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Lardner v. United State Dep't of Justice

March 31, 2005

GEORGE LARDNER, PLAINTIFF,
v.
UNITED STATE DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

This action arising under the Freedom of Information Act ("FOIA") concerns certain pardon documents in the custody of the Office of the Pardon Attorney (a component of defendant Department of Justice). Plaintiff is a reporter writing a book on the use of the presidential pardon power who filed a FOIA request seeking letters of advice (the recommendation from the Attorney General to the President regarding pardon requests) generated from 1960 to 1989, and the complete pardon files of twenty-five prominent individuals. Defendant provided plaintiff with thousands of pages of documents, but withheld hundreds of pages more, claiming that they are protected from disclosure under Exemption 5 of FOIA because they fall within the ambit of the presidential communications and deliberative process privileges. Defendant also redacted certain information from many of the released documents pursuant to Exemptions 6 and 7(C), citing personal privacy concerns.

After plaintiff commenced this litigation, defendant voluntarily released many of the documents at issue, including all documents generated prior to the Reagan Administration that it had previously withheld under Exemption 5. However, defendant continues to withhold Reagan Administration documents under Exemption 5, and certain information from released documents under Exemptions 6 and 7(C). Plaintiff now challenges many of these decisions, arguing that defendant cannot rely on the presidential communications privilege because the President has not personally invoked the privilege, that the presidential communications and deliberative process privileges in these documents have eroded over time to the point that they can no longer serve as the basis for an Exemption 5 claim, and that four recommendation letters solicited by the Pardon Attorney from special prosecutors and a judge are not"intra-agency" documents within the meaning of Exemption 5. Plaintiff also contends that defendant should disclose the names of unsuccessful pardon applicants (when they appear in the pardon records of other individuals), individuals supporting clemency applicants, and certain third parties identified in FBI investigative files, all of which have been redacted under Exemptions 6 or 7(C).

The parties have filed cross-motions for summary judgment, and plaintiff has also moved for a more complete Vaughn index. For the reasons set out below, the Court concludes that the Department properly withheld the remaining documents at issue under Exemption 5 and redacted the names of individuals in FBI investigative files from any released documents. The Court also holds that defendant need not provide a more definite Vaughn index. However, the Court holds that it was improper for the Department to withhold on personal privacy grounds the identity of unsuccessful pardon applicants and individuals supporting clemency applications from the disclosed pardon documents in which they appear.

BACKGROUND

The material facts are not in dispute. Plaintiff George Lardner, Jr. is a Washington Post reporter who is writing a book on the presidential use of the pardon power. See Decl.*fn1 of George Lardner, July 27, 2004 ("Lardner Decl.") ¶¶ 1-2. As part of his research, he sent FOIA requests to defendant seeking two categories of records in the custody of the Office of the Pardon Attorney: all"letters of advice" (the reports from the Attorney General or his designee to the President advising whether to grant or deny requests for pardons) generated from 1960 to 1989, and the complete files of the pardon applications of twenty-five prominent individuals (including John Ehrlichman, James Hoffa, and Julius and Ethel Rosenberg). See id. ¶ 3; Decl. of Samuel T. Morison, June 20, 2003 ("Morison Decl.") ¶¶ 12-13.

At first, defendant refused to release any of the letters of advice, claiming that they are exempt from disclosure under 5 U.S.C. § 552(b)(5) ("Exemption 5"),*fn2 because they fall within the ambit of the presidential communications privilege. Defendant also redacted portions of the letters under 5 U.S.C. § 552(b)(6) ("Exemption 6") and 5 U.S.C. § 552(b)(7)(C) ("Exemption*fn3 7(C)"), due to personal privacy concerns.*fn4 Defendant released more than 10,000 pages of documents from the pardon applications of the prominent individuals, but it declined to release an additional 1,500 pages under Exemption 5, citing the presidential communications and the deliberative process privileges.*fn5 Defendant also redacted portions of these records under Exemptions 6 and 7(C), again for personal privacy reasons. See Lardner Decl. ¶¶ 2-3;*fn6 Morison Decl. ¶ 13-16.

