United States District Court for the District of Columbia
March 30, 2004.
DEFENDERS OF WILDLIFE et al., Plaintiffs,
UNITED STATES DEPARTMENT OF AGRICULTURE et al., Defendants
The opinion of the court was delivered by: RICARDO URBINA, District Judge
GRANTING IN PART AND DENYING IN PART THE PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND
DENYING IN PART THE DEFENDANTS' MOTION FOR SUMMARY
This Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, case
comes before the court on the motions for summary judgment of defendants
United State Department of Agriculture ("USDA") and the United States
Forest Service("Forest Service") and the motions for summary judgment of
plaintiffs Defenders of Wildlife and Endangered Species Coalition's
motion for summary judgment. The plaintiffs argue that the defendants
impermissibly withheld, and must now release, information that the
plaintiffs sought through a FOIA request. The plaintiffs also argue that
the defendants do not meet their burden of conducting a reasonable search
and justifying non-disclosure of exempted information pursuant to
Vaughn v. Rosen, 484 F.2d 820
(D.C. Cir. 1973). In response, the
defendants argue they have met their burden under FOIA because their
search was adequate and their affidavits sufficiently explain the
exempted information. Because the defendants' search of the Office of
Natural Resources and
Environment and its Vaughn indicies were inadequate, the court grants in
part the plaintiffs' motion and denies in part the defendants' motion.
A. Factual Background
In 1891 Congress created the National Forest System to regulate
specifically designated national forests. Pls.' Mot. for Summ. J. ("Pls.'
Mot.") at 3. The Forest Services manages the National Forest System
pursuant to the direction of the Under Secretary for Natural Resources and
Environment in the USDA Office of Natural Resources and Environment
("NRE"). Am. Compl. ¶ 20. The National Forest Management Act
("NFMA") governs management of the National Forest System and
specifically requires the maintenance of biodiversity on national
forests. 16 U.S.C. § 1604(g)(3)(B); Id. ¶ 15. The NFMA also
requires periodic revisions to forest plans which govern a management
activities on national forests. Id. ¶ 18. In 1997, the Secretary of
Agriculture convened a committee to produce a report intended to
facilitate NFMA revisions. Pls.' Statement of Undisputed Material Facts
¶ 7. Based on the committee's report, as well as feedback from
meetings with tribal, state and local governments, the Forest Service
developed a comprehensive revision of the NFMA and promulgated the
revision into final form on November 9, 2000. Am. Compl. ¶ 14. On
May 17, 2001, the Secretary of Agriculture issued an interim directive
extending the deadline for compliance with the November 9, 2000
regulation for one year. Id. ¶¶ 25. On September 10, 2002, the NRE,
through another interim directive, postponed compliance with the November
9, 2000 NFMA revisions until NFMA regulations are rewritten. Id. 26.
Prior to the last postponement, on May 29, 2002, the plaintiffs
submitted a FOIA request to the USDA for two sets of records related to
the suspension of the NFMA regulations. Id. ¶ 27. Specifically, the
1. All records, other than those published in the
Federal Register, related to any communications by, to
from and/or within the Department of Agriculture, the
Office of Management and Budget, and/or the Council on
Environmental Quality, pertaining to development of
the Interim Directives ("Interim Directives," 66 Fed.
Reg. 27551 (May 17, 2001); 66 Fed. Reg. 27555 (May
17, 2001); 67 Fed. Reg. 35431 (May 20, 2002))
suspending the recently adopted National Forest
Management Act regulations ("2000 regulations;" 65
Fed. Reg. 67513 (November 9, 2000)), and pertaining to
efforts to suspend, revoke, postpone, and/or revise
the 2000 regulations. Please be sure to include
communications to and from other agencies and their
staff, communications to an from outside parties such
as companies, associations, individuals, and
environmental organizations, and internal
communications. Please also include comments received
on the Interim Directives, and the "comments from
individuals, groups and organizations expressing
concerns regarding its implementation" mentioned at 67
Fed. Reg. 35432.
2. A record of people outside of federal agencies
who were consulted or involved in formulating the
Interim Directives, or reviewing suggestions,
recommendations, and/or proposals to suspend,
postpone, or revise the 2000 regulations.
