District Court Decisions

Am. Mgmt. Servs., LLC v. Dep't of the Army, No. 11-442, 2012 U.S. Dist. LEXIS 8124 (E.D. Va. Jan. 23, 2012) (Ellis, J.).  Holding:  Granting, in part, Army's motion for summary judgment based on its withholdings pursuant to Exemptions 4 and 6, as well as information protected by the attorney client privilege of Exemption 5; concluding that the Army released all reasonably segregable portions of those records; and deferring, in part, Army's motion for summary judgment with respect to documents solely withheld pursuant to the deliberative process privilege, which the court will review in camera.  The court concludes that certain errors in the Vaughn Index, which the Army remedied, "are not sufficient grounds for striking the entire index or questioning the good faith of the Army."  Moreover, the court notes that, in this case, "almost a thousand pages of documents [were] gathered by the Army in response to [plaintiff's] request" and observes that "'[p]arties who frame massive and all-inclusive requests for documents should expect some fall-off from perfection when the agency responds."'

Mullen v. U.S. Army Crim. Investigation Command, No. 10-262, 2011 WL 5870550 (E.D. Va. Nov. 22, 2011) (Cacheris, J.).  Holding:  Granting defendant's motion to vacate the court's previous scheduling order which required the parties to file proposed discovery plans; granting, in part, defendant's motion to set a summary judgment briefing schedule; and granting, in part, defendant's motion for leave to file a representative sampling.  In terms of filing times, the court finds that it is appropriate here for defendant to file its Vaughn Index with it motion for summary judgment and provides plaintiff with ninety days to file a response in opposition.  The court also permits defendants to index a representative sample of the responsive records rather than all 23,726 pages, noting that "[c]ourts have permitted sampling in cases with a much smaller volume of documents than the volume in the case at hand."  Additionally, the court generally approves of defendant's sampling methodology which will index certain responsive pages, and for other documents, will "describe the basis for withholding not only the specific page, but for the entire document that encompasses that page," and will provide a "categorical Vaughn index" for certain pages that were withheld in full based on the same justifications.  In terms of volume, the court determines that "every 84th page [of the investigative reports and files] shall be indexed," which will account for approximately two percent of the responsive records, but "emphasizes that this is just the minimum, as the index shall describe the basis for withholding not only the specific page, but for the entire document that encompasses that page."  The court also orders that "if any of the documents pulled as a result of every 84th page being indexed are documents that were fully released, then Defendant should index the next redacted or withheld document."

McGehee v. DOJ, No. 01-1872, 2011 WL 3375532 (D.D.C. Aug. 5, 2011) (Kessler, J.).  Holding:  Granting, in part, defendant's motion for summary judgment with respect to the adequacy of its search and its withholdings pursuant to Exemptions 3, 7(C), 7(D), and 7(E); and denying, in part, defendant's motion with respect to the adequacy of its Vaughn Index.  The court concludes that the FBI's submissions are "deficient and must be supplemented" because "[a]lthough the court was able to determine the propriety of the asserted Exemptions based upon the Defendant's affidavits, the failure of the Vaughn Index to provide any specific information regarding the missing pages and numerous redactions renders it impossible to evaluate the FBI's conclusions that the pages included no segregable portions."  Additionally, the court finds that the FBI's statement that "'[e]very effort was made to provide plaintiff with all material in the public domain and with all reasonably segregable portions of released material' falls far short of the specificity required to justify non-segregation." 

Smith v. Dep't of Labor, No. 10-1253, 2011 WL 3099703 (D.D.C. July 26, 2011) (Boasberg, J.).  Holding:  Granting defendant's motion for summary judgment on the basis that its withholdings pursuant to Exemptions 5 and 6 were proper; and denying plaintiff's cross-motion for summary judgment.  The court holds that DOL's Vaughn index is adequate where it "describes the rationale for the exemptions invoked and provides the locations in the disclosed documents where redactions are made under those exemptions."  The court notes that "at the actual sites of redaction, the number of the relevant exemption is provided."  Moreover, the court finds that DOL is not required to provide "redundant descriptions of documents from which only small portions are redacted."  Segregability: Contrary to plaintiff's contention, the court finds that DOL was not required to provide a separate segregability analysis in its Vaughn Index because "[t]he Agency's redactions are themselves indicative that DOL conducted a line-by[-]line review and segregation of the material." 

