Schoenman v. Federal Bureau of Investigation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RALPH SCHOENMAN,
Plaintiff,
Civil Action No. 04-2202 (CKK)
v.
FEDERAL BUREAU OF INVESTIGATION,
et al.,
Defendants.
MEMORANDUM OPINION
(March 31, 2009)
Plaintiff, Ralph Schoenman, a political activist and author, filed the above-captioned
action pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy
Act of 1974 (“Privacy Act” or “PA”), 5 U.S.C. § 552a, seeking access to an array of records
pertaining to himself, Lord Bertrand Russell, and six organizations, from a total of ten different
named agencies and a number of unnamed agencies to which the named agencies might refer
documents for a determination as to releasability (identified as “John Doe Agencies 1-10” in
Plaintiff’s Complaint). Plaintiff’s Complaint named as Defendants: the Federal Bureau of
Investigation (“FBI”), the Central Intelligence Agency (“CIA”), the Defense Intelligence Agency
(“DIA”), the Department of the Air Force (“Air Force”), the Department of Justice (“DOJ”), the
Department of the Army (“Army”), the Department of the Navy (“Navy”), the Department of
State (“State Department”), the National Archives and Records Administration “NARA”), the
National Security Agency (“NSA”), and John Doe Agencies 1-10. Compl. at 1 & ¶ 13.
In a Memorandum Opinion and Order dated March 31, 2006, the Court dismissed certain
portions of Plaintiff’s Complaint against Defendants CIA, NARA, NSA, Air Force, Army, and
Navy because Plaintiff either could not show that the agencies had received his FOIA/PA
requests or could not show that he had exhausted his administrative remedies as to those
agencies. See generally Schoenman v. FBI, Civ. A. No. 04-2202, 2006 WL 1126813 (D.D.C.
Mar. 31, 2006). By a Memorandum Opinion and Order dated June 5, 2006, the Court dismissed
without prejudice certain portions of Plaintiff’s Complaint against the FBI and the State
Department. See generally Schoenman v. FBI, Civ. A. No. 04-2202, 2006 WL 1582253 (D.D.C.
Jun. 5, 2006). The Defendants with remaining obligations to process documents in response to
Plaintiff’s request did so. Those Defendants, along with the agencies to whom they have referred
documents for releasability determinations, have now begun moving for summary judgment, and
Plaintiff has filed cross-motions for summary judgment.1 This Memorandum Opinion addresses
the [73] Motion for Summary Judgment filed by the FBI and the [92] Cross-Motion for Partial
Summary Judgment filed by Plaintiff. In addition, this Memorandum Opinion addresses
Plaintiff’s recently filed [105] Motion for an Order Requiring the FBI to Provide a Complete
Vaughn Index, as it pertains directly to the issues raised in the parties’ pending cross-motions for
summary judgment.
1
This Court previously granted summary judgment in favor of Defendants as to Plaintiff’s
claims against the DIA, the Air Force, the Army, the Navy, and the Criminal Division of the
DOJ. See Schoenman v. FBI, 575 F. Supp. 2d 136 (D.D.C. 2008); Schoenman v. FBI, 575 F.
Supp. 2d 166 (D.D.C. 2008). In addition, the Court granted summary judgment in favor of
Defendant State Department as to Plaintiff’s claims against the State Department. See
Schoenman v. FBI, 573 F. Supp. 2d 119 (D.D.C. 2008); Schoenman v. FBI., 576 F. Supp. 2d 3(D.D.C. 2008). The Court also granted-in-part and held-in-abeyance-in-part Defendant CIA’s
motion for summary judgment, and denied-in-part and held-in-abeyance-in-part Plaintiff’s partial
motion for summary judgment as to Plaintiff’s claims against the CIA, with the remaining issues
to be resolved pending supplemental briefing as to the adequacy of certain aspects of the CIA’s
search. Schoenman v. FBI, Civ. Act. No. 04-2202, 2009 WL 763065 (D.D.C. Mar. 16, 2009).
2
The Court has conducted a searching review of the FBI’s Preliminary Vaughn Index, the
FBI’s Motion for Summary Judgment, Plaintiff’s Cross-Motion for Partial Summary Judgment/
Opposition, the FBI’s Opposition/Reply, Plaintiff’s Reply, the FBI’s Supplemental Vaughn
Index, Plaintiff’s Motion for an Order Requiring the FBI to Provide a Complete Vaughn Index,
Plaintiff’s March 24, 2009 Notice to the Court, and the FBI’s Partial Opposition to Plaintiff’s
Motion for an Order Requiring the FBI to Provide a Complete Vaughn Index, as well as the
exhibits attached to those filings, the relevant statutes and case law, and the entire record herein.
Based upon the foregoing, the Court shall: (1) GRANT-IN-PART the FBI’s [73] Motion for
Summary Judgment, finding in favor of the FBI with respect to the reasonableness of the FBI’s
search for responsive records; (2) DENY-IN-PART the FBI’s [73] Motion for Summary
Judgment and GRANT-IN-PART Plaintiff’s [92] Cross-Motion for Partial Summary Judgment,
with respect to the FBI’s denial of Plaintiff’s requests for a full fee waiver, finding that the FBI
improperly denied Plaintiff’s requests; and (3) GRANT Plaintiff’s [105] Motion for an Order
Requiring the FBI to Provide a Complete Vaughn Index. Finally, in light of the Court’s
determination that the FBI must submit a single, comprehensive Vaughn index, the Court shall
DENY WITHOUT PREJUDICE the parties’ cross-motions as they pertain to the merits of the
FBI’s withholdings and Plaintiff’s request that the FBI be required to reprocess all responsive
documents. The Court cannot resolve the merits of these issues until an adequate Vaughn index
is compiled. Upon submission of the FBI’s final Vaughn index, the parties may re-file their
cross-motions as to the merits of the FBI’s withholdings, as appropriate.
3
I. BACKGROUND
A. Plaintiff’s FOIA/PA Requests
By letters dated July 24, 2001, and July, 27, 2001, Plaintiff, through counsel, filed
FOIA/PA requests with the Paris Legal Attache and the London Legal Attache (“Legat”) of the
FBI as well as with the Los Angeles, New York City, and San Francisco Field Offices. See
Second Decl. of David M. Hardy, Section Chief of the Record/Information Dissemination
Section, Records Management Division, at the FBI Headquarters (“FBIHQ”) (hereinafter
“Second Hardy Decl.”), submitted in support of the FBI’s Motion for Summary Judgment, ¶¶ 5,
28, 41, 49, 61.2 Each of Plaintiff’s FOIA/PA requests is identical and sought access to records
pertaining to himself, Lord Bertrand Russell, and six organizations3—and all records on any
confidential source or informant who supplied information on any of the foregoing subjects as
well as all “index references” to the foregoing subjects, all previous FOIA requests pertaining to
those subjects, and all records used by the FBI in its searches in response to Plaintiff’s requests.
Id., Ex. A4 In addition, Plaintiff requested a fee waiver of all duplication fees. See id.2
Hardy avers that he is the Section Chief of the Record/Information Dissemination
Section (“RIDS”), Records Management Division, at FBIHQ in Washington, D.C. Second
Hardy Decl. ¶ 1. He explains that RIDS’ mission is to effectively plan, develop, direct, and
manage responses to requests for access to FBI records and information pursuant to both the
FOIA and the PA. Id. ¶ 2. Hardy submits his declarations to address the FBI’s handling of
Plaintiff’s FOIA/PA requests, and to provide a Vaughn index of Plaintiff’s selection of
documents from which the FBI withheld information. Id. ¶ 4.
3
The six organizations are as follows: (1) Bertrand Russell Peace Foundation; (2)
Bertrand Russell Peace Foundation, New York; (3) International War Crimes Tribunal; (4) The
Who Killed Kennedy Committee; (5) Bertrand Russell Research Center; and (6) Citizens
Committee of Inquiry. Second Hardy Decl., Ex. A.
4
As an initial matter, the Court notes that the procedural facts included herein are taken
primarily from the second declaration of David M. Hardy, submitted in support of the FBI’s
Motion for Summary Judgment. See Second Hardy Decl. The FBI has also provided, as required
4
Id. The relevant facts concerning the FBI’s response to each of Plaintiff’s requests are set forth
below.
1. Paris Legat
By letter dated July 31, 2001, the Paris Legat notified Plaintiff that it had forwarded his
request to FBIHQ. Id. ¶ 6. FBIHQ thereafter acknowledged receipt of Plaintiff’s FOIA/PA
request, and advised Plaintiff that it was opening a separate request for each subject of Plaintiff’s
FOIA/PA request. Id. ¶¶ 6-7. As an initial matter, the Court notes that, by Order dated June 5,
2006, it found that Plaintiff had failed to exhaust his administrative remedies as to certain
portions of his FOIA/PA request to the FBI Paris Legat and therefore dismissed without
prejudice Plaintiff’s claim to the extent it concerned his request to the Paris Legat for records
relating to the Who Killed Kennedy Committee and the Citizens Commission of Inquiry. See
Schoenman v. FBI, Civ. Act. N. 04-2202, 2008 WL 1582253, *9-12 (D.D.C. Jun. 5, 2006)
(CKK). Accordingly, the only aspects of Plaintiff’s claim against the Paris Legat that remain
relate to his request for records pertaining to himself, Lord Bertrand Russell, the Bertrand Russell
by Local Civil Rules 56.1 and 7(h), a Statement of Material Facts as to Which There is No
Genuine Issue; however, because that Statement generally summarizes Hardy’s declaration, the
Court instead cites directly to Hardy’s declaration. See generally FBI Stmt. Plaintiff has
responded to the FBI’s Statement with a responsive Statement as well as a Statement of Material
Facts Not in Dispute. See Pl.’s Resp. Stmt. and Pl.’s Stmt. In his responsive Statement,
however, Plaintiff admits all of the FBI’s assertions, save one, for which he states only that:
“Plaintiff is without information or knowledge sufficient to admit or deny and therefore denies
the first sentence. The second and third sentence are denied.” See Pl.’s Resp. Stmt. As
Plaintiff’s sole denial is not supported by facts contradicting Hardy’s declarations, the Court
accepts Hardy’s sworn statements in his second declaration—which are supported by the record
of correspondence between the FBI and Plaintiff—as uncontroverted and relies upon them
herein. As to Plaintiff’s own Statement of Material Facts, Plaintiff proffers only five “factual”
assertions, three of which are not supported by citations to the record, as is required. See
generally Pl.’s Stmt. The Court therefore cites primarily to Hardy’s second declaration for the
factual background in this case.
