UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CENTER FOR PUBLIC INTEGRITY
Plaintiff, v. No. 17-cv-2426 (EGS) UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Defendants.
MEMORANDUM OPINION
In 2017, the President nominated Wilbur L. Ross, Jr., as
the Secretary of Commerce and Todd M. Ricketts as the Deputy
Secretary of Commerce. Seeking certain records concerning both
nominees, Plaintiff Center for Public Integrity (“CPI”)
submitted separate requests to the United States Department of
Commerce (“DOC”) and the United States Office of Government
Ethics (“OGE”)—an independent agency within the Executive
Branch. CPI’s request to DOC sought communications between then-
nominee Secretary Ross and DOC’s Ethics Law and Programs
Division staff from November 2016 through the present. CPI filed
two requests with OGE, seeking: (1) records regarding Secretary
Ross’s financial and ethics disclosures as well as his potential
conflicts of interest; and (2) records among OGE employees about
Mr. Ricketts, or between OGE employees and Mr. Ricketts. Unsatisfied with the responses to its requests, CPI filed
this action against DOC and OGE (collectively, the “Defendants”)
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.
CPI concedes that Defendants adequately searched for responsive
documents and properly applied the claimed exemptions under
FOIA. At issue here is whether Defendants released all
reasonably segregable information in certain documents withheld
in full.
Pending before the Court are the parties’ cross-motions for
summary judgment. Upon careful consideration of the parties’
submissions, the applicable law, and the entire record herein,
the Court concludes that Defendants have failed to meet their
burden of demonstrating that all reasonably segregable
information has been disclosed to CPI. Therefore, the Court
GRANTS IN PART and DENIES IN PART Defendants’ Renewed Motion for
Summary Judgment and GRANTS IN PART, DENIES IN PART, and HOLDS
IN ABEYANCE Plaintiff’s Cross-Motion for Summary Judgment.
I. Background
The following facts—drawn from the parties’ submissions—are
undisputed, except where indicated. CPI is a non-profit
organization devoted to “using the tools of investigative
journalism” to “reveal[] abuses of power, corruption and
2 betrayal of public trust.” Compl., ECF No. 1 at 2 ¶ 4. 1 Between
February 2017 and June 2017, CPI employed another tool—FOIA—in
an attempt to unearth certain records concerning Secretary Ross
and Mr. Ricketts. 2 On February 21, 2017, CPI submitted a FOIA
request to DOC, seeking any communications between the Chief of
DOC’s Ethics Law and Program Division, David Maggi, or his
staff, and Commerce Secretary nominee Ross or any of his
representatives. E.g., Decl. of David Maggi (“Maggi Decl.”), ECF
No. 15-2 at 2 ¶ 5; Pl.’s Cross-Mot. for Summ. J. & Opp’n to
Defs.’ Renewed Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 16 at 3
(“The likely date range of the records is Nov. 29, 2016 through
the present.” (citations omitted)). On March 10, 2017, OGE
received a separate request from CPI, seeking any records
pertaining to Secretary Ross’s “financial and ethics disclosures
1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 The Court takes judicial notice that the President nominated Mr. Ross and Mr. Ricketts in January 2017 to serve as the Secretary of Commerce and the Deputy Secretary of Commerce, respectively. See Fed. R. Evid. 201(b); see also Press Release, Nominations Sent to the Senate, White House (Jan. 20, 2017), https://www.whitehouse.gov/presidential-actions/nominations- sent-senate/. Mr. Ross was confirmed as the Secretary of Commerce on February 27, 2017. Groundfish Forum v. Ross, 375 F. Supp. 3d 72, 80 n.7 (D.D.C. 2019). Mr. Ricketts later withdrew his name from consideration. Rebecca Ballhaus, Todd Ricketts, Co-Owner of the Chicago Cubs, Ends Bid for Commerce Post, Wall St. J. (Apr. 20, 2017, 4:34 PM), https://www.wsj.com/articles/todd-ricketts-co-owner-of-the- chicago-cubs-ends-bid-for-commerce-post-1492638729. 3 and potential conflicts of interest.” Decl. of Rachel K. Dowell
(“Dowell Decl.”), ECF No. 15-5 at 2-3 ¶ 9.
