United States District Court for the District of Columbia
RUSSELL MOKHIBER Plaintiff,
U.S. DEPARTMENT OF THE TREASURY, Defendant.
The opinion of the court was delivered by: EMMET SULLIVAN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Russell Mokhiber, a reporter for the legal
publication Corporate Crime Reporter, commenced this action in an
effort to compel the Office of Foreign Assets Control
("OFAC")*fn1 to respond to his Freedom of Information Act
("FOIA") request. See 5 U.S.C. § 552 et seq. Plaintiff's
FOIA request sought "records of all enforcement actions settled
by the OFAC since May 17, 1998" and specifically, "records
revealing the following information with respect to such
enforcement actions: the date of settlement, the amount of
settlement, the identity of the entity with which the enforcement
action was settled, and amount of any penalty imposed, and the
nature of the alleged violation." Compl. ¶ 6; see also Newcomb Decl. ¶ 5*fn2 (noting that
OFAC imposes financial penalties on U.S. corporations that trade
with OFAC-targeted countries and organizations in violation of
the law, and that some civil penalty matters are resolved through
informal settlement procedures).
On September 26, 2003, this Court issued a Memorandum Opinion
granting in part and denying in part the parties' cross-motions
for summary judgment pertaining to material withheld pursuant to
defendant's claimed FOIA exemptions.*fn3 The September 2003
Opinion left open one issue: whether material withheld pursuant
to FOIA Exemption 5, which encompasses the asserted deliberative
process privilege, contains factual material which must be
segregated from properly withheld deliberative material. See
5 U.S.C. § 552 (b)(5) ("Exemption 5") ("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" are exempt from FOIA disclosure requirements); 5 U.S.C. § 552 (b) ("[a]ny reasonably segregable portion of a record shall
be provided to any person requesting such record after deletion
of the portions which are exempt under this subsection").
Declining to grant judgment for either party, the Court stated,
in relevant part:
[B]ecause the Department's assertion of segregabilty
is vague, the Court will deny the parties' motions
for summary judgment on this issue and order the
Department to provide a more detailed Vaughn index
addressing with the requisite specificity the
segregability of factual information from
deliberative information within the "settlement
offer," "administrative considerations," and other
redacted portions of the documents.
Mem. Op. and Order of Sept. 26, 2003, at 19. Accordingly, the
Court ordered defendant to file an amended Vaughn index
"addressing, with the requisite specificity, the segregability of
facts from deliberative process materials in the redacted
portions of the disclosed documents." Mem. Op. and Order of Sept.
26, 2003, at 32-33.
In compliance with this Order, defendant filed a Supplemental
Declaration from Director Newcomb. Plaintiff immediately renewed
his motion for summary judgment, arguing that the supplemental
declaration "shows that OFAC has not complied with the applicable
legal standards and is withholding information that must be made
public" pursuant to FOIA. Pl.'s Renewed Mot. for Summ. J. at 1-2.
Defendant likewise renewed its motion for summary judgment,
averring that it had released all reasonably segregable non-deliberative material.
Upon careful consideration of the motions, the responses and
replies thereto, as well as the governing statutory and case law,
and for the following reasons, it is by the Court hereby
ORDERED that plaintiff's motion for summary judgment is
GRANTED and defendants' motion for summary judgment is
II. STANDARD OF REVIEW
This case is before the Court on the parties' cross-motions for
summary judgment. Pursuant to Federal Rule of Civil Procedure 56,
summary judgment will be granted only if the moving party has
shown that there are no genuine issues of material fact and that
the moving party is entitled to judgment as a matter of law.
See Fed.R. Civ. P. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986); Waterhouse v. District of Columbia,
298 F.3d 989, 991 (D.C. Cir. 2002). Likewise, in ruling on cross-motions
for summary judgment, the court will grant summary judgment only
if one of the moving parties is entitled to judgment as a matter
of law upon material facts that are not genuinely disputed. See
Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir. 1975). Summary
judgment is also appropriate in a FOIA action; "the Court may
award summary judgment to the agency on the basis of affidavits
when the affidavits 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.'" Trans Union LLC v. Federal Trade Com'n,
