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February 22, 2000


The opinion of the court was delivered by: Urbina, District Judge.

Granting in part and Denying in part the Defendant's Motion for Partial Summary Judgment


This matter comes before the court on the defendant's motion for partial summary judgment. This is an action brought by Judicial Watch of Florida ("JWF"), a non-profit corporation incorporated in the District of Columbia, under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. In July 1997, JWF filed a FOIA request "seeking access to any and all documents relating to Attorney General Reno's decision" not to appoint an independent counsel to investigate allegations that the Clinton/Gore administration had violated federal campaign-finance laws. See Orfanedes Decl. dated October 4, 1999 at 3, Ex. 3. The defendant, the United States Department of Justice ("DOJ"), moves for summary judgment with respect to all of the requested records which it has withheld or redacted, save for those in the possession of the Federal Bureau of Investigation ("FBI").*fn1 For the reasons that follow, the court will grant in part and deny in part DOJ's motion. The court also will order DOJ to conduct a supplemental search because DOJ gave an unduly narrow construction to JWF's FOIA request when it conducted its initial search.


On March 28, 1997, Judicial Watch, Inc. ("Judicial Watch"), filed a FOIA request with DOJ ("the Judicial Watch request"). On April 21, 1997, Judicial Watch filed suit against DOJ for failure to produce all of the information sought in the FOIA request. On July 15, 1997, the plaintiff JWF, a related but separate organization, filed a FOIA request with DOJ ("the JWF request"). The JWF request asked for many of the same categories of materials as the Judicial Watch request. On July 30, 1997, JWF filed the instant suit to effectuate compliance with its July 15 request. On August 6, 1997, Judicial Watch's action was voluntarily dismissed.

DOJ's Office of Information and Privacy ("OIP") and other agencies in possession of records requested by Judicial Watch and JWF withheld and redacted some of the responsive records. DOJ treated those parts of the JWF request that repeated Judicial Watch's earlier request as an update of the earlier request. In other words, DOJ interpreted the JWF request to cover only documents created in the period between the receipt of the two requests (March 28 — July 15, 1997).

By order dated June 3, 1999, this court ordered DOJ to provide Vaughn indices for documents in the possession of OIP and the Executive Office for United States Attorneys ("EOUSA"). DOJ filed the indices on June 15, 1999 ("the June 1999 Vaughn indices").

DOJ now moves for summary judgment with respect to all records sought by JWF's July 15, 1997 request that DOJ withheld or redacted, save for those in the possession of the FBI. In support of its motion, DOJ relies upon FOIA exemptions five, six and seven. See 5 U.S.C. § 552(b)(5), (6) and (7).


Summary judgment shall be granted if the record before the court (including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits supporting and opposing the motion) shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Crawford v. Signet Bank, 179 F.3d 926, 928 (D.C.Cir. 1999), cert. den., ___ U.S. ___, 120 S.Ct. 1002, 145 L.Ed.2d 945 (2000). A fact is material if its existence or nonexistence might affect the outcome of the action. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Farmland Indus. v. Grain Board, 904 F.2d 732, 735-36 (D.C.Cir. 1990). There is no genuine issue as to a material fact if the record presented on motion, taken as a whole, could not lead a rational trier of fact applying the relevant burden of proof to find for the non-moving party. See Anderson, 477 U.S. at 248, 254-55, 106 S.Ct. 2505; Brees v. Hampton, 877 F.2d 111, 117 (D.C.Cir. 1989), cert. den., 493 U.S. 1057, 110 S.Ct. 867, 107 L.Ed.2d 951 (1990). In deciding whether there is a genuine issue of material fact, the court is to view the record in the light most favorable to the party opposing the motion, giving the non-movant the benefit of all favorable inferences that can reasonably be drawn from the record and the benefit of any doubt as to the existence of any genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Martin v. D.C. Metropolitan Police Dept., 812 F.2d 1425, 1435 (D.C.Cir. 1987), vac'd in pt o.g., 817 F.2d 144 (D.C.Cir.), reinstated on recon. o.g., 824 F.2d 1240 (D.C.Cir. 1987).

A district court reviews de novo an agency's denial of a FOIA request and the burden is on the agency to show that each disputed withholding or redaction was proper under FOIA. See 5 U.S.C. § 552(a)(4)(B); U.S. Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989); King v. U.S. Dept. of Justice, 830 F.2d 210, 217 (D.C.Cir. 1987).


A. Scope of the JWF Request

By the terms of the complaint, this action pertains to the FOIA request that JWF filed on July 15, 1997. That request repeated requests for certain categories of records that were requested by Judicial Watch, Inc. in its March 28, 1997 FOIA request. DOJ treated the parts of the JWF request that overlapped with the Judicial Watch request as merely updating the Judicial Watch request. In other words, DOJ construed the JWF request as a request only for records in the repeated categories which were created between the receipt of the Judicial Watch request (April 19, 1997) and the JWF request (July 18, 1997). The JWF request was not so temporally limited by its own terms. JWF argues that its request was improperly treated as an update to the extent it overlapped with the Judicial Watch request. The court agrees that DOJ's construction of JWF's request was unduly narrow. The court concludes that JWF's broader construction of the request is more appropriate.