5
Research Center, and the Bertrand Russell Peace Foundation (including the New York office),
the International War Crimes Tribunal.
a. FOIA Request Number 947852 (Schoenman)
Plaintiff’s request to the Paris Legat for records pertaining to himself was assigned FOIA
Request Number 947852. Second Hardy Decl. ¶ 7. FBIHQ subsequently consolidated this
request with Plaintiff’s request to the Los Angeles Field Office (“LAFO”), discussed below. See
infra pp. 10-12. Accordingly, the Court shall consider Plaintiff’s challenges to this request as
part of its discussion concerning the request to LAFO.
b. FOIA Request Number 948774 (Lord Bertrand Russell)
Plaintiff’s request to the Paris Legat for records pertaining to Lord Bertrand Russell
Center was assigned FOIA Request Number 948772. Id. ¶ 24. FBIHQ subsequently advised
Plaintiff that no records were found responsive to his request. Id. Plaintiff thereafter appealed
FBIHQ’s “no records” determination, which determination was subsequently affirmed by the
Office of Information and Privacy (“OIP”), the entity within DOJ that adjudicates FOIA appeals
of the various DOJ components.5 Id. ¶¶ 11, 25-27.
c. FOIA Request Number 948772 (Bertrand Russell Center)
Plaintiff’s request to the Paris Legat for records pertaining to the Bertrand Russell Center
was assigned FOIA Request Number 948772. Second Hardy Decl. ¶ 19. FBIHQ subsequently
advised Plaintiff that no records were found responsive to this request. Id. ¶ 19. Plaintiff
thereafter appealed FBIHQ’s “no records” determination, which was subsequently affirmed by
5
The Court notes that Plaintiff is not challenging the adequacy of the FBI’s search in his
cross-motion for partial summary judgment, see generally Pl.’s Cross-MSJ/Opp’n, Docket No.
[92], and therefore the FBI’s “no records” determinations are not at issue in this Memorandum
Opinion.
6
OIP on appeal. Id. ¶¶ 20-22.
d. FOIA Request Number 948768 (Bertrand Russell Peace
Foundation)
By letter dated August 21, 2001, FBIHQ acknowledged receipt of Plaintiff’s request for
records pertaining to the Bertrand Russell Peace Foundation (including specific to the New York
office) and advised Plaintiff that the request had been assigned FOIA Request Number 948768.
Id. ¶ 9. Thereafter, FBIHQ informed Plaintiff that it had located 372 pages responsive to his
request and was releasing 270 of those pages, with redactions made pursuant to FOIA
Exemptions 1, 2, 3, 7(C), and 7(D). Id. ¶ 10. FBIHQ also informed Plaintiff that responsive
documents had been referred to other agencies for review and direct response to Plaintiff. Id.6
Finally, FBIQ advised Plaintiff that his request for a fee waiver was denied because the FBI
“concluded that [Plaintiff’s] interest in these records is personal in nature and that the
information pertains primarily to him,” and that he had therefore been assessed duplication fees
totaling $17. Id. and Ex. F.
Plaintiff subsequently appealed the withholdings and denial of his fee waiver to OIP. Id.
¶ 11. Specific to the fee waiver issue, Plaintiff argued that the FBI had wrongly concluded that
his interest in the records is personal in nature and that the information pertains primarily to him,
noting that the request at issue relates to the Bertrand Russell Peace Foundation—not to
Schoenman himself. Id., Ex. G. In addition, Plaintiff stated that:
6
Hardy notes that four documents responsive to this FOIA Request were referred to the
State Department. Second Hardy Decl. ¶ 11. The FBI redacted certain information from one
page of the referred documents pursuant to FOIA Exemption 7(C). Id. When the Department of
State released the documents to Plaintiff, he was advised of his right to appeal the FBI’s
redactions to those documents. Id. It appears, however, that Plaintiff has not appealed the
redactions made by the FBI on this referral. Id.7
The materials contained in the file deal with political opposition to the war in
Vietnam. The fact that the FBI compiled a rather large file in its Paris office
regarding the anti-war activities of this organization certainly sheds light on the
‘operations and activities’ of the Government. Mr. Schoenman, a published author,
intends to use these materials in a political memoir he is writing.
Id.By letter dated November 18, 2003, OIP made a supplemental release of additional
portions of six pages previously released to Plaintiff but affirmed all other withholdings by the
FBI. Id. ¶ 14. In addition, OIP affirmed the FBI’s denial of a fee waiver. Id. OIP conceded that
Plaintiff had “amply demonstrated that [he] has the capacity to disseminate the requested
information and that he does not appear to have an overriding commercial interest in the
records.” Id., Ex. I. However, OIP contended that Plaintiff had not shown that disclosure of the
records is likely to contribute significantly to public understanding of the operations and
activities of the government and concluded that the released material largely consisted of
information that would not contribute to the public understanding of the FBI’s operations and
activities because: (1) 200 of the 270 pages of released materials are copies of publications by the
Bertrand Russell Peace Foundation and therefore originate outside of the government; (2) an
additional portion of the materials contain biographical information about or public statements by
persons affiliated with the Foundation; and (3) a small portion of the released material contain
only administrative materials that do not include substantive content. Id. Accordingly, the
imposition of $17.00 in duplication fees was upheld. Id.e. FOIA Request Number 948769 (International War Crimes
Tribunal)
Plaintiff’s request pertaining to the International War Crimes Tribunal was assigned
FOIA Request Number 948769. Id. ¶ 15. By letter dated November 3, 2003, FBHIQ advised
8
Plaintiff that 775 pages of 1,458 pages of responsive material were being released and that the
relevant withholdings had been made pursuant to FOIA Exemptions 1, 2, 3, 7(C) and 7(D). Id.
¶¶ 15-16. FBIHQ also informed Plaintiff that referrals of responsive documents had been made
to other agencies. Id. ¶ 16. Finally, FBIHQ advised Plaintiff that his request for a fee waiver was
denied because Plaintiff had “not demonstrate[d] the ability to disseminate information to the
public at large” and Plaintiff was therefore assessed duplicating fees totaling $67.50. Id. & Ex.
K.
By letter dated November 8, 2003, Plaintiff appealed the FBI’s withholdings and fee
wavier decision to OIP. Id. ¶ 17. Specific to the denial of his request for a fee waiver, Plaintiff
argued that the FBI’s determination that he had not demonstrated his ability to disseminate the
information wrongly ignored that Plaintiff is a published author, as explained in his original
FOIA/PA request. Id., Ex. M. In July of 2008, during the pendency of the instant litigation, OIP
finally informed Plaintiff that it had determined Plaintiff was entitled to a partial fee waiver and
reduced the duplicating fees charged by 15%, to $57.00. Id. ¶ 18 and Ex. N. Although OIP
agreed that Plaintiff does not appear to have an overriding commercial interest in the records and
that, contrary to the FBI’s original statement, Plaintiff has shown that he could disseminate the
information to the public at large, it admonished Plaintiff for not providing a more particular
showing that disclosure of the records is likely to contribute significantly to public understanding
of the operations and activities of the government. Id., Ex. N. Nonetheless, OIP reviewed the
material at issue and determined that a portion of the released records (15%) “do[es] concern the
operations or activities of the FBI,” and thus found that Plaintiff is entitled to a partial fee waiver.
Id. OIP determined, however, that the remaining portion of the materials (85%) consists of
9
information that would not contribute to the public understanding of the FBI’s operations and
activities. Specifically, OIP concluded that approximately 60% of the released materials do not
qualify for a fee waiver because: (1) the materials contain substantive content that has been
determined exempt under one or more of the FOIA Exemptions; (2) the materials are duplicates
of records already released to Plaintiff; (3) the materials are repetitive of information already
released to Plaintiff; and (4) the materials contain only administrative information. Id. In
addition, approximately 25% of the released materials originate from outside the government
(e.g., transcript of a broadcast from Hanoi, North Vietnam, a report from the International War
Crimes Tribunal, various published articles and newsletters, as well as copies of newspaper
articles). Id. Accordingly, OIP granted only a 15% reduction of the duplication fees, thereby
reducing the fees owed to $57.00. Id.
2. London Legat
By letter dated September 22, 2001, the London Legat confirmed receipt of Plaintiff’s
FOIA/PA request and advised Plaintiff that it was forwarding the request to FBIHQ. Id. ¶ 61.
FBIHQ subsequently located 275 pages of responsive material and, on January 31, 2007 (i.e.,
after this litigation had commenced), released (through OIP) 260 pages with redactions made
pursuant to FOIA Exemptions 1, 2, 6, 7(C), and 7(D). Id. ¶ 62.
3. Los Angeles Field Office
Initially, the Los Angeles Field Office (“LAFO”) advised Plaintiff, by letter dated August
14, 2001, that a privacy waiver or proof of death was needed before it could conduct a search for
records pertaining to Lord Bertrand Russell, but that as to Plaintiff’s other requests, no
responsive records had been located upon initial review. Id. ¶ 29. Plaintiff subsequently
10
provided proof of death as to Lord Bertrand Russell and appealed the LAFO’s “no records”
determination to OIP. Id. ¶¶ 30-31. LAFO subsequently informed Plaintiff that it had located
records regarding both Plaintiff himself and Lord Bertrand Russell and that those records were
being forwarded to FBIHQ for processing. Id. ¶ 33. LAFO advised, however, that no responsive
records as to the other subjects of his request had been located. Id.On June 5, 2006, the Court dismissed without prejudice Plaintiff’s claim against LAFO,
to the extent it related to his request for records relating to Lord Bertrand Russell. Schoenman v.
FBI, Civ. Act. No. 04-2202, 2006 WL 1582253, *13 (Jun. 5, 2006) (CKK). Accordingly, the
only responsive records located by LAFO that remain at issue are those pertaining to Plaintiff
himself, which the Court now turns to.
Plaintiff’s request to LAFO for records pertaining to himself was assigned FOIA Request
Number 954768. Id. ¶ 34. As stated above, LAFO located records regarding Plaintiff himself,
and informed Plaintiff that those records were being forwarded to FBIHQ for processing. Id. ¶
33. On April 26, 2005, FBIHQ informed Plaintiff that it had located 752 pages of responsive
material and was releasing 552 of those pages, with redactions made pursuant to FOIA
Exemptions 1, 2, 7(C) and 7(D) and PA Exemption j(2). Id. ¶ 37. FBIHQ also informed
Plaintiff of consultations and referrals made to other agencies. Id. Finally, FBIHQ assessed
Plaintiff $42.50 in duplication fees, which Plaintiff subsequently paid. Id.FBIHQ subsequently released additional pages upon consultation with other government
agencies. First, by letter dated November 29, 2005, FBIHQ informed Plaintiff that an additional
three pages of responsive material was being released after consultation with the Department of
the Army. Id. ¶ 38. Redactions were made by the FBI pursuant to FOIA Exemptions 1, 2, 6,
11
7(C) and 7(D) as well as PA Exemption j(2), while redactions were made by the Army pursuant
to FOIA Exemption 6. Id. Second, by another letter dated that same day, November 29, 2005,
FBIHQ advised Plaintiff that an additional 90 pages of responsive material was being released
after consultation with the State Department. Id. ¶ 39. Redactions were made by the FBI
pursuant to FOIA Exemptions 1, 2, 6, 7(C) and 7(D) as well as PA Exemption j(2), while
redactions were made by the State Department pursuant to FOIA Exemptions 1 and 6. Id. Third
and finally, by a letter sent on May 22, 2006, FBIHQ informed Plaintiff that an additional 79
pages of responsive material (out of 90 pages reviewed in consultation with that agency) were
being released, with withholdings made pursuant to FOIA Exemptions 1, 2, 7(C) and 7(D). Id. ¶
40.