141 F. Supp. 2d 62, 67 (D.D.C. 2001) (quoting Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)).
III. FOIA EXEMPTION 5 AND THE SEGREGABILITY REQUIREMENT
The Freedom of Information Act requires that federal agencies
release all documents requested by members of the public unless
the information contained within such documents falls within one
of FOIA's nine exemptions. See 5 U.S.C. § 552(a),(b). The
exemption at issue here, Exemption 5, allows withholding of
requested documents or information when they include "interagency
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). Encompassed in Exemption
5 is the "deliberative process" privilege, which protects from
disclosure "documents reflecting advisory opinions,
recommendations, and deliberations that are part of a process by
which governmental decisions and policies are formulated." Dep't
of the Interior and Bureau of Indian Affairs v. Klamath Water
Users Protective Ass'n, 532 U.S. 1, 8 (2001) (quoting NRLB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). "Consistent
with the Act's goal of broad disclosure," Exemption 5 has
"consistently [been] given a narrow compass." Id. (quoting
U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151
As stated in the September 2003 Opinion, OFAC properly withheld
portions of documents pursuant to Exemption 5. In granting
defendant's motion for summary judgment on the Exemption 5 claim,
the Court stated:
[T]he Department is not required to disclose the
deliberative portions of the settlement memoranda
that set forth OFAC staff recommendations and
impressions, as they have not been expressly adopted
by Director Newcomb in his decision to settle a case,
and the plaintiff has not responded to Director
Newcomb's declaration with any evidence showing that
OFAC staff recommendations are indeed adopted by the
Director in every case. Accordingly, the Court denies
plaintiff's motion for summary judgment, and grants
defendant summary judgment on the Exemption 5 claim.
Mem. Op. and Order of Sept. 26, 2003, at 14.
However, FOIA also requires that "any reasonably segregable
portion of a record shall be provided to any person requesting
such record after deletion of the portions which are exempt."
5 U.S.C. § 552(b). An agency must disclose non-exempt portions of a
document; "it has long been a rule in this Circuit that
non-exempt portions of a document must be disclosed unless they
are inextricably intertwined with exempt portions." Krikorian v.
Department of State, 984 F.2d 461, 466 (D.C. Cir. 1993) (quoting Mead Data Cent., Inc. v. United States Dep't of Air Force,
566 F.2d 242, 260 (D.C. Cir. 1977)). The agency bears the burden of
demonstrating that withheld documents contain no reasonably
segregable factual information. See Army Times Pub. Co. v.
Department of Air Force, 998 F.2d 1067, 1068 (D.C. Cir. 1993);
Mead Data Central, Inc. v. U.S. Dept. of Air Force,
566 F.2d 242, 260 (D.C. Cir. 1977).
Defendants released approximately 300 pages of documents to
plaintiff; the majority of the records are settlement memoranda
and notes. Newcomb Decl. ¶ 6. The question now before the Court
is whether, in preparing those records for release, the defendant
adequately separated factual material from deliberative material,
and then released the non-exempt factual material to plaintiff.
In September 2003, the Court declined to grant summary judgment
to either party on the issue of segregability because the Vaughn
Index and accompanying Newcomb declaration were too vague for the
Court to determine whether purely factual information could be
segregated from the deliberative material withheld pursuant to
[O]n the issue of segregability, the Newcomb
declaration is brief and vague, stating in only
conclusory terms that "any facts embedded in these
portions of the memoranda are so inextricably
intertwined with the deliberative analysis that they
could not be reasonably segregated any further."
Because the case law holds that agency affidavits will not suffice if they are conclusory,
merely recite statutory standards, or are too vague
or sweeping, the Court finds good cause to require a
more detailed affidavit or Vaughn index . . .
Director Newcomb's declaration does not correlate
claimed exemptions with particular passages within
the documents. He also does not speak to the
proportion of factual material in relation to
deliberative material within the redacted portions.
Mem. Op. and Order of Sept. 26, 2003 at 16-17 (citing Newcomb
Decl. ¶ 8).
The crux of plaintiff's renewed motion for summary judgment is
that the Director Newcomb's supplemental declaration does not
cure these deficiencies. Specifically, plaintiff avers that the
agency is (1) impermissibly withholding factual information
concerning aggravating and mitigating factors in individual cases
and (2) impermissibly withholding information regarding the
settlement offer amounts made by private parties. Defendant
counters that all reasonably segregable information has been
provided, and that while there may be some "stray factual
information within those redacted portions of the memorandum,"
the "approach to redacting the analysis was reasonable and
consistent with efficient government operation." Def.'s Renewed
Mot. for Summ. J. at 3.