In early 2017, OGE received FOIA requests for records
relating to the financial disclosures and potential conflicts of
interest of civilian nominees submitted by the President to the
Senate for confirmation. E.g., Defs.’ Statement of Material
Facts Not in Dispute (“Defs.’ SOMF”), ECF No. 15-7 at 2; Pl.’s
Counter-Statement of Material Facts (“Pl.’s SOMF”), ECF No. 16-1
at 2. On June 14, 2017, OGE received a request from CPI for any
communications between OGE employees regarding Mr. Ricketts, or
from OGE employees to Mr. Ricketts or any of his
representatives. Pl.’s SOMF, ECF No. 16-1 at 1-2 (citing Dowell
Decl., ECF No. 15-5 at 4 ¶ 15).
OGE and DOC subsequently conducted searches of their
systems and shared drives. Pl.’s SOMF, ECF No. 16-1 at 2-3, 4.
Initially, DOC located 437 responsive documents, but released
three responsive documents in June 2017. Id. at 5. Dissatisfied
with those results, CPI administratively appealed DOC’s
withholdings in September 2017. Maggi Decl., ECF No. 15-2 at 3 ¶
9.
On November 9, 2017, CPI brought this action against DOC
and OGE, challenging the responses to its FOIA requests. See
Compl., ECF No. 1 at 3-4 ¶¶ 13-22. In December 2017, OGE
released twenty-four pages of responsive documents, subject to
4 redactions under FOIA Exemptions 5 and 6. Dowell Decl., ECF No.
15-5 at 4 ¶ 17. Since certain responsive records were created by
DOC employees, OGE “referred [those] responsive records that
originated with [DOC] to that Department on December 12, 2017.”
Id. In January 2018, OGE turned over 151 pages, subject to
redactions under FOIA Exemptions 3, 4, 5, and 6, and withheld
177 pages in full, subject to the same claimed exemptions. 3 Id.
at 3 ¶ 12. Subject to redactions under those same FOIA
exemptions, OGE released 238 pages in February 2018, withholding
337 pages in full. Dowell Decl., ECF No. 15-5 at 3 ¶ 13. OGE
then released sixty pages, invoking the same FOIA exemptions,
and withheld in full 539 pages in March 2018. Id. at 3 ¶ 14.
DOC conducted a “line-by-line review” of 6,853 pages of
documents in April 2018, and 5,800 pages of documents in May
2018. Maggi Decl., ECF No. 15-2 at 3 ¶¶ 11-13. Following that
review and CPI’s administrative appeal, DOC released 132
3 Exemption 3 allows an agency to withhold or redact information prohibited from disclosure by another statute if the statute “establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). Exemption 4 exempts from disclosure “trade secrets and commercial or financial information obtained from a person that is privileged or confidential.” Id. § 552(b)(4). Exemption 5 applies to “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” Id. § 552(b)(5). Exemption 6 covers “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Id. § 552(b)(6). 5 documents in full and 130 documents in part, withholding sixty-
three documents in June 2018. Id. at 4 ¶ 14. DOC also released
in part 153 documents that included portions authored by both
DOC and OGE employees, referring CPI to OGE’s release of thirty-
eight e-mail chains totaling 154 pages that were not authored by
DOC employees. Id. Finally, DOC withheld certain documents in
full or in part, invoking Exemptions 3, 4, 5, and 6. See id. at
4-6 ¶¶ 16-24.
The parties filed cross-motions for summary judgment. See
Defs.’ Renewed Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. 15 at
1-23; see also Pl.’s Mot., ECF No. 16 at 1-6. Defendants argue
that they are entitled to summary judgment because there is no
genuine dispute of material fact as to whether the agencies:
(1) conducted adequate and reasonable searches; (2) produced all
non-exempt, responsive documents; and (3) satisfied their
obligations to segregate exempt from non-exempt information.
Defs.’ Mot., ECF No. 15 at 9, 22. Defendants submitted
declarations as well as indices of responsive records under
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (the “Vaughn
indices”). 4 E.g., Ex. 1, Dowell Decl., ECF No. 15-6 at 1-164; Ex.
1, Maggi Decl., ECF No. 15-3 at 1-72; Ex. 2, Maggi Decl., ECF
4 “A Vaughn index describes the documents withheld or redacted and the FOIA exemptions invoked, and explains why each exemption applies.” Prison Legal News v. Samuels, 787 F.3d 1142, 1145 n.1 (D.C. Cir. 2015) (citations omitted). 6 No. 15-4 at 1-4. The Vaughn indices list the records released
and those withheld, in whole or in part, under the FOIA
exemptions. CPI neither contests the adequacy of the searches,
nor challenges the applicability of the claimed exemptions.