Under FOIA, an agency must disclose all nonexempt records requested by "any person." 5 U.S.C. § 552(a)(3); National Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 874 (D.C.Cir. 1989), cert. den., 494 U.S. 1078, 110 S.Ct. 1805, 108 L.Ed.2d 936 (1990). A corporation is a person entitled to make FOIA requests. See 5 U.S.C. § 551(2) (which includes "corporations" in the definition of the term "person" for purposes of the Administrative Procedure Act, of which 5 U.S.C. § 552(b)(4) is a part). Judicial Watch and JWF are separate corporations, and each is entitled to request documents under FOIA in its own right.

DOJ argues that it was complying with the law when it chose to treat the JWF request as updating the Judicial Watch request to the extent the two requests asked for the same categories of records. (Reply at 6, 7 n. 4, citing 28 C.F.R. § 16.10(f)). Title 28 C.F.R. § 16.10(f) provided that where an agency "reasonably believes that a requester or a group of requesters acting in concert is attempting to divide a request into a series of requests for the purposes of evading the assessment of fees," the agency "may aggregate any such requests and charge accordingly." 28 C.F.R. § 16.10(f). This regulation is inapposite. Aggregating related requests which were divided by requesters who acted in concert to evade fees is not the same thing as taking similar requests by two separate entities and treating one as merely updating the other. DOJ provides no foundation for believing that Judicial Watch and JWF acted in concert to evade fees by subdividing a single request into multiple requests. Indeed, the two requests did not subdivide related requests but rather duplicated requests, an action poorly calculated to avoid fees.

Since JWF's FOIA request was not properly limited to the period after the receipt of Judicial Watch's request, all documents requested by JWF and withheld or redacted are within the scope of this action. Not all of these withholdings and redactions are before the court on the instant motion. The motion covers only those withholdings and redactions listed in DOJ's Vaughn indices. See Lykins v. U.S. Dept. of Justice, 725 F.2d 1455, 1463 (D.C.Cir. 1984) (The index "enables the trial court to fulfill its duty of ruling on the applicability of the exemption, and it enables 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."). The Vaughn indices submitted by DOJ in June 1999 catalog only those records withheld or redacted from the categories of records requested by JWF under DOJ's unduly narrow interpretation of the JWF request. The indices thus do not address records that were (1) requested in both the Judicial Watch and JWF requests and (2) created before April 19, 1997, the date DOJ received the Judicial Watch request. Accordingly, the court will order DOJ to conduct a second search in response to JWF's FOIA request. In this second search, DOJ will search for all documents created before April 19, 1997 which could be responsive to JWF's request. If this second search yields responsive documents, DOJ is also required to produce such documents or submit Vaughn indices which state the grounds for each decision to withhold or redact any such documents.

With respect to the withholdings and redactions listed in DOJ's June 1999 Vaughn indices, DOJ's motion will be granted in part and denied in part, as follows.

B. Commerce Document Withheld Pursuant to Exemptions 3 and 5

The Department of Commerce withheld a document that DOJ describes as "a document prepared by an Office of Inspector General ["OIG"] investigator to summarize evidence obtained by that office in conjunction with a criminal investigation." (Mot. for Part.S.J. at 15-16) (emphasis added). Elsewhere, DOJ describes the same document as one sent "by the Assistant U.S. Attorney to an attorney in the [OIG] . . . summariz[ing] evidence in an ongoing criminal investigation, in which the OIG has been participating under the direction of the DOJ Campaign Finance Task Force." (Declaration of Brenda Dolan dated Aug. 27, 1999 ("Dolan Decl.") ¶ 9) (emphasis added). DOJ contends this document was properly withheld under FOIA exemption three, which provides for the exemption of "matters that are . . . specifically exempted by statute. . . ." 5 U.S.C. § 552(b)(3). In its reply memorandum, DOJ states, "Commerce has now determined that this document does not require protection under Exemption 3." (Reply at 10-11). The reply argues instead that the document was properly withheld under the attorney-client privilege (FOIA exemption five) and states that "JWF . . . has not contested defendant's claim of Exemption 5 with respect to this document." (Reply at 11). JWF's failure to so contest is understandable. Nowhere in DOJ's current motion for partial summary judgment does it argue that the Commerce document was properly withheld under exemption five, and the June 1999 Vaughn index does not clearly describe this document and the basis for its withholding.*fn2

There is a section of the motion which argues that "Commerce properly withheld documents under FOIA Exemption 5's . . . Attorney-Client Privilege" (Mot. for Part. Summ.J. at 23), but that section does not address the reason for the withholding of this particular Commerce document.*fn3 Therefore, DOJ's argument that the Commerce ...

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