Rico, 823 F.2d at 585, yet declined to "endeavor an encompassing definition of 'conclusory assertion,'" id. at 585. Instead, the court concluded, "It is enough to observe that where no factual support is provided for an essential element of the claimed privilege or shield, the label 'conclusory' is surely apt." Id. The DOJ had in that case submitted a Vaughn index which the court characterized as "consisting almost entirely of each document's issue date, its author and intended recipient, and the briefest of references to its subject matter . . . ." Id. The DOJ's entire Vaughn index has been reproduced in an appendix to Puerto Rico. A typical entry reads: DOCUMENT DELETION EXEMPTION . . . . . . . . . . . . C-28 Memo dated 8-19-80 Information pertaining (B)(5) from Stephen Clark, to the preparation of information Attorney, CRT, to the and matters File. (1 page) RE: for litigation is deleted Telephone conversation. as attorney work product.


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