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Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. United States Dep't of Justice

September 4, 2007


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Plaintiff Akin, Gump, Strauss, Hauer & Feld, L.L.P. ("Akin Gump") sued the United States Department of Justice ("DOJ"), challenging DOJ's decision to withhold documents that Akin Gump requested pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). Both parties moved for summary judgment. Because DOJ's disclosures in this case do not provide (1) an adequate description of each discrete redaction, (2) a specific citation to and explanation of the authority to refuse to disclose that is correlated with each discrete redaction, and (3) sufficient information to determine whether all reasonably segregable information has been segregated and disclosed, both motions for summary judgment will be denied and DOJ will be directed to file disclosures that fairly meet the requirements of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).


In connection with an action pending in the federal district court in Colorado,*fn1 Jack J. Grynberg was ordered to produce documents for the defendants in that case ("Grynberg defendants") that had been delivered on his behalf to the United States Attorney's Office for the District of Colorado. (Pl.'s Mot. Summ. J., Pl.'s Stmt. Mat. Facts ("Pl.'s Stmt.") ¶ 2.) Concerned that not all relevant records had been produced, the Grynberg defendants requested unredacted copies of those records directly from the U.S. Attorney's Office. (Pl.'s Stmt., Ex. B, Aff. Timothy M. Rastello ("Rastello Aff.") ¶¶ 4-5; Ex. C, Aff. Michael L. Beatty ("Beatty Aff.") ¶ 4.) In response, the U.S. Attorney's Office delivered copies of the requested documents to Grynberg's counsel, who then provided the copies to the Grynberg defendants. (Def.'s Mot. Summ. J., Mem. of P. & A. ("Def.'s Mot. Summ. J.") at 2.)

This suit arises out of a FOIA request made by Akin Gump to DOJ for copies of the documents at issue, along with any related correspondence between Grynberg and the local U.S. Attorney's Office. (Pl.'s Mot. Summ. J., Mem. of P. & A. ("Pl.'s Mot. Summ. J.") at 4.) DOJ denied Akin Gump's request, claiming that the requested records pertained to a third-party individual and that since Akin Gump failed to provide a waiver allowing it to release this information, disclosure would violate the Privacy Act, 5 U.S.C. § 552a. (Def.'s Mot. Summ. J. at 6.) DOJ also invoked FOIA Exemptions 6 and 7, 5 U.S.C. §§ 552(b)(6), (7)(C), deeming the records generally exempt from disclosure while admitting that it had not yet reviewed the requested records in detail. (Def.'s Mot. Summ. J., Decl. John F. Boseker ("Boseker Decl.") ¶ 6; Ex. B.) At some later time, DOJ identified and advised Akin Gump of approximately 832 pages that were responsive to the request but did not disclose the documents. (Boseker Decl. ¶ 7.) Akin Gump filed an administrative appeal of the initial decision which was subsequently denied. (Def.'s Mot. Summ. J., Ex. C.) After further review of the documents, DOJ informed Akin Gump of additional applicable exemptions that justified non-disclosure. (Id. ¶¶ 10-11.)

DOJ argues not only that the Privacy Act precludes disclosure of the requested documents, but also that the documents fall within the protection of up to six FOIA exemptions.*fn2 Akin Gump disputes these claims, and argues alternatively that DOJ's submission of the documents to the Grynberg Defendants constitutes a waiver of this protection, and DOJ should be ordered to release the requested information.


Summary judgment is appropriate when there exists no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). The burden falls on the moving party to provide a sufficient factual record that demonstrates the absence of such a genuine issue of material fact. See Beard v. Banks, 126 S.Ct. 2572, 2578 (2006). A court must draw all reasonable inferences from the evidentiary record in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In a FOIA suit, an agency is entitled to summary judgment upon demonstrating that no material facts are in dispute and that all information that falls within the class requested either has been produced, is unidentifiable, or is exempt from disclosure. Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001); Weisburg v. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980).

