This matter comes before the Court on defendants' motion  for partial summary judgment and for a stay of proceedings as to the remainder of the case, pursuant to Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976). In opposition, plaintiff filed a motion  for partial summary judgment on its request for expedited processing. Upon consideration of the motions, the applicable law and the records in this case, defendants' motion  for partial summary judgment and stay of proceedings is granted in part and denied in part and plaintiff's motion  for partial summary judgment on its request for expedited processing will be granted in part and denied in part.
On May 24, 2004, plaintiff, Leadership Conference on Civil Rights*fn2 , submitted six requests addressed to the Department of Justice's Criminal Division Freedom of Information Act ("FOIA") Unit. The requests concerned records of communications transmitted by the Department of Justice relating to the monitoring of federal elections in any jurisdiction from 1988 to the present. (Defs.' Mot. 2.)
Under the Freedom of Information Act, plaintiff seeks access to records of communications by the Department of Justice regarding (1) actual or alleged intimidation of racial, ethnic or language minority voters or suppression of minority votes and (2) monitoring of federal elections by federal observers or Department of Justice representatives, for federal elections from 1988 to the present. (Pl.'s Mot. 1.) The Leadership Conference FOIA requests include not only records of action initiated by the Justice Department but also any response by the Department of Justice to these inquiries.
Plaintiff dispatched six requests identifying the records which it was seeking to obtain. The first requested all of defendant's communications related to the monitoring by federal observers or representatives of federal elections. (Defs.' Mot. 2.) The second letter asked for documents related to alleged or actual use of video cameras and/or still cameras at polling places in federal elections. (Id.) The third request wanted documents referring to or relating to the alleged or actual videotaping and/or photographing of voters at polling paces in federal elections. (Id.) The fourth letter requested copies of documents referring to alleged or actual 'ballot security' procedures or programs at polling places in federal elections including all procedures or programs intended to discover, deter, prevent or remedy voter fraud. (Id.) The fifth letter requested documents concerning any alleged or actual intimidation and/or harassment of African-American, Hispanic, or other racial or ethnic minority voters at polling places in federal elections. (Id. at 3.) The final request was for documents referring to allegations of actual intimidation and/or harassment of language minority voters at polling places in federal elections. (Id.)
On August 4, 2004, plaintiff was notified by the Criminal Division's FOIA/PA Unit that a search for records would be conducted that encompassed only Criminal Division records and that the Voting Section of the Civil Rights Division may also maintain records responsive to its request. (Id.) On September 28, 2004, plaintiff instituted this action. On October 6, 2004, plaintiff issued a subpoena to the Attorney General of the United States for a Fed. R. Civ. P. 30(b)(6) witness to testify at a deposition in reference to the requested records by plaintiff. Plaintiff also requested expedited consideration of its claims by this Court. Defendants filed a motion to quash said subpoena and on October 20, 2004, the Court held an emergency motion hearing on the matter.
At the hearing, it was asked if plaintiff's requests could be narrowed in order to receive materials before the General Election on November 4, 2004. Plaintiff indicated that training materials from 2002 through 2004, as well as policy directives issued by the Election Crimes Section to the district election officers in the field would satisfy them initially. Defendants agreed to search for records identified by this narrowed request and provide them to plaintiff on an expedited basis before the General Election.
From October 26, 2004 to December 9, 2004, defendants released documents in response to plaintiff's narrowed request. But not all documents were released. Plaintiff was notified that the certain records were withheld pursuant to FOIA Exemptions 5, 6, and 7(C), as set forth in 5 U.S.C. 552(b). (McIntrye Decl. at ¶6). Plaintiff also advised that other documents had been referred to the Department of Defense, the Civil Rights Division and the Office of Information and Privacy for processing. (Id.)
FOIA Exemption 5 was asserted to withhold a draft of the proposed 7th Edition of Federal Prosecution of Election Officials, prepared by the Department of Justice. (McIntyre Decl. at ¶ 10.) FOIA Exemptions 6 and 7(C) were asserted to withhold the names and telephone extension numbers of paralegals of the Public Integrity Section that appeared in some of the documents, (id. at ¶ 20.) and to withhold training materials that included local police arrest reports, bail bond information and affidavits concerning private individuals that were in 1997 court filings. (Id. at ¶ 22.) Plaintiff contends that defendants' exemptions are meritless and therefore should release all records withheld in the initial processing.
Defendants now move for partial summary judgment on their assertions of FOIA exemptions for the records from the 2004 production, and for relief from further disclosure of records responsive to plaintiff's FOIA requests until August, 2008. Plaintiff counters with a motion for partial summary judgment on its request for expedited processing of its FOIA requests.
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate when the motion papers, affidavits, and other submitted evidence demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Whether a fact is "material" is determined in light of the applicable substantive law invoked by the action. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In light of the applicable substantive law, a "genuine issue of material fact" is a fact that is determinative of a claim or defense, and therefore, affects the outcome of the case. See Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248. The moving party bears the initial burden of demonstrating that no genuine issues of material fact are in dispute. Upon such a showing, the burden then shifts to the non-moving party to demonstrate that genuine issues of material fact are in dispute. The Court is precluded from weighing evidence or finding disputed facts and must draw all inferences and resolve all doubts in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
For defendants to prevail on their partial summary judgment motion in a FOIA case, they must demonstrate two elements. First, defendants must demonstrate that they conducted an adequate search which was reasonably calculated to uncover all relevant documents. Weisberg v. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). Second, materials that are withheld must fall within a FOIA statutory exemption. Id. Plaintiff contests both the initial search's adequacy and the propriety of withholdings under FOIA's three exemptions.
I. Adequacy of the Narrowed Search
At the October 20, 2004 hearing, both parties consented to a narrowed search for records so that a response to plaintiff's request could be given before the General Election on November 2, 2004. Plaintiff's counsel defined its narrowed request as: "training manuals and the instructions to the U.S. Attorneys." Tr. 14 (Hr'g, Oc. 20, 2004) The adequacy of the narrowed search is not in dispute. The Court finds that defendants' declarations demonstrate a thoughtful, comprehensive initial search that satisfies the requirements of the FOIA.
As to the initial search, the Court will not further address this issue at this time since both parties agreed to the narrowed search.
To withhold documents responsive to a FOIA request, an agency must show that the withheld documents fall within one of the statutory exemptions to FOIA. Weisberg, 705 F.2d at 1351. To make such a showing, an agency may submit affidavits and declarations describing the documents withheld and the statutory basis for the withholdings. See Judicial Watch, Inc. v. United States Postal Service, 297 F. Supp. 2d 252, 256 (D.D.C. 2004); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). For the sake of efficiency, the agency's burden may be satisfied by submission of a "Vaughn Index" and supporting declarations, which must provide a court with an adequate description of documents that are being withheld from production pursuant to a specified FOIA exemption and the justification for the applicability of the exemption invoked. See Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979); Vaughn, 484 F.2d passim. Exemptions may not be justified by mere "conclusory and ...