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COLEMAN v. FBI

July 31, 1997

ALTON COLEMAN, Plaintiff, V FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE, Defendants.


The opinion of the court was delivered by: LAMBERTH

 Before the court is plaintiff's Motion for Further Indexing and a More Specific Vaughn Index. For the following reasons the court finds that the FBI's Vaughn1 index does not adequately describe the content of certain documents. Therefore, plaintiff's motion for a more specific Vaughn index will be GRANTED in part and DENIED in part.

 Factual Background

 Plaintiff's FOIA dispute with the FBI began in 1988. See Coleman v. FBI, No. 89-2773, slip op. (D.D.C. Dec. 10, 1991) summarily aff'd, No. 92-5040 (D.C. Cir. Dec. 4, 1992) [hereinafter Coleman II ]. *fn2" At that time, plaintiff requested certain documents from the FBI. The FBI informed plaintiff that his request had produced between 7,700 and 10,000 pages, and that it would take a considerable amount of time for the FBI to process plaintiff's request. Plaintiff could not afford to wait. One of his execution dates was rapidly approaching. *fn3" At the FBI's behest, plaintiff chose to voluntarily abbreviate the scope of his FOIA request, and the FBI then agreed to perform an expedited review of the responsive documents.

 Of the 318 pages that were responsive, the FBI withheld 241 pages pursuant to a variety of FOIA exemptions. Plaintiff sought review in this court. In the course of the litigation, the FBI produced a coded Vaughn index. In its index, the FBI inserted 24 Deleted Page Sheets (DPS) to represent the 241 withheld pages. Each DPS stated the number of pages it represented and the relevant coded reason that it was withheld. The code could be cross referenced with the declaration of Regina Superneau. This method of Vaughn indexing, i.e. providing nothing but a numbered code, was found insufficient with respect to entirely withheld pages. Accordingly the FBI was ordered to submit a more specific Vaughn index. See Coleman v. FBI, No. 89-2773, slip op. (D.D.C. April 3, 1991) [hereinafter Coleman I ]. They did so. Specifically, the FBI filed another agent's declaration and included 134 DPS' to represent the 241 withheld pages. On each DPS the FBI not only provided the relevant coded reason for withholding the document, but it wrote a short explanatory note that described the form and the content of the withheld page/s. The court upheld this Vaughn index as sufficient, and on December 10, 1991, this court granted the FBI's motion for summary judgment. See Coleman II, supra.

 Once the dispute over the 318 pages was resolved, plaintiff then sought to obtain the remainder of the documents responsive to his original FOIA request. These remaining documents are the subject of this present litigation. Specifically plaintiff's dispute *fn4" encompasses the 92 DPS' which represent 1195 withheld pages. *fn5"

 Once again plaintiff comes before the court to argue that the FBI's Vaughn index *fn6" does not provide him with enough information to adequately challenge the FBI's FOIA exemption claims. Plaintiff points to a number of examples where the FBI used a single DPS to withhold numerous pages; "for instance, a single DPS is used to describe seventeen (17) pages, . . . forty-one (41) pages, . . . forty-eight (48) pages, . . . sixty (60) pages, . . . eighty-one (81) pages, . . . one hundred and thirty-eight (138) pages, . . . and two hundred and eight (208) pages." Plaintiff's Reply of Feb. 25, 1997 at 2; Plaintiff's Mot. for Further Indexing and a More Specific Vaughn Index at 4. Plaintiff contends that the FBI is doing again what it did in the previous case and accordingly calls upon this court to "remind" the FBI "of its duty under the FOIA." Plaintiff's Mot. for Further Indexing and a More Specific Vaughn Index at 7.

 The FBI argues that its Vaughn index is sufficient; because, "in this matter, defendants, in addition to providing a DPS have hand-printed on each DPS, in the lower left-hand corner, a detailed description of each document which has been withheld." Def's Opposition at 4. The FBI adds that "this notation satisfies the requirements of Coleman v. FBI, No. 89-2773, slip op at 9-12 (D.D.C. 1991) . . ." Id. at 5.

 Discussion

 The issue before this court is whether defendants' inclusion of a "narrative" on each DPS renders its index satisfactory under the requirements of Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973). "It is the function, not the form, of the index that is important." National Treasury Employees Union v. United States Customs Service, 255 U.S. App. D.C. 449, 802 F.2d 525, 527 (D.C. Cir. 1986). The function of a Vaughn index is essentially to "enable[] the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court." Keys v. Department of Justice, 265 U.S. App. D.C. 189, 830 F.2d 337, 349 (D.C. Cir. 1987). This in turn informs the court so that it is able to decide whether a particular agency is properly exercising the FOIA exemptions.

 In the previous Coleman case, this court held that it is not sufficient to simply provide a coded index to describe documents withheld in their entirety. See Coleman I, supra at 9-12. In this case, the FBI has, however, provided more information concerning the entirely withheld documents. They have included on each DPS a "narrative" that purports to specifically describe the withheld documents. The "narrative" does indeed adequately describe a number of the entirely withheld documents.

 A problem arises when a single DPS, albeit with a "narrative," is used to describe numerous documents. For example, document MW 7-897-Sub B2-167 encl, is 208 pages. Every page is entirely withheld. In the Vaughn index the FBI cites exemptions (b)(7)(C)-3,4,5,6, and (b)(7)(D)-4,5. *fn7" In addition, the FBI includes the following "narrative:"

 
The deleted pages, the enclosure to the FD 340 envelope, are a compilation of local police department reports concerning the murder investigation on Vernita Wheat. Included in these pages are P.D. interviews of cooperating third parties, investigative leads, evidence and the P.D. direction of the investigation.

 While this description adds to the court's understanding of the withheld documents, it still falls short of the information needed to ...


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