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
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).
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 ...