Pls.' Mot. Ex. 4 at 2. The plaintiffs' FOIA request defined "records" as
"all written, transcribed, recorded or graphic matters, however produced
or reproduced." Id. Further, the plaintiffs indicated that the term
"Department of Agriculture" encompasses the agency as well as
"departments, branches, divisions, subdivisions, or subsidiaries,
together with all of their employees, officials, officers, agents,
contractors, subcontractors, appointees, consultants, or any other
persons or entities acting on their behalf or performing services for
The FOIA processor for the USDA received the plaintiffs' FOIA request
on June 11, 2002. Fowler Decl. ¶¶ 1,6. That same day, the FOIA
processor forwarded the request to the Forest Service and sent an
acknowledgment letter to the plaintiffs. Id. ¶ 7. Based on her
experience and judgment, the FOIA processor decided not to forward
the FOIA request to any other offices within the USDA. Id. ¶
10. On October 28, 2002, however, on the recommendation of the Forest
Service FOIA staff, the FOIA processor forwarded the FOIA request to the
NRE and the USDA Office of General Counsel ("OGC"). Id. ¶ 9.
1. The Forest Service Documents
The FOIA officer for the Forest Service received the plaintiffs' FOIA
request on June 11, 2002. Morgan Decl. ¶¶ 1, 5. The Forest Service's
search in response to the plaintiffs' FOIA request yielded 848 pages of
responsive documents. Id. ¶ 8. Of those documents, the Forest
Service withheld 636 pages in full, withheld 46 pages in part and
released 166 pages in full. Id.
Of the records withheld in full, the Forest Service indicated that the
records fell into four general groupings. The first group consisted of
"about 520 pages" of drafts of rules. Id. ¶. The second group
comprised 32 pages of drafts for the regulatory workplans for the rules.
Id. ¶ 10. The third group consisted of 9 pages of draft
informational memoranda for the Secretary of Agriculture. Id. ¶ 11.
The fourth group included "about 75 pages" of miscellaneous records,
including drafts of talking points, question and answer items, a draft of
the "Larson Report," drafts of the plan for promulgating the interim
final rule, and varied drafts of issues and positions related to the
rules. Id. ¶ 12.
Of the records withheld in part, the Forest Service indicated that the
records fell into four categories. Group one consisted of 29 pages of
emails that the Forest Service redacted to "protect the discussions,
questions, issues, strategies, and explanations regarding the content of
the rules and the procedures for processing the rules." Id. ¶ 14.
Group two consisted of seven pages of a planning outline that the Forest
Service redacted "to protect the views of the author
about particular consideration related to the rules." Id. Group three
included seven pages of miscellaneous records containing "discussions,
opinions, positions and other deliberations between agency employees or
between agency employees and agency counsel on the content and language
of the rules and on strategies to cope with issues within the rules."
Id. Group four comprised three pages of e-mails that the Forest Service
redacted to protect personal information. Id.
2. The NRE Documents
The Executive Assistant to the Under Secretary of Agriculture for
Natural Resources and Environment received the plaintiffs' FOIA request
on October 28, 2002. Alston Decl. ¶ 1. The NRE explains that the
number of records within it was very limited because it returns records
relating to program matters, such as the plaintiffs' requested rulemaking
records, to the originating agency. Id. ¶ 5 . It further states that
upon receipt of the plaintiffs' FOIA request, the office searched
subject-matter files that were arranged by topic and the staff action
database, which contained tracking information on letters received by
USDA and the responses to those letters. Id. ¶ 6. The NRE's search
of the files entailed both a manual search of the subject-matter files
and an electronic search of the staff-action database. Id. ¶¶ 7, 10.
The NRE reported that its search did not locate any documents responsive
to the plaintiffs' FOIA request. Id. ¶ 12. In a supplemental
declaration, the NRE declares that the Deputy Under Secretary of the NRE
reviewed the plaintiffs' FOIA request and that the Under Secretary stated
that he had no responsive documents. Alston Supplemental Decl. ¶ 5.
3. The OGC Docuements
The Associate General Counsel for Natural Resources declares that the
Assistant General Counsel of the Natural Resources Divison ("NRD")
received the plaintiffs' FOIA request on October 30, 2002. Poling Decl.
¶ 1, 4. The OGC located seven documents responsive to the plaintiffs'
request. Id. ¶ 6. Specifically, four of those documents were e-mails
that the OGC withheld to "protect the candor necessary to the utility of
interchanges, discussions, questions, strategies and explanations
concerning the planning rule and the process for promulgation." Id.
