DIA did not submit a Vaughn index to justify its withholding, but has instead provided a Declaration of Lt. Col. Carl Meyer (the "Meyer Declaration") which lists each withheld document in a paragraph section, briefly describes the document, and then lists the reasons this document should be exempt from release. This declaration is attached to Defendants' Opposition to Plaintiff's Cross-Motion for Summary Judgment. Out of twenty-one withheld documents, two of the documents discussed in this declaration were released (Documents 4(d) and (e)) and two were found not to pertain to plaintiff (Documents 4(a) and (b)). Therefore, there are seventeen documents that are currently withheld by DIA.
Despite these submissions on behalf of the defendants, we are unable on the basis of this record to determine the validity of defendants' claimed exemptions. Fortunately, we apparently are only concerned with twenty-eight documents which remain in contention.
As to these documents, the Court requires a supplementation of the materials already supplied. The court is required to conduct a de novo review of an agency's action in FOIA and Privacy Act cases. 5 U.S.C. § 552(a)(4)(B) (FOIA); 5 U.S.C. § 552a(g)(3)(A) (Privacy Act). The declarations submitted in this case lack supporting details which would allow the Court to properly review the government's claimed exemptions. See Senate of Puerto Rico v. United States Dept. of Justice, 262 U.S. App. D.C. 166, 823 F.2d 574, 585 (D.C. Cir. 1987); Coastal States Gas Corp. v. Dept. of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 861 (D.C. Cir. 1980).
For example, Lt. Col. Meyer asserts in his declaration that most of the documents were withheld because they were prepared in contemplation of "pending litigation." Yet the declaration contains no discussion of pending or reasonably anticipated litigation which would exempt the documents from release under the work-product doctrine. Also, the contents of the documents must be more thoroughly described so that the court can ensure that the documents are indeed work-product. Cf. Nishnic v. U.S. Dept. of Justice, 671 F. Supp. 776, 784 (D.D.C. 1987) (level of detail in Vaughn index sufficient for court to uphold disclosure under work-product). The declarations which describe documents allegedly exempt under the deliberative process privilege are similarly lacking in supporting details, and the court therefore can not rule on the propriety of the claimed exemptions for these documents. We therefore order the government to submit additional materials justifying the claimed exemptions for the withheld documents in this case.
An order consistent with the foregoing has been entered this day.
ORDER - November 14, 1990, Filed
Upon consideration of each party's motion for summary judgment, the oppositions thereto, and the entire record herein, and for the reasons stated in an accompanying Memorandum Opinion entered this day, it is by the Court this 14th day of November, 1990,
ORDERED that both parties' motions for summary judgment are denied without prejudice ; and it is
ORDERED that defendants are to submit the following additional information to the court to justify their withholding of the remaining documents in this case:
1. If a document is withheld under a claim of work-product privilege, defendants are to state the nature of the litigation that was pending or list concrete facts which would support the reasonableness of a belief that litigation was likely when the document was prepared. Defendants must also describe the content of the document in sufficient detail so the court can ensure the document is work-product material.