4. New York City Field Office
By letter dated May 21, 2002, the New York City Field Office (“NYFO”) informed
Plaintiff that records were located regarding Plaintiff himself and the Citizens Commission of
Inquiry and that those records were being forwarded to FBIHQ for processing. Id. ¶ 42. No
records were found responsive to the other subjects of Plaintiff’s FOIA/PA request. Id. The
Court notes it dismissed without prejudice Plaintiff’s claim against NYFO for failure to exhaust
administrative remedies to the extent it concerned NYFO’s “no records” determination as to all
subjects, save Plaintiff and the Citizens Commission of Inquiry. See Schoenman v. FBI, Civ.
Act. No. 04-2202, 2006 WL 1582253, *14-15 (D.D.C. Jun. 5, 2006) (CKK). Accordingly, the
only Plaintiff’s claim as it concerns his request to NYFO for records regarding the Citizens
Commission of Inquiry and himself remain at issue.
12
a. FOIA Request Number 963707 (Citizens Commission of Inquiry)
By letter dated August 16, 2002, FBIHQ acknowledged receipt of Plaintiff’s request
concerning the Citizens Commission of Inquiry and assigned it FOIA Request Number 963707.
Id. ¶ 43. Thereafter, on March 24, 2004, FBIHQ notified Plaintiff that it had located 818 pages
of responsive materials and was releasing 736 pages to Plaintiff, with withholdings made
pursuant to FOIA Exemptions 1, 2, 7(C) and 7(D). Id. ¶ 45. FBIHQ also informed Plaintiff that
it had referred responsive materials to other agencies. Id. Finally, FBIHQ assessed Plaintiff
$63.60 in duplications fees, although it neither explicitly stated that it was denying Plaintiff’s fee
waiver request nor provided a reason for doing so. Id., Ex. OO.
Plaintiff thereafter appealed the withholdings and denial of the fee waiver. Id. ¶ 46. In
July of 2008, during the pendency of the instant litigation, OIP finally informed Plaintiff that it
had determined he is entitled to a partial fee wavier and reduced the duplicating fees charged by
25%, to $47.70. Id. ¶ 48 & Ex. RR. Although OIP agreed that Plaintiff does not appear to have
an overriding commercial interest in the records and that Plaintiff has shown that he could
disseminate the information to the public at large, it admonished Plaintiff for not providing a
more particular showing that disclosure of the records is likely to contribute significantly to
public understanding of the operations and activities of the government. Id., Ex. RR.
Nonetheless, OIP reviewed the material at issue and determined that a portion of the released
records (25%) “do[es] concern the operations or activities of the FBI,” and thus found that
Plaintiff is entitled to a partial fee waiver. Id. OIP determined, however, that the remaining
portion of the materials (75%) consists of information that would not contribute to the public
understanding of the FBI’s operations and activities. Specifically, OIP concluded that
13
approximately 50% of the released materials do not qualify for a fee waiver because: (1) the
materials contain substantive content that has been determined exempt under one or more of the
FOIA Exemptions; (2) the materials are duplicates of records already released to Plaintiff; (3) the
materials are repetitive of information already released to Plaintiff; and (4) the materials contain
only administrative information. Id. In addition, approximately 25% of the released materials
originate from outside the government (e.g., transcript of a broadcast from Hanoi, North
Vietnam, a report from the International War Crimes Tribunal, various published articles and
newsletters, as well as copies of newspaper articles). Id. Accordingly, OIP granted only a 25%
reduction of the duplication fees, thereby reducing the fees owed to $47.70. Id.b. FOIA Request Number 951311-001 (Plaintiff himself)
By letter dated February 9, 2007—i.e., during the instant litigation—FBIHQ (through
OIP) advised Plaintiff that it had located 102 pages of responsive materials and was releasing 94
pages, with redactions made pursuant to FOIA Exemptions 1, 2, 3, 6, 7(C) and 7(D), as well as
PA Exemption j(2). Id. ¶ 63.
5. San Francisco Field Office
By letter dated August 16, 2001, the FBI’s San Francisco Field Office (“SFFO”) advised
Plaintiff that no responsive records had been located regarding Plaintiff himself, the Bertrand
Russell Peace Foundation - New York, the Who Killed Kennedy Committee, the Bertrand
Russell Research Center and the Citizens Commission of Inquiry. Id. ¶ 50. Plaintiff thereafter
appealed this “no records” determination. Id. ¶ 52. OIP subsequently affirmed the FBI’s “no
records” determination except as to the Citizens Commission of Inquiry, concerning which OIP
determined that four pages of material should be released in full to Plaintiff. Id. ¶ 60. The FBI
14
has not indicated that it located any additional material responsive to any of the above subjects.
As concerns Plaintiff’s requests for records relating to the Bertrand Russell Foundation,
the International War Crimes Tribunal, and Lord Bertrand Russell, however, SFFO advised
Plaintiff that responsive records had been located and processed, as discussed below. Id. ¶ 50.
a. FOIA Request Number 190-SF-130542 (Bertrand Russell Peace
Foundation)
By letter dated November 5, 2001, SFFO notified Plaintiff that 16 pages of responsive
material had been located and that it was releasing to Plaintiff 16 pages, with redactions being
made pursuant to FOIA Exemptions 1, 2, 7(C) and 7(D). Id. ¶ 53. Plaintiff thereafter appealed
this determination to OIP. Id. ¶ 55. OIP affirmed the FBI’s decision. Id. ¶ 60.
b. FOIA Request Number 190-SF-130541 (International War Crimes
Tribunal)
The SFFO also notified Plaintiff on November 5, 2001, that it had located 50 pages of
responsive material and that it was releasing 48 pages to Plaintiff, with redactions made pursuant
to FOIA Exemptions 1, 2, 3, 7(C) and 7(D). Id. ¶ 54. Plaintiff thereafter appealed this
determination to OIP. Id. ¶ 55. OIP affirmed the FBI’s decision. Id. ¶ 60.
c. FOIA Request Number 190-SF-130540 (Lord Bertrand Russell)
By letter dated February 27, 2002, SFFO notified Plaintiff that it had located 21 pages of
responsive material and was releasing 19 pages to Plaintiff, with redactions made pursuant to
FOIA Exemptions 1, 2, 3, 7(C) and 7(D). Id. ¶ 57. Plaintiff thereafter appealed this
determination to OIP. Id. ¶ 58. OIP affirmed the FBI’s decision. Id. ¶ 60.
B. Procedural History
Plaintiff filed the instant lawsuit on December 20, 2004. See Compl., Docket No. [1]. As
15
is relevant to the parties’ cross-motions, the FBI filed a partial motion to dismiss, which the
Court subsequently granted-in-part and denied-in-part. See Schoenman v. FBI, Civ. Act. N. 04-
2202, 2008 WL 1582253, *9-12 (D.D.C. Jun. 5, 2006). As discussed above, the Court dismissed
without prejudice Plaintiff’s claim against the FBI to the extent it concerned: (1) his request to
the Paris Legat for records relating to the Who Killed Kennedy Committee and the Citizens
Commission of Inquiry; (2) his request to LAFO for records relating to Lord Bertrand Russell;
and (3) his request to NYFO for records pertaining to the Bertrand Russell Peace Foundation
(including the New York office), the International War Crimes Tribunal, the Who Killed
Kennedy Committee, the Bertrand Russell Research Center, and Lord Bertrand Russell. See id.
at *9-15.
In addition, the Court notes that the parties agreed to proceed with their cross-motions
for summary judgment based upon a sample—to be selected by Plaintiff—of the documents
withheld in full or in part by the FBI. See 3/21/07 Joint Status Report, Docket No. [34] at 4;
10/24/07 Joint Status Report, Docket No. [41] at 2. By letter dated October 10, 2007, Plaintiff
provided the FBI with a list of 170 items to be the subject of the FBI’s Vaughn index. See First
Hardy Decl., Ex. A. The FBI filed its Preliminary Vaughn Index on June 30, 2008, Docket No.
[68], and its Motion for Summary Judgment on July 29, 2008, Docket No. [73]. Plaintiff filed
his Cross-Motion/Opposition on September 25, 2008. See Docket No. [92]. The FBI filed its
Reply/Opposition on October 23, 2008, see Docket Nos. [97] & [98], and Plaintiff filed his
Reply on November 19, 2008, see Docket No. [100].
Thereafter, in response to issues raised in Plaintiff’s Reply, the FBI filed an unopposed
motion to supplement its Vaughn index, see Docket No. [101], which the Court granted, see
16
12/15/08 Min. Order. The FBI subsequently filed its supplemental Vaughn index on March 6,
2009. Docket No. [103]. In response, Plaintiff filed a Motion for an Order Requiring the FBI to
Provide a Complete Vaughn Index, see Docket No. [105], as well as a Notice, submitted at the
request of the Court, clarifying the relief he currently seeks, see Docket No. [108]. The FBI
thereafter filed a Partial Opposition to Plaintiff’s Motion for an Order Requiring the FBI to
Provide a Complete Vaughn Index. See Docket No. [109]. Accordingly, the parties’ cross-
motions for summary judgment, as well as Plaintiff’s motion requesting the Court order the FBI
to submit a complete Vaughn index, are now ripe for review.
II. LEGAL STANDARDS
A. FOIA
In reviewing a motion for summary judgment under FOIA, the Court must conduct a de
novo review of the record. See 5 U.S.C. § 552(a)(4)(B). In the FOIA context, “de novo review
requires the Court to ‘ascertain whether the agency has sustained its burden of demonstrating that
the documents requested . . . are exempt from disclosure under [] FOIA.’” Assassination
Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting Summers v. DOJ,
140 F.3d 1077, 1080 (D.C. Cir. 1998)). Summary judgment is proper when “the pleadings, the
discovery [if any] and disclosure materials on file, 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). A genuine issue of material fact exists only when there is sufficient
evidence such that a reasonable juror could find for the party opposing the motion. Anderson v.
Liberty Lobby Inc., 477 U.S. 242, 251-52 (1986).
Under FOIA, all underlying facts and inferences are analyzed in the light most favorable
17
to the FOIA requester; as such, only after an agency seeking summary judgment proves that it has
fully discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F.
Supp 32, 35 (D.D.C. 1996) (citing Weisberg v. DOJ, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). In
opposing a motion for summary judgment, a party must offer more than conclusory statements.
See Broaddrick v. Exec. Office of President, 139 F. Supp. 2d 55, 65 (D.D.C. 2001) (citing
Laningham v. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987)), aff’d 38 Fed. Appx. 20 (D.C. Cir.
2002). Indeed, a plaintiff pursuing an action under FOIA must establish that the agency has
improperly claimed an exemption as a matter of law or that the agency has failed to segregate and
disclose all non-exempt information in the requested documents. See Perry-Torres v. Dep’t of
State, 404 F. Supp. 2d 140, 142 (D.D.C. 2005).
