the court must balance the privacy interests of the individual that the Government seeks to protect against the public's interest in disclosure. See Coleman II, supra at 15. On the present record, the court is unable to do so with regard to document MW 7-897-Sub B2-167 encl.
Under Exemption 7(D) the court does not engage in a balancing of interests. Conversely, the court must determine "whether the 'source' can properly be characterized as 'confidential'" See Coleman II, supra at 22 (citing Dow Jones & Co. v. Department of Justice, 286 U.S. App. D.C. 349, 917 F.2d 571, 575-76 (D.C. Cir. 1990)). On the present record, the court is unable to do so with regard to document MW 7-897-Sub B2-167 encl.
The explanation, set forth above, for MW 7-897-Sub B2-167 encl, is simply too brief to justify withholding 208 pages, especially where the 208 pages are not even a single document. Even the Government's own assessment of the FOIA case law states that "an agency ordinarily must justify its withholdings on a page-by-page or document-by-document basis . . . ." FOIA Guide & Privacy Act Overview, September 1996, at 464. Indeed, this court explained in the previous Coleman case that "the court objected to the agency's use of a single Deleted Page Sheet for multiple documents it was withholding." Coleman II, supra at 4.
The document-by-document index has been the norm. Courts have been especially rigorous about adhering to this document-by-document norm with respect to Exemption 1 (national security). See Oglesby v. United States Dep't of Army, 316 U.S. App. D.C. 372, 79 F.3d 1172, 1180 (D.C. Cir. 1996). In Oglesby, the Army attempted to withhold a "compilation" of documents, 483 pages in length, by simply asserting a short description and Exemption 1. There, the District of Columbia Circuit stated that "Vaughn and its progeny require that an agency itemize each document and explain the connection between the information withheld and the explanation claimed . . . ." See id. at 1180 (emphasis in original); see also King v. Department of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210, 223 (D.C. Cir. 1987) (Exemption 1).
This document-by-document index norm is not absolute. An index of material withheld pursuant to Exemption 7(A) can be categorical under certain circumstances. See Bevis v. Department of State, 255 U.S. App. D.C. 347, 801 F.2d 1386, 1389 (D.C. Cir. 1986). The Sixth Circuit has also allowed a categorical Vaughn index for Exemption 7(C) and (D). See Vaughn v. United States, 936 F.2d 862 (6th Cir. 1991). But in that case, the declaration had "an exhibit which summarizes, by document page number, the exemption(s) relied on for withholding each of the 1000 pages." Id. at 868.
For an agency to break from the norm of a document-by-document index, the agency must at least argue that a "categorical"
index is warranted. See Beavis, 801 F.2d at 1389 (stating that "if it wishes to adopt a generic approach, the FBI has a three fold task."). In this case, the FBI makes no such argument. Rather, the FBI simply contends that its Vaughn index sufficiently describes the reasoning for asserting Exemption 7(C) and (D).
Indeed, the FBI represents that they have provided a "detailed description of each document which has been withheld." See Def's Opposition at 4. This is not the case. There are a few DPS' that represent more than one document. These DPS' are not adequate. Not because of the form of the FBI's index, but instead their descriptions fail to inform the court as to the contents of individual documents and the applicability of the various Exemptions.
Likewise, the DPS' that plaintiff challenges in Part 12 (Exh. 4 of Moran's Declaration) are inadequate. There are five DPS' that the court takes issue with. These DPS' represent the withholding of no less than 152 pages of an unknown number of documents; yet, the description, which is substantially the same for each DPS, simply states that the document(s) contain "a local law enforcement agency's investigative report containing evidentiary material, witness interviews, scene investigations and leads." See Moran's Decl. Exh 4. Part 12, CG7-2743-Sub.J-26. In the previous Coleman case, the court stated "'where the agency affidavits merely parrot the language of the statute and are drawn in conclusory terms, the court's responsibility to conduct de novo review is frustrated." Coleman I, supra at 12 (quoting Carter v. United States Dep't of Commerce, 265 U.S. App. D.C. 240, 830 F.2d 388, 393 (D.C. Cir. 1987)). Here, the "narratives" in Part 12 fail to aid the court in its de novo review.
Accordingly, the FBI must submit a more specific index with respect to the withholdings listed below. The FBI is not required to submit a formal tome of DPS' to supplement its Vaughn index. Form has never been the goal of the Vaughn decision. Rather, the FBI must simply supply an adequate amount of information. The FBI can accomplish this by identifying the individual document, the relevant Exemption and the reason that Exemption applies, in some sort of a list format. See, e.g., Plaintiff's Reply at Exh. A.
Many of the DPS' do satisfy the requirements of the previous Coleman case. See Coleman I, supra. These DPS' contain a sufficiently detailed narrative that allows the court to assess the merits of the FBI's claimed Exemptions. Accordingly, plaintiff's Motion for a More Specific Vaughn Index will be DENIED with respect to the DPS' that are not listed below.
For the reasons stated above, It is hereby
ORDERED that plaintiff's motion for a more specific Vaughn index is GRANTED in part and DENIED in part. Defendants must submit a more specific description of the following withholdings:
Moran Declaration: Exhibit 4
Part 2: HQ-19343-208
Part 6: MW7-897-649 pp.2-4 (no 'narrative' included)
Part 7: MW7-897-1B2-55 encl.
Part 8: MW7-897-1B2-103
Part 11: CG7-2743-Sub.B-41, pp.1-22, 24, 26-45, 51-55, 57,
Part 12: CG7-2743-Sub.E-2, pp.1,2,5,6.
CG7-2743-Sub.E-2, pp.16-25, 27, 31-36, 38-47, 51.
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