*fn11,The opinion of the court was delivered by: Reggie B. Walton United States District Judge,ELECTRONIC FRONTIER FOUNDATION, PLAINTIFF, v. UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT." />

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Electronic Frontier Foundation v. United States Department of Justice

November 30, 2011 *fn11


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


The plaintiff, Electronic Frontier Foundation, brings this action against the United States Department of Justice ("DOJ") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006), seeking the release of records concerning "discussions and negotiations between the United States and the European Union with respect to the international exchange of personal information for use by law enforcement authorities." Complaint ("Compl.") ¶ 1. Currently before the Court are the parties' cross-motions for partial summary judgment. Upon consideration of the parties' written submissions and the entire record in this case,*fn1 the DOJ's motion is denied without prejudice, and the plaintiff's cross-motion is granted in part and denied in part without prejudice.


The United States-European Union High Level Contact Group ("HLCG") was created at the Justice and Homeland Affairs Ministerial held on November 6, 2006, to address the issue of transnational data-sharing between law enforcement authorities. Compl. ¶ 5. By letter dated November 6, 2009, the plaintiff submitted a FOIA request to the DOJ seeking "all DOJ records created since January 20, 2009 that concern, discuss[,] or reflect the work or deliberations of the HLCG."*fn2 Def.'s Facts ¶ 2; Compl ¶ 5. The plaintiff's letter was routed to the DOJ's Office of Information Policy ("OIP"), which is responsible for processing FOIA requests seeking records from "seven Senior Leadership DOJ Offices, including the Office of the Deputy Attorney General." Def.'s Facts ¶ 3. The OIP sent the plaintiff a letter dated March 11, 2010, acknowledging receipt of its FOIA request, id. ¶ 4, and thereafter forwarded the FOIA request to the DOJ's Criminal Division "for direct processing and response," id. ¶ 6.

After receiving no records from the DOJ, the plaintiff instituted this action on April 26, 2010. Pl.'s Mem. at 2-3. The DOJ then began producing documents to the plaintiff starting in September 2010 and continuing into March 2011. Def.'s Facts ¶¶ 17-19. The OIP has released to the plaintiff "six pages in full, 97 pages with redactions (primarily under [FOIA] Exemption 5), and has withheld 140 pages in full under Exemption 5." Pl.'s Mem. at 3. The Criminal Division has released "410 pages in full, 166 pages with redactions (again, primarily under Exemption 5), and has withheld 361 pages in full under Exemption 5." Id. Over 1,000 pages of responsive records identified by the OIP and the Criminal Division have been referred for processing to the Departments of State, Homeland Security, and Commerce. Id.

On June 15, 2011, the DOJ moved for partial summary judgment, asserting that its searches were reasonable, Def.'s Mem. at 3, that it properly applied FOIA Exemption 5 to withhold certain responsive records, id. at 6, and that all reasonably segregable material has been released to the plaintiff, id. at 12. In accordance with Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), both the OIP and the Criminal Division have provided Vaughn indices and supporting declarations describing the records being withheld and the FOIA exemptions purportedly justifying the two DOJ components' withholdings.*fn3 See Def.'s Mot., Exhibit ("Ex.") 1 (Declaration of Vanessa R. Brinkman ("OIP Decl.")); id., Ex. 2 (OIP Vaughn Index); id., Ex. 3 (Declaration of Kristin L. Ellis ("Crim. Div. Decl.")); id., Ex. 4 (Criminal Division's Vaughn Index ("Crim. Div. Vaughn Index")); Def.'s Reply, Ex. 2 (Supplemental Declaration of Kristin

L. Ellis ("Supp. Crim. Div. Decl.")).*fn4

The plaintiff filed its consolidated opposition to the DOJ's motion and cross-motion for partial summary judgment on July 18, 2011. While not challenging the adequacy of the DOJ's search, Pl.'s Mem. at 1, the plaintiff contends that (i) the DOJ's Vaughn submissions fail to provide "the necessary specificity and contextual information to assess the propriety of the challenged withholdings"; (ii) the DOJ has "improperly withheld records under Exemption 5 containing information that 1) was shared with third parties; 2) for which the deliberative process privilege has been waived; 3) is not predecisional and deliberative; and 4) is purely factual in nature"; and (iii) the DOJ has "failed to demonstrate compliance with [the] FOIA's requirement that all reasonably segregable, non-exempt material be released," id. at 5.