¶ 7. The OGC withheld the remaining three documents because they were
preliminary works in progress and included legal marginalia. Id. ¶
B. Procedural History
Plaintiff Defenders of Wildlife filed its complaint on October 23,
2002, seeking declaratory and injunctive relief due to the defendants'
alleged failure to respond to the FOIA request. On October 31, 2002 the
Forest Service responded to the plaintiffs FOIA request, and on November
1, 2002, the OGC and NRE served their responses to the plaintiff. On
January 9, 2003, the plaintiff amended its complaint to add the
Endangered Species Coalition as a plaintiff and to address the
defendants' FOIA responses. The amended complaint alleged that the
defendants' responses were wholly inadequate and did not fufill the
defendants' FOIA obligations. The defendants answered on January 30,
2003, and on March 13, 2003, both sides submitted motions for summary
judgment. The court now turns to those motions.
A. Legal Standard for Summary Judgment in a
Summary judgment is appropriate when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317
, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.
Cir. 1995). 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. Adickes v. S.H. Kress & Co., 398 U.S. 144
, 157-59 (1970). To
determine which facts are "material," a court must look to the
substantive law on which each claim rests. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242
, 248 (1986). A "genuine issue" is one whose resolution
could establish an element of a claim or defense and, therefore, affect
the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S.
FOIA affords the public access to virtually any federal government
record that FOIA itself does not specifically exempt from disclosure.
5 U.S.C. § 552; Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973).
FOIA confers jurisdiction on the federal district courts to order the
release of improperly withheld or redacted information.
5 U.S.C. § 552(a)(4)(B). In a judicial review of an agency's response
to a FOIA request, the defendant agency has the burden of justifying
nondisclosure, and the court must ascertain whether the agency has
sustained its burden of demonstrating that the documents requested are
exempt from disclosure under FOIA.
5 U.S.C. § 552(a)(4)(B); Al-Fayed v. CIA, 254 F.3d 300, 305 (D.C.
Cir. 2001); Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir.
1998). An agency may meet this burden by providing the requester with a
Vaughn index, adequately describing each withheld document and explaining
the exemption's relevance. Summers, 140 F.3d at 1080; Vaughn, 484 F.2d 820
(fashioning what is now commonly referred to as a "Vaughn index").
The court may grant summary judgment to an agency on the basis of its
affidavits if they:
[(a)] describe the documents and the justifications
for nondisclosure with reasonably specific detail,
[(b)] demonstrate that the information withheld
logically falls within the claimed exemption, and
[(c)] 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).
While an agency's affidavits are presumed to be in good faith, a
plaintiff can rebut this presumption with evidence of bad faith. Safe Card
Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir.
1991) (citing Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.
Cir. 1981)). But such evidence cannot be comprised of "purely speculative
claims about the existence and discoverability of other documents." Id.
B. The Court Concludes That the Defendants' Search of the NRE
As an initial matter, the plaintiffs do not contest the adequacy of the
defendants' search of the Forest Service or the OGC. See generally Pls.'
Mot. The plaintiffs do, however, contest the adequacy of the defendants'
search of the NRE. Id. at 12-18. In their reply, the plaintiffs clarify
their argument that the defendants also should have searched the office
of the Secretary of Agriculture and "other offices that probably had a
hand in these rulemakings, such as the offices of Congressional Relations
or the Chief Information Officer." Pls.' Reply at 9.
1. Legal Standard for An Adequate Search
"A requester dissatisfied with the agency's response that no records
have been found may challenge the adequacy of the agency's search by
filing a lawsuit in the district court after exhausting any
administrative remedies." Valencia-Lucena v. United States Coast Guard,
180 F.3d 321, 326 (D.C. Cir. 1999). To prevail on summary judgment, "the
agency must demonstrate beyond material doubt that its search was
reasonably calculated to uncover all relevant documents." Nation Magazine
v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (internal
quotations and citations omitted). An agency must search for documents in
good faith, using methods that are reasonably expected to produce the
requested information. Valencia-Lucena, 180 F.3d at 326 (citing Oglesby,
920 F.2d at 68). The principal issue is not whether the agency's search
uncovered responsive documents, but whether the search was reasonable.
Oglesby, 920 F.2d at 67 n. 13 (citing Meeropol v. Meese, 790 F.2d 942,
952-53 (D.C. Cir. 1986)); Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C.