On February 4, 2003, Lardner brought this action against the Department of Justice, demanding the release of all of the documents withheld under Exemption 5, and some of the information withheld under Exemptions 6 and 7(C). Defendant filed a motion for summary judgment and submitted a Vaughn index outlining the withheld materials. Plaintiff responded with a motion to compel production of a new Vaughn index. On February 4, 2004, this Court granted plaintiffs' motion and issued an order requiring defendant to submit a revised Vaughn index that includes the dates of withheld records.

Shortly thereafter, defendant moved to stay the case to await a decision in Judicial Watch v. Department of Justice, a case then pending before the D.C. Circuit in which the Department of Justice had withheld pardon documents generated during the Clinton Administration under Exemption 5 on the basis of the presidential communications and deliberative process privileges. On March 9, 2004, this Court granted the motion to stay and on May 7, 2004, the D.C. Circuit issued its decision in Judicial Watch, holding that the presidential communications privilege only "applies to pardon documents'solicited and received' by the President or his immediate advisors in the Office of the President," and that"internal agency documents that never make their way to the Office of the President" are"more appropriately examined under the deliberative process privilege." 365 F.3d 1108, 1123 (D.C. Cir. 2004).

Meanwhile, the scope of this action was narrowing. Early on, defendant had announced that it would no longer assert Exemption 5 privileges for documents that were more than thirty years old. See Morison Decl. ¶¶ 17-18, 22-24. Defendant then acknowledged that four documents from the Ford and Carter administrations that it had earlier withheld under Exemption 5 had been made public at the Presidential Libraries holding the records. Defendant therefore informed plaintiff that it would make a discretionary release of these documents. See Morison Decl. ¶ 19. Most recently, defendant notified plaintiff that it would no longer assert Exemption 5 for any Ford and Carter administration pardon records, and it began the process of releasing these documents to plaintiff. See Def. Mem., Ex. 6 (July 29, 2004, Letter from John Tyler to Alison Zieve).

As a result of these disclosures, defendant now raises Exemption 5 arguments almost exclusively for documents generated during the Reagan Administration.*fn7 Defendant also continues to redact information from these and earlier records for reasons of personal privacy under Exemptions 6 and 7(C). The records still at issue consist of more than 3,000 pages of letters of advice, and hundreds of pages of other pardon documents from the files of the twenty-five prominent pardon applicants. The parties have now filed cross-motions for summary judgment regarding these remaining documents, and defendant has also submitted a revised Vaughn index.*fn8

Plaintiff challenges the refusal to disclose the remaining documents on several grounds. Plaintiff contends that Exemption 5 cannot be used to withhold the remaining documents, because the President never personally invoked the presidential communications privilege, and the presidential communications and deliberative process privileges have eroded over time to the point that they can no longer justify withholding. Plaintiff also contends that four letters from judges and special prosecutors to the Pardon Attorney are not"intra-agency" documents within the meaning of Exemption 5. Plaintiff further argues that some of the names redacted from pardon file documents under Exemptions 6 and 7(C) -- the names of unsuccessful pardon applicants, individuals supporting clemency applicants, and certain third parties in FBI recordsshould be disclosed. Finally, plaintiff argues that the most recent Vaughn index is inadequate because it does not reveal the names of the pardon applicants who are the subjects of the letters of advice.

A hearing was held on the cross-motions for summary judgment on December 16, 2004. At the hearing, counsel for defendant represented that the Department of Justice regards the withholding of agency documents under Exemption 5 of FOIA due to the deliberative process privilege as a far different act than the invocation of the privilege itself in civil discovery.

