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People for the American Way Foundation v. National Park Service

August 27, 2007

PEOPLE FOR THE AMERICAN WAY FOUNDATION, ET AL., PLAINTIFFS,
v.
NATIONAL PARK SERVICE, DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

Plaintiffs People for the American Way Foundation ("PFAWF") and Public Employees for Environmental Responsibility ("PEER") filed a complaint pursuant to the Freedom of Information Act ("FOIA"), seeking to enjoin defendant National Park Service ("NPS") from withholding agency records. Specifically, plaintiffs seek records with regard to defendant's alleged plans to alter an eight-minute video for public viewing at the Lincoln Memorial which contains, among other things, photographs and video coverage of gay rights, pro-choice, and anti-Vietnam War demonstrations. Plaintiffs allege that defendant undertook plans to alter the video following complaints from conservative supporters about the gay rights, pro-choice, and anti-war footage. In response to plaintiffs' complaint, defendant produced agency records and a Vaughn Index listing the materials it withheld from production pursuant to FOIA Exemptions 2, 5, and 6. Plaintiffs then filed a motion to compel production of materials withheld under Exemptions 5 and 6. Defendant in turn filed a motion for summary judgment arguing that it had discharged all of its obligations under FOIA and that it properly withheld materials pursuant to Exemptions 2, 5, and 6. Pending before the Court are plaintiffs' motion to compel and defendant's motion for summary judgment. Upon consideration of the motions, the responses and replies thereto, the applicable law, and the entire record, the Court GRANTS in part and DENIES in part plaintiffs' motion to compel, and the Court GRANTS in part and DENIES in part defendant's motion for summary judgment.

BACKGROUND

This case originates from defendant NPS's alleged plans to alter an eight-minute informational video shown at the Lincoln Memorial since 1994. As of September 2003, the video contained photographs and video coverage of demonstrations that occurred at the Lincoln Memorial, including gay rights, pro-choice and anti-Vietnam War footage. According to media reports, defendant undertook plans to alter the video in response to complaints from conservative supporters opposing the gay rights, pro-choice, and anti-war footage.

On October 30, 2003, plaintiffs PFAWF and PEER submitted a FOIA request to defendant seeking:

(1) "An exact copy of any video . . . that was displayed for public viewing in the Lincoln Memorial Visitor Center on September 1, 2003";

(2) "An exact copy of any and all other videos . . . that were created for use and public viewing in the Lincoln Memorial Visitor Center after September 1, 2003";

(3) "Any and all documents which refer, reflect or relate to the content of any video that was displayed for public viewing in the Lincoln Memorial Visitor Center on September 1, 2003, including all such documents created prior to that date"; and

(4) "Any and all documents which refer, reflect or relate to any modification, alteration, cessation or change of the video . . . including any and all internal memorandums, notes, emails, or other documentation responsive to this request."

October 30, 2003 FOIA Request ("Request Letter"), Ex. B to Davidson Decl.; Def.'s Statement of Material Facts ¶ 1. In response to plaintiffs' Request Letter, defendant sent a letter to plaintiffs on January 16, 2004, enclosing a copy of the September 2003 video in addition to "assorted media reports on the issue." Jan. 16, 2004 NPS Response ("Response Letter") at 1, Ex. C to Davidson Decl.; Def.'s Statement of Material Facts ¶ 2. This Response Letter confirmed that defendant was developing a revised video for public viewing at the Lincoln Memorial. However, the letter also asserted that defendant was unable to locate any documents "that relate to the content of the September 1, 2003 video," and further asserted that "all internal documents" "which relate to the modification of the September 1, 2003 video . . . [were] being withheld . . . under exemption 5." Response Letter at 1.

On January 28, 2004, plaintiffs timely appealed defendant's withholdings described in the Response Letter. Jan. 28, 2004 Appeal ("Appeal Letter"), Ex. D to Davidson Decl. Defendant did not respond within the twenty-day time limit imposed by FOIA. Accordingly, on January 21, 2005, plaintiffs filed their complaint in this Court.