1996). The agency need not search every record in the system or conduct a
perfect search. SafeCard Servs., Inc. v. Sec. & Exch. Comm'n,
926 F.2d 1197, 1201 (D.C. Cir. 1991); Meeropol, 790 F.2d at 952, 956. Nor
need the agency produce a document where "the agency is no longer in
possession of the document for a reason that is not itself suspect."
SafeCard Servs., 926 F.2d at 1201.
Instead, to demonstrate reasonableness, the agency must set forth
sufficient information in affidavits for the court to determine, based on
the facts of the case, that the search was reasonable. Nation Magazine,
71 F.3d at 890 (citing Oglesby, 920 F.2d at 68). While an agency's
affidavits are presumed to be in good faith, a plaintiff can rebut this
presumption with evidence of bad faith. SafeCard Servs., 926 F.2d at
1200. But such evidence cannot be
comprised of "purely speculative claims about the existence and
discoverability of other documents." Id. If the record raises substantial
doubts regarding the agency's efforts, "particularly in view of well
defined requests and positive indications of overlooked materials,"
summary judgment is not appropriate. Valencia-Lucena, 180 F.3d at 326
(internal quotations and citations omitted).
2. The Defendants' Search of the
NRE Was Inadequate
In their motion for summary judgment, the plaintiffs allege that the
defendants' declarations do not indicate an adequate search of the NRE.
Pls.' Mot. at 12. In particular, the plaintiffs assert that
It [is] impossible that the office with direct
oversight of the Forest Service and the NFMA
regulations, the office that intimately reviewed the
2000 regulations, promulgated rules effectively
withdrawing them, and ordered and is overseeing their
wholesale revision, does not have any records related
to the rules suspending those regulations, or to
agency actions revising them.
Id. (emphasis in the original). The plaintiffs also assert that documents
produced by the Forest Service reference the NRE's involvement, thus
evidencing the existence of documents that the search of the NRE should
have turned up. Id. at 13. Further, the plaintiffs point out that the
NRE's declarations merely state that the Deputy Under Secretary of the
NRE was aware of the FOIA request and that he told the Executive
Assistant to the Under Secretary that he did not have any responsive
documents. Pls.' Reply at 9. According to the plaintiffs, the Deputy
Under Secretary's statement does not give any indication about the
reasonableness of his search. Id. Finally, the defendants suggest that
the failure of the NRE to locate any responsive documents indicates that
the plaintiffs acted in bad faith. Pls.' Mot. at 21.
The defendants respond by asserting that they have made a good-faith
effort to conduct a
search that was reasonably calculated to produce the requested
information. Defs.' Mot. for Summ. J. ("Defs.' Mot.") at 30; Defs.' Opp'n
to Pls.' Mot. for Summ. J. ("Defs.' Opp'n") at 8. The defendants state
that the plaintiffs have not demonstrated that NRE retains any records
from rulemaking, even if it is significantly involved in that rulemaking.
Defs.' Mot. at 32; Defs.' Opp'n. at 9. Moreover, the defendants claims
that the NRE's search was adequate because the NRE conducted manual and
electronic searches on its only two file systems for responsive documents
under the topics of rules, regulations and planning using language and
key words from the plaintiffs' FOIA request. Defs.' Mot. at 32; Defs.'
Opp'n at 10. Finally, the defendants characterize the plaintiffs'
allegations of bad faith as meritless because they are vague and
conclusory. Defs.'Opp'n at 10.
The court concludes that the defendants' search of the NRE was not
reasonably calculated to uncover all relevant documents. While the
Executive Assistant's manual and electronic search of the NRE was
reasonable, it appears from the record that the Deputy Under Secretary
maintains separate records. Alston Supp. Decl. ¶ 5. With regard to
the defendants' search of the Under Secretary of the NRE's office, the
bare assertion that the Deputy Under Secretary saw the FOIA request and
that he stated that he had no responsive documents is inadequate because
it does not indicate that he performed any search at all. Steinberg
v. U.S. Dep't of Justice, 23 F.3d 548, 551-552 (D.C. Cir. 1994);
Weisberg v. Dep't of Justice, 627 F.2d 365, 371 (D.C. Cir. 1980)
(holding that "agency affidavits that do not denote which files were
searched, or by whom, do not reflect any systematic approach to document
location, and do not provide information specific enough to enable [the
requester] to challenge the procedure utilized are insufficient")
(internal quotation omitted). By not providing any details about his
search, the Deputy Under Secretary's
conclusory denial that he did not possess any responsive documents
does not "demonstrate beyond material doubt that [the NRE's] search was
reasonably calculated to uncover all relevant documents." Nation
Magazine, 71 F.3d at 890. Accordingly, the court orders a new search
of the Office of the Deputy Under Secretary.