Congress enacted FOIA for the purpose of introducing transparency to government
activities. See Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984). Congress remained sensitive,
however, to the need to achieve balance between this objective and the vulnerability of
“legitimate governmental and private interests [that] could be harmed by release of certain types
of information.” Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871,
872 (D.C. Cir. 1992); see also Summers, 140 F.3d at 1079. Accordingly, FOIA provides nine
exemptions pursuant to which an agency may withhold requested information. See 5 U.S.C. §§
552(a)(4)(B), (b)(1)-(9). The agency must demonstrate the validity of any exemption that it
asserts. See id.; Beck v. DOJ, 997 F.2d 1489, 1491 (D.C. Cir. 1993) (“[c]onsistent with the
purpose of the Act, the burden is on the agency to justify withholding requested documents”). In
addition, summary judgment may be granted on the basis of the agency’s accompanying
affidavits or declarations if they describe “the justifications for nondisclosure with reasonably
18
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 evidence of
agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). These
affidavits may be submitted by an official who coordinated the search, and need not be from each
individual who participated in the search. See SafeCard Servs. v. Sec. & Exch. Comm’n, 926
F.2d 1197, 1200 (D.C. Cir. 1991).
An agency also has the burden of detailing what proportion of the information in a
document is non-exempt and how that material is dispersed throughout the document. Mead
Data Cent. Inc. v. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). Any non-exempt
information that is reasonably segregable from the requested records must be disclosed. Oglesby
v. Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996). In addition, district courts are required to consider
segregability issues sua sponte even when the parties have not specifically raised such claims.
Trans-Pac. Policing Agreement v. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).
B. Privacy Act
The Privacy Act of 1974 regulates the collection, maintenance, use, and dissemination of
an individual’s personal information by agencies within the federal government. See 5 U.S.C. §
552a(e). The PA provides that any agency that retains a system of records “shall maintain . . .
only such information about an individual as is relevant and necessary to accomplish a purpose
of the agency required to be accomplished by statute or executive order of the President.” 5
U.S.C. § 552a(e)(1). To provide for openness and accountability, the PA ensures that “upon
request by any individual to gain access to his record or to any information pertaining to him
which is contained in the system,” the agency shall provide the individual with access to review
19
such records. 5 U.S.C. § 552a(d)(1). Finally, subject to certain exceptions, the Privacy Act
states that disclosure of records shall be limited. 5 U.S.C. § 552a(b) (“[n]o agency shall disclose
any record which is contained in a system of records by any means of communication to any
person, or to another agency, except pursuant to a written request by, or with the prior written
consent of, the individual to whom the record pertains”). One of these exceptions, however, is
that an agency shall disclose such records that would be required to be disclosed pursuant to
FOIA. 5 U.S.C. § 552a(b)(2). In actions seeking documents under both FOIA and the Privacy
Act, a defendant agency must show that the information is properly subject to both FOIA and
Privacy Act exemptions. See Martin v. Off. of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir.
1987).
III. DISCUSSION
In considering the parties’ cross-motions and Plaintiff’s motion for an order requiring the
FBI to provide a complete Vaughn index, the Court first addresses Plaintiff’s challenge to the
FBI’s denial of his requests for a fee waiver. The Court then turns to Plaintiff’s challenges to the
adequacy of the FBI’s Vaughn index and his request that the FBI be required to provide a
complete index, before finally considering the reasonableness of the FBI’s search.
A. Public Interest Fee Waiver Request
In general, “a FOIA requester must pay reasonable costs for the search, review, and
duplication of the records sought.” Judicial Watch, Inc. v. Dep’t of Transp., Civ. No. 02-566,
2005 WL 1606915, at *3 (D.D.C. July 7, 2005) (hereinafter “Judicial Watch I”) (citing 5 U.S.C.
§ 552(a)(4)(A)(ii)(I)). However, an agency must waive or reduce fees for search, review, or
duplication of documents if (1) “disclosure of the information is in the public interest because it
20
is likely to contribute significantly to public understanding of the operations or activities of the
government” and (2) “is not primarily in the commercial interest of the requester.” 5 U.S.C. §
552(a)(4)(A)(iii). The FOIA requester bears the initial burden of proving that it meets both
prongs. Judicial Watch I, 2005 WL 1606915 at *3 (citing Larson v. CIA, 843 F.2d 1481, 1483
(D.C. Cir. 1988)). According to legislative history, the FOIA fee waiver provision “‘is to be
liberally construed in favor of waivers for noncommercial requesters.’” McClellan Ecological
Seepage Situation v. Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987) (quoting 132 Cong. Rec. 27,
90 (1986) (Sen. Leahy)).
In reviewing an agency’s determination on a fee waiver issue, a district court must apply a
de novo standard of review and look only to the administrative record that was before the agency
at the time of its decision. 5 U.S.C. § 552(a)(4)(A)(vii); D.C. Technical Assistance Org. v. Dep’t
of Hous. & Urban Dev., 85 F. Supp. 2d 46, 48 (D.D.C. 2000). “The record before the agency
‘consists of, inter alia, the initial FOIA request, the agency’s response, and any subsequent
materials related to the administrative appeal.’” Jarvik v. CIA, 495 F. Supp. 2d 67, 71 (D.D.C.
2007) (quoting Forest Guardians v. Dep’t of the Interior, 416 F.3d 1173, 1177 (10th Cir. 2005)).
In addition, fee waiver requests must be made with ‘reasonable specificity,’ Larson, 843 F.2d at
1483, and contain more than ‘conclusory allegations,’ Nat’l Treasury Employees Un. v. Griffin,
811 F.2d 644, 647 (D.C. Cir. 1987).
At issue in the instant cross-motions are the FBI’s determinations that Plaintiff is not
entitled to a full fee waiver as requested regarding: (1) FOIA Request Number 948768 to the
Paris Legat regarding the Bertrand Russell Peace Foundation; (2) FOIA Request Number 948769
to the Paris Legat regarding the International War Crimes Tribunal; and (3) FOIA Request
21
Number 963707 to the NYFO regarding the Citizens Commission of Inquiry.7 As discussed
above, Plaintiff made the identical request for a fee waiver in all three instances. See supra p. 4.
The FBI ultimately concedes that Plaintiff has demonstrated that he has the capacity to
disseminate the requested information and that he does not have an overriding commercial
interest in the records, but disputes whether all of the material sought is likely to contribute
significantly to public understanding of the operations or activities of the government. See
Second Hardy Decl., Exs. I, N & RR. Specifically, as to two of the three requests at issue (FOIA
Request Numbers 948769 and 963707), the FBI granted Plaintiff a partial fee waiver (of 15% and
25% respectively), based upon its determination that only some of the material released to
Plaintiff is likely to contribute significantly to public understanding. See id. ¶¶ 18, 48. As to the
third request (FOIA Request Number 948768), the FBI determined that none of the material
released to Plaintiff is likely to contribute significantly to public understanding of the FBI’s
operations and activities and therefore denied Plaintiff’s request in full. See id., Ex. I.
Accordingly, the primary issue in dispute is whether the FBI (through OIP) correctly determined
that disclosure of the majority of the released materials would not significantly further public
understanding about the FBI’s operations and activities.8
7
Plaintiff is not challenging the FBI’s denial of his request for a fee waiver for duplication
fees relating to his FOIA/PA request to LAFO for records pertaining to himself.
8
Given the FBI’s determination that Plaintiff is entitled to a partial fee waiver in two of
the three instances at issue, the Court understands that the FBI has also conceded that Plaintiff’s
request was adequate on its face—i.e., that the only issue in dispute is whether certain released
records in fact qualify for the fee waiver, not whether Plaintiff has sufficiently set forth the public
interest necessary to be eligible for a fee waiver in the first place. Although the FBI’s briefing
contains some language suggesting that it believes Plaintiff may have in fact failed to provide the
necessary degree of “reasonable specificity” required to warrant a fee waiver in the first instance,
this argument, if asserted, is puzzling in light of the FBI’s determination that the Plaintiff’s
22
Specifically, in denying Plaintiff’s requests for a full fee waiver, the FBI reviewed the
information released to Plaintiff and determined that various categories of material do not qualify
for a waiver of duplication fees. Although the percentage of the material at issue varies between
each of the three FOIA requests, the FBI uniformly identified the following categories of
information as ineligible for a waiver of duplication fees: (1) material containing substantive
content that has been determined exempt under one or more of the FOIA Exemptions; (2)
material that is repetitive of information already released to Plaintiff; (3) material that contains
only administrative information; (4) material that originates outside the government and/or is
already in the public domain; and (5) material that contains information duplicative of material
already provided to Plaintiff. See Second Hardy Decl., Exs. I, N & RR. The FBI therefore
denied Plaintiff a full waiver of duplication fees in all three instances. See id. The Court
concludes that the FBI’s determination, however, is based on several flawed assumptions.
First, the FBI alleges that Plaintiff is not entitled to a fee waiver for duplication of
material that “consists of records the substantive content of which—and the very portion most
likely to be considered for a fee waiver if not exempt—has been determined to be exempt under
request should be granted, at least in part, in two of the three instances at issue—that is, that
Plaintiff has met his initial burden of identifying the public interest served in those instances.
Notably, the FBI is not arguing that the Court should find that Plaintiff’s request for fee waivers
in those instances should have been denied in full. Moreover, as the language in each of the
requests at issue is identical and as the FBI has not provided any reason for treating the language
differently between the Plaintiff’s three requests, there is no support for the contention that
Plaintiff’s request to the Paris Legat is sufficient on its face as to FOIA Request Number 948769
(which was partially granted), but not as to FOIA Request Number 948768 (which was denied in
full). Accordingly, given that “uniformity in FOIA interpretations within a given agency” is a
desired goal, see Oglesby v. Dep’t of Army, 920 F.2d 57, 64 (D.C. Cir. 1990), the Court proceeds
with the understanding that the FBI has conceded that Plaintiff’s request in all three instances is
sufficiently detailed to establish eligibility as an initial matter and that the only issue in dispute is
whether certain categories of released records do not specifically qualify for the fee waiver.
23
one or more FOIA exemptions.” Second Hardy Decl., Ex. N at 3. The Court agrees with
Plaintiff, however, that a requester’s FOIA request “should be evaluated based on the face of the
request and the reasons given by the requestor in support of the wavier,’ not on the possibility
that the records may ultimately be determined to be exempt from disclosure.” Judicial Watch I,
2005 WL 1606915, *5 (internal quotation marks omitted). The Court is persuaded that “a
defendant agency cannot base a fee waiver determination upon anticipated redactions to the
requested records . . . because such a maneuver ‘clearly places the cart before the horse.’” So.
Utah Wilderness Alliance v. U.S. Bureau of Land Mgmt., 402 F. Supp.2d 82, 90 (D.D.C. 2005)
(quoting Project on Military Procurement v. Navy, 710 F. Supp. 362, 367 (D.D.C. 1989); see
also Judicial Watch, Inc. v. Dep’t of Energy, 310 F. Supp. 2d 271, 295 (D.D.C. 2004)
(hereinafter “Judicial Watch II”) (“It would be contrary to the express provisions of the FOIA to
‘invert the burden of proof’ and force a plaintiff not only to demonstrate that it satisfies the
public interest exception analysis and is entitled to a fee waiver, but also to demonstrate that the
defendant agency’s contemplated withholdings are not properly claimed.”), rev’d in part on other
grounds, 412 F.3d 125 (D.C. Cir. 2005). The FBI urges that the Court should find to the contrary
because, in this instance, the FBI has already made the withholdings in question, and the
invocation of certain FOIA Exemptions is therefore not “anticipated,” as that term was used in
Southern Utah Wilderness Alliance and Project on Miliary Procurement. FBI’s Opp’n/Reply at
11. First, this distinction is not one that courts have necessarily relied on. See, e.g., Judicial
Watch I, 2005 WL 1606915, at *5 (rejecting agency’s denial of fee waiver based on its
determination that most of the requested documents would be exempt, even though exemptions
had already been made and presented to the Court for litigation). More importantly, however, the
24
fact that the withholdings in this case were made prior to the FBI’s final decision on the fee
waiver request is due largely to the FBI’s significant delay in ruling on Plaintiff’s appeal, waiting
until July of 2008 to issue a decision as to two of the three fee waiver requests. See supra pp. 9-
10, 13-14. The Court is not persuaded that the FBI should benefit from its own delay.