Plaintiffs' complaint states that defendant's conduct in this case "is arbitrary and capricious and amounts to a constructive denial of [p]laintiffs' FOIA request." Compl. ¶ 4. Accordingly, plaintiffs request that this Court: (1) "[e]nter an [o]rder declaring that [defendant] has wrongfully withheld requested agency records"; (2) "[i]ssue a permanent injunction directing . . . [defendant] to disclose to . . . [p]laintiffs all requested documents"; (3) "[m]aintain jurisdiction over this action until [defendant] is in compliance with FOIA and every order of this Court"; (4) "[a]ward [p]laintiffs their attorney fees and costs pursuant to 5 U.S.C. § 552(a)(4)(E)"; and (5) "[g]rant such additional and further relief as to which [p]laintiffs may be entitled." Compl. at 8. In addition to the FOIA claim, plaintiffs allege that defendant has violated the Administrative Procedure Act ("APA") because defendant's failure to disclose responsive documents constitutes agency action unlawfully withheld and unreasonably delayed.

In response to plaintiffs' complaint, defendant produced a first set of agency records on May 6, 2005. Plaintiffs questioned the completeness of this production, and defendant then supplemented its production to provide copies of certain documents that were previously redacted. On July 20, 2005, defendant released additional records containing 4,945 electronic communications, redacting names and contact information, and additional records. Defendant also provided plaintiffs with a Vaughn Index identifying all responsive records and explaining the basis for any withholdings. Plaintiffs assert that defendant only released this second set of records after plaintiffs provided defendant with information concerning public e-mails objecting to changes to the September 2003 video.

Subsequently, on September 6, 2005, defendant submitted a revised Vaughn Index to plaintiffs along with a redacted set of the indexed records. This revised Vaughn Index includes a fourteen-page preamble explaining the general basis for defendant's withholdings, descriptions of the records indexed, and an Appendix containing a list of names and acronyms. Defendant also provided plaintiffs with a declaration executed by William Line ["Line Declaration"], defendant's Communications, FOIA and Tourism Officer.

The Line Declaration asserts that in response to plaintiffs' FOIA request and under Mr. Line's guidance, NPS employees searched agency records, both manually and by automated means, for the purpose of locating responsive records. During this search over one hundred people looked for responsive documents in both their personal electronic files and the following locations: the National Mall & Memorial Parks offices, the National Capital Region Offices of the NPS, the NPS's D.C. Administrative Support Office ("WASO"), NPS Offices in the Department's headquarters, the Ranger Station on the National Mall (also know [sic] as the Survey Lodge), the Department's Communications Office, NPS's Harpers Ferry Center, and NPS's Denver Service Center. This search was conducted in good faith and was reasonably calculated to uncover all relevant documents.

Line Decl. ¶ 3, Ex. F to Davison Decl.; Def.'s Statement of Material Facts ¶¶ 9-11.*fn1 The Line Declaration further asserts that Mr. Line "worked with the Department's attorneys to create a Vaughn Index for this case . . . [Mr. Line] reviewed each of the documents included in the Vaughn Index . . . [and] conducted a thorough and careful segregability analysis." Line Decl. ¶ 5. The Vaughn Index "groups similar categories, or multiple pages, of records into discrete 'documents' where it made logical sense (for example, Document 81 contains two parts: an e-mail and the attachment accompanying the e-mail). Under these groupings, the Vaughn Index contains 107 documents. Of those documents, 102 were released in part, and five were withheld in full." Def.'s Statement of Material Facts ¶ 12. The Line Declaration explains that

[r]easonably segregable factual material has been released from all of the documents included in the Vaughn Index wherever possible, unless such factual information is inextricably intertwined with deliberative communications, or where the document's drafter's selection of what factual material to include in the document would reveal the nature of the deliberative communication. This segregability analysis is discussed in further detail within the Vaughn Index's document descriptions, where partial releases are specifically noted.

Line Decl. ¶ 6.*fn2

Defendant is withholding documents pursuant to FOIA Exemptions 2, 5, and 6. Plaintiffs do not contest the Exemption 2 withholdings. However, plaintiffs do contest defendant's withholdings pursuant to Exemptions 5 and 6.*fn3 On November 18, 2005, plaintiffs filed a Motion to Compel requesting that the Court order the production of withheld documents in their entirety, or if the Court deemed it necessary, to review documents in camera prior to making its decision. Further, plaintiffs requested that the Court order defendant to "supplement its inadequate Vaughn Index." Pls.' Motion to Compel at 19. In response, on January 13, 2006, defendant filed a Motion for Summary Judgment contending that defendant fulfilled all of its obligations under FOIA and that all of the withholdings pursuant to Exemptions 5 and 6 were proper. Further, defendant contends that plaintiffs' APA claim should be dismissed because the APA does not create a cause of action separate from FOIA for noncompliance with FOIA's terms. On March 7, 2006, plaintiffs filed their Statement of Points and Authorities in Further Support of Plaintiffs' Motion to Compel and in Opposition to Defendant's Motion for Summary Judgment.