Davis v. DOD, No. 07-492, 2010 WL 1837925 (W.D.N.C. May 6, 2010) (Conrad, C.J.). DOD "should correct" a minor error in its Vaughn index and disclose the missing pages to plaintiff.

Frankenberry v. FBI, No. 08-1565, 2010 U.S. Dist. LEXIS 35078 (M.D. Pa. Apr. 7, 2010) (Caputo, J.) (adoption in part and rejection in part of Magistrate's and Recommendation). The court finds that the FBI's Vaughn index is inadequate. "There is no specific contextual link provided by the agency between the redacted material and the exemption claimed by Defendants. Without more, it is impossible for this Court to engage in a proper de novo review of the exemptions that Defendants seek to use as justification for withholding documents from Plaintiff." The case is remanded to the magistrate for the purpose of developing a complete factual record.

Shannahan v. IRS, No. 08-0452, 2010 U.S. Dist. LEXIS 112 (W.D. Wash. Jan. 4, 2010) (Robart, J.). The IRS has now established that it did not select the documents described in its Vaughn index at random, but rather chose them so as to create a representative sample of documents. Thus, the court can now rule that IRS's use of Exemptions 3 and 7(A) was proper as to the entirety of the documents, and not just those included in defendant's sample.

Chesapeake Bay Found., Inc. v. U.S. Army Corps of Eng'rs, No. 09-1054, 2009 WL 5159756 (D.D.C. Dec. 30, 2009) (Bates, J.). The court finds that agency's declarations are inadequate because they merely contain categorical descriptions of the withheld records and the harms that would be occasioned by disclosure. Even when the declarations are taken together with the Vaughn index, "they cannot sustain the Corps' withholdings." The Vaughn index "provides some information regarding the withheld records - such as dates and brief descriptions of the records - but it does not describe how the asserted exemptions apply to the withheld documents." The court holds that the agency must provide supplemental submissions if it wishes to maintain its exemption claims.

Brown v. FBI, No. 07-1931, 2009 WL 5102713 (D.D.C. Dec. 28, 2009) (Roberts, J.). Plaintiff is not entitled to a Vaughn index where "two of the three FOIA requests did not result in any documents being released" and the two pages released in part in response to the third request were addressed in BOP's declaration, which "provides an explanation and justification for redacting the visitors' names from the visitor log" at a prison.

Casillas v. DOJ, No. 07-1621, 2009 WL 4546677 (D.D.C. Dec. 7, 2009) (Roberts, J.). Plaintiff is not entitled to a Vaughn index. "[T]here is no need for a Vaughn index where there are no responsive records to describe."

Citizens for Responsibility & Ethics in Wash. v. DHS, No. 08-1046, 2009 WL 2750486 (D.D.C. Sept. 1, 2009) (Bates, J.). The court finds the Vaughn submission to be "vague, conclusory and inadequate," even when considered in connection with the unredacted portions of the documents. In camera review resolves some, but not all, of those concerns and so further justification is required. For several documents, defendant needs to provide the court with more information, including the documents' authors, recipients, and role in the agency's decisionmaking process. Moreover, if DHS wishes to continue to withhold these documents, "[it] must provide more detailed information to demonstrate that it has met FOIA's 'segregability' requirement."

Defenders of Wildlife v. U.S. Border Patrol, No. 04-1832, 2009 WL 1620790 (D.D.C. June 11, 2009) (Friedman, J.). Though defendant DHS's Vaughn index describes each withheld document (and/or the withheld portions) and lists the exemption(s) cited, it fails to include other relevant information, including the originating component, the author, and the recipient. "[D]etails such as these are necessary 'to enable the court and the opposing party to understand the withheld information in order to address the merits of the claimed exemptions.'" Furthermore, "DHS's descriptions of the documents withheld and the reasons for withholding them are unduly vague and general." Additionally, defendant DHS has not provided sufficient justification for its use of exemptions. "An agency's claims, in affidavits, declarations or a Vaughn index may not 'merely recite the statutory standards.'"