Pl.’s Mot., ECF No. 16 at 2, 5; see also Pl.’s Reply, ECF No. 20
at 1-2. Rather, CPI argues that “Defendants have not released
all reasonably segregable non-exempt information.” Pl.’s Mot.,
ECF No. 16 at 2. The briefing is now complete, and the parties’
cross-motions for summary judgment are ripe and ready for the
Court’s adjudication.
II. Legal Standard
The “vast majority” of FOIA cases can be resolved on
summary judgment. Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court may
grant summary judgment only if “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Likewise, in ruling on
cross-motions for summary judgment, the court shall grant
summary judgment only if one of the moving parties is entitled
to judgment as a matter of law upon material facts that are not
genuinely disputed. See Citizens for Responsibility & Ethics in
Wash. v. U.S. Dep’t of Justice, 658 F. Supp. 2d 217, 224 (D.D.C.
2009) (citation omitted). Under FOIA, “the underlying facts and
the inferences to be drawn from them are construed in the light
7 most favorable to the FOIA requester[,]” and summary judgment is
appropriate only after “the agency proves that it has fully
discharged its [FOIA] obligations . . . .” Moore v. Aspin, 916
F. Supp. 32, 35 (D.D.C. 1996) (citations omitted).
When considering 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). The court may grant summary judgment
based on information provided in an agency’s affidavits or
declarations when they are “relatively detailed and non-
conclusory,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991) (citation omitted), and “not controverted by
either contrary evidence in the record nor by evidence of agency
bad faith,” Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981). Such affidavits or declarations are “accorded
a presumption of good faith, which cannot be rebutted by ‘purely
speculative claims about the existence and discoverability of
other documents.’” SafeCard Servs., 926 F.2d 1197 at 1200
(citation omitted).
III. Analysis
As the summary judgment briefing makes clear, the only
issue in dispute is whether Defendants have disclosed all
reasonably segregable, non-exempt information that is responsive
to CPI’s requests. See, e.g., Pl.’s Reply, ECF No. 20 at 1;
Defs.’ Reply in Support of Defs.’ Mot. & Opp’n to Pl.’s Mot.
8 (“Defs.’ Opp’n”), ECF No. 18 at 1-2. 5 Defendants urge the Court
to find that they fulfilled their duty to segregate exempt from
non-exempt information. Defs.’ Mot., ECF No. 15 at 22. Relying
on OGE and DOC’s examination of the records, Defendants contend
that they “determined that all reasonably segregable non-exempt
information was disclosed and that the information withheld
could not be segregated and released.” Id. (citing Dowell Decl.,
ECF No. 15-5 at 13 ¶ 47; Maggi Decl., ECF No. 15-2 at 6 ¶¶ 25-
27). To support their position, Defendants argue that they
“submitted detailed Vaughn indices describing every document
withheld in full.” Defs.’ Opp’n, ECF No. 18 at 2.
CPI challenges Defendants’ segregability decisions, arguing
that “Defendants have provided only conclusory assertions, that
they have reviewed the documents page by page and line by line
5 CPI does not challenge the adequacy of the searches or the claimed FOIA exemptions. Pl.’s Mot., ECF No. 16 at 2 (“[CPI] does not contest the adequacy of Defendants’ search for responsive records.”); id. at 5 (“[CPI] will not contest the applicability of the FOIA exemptions that Defendants have claimed.”). The Court therefore finds that CPI has conceded these issues. See Cavezza v. U.S. Dep’t of Justice, 113 F. Supp. 3d 271, 276 (D.D.C. 2015) (finding that the plaintiff conceded the issues of the search and claimed exemptions where he neither contested the adequacy of the search nor “challenge[d] any of [the] redactions or the claimed exemptions”); see also Campbell v. Nat’l R.R. Passenger Corp., 311 F. Supp. 3d 281, 327 (D.D.C. 2018) (“Plaintiffs do not offer any response to this argument, and thus concede it.”). Accordingly, the Court GRANTS Defendants’ motion for summary judgment with respect to the adequacy of Defendants’ searches and their claimed FOIA exemptions. 9 and can release no additional non-exempt information.” Pl.’s
Mot., ECF No. 16 at 5. CPI states that “Defendants have applied
the exemptions too broadly and have not established that they
are justified in withholding documents in full.” Id. CPI points
to “segregable non-exempt information contained in several
documents that have been withheld in full.” Pl.’s Reply, ECF No.
20 at 1. CPI asserts that “there remain several e-mails,
memoranda and letters that have been withheld in full,” id., but
information in those documents is “easily segregable” because
Defendants include certain information—dates, names of senders,
recipients, and subject-matter descriptions—in their Vaughn
indices. 6 Id. at 1-2.
