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Dickstein Shapiro LLP v. Dep't of Defense

August 2, 2010

DICKSTEIN SHAPIRO LLP, PLAINTIFF,
v.
DEPARTMENT OF DEFENSE AND DEPARTMENT OF THE NAVY, DEFENDANTS.



The opinion of the court was delivered by: Frederick P. Stamp, Jr. United States District Judge

MEMORANDUM OPINION AND ORDER GRANTING AS FRAMED PLAINTIFF'S CROSS-MOTION FOR IN CAMERA REVIEW

I. Background

The plaintiff, Dickstein Shapiro LLP, filed this civil action against the Department of Defense and Department of the Navy (collectively the "Department of Defense"), alleging that the defendants improperly withheld agency records in response to a Freedom of Information Act ("FOIA") request.*fn1 The defendants thereafter filed a motion for summary judgment, in which they argue that the Department of Defense discharged its statutory obligations under FOIA by conducting reasonably adequate searches and by withholding only information protected from disclosure by FOIA exemptions.

The plaintiff filed a response in opposition arguing that summary judgment should be denied because genuine issues of material fact remain in dispute, specifically, the defendants' refusal to disclose documents pursuant to the plaintiff's FOIA request. In support of this motion, the plaintiff claims that the defendants' declarations and Vaughn indices*fn2 fail to provide the detail necessary for the plaintiff or this Court to conduct a thorough review of the defendants' alleged exemptions. The plaintiff also filed a cross-motion for in camera review, requesting that should this Court believe that further review is necessary to evaluate the claimed exemptions, it conduct an in camera review of those documents.

The defendants filed a reply, as well as a response opposing the plaintiff's cross-motion for in camera review. The plaintiff thereafter filed a timely reply to its cross-motion.

Finding that it would be beneficial, this Court scheduled a telephonic status and scheduling conference to discuss the motions currently pending before it. On December 17, 2009, this Court held a status and scheduling conference in this matter. After hearing from the parties, this Court determined that a revised Vaughn index that refines and articulates in more detail the reasons why the documents should be exempt would be helpful to this Court.

Accordingly, the defendants were directed to file a revised Vaughn index on or before February 1, 2010. Furthermore, following receipt of the revised Vaughn index and an opportunity to review such index, the parties were ordered to file a joint status report to this Court apprising this Court of whether further briefing was desired in this matter, and if so, how it should proceed. This status report was also to discuss the matter and the methodology of supplying a sampling of documents for an in camera review, should this Court choose to conduct one in the future.

Thereafter, the following documents were filed: (1) defendants' response to order of the court; (2) defendants' second response to order of the court; (3) defendants' third response to order of the court; (4) parties' joint status report; (5) plaintiff's supplement to joint status report; (6) defendants' supplemental brief in support of their motion for summary judgment and opposition to plaintiff's cross-motion for in camera review; and supplement to plaintiff's opposition to defendants' motion for summary judgment and cross-motion for in camera review. For the reasons set forth below, this Court grants as framed the plaintiff's cross-motion for in camera review.

II. Discussion

A. In Camera Review, In General

"The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The government agency has the burden of establishing the adequacy of its search for the requested documents. Carney v. United States Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994).

The FOIA also places the burden of justifying nondisclosure on the government agency. 5 U.S.C. § 552(a)(4)(B). Thus, the government agency has the burden to demonstrate that any document withheld falls within a stated exemption. See 5 U.S.C. § 552(a)(4)(B) ("the burden is on the agency to sustain its action [of withholding a record under a stated exemption]"). Moreover, the FOIA exemption must be narrowly construed in favor of disclosure. Wickwire Gavin, P.C. v. U.S. Postal Serv., 356 F.3d 588, 591 (4th Cir. 2004). Accordingly, FOIA requires that "any reasonable segregable portion of the record shall be provided... after deletion of the portions which are exempt...." 5 U.S.C. § 552(b).

Subsection 552(b) delineates nine exemptions to the disclosure requirement. The government agency's burden of proving that an exemption applies may be met through affidavits which must be relatively detailed, nonconclusory and submitted in good faith. See Simmons v. United States Dep't of Justice, 796 F.2d 709, 711 (4th Cir. 1986). The Fourth Circuit has stated that:

If the government fairly describes the contents of the material withheld and adequately states its ground for nondisclosure, and if those grounds are reasonable and consistent with the applicable law, a district court should uphold the government's position. The court is entitled to accept the credibility of the ...


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