Accordingly, the Court finds that, in this instance, the FBI improperly determined that certain
records are not qualified for a fee waiver because they contain exempt material.
Second, the FBI alleges that Plaintiff is not entitled to a fee waiver for duplication of
material that is repetitive of information already released to Plaintiff. The D.C. Circuit, however,
has made clear that an agency may not deny a fee waiver for the copying of repetitive, non-
duplicative material. Campbell v. DOJ, 164 F.3d 20, 36 (D.C. Cir. 1998). “A scholar has a
strong interest in reviewing each repetition of a given topic within a file or set of files to explore
the nuances and assess the manner in which the government handled the information.” Id.Accordingly, the Court concludes that the FBI improperly determined that certain records are not
qualified for a fee waiver because they contain repetitive material.9
Third, the FBI alleges that Plaintiff is not entitled to a fee waiver for duplication of
9
Although the DOJ’s own regulations provide that “[t]he disclosure of information that
already is in the public domain, in either a duplicative or a substantially identical form, would not
be as likely to contribute to such understanding where nothing new would be added to the
public’s understanding,” 28 C.F.R. § 16.11(k)(2)(ii), this Circuit does not defer to an agency’s
interpretation of the FOIA fee waiver provision, Tax Analysts v. IRS, 117 F.3d 607, 613 (D.C.
Cir. 1997) (declaring that “we will not defer to an agency’s view of FOIA’s meaning . . .
[because] the meaning of FOIA should be the same no matter which agency is asked to produce
its records”) (citations omitted)); see also Judicial Watch v. Rossotti, 326 F.3d 1309, 1313 (D.C.
Cir. 2003) (“we emphasize that we owe no particular deference to the IRS’s interpretation of
FOIA”). Accordingly, where, as here, the agency’s regulations contradict established precedent
in this Circuit, the Court is bound to apply the D.C. Circuit’s case law—not the agency’s own
regulation.
25
certain pages that contain only administrative information. To the contrary, however, the D.C.
Circuit has observed that “the presence of administrative material within files that also contain
substantive documents does not justify charging fees for copying the non-substantive clutter.” Id.“The fee wavier provisions implicitly assume that valuable government information tends not to
be free standing . . . [and] Congress presumably did not intend agencies to pick through
responsive records to determine the percentage of the record that contains interesting morsels and
to deem the remainder of the records irrelevant to public understanding.” Id. Accordingly, the
“more plausible reading of the statute is that once a given record is deemed to contain
information warranting a wavier, all of the related pages within that record that are responsive to
the FOIA request fall under the waiver even if each individual page would not independently
qualify.” Id.10
Fourth, the FBI alleges that Plaintiff is not entitled to a fee waiver for duplication of
material that originates outside the government, such as various published newspaper articles and
newsletters, copies of publications produced by the organizations at issue, transcripts of a North
Vietnamese radio broadcast, as well as public statements made by members of the target
organizations, to name a few examples. Because the information originates, not from the FBI,
but from outside the government, the FBI urges the Court to categorically find that the
information cannot contribute significantly to the understanding of the FBI’s operations and
activities. Plaintiff counters that a categorical rule rendering all documents originating from
10
Although the D.C. Circuit left open the possibility that “[a] different standard might
apply to records or files that are uncommonly large or that contain only a few substantive
documents relative to the volume of administrative information,” Campbell, 164 F.3d at 36, n.
16, the FBI has not argued that either situation applies here nor does the Court find that the files
at issue are uncommonly large or contain relatively little substantive information.
26
outside the government is illogical and that in this case, the materials do show what information
was targeted by the FBI in its investigations and how such information was collected. See Pl.’s
Reply at 9-10.
The Court ultimately agrees with Plaintiff, as the FBI has not directed the Court to any
persuasive legal support for its position that all documents originating from outside the
government are categorically ineligible for a fee waiver, and the Court finds that such a rule
would be in contravention of Congress’ mandate that the FOIA’s fee waiver provisions should be
liberally construed in favor of fee waivers, see Citizens for Responsibility and Ethics in
Washington v. Dep’t of Health and Human Servs., 481 F. Supp. 2d 99, 113 (D.D.C. 2006). As
support for its assertion, the FBI cites to three cases, each of which the Court finds inapposite to
the situation at hand. First, the FBI cites to Brown v. Patent and Trademark Off., 445 F. Supp.
2d 1347, 1358-59 (M.D. Fla. 2006), in which the plaintiff filed a FOIA request seeking a copy of
the log kept of all lawsuits that had been brought against the agency since a certain date. The
court determined that “[l]awsuit allegations brought against the USPTO are not related to the
USPTO’s identifiable operations and activities in a clear and direct manner.” Id. at 1359. A
listing of lawsuits brought by third-parties against a government agency is, however, a far cry
from material that, although produced by a third-party, was specifically gathered and selected by
the FBI. The Court is unpersuaded that this decision has particular relevance to the material at
hand, or that the case supports a categorical rule that material originating from outside the
government cannot aid public understanding as to governmental activities. Second, the FBI cites
to Judicial Watch, Inc. v. Reno, No. Civ. A. 00-0723, 2001 WL 1902811, *10 (D.D.C. Mar. 20,
2001), in which the court upheld the DOJ’s denial of a fee waiver for reproduction of letters
27
written by the public to the agency concerning its handling of the Elian Gonzales matter, finding
that “the letters themselves do not shed any light on the operations and activities of the
government.” Id. Again, however, the Court is unpersuaded that unsolicited letters from third-
parties to a government agency are comparable to the materials at issue in this case, which were
directly targeted and collected by the FBI. Nor does the Court agree that the decision supports a
categorical rule denying a fee waiver for material originating from outside the government.
Finally, the FBI cites to S.A. Ludsin & Co. v. SBA, No. Civ. A. 96-2146, 1997 WL 337469, *5
(S.D.N.Y. Jun. 19, 1997), in which the court upheld the denial of a fee waiver for duplication
fees relating to records appraising the value of the agency property. As the subject matter did not
concern the operations and activities of the agency, the court determined the materials did not
qualify for a fee waiver. Id. The FBI does not explain how the materials at issue are similar to
appraisals of government property, nor can the Court see a logical connection between property
appraisals and the materials at issue here. Put simply, none of the cases cited by the FBI support
its claim that a blanket denial of a fee waiver request is appropriate based solely on the fact that
the materials did not originate from the government itself.
To the contrary, the fact that released material includes various newspapers or brochures
originating from third-parties does not necessarily preclude an agency from granting a fee waiver.
Cf. Campbell, 164 F.3d at 36 (“[T]he fact that FBI work-product incorporates publicly available
information does not detract from its value independent of the source material.”); Ctr. for
Reprocess Advocacy, Inc. v. Dep’t of Health and Human Servs., 577 F. Supp. 2d 221, 240
(D.D.C. 2008) (conclusion that information sought concerned activities and operations
undertaken by the government “is not altered by fact that some of the released documents were
28
brochures and pamphlets submitted by private parties”). In this case, the materials at issue were
collected by the FBI because they originate from third-party entities and individuals—i.e., the
very organizations and individuals the FBI was investigating. The Court is persuaded that, in this
instance, information targeted and collected by the FBI as part of its investigations into the
“peace/anti-war movement of the 1960’s,” see Third Hardy Decl. ¶ 15, can provide insight into
the manner in which the FBI conducted its investigations of these various organizations and
entities. Cf. Ctr. for Medicare Advocacy, 577 F. Supp. 2d at 240-41 (finding that third-party
material solicited by an agency “can therefore provide insight on the operations and factors under
consideration by the agency”). Nor does “the mere fact that material is in the public domain []
justify denying a fee wavier; only material that has met a threshold level of public dissemination
will not further ‘public understanding’ within the meaning of the fee waiver provisions.”
Campbell, 164 F.3d at 37. Accordingly, the Court finds that, in this instance, the FBI improperly
determined that certain records are not qualified for a fee waiver solely because they contain
material originating from outside the government.
Finally, the FBI alleges that Plaintiff is not entitled to a fee waiver for reproduction of
material that contains information duplicative of material already provided to Plaintiff. Although
the D.C. Circuit has suggested that denial of a fee waiver for copying duplicate documents may
be legitimate, see Campbell, 164 F.3d at 37, n.17, the Court is not persuaded that the presence of
duplicate materials justifies the denial of a fee waiver in this instance. As the D.C. Circuit
observed in that same case:
Congress presumably did not intend agencies to pick through responsive records to
determine the percentage of the record that contains interesting morsels and to deem
the remainder of the record irrelevant to public understanding. The more plausible
reading of the statute is that once a given record is deemed to contain information
29
warranting a waiver, all of the related pages within that record that are responsive to
the FOIA request fall under the waiver even if each individual page would not
independently qualify.
Id. at 36. Here, the FBI did just what the D.C. Circuit stated Congress did not intend—i.e.,
conducted a page-by-page review of the materials at issue, picking through the records and
determining which particular pages did and did not qualify for a fee waiver. The Court has
already found that the majority of those determinations are based on false assumptions.
Accordingly, the FBI wrongly concluded that most of the material at issue does not qualify for a
fee waiver, and, given that conclusion, the Court does not agree that the mere presence of some
duplicative materials justifies a denial of Plaintiff’s request for a complete fee waiver in this
instance. Although an agency may be justified in parsing through the materials when the records
are “uncommonly large” or contain only a few substantive documents comparative to the overall
volume, see id. at 36, n.16, the materials at issue in each of these three requests are neither
unusually voluminous nor do they contain only a few substantive documents (particularly given
the Court’s rejection of the FBI’s reasoning as to the other categories of materials above). As the
legislative history of the 1986 FOIA amendments make clear, the amended fee waiver provisions
should be liberally construed in favor of fee waivers. See Citizens for Responsibility and Ethics
in Washington, 481 F. Supp. 2d at 113. Accordingly, “[t]he plaintiff’s fee waiver request should
have been evaluated based on the potential contribution the requested information would have on
the public’s understanding,” and not on the possibility that some of the documents may have
been duplicative. See Ctr. for Medicare Advocacy, 577 F. Supp. 2d at 240. The Court therefore
denies Defendant FBI’s Motion for Summary Judgment and grants Plaintiff’s Cross-Motion for
Summary Judgment as to the FBI’s denial of Plaintiff’s fee waiver requests, and finds that
30
Plaintiff is entitled to a complete fee waiver as to FOIA Request Numbers 948768, 948769, and
963707.11
B. The FBI’s Vaughn Index is Inadequate
Plaintiff next challenges the adequacy of the FBI’s Vaughn index. Before turning to the
substance of Plaintiff’s arguments, however, the Court first pauses to clarify the relief Plaintiff
seeks at this juncture—an issue that has been complicated by the FBI’s recent supplementation of
its Vaughn index. Plaintiff, in his motion for partial summary judgment, initially argued that the
error rate evidenced in the sample Vaughn index demonstrates that the FBI likely made similar
errors in the processing of non-sample documents, and that the FBI must therefore be required to
reprocess all responsive documents. This argument was based solely on the number of errors
evidenced in the FBI’s preliminary Vaughn index. See Pl.’s Cross-MSJ/Opp’n at 15-16.
