The opinion of the court was delivered by: JOHN BATES, District Judge
Plaintiff Peter S. Herrick's Customs & International Trade
Newsletter ("Herrick's") submitted a Freedom of Information Act
("FOIA") request to defendant U.S. Customs & Border Protection
Bureau ("Customs") in late February 2003, requesting a copy of
Customs' Fines, Penalties & Forfeitures Handbook, or equivalent
material. Customs initially withheld all 351 pages of the
pertinent publication, entitled Seized Asset Management
Enforcement Procedures Handbook ("SAMEPH"), claiming exemption
from disclosure under 5 U.S.C. § 552(b)(2). In response to
Herrick's written appeal, Customs acknowledged that portions of
SAMEPH could be released. The ultimate result was that: (1)
seventy-eight pages were fully withheld; (2) 180 pages were
released with partial redactions; and (3) ninety-three pages were
released in their entirety. Customs describes SAMEPH as an
internal publication that "consolidates all of the standards and
procedures in regard to initiating seizure, penalty, or
liquidated damages actions; processing and managing such cases; and handling seized
property." See Declaration of Joanne Roman Stump & Vaughn Index
at 5 ("Stump Decl.").
Herrick's seeks to enjoin Customs from withholding the
undisclosed material; Customs claims that the material is exempt
under 5 U.S.C. §§ 552(b)(2), (b)(7)(E), and (b)(7)(F) ("Exemption
2," "Exemption 7(E)," and "Exemption 7(F)").*fn1 Initially,
Customs also claimed the applicability of FOIA Exemptions 5 and
7(D),*fn2 but it has since abandoned these arguments.
Customs submitted a Vaughn index and the declaration of Ms.
Joanne Roman Stump, the FOIA Appeals Officer and Chief of the
Disclosure Law Branch at Customs, and argues that these documents
are sufficient to support the exemption claims and to establish
that it has undertaken a proper segregability analysis of SAMEPH.
Herrick's disagrees. Cross-motions for summary judgment are now
pending. For the reasons discussed below, both motions are denied
and Customs is ordered to re-file an updated, more specific
I. FOIA and Vaughn Index Background
Congress enacted FOIA for the purpose of introducing
transparency to government activities. See Stern v. FBI,
737 F.2d 84, 88 (D.C. Cir. 1984). Congress remained sensitive,
however, to the need to achieve balance between this objective
and the vulnerability of "legitimate governmental and private
interests [that] could be harmed by release of certain types of information." Critical Mass Energy Project v. Nuclear
Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992).
Accordingly, FOIA provides for nine exemptions pursuant to which
an agency may withhold requested information. See
5 U.S.C. §§ 552(a)(4)(B), (b)(1)-(9).
When an agency asserts a FOIA exemption as the basis for
withholding requested information, this Circuit will ordinarily
require an agency to produce a Vaughn index, which describes
the records, or portions thereof, that the agency has withheld.
See Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973);
Edmonds Inst. v. United States Dep't of the Interior, ___ F.
Supp. 2d ___, 2005 WL 2030316 at *1 (D.D.C. 2005) (citing
Coldiron v. United States Dep't of Justice, 310 F. Supp. 2d 44,
46 (D.D.C. 2004)). The Vaughn index must include "a description
of each document being withheld, and an explanation of the reason
for the agency's nondisclosure." Oglesby v. United States Dep't
of Army, 79 F.3d 1172, 1176-77 (D.C. Cir. 1996). On a motion for
summary judgment, the Vaughn index becomes central not just to
the court's determination of whether or not the agency has
produced all reasonably segregable portions of the responsive
material, as discussed infra in Section IV, but also to the
court's determination of whether or not the claimed exemptions
The purpose of the Vaughn index is to provide fertile ground
upon which to germinate the seeds of adversarial challenge. See
Nat'l Treasury Employees Union v. United States Customs Serv.,
802 F.2d 525, 527 (D.C. Cir. 1986). At minimum, competent
adversarial testing requires that the party withholding the
information articulate why the information is allegedly exempt.