3. The Defendants' Decision Not to Search Other
USDA Offices Was Reasonable
The plaintiffs also assert that the defendants should have searched the
Secretary of Agriculture's Office and "other offices that probably had a
hand in these rulemakings, such as the offices of Congressional Relations
or the Chief Information Officer." Pls.' Reply at 9. In response, the
defendants state that the USDA FOIA officer's declaration indicates that
restricting the search to the Forest Service, NRE and OGC was reasonable.
Defs.' Reply at 2-3.
In her declaration, the USDA FOIA processor sets forth her experience
and qualifications for responding to FOIA requests, and that her
experience led her to direct the plaintiffs' FOIA request to the Forest
Service, NRE and OGC. Fowler Decl. ¶¶ 1, 7. The USDA FOIA processor
explains that she directed the plaintiffs' request to the Forest Service
because the request sought records about interim directives relating to
the NFMA, which was a Forest Service program area, and that "it is an
almost universally consistent generality that records concerning a
particular USDA program are maintained by the component that carries out
that program." Id. ¶ 7.
As noted, FOIA does not mandate a "perfect" search. SafeCard Servs.,
926 F.2d at 1201. Rather, the search need only be reasonable. Oglesby,
920 F.2d at 67 n. 13. Moreover, there is no requirement that an agency
search every division within in when the agency believes that responsive
documents are located in one place. Id. at 68. While the defendants
found responsive documents in the OGC only after a Forest Service
employee's recommendation that the OGC be searched as well, it is settled
law in this circuit that the subsequent disclosure of documents initially
withheld does not qualify as evidence of bad faith. Pub. Citizen v. Dep't
of State, 276 F.3d 634, 645 (D.C. Cir. 2002). The plaintiffs have not
provided any positive indications of overlooked materials or other
indications of bad faith. See generally Pls.' Mot.; Pls.' Opp'n to Defs.'
Mot. for Summ. J.; Pls.' Reply. Rather, the plaintiffs' allegations that
the defendants erred by not searching the offices of the Secretary of
Agriculture, Congressional Relations or the Chief Information officer are
"purely speculative claims about the existence and discoverability of
other documents." SafeCard Servs., 926 F.2d at 1200. Accordingly, the
court concludes that the defendants' decision not to search USDA offices
other than the Forest Service, NRE and OGC was reasonable. Oglesby, 920
F.2d at 68
C. The Court Concludes That the Vaughn Indices Are
1. Legal Standard for the Adequacy of a
In FOIA cases, the requester is often unable to argue for the release
of redacted or withheld documents with "desirable legal precision"
because "the party seeking disclosure cannot know the precise contents of
the documents sought." Vaughn, 484 F.2d at 823. To prevent courts from
having to review hundreds or thousands of documents in camera, the D.C.
Circuit set forth special procedures the filing of a Vaughn index
to assist both courts and requesters in reviewing the validity of
an agency's decision to withhold documents. Id. 484 F.2d at 826-28. A
Vaughn index is an affidavit that indexes and specifically describes
withheld or redacted documents and explains why each withheld record is
exempt from disclosure. King v. U.S. Dep't of Justice, 830 F.2d 210, 219
(D.C. Cir 1987). The index must "afford the FOIA requester a
meaningful opportunity to contest, and the district court an adequate
foundation to review, the soundness of the withholding." Id. at 218.
Toward that end, the requester and the trial judge must "be able to
derive from the [Vaughn] index a clear explanation of why each document
or portion of a document withheld is putatively exempt from disclosure."
Judicial Watch, Inc. v. Export-Import Bank, 108 F. Supp.2d 19, 34
(D.D.C. 2000) (quoting Jones v. FBI, 41 F.3d 238, 242 (6th Cir. 1994)).
