Dickstein Shapiro LLP v. Department of Defense

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DICKSTEIN SHAPIRO LLP,
Plaintiff,
v. Civil Action No. 1:08CV226
(STAMP)
DEPARTMENT OF DEFENSE and
DEPARTMENT OF THE NAVY,
Defendants.
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.1 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
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The undersigned judge is presiding over this case by
assignment.
request. In support of this motion, the plaintiff claims that the
defendants’ declarations and Vaughn indices2 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
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To meet its burden of proving the applicability of FOIA
exemptions, the agency refusing disclosure must produce a detailed
index (“Vaughn index”) of documents withheld sufficient to enable
a review of the claimed exemptions. See Vaughn v. Rosen, 484 F.2d
820, 824 (D.C. Cir. 1973).
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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).
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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 affidavits, so
long as it has no reason to question the good faith of
the agency.
Spannaus v. United States Dep’t of Justice, 813 F.2d 1286, 1289
(1987)(citing Barney v. IRS, 618 F.2d 1268, 1272 (8th Cir. 1980)).
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The plaintiff contends that the defendants have not met their
burden to justify the withholding of documents under the following
four exemptions:
(1) (A) specifically authorized under criteria
established by an Executive order to be kept secret in
the interest of national defense or foreign policy and
(B) are in fact properly classified pursuant to such
executive order;
. . .
(2) related solely to the internal personnel rules and
practices of an agency;
. . .
(5) inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other than
an agency in litigation with the agency;
. . .
(7)(E) records or information compiled for law
enforcement records or information [which] would disclose
techniques and procedures for law enforcement
investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law.
5 U.S.C. §§ 552(b)(1), (b)(2), (b)(5)(C) and (b)(7)(E). The
plaintiff, therefore, argues that an in camera review is necessary
to evaluate these claimed exemptions. Indeed, in camera review is
appropriate in a case such as this, the plaintiff contends, where
“the agency affidavits merely parrot the language of the statute
and are drawn in conclusory terms, [and] the court’s responsibility
to conduct de novo review is frustrated.” Allen v. Cent.
Intelligence Agency, 636 F.2d 1287, 1298 (D.C. Cir. 1980). The
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defendants, in turn, argue that they have demonstrated the adequacy
of their search as to the FOIA requests.
Title 5, United States Code, Section 552, provides that the
court “may examine the contents of such agency records in camera to
determine whether such records or any part thereof shall be
withheld under any of the exemptions.” Whether in camera review is
necessary is within the discretion of the district court. Robbins
Tire & Rubber Co., 437 U.S. at 224. In EPA v. Mink, 410 U.S. 73
(1973), the Supreme Court explained:
Plainly in some situations, in camera inspection will be
necessary and appropriate. But it need not be automatic.
An agency should be given the opportunity, by means of
detailed affidavits or oral testimony, to establish to
the satisfaction of the District Court that the documents
sought fall clearly beyond the range of material that
would be available to a private party in litigation with
the agency.
Id. at 93.
After a review of the defendants’ Vaughn indices and attached
declarations, this Court finds that an in camera review is
necessary, as these documents fail to allow this Court to determine
whether the government has met its burden of demonstrating that the
withheld documents or information contained therein fall within the
claimed exemptions.
B. Type of In Camera Review
“Whether and how to conduct an in camera examination of the
documents rests in the sound discretion of the court, in national
security cases as in all other cases.” Ray v. Turner, 587 F.2d
1187, 1194 (D.C. Cir. 1978). Courts have generally employed two
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sampling procedures for in camera review, those being
representative sampling and random sampling. Under representative
sampling, documents are selected that are “representative” of those
being withheld and submitted to the court for in camera review.
Bonner v. U.S. Dep’t of State, 928 F.2d 1148 (D.C. Cir. 1991).
Whether the government selects the documents to produce, or whether
the plaintiff is involved in this selection is usually dependent on
whether the plaintiff has any information on the nature of the
records being withheld. Conversely, random sampling provides that
the government will select, for example, every tenth document at
issue to deliver to the court. See e.g. Meeropol v. Meese, 790
F.2d 942 (D.C. Cir. 1986).
In their joint status report, the parties in this case dispute
which sampling procedure is appropriate. The plaintiff’s position
is that representative sampling is appropriate, and that the
plaintiff be permitted to designate the records to be included for
the in camera review. Nevertheless, the plaintiff does not oppose
the defendants selecting half of the sample, while the plaintiff
selects the other half. The plaintiff contends that whoever
selects the documents, that a 10% sample is appropriate in this
case.
In contrast, the defendants argue that a random sampling of 5%
of the records is appropriate. Should this Court adopt the
representative sampling approach, however, the defendants request
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that they be allowed to choose half of the total percentage of all
records ordered for the in camera review.
For reasons appearing to the Court, this Court holds that
representative sampling of five percent of the documents is the
appropriate sampling procedure in this civil action. Under this
method, the defendants will select half of the sample, followed by
the plaintiff’s selection of the other half of the sample. The
selected documents shall fairly and equally represent the
particular FOIA exemptions at issue. The parties shall submit to
the undersigned judge at his office at United States Courthouse,
P.O. Box 791, Wheeling, West Virginia, 26003 (or United States
Courthouse, Room 228, 1125 Chapline Street, Wheeling, West
Virginia, 26003) the subject documents on or before September 15,
2010 for an in camera inspection for the undersigned judge to
review. However, if the defendants believe that for security
purposes some other method of delivery is necessary, it shall
promptly advise this Court. The office of the United States
Attorney for the Northern District of West Virginia and the local
officers of the Federal Bureau of Investigation are also located in
the above-mentioned courthouse in Wheeling, West Virginia.
If the parties determine that they will need additional time
to prepare this sampling, they shall immediately contact this Court
by motion providing this Court with a requested date to file the
documents.
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III. Conclusion
For the reasons set forth above, the plaintiff’s cross-motion
for in camera review is hereby GRANTED AS FRAMED. The parties
shall comply with the procedures outlined above.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to
counsel of record herein.
DATED: August 2, 2010
/s/ Frederick P. Stamp, Jr
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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