6 The remaining dispute involves a narrow set of documents withheld in full, which includes letters, e-mails, and memoranda. See, e.g., Defs.’ Opp’n, ECF No. 18 at 3 (citing Ex. 1, Maggi Decl., ECF No. 15-3 at 60, 64, 69, 71, 72; Ex. 1, Dowell Decl., ECF No. 15-6 at 30); Pl.’s Reply, ECF No. 20 at 1 n.1. Defendants state that “the vast majority of records withheld in full by Defendants consist[s] of draft documents, such as drafts of an ethics agreement, draft appendices to an ethics agreement, and draft financial disclosure forms.” Defs.’ Opp’n, ECF No. 18 at 3. Within that set of documents, CPI does not challenge the draft documents withheld in their entirety. Pl.’s Reply, ECF No. 20 at 1 (“Plaintiff accepts that the draft documents at issue here are predecisional and deliberative.”); see also Defs.’ Opp’n, ECF No. 18 at 3 (arguing that “settled law protects the entirety of the drafts from disclosure.”). Because CPI does not contest that the draft documents were properly withheld under the claimed FOIA exemptions, the Court GRANTS Defendants’ motion for summary judgment and DENIES CPI’s cross-motion for summary judgment with respect to the withholdings that consist of draft documents. 10 A. Segregability
The Court has an “affirmative duty” to consider whether
Defendants have satisfied their segregability obligations.
Trans–Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d
1022, 1028 (D.C. Cir. 1999). Under FOIA, if a record contains
some information that is exempt from disclosure, any reasonably
segregable information not exempt from disclosure must be
released after deleting the exempt portions, unless the non-
exempt portions are inextricably intertwined with exempt
portions. Trans–Pac., 177 F.3d at 1027. The Court may rely on
the agency’s descriptions of the withheld records and its
declaration that it has released all segregable information to
conclude that the agency has fulfilled its obligation to show
with “reasonable specificity” why documents cannot be further
segregated. Loving v. U.S. Dep’t of Defense, 550 F.3d 32, 41
(D.C. Cir. 2008) (citation omitted). Nevertheless, an agency
must provide “a detailed justification and not just conclusory
statements to demonstrate that all reasonably segregable
information has been released.” Valfells v. CIA, 717 F. Supp. 2d
110, 120 (D.D.C. 2010) (citation and internal quotation marks
omitted).
“Agencies are entitled to a presumption that they complied
with the obligation to disclose reasonably segregable material,”
which must be overcome by some “quantum of evidence” from the
11 FOIA requester. Sussman v. U.S. Marshals Serv., 494 F. 3d 1106,
1117 (D.C. Cir. 2007). Here, CPI argues that Defendants have
failed to provide a “factual basis” for this Court to evaluate
whether all reasonably segregable information has been produced.
Pl.’s Mot., ECF No. 16 at 5. CPI notes that “OGE has withheld at
least 1,053 pages in full” and “[DOC] has withheld at least 469
pages in full.” 7 Id. (citing Dowell Decl., ECF No. 15-5 at 3 ¶
12-14; Maggi Decl., ECF No. 15-2 at 4 ¶ 14). According to CPI,
“[i]t does not seem possible that no non-exempt information can
be released from these documents” because the names of senders
and recipients, dates, titles, and subject lines are not exempt.
Id. CPI points out that “[DOC] and OGE have in many cases
apparently listed this information in Vaughn indexes.” Id.
To the contrary, Defendants assert that they have reviewed
the responsive documents and deemed that all non-exempt and
segregable information has been released to CPI. See Defs.’
Mot., ECF No. 15 at 22 (citing Dowell Decl., ECF No. 15-5 at 13
¶ 47; Maggi Decl., ECF No. 15-2 at 6 ¶¶ 25-27). Defendants argue
that they are entitled to the presumption of compliance with
7 The number of pages withheld in full include the uncontested draft documents. Compare Pl.’s Mot., ECF No. 16 at 5, with Pl.’s Reply, ECF No. 20 at 1. Because CPI does not contest that the draft documents were properly withheld under the claimed FOIA exemptions, see Pl.’s Reply, ECF No. 20 at 1, the estimates in CPI’s cross-motion for summary judgment do not accurately reflect the total number of disputed documents. 12 their segregability obligations because CPI has not offered any
evidence to rebut that presumption. Defs.’ Opp’n, ECF No. 18 at
2. Defendants take issue with CPI’s suggestion that Defendants
should have released the names of senders and recipients in e-
mails and memoranda, the dates on the documents, and the titles
of the documents or subject lines. Id. at 2-3. Defendants
contend that there is no obligation to release such information
because “[CPI] has not made any showing that there was
informational value in releasing fragments of information from
these records . . . where the content of the communications was
withheld.” Id. at 3. Defendants argue that “[CPI] concedes . . .
that Defendants submitted declarations stating that agency
personnel reviewed the documents page by page and line by line
to determine whether additional information could be segregated
and released and determined that it could not.” Id. at 2.