As discussed in more detail below, however, the parties subsequently determined that
several categories of documents that Plaintiff had intended to be included in the Vaughn index
had in fact, been omitted from the index. See infra pp. 42-43. Accordingly, the parties agreed,
with the consent of the Court, that the FBI would file a supplementary Vaughn index addressing
those documents that had been excluded from the preliminary index. See Docket No. [101].
Significantly, in filing its supplemental Vaughn index, the FBI acknowledged that it had located
additional responsive records, but did not include all such documents in the supplemental
Vaughn index. See id. In response, Plaintiff filed a motion requesting that the Court require the
11
Given the Court’s resolution of this issue in favor of Plaintiff on the basis that the FBI
wrongly concluded that certain categories of material are ineligible for a fee waiver in this
instance, the Court need not resolve Plaintiff’s alternative argument that OIP may not base its
decision on appeal affirming a denial of a fee waiver request on grounds not previously raised to
the requester. See Pl.’s Cross-MSJ/Opp’n at 11.
31
FBI to provide Plaintiff with a complete Vaughn index that included all additional material
addressed in the supplemental Vaughn index, arguing that he was unable to adequately address
the merits of the FBI’s response to his FOIA/PA requests without a complete Vaughn index that
includes all documents at issue. See Pl.’s Mot. for Complete Vaughn Index, Docket No. [105].
Given that Plaintiff’s motion for an order requiring the FBI to provide a complete Vaughn index
appeared to request relief that conflicted with the relief initially sought in his motion for partial
summary judgment—i.e., an order requiring the FBI to reprocess all responsive records—the
Court requested that Plaintiff clarify the precise relief he seeks at this juncture in the litigation.
See 3/20/09 Min. Order. Specifically, the Court requested that Plaintiff clarify whether he
currently seeks: (1) an order requiring the FBI to re-submit a complete Vaughn index that
includes and addresses all material Plaintiff intended to be included in the sample index; or (2)
an order requiring the FBI to reprocess all responsive records. 3/20/09 Min. Order. As ordered,
Plaintiff subsequently filed a Notice, in which he advised the Court that, because “[t]he merits of
the parties’ pending cross-motions for summary judgment cannot be fully addressed until all
records selected for the Vaughn index have either been vaughned or disclosed,” Plaintiff
presently seeks an order requiring the FBI to provide a full and complete Vaughn index. See
Pl.’s Notice, Docket No. [108].
The FBI thereafter filed a partial opposition to Plaintiff’s motion for an order requiring
the FBI to provide a complete Vaughn index. See FBI’s Partial Opp’n, Docket No. [109]. The
FBI asserted that, although it does not oppose filing a third Vaughn index to address the
remaining documents at issue, it does oppose Plaintiff’s request to re-submit an index for
documents already addressed in the FBI’s previous submissions. Id. at 1-2. With this
32
understanding of the unique procedural posture of this case, the Court now turns to the merits of
the parties’ arguments as set forth in both their cross-motions for summary judgment and briefing
regarding Plaintiff’s request for a complete Vaughn index.
Ultimately, the Court concludes that the Vaughn index submitted by the FBI is utterly
inadequate. As is explained in great detail below, the FBI has failed to provide a single,
comprehensive Vaughn index that accounts for all sample documents Plaintiff intended to be
included in the index and that adequately explains the FBI’s withholdings. The Court shall
therefore require the FBI to re-submit a single, comprehensive Vaughn index that sufficiently
permits both the Court and Plaintiff to evaluate the FBI’s responses to Plaintiff’s FOIA/PA
requests. The Court firmly rejects the FBI’s request that it be permitted to submit yet another
supplementation to its Vaughn index. As is made abundantly clear below, the piecemeal nature
of the FBI’s submissions in this case has unnecessarily confused and complicated the matters at
hand. Perhaps a further supplementation of the Vaughn index would be permissible if the
Court’s only concern with the FBI’s Vaughn index was its failure to include the additional
documents at issue. But, as explained below, the FBI’s previously submitted indices are wholly
inadequate and further piecemeal submissions cannot resolve the Court’s concerns with the FBI’s
Vaughn index. Accordingly, the Court shall grant Plaintiff’s motion for an order requiring
Plaintiff to re-submit a single, comprehensive Vaughn index.12
Moreover, the Court agrees that, until the FBI provides a final Vaughn index, neither the
12
The Court notes that it does not intend to preclude the FBI from providing any
additional released documents to Plaintiff in a piecemeal fashion—i.e., the FBI may continue to
release the documents as they are reviewed and processed by the relevant agencies.
33
Court nor Plaintiff is in a position to evaluate the validity of the FBI’s withholdings or to
properly assess whether the FBI must reprocess all responsive records. Accordingly, the Court
shall deny without prejudice the parties’ cross-motions for summary judgment as to the
reprocessing of all responsive records and the validity of the FBI’s withholdings. Upon
submission of the FBI’s final Vaughn index, the parties may, if appropriate, re-file their cross-
motions for summary judgment as to these discrete issues.
1. Legal Standard for Adequacy of Vaughn Index
“Because of its unique evidentiary configuration, the typical FOIA case ‘distorts the
traditional adversary nature of our legal system’s form of dispute resolution.’” Judicial Watch,
Inc. v. FDA, 449 F.3d 141, 145-46 (D.C. Cir. 2006) (hereinafter “Judicial Watch III”) (quoting
King v. DOJ, 830 F.2d 210, 218 (D.C. Cir. 1987)). “When a party submits a FOIA request, it
faces an ‘asymmetrical distribution of knowledge’ where the agency alone possesses, reviews,
discloses, and withholds the subject matter of the request.” Id. (quoting King, 830 F.2d at 218).
Accordingly, the FOIA places the burden on the agency to establish its right to withhold
information under one of the enumerated FOIA Exemptions. Id. An agency may do so through
producing a Vaughn index, which is an affidavit that indexes and specifically describes withheld
or redacted documents and explains why each withheld record is exempt from disclosure. King,
830 F.2d at 219. The index thus helps restore the normal adversarial balance by “forc[ing] the
government to analyze carefully any material withheld,” thereby enabling “the trial court to fulfill
its duty of ruling on the applicability of the exemption” and enabling “the adversary system to
operate by giving the requester as much information as possible, on the basis of which he can
present his case to the trial court.” Keys v. DOJ, 830 F.2d 337, 349 (D.C. Cir. 1987) (internal
34
quotation marks and citation omitted).
As the D.C. Circuit has made clear, “it is the function, not the form, of the index that is
important.” Id. “Any measure will adequately aid a court if it ‘provide[s] a relatively detailed
justification, specifically identif[ies] the reasons why a particular exemption is relevant and
correlat[es] those claims with the particular part of a withheld document to which they apply.’”
Judicial Watch III, 449 F.3d at 146 (quoting Mead Data, 566 F.2d at 251). While there is no set
form for a Vaughn index, the D.C. Circuit has noted three important elements for an adequate
Vaughn index: (1) the index should be one document that is complete in itself, (2) the index must
adequately describe the withheld documents or deletions, (3) the index must state the particular
FOIA exemption, and explain why the exemption applies. Founding Church of Scientology v.
Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).
As is particularly relevant here, “[r]epresentative sampling is an appropriate procedure to
test an agency’s FOIA exemption claims when a large number of documents are involved.”
Bonner v. Dep’t of State, 928 F.2d 1148, 1151 (D.C. Cir. 1991). “Representative sampling
allows the court and the parties to reduce a voluminous FOIA exemption case to a manageable
number of items that can be evaluated individually through a Vaughn index or an in camera
inspection. If the sample is well-chosen, a court can, with some confidence, ‘extrapolate its
conclusions from the representative sample to the larger group of withheld materials.’” Id.(quoting Fensterwald v. CIA, 443 F. Supp. 667, 669 (D.D.C.1977)); see also Meeropol v. Meese,
790 F.2d 942, 958 (D.C. Cir. 1986). However, the D.C. Circuit has cautioned that “the technique
will yield satisfactory results only if . . . the documents in the sample are treated in a consistent
manner.” Bonner, 928 F.2d at 1151.
35
2. Adequacy of the FBI’s Vaughn Index
The FBI’s Vaughn index is, in a word, inadequate. As explained above, the parties
agreed to proceed with their cross-motions for summary judgment based upon a
sample—selected by Plaintiff—of the documents withheld in full or in part by the FBI. See
3/21/07 Joint Status Report, Docket No. [34] at 4; 10/24/07 Joint Status Report, Docket No. [41]
at 2. On June 30, 2008, the FBI filed what it characterized as its preliminary Vaughn index,
which consists of: (1) Hardy’s first declaration, in which he explains the general coded format
employed in the index; and (2) 200-plus pages of redacted material previously released to
Plaintiff (i.e., the material selected by Plaintiff for inclusion in the index, per the parties’
agreement). See Prelim. Vaughn Index, Docket No. [68]. The FBI did not, however, provide any
comprehensive listing of the pages included in the preliminary Vaughn index nor correlate the
documents provided in the preliminary Vaughn index with the documents selected by Plaintiff.
Accordingly, there was no way to independently confirm that all of the documents selected by
Plaintiff are, in fact, included in the index, absent a page-by-page review of the documents in
conjunction with the Plaintiff’s original letter indicating which documents had been selected for
inclusion in the index. Compounding this difficulty is the fact that, although the majority of the
material in the preliminary Vaughn index is bates stamped, a minority of the pages are not
numbered and the index itself often skips several pages without explanation (e.g., the index skips
from document numbered “S-69” to document numbered “S-75” with no indication of what
pages are not included or why such pages have been omitted). As will be discussed in greater
detail below, it is now evident that the FBI had, in fact, inadvertently omitted documents from
the preliminary Vaugn index—a fact that was not immediately apparent, however, due largely to
36
the index’s unstructured organization.
In filing the preliminary Vaughn index, the FBI explained that it would be providing a
“final and complete” Vaughn index with its motion for summary judgment. See id., Att. 1
(Notice of Filing). When the FBI filed its Motion on July 29, 2008, however, it did not provide a
comprehensive index as promised. Rather, the FBI provided the Court with a second declaration
from Hardy, which merely refers back to and incorporates the preliminary Vaughn index. See
Second Hardy Decl. The Court may have perhaps overlooked the FBI’s failure to provide a
single, comprehensive index, as is required under Founding Church of Scientology, so long as
the documents together fulfilled the necessary functions of a Vaughn index—that is, “enable[d]
the court and the opposing party to understand the withheld information in order to address the
merits of the claimed exemption.” Judicial Watch III, 449 F.3d at 150. The FBI’s Vaughn
index, however, fails to do so for several reasons.
