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Chesapeake Bay Foundation, Inc. v. U.S. Army Corps of Engineers

June 24, 2010


The opinion of the court was delivered by: John D. Bates United States District Judge


Chesapeake Bay Foundation, Inc. ("CBF") brings this action against the United States Army Corps of Engineers pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking records pertaining to permits for development on two islands in the Magothy River, a tributary of the Chesapeake River. At issue is whether the Corps properly withheld certain records from disclosure pursuant to FOIA exemptions 5 and 7.

The Court denied the parties' initial motions for summary judgment, concluding that the Corps had "fail[ed] to abide with consistent precedent requiring detailed explanations of why each claimed exemption is relevant to, and correlated with, the withheld records." Chesapeake Bay Found. v. Army Corps of Eng'rs, 677 F. Supp. 2d 101, 108 (D.D.C. 2009). "Nevertheless, the Court... imagine[d] that the asserted justifications may be valid as to at least some of the withheld records," and accordingly did not grant summary judgment to either party. Id. Instead, it gave the Corps an opportunity to "supplement its Vaughn index and declarations" in order to "adequately describ[e] the records withheld and specifically detail[] how the claimed exemptions apply to the withheld information." See id. at 109.

The Corps thereafter filed a renewed motion for summary judgment, a second Vaughn index, and a new set of declarations. During briefing on that motion, the Corps released, or redacted and released, several documents that previously had been withheld in their entirety. See Def.'s Notice [Docket Entry 34], Decl. of James Mirynowski ("Mirynowski Decl."), ¶¶ 3-4. The Court then ordered the Corps to "file a new Vaughn index that accounts for its April 15, 2010 document release, and correlates its exemption claims with the remaining documents withheld in whole or in part." May 26, 2010 Order [Docket Entry 33], at 1. The Corps has filed a third Vaughn index to fulfill this obligation. Remaining at issue are sixteen documents that have been either redacted and released, or withheld in their entirety.


Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings... and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party opposing a motion for summary judgment, however, "may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The nonmoving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Any factual assertions in the movant's affidavits will be accepted as true unless the opposing party submits its own affidavits or other documentary evidence contradicting the assertion. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

FOIA requires federal agencies to release all records responsive to a proper request except those protected from disclosure by one or more of nine enumerated exemptions set forth at 5 U.S.C. § 552(b). A district court is authorized "to enjoin [a federal] agency from withholding agency records or to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B); see also Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). The agency has the burden of proving that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted); accord Maydak v. Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000). But the district court may award summary judgment to an agency solely on the basis of information provided in 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); accord Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973).


I. Exemption 7

Exemption 7 permits an agency to withhold information compiled for law enforcement purposes to the extent that production of such information "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Here, the Corps has redacted from eight documents both the names of sources "who provided information to the Corps that resulted in an enforcement action," and the sources' contact information.*fn1 Def.'s Mem. in Supp. of Renewed Mot. to Dismiss ("Def.'s Mem.") [Docket Entry 26], at 9; see also Def.'s Notice, Ex. B (Third Vaughn Index), Doc. 138 ("Source personal contact information is redacted."); id., Doc. 168 ("Personal contact information of the source redacted."). CBF does not dispute that the records containing the redacted information were compiled for law enforcement purposes.*fn2 Therefore, the only question before the Court is whether the release of the redacted information would constitute "an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).

In the Corps's view, all "individuals have significant privacy interests in information concerning their names and their relation to the enforcement action, their home addresses and phone numbers." Def.'s Mem. at 9. As a general matter, this is correct: "third parties who may be mentioned in investigatory files, as well as... witnesses and informants who provided information during the course of an investigation" "have an obvious privacy interest cognizable under Exemption 7(C)." Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 894 (D.C. Cir. 1995); accord id. at 896 ("[D]isclosure of the identities of private citizens mentioned in law enforcement files constitutes an unwarranted invasion of privacy and is thus exempt under 7(C)."). CBF does not dispute this proposition. Rather, it contends that the Corps must release the sources' identities because the information is already in the public domain: "The Corps has already identified the sources of each of the communications in question, and therefore the further disclosure of the same previously-disclosed information could not be 'reasonably expected to constitute an invasion of privacy.'" Pl.'s Mem. in Supp. of Cross-Mot. for Summ. J. ("Pl.'s Mem.") [Docket Entry 28], at 20. Notably, CBF nowhere contends that the remaining information about the sources must be released.

Under the public domain doctrine, FOIA-exempt information may not be withheld if it was previously "disclosed and preserved in a permanent public record." Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir.1999). The plaintiff "bear[s] the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld." Afshar v. Dep't of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983); accord Davis v. Dep't of Justice, 968 F.3d 1276, 1279 (D.C. Cir. 1992). CBF has done so here: it has demonstrated that, in its initial Vaughn index, the Corps previously disclosed the names of the sources that are now being withheld. See Pl.'s Mem. at 20-21; see also id., Ex. H (First Vaughn Index), Docs. 43-45, 48-49, 64, 138, 165, 167, 168, 266-67. Because these names are now publicly available, the Corps can no longer redact them. See Hall v. Dep't of Justice, 552 F. Supp. 2d 23, 30-31 (D.D.C. 2008) ("The court agrees that, to the extent that the non-redacted portions specifically identify the names of individuals in specific redacted portions of the documents, [the Department of Justice] cannot redact these names. The FOIA exemptions do not apply once the information is in the public domain.").*fn3

The public domain exception, however, only requires release of that information identical to the information that is publically available -- here, the names of the sources. See Davis, 968 F.2d at 1280 ("We conclude, then, that to obtain portions of tapes alleged to be in the public domain, Davis has the burden of showing that there is a permanent public record of the exact portions he wishes." (emphasis added)). Although, the Corps may continue to withhold the sources' remaining personal contact information ...

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