It is undisputed that the declarations aver that DOC and
OGE took a line-by-line and page-by-page approach in reviewing
the responsive records. E.g., Dowell Decl., ECF No. 15-5 at 13 ¶
47 (“With respect to each of the responsive documents, OGE’s
FOIA staff conducted a page-by-page, line-by-line review.”);
Maggi Decl., ECF No. 15-2 at 6 ¶ 25 (“[DOC] carefully reviewed
each responsive record on a page by page and line by line basis
in an attempt to identity reasonably segregable, non-exempt
information.”). “Regardless of whether a declaration that an
13 agency conducted a ‘line-by-line’ search is sufficient to
satisfy an agency’s obligations in and of itself, a statement
representing that a ‘line-by-line’ search was conducted along
with a sufficiently detailed Vaughn index and declarations
enumerating the reasons why each document was properly withheld
is ‘sufficient to fulfill the agency’s obligation’ regarding
segregability.” ViroPharma Inc. v. Dep’t of Health & Human
Servs., 839 F. Supp. 2d 184, 195 (D.D.C. 2012) (citations
omitted). “[A] blanket declaration that all facts are so
intertwined to prevent disclosure under the FOIA does not
constitute a sufficient explanation of non-segregability.” Ctr.
for Biological Diversity v. EPA, 279 F. Supp. 3d 121, 152
(D.D.C. 2017) (quoting Wilderness Soc’y v. U.S. Dep’t of
Interior, 344 F. Supp. 2d 1, 19 (D.D.C. 2004)). “Rather, for
each entry the defendant is required to ‘specify in detail which
portions of the document are disclosable and which are allegedly
exempt.’” Wilderness Soc’y, 344 F. Supp. 2d at 19. (quoting
Animal Legal Def. Fund, Inc. v. U.S. Dep’t of Air Force, 44 F.
Supp. 2d 295, 302 (D.D.C. 1999) (emphasis in original)).
Having completed a review of the Vaughn indices and the
declarations submitted in support of Defendants’ motion for
summary judgment, the Court finds that the presumption that OGE
and DOC complied with their segregability obligations is
overcome by their failure to provide sufficient justifications
14 for each document withheld in full. See Hardy v. Bureau of
Alcohol, Tobacco, Firearms & Explosives, 243 F. Supp. 3d 155,
178 (D.D.C. 2017). Defendants have failed to meet their burden
of “prov[ing] that no segregable information exists.” Wilderness
Soc’y, 344 F. Supp. 2d at 19. For the reasons articulated below,
OGE’s Vaughn index does not meet the non-segregability test, and
DOC’s Vaughn indices fall short of that test. See id. Defendants
also do not demonstrate that they properly withheld the non-
exempt “header” information in the disputed documents.
1. OGE’s Vaughn Index Is Deficient
With regard to OGE’s Vaughn index, the parties point to a
letter as an e-mail attachment, dated January 9, 2017, that OGE
withheld in full. Defs.’ Opp’n, ECF No. 18 at 3 n.1 (citing Ex.
1, Dowell Decl., ECF No. 15-6 at 30); see also Pl.’s Reply, ECF
No. 20 at 1 n.1. The letter does not fall within the category of
uncontested “draft documents” because the Vaughn index does not
describe it as a draft letter. Compare Ex. 1, Dowell Decl., ECF
No. 15-6 at 30, with Ex. 1, Maggi Decl., ECF No. 15-3 at 69
(withholding in full the “Draft YG Letter” under Exemption 5).
The Vaughn index states that “[t]his document is a two page PDF
letter, which was submitted to OGE and [DOC] by Wilbur Ross as
part of the process of drafting his ethics agreement. It
contains additional information about financial matters
referenced on his draft financial disclosure report.” Ex. 1,
15 Dowell Decl., ECF No. 15-6 at 30. It also states: “[t]he letter
is protected under Exemption 4 because it contains confidential
financial information that was obtained from Mr. Ross as part of
the process of drafting his ethics agreement. This information
would not otherwise be available to the public on a financial
disclosure report, ethics agreement, or other disclosure.” Id.