Most significantly, Hardy’s second declaration provides no functional description of the
materials withheld, other than referencing the Court and Plaintiff back to the redacted versions of
the material provided in the preliminary Vaughn index. Although the D.C. Circuit has approved
the use of similarly structured Vaughn indices, in which an agency submits copies of the redacted
materials in coded format supplemented by agency affidavits, the Circuit has cautioned that
agencies must keep in mind the functional purpose of the Vaughn index, as discussed above.
See id. at 146-47, 150. Indeed, as the D.C. Circuit observed in evaluating a similarly-structured
Vaughn index:
Utilization of reproductions of material released to supply contextual information
about material withheld is clearly permissible, but caution should be exercised in
resorting to this method of description. Such a system is only as good as its results,
37
and the vital result must be an adequate representation of context which, when
combined with descriptions of deletions, enables de novo review of the propriety of
withholding. In the present case, the system is inadequate because we are left with
no contextual description for documents or substantial portions of documents
withheld in their entirety, an impermissible result as long as revelation of the context
would not itself harm the national security.
King, 830 F.2d at 221.
Here, however, the Vaughn index does not uniformly provide sufficient contextual
information about the material withheld. First, where the FBI has withheld documents in their
entirety, the Vaughn index fails to provide any description of such documents. For example,
Hardy explains that certain pages have been withheld in their entirety pursuant to FOIA
Exemption 1 because they contain information classified “secret” by a foreign government. See
Second Hardy Decl. ¶ 90. But these pages are not included in the preliminary Vaughn index (as
they are withheld in full), and Hardy’s second declaration does not provide any functional
description of the documents themselves. See id. Accordingly, both the Court and Plaintiff are
left without sufficient information to determine whether the material is properly withheld in full
or whether reasonably segregable portions of non-exempt information could be released.
Second, even where information has been only partially withheld, such that the FBI has
provided a partially redacted document for reference, the released text of the documents does not
always provide sufficient context to evaluate the withheld material. For example, Hardy explains
that the FBI has withheld material from pages 78, 79, and 80 of the preliminary Vaughn index13
13
As will be discussed below, the FBI later explains that the bates stamped numbers used
in the preliminary Vaughn index do not necessarily correspond with the bates stamped numbers
used in Hardy’s second declaration. See infra pp. 39-41. Here, it is apparent upon review of the
pages at issue that the FBI in fact meant pages 77, 78, and 79 of the preliminary Vaughn index, as
page 80 does not indicate that any material has been withheld pursuant to FOIA Exemption 1.
38
pursuant to FOIA Exemption 1 because the material contains information naming intelligence
components of a specific foreign government and/or information provided by those components.
See Second Hardy Decl. ¶ 88. Reference to those pages, however, shows only that large swaths
of information have been withheld. See Prelim. Vaughn Index, “S-77 through S-79.” Indeed,
pages 78 and 79 contain no substantive unredacted information at all. See id. Accordingly, mere
reference to the documents does not, in this instance, provide the Court or Plaintiff with
sufficient information as to the actual material withheld. Nor can the Court determine whether
any reasonably segregable portions of non-exempt information could be released.
On top of the FBI’s failure to adequately describe the documents at issue, the FBI also
acknowledges in its Motion for Summary Judgment that, in re-reviewing the sample documents
for preparation of the Vaughn index, the FBI determined that portions of 25 pages of previously
released material had been improperly redacted, and that such materials must therefore be re-
released to Plaintiff with the correct withholdings. See FBI’s MSJ at 10. Significantly, despite
admitting that it had invoked improper FOIA exemptions in the first instance, the FBI does not
provide any explanation in its opening memorandum as to why the original redactions were
incorrect. See id.
Indeed, it was Plaintiff, rather than the FBI, who first provided the Court with information
regarding the nature of the re-released material at issue. In his Cross-Motion, Plaintiff describes
several examples of the material that the FBI had originally redacted in error and which was re-
released to Plaintiff. See Pl.’s Cross-MSJ/Opp’n at 15-17. For example, Plaintiff explains that
See Prelim. Vaughn Index, “S-77 through S-79.”
39
in some of the documents re-released by the FBI, the FBI had changed its withholdings to release
the names of people listed in published pamphlets or who were listed as public speakers at public
events. Id. at 16. As another example, Plaintiff notes that the FBI re-released a document in
which it had originally withheld Plaintiff’s own name from release. Id. Finally, in perhaps the
most puzzling incident, Plaintiff explains that the FBI re-released a document that had originally
been provided to Plaintiff with almost all information redacted, save for two lines of text in the
middle of the document; when the FBI re-released the document to Plaintiff, however, it released
the entire document, but for the two lines that had initially been released and which are now
redacted. Id.
It was only after Plaintiff highlighted these errors that the FBI made any attempt to
explain its reasons for re-releasing additional portions of the 25 pages of material discussed
above. Specifically, in filing its Opposition/Reply, the FBI attached a third declaration by Hardy,
in which Hardy avers that the FBI “conducted additional research of third-party names which
appeared in the documents, and concluded that certain of these individuals were either deceased
or were attendees at large conventions or meetings, and as a result, disclosure would not violate
their personal privacy.” Third Hardy Decl. ¶ 6. Significantly, however, Hardy does not explain
why this information was not previously available or whether further research would be likely to
uncover additional improper redactions of third-party names in other documents. In addition,
Hardy does not offer any explanation or discussion of the other specific mistakes and
inconsistencies identified by Plaintiff as examples in his Cross-Motion/Opposition (i.e.,
withholding errors that did not relate to third-party names).
Finally, on top of these errors, Hardy’s third declaration highlights several additional
40
mistakes and inconsistencies. First, Hardy admits that the FBI also made several additional
errors in its original redactions (i.e., over and above those identified in the 25 pages of re-
released material), see Third Hardy Decl. ¶ 18, n. 5 & 6, but again fails to adequately explain
why the original redactions were in error. For example, Hardy states that, “[a]fter further review,
it has also been determined that [FOIA Exemption 7(D)] no longer applies to Bates stamped page
13,” but he proffers no explanation as to why that exemption no longer applies. See id., ¶ 18, n.
6. Second, Hardy admits that the FBI had inadvertently omitted certain documents from the
justification portion of his second declaration and that the FBI has been unable to locate several
bates stamped pages that are listed in Hardy’s second declaration. See id., ¶ 18, n. 7, n. 8. Third,
Hardy explains that “technological and administrative glitches” in processing the responsive
documents created discrepancies between the bates numbers in the redacted documents produced
to Plaintiff (and which were included in the preliminary Vaughn index), and the bates numbers in
the version of the documents relied upon by Hardy in his second declaration. See Third Hardy
Decl. ¶ 18 & n. 4. As a result, the bates numbers used on the documents in the preliminary
Vaughn index do not necessarily correspond to the bates numbers referenced in Hardy’s second
declaration. See id. In other words, when Hardy explains in his second declaration that
information is withheld from, for example, page 39 of the preliminary Vaughn index pursuant to
FOIA Exemption 7(D), he in fact is referencing page 32 of the preliminary Vaughn index. See
id. ¶ 18. In an apparent effort to address this issue, Hardy provides a chart in his third declaration
that correlates the bates numbers used in the preliminary Vaughn index with those used in his
second declaration. See id. The problem with this chart, however, is twofold. First, Hardy
provides this information only for those documents for which withholdings were made pursuant
41
to FOIA Exemption 7(D). See id. No similar information is provided for withholdings made
pursuant to the other FOIA Exemptions, such that the Court has no way of knowing what
documents the FBI is in fact referring to in the second Hardy declaration when it discusses other
FOIA Exemptions. Second, in order to use the FBI’s Vaughn index, the Court must cross-
reference the preliminary Vaughn index with Hardy’s second and third declarations—and even
then the Court cannot be sure it is referencing the correct documents. That is, rather than
resubmit a comprehensive and correctly labeled Vaughn index, the FBI merely provides yet
another supplemental declaration, improperly shifting the burden of sorting through the abundant
inconsistencies in the FBI’s submissions to the Court and Plaintiff.
As confusing as the FBI’s pleadings are at this point, the situation deteriorates further still
when Plaintiff files his Reply and (belatedly) advises the FBI that not all of the documents he had
selected for inclusion in the Vaughn index are, in fact, included in the preliminary Vaughn index.
Pl.’s Reply at 15-16. Plaintiff identifies several categories of documents that he intended to be
included in the index, but which were not. See id. For example, Plaintiff notes that the FBI
included copies of the outside of various envelopes in its preliminary Vaughn index, but that
Plaintiff had actually intended the FBI to include—not the envelopes themselves (which do not
contain any redacted information)—but rather the classified enclosures contained inside the
envelopes. See id. at 15 (referencing pages S-131, S-164, and S-175 in the preliminary Vaughn
index).
In response, the FBI filed an unopposed motion to supplement its Vaughn index, in which
the FBI acknowledged that certain documents were not included in the preliminary Vaughn index
42
as Plaintiff had apparently intended.14 See FBI’s Unopposed Mot. to Supplement Vaughn Index,
Docket No. [101]. The FBI asserts, however, that the fault lies with Plaintiff, because he did not
initially make clear what documents he wanted included in the sample Vaughn index, waiting
until his Reply to clarify his intentions. Id. at 2-3. Although fault for this misunderstanding may
lie with both parties, the Court emphasizes that it should have been immediately apparent to the
FBI that something was amiss when it included copies of envelopes (and other material) in its
preliminary Vaughn index that contain no redacted material—as it makes little sense to include a
fully released document in a Vaughn index, which purpose is to explain withholdings made in
documents that have been redacted pursuant to various FOIA Exemptions. Ultimately, the
FBI—not Plaintiff—has the burden of producing an adequate Vaughn index, and the FBI would
have been better served to have proactively resolved any potential miscommunications over the
sample content prior to submission of the index to the Court.
Nonetheless, because the parties agreed that the preliminary Vaughn index excludes
certain documents that Plaintiff had intended be included, the Court permitted the FBI to file a
corrected index, which was subsequently filed on March 6, 2009, along with Hardy’s fifth
declaration. See FBI’s Supplemental Vaughn Index, Docket No. [103]. Significantly, in so
doing, the FBI informed the Court that it had reviewed 255 pages of material responsive to
Plaintiff’s request. Fifth Hardy Decl. ¶ 5. Of those 255 pages, Hardy explains that the FBI had
decided to: (1) release to Plaintiff an additional 92 pages, out of which 21 pages were released in
14
The Court notes that, in addition to those documents noted by Plaintiff, the FBI also
indicates that it discovered, upon its own review, that an additional “12 pages were [also]
unintentionally omitted from its Vaughn index.” Fourth Hardy Decl. ¶ 13.
43
full and 71 pages were released in part with information withheld pursuant to FOIA Exemptions
1, 6, 7(C) and 7(D); (2) withhold one page in its entirety; (3) refer three pages to another
government agency for direct response to Plaintiff; and (4) refer 159 pages to other government
agencies for consultation. Id. The Court is particularly troubled by this belated announcement
that—months after the principal briefing on the parties’ cross-motions was completed—a
substantial amount of material is now being released with redactions to Plaintiff and/or referred
to other agencies for processing. More troubling still is the FBI’s failure to adequately explain
why the additional material is just now being processed and released. For example, it appears
that the FBI determined that some of this material should be released because it is no longer
properly classified as “Top Secret.” See Fifth Hardy Decl. ¶¶ 8, 9. Hardy does not explain,
however, the reasons for the FBI’s determination that the information is no longer properly
withheld under FOIA or assure the Court that other documents reviewed do not contain similar
classification errors.
