The opinion of the court was delivered by: CHARLES R. RICHEY
On June 23, 1992, the Court entertained oral argument on the Plaintiff's Continuing Challenge to the Defendants' Compliance with this Court's Orders and the Defendant's "second stage"
motion for summary judgment. The Court also inquired as to the status of certain matters pertaining to the Defendant's "first stage" motion for summary judgment. See Senate of Puerto Rico v. U.S. Dep't of Justice, Civ. 84-1829, slip op. (D.D.C., May 13, 1992). As described herein, the parties did manage to resolve certain issues with respect to the motions for summary judgment. However, the parties could not agree upon whether the government has complied with this Court's prior Orders and could not agree on the means whereby the Court would decide the compliance question. The Court now considers these issues in light of the record herein, the applicable law and the arguments presented at the June 23, 1992 Hearing.
1. Issues Arising from the Court's May 13, 1992 Opinion on the Defendant's First Stage Motion for Summary Judgment.
The parties resolved the only remaining issue with respect to the Defendant's "first stage" motion for summary judgment. Pursuant to this Court's May 13, 1992 Opinion in the above-captioned case, the Defendant renewed its "first stage" motion for summary judgment with respect to the document listed at P 7(4) of the July 1988 Declaration of Nelson D. Hermilla. See Senate of Puerto Rico v. U.S. Dep't of Justice, supra, slip op. at 9-11 (D.D.C., May 13, 1992). Counsel for the Plaintiff conceded that the Plaintiff had no objection to the redaction of a portion of Document P 7(4) on the basis of Exemption (b)(5). Accordingly, the Defendants' motion for summary judgment with respect to this document shall be granted.
2. Issues Pertaining to the "Second Stage" Motion for Summary Judgment
First, the Court shall address those matters which parties have resolved. The Plaintiff indicated that it had no objection to the Whitlow declaration, provided that Ms. Whitlow certify on the record that a search was conducted at all of the relevant components of the Department of Justice. See Plaintiff's Reply to the Defendants' June 9, 1992 Response to the Plaintiff's Continuing Challenge, at 4, filed June 16, 1992 (hereinafter, "Plaintiff's Reply"). Because the Defendants indicated their willingness to provide such a certification, Defendants' Response to Plaintiff's January 14, 1992 Continuing Challenge, at 2, filed June 9, 1992, the Court presumes that there will be no further dispute as to the propriety of the withholding in Whitlow declaration. Moreover, the Plaintiff dropped its objections to the withholding of the names of five agents who were not involved in the Cerro Maravilla incident in portions of documents described in the Nisbet declaration. See Plaintiff's Reply, supra at 5. The Court understands that there are no further objections to the Nisbet declaration.
There are specific problems with the Wright declaration, however. The Court's January 1990 Order required the Defendants to search all Department of Justice subdivisions. The Defendants concede, however, that only the United States Attorneys' Office for the District of Puerto Rico was searched. See Defendant's Response to the Plaintiff's January 14, 1992 Continuing Challenge, supra, at 6. Although there may be a valid basis upon which the Defendants concluded that a only limited search of the United States Attorneys' Offices was necessary, the Defendants have utterly failed to articulate a reason for such a limitation. Given that responsive documents were uncovered in FBI Field Offices throughout the country, the Court is troubled by the Defendants' bare assertion that most of the responsive materials would be located in the United States Attorneys' office for the District of Puerto Rico. Accordingly, the Court shall order the Defendants to supplement the Wright declaration to provide a factual basis for limiting the search of the United States Attorneys' Offices in the face of the January 1990 Order. See, e.g., Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (an agency must show that it has made "a good faith effort to conduct a search for the requested records, using methods which can reasonably be expected to produce the information"). If the Defendants cannot articulate a factual basis for circumscribing the search, the Defendants shall commence a search of the remaining United States Attorneys' Offices forthwith.
