The opinion of the court was delivered by: Lamberth, District Judge.
Plaintiff Judicial Watch seeks information concerning the
Commerce Department's selection of participants for foreign trade
missions. To that end, Judicial Watch commenced this FOIA action
seeking "all correspondence, memoranda, lists of names,
applications, diskettes, letters, expense logs and receipts,
diary logs, facsimile logs, telephone logs, notes and other
documents or things that refer or relate in any way" to certain
events, persons or corporations believed to be connected with
various trade missions.
By the summer of 1995, the Department of Commerce had located
almost 30,000 pages of responsive documents, producing some while
withholding others under certain FOIA exemptions. In response to
the parties' request, the Court conducted an in camera review of
documents that were withheld under Exemption 5. But before the
Court could complete its review, defendant filed its first
Vaughn index and moved for summary judgment. Plaintiff then
asked the Court to stay its consideration of summary judgment
pending the completion of its in camera review.
Subsequently, the Court issued a Memorandum and Order finding
defendant's index to be inadequate and denying summary judgment.
See Judicial Watch v. United States Dep't of Commerce,
Memorandum and Order, No. 95-133 (D.D.C. Aug. 30, 1996). In
addition, the Court ordered the Department to submit a revised
index for the documents retrieved during the initial search. The
Court also authorized discovery on the issue of the adequacy of
the Department's search.
In April 1996, the DOC submitted a revised Vaughn index and a
second motion for summary judgment. But discovery on the adequacy
of the initial search was beginning to uncover troubling evidence
of document removal and destruction by the Commerce Department.
Accordingly, at a hearing on August 7, 1996, the Court denied
defendant's motion for summary judgment and ordered further
discovery on the issue of the Commerce Department's removal and
destruction of responsive documents.
The following month, on September 5, 1996, the Court issued a
decision granting in part and denying in part the Commerce
Department's motion for summary judgment with respect to
documents uncovered during the Department's first search. The
Court found that 153 of the 306 documents withheld under
Exemption 5 were improperly withheld in whole or in part, and
ordered their release to Judicial Watch. With respect to the
sufficiency of the revised index, however, the Court determined
that certain exemptions were properly claimed and granted partial
summary judgment to the Department for those withheld documents.
See Memorandum Opinion, Judicial Watch v. United States Dep't
of Commerce, No. 95-133 (D.D.C. Sept. 5, 1996). Plaintiff
Judicial Watch moved for reconsideration, which the Court
granted. Accordingly, the Court agreed to review all of the
withheld documents from the initial search in camera.
In the same opinion, the Court resolved the outstanding motion
for partial summary judgment concerning documents located during
the first search. After reviewing those documents in camera,
the Court ultimately concluded that partial summary judgment was
appropriate as to these withholdings and reinstated its September
5, 1996 ruling. Id. at 45-46.
At the same time, however, it was brought to the Court's
attention that additional responsive documents had been uncovered
in the course of discovery. Accordingly, the Court directed the
defendant to file supplemental affidavits and indices on those
documents. See id. at 45 n. 12.
In December 1999, the Court granted defendant summary judgment
with respect to its withholdings under Exemptions 2 and 6 of the
FOIA. The Court, however, deferred ruling on defendant's
Exemption 4 and 5 withholdings and ordered supplemental indices
on the Exemption 4 materials and in camera review of the
Exemption 5 materials. The present motion for partial summary
judgment concerns the defendant's claims with respect to the
Exemption 5 documents only.*fn1