A. Mitigating and Aggravating Factors
The settlement memoranda at issue each contain sections
captioned "Mitigating Factors/Other Administrative Considerations" and "Aggravating Factor(s)/Other Considerations."
Newcomb Supplemental Decl. ¶ 6. Plaintiff argues that in
redacting the document at issue, OFAC impermissibly "blacked-out
all information concerning such aggravating and mitigating
factors." Pl.'s Renewed Mot. for Summ. J. at 4. More
specifically, plaintiff avers that "statements that the offense
was voluntarily disclosed [or] does or does not represent a first
offense," are examples of factual information contained in the
otherwise deliberative sections that must be disclosed pursuant
to FOIA. Pl.'s Renewed Mot. for Summ. J. at 9; see also Newcomb
Supplemental Decl. ¶ 7 (noting that voluntary disclosure and the
fact of a first offense are mitigating factors).
That OFAC redacted all information in these sections, rather
than parsing factual material from deliberative material, is not
at issue. Indeed, Director Newcomb admits that OFAC concluded
"the more reasonable method of separating factual information
from exempt information was to follow the standard structure of
the settlement memoranda to redact all of the analysis," from
the Mitigating Factors and Aggravating Factors sections. Newcomb
Supplemental Decl. ¶ 8 (emphasis added); see also Def.'s Ex. to
Supplemental Newcomb Decl. (sample settlement memorandum where
all information in Mitigating/Aggravating Factors sections is
redacted). Moreover, it is also undisputed that some purely
factual information is found in the redacted portions of the
memoranda. See Newcomb Supplemental Decl. ¶ 8 ("The occasional notation `voluntary dismissal,' `first offense,' or any other
stray factual information is a relatively small proportion of the
deliberative sections of the settlement agreement.")
Defendant argues that this method of redaction that is,
redaction of whole sections was "reasonable and consistent with
efficient government operation" and asks the Court to "keep in
mind that locating and preparing these documents for public
disclosure was not a simple task." Def.'s Renewed Mot. for Summ.
J. at 3. The standard for assessing OFAC's attempts at separation
of factual material from deliberative material, defendant
asserts, is "reasonableness," and thus concludes that its efforts
satisfied FOIA obligations.
While defendant is correct that it need only disclose
"reasonably segregable" information, defendant has not
demonstrated that it even attempted to separate factual
material from deliberative material in the redacted sections.
Even accepting defendant's assertion that the factual material is
a "relatively small proportion of the deliberative sections of
the settlement agreement," the fact that the amount of factual
information is minimal does not relieve the agency from the
obligation to attempt to parse out and disclose purely factual
material. Indeed, the Circuit has explicitly stated that, in the
Exemption 5 context, "the agency bears the burden of showing that no such segregable information exists." Army Times Pub. Co. v.
Department of Air Force, 998 F.2d 1067, 1071 (D.C. Cir. 1993)
(emphasis added). Here, OFAC freely admits that such information
exists within the redacted records, makes no argument that the
factual information is "inextricably intertwined" with
deliberative material, but yet refuses to engage in the
segregabilty analysis FOIA requires. See Johnson v. Executive
Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002)
("FOIA § 552(b) requires that even if some materials from the
requested record are exempt from disclosure, any `reasonably
segregable' information from those documents must be disclosed
after redaction of the exempt information unless the exempt
portions are inextricably intertwined with exempt portions")
(internal citation and quotation omitted); American Civil
Liberties Union v. U.S. Dept. of Justice, 265 F. Supp. 2d 20, 33
(D.D.C. 2003) (applying "inextricably intertwined" test to
documents withheld pursuant to Exemption 5 deliberative process
This Circuit has made clear that potential segregability of
material is determined by an assessment of both the
"intelligibility" of factual material after it is separated from deliberative material, as well as "the extent of the burden in
`editing' or `segregating' the nonexempt material." Yeager v.
Drug Enforcement Administration, 678 F.2d 315, 322 n. 16 (D.C.
Cir. 1982). Defendant has not argued that the factual material
would be unintelligible if separated from deliberative material.
Defendant has, however, vaguely argued that separating factual
material may be burdensome. See Newcomb Supplemental Decl. ¶ 8
(factual material constitutes "relatively small proportion of the
deliberative sections"); Def.'s Renewed Mot. for Summ. J. at 7
("Justice would not be served by devoting yet more government
time and resources to this FOIA request."). This argument falls
far short of the well-recognized standard that an agency "must
provide a `detailed justification' for its non-segregability."