The Plaintiff objects to the third declaration of Angus Llewellyn because it inadequately describes the documents withheld. Plaintiff particularly opposes the use of deleted page sheets and coded document descriptions because these devices derail any attempt to determine the nature of the document and the context of redacted material. At the June 23, 1992 Hearing, the Court suggested that the Defendants cure these deficiencies by employing the techniques used in Williams v. F.B.I., 1991 U.S. Dist. LEXIS 11692 (D.D.C. 1991). The Defendants resist this suggestion, and now propose a sampling technique akin to that used in Meeropol v. Meese, 790 F.2d 942, 956-957 (D.C. Cir. 1986) and Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476 (D.C. Cir. 1984). See Defendants' Memorandum to the Court, filed June 25, 1992.
Although the Court appreciates the Defendants' attempts to remedy this problem, the Defendants' suggestions will not suffice. In evaluating the propriety of each claimed exemption, the Court and the Plaintiff must be able to determine the nature of each document and the context of the withheld material as it relates to the overall Cerro Maravilla investigation. A sampling procedure would not enable the Court to satisfy itself as to each document. While courts have accommodated the government when there is an unreasonably large universe of responsive documents, this case does not require such abbreviated procedures. Moreover, given the allegations of bad faith in this case, see discussion, infra, the Court would be remiss in allowing the Defendants to avoid careful scrutiny. The Court acknowledges that the Defendants must labor under daunting resource constraints. However, the extremely busy schedule of the Department of Justice's Freedom of Information/Privacy Act Branch is not enough, in itself, to justify the use of special procedures. Thus, as explained at the Hearing, the Court shall order the Defendants to submit a more detailed Vaughn index for the FBI documents, describing the investigative context of each document, so that the Court and the Plaintiff may determine the nature of the document and the basis for withholding it in its entirety.
3. Issues Concerning the Government's Alleged Non-Compliance with this Court's Prior Orders
The Plaintiff has consistently maintained that the Defendants have not complied with this Court's prior Orders. Plaintiff is especially concerned about the Defendants' assertion that the materials contained in the "four boxes" of grand jury materials are no longer available to the Defendants and, therefore, cannot be released. See, e.g., Defendants' Memorandum to the Court, filed Nov. 15, 1992. The Plaintiff has also highlighted the variation in the government's own description of the grand jury materials. See Plaintiff's Continuing Challenge to the Adequacy of the Defendants' Compliance With Court Orders Relating to Grand Jury Exhibits and Objections to Defendants' Vaughn Indexes and Exemption Claims as to Non-Grand Jury Related Documents, at 10-14, filed Jan. 14, 1992 (noting that the grand jury materials have been described as "four boxes of grand jury material," "four boxes of grand jury exhibits presented in conjunction with 2,000 pages of testimony and exhibits" and "90 exhibits"). Counsel for the Defendants acknowledges the discrepancy in the various descriptions of the grand jury materials, but maintains that the government has turned over all of the grand jury materials to which it has access. Although it would be possible for the government to turn over a list itemizing the whereabouts of the 90 exhibits, the government contends that Fed. R. Crim. P. 6(e) prohibits the dissemination of such a list.
Upon consideration of the claims advanced by the parties, the Court must agree with the Plaintiff. The Court cannot, on the present record, verify that the Defendants have released those grand jury materials which do not reveal a protected aspect of the grand jury proceedings, as directed by this Court.
The only way to determine whether the Defendants have complied with the Court's Orders is for the government to release a list describing the 90 grand jury exhibits
and detailing their present whereabouts.
Contrary to the Government's claim, the production of such a list comports with the Court of Appeals' directive in this case as well as the recent case precedent. The Court of Appeals ordered the government to turn over the grand jury materials unless the government could show, for each document, that release would reveal a protected aspect of the grand jury's investigation. See Senate of Puerto Rico v. U.S. Dep't of Justice, 823 F.2d 574, 583-84 (D.C. Cir. 1987). The fact that the grand jury considered a document, without more, does not immunize the document from disclosure under the FOIA. Id. The government's acknowledgement that the grand jury has considered a document at issue is not sufficient to prevent its release. See id.; Washington Post Co. v. U.S. Dep't of Justice, 863 F.2d 96, 100 (D.C. Cir. 1988). In fact, in both Senate of Puerto Rico, supra, and Washington Post, supra, the Court of Appeals ordered the government to release grand jury materials, despite the fact that the FOIA requester knew that the documents were placed ...