While there is no set form for a Vaughn index, the agency should describe
the documents with "as much information as possible without thwarting the
exemption's purpose." King, 830 F.2d at 224. Moreover, a Vaughn index
must provide "a relatively detailed justification, specifically
identifying the reasons why a particular exemption is relevant and
correlating those claims with the particular part of a withheld document
to which they apply." Mead Data Cent., Inc. v. Dep't of Air Force,
566 F.2d 242, 251 (D.C. Cir. 1977). The D.C. Circuit notes three
important elements for an adequate Vaughn index: (1) the index should be
one document, (2) the index must adequately describe the withheld
documents or deletions, (3) the index must state the particular FOIA
exemption, and explain why the exemption applies. Founding Church of
Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). Finally, the
index also should note if the agency has segregated any discloseable
information from each withheld document. Vaughn, 484 F.2d at 827.
2. Legal Standard for Exemption 5 Deliberative Process
Exemption 5 of FOIA protects "inter-agency or intra-agency memorandums
or letters which would not be available by law to a party other than an
agency in litigation with the agency." 5 U.S.C. § 552(b)(5). The
Supreme Court and the D.C. Circuit both have construed
Exemption 5 to "exempt those documents, and only those documents,
normally privileged in the civil discovery context." Nat'l Labor
Relations Ed. v. Sears, Roebuck&Co., 421 U.S. 132, 149 (1975); Martin
v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987). In
other words, Exemption 5 incorporates "all civil disco very rules."
Martin, 819 F.2d at 1185. Thus, all discovery privileges that exist in
civil discovery apply to Exemption 5. United States v. Weber Aircraft
Corp., 465 U.S. 792, 800 (1984). The three traditional privileges that
courts have incorporated into Exemption 5 are the deliberative-process
privilege, the attorney work-product privilege and the attorney-client
privilege. Sears, 421 U.S. at 149. At issue in this case are the
deliberative-process and the attorney work-product privileges invoked by
The general purpose of the deliberative-process privilege is to
"prevent injury to the quality of agency decisions." Sears, 421 U.S. at
151. The three specific policy objectives underlying this privilege are:
(1) to encourage open, frank discussions on matters of policy between
subordinates and superiors; (2) to protect against premature disclosure
of proposed policies before they are finally adopted; and (3) to protect
against public confusion that might result from disclosure of reasons and
rationale that were not in fact ultimately the grounds for an agency's
action. Russell v. Dep't of Air Force, 682 F.2d 1045, 1048 (D.C. Cir.
1982); Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866
(D.C. Cir. 1980); Jordan v. Dep't of Justice, 591 F.2d 753, 772-73 (D.C.
Cir. 1978) (en banc). In essence, the privilege protects the "decision
making processes of government agencies and focus[es] on documents
reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies
are formulated." Sears, 421 U.S. at 150 (internal quotations omitted).
Thus, the deliberative-process privilege ensures that government agencies
"forced to operate in a fishbowl." Petroleum Info. Corp. v. Dep't of the
Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992).
To invoke the deliberate-process privilege, the defendants must
establish two prerequisites. Id. First, the communication must be
"predecisional;" in other words, it must be "antecedent to the adoption of
an agency policy." Jordan, 591 F.2d at 774; Access Reports v. Dep't of
Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991). In determining whether a
document is predecisional, an agency does not necessarily have to point
specifically to an agency's final decision, but need only establish "what
deliberative-process is involved, and the role played by the documents in
issue in the course of that process." Coastal States, 617 F.2d at 868. In
other words, as long as a document is generated as part of such a
continuing process of agency decision-making, the deliberative-process
protections of Exemption 5 may be applicable. Id.; Nat'l Ass'n of Home
Builders v. Norton, 309 F.3d 26, 39 (D.C. Cir. 2002) (holding that a
document is predecisional if it was prepared to assist an agency in
arriving at a decision, rather than supporting a decision already made).
Second, the communication must be deliberative; it must be "a direct
part of the deliberative-process in that it makes recommendations or
expresses opinions on legal or policy matters." Vaughn, 523 F.2d at
823-24. The critical factor in determining whether the material is
deliberative in nature "is whether disclosure of the information would
`discourage candid discussion within the agency.'" Access Reports, 926
F.2d at 1195 (quoting Dudman Communications Corp. v. Dep't of Air Force,
815 F.2d 1565, 1567-68 (D.C. Cir. 1987)).
3. The Defendants' Vaughn
Indices Are Inadequate
The plaintiffs' main argument is that the substance of the defendants'
declarations do not
provide them a meaningful opportunity to contest the defendants'
withholding of responsive records. First, the plaintiffs argue that the
declarations do not provide enough specific information to identify the
role of each document in a deliberative process. Pls.' Mot. at 19.