In an across-the-board declaration as to the segregability
issue, OGE’s declarant attests that the agency “determined that
no additional information can be released without jeopardizing
information that falls within the scope of one or more FOIA
exemptions described above.” Dowell Decl., ECF No. 15-5 at 13 ¶
47. This conclusory statement is insufficient to satisfy OGE’s
burden with respect to FOIA’s segregability requirements. See
Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728,
734 (D.C. Cir. 2008) (explaining that an agency’s “conclusion on
a matter of law is not sufficient support for a court to
conclude that the self-serving conclusion is the correct one”);
see also Comptel v. FCC, 910 F. Supp. 2d 100, 114 (D.D.C. 2012)
(finding that an agency’s Vaughn index and declaration were
insufficient where the Vaughn index did not indicate that all
reasonably segregable information had been released for each
document and the declaration contained conclusory assertions to
justify withholding information). OGE’s declaration fails to
demonstrate that no segregable, non-exempt information exists
16 within the two-page letter. See Ex. 1, Dowell Decl., ECF No. 15-
6 at 30. Given that “an agency cannot justify withholding an
entire document simply by showing that it contains some exempt
material,” Mead Data Cent., Inc. v. U.S. Dep’t. of Air Force,
566 F.2d 242, 260 (D.C. Cir. 1977), the Court agrees with CPI
that it is possible that some of the information contained in
the letter and the other documents withheld in full should be
released. See Vaughn, 484 F.2d at 825 (“[A]n entire document is
not exempt merely because an isolated portion need not be
disclosed . . . . [T]he agency may not sweep a document under a
general allegation of exemption . . . . It is quite possible
that part of a document should be kept secret while part should
be disclosed.”).
As it stands, OGE’s Vaughn index does not indicate that the
non-exempt information is “inextricably intertwined with exempt
portions” to justify withholding each document in full. Mead
Data, 566 F.2d at 260. The Court need not identify every entry
in the Vaughn index to determine whether it is deficient.
Wilderness Soc’y, 344 F. Supp. 2d at 19 n.17 (“Such information
is clearly either present or not in a document and the
defendants can surely locate the deficient entries in the Vaughn
index without this Court listing each of them.”). OGE’s
declaration and its Vaughn index do not provide a sufficient
justification and enough details for withholding the documents
17 in their entirety. See Gatore v. U.S. Dep’t of Homeland Sec.,
177 F. Supp. 3d 46, 52 (D.D.C. 2016) (“[T]he possibility that
the defendant now simply refuses to release [the documents], as
a whole, regardless of their specific contents, and contrary to
the representation that each responsive document received a
line-by-line review, represents a ‘quantum of evidence’ that
overrides the presumption in favor of the agency’s segregability
determination.”). The Court is unable to evaluate whether any
non-exempt portions are inextricably intertwined with exempt
portions. See Mead Data, 566 F.2d at 260–61. The Court therefore
finds that OGE has not met the non-segregability test.
2. DOC’s Vaughn Indices Are Deficient
DOC’s Vaughn indices fail to provide sufficient details in
the descriptions of the factual materials contained in the
documents withheld in full to allow this Court to determine that
DOC has satisfied its segregability obligations. See Ctr. for
Biological Diversity, 279 F. Supp. 3d at 152. The parties
identify an e-mail, dated December 26, 2016, as an example of
the disputed documents that DOC withheld in full. See Defs.’
Opp’n, ECF No. 18 at 3 (citing Ex. 1, Maggi Decl., ECF No. 15-3
at 60); see also Pl.’s Reply, ECF No. 20 at 1 n.1. The Vaughn
index describes the e-mail from Theodore Kassinger to David
Maggi as “[c]onference call information” that is withheld in
full under Exemption 4. Ex. 1, Maggi Decl., ECF No. 15-3 at 60.
18 The Vaughn index states that the basis for the assertion of the
exemption is that “[t]he withheld records [are] comprise[d] [of]
deliberations conference call numbers and passcodes.” Id.
(emphasis added). It provides nothing else. See id. There is no
information in the Vaughn index about the “deliberations”
contained in the e-mail. See id. The Vaughn index does not
answer the question of whether any exempt portions can be
redacted. See id.
Similarly, the descriptions in the Vaughn index do not
provide sufficient information about documents withheld in full
that fall outside of the narrow set of “draft documents.” See
id. at 69, 71, 72. The Vaughn index fails to identify the
authors of some documents and leaves out the number of pages for
each document. See id. at 69, 71, 72. As such, those entries are
deficient. See Wilderness Soc’y, 344 F. Supp. 2d at 15 n. 13
(finding that challenged entries in a Vaughn index were
deficient because, inter alia, the entries did not identify the
authors); see also Ctr. for Biological Diversity, 279 F. Supp.