A district court must conduct de novo review of the record in a FOIA case, and the agency resisting disclosure bears the burden of persuasion in defending its action. 5 U.S.C. § 552(a)(4)(B); see also Long v. Dep't of Justice, 450 F. Supp. 2d 42, 53 (D.D.C. 2006).

The FOIA requires agencies to comply with requests to make their records available to the public, unless information is exempted by clear statutory language. 5 U.S.C. §§ 552(a), (b); Oglesby v. Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). Although there is a "strong presumption in favor of disclosure," Dep't of State v. Ray, 502 U.S. 164, 173 (1991), there are nine exemptions to disclosure set forth in 5 U.S.C. § 552(b). These exemptions are to be construed as narrowly as possible to provide the maximum access to agency information based on the overall purpose of the Act. Vaughn, 484 F.2d at 823. Here, DOJ must show that there is no genuine issue as to whether it properly invoked the statutory exemptions authorized by §§ 552(b)(5), (b)(6), (b)(7)(C), and (b)(7)(D) to withhold information, and that all non-exempt information that is reasonably segregable has been segregated and disclosed.

Because the party requesting disclosure is at a disadvantage to argue misapplication of an exemption given that it cannot know the precise contents of the documents withheld, a factual dispute may arise regarding whether the documents actually fit within the cited exemptions. Vaughn, 484 F.2d at 823-24. To enable the requesting party an opportunity to effectively challenge the applicability of the exemption and the court to properly assess its validity, the party in possession of the materials must explain the specific reason for the agency's nondisclosure. Id. at 826; see, e.g., Oglesby, 79 F.3d at 1176 ("The description and explanation the agency offers should reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection."). This explanation may include a detailed description of each document being withheld and take the form of a Vaughn index. Students Against Genocide, 257 F.3d at 832. Where, as here, "'a claimed FOIA exemption consists of a generic exclusion, dependent upon the category of records rather than the subject matter which each individual record contains, resort to a Vaughn index is futile[,]'" Maydak v. Dep't of Justice, 218 F.3d 760, 766 (D.C. Cir. 2000) (quoting Church of Scientology v. Internal Revenue Service, 792 F.2d 146, 152 (D.C. Cir. 1986)), and the government may satisfy its burden by other means. Vionche v. Fed. Bureau of Investigation, 412 F. Supp. 2d 60, 65 (D.D.C. 2006) (noting that because "courts have repeatedly held that it is the function of a Vaughn index rather than its form that is important, . . . an agency does not have to provide an index per se"). Regardless of the form of the government's declaration, it must show why exemption is appropriate and conclusory statements and generalized claims of exemption are insufficient to justify withholding. Vaughn, 484 F.2d at 826; see also Mead Data Cent., Inc. v. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977) ("[T]he burden which the FOIA specifically places on the Government to show that the information withheld is exempt from disclosure cannot be satisfied by the sweeping and conclusory citation of an exemption . . . ."). Where disclosures are not sufficiently detailed to permit a meaningful de novo review, a court may order the agency to submit more detailed disclosures. Vionche, 412 F. Supp. 2d at 65.

Furthermore, because "[t]he focus of the FOIA is information, not documents, . . . an agency cannot justify withholding an entire document simply by showing that it contains some exempt material . . . . [N]on-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Mead Data, 566 F.2d at 260; see also 5 U.S.C. § 552(b) (requiring disclosure of "any reasonably segregable portion" of an otherwise exempt record). If the government argues that none of the material in a document is segregable, it must provide a reasonably detailed explanation for this claim. "However, the justification need not be so detailed so as to compromise the nature of the withheld information." Vionche, 412 F. Supp. 2d at 70.


DOJ first argues that the Privacy Act bars disclosure because the requested records pertain to a third-party individual from whom Akin Gump has not received prior written consent for release. (Def.'s Mot. Summ. J. at 5-6.) The Privacy Act precludes an agency from disclosing any record [of information about an individual] which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, ...

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