The opinion of the court was delivered by: JANE RESTANI, Chief Judge[fn*] [fn*] This case was initially filed with this court on June 18, 1996, but was reassigned on November 18, 2004, to the Honorable Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by designation.
This case arises under the Freedom of Information Act ("FOIA"),
5 U.S.C. § 552 (2000), pertaining to Samuel R. Queen's suit
seeking disclosure of documents relating to the Federal Bureau of
Investigation ("FBI") investigation of Queen for his involvement
in a heroin distribution organization. Before the court are the
parties' cross-motions for summary judgment. Also before the
court is Queen's motion for production of a more specific
Vaughn index. The court grants Queen's motion for production of
a more specific Vaughn index and denies the parties'
cross-motions for summary judgment without prejudice.
In 1994, Queen submitted FOIA requests for records pertaining
to the FBI criminal investigation of Queen. The FBI advised Queen, by letter dated
September 1, 1995, that it located approximately 20,000
responsive pages and requested advance payment of $1,990.00 for
processing fees. After the FBI denied Queen's fee waiver request,
he narrowed his FOIA request by letter dated April 10, 1996, to
paperwork that pertains to "money, property, real property,
seizures, forfeitures, and all other materials within the
definition of `property.'" Defendant's Motion for Summary
Judgment (Sept. 1, 1999), at Exhibit C.
On June 18, 1996, Queen filed this FOIA case against the FBI,
the Department of Justice Criminal Division ("DOJ"), the Drug
Enforcement Administration ("DEA"), and the Executive Office for
the United States Attorney ("EOUSA"). On November 10, 1997, the
court entered judgment for the DEA. On March 17, 1998, the court
granted summary judgment in favor of the DOJ and EOUSA. On May 6,
1998, the FBI produced documents responsive to Queen's narrowed
FOIA request, although withholding certain materials pursuant to
5 U.S.C. §§ 552(b)(2), 552(b)(3), 552(b)(7)(C), 552(b)(7)(D), and
552(b)(7)(E). In total, the FBI asserts that it found 414 pages
responsive to Queen's request, released 172 pages in part,
withheld 19 pages in their entirety, and released the rest.
On motion for summary judgment, Queen alleges that he never
received any of the documents released by the FBI. Queen argues
that even if he received the documents responsive to his narrowed
FOIA request, the FBI should have produced all 20,000 documents
responsive to his initial FOIA request. On October 9, 1999, Queen
filed a motion requesting an index of all withheld documents and
portions of documents pursuant to Vaughn v. Rosen,
484 F.2d 820, 826-27 (D.C. Cir. 1973) [hereinafter Vaughn index].
On cross-motion for summary judgment, the FBI asserts that it
released all documents responsive to Queen's narrowed FOIA request that are not subject
to exemption. In support of its motion, the FBI supplied the
declaration of Scott A. Hodes, Attorney-Advisor of the FBI and
Acting Chief in the Litigation Unit, Freedom of
Information-Privacy Acts Section [hereinafter Second Scott Hodes
Declaration], in which Hodes describes the procedures followed by
the FBI headquarters in responding to Queen's FOIA request. The
affidavit identifies the records responsive to Queen's FOIA
request by the total number of pages discovered. It also provides
a description of the exemptions taken and the type of information
withheld under each exemption. In response to Queen's motion for
a Vaughn index, the FBI asserts that the Second Scott Hodes
Declaration satisfies the requirements of Vaughn.
In Vaughn, the D.C. Circuit determined that "courts will
simply no longer accept conclusory and generalized allegations of
exemptions, . . . but will require a relatively detailed analysis
in manageable segments." Vaughn, 484 F.2d at 826. Thereafter, a
defendant agency in an FOIA case is required to produce a
Vaughn index compiled of all documents and portions of
documents the agency wishes to withhold. Church of Scientology
of California, Inc. v. Turner, 662 F.2d 784, 785 n. 1 (D.C. Cir.
1980). Queen argues that the Second Scott Hodes Declaration fails
to satisfy Vaughn's requirements because it fails to describe
each document and deletion with sufficient specificity and fails
to correlate exemptions taken with specific information withheld.
The court agrees.
An agency can satisfy Vaughn's requirements by submission of
agency affidavits that provide "the kind of detailed, scrupulous
description that enables a District Court judge to perform a
searching de novo review." Id. at 786; see Keys v. United
States Dep't of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987) (explaining that "[i]t is the
function, not the form, of the index that is important"). The
agency's Vaughn index is expected to serve three important
[I]t forces the government to analyze carefully any
material withheld, it enables the trial court to
fulfill its duty of ruling on the applicability of
the exemption, and it enables the adversary system to
operate by giving the requester as much information
as possible, on the basis of which he can present his
case to the trial court.
Lykins v. United States Dep't of Justice, 725 F.2d 1455, 1463
(D.C. Cir. 1984). In order to perform these functions, a Vaughn
index must satisfy certain bare minimum requirements:
(1) The index should be contained in one document,
complete in itself.
(2) The index must adequately describe each withheld
document or deletion from a released document.
(3) The index must state the exemption claimed for
each deletion or withheld document, and explain why
the exemption is relevant.
Founding Church of Scientology, Inc. v. Bell, 603 F.2d 945, 949
(D.C. Cir. 1979).
The Second Scott Hodes Declaration fails to satisfy the
Vaughn requirements because neither the plaintiff nor the court
can evaluate the validity of the FBI's exemption claims. "A
withholding agency must describe each document or portion
thereof withheld, and for each withholding it must discuss the
consequences of disclosing the sought-after information." King
v. United States Dep't of Justice, 830 F.2d 210, 223 24 (D.C.
Cir. 1987) (emphasis in original). In this case, the affidavit
fails to provide any document descriptions, let alone
specifically describe the type of information withheld.*fn1
See Scott v. CIA, 916 F. Supp. 42, 48 (D.D.C. 1996) (finding
declaration inadequate because it failed to provide the date of
the documents, the number of documents withheld, and the nature
and type of material contained in the documents). Instead, the FBI indexing method describes the type of
information withheld under exemption headings, without reference
to which documents and deletions contain which type of
information and without correlation between the exemption
headings and specific documents withheld and deletions. See
Dellums v. Powell, 642 F.2d 1351, 1360 (D.C. Cir. 1980)
(holding that each document withheld "must be broken down into
manageable segments that are cross-referenced to the relevant
claim, defense, or privilege"); Ray v. Turner, 587 F.2d 1187,
1196 (D.C. Cir. 1978) (finding "[a] glaring defect" with a
Vaughn index that "lumps the exemptions together and fails to
identify whether different exemptions are claimed as to different
parts of each document"). This type of indexing method fails to
meet the FBI's burden of demonstrating the applicability of the
exemptions invoked as to each document or segment withheld.
Accordingly, the court concludes that the defendant has not
provided an adequate Vaughn index upon which to determine
whether the claimed exemptions are justified. The FBI must
provide a more specific Vaughn index, covering the 414
documents responsive to Queen's narrowed FOIA request.*fn2
Because the court concludes that the FBI's Vaughn index is
deficient, it does not reach the merits of whether the defendant
properly asserted exemptions from FOIA disclosure. Neither does
the court reach the merits of Queen's allegation that he never
received any documents responsive to his FOIA request.*fn3
For the reasons set forth above, the court directs the
defendant to file a more specific Vaughn index in accordance
with the court's rulings. The court denies the parties'
cross-motions for summary judgment without prejudice to the
renewal of cross-motions for ...