3d at 144 (“[T]ypically, a comprehensive Vaughn index will at
least include the following information: “(1) an index
identification number [(i.e., a Bates stamp number)]; (2) the
document’s subject; (3) its date; (4) the author; (5) the
recipient; (6) the total number of pages; . . . ([7]) the
disposition (that is, whether entirely or partially withheld);
19 ([8]) the reason for being withheld; ([9]) the statutory
authority for the withholding; and ([10]) the number of pages
containing withheld information.” (quoting Judicial Watch, Inc.
v. FDA, 449 F.3d 141, 146–47 (D.C. Cir. 2006)). “Both
substantively and structurally, [DOC’s] two Vaughn indices are
patently insufficient.” Id.
DOC’s declaration is equally problematic. In general terms,
DOC’s declarant avers that “[t]here is no further reasonably
segregable information to be released and all segregable
information has been released to [CPI]. Further disclosure of
these records would adversely affect the candor of future agency
deliberations.” Maggi Decl., ECF No. 15-2 at 6 ¶ 27. However,
“[t]he declarations must afford the plaintiff ‘a meaningful
opportunity to contest, and the district court an adequate
foundation to review, the soundness of the withholding.’”
Wilderness Soc’y, 344 F. Supp. 2d at 19 (quoting King v. U.S.
Dep’t of Justice, 830 F.2d 210, 218 (D.C. Cir. 1987)). Because
DOC’s Vaughn indices do not give CPI an opportunity to challenge
the information withheld in the documents, the Court finds that
DOC has failed to demonstrate that the information is not
reasonably segregable. “Accordingly, if [DOC] intends to
withhold any document, in full or part, and disclaims any
segregable information, [DOC] must provide a particularized
explanation of non-segregability for each document.” Ctr. for
20 Biological Diversity, 279 F. Supp. 3d at 152 (emphasis in
original).
3. Release of the Header Information
“Non-exempt information intertwined with exempt information
does not need to be released when doing so would ‘produce only
incomplete, fragmented, unintelligible sentences composed of
isolated, meaningless words.’” Judicial Watch, Inc. v. U.S.
Dep’t of Treasury, 796 F. Supp. 2d 13, 29 (D.D.C. 2011) (quoting
Brown v. U.S. Dep’t of Justice, 734 F. Supp. 2d 99, 111 (D.D.C.
2010)); see also Mead Data, 566 F.2d at 261 n.55 (“[A] court may
decline to order an agency to commit significant time and
resources to the separation of disjointed words, phrases, or
even sentences which taken separately or together have minimal
or no information content.”).
As previously stated, the disputed documents, which include
e-mails, letters, and memoranda, have been withheld in full.
Defendants argue that the agencies have “no obligation” to
release “senders, recipients, dates, and subject lines from [the
disputed] documents.” Defs.’ Opp’n, ECF No. 18 at 3. Defendants
maintain that there is no requirement to segregate such
information because CPI has failed to show that there was
“informational value” in disclosing “fragments of information”
from those documents. Id. CPI disagrees.
CPI argues that the “header information,” which consists of
21 names of senders and recipients, titles, subject-matter
descriptions, is non-exempt information that can be reasonably
segregable with “minimal time and effort” for three primary
reasons. Pl.’s Reply, ECF No. 20 at 2. First, the header
information is non-exempt information that “is distributed in
logically related groupings.” Id. (quoting Mead Data, 566 F.2d
at 261). Next, the header information has more than minimal or
no information content because “the sender’s name on an email or
letter communicates the identity of the person writing and
sending it” and the creators of the documents include titles and
subject fields with specific meanings. Id. Finally, “[a]gencies
may not substitute their own judgment of what information will be
helpful to the requester, in place of the requirement under FOIA to
provide all meaningful information.” Id. (citing Stolt-Nielsen, 534
F.3d at 734; Antonelli v. BOP, 623 F. Supp. 2d 55, 60 (D.D.C.
2009)). The Court agrees.
