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March 21, 2000


The opinion of the court was delivered by: Paul L. Friedman, District Judge.


Proceeding pro se, plaintiff brought suit challenging the decision of the Department of Justice to withhold a single document he had sought under the Freedom of Information Act, 5 U.S.C. § 552. The matter is currently before the Court on defendant's motion to dismiss or for summary judgment. Because defendant filed a declaration along with its motion, the Court will treat the motion as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See Rule 12(c), Fed. R.Civ.P. Defendant's motion will be granted.


On October 14, 1997, plaintiff filed a Freedom of Information Act request with the United States Department of Justice seeking the release of a single document, referred to as "the Prosecution Memorandum, dated 4-21-83, from Neal Sher to Mark Richard; consisting of 51 pages, concerning the Rudolph case." Compl. Ex. 1 (plaintiff's FOIA request). This memorandum was prepared during the course of an investigation conducted by the Department of Justice, Office of Special Investigations ("OSI"), into the wartime conduct of one Arthur Rudolph. Mr. Rudolph served as Operations Director of a V-2 rocket production facility at the Mittelwerke complex near Niedersachswerfen in Centeral Germany. See Compl. Ex. 5. Allegations had been made that Mr. Rudolph participated in atrocities perpetuated on slave laborers used by the Nazi regime.

On February 17, 1998, the Justice Department informed plaintiff that it had located one record responsive to his request, referred to as "Prosecution Memorandum 4-21-83 Neal Sher, Acting Director, Office of Special Investigations, to Mark Richard, Deputy Assistant Attorney General, Criminal Division; 49 pages." See Joachim Decl. ¶ 7, Ex. 1. The Department advised plaintiff that it was withholding the entire document pursuant to FOIA Exemption 5, and parts of the document pursuant to Exemptions 6 and 7(C). See Compl. Ex. 3. On March 2, 1998, plaintiff appealed this decision, and on October 28, 1998, the Justice Department's Office of Information and Privacy informed plaintiff that it was the final determination of the Department to withhold the document in its entirety pursuant to the previously stated exemptions. See Compl. Exs. 4-6. Plaintiff subsequently filed this action seeking full disclosure of the document in question.


A. Summary Judgment Standard

An agency may withhold documents responsive to a FOIA request only if the responsive documents fall within one of nine enumerated statutory exemptions. See 5 U.S.C. § 552(b). The agency bears the burden of justifying the withholding, and the court reviews the agency claims of exemption de novo. See § 552(a)(4)(B); Department of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991). To enable the Court to determine whether documents are properly withheld, the agency must provide a detailed description of the information withheld through the submission of a so-called "Vaughn Index", sufficiently detailed affidavits or declarations, or both. See Oglesby v. U.S. Department of the Army, 79 F.3d 1172, 1178 (D.C.Cir. 1996); Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C.Cir. 1973). Furthermore, the FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided . . . after deletion of the portions which are exempt." 5 U.S.C. § 552(b). "[N]on-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Kimberlin v. Department of Justice, 139 F.3d 944, 949 (D.C.Cir. 1998) (quoting Mead Data Central, Inc. v. U.S. Department of the Air Force, 566 F.2d 242, 260 (D.C.Cir. 1977)). To withhold the entirety of a document, the agency must demonstrate that it cannot segregate the exempt material from the non-exempt and disclose as much as possible. See Kimberlin v. Department of Justice, 139 F.3d at 949-50.

The Court may award summary judgment to a government agency solely on the basis of information provided in affidavits or declarations when the affidavits or declarations describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir. 1981); see also Vaughn v. Rosen, 484 F.2d at 826. An agency must demonstrate that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act's inspection requirements." Goland v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C.Cir. 1978) (internal citation and quotation omitted).

There is no dispute in this case as to the identity of the document in question, or whether the Department of Justice fulfilled its duty in locating the information requested by the plaintiff. The Court therefore must decide whether the Department was correct in withholding the entire document under Exemption 5 or portions of the document under Exemption 6 or 7(C).

B. Exemption 5

FOIA Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." 5 U.S.C. § 552(b)(5). This provision "exempt[s] those documents, and only those documents, normally privileged in the civil discovery context," including those covered by the "attorney's work-product privilege." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 154, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); see also FTC v. Grolier, Inc., 462 U.S. 19, 26, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983); Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C.Cir. 1987). Protection for attorney work product has also been recognized as important in the criminal arena. See United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); In re Sealed Case, 146 F.3d 881, 884 (D.C.Cir. 1998). Indeed, "its role in assuring the proper functioning of the criminal justice system is even more vital." United States v. Nobles, 422 U.S. at 238, 95 S.Ct. 2160. The privilege protects the adversarial process by "ensuring that lawyers can prepare for litigation without fear that opponents may obtain their private notes, memoranda, correspondence, and other written materials." In re Sealed Case, 146 F.3d at 884.

While the work product privilege is a qualified privilege, Congress intended Exemption 5 of the FOIA to allow disclosure of only those materials "which would `routinely be disclosed' in private litigation" and to exclude from disclosure "memoranda prepared by an attorney in contemplation of litigation which set forth the attorney's theory of the case and his litigation strategy." NLRB v. Sears, Roebuck & Co., 421 U.S. at 149 n. 16; see id. at 154-55, 95 S.Ct. 1504 (quoting H.R.Rep. No. 89-1497, U.S.Code Cong. & Admin.News 1966, p. 2418 (1966)). Under Exemption 5, the attorney work-product privilege does not end with the litigation, but exempts protected ...

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