ANALYSIS

I. Standard of Review

Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

In a FOIA case, an agency is entitled to summary judgment "if the agency proves that it has fully discharged its obligations under the FOIA." Greenberg v. U.S. Dep't of Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998). Accordingly, an agency must show beyond material doubt "that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Further, an agency "bears [the] burden of demonstrating that . . . all information that falls within the class requested either has been produced, is unidentifiable, or is exempt from disclosure." Cole v. U.S. Dep't of Justice, 2006 WL 2792681, at *1 (D.D.C. Sept. 27, 2006) (citing Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001)).

The Court may award summary judgment based solely on the information provided in affidavits or declarations if they: (1) "describe the documents and justification for nondisclosure with reasonably specific detail"; (2) "demonstrate that the information withheld logically falls within the claimed exemption"; and (3) "are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Judicial Watch v. Dep't of Army, 466 F. Supp. 2d 112, 119 (D.D.C. 2006) (citing Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). Agency affidavits and declarations "are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents," SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citations and quotations omitted), and the Court must "accord substantial weight" to agency affidavits regarding FOIA exemptions, 5 U.S.C. § 552(a)(4)(B); see also Elec. Privacy Info. Ctr. v. Trans. Security Admin., 2006 WL 626925, at *6 (D.D.C. Mar. 12, 2006). The Court's review of an agency's denial of a FOIA request is de novo, Bigwood v. U.S. Agency for Int'l Dev., 484 F. Supp. 2d 68, 74 (D.D.C. 2007) (citing 5 U.S.C. § 552(a)(4)(B)), and the agency "bears the burden of establishing the applicability of the claimed exemption," Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003).

II. FOIA

Congress enacted FOIA to "open[] up the workings of government to public scrutiny through the disclosure of government records." Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984) (citations and quotations omitted). Although FOIA is aimed toward "open[ness] . . . of government," id., Congress acknowledged that "legitimate governmental and private interests 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) (citations and quotations omitted). As such, pursuant to FOIA's nine exemptions, an agency may withhold requested information. 5 U.S.C. § 552(a)(4)(B) & (b)(1)-(9). However, "[b]ecause FOIA establishes a strong presumption in favor of disclosure . . . requested material must be disclosed unless it falls squarely within one of the nine exemptions carved out in the Act." Burka v. U.S. Dep't of Health and Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996).

In this case, plaintiffs challenge the adequacy of defendant's search, defendant's segregability analysis, and the conclusory nature of defendant's Vaughn index. Plaintiffs also contend that defendant's withholdings pursuant to Exemptions 5 and 6 are improper. Accordingly, plaintiffs move the Court to either compel production of these documents or order in camera review or discovery to determine whether these documents should be produced and whether defendant has adequately discharged its FOIA obligations.

A. Inadequate Search

To prevail on a motion for summary judgment in a FOIA case, an agency must show "beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant documents." Weisberg v. U.S. Dep't of Justice ("Weisberg II"), 705 F.2d 1344, 1351 (D.C. Cir. 1983); see also Oglesby, 920 F.2d at 68. With regard to the adequacy of an agency's search, "[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Weisberg II, 705 F.2d at 1351 (citations and quotations omitted). The adequacy of an agency's search is measured by a "standard of reasonableness," and is "dependent upon the circumstances of the case." Id. An agency may rely upon affidavits and declarations to establish the adequacy of its search, however, the affidavits and declarations must be "'relatively detailed' and nonconclusory and . . . submitted in good faith." Id.

