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JUDICIAL WATCH, INC. v. U.S. DEPT. OF COMMERCE

February 25, 2000

JUDICIAL WATCH, INC., PLAINTIFF,
V.
UNITED STATES DEPARTMENT OF COMMERCE, DEFENDANT.



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

MEMORANDUM AND ORDER

I. BACKGROUND

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

II. DISCUSSION

A. THE FREEDOM OF ...


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