Therefore, counsel for defendant explained, its officials use different language in asserting the Exemption than in invoking the privilege. The Court instructed counsel for defendant to submit a declaration from a responsible person within the Department of Justice confirming this representation. Tr. of Motions Hg., Dec. 14, 2004, at 74-75. On January 18, 2005, defendant filed the declaration of Assistant Attorney General Peter D. Keisler of the Civil Division of the Department of Justice, attesting "that the language used by the Department formally to invoke privilege in a civil discovery context is consistently different from the language used by the Department in declarations that are filed in FOIA litigation in which Department records have been withheld under FOIA Exemption 5 pursuant to privilege." Decl. of Peter D. Keisler, Jan. 18, 2005, ¶ 16.*fn9

STANDARD OF REVIEW

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the pleadings 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 judgment as a matter of law. Fed.R.Civ.P. 56(c). Material facts are those that"might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the initial burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).

In considering whether there is a triable issue of fact, the Court must draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; see also Washington Post Co. v. United States Dep't of Health and Human Serv., 865 F.2d 320, 325 (D.C. Cir. 1989). The party opposing a motion for summary judgment, however,"may not rest upon the mere allegations or denials of his pleading, but... must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248. The non-moving party must do more than simply"show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Moreover,"any factual assertions in the movant's affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion." Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)). The mere existence of a factual dispute by itself, however, is not enough to bar summary judgment. The party opposing the motion must show that there is a genuine issue of material fact. See Anderson, 477 U.S. at 247-48. To be material, the fact must be capable of affecting the outcome of the litigation; to be genuine, the issue must be supported by admissible evidence sufficient for a reasonable trier of fact to find in favor of the nonmoving party. See id.; Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).

FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980). In a FOIA case, the court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations that 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 820, 826-28 (D.C. Cir. 1973).

Agency affidavits or declarations must be"relatively detailed and non-conclusory." SafeCard Services v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Such affidavits or declarations are accorded"a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." Id. (internal citation and quotation omitted). 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. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted).

ANALYSIS

Plaintiff contends in its motion for summary judgment that defendant has improperly withheld letters of advice and other pardon documents on the basis of the presidential communications and deliberative process privileges under Exemption 5; that defendant has unlawfully redacted certain names from these documents under Exemptions 6 and 7(C); and that defendants' revised Vaughn index continues to fall short of the disclosure necessary for the Court to assess defendant's claims of exemption. The Court will address each of these arguments in turn.

I. Exemption 5

FOIA mandates the disclosure of records held by a federal agency unless the documents fall within one of several statutory exemptions. 5 U.S.C. § 552. Exemption 5 provides that an agency may withhold"inter-agency or intra-agency memorandums or letters which would not be available by law to a party... in litigation with the agency." Id. § 552(b)(5). The Supreme Court has read this language to mean that a document must "fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it." Dep't of the Interior v. Klamath, 532 U.S. 1, 7-8 (2001). "The test under Exemption 5 is whether the documents would be'routinely' or'normally' disclosed upon a showing of relevance." Fed. Trade Comm'n v. Grolier, Inc., 462 U.S. 19, 23-28 (1983); Rockwell Intern. Corp. v. United States Dep't of Justice, 235 F.3d 598, 606 (D.C. Cir. 2001).

Defendant claims that the remaining documents at issue in this case are protected from disclosure under FOIA because they fall within the ambit of either the presidential communications privilege or the deliberative process privilege. Although"closely affiliated, the two privileges are distinct and have different scopes." In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997)."Both are executive privileges designed to protect executive branch decisionmaking, but one applies to decisionmaking of executive officials generally, the other specifically to decisionmaking of the President." Id. The presidential communications privilege"applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones." Id. The deliberative process privilege, on the other hand, only applies to information that is"predecisional" and"deliberative." Id. at 737; Petroleum Info. Corp. v. Dep't of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992).

Plaintiff contends that the pardon documents in this case would not be routinely or normally withheld in civil litigation for two reasons, each mentioned in Judicial Watch. First, plaintiff argues that the President must personally invoke the presidential communications privilege to protect documents from disclosure under Exemption 5 on the ground that they fall within the ambit of the privilege. See Judicial Watch, 365 F.3d at 1114. Second, plaintiff maintains that the presidential communications privilege and the deliberative process privilege have eroded over time, and can no longer justify withholding the Reagan-era documents that remain undisclosed in this case. See id. at 1124. ...


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