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
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 ...