Because the adequacy of an agency's search is "dependent upon the circumstances of the case," Weisberg II, 705 F.2d at 1351, there is no uniform standard for sufficiently detailed and nonconclusory affidavits. The D.C. Circuit has noted that generally an agency need not "set forth with meticulous documentation the details of an epic search for the requested records." Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982) (holding that although descriptions of searches could have been more detailed, the district court did not err in granting summary judgment to the agency because arguable inadequacy of description was no more than marginal). Accordingly, "[a]ffidavits that include search methods, locations of specific files searched, descriptions of searches of all files likely to contain responsive documents, and names of agency personnel conducting the search are considered sufficient." Ferranti v. ATF, 177 F. Supp. 2d 41, 47 (D.D.C. 2001) (citing Weisberg II, 705 F.2d at 1348)). On the contrary, affidavits that "do not denote which files were searched or by whom, do not reflect any systematic approach to document location, and do not provide information specific enough to enable [the plaintiff] to challenge the procedures utilized," have been held to be inadequate and too conclusory to justify a grant of summary judgment." Santos v. Drug Enforcement Agency, 357 F. Supp. 2d 33, 37 (D.D.C. 2004) (quoting Weisberg v. U.S. Dep't of Justice ("Weisberg I"), 627 F.2d 365, 371 (D.C. Cir. 1980)). In determining the adequacy of an affidavit with regard to an agency search, federal courts have placed emphasis on whether an agency provides information about the search terms used and the specific files searched for each request. See Maydak v. U.S. Dep't of Justice, 362 F. Supp. 2d 316, 326 (D.D.C. 2005) (holding agency search inadequate because agency declaration provided no information about search terms or scope of files searched); see also Nation Magazine v. U.S. Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995) (noting agency affidavits submitted in support of an adequate search "must be reasonably detailed . . ., setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials . . . were searched") (citations and quotations omitted).

On September 6, 2005, defendant submitted to plaintiffs a declaration executed by William Line, defendant's Communications, FOIA and Tourism Officer. Mr. Line's declaration provides in relevant part that under his guidance NPS employees searched agency records, both manually and by automated means, for the purpose of locating responsive records. During this search, over one hundred people looked for responsive documents in both their personal electronic files and the following locations: the National Mall & Memorial Parks offices, the National Capital Region Offices of the NPS, the NPS's D.C. Administrative Support Office ("WASO"), NPS Offices in the Department's headquarters, the Ranger Station on the National Mall (also know [sic] as the Survey Lodge), the Department's Communications Office, NPS's Harpers Ferry Center, and NPS's Denver Service Center. This search was conducted in good faith and was reasonably calculated to uncover all relevant documents.

Line Decl. ¶ 3. Defendant asserts that the search for responsive documents "uncovered over 5000 responsive pages of documents and several videotapes," and that the Line Declaration "demonstrates through detailed, non-conclusory and good faith averments that, in this case," defendant performed a sufficiently reasonable search for purposes of its FOIA obligations.

Although "meticulous detail" is generally unnecessary when describing the nature of a FOIA search, Perry, 684 F.2d at 127, in this case, defendant, through the Line Declaration, has neither identified what search terms were used, nor has it identified why the scope of defendant's search was limited to the files or personnel listed. Moreover, the number of responsive documents produced in this case does not mean that the search was adequate. The Court generally does not measure the adequacy of a FOIA search "by the fruits of the search, but [rather] by the appropriateness of the methods used to carry out the search." Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). Accordingly, because the Court finds that defendant has not established "beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant documents," Weisberg II, 705 F.2d at 1351, the Court DENIES defendant's motion for summary judgment with regard to the adequacy of its search.

B. Adequate Vaughn Index

Plaintiffs argue that defendant's Vaughn index inadequately describes the documents for which exemptions are claimed. "To be adequate, a Vaughn Index . . . 'must adequately describe each withheld document or deletion from a released document,' and . . . 'must state the exemption claimed for each deletion or withheld document, and explain why the exemption is relevant.'" Dorsett v. U.S. Dep't of the Treasury, 307 F. Supp. 2d 28, 34 (D.D.C. 2004) (quoting Founding Church of Scientology v. Bell, 603 F.3d 945, 949 (D.C. Cir. 1979)). The Vaughn index must provide "as much information as possible without thwarting the [asserted] exemption's purpose." King v. U.S. Dep't of Justice, 830 F.2d 210, 224-25 (D.C. Cir. 1987); see also Founding Church of Scientology, 603 F.2d at 949; ("[T]he explanation of the exemption claim and descriptions of withheld material need not be so detailed as to reveal that which the agency wishes to conceal, but they must be sufficiently specific to permit a reasoned judgment as to whether the ...


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