In this case, Customs has withheld information based on Exemption
2. This exemption applies to two types of material: (1) "high 2" information, which
is information that, if disclosed, would risk circumvention of a
legal objective, see, e.g., Schiller v. NLRB,
964 F.2d 1205, 1207 (D.C. Cir. 1992); and (2) "low 2" information, which
is information relating to internal matters of a trivial,
administrative nature, see id.
Customs has made certain withholdings because the information
is assigned "low 2" status, and has made other withholdings
because the information benefits from "high 2" status. See
Def.'s Mot. for Summ. J. at 2. But the Vaughn index does not
delineate which of the withheld information is assigned "high 2"
as opposed to "low 2" status. The fact that Herrick's has now
clarified that it does not seek disclosure of the "low 2"
information is of no moment because the Vaughn index's generic
descriptions do not enable the Court to reliably discern which
Exemption 2 withholdings concern the "high 2" information that
Herrick's continues to seek. Thus, the Court cannot so much as
determine which information is even subject to the argument that
it should be disclosed. Hence, the Vaughn index is inadequate
to enable reasoned decision-making. Customs is directed re-file
the Vaughn index with specific identifications of "low 2" and
"high 2" status for the information that is withheld under
II. Previously Claimed Exemption 5 and 7(D) Withholdings
At the outset of this litigation, Customs indicated that
certain of its SAMEPH withholdings were rooted in Exemptions 5
and 7(D). Customs has since abandoned those arguments, but the
Vaughn index continues to reflect these withholdings. See,
e.g., Vaughn Index at 15. To the extent that a designated
withholding rests solely on a now-abandoned claim of exemption
of which it is impossible for this Court to be certain, because
the Vaughn entries do not articulate which of several exemptions listed for a
particular block of material applies to which portions of that
material Customs is directed to disclose the material to
Herrick's. If the designated withholdings are justified under
another exemption as well, Customs is directed to so specify in
its revised Vaughn index.
III. Segregability Determination
A Vaughn index must provide "as much information as possible
without thwarting the [asserted] exemption's purpose." King v.
United States Dep't of Justice, 830 F.2d 210, 224-25 (D.C. Cir.
1987). Once an agency identifies a document that it believes
falls within an exemption, it must undertake a "segregability
analysis," in which it separates the exempt material from the
non-exempt material and produces the relevant non-exempt
information. See Vaughn, 484 F.2d at 825 (stating that "an
entire document is not exempt merely because an isolated portion
need not be disclosed. Thus the agency may not sweep a document
under a general allegation of exemption, even if that general
allegation is correct with regard to part of the information.").
This segregability assessment is mandated by FOIA itself, which
provides that any "reasonably segregable" information in exempt
documents must be disclosed after redaction of exempt
information, unless the non-exempt portions are "inextricably
intertwined" with exempt portions. 5 U.S.C. 552(b); see
Trans-Pacific Policing Agreement v. United States Customs
Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999); Mead Data Cent.,
Inc. v. Dep't of the Air Force, 566 F.2d 242, 260 (D.C. Cir.
The Vaughn index should contain a description of the
segregability analysis, explaining "in detail which portions of
the document are disclosable and which are allegedly exempt." Vaughn, 484 F.2d. at 827; see also King, 830 F.2d at 224
(quotation omitted) (stating that agency should provide a
"relatively detailed justification, specifically identifying the
reasons why a particular exemption is relevant and correlating
those claims with the particular part of a withheld document to
which they apply"). Otherwise, the document will not even qualify
as a Vaughn index. See Schiller, 964 F.2d at 1210. The
combination of a comprehensive, reasonably-detailed Vaughn index
and an affidavit confirming that a line-by-line review of each
document determined that no redacted information could be
disclosed will ...