Second, the plaintiffs argue that the defendants' "conclusory and
generalized allegations of FOIA exemptions" do not provide enough
specificity to meet the standards that Vaughn and its progeny
established. Id. at 20.
The defendants disagree. First, the defendants argue that declarations
are an accepted form of a Vaughn index because the court is concerned
with the substance, not the form of the explanation regarding withheld
documents. Defs.' Opp'n at 3-4. Second, the defendants argue that a
categorical approach to exemption is appropriate. Id. Under the
categorical approach, the agency aggregates groups of documents under a
general description, and asserts a specific exemption for all of them.
See generally Defs.' Opp'n. Essentially, the defendants assert that the
declarations they produced in response to the plaintiffs' FOIA request
are detailed enough to justify their withholding. Id. at 7.
The court agrees with the defendants that declarations may generally
serve as an acceptable form of a Vaughn index. Raulerson v. Ashcroft,
271 F. Supp.2d 17, 21 (D.D.C. 2002). The defendants correctly assert that
substance is paramount. King, 839 F.2d at 224. The court disagrees,
however, with the defendants' assertion that their categorical exemption
in this case is appropriate, and that their declarations contain adequate
substance to determine whether they properly withheld records.
The defendants describe the vast majority of the documents withheld in
full or in part as "drafts." See generally Morgan Decl.; Poling Decl.
Although an agency may properly withhold
drafts pursuant to Exemption 5, the defendants' designation of a document
as a "draft" does not automatically trigger proper withholding under
Exemption 5. Arthur Andersen & Co. v. Internal Revenue Serv.,
679 F.2d 254, 257 (D.C. Cir. 1982). As noted, the agency must demonstrate
that a withheld document is predecisional and deliberative. But the
document can lose its predecisional status "if it is adopted, formally or
informally, as the agency position on an issue or is used by the agency
in its dealings with the public." Coastal States, 617 F.2d at 866. "The
need to describe each withheld document when Exemption 5 is at issue is
particularly acute because `the deliberative process privilege is so
dependent upon the individual document and the role it plays in the
administrative process.'" Animal Legal Defense Fund, Inc. v. Dep't of the
Air Force, 44 F. Supp.2d 295, 299 (D.D.C. 1999) (quoting Coastal States,
617 F.2d at 867). Further, in evaluating whether a document qualifies
under Exemption 5, "[t]he identity of the parties to the memorandum is
important; a document from a subordinate to a superior official is more
likely to be predecisional, while a document moving in the opposite
direction is more likely to contain instructions to staff explaining the
reasons for a decision already made." Id. at 868.
After perusing the defendants' declarations, the defendants do not
persuade the court that all of the withheld documents contain
predecisional and deliberative information. The defendants' principal
overarching problem is that they do not provide an individualized
description of any of the documents, despite the D.C. Circuit's emphasis
on the individualized nature of the deliberative-process inquiry. Id.;
Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp.2d 252, 259-60
(D.D.C. 2004) (holding that "[s]ince the applicability of the
deliberative process privilege depends on the content of each document
and the role it plays in the decisionmaking process, an agency's
affidavit must correlate facts in or about each withheld
document with the elements of the privilege"). For instance, in
describing its 636 withheld pages, the Forest Service states:
The records withheld in full fall into four general
groupings. The first group contains about 520 pages.
These pages are drafts of the rules. The drafts were
written by Forest Service employees and contains
positions and descriptions that have not been adopted
by the Forest Service. Some positions may have
changed; some may have remained the same. The
necessary internal review of a rule was not under
taken [sic] for these drafts. Rather, employees
involved in creating the rules made suggestions and
comments and posed questions about the drafts. The
drafts were revised and reviewed again and again. The
responsive pages are various drafts of the rules; they
are not the versions of the rules published in the
Morgan Decl. ¶ 9. The court readily identifies several problems with
this vague declaration. First, the defendants state that the documents
contain some positions that may have changed and some that may have
remained the same. Id. By admitting that some of the positions remained
the same, the Forest Service may have formally or informally adopted the
contents of some of the documents. Any such adoption would destroy the
predecisional aspect of the drafts. Coastal States, 617 F.2d at 866.