The parties have engaged in ongoing efforts to narrow the scope of the records whose non-production is in dispute. Pl.'s Reply at 1-2. Nevertheless, as of September 19, 2011, the filing date of the plaintiff's reply brief, "nearly 650 pages of material related to the HLCG, withheld either in part or in their entirety under FOIA Exemption 5, remain at issue in this case." Id. at 2.


A. Summary Judgment in a FOIA Action

Courts will grant a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "FOIA cases appropriately may be decided on motions for summary judgment." Bigwood v. U.S. Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007) (citations omitted). When an agency seeking "summary judgment on the basis of . . . agency affidavits" asserts through those affidavits that it has properly withheld documents or parts of documents pursuant to a FOIA exemption, the agency's affidavits must "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). Agency affidavits submitted in the FOIA context "are accorded a presumption of good faith." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).

The "'burden is on the agency' to show that [the] requested material falls within a FOIA exemption." Petroleum Info. Corp. v. Dep't of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (quoting 5 U.S.C. § 552(a)(4)(B)). Consistent with congressional intent tilting the scales in favor of full disclosure, courts impose a substantial burden on an agency seeking to avoid disclosure based on the FOIA exemptions. See Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007). As a result, "exemptions from disclosure must be narrowly construed . . . and conclusory and generalized allegations of exemptions are unacceptable." Id. at 1114-15 (internal citation and quotation marks omitted). Nonetheless, "[w]hen disclosure touches upon certain areas defined in the exemptions . . . [,] the [FOIA] recognizes limitations that compete with the general interest in disclosure, and that, in appropriate cases, can overcome it." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004).

B. Adequacy of Vaughn IndeX

Because the agency in a FOIA case has "both the burden of proof and all the evidence, the agency has the difficult obligation to justify its actions without compromising its original withholdings by disclosing too much information." Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006). "The Vaughn index provides a way for the defending agency to do just that. By allowing the agency to provide descriptions of withheld documents, the index gives the court and the challenging party a measure of access without exposing the withheld information." Id.

While there is "no set formula" for evaluating the adequacy of a Vaughn index, Carter, Fullerton & Hayes LLC v. FTC, 520 F. Supp. 2d 134, 142 (D.D.C. 2007), the Court must be mindful of the Circuit's repeated instruction on the specificity required of a Vaughn index. In King v. U.S. Department of Justice, 830 F.2d 210 (D.C. Cir. 1987), the court stated that "when an agency seeks to withhold information, it must provide 'a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply,'" id. at 219 (quoting Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). The court held that a "[c]ategorical description of redacted material coupled with categorical indication of anticipated consequences of disclosure is clearly inadequate." Id. at 224. At the same time, in Judicial Watch, Inc. v. Food & Drug Administration, 449 F.3d 141, 147 (D.C. Cir. 2006), the court stated that "[w]e have never required repetitive, detailed explanations for each piece of withheld information- that is, codes and categories may be sufficiently particularized to carry the agency's burden of proof." The court observed that "[e]specially where the agency has disclosed and withheld a large number of documents, . . . particularity may actually impede court review and undermine the functions served by a Vaughn index." Id. In holding that the Vaughn index was adequate, the court noted the index included eleven categories of information describing the nature of each record. Id. at 146-47.

Morley, 508 F.3d at 1122-23. Agencies are permitted to "submit other measures in combination with or in lieu of the index itself," such as "supporting affidavits," so long as the materials "'give the reviewing court a reasonable basis to evaluate the claim of privilege.'" Judicial Watch, 449 F.3d at 146 (quoting Gallant v. NLRB, 26 F.3d 168, 172-73 (D.C. Cir. 1994)). Ultimately, the Court's ...

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