Although the release of so much additional material, without adequate explanation, is the
most troubling development, other examples of worrisome inconsistencies abound in Hardy’s
fifth declaration. For example, according to Hardy’s fifth declaration, the FBI has now released
ten additional pages of material (labeled pages “S2-181 through S2-190”) related to document S-
91 (otherwise referred to as document number 42), which was originally included in the
preliminary Vaughn index. See Fifth Hardy Decl. ¶ 6. In turn, reference to the preliminary
Vaughn index demonstrates that S-91 is a “delete sheet” that was originally provided to Plaintiff
to advise him that one page of information is being withheld by the FBI pursuant to FOIA
Exemption 1. See Prelim. Vaughn Index (S-91). Given that S-91 originally indicated that only
44
one underlying page of information was withheld, the fact that the FBI has now released an
additional ten pages of material that it asserts relate to this document—without explanation—is
concerning.
As a final note on the FBI’s supplemental Vaughn index, the Court observes that the
index, in its “final and complete” form, is spread out over five separate filings. In an apparent
effort to aid the Court and Plaintiff, Hardy’s fifth declaration provides yet another chart
correlating the bates stamped page numbers as used in the preliminary Vaughn index with those
used in the March 6, 2009 supplemental Vaughn index, and with the documents originally
selected by Plaintiff for inclusion in the Vaughn index. See id. ¶¶ 6, 12. Accordingly, in order to
fully utilize the FBI’s index, the Court and Plaintiff must gather all five declarations, the
preliminary Vaughn index and the correlation charts provided by Hardy as well as Plaintiff’s
initial letter to the FBI listing out which documents he wanted included in the Vaughn index, and
then attempt to ascertain what documents the FBI refers to in its discussions. It is not, however,
the Court’s duty to sift through multiple filings and inconsistent bates stamped documents in
order to determine what information the FBI withheld and why. The FBI’s suggestion that it
provide yet another piecemeal supplementation of its Vaughn index is simply unacceptable.
Rather, the FOIA places the burden on the agency to establish its right to withhold information
under one of the enumerated FOIA exemptions. Judicial Watch III, 449 F.3d at 145-46. “While
the court understands that these requirements are an administrative burden on the agency, any
lesser standard of compliance would not satisfy this circuit’s requirements and FOIA’s policy ‘in
favor of the fullest possible disclosure of government records.’” Campaign for Responsible
Transplantation v. Fed. Drug Admin., 219 F. Supp. 2d 106, 116 (D.D.C. 2002) (quoting
45
Founding Church of Scientology, 603 F.2d at 949). The Court need not burden itself further
cataloging the litany of unexplained inconsistencies and errors evidenced in the FBI’s filings and
Vaughn index, as the point is clear—the index is wholly inadequate and riddled with countless
examples of mistakes and other incongruities.
Accordingly, the Court shall grant Plaintiff’s motion and shall require the FBI to provide
both the Court and Plaintiff with a single, comprehensive Vaughn index that complies with this
Court’s Memorandum Opinion and, in particular, the guidelines set forth below. In addition, in
light of the Court’s determination that the FBI must provide a complete Vaughn index before
either the Court or Plaintiff can properly evaluate the FBI’s withholdings and its processing of
the sample records, the Court shall deny without prejudice the parties’ cross-motions as they
pertain to the merits of the FBI’s withholdings and Plaintiff’s request that the FBI be required to
reprocess all responsive documents. Finally, the parties are required to meet and confer and
submit a joint status report, by no later than April 17, 2009, suggesting a schedule for the FBI’s
submission of a final Vaughn index and, as appropriate, for the subsequent filing of dispositive
motions with respect to the merits of the FBI’s withholdings.
3. Information to be Included in the FBI’s Vaughn Index
Although the Court does not reach the merits of the FBI’s withholdings in light of the
disposition of the current cross-motions, the Court notes several issues that the FBI is advised to
consider when submitting its final Vaughn index. First, the FBI’s final Vaughn index must fully
account for all sample documents at issue and must include all documents in a single,
comprehensive index that is complete in itself. See Founding Church of Scientology, 603 F.2d at
949. To the extent any confusion remains over the exact documents that Plaintiff intends to be
46
included in the Vaughn index, the parties are advised to confer prior to the submission of a final
Vaughn index to ensure that all documents are, in fact, accounted for in the index. The index
must also adequately describe the withheld documents or deletions, as well as state the particular
FOIA exemption, and explain why the exemption applies. Id.Second, the final Vaughn index must adequately explain all inconsistencies and errors
identified in the processing of the sample documents. In particular, for any documents that are a
part of the representative sample and that were originally withheld but have since been released
(whether in part or in whole), the FBI “should explain why the once withheld portions were
excised at the time of the agency’s initial review.” See Bonner v. Dep’t of State, 928 F.2d 1148,
1153 (D.C. Cir. 1991).
Third, as this Court has previously explained, “[u]nder D.C. Circuit precedent, an agency
invoking FOIA Exemption 7(C) [or Exemption 6] must make ‘a reasonable effort to ascertain life
status,’ and the agency’s efforts in that respect speak to the reasonableness of its response to a
FOIA request.” Schoenman v. FBI, 575 F. Supp. 2d 166, 177 (D.D.C. 2008) (quoting Schrecker
v. DOJ, 349 F.3d 657, 662 (D.C. Cir. 2003) (hereinafter “Schrecker II”)); see also Schoenman v.
FBI, 576 F. Supp. 2d 3, 10 (D.D.C. 2008) (agency “is required to make efforts to ascertain an
individual’s life status before invoking a privacy interest in connection with FOIA Exemptions 6
and 7(C)”). Indeed, although the FBI’s Vaughn index currently does not speak to this issue, the
FBI apparently concedes the life status of an individual is relevant, given the fact that it re-
released portions of materials based upon its conclusion, after additional research, “that certain of
these individuals were [] deceased . . ., and as a result, disclosure would not violate their personal
privacy.” Third Hardy Decl. ¶ 6. Accordingly, the Court advises the FBI that it must, in the
47
future, address its efforts to ascertain “life status” in invoking FOIA Exemptions 6 and 7(C).15
Fourth, as the FBI acknowledges, in order to invoke FOIA Exemption 7, it must first
demonstrate that the records at issue were compiled for law enforcement purposes. See
Schoenman v. FBI, 575 F. Supp. 2d 166, 174 (D.D.C. 2008) (CKK). Admittedly, where an
agency “specializes in law enforcement, its decision to invoke exemption 7 is entitled to
deference.” Campbell, 164 F.3d at 32. Nevertheless, the “deferential” standard of review that
the Court applies to this determination is not “vacuous.” Id. Instead, the agency’s declarations
“must establish a rational ‘nexus between the investigation and one of the agency’s law
enforcement duties,’ and a connection between an ‘individual or incident and possible security
risk or violation of federal law.’” Id. (quoting Pratt v. Webster, 673 F.2d 408, 420-21 (D.C. Cir.
1981)). As the D.C. Circuit explained in Campbell, “[t]he fact that information is stored in a
[document] with an official-sounding label is insufficient standing alone to uphold
nondisclosure;” “[a]t a minimum, the [agency] must demonstrate the relationship between a
record and its label and between the label and a law enforcement purpose.” Id. The Court thus
advises that, although it has provided some explanation as to this threshold question, the FBI
would benefit from a more detailed explanation in line with D.C. Circuit case law.
Fifth and finally, the Court notes that, despite Plaintiff’s repeated requests for a complete
accounting of all material referred to other agencies for response, the FBI has not yet accounted
for all referred material. Although the FBI submitted an accounting in Hardy’s third declaration,
15
By contrast, so long as an agency amply explains its reasoning, an agency may redact
the identity of an individual under FOIA Exemptions 1 and 7(d) regardless of whether the
individual is alive. See Schrecker I, 14 F. Supp. 2d at 118; see also Schrecker II, 254 F.3d at
376.
48
the accounting does not indicate when the referrals were made, what documents were referred,
and what documents have not yet been processed. See Third Hardy Decl. ¶¶ 8-12. Accordingly,
the FBI must provide a complete accounting of all referrals made and indicate whether all
documents so referred have been processed and released to Plaintiff, as appropriate.
C. The Reasonableness of the FBI’s Search
Finally, the FBI, in its Motion for Summary Judgment, also moves for summary judgment
as to the adequacy of its search, arguing that the FBI conducted a reasonable search for
responsive records. See Def.’s MSJ at 11-13. Plaintiff has not responded to this argument in
either his Cross-Motion for Partial Summary Judgment or his Reply, nor has Plaintiff otherwise
disputed the adequacy of the FBI’s search. See generally Pl.’s Cross-MSJ/Opp’n; Pl.’s Reply.
Plaintiff has therefore conceded the issue. Franklin v. Potter, __ F.2d ___, Civ. Act. No. 07-
1205, 2009 Wl 533071, *13 (D.D.C. Mar. 24, 2009) (treating defendant’s argument in motion for
summary judgment as conceded where plaintiff failed to address in his response); Hopkins v.
Women’s Div., General Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is
well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion
and addresses only certain arguments raised by the defendant, a court may treat those arguments
that the plaintiff failed to address as conceded.”), aff’d 98 Fed. Appx. 8 (D.C. Cir. 2004).
Accordingly, the Court shall grant the FBI’s motion for summary judgment with respect to the
reasonableness of the FBI’s search.
IV. CONCLUSION
For the reasons set forth above, the Court shall: (1) GRANT-IN-PART the FBI’s [73]
Motion for Summary Judgment, finding in favor of the FBI with respect to the reasonableness of
49
the FBI’s search for responsive records; (2) DENY-IN-PART the FBI’s [73] Motion for
Summary Judgment and GRANT-IN-PART Plaintiff’s [92] Cross-Motion for Partial Summary
Judgment with respect to the FBI’s denial of Plaintiff’s requests for a full fee waiver, finding in
favor of Plaintiff that the FBI improperly denied his fee waiver requests; and (3) GRANT
Plaintiff’s [105] Motion for an Order Requiring the FBI to Provide a Complete Vaughn Index.
The FBI is therefore required to submit a final and complete Vaughn index that accounts for all
documents in the sample identified by Plaintiff and that fully complies with this Memorandum
Opinion. In addition, in light of the Court’s determination that the FBI must submit a single,
comprehensive Vaughn index, the Court shall DENY WITHOUT PREJUDICE the parties’
cross-motions as they pertain to the merits of the FBI’s withholdings and Plaintiff’s request that
the FBI be required to reprocess all responsive documents. The Court cannot resolve the merits
of these issues until an adequate Vaughn index is compiled. Upon submission of the FBI’s final
Vaughn index, the parties may re-file their cross-motions as to the merits of the FBI’s
withholdings, as appropriate. Accordingly, the parties are required to meet and confer and
submit a joint status report, by no later than April 17, 2009, suggesting a schedule for submission
of a final Vaughn index and, as appropriate, for the filing of dispositive motions with respect to
the merits of the FBI’s withholdings.
Date: March 31, 2009
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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