The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiff, Judicial Watch, Inc., a non-profit public interest organization, filed this Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., case against the United States Department of Justice ("DOJ"), seeking documents concerning pardon applications considered or granted by former President Clinton.
This matter is now before the Court, after a remand by the United States Court of Appeals for the District of Columbia Circuit, on Defendant's Renewed Motion for Summary Judgment. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, Defendant's Motion, [#55], is granted.
Plaintiff made identical FOIA requests to two components of the DOJ, namely the Office of the Pardon Attorney and the Office of the Deputy Attorney General, on January 29, 2001, and February 22, 2001, respectively. Plaintiff's request sought all documents that "refer or relate . . . in any way" to pardon applications considered or granted by former President Clinton.
On March 23, 2001, Plaintiff filed this FOIA suit based on its request to the Office of the Deputy Attorney General. Thereafter, the Government released thousands of pages responsive to Plaintiff's request, but withheld 4,341 pages pursuant to the presidential communications privilege of FOIA Exemption 5, see 5 U.S.C. § 552(b)(5), and, to the extent those pages contained personal information about living individuals, pursuant to FOIA Exemption 6, see id. § 552(b)(6). The Government withheld an additional 524 pages under Exemption 6.
The Government then filed a motion for summary judgment, which this Court granted. See Judicial Watch, Inc. v. Dep't of Justice, 259 F. Supp. 2d 86 (D.D.C. 2003). This Court agreed with the Government that all 4,341 pages were properly withheld under the presidential communications privilege pursuant to Exemption 5, and rejected Plaintiff's position that Exemption 5 did not apply to documents not involving White House staff. This Court also held that the Government had properly withheld 524 pages under Exemption 6. Id.
Plaintiff appealed, and the D.C. Circuit affirmed in part and reversed in part.*fn1 The D.C. Circuit held that "the presidential communications privilege applies to pardon documents 'solicited and received' by the President or his immediate advisers in the Office of the President, and that the deliberative process privilege [another privilege within FOIA Exemption 5] applies to internal agency documents that never make their way to the Office of the President." Judicial Watch, Inc. v. Dep't of Justice, 365 F.3d 1108, 1123 (D.C. Cir. 2004). Accordingly, the D.C. Circuit remanded the case "for the district court to determine whether the Department's internal documents not 'solicited and received' by the President or the Office of the President are protected from disclosure under the deliberative process privilege." Id. at 1109.
Following the remand, this Court issued an Order requiring Defendant to re-process the pages of documents it had originally withheld to determine, in accordance with the D.C. Circuit's ruling, which pages it could continue to withhold under the presidential communications privilege, and which ones could be withheld under the deliberative process privilege. See Sept. 14, 2004 Order, Docket # 52.
Defendant re-processed the documents, and located 5587 pages responsive to Plaintiff's FOIA request in the Office of the Deputy Attorney General. Of those 5587 pages, Defendant released to Plaintiff 1015 pages in full and 930 pages in part pursuant to FOIA Exemptions 5 and 6. Defendant withheld 3642 pages in full -- 1527 of them pursuant to the presidential communications privilege of Exemption 5, 1630 of them pursuant to the deliberative process privilege of Exemption 5, and one page pursuant to Exemption 6. Defendant submitted an Updated Vaughn Index to reflect these withholdings, and explained that all of the documents in categories 1, 2, 4, 6-17, 19-25, and 27-33 which were withheld pursuant to the deliberative process privilege were also withheld pursuant to Exemption 6. Updated Pustay Decl. at ¶¶ 38-39. The Index groups the documents withheld in full or in part into 34 categories, provides the number of pages withheld in each category, and states the exemption[s] under which each category of documents has been withheld.
Defendant has now moved for summary judgment, relying upon its Updated Vaughn Index and the sworn declarations of Roger C. Adams, the United States Pardon Attorney and Melanie Ann Pustay, the Deputy Director of the Office of Information and Privacy.*fn2
Summary judgment will be granted when the pleadings, depositions, answers to interrogatories and admissions 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).
In a FOIA case, the district court conducts a de novo review of the government's decision to withhold requested documents under any of FOIA's specific statutory exemptions. 5 U.S.C. § 552(a)(4)(B). The burden is on the agency to show that nondisclosed, requested material falls within a stated exemption. Petroleum Info. Corp. v. U.S. Dep't of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)). In this Circuit, the agency is obligated to submit a Vaughn Index of all responsive material it has withheld, either in whole or in part, under any FOIA exemption. Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).
A court may award summary judgment in a FOIA case solely on the basis of information provided in agency 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). Thus, for summary judgment to be appropriate, the agency's Vaughn Index must set forth with particularity the justification for the exclusion, relating it to the particular part of the document to which it applies, Mead Data Central, Inc. v. U.S. Dep't of Air Force, 566 F.2d ...