The opinion of the court was delivered by: Lamberth, District Judge.
This matter returns to the Court on plaintiff Ellen W.
Schrecker's and defendant United States Department of Justice's
third set of cross-motions for summary judgment. Based upon the
parties' motions in support of and in opposition to these
motions, the entire record thereto, and the applicable law,
plaintiff's motion will be denied and defendant's motion will be
Plaintiff Ellen Schrecker, a history professor and author,
commenced this action under the Freedom of Information Act,
5 U.S.C. § 552, ("FOIA"), seeking documents relating to Gerhart
Eisler and Clinton `Jencks, who were subjects of Justice
Department investigations during the McCarthy era. Eisler was a
German communist who lived in the United States from the late
1930s or early 1940s until 1949. Jencks was an official of the
Mine, Mill and Smelter Workers International Union in New Mexico
who was indicted by the Justice Department for violations of the
A detailed history of this litigation appears in this Court's
prior opinion. See Schrecker v. United States Dep't of Justice,
14 F. Supp.2d 111, 113 (D.D.C. 1998) (denying defendant's motion
for summary judgment; granting and denying in part plaintiff's
motion for summary judgment). After two rounds of briefing on
dispositive motions, this Court ordered the defendant to
reprocess all information withheld in response to plaintiff's
FOIA request. Subsequently, on August 28, 1998, pursuant to a
Stipulation and Scheduling Order, the parties agreed that after
reprocessing was completed, and due to the volume of documents
involved in this case, plaintiff would select 100 sample pages
for which defendant would prepare Vaughn indices. Accordingly,
the present chapter in this protracted litigation concerns
whether the defendant's withholdings from these 100 sample pages
are properly justified.
II. The Freedom of Information Act & Standard of Review
The Freedom of Information Act, 5 U.S.C. § 552, as amended by
of Information Reform Act of 1986, §§ 1801-04 of Pub.L. No.
99-570, 100 Stat. 3207, 3207-48 (1986), provides citizens a
statutory right of access to government information. As its basic
premise, the Act establishes that government agency records
should be accessible to the public. Accordingly, the FOIA
instructs government agencies to disclose agency records, unless
the requested records fall within one of the Act's nine
enumerated exemptions. In this case, the defendant has justified
nondisclosure under six of the nine exemptions. The Court will
address plaintiff's challenges to defendant's withholdings by
In a FOIA action, summary judgment is appropriate when the
pleadings, together with the declarations, demonstrate that there
is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. See Fed. R.Civ.P.
56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986); Alyeska Pipeline Serv. Co. v. EPA,
856 F.2d 309, 313 (D.C.Cir. 1988) (mere conflict in affidavits
insufficient to preclude summary judgment); Weisberg v.
Department of Justice, 627 F.2d 365, 368 (D.C.Cir. 1980). FOIA
matters are reviewed de novo, and the agency bears the burden of
justifying nondisclosure. See 5 U.S.C. § 552(a)(4)(B);
Department of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774
To sustain their burden of proof, agencies may rely on the
declarations of their officials. Oglesby v. Department of the
Army, 920 F.2d 57, 68 (D.C.Cir. 1990). Indeed, courts accord
agency declarations a presumption of expertise, Pharmaceutical
Manu. Ass'n v. Weinberger, 411 F. Supp. 576, 578 (D.D.C. 1978),
provided the affidavits are clear, specific and adequately
detailed, and set forth the reasons for nondisclosure in a
non-conclusory manner. These declarations must be submitted in
good faith. See Hayden v. NSA, 608 F.2d 1381, 1387 (D.C.Cir.
1979). Once a court determines that an agency's affidavits are
sufficient, the court need not conduct any further inquiry into
their veracity. Id. Accordingly, to preclude summary judgment,
a plaintiff must demonstrate that a claimed exemption has been
When an agency declines to produce requested documents, it must
demonstrate that the claimed exemption applies.
5 U.S.C. § 552(a)(4)(B). To that end, agencies must submit Vaughn indices
that adequately describe the withheld information and explain how
the particular exemption is relevant. Founding Church of
Scientology v. Bell, 603 F.2d 945 (D.C.Cir. 1979); Vaughn v.
Rosen, 484 F.2d 820 (D.C.Cir. 1973). Any reasonably segregable
portions of requested records must be disclosed once the exempt
portions have been redacted, Oglesby v. United States Dep't of
the Army, 79 F.3d 1172, 1176 (D.C.Cir. 1996). In addition,
district courts are required to consider segregability issues
even when the parties have not specifically raised such claims.
Trans-Pacific Policing Agreement v. United States Customs
Serv., 177 F.3d 1022, 1027 (D.C.Cir. 1999).
Agencies satisfy this burden by submitting affidavits that
describe the withheld materials and explain how such materials
fall within the claimed exemption. King, 830 F.2d at 217.
Courts attribute substantial weight to agency affidavits
concerning the classified status of contested records. Salisbury
v. United States, 690 F.2d 966, 970 (D.C.Cir. 1982) ("Executive
departments responsible for national defense and foreign policy
matters have unique insights into what adverse affects [sic]
might occur as a result of public disclosure."). Thus, if an
agency's declarations are reasonably specific and appear to have
been submitted in good faith, courts should not "conduct a
detailed inquiry into whether it agrees with the agency's
opinions." Halperin v. CIA, 629 F.2d 144, 148 (D.C.Cir. 1980).
Plaintiff presents a host of challenges to the defendant's
Exemption 1 withholdings of classified documents that are more
than 25 years old. First, plaintiff claims that Executive Order
12958 mandates that the FBI must release such older documents
because they do not meet the prerequisites for exemption from
declassification. Specifically, plaintiff takes issue with the
memorandum to the President submitted by Attorney General Janet
Reno that seeks exemption for FBI administrative and
investigatory records. She claims that the memorandum fails to
describe the "specific file series of records for which a review
or assessment has determined that the information within those
files series almost invariably falls within one or more of the
exemption categories . . . and which the agency proposes to
exempt from automatic declassification." Id. at § 3.4(c). In
addition, plaintiff asserts that no review or assessment ever
took place and that the proffered explanations inadequately
describe a nexus with national security concerns. Moreover,
plaintiff claims that the memorandum is procedurally flawed, as
various markings, such as the date for declassification, do ...