In Judicial Watch, Inc. v. United States Department of the
Treasury, the agency withheld in full a committee’s meeting
minutes that consisted of internal deliberations of the
committee. 796 F. Supp. 2d at 28-29. After conducting an in
camera inspection of those documents, the court determined that
those portions of the minutes regarding the committee’s internal
deliberative process were properly withheld. Id. at 29. The
court, however, found that the agency “improperly withheld
22 reasonably segregable information in the minutes—namely, the
headers at the top of each set of minutes that list the date and
time of the meeting, the names of the . . . [c]ommittee members
present, and the names of observers.” Id. The court also found
that the agency’s explanation—that the “Vaughn Index indicate[d]
that the minutes were withheld in full because ‘there is no
meaningful, reasonably segregable portion of the document[s]
that can be released’”—did not “satisfy the [agency’s] burden of
proving that the headers at the top of each set of minutes that
list[ed] the date and names of attendees [were] not reasonably
segregable from the rest of the minutes.” Id. (citation
omitted). The court ordered the agency to release the header
information because “[r]elease of [those] headers would not
create such indecipherable sentences; the headers [were] at the
top of each page and [were] easily separable from the exempt
portions of the minutes.” Id.
The same is true here. Given the narrow set of disputed
documents in this case, the Court agrees with CPI that the
header information is easily segregable from the exempt portions
of the disputed documents. See id. Defendants’ argument—that
releasing the header information would somehow result in
fragments with no meaning, see Defs.’ Opp’n, ECF No. 18 at 3—is
inconsistent with D.C. Circuit precedent. See Stolt-Nielsen, 534
F.3d at 734 (holding that it is not a justification for an
23 agency to “argue[] that the redacted documents without names and
dates would provide no meaningful information” because “FOIA
does not require that information must be helpful to the
requestee before the government must disclose it. FOIA mandates
disclosure of information, not solely disclosure of helpful
information.”); see also Elec. Privacy Info. Ctr. v. U.S. Dep’t
of Homeland Sec., 926 F. Supp. 2d 311, 316 (D.D.C. 2013) (“The
nonexempt (and concededly segregable) information here has
meaning, and the agency may not withhold information simply
because its ‘value to the requestor’ may be low.” (quoting Mead
Data, 566 F.2d at 261 n. 55)). Furthermore, Defendants do not
argue that segregating the non-exempt, header information from
the exempt portions of the documents withheld in full would
require DOC and OGE “to commit significant time and resources.”
Mead Data, 566 F.2d at 261 n.55; see generally Defs.’ Opp’n, ECF
No. 18. The Court therefore concludes that Defendants must
disclose the header information in the disputed documents—dates,
names of senders and recipients, titles, and subject-matter
descriptions—that is segregable and non-exempt. Accordingly, the
Court DENIES IN PART Defendants’ motion for summary judgment.
* * *
The Court directs Defendants to submit amended Vaughn
indices and declarations that reevaluate the segregability issue
for all non-draft documents that were withheld in full. See
24 Gatore, 177 F. Supp. 3d at 53; cf. Am. Immigration Lawyers Ass’n
v. U.S. Dep’t of Homeland Sec., 852 F. Supp. 2d 66, 82 (D.D.C.
2012) (“Because a district court should not undertake in camera
review of withheld documents as a substitute for requiring an
agency’s explanation of its claims exemptions in accordance with
Vaughn, the Court finds that the best approach is to direct
defendants to submit revised Vaughn submissions.” (citations
omitted)). As set forth in Center for Biological Diversity v.
EPA, this Court prescribes the following format for the amended
Vaughn indices:
[A]ny supplemental Vaughn index [must] include a separate numbered entry for each document, including for each email (or email chain) and for each email attachment (which shall be separately listed in consecutive order after its associated email): (1) a document number; (2) an index identification number (i.e., a Bates stamp number); (3) the document’s subject or title; (4) its date; (5) the author and the author’s job title; (6) the recipient and the recipient’s job title; (7) the total number of pages; (8) the disposition (whether it is entirely or partially withheld); (9) the reason for being withheld; (10) the statutory authority for the withholding; and (11) the number of pages with redacted, withheld information.
279 F. Supp. 3d at 145 (citing Judicial Watch v. FDA, 449 F.3d
at 146–47). Accordingly, the Court HOLDS IN ABEYANCE CPI’s
cross-motion for summary judgment with respect to the header
information in the portions of the documents withheld in full.
25 IV. Conclusion
For the reasons set forth above, the Court GRANTS IN PART
and DENIES IN PART Defendants’ motion for summary judgment. The
Court GRANTS IN PART, DENIES IN PART, and HOLDS IN ABEYANCE
Plaintiff’s cross-motion for summary judgment. Within sixty days
of the issuance of this Memorandum Opinion, Defendants shall
submit amended Vaughn indices and declarations. A separate Order
accompanies this Memorandum Opinion.
SO ORDERED
Signed: Emmet G. Sullivan United States District Judge August 8, 2019