Johnson, 310 F.3d at 776 (upholding non-segregability assertion
where agency official had conducted a "line-by line" review of
each document and determined that no factual information was
segregable). In sum, the agency has done little to cure the
deficiencies the Court found with the previous assertion of
nonsegregability. Mem. Op. and Order of Sept. 26, 2003, at 16-17.
OFAC has not met its burden to segregate factual material from
deliberative material in the Mitigating and Aggravating Factors
sections of the memoranda. B. Settlement Offers
In its September 2003 Memorandum Opinion, the Court found that
defendant was not required to produce deliberative portions of
the settlement memoranda, as such information is protected by
Exemption 5. However, the Court also noted that factual
information contained in the memoranda, for example the amount
third parties offered to OFAC for settlement purposes, would have
to be disclosed if reasonably segregable.
If it is indeed the case that these portions of the
memoranda, often consisting of one or two lines, are
purely factual information, the law mandates that the
information be disclosed. Exemption 5 only protects
those communications that are between or within
agencies; therefore, information pertaining to
settlement discussions between an agency and a third
party are not exempt from disclosure. See, e.g.,
Senate of the Commonwealth of P.R. v. U.S. Dep't of
Justice, 823 F.2d 574, 587 (D.C. Cir. 1987); Mead
Data, 566 F.2d at 257-58. The issue, then, remains
whether factual information about the specific amount
of money offered OFAC by the corporations can be
reasonably segregated from the deliberative material.
Mem. Op. and Order of Sept. 26, 2003 at 16-17.
Plaintiff correctly states that Director Newcomb's supplemental
declaration "does not claim that OFAC redacted information
describing settlement offers because it is inextricably
intertwined with deliberative material." Pl.'s Renewed Mot. for
Summ J. at 5 (emphasis in original). Indeed, rather than arguing
that settlement offer information cannot be segregated, defendant
instead simply rehashes its argument that the disclosure of
rejected settlement offers (unlike accepted settlement offers) "would cut to the very heart of the
predecisional negotiations and deliberations described by OFAC
staff in the settlement memoranda." Def.'s Renewed Mot. for Summ.
J. at 6. Defendant concludes that disclosure of rejected
settlement offers would "inhibit the candor of OFAC staff" and
release of the information would "impair the quality of agency
decision making." Id. at 6-7.
The Court has already rejected defendant's argument that the
rejected settlement offers from third parties are privileged.
See Mem. Op. and Order of Sept. 26, 2003 at 16-17 ("Exemption 5
only protects those communications that are between or within
agencies; therefore, information pertaining to settlement
discussions between an agency and a third party are not exempt
from disclosure."). Further, as noted in the September 2003
Opinion, the Circuit has likewise rejected the argument that
factual information pertaining to the amount offered by a third
party to an agency in settlement negotiations is privileged.
See, e.g., Senate of the Commonwealth of P.R. v. U.S. Dep't of
Justice, 823 F.2d 574, 587 (D.C. Cir. 1987); Mead Data Central Inc. v. United States Dep't of the Air Force, 566 F.2d 242,
257-58 (D.C. Cir. 1977); Greenberg v. United States Dep't of
Treasury, 10 F. Supp. 2d 3,17 (D.D.C. 1998) (stating that
"factual information about negotiations between an agency and an
outside party" does not fall within Exemption 5). While the Court
could not mandate disclosure of an agency's internal,
deliberative discussions about whether to accept or reject a
settlement offer, the factual amount offered by a third party
is purely factual, segregable information.
Defendant makes absolutely no argument that the factual
settlement offer information is so "inextricably intertwined"
with deliberative material so as to preclude disclosure; nor does
defendant demonstrate that separating such information would
impose a high burden on the agency. See Johnson,
310 F.3d at 776 (agency must disclose factual material unless it is
"inextricably intertwined with exempt portions"). Therefore, OFAC
has not met its FOIA obligations to segregate factual material
from deliberative material.
For the reasons set forth above, the Court finds that defendants have not made a good faith effort to provide plaintiff
with a "reasonably segregable portion" of each document. See
5 U.S.C. § 552 (b). Accordingly, it is by the Court hereby
ORDERED that plaintiff's motion for summary judgment is
GRANTED; and it is
FURTHER ORDERED that defendant's motion for summary judgment
is DENIED; and it is
FURTHER ORDERED that defendant shall file with plaintiff and
the Court appropriately redacted versions of each document by no
later than October 8, 2004.