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SAVADA v. UNITED STATES DOD

November 14, 1990

ALAN JAY SAVADA, Plaintiff,
v.
UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants



The opinion of the court was delivered by: PRATT

 JOHN H. PRATT, UNITED STATES DISTRICT JUDGE

 Plaintiff subsequently sought to investigate the basis for the denial of his SCI clearance. In October of 1987, plaintiff made a formal demand on DIS and DIA, requesting access to his records under the Freedom of Information Act, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. Both agencies provided him with the vast majority, but not all, of the records plaintiff requested. *fn2" After appealing both of these agency determinations, *fn3" plaintiff filed this suit on July 17, 1989, against the Department of Defense, DIS, and DIA *fn4" requesting that the court order the defendants to identify and categorize the withheld documents and requesting that the court grant plaintiff access to the requested documents, where appropriate. Because plaintiff seeks access to information that the government has compiled about him, plaintiff's cause of action arises under two statutes: the Freedom of Information Act ("FOIA") and the Privacy Act. 5 U.S.C. § 552 and 5 U.S.C. § 552a. The government relies on the following statutory exemptions from release to justify its continued withholding of the documents at issue in this case: 5 U.S.C. § 552(b)(5), (b)(7)(C) and (b)(7)(D) of FOIA and 5 U.S.C. § 552a(k)(5) of the Privacy Act.

 The parties agreed in this case to proceed by the filing of an index of documents pursuant to Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 828 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974), and to then have the court decide the case after each party filed summary judgment motions. Each parties' motion for summary judgment has been fully briefed, and the agencies have filed declarations in support of the withholding of documents which are claimed to be exempt from release.

 DIS has provided a Vaughn index that identifies each relevant document by a document number, and this index is cross-referenced to an affidavit by Dale Hartig, a DIS official, (the "Hartig Declaration") in which Hartig explains his reasons for withholding the documents. According to plaintiff, there are fourteen documents listed in the Vaughn index supplied by DIS which are still in contention: 42, 49, 76-81, 89, 95-97, and 99-100. See Plaintiff's Cross-Statement of Material Facts As To Which There is No Genuine Issue at 4. However, DIS Document 76 was partially released, and, after plaintiff's motion was filed, DIS released parts of Documents 42 and 49. See Defendants' Opposition to Plaintiff's Cross-Motion for Summary Judgment at 2. That leaves a total of eleven documents which are still withheld in their entirety by DIS.

 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, ...


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