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MOKHIBER v. U.S. DEPARTMENT OF TREASURY

RUSSELL MOKHIBER Plaintiff,
v.
U.S. DEPARTMENT OF THE TREASURY, Defendant.



The opinion of the court was delivered by: EMMET SULLIVAN, District Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

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 DENIED.

  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 (1989)).

  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).

  IV. ANALYSIS

  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 ...


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