Without being provided any detail about the substance of the drafts,
however, the court cannot determine if the defendants have formally or
informally adopted any of the positions taken in the draft. In addition,
the Forest Service does not specify by name, title and position, the
exact authors or recipients of the documents. See generally Alston
Decl.; Morgan Decl.; Poling Decl. As a result, the court cannot determine
whether the documents contain communications from subordinates to
superiors, or vice versa. Coastal States, 617 F.2d at 868; Animal Legal
Def. Fund, 44 F. Supp.2d at 300 (observing that "[n]otably absent form
any of the affidavits or Vaughn index are two factors that can assist the
court in determining whether this [deliberative process] privilege is
available; the nature of decisionmaking authority vested in the officer
or person issuing the disputed document and the relative position in the
agency's chain of command occupied by the documents' author and
recipient") (internal quotations omitted). Accordingly, the court cannot
determine if the documents are actually predecisional and deliberative.
Coastal States, 617 F.2d at 868. Thus, the court concludes that the
Forest Service has not provided an adequate Vaughn index. King, 830 F.2d
The rest of the defendants' withheld documents suffer from the same
fatal flaw. For instance, for the second, third and fourth groups of
withheld documents, the Forest Service again relies on the assertion that
the documents are drafts in invoking Exemption 5. Morgan Decl. ¶¶
10-12 (describing the second group of withheld documents as "drafts of
regulatory workplans," the third group as "draft informational
memoranda," and the fourth group as "drafts of miscellaneous records").
Similarly, the 46 pages that the Forest Service withheld in part fail to
identify any authors, intended recipients or the subject matter of the
document, except in the broadest and vaguest terms. Id. ¶ 14
(asserting that the Forest Service partially redacted documents to
"protect the discussion, questions, issues, strategies and explanations
regarding the content of the rules," and that the authors of the
documents were "agency employees"). The OGC documents also do not
identify the specific authors or the subject matter of the documents,
except to say that the documents are "drafts" and "were written by
employees of USDA." Polling Decl. ¶¶ 6, 8-9. Again, the bare-bones
and conclusory descriptions of the Forest Service's partially withheld
documents and the OGC documents do not allow the court to discern whether
the documents are both predecisional and deliberative. Coastal States,
617 F.2d at 868.
In sum, the defendants' declarations do not afford the plaintiffs "a
meaningful opportunity to contest, and the district court an adequate
foundation to review, the soundness of the withholding." King, 830 F.2d
at 218. Thus, the plaintiffs cannot argue effectively for
disclosure and this court cannot rule effectively. Id. at 225. Rather
than rule on the basis of inadequate Vaughn indices, the court directs
the defendants to submit new Vaughn indices with proper detailed document
descriptions and reasons for withholding that illuminate the contents of
the documents and the reasons for non-disclosure. Any lesser standard of
compliance would not satisfy this circuit's requirements and FOIA's
policy "in favor of the fullest possible disclosure of document records."
Founding Church of Scientology, 603 F.2d at 949.
D. The Court Will Not Order a Disciplinary
As a final matter, the plaintiffs allege that the defendants'
withholding of documents was improper and warrants both a finding that
the defendants acted arbitrarily and capriciously and a disciplinary
investigation. Pls.' Mot. at 21 (citing 5 U.S.C. § 552(a)(4)(F)).
According to the plaintiffs, the NRE has exhibited a total lack of
compliance, and that it is "impossible" that the NRE does not have
responsive records. Id.
The Merit Systems Protection Board will initiate an investigation into
the improper withholding of non-exempt records under FOIA if the court
(1) orders the production of the withheld records and (2) issues written
findings that the "circumstances surrounding the withholding raise
questions whether agency personnel acted arbitrarily or capriciously[.]"
Perry v. Block, 684 F.2d 121, 125 n.19 (D.C. Cir. 1982) (quoting
5 U.S.C. § 552(a)(4)(F)). In the instant case, the court has not
ordered production of any withheld records. While the court agrees that a
portion of the NRE search was inadequate, the court has not determined
that the defendants are withholding non-exempt records. The fact alone
that the plaintiffs themselves believe that the defendants are purposely
withholding non-exempt records does not adequately provide the court with
any basis for initiating a disciplinary investigation. Id. Accordingly,
court declines to issue a finding that the defendants acted arbitrarily
and capriciously and to order an investigation.
For the foregoing reasons, the court grants in part and denies in part
the plaintiffs' motion for summary judgment and grants in part and denies
in part the defendants' motion for summary judgment. An order consistent
with this Memorandum Opinion is separately and contemporaneously issued
this _____ day of March, 2004.
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