UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRENT G. POLL,
Plaintiff-Appellant,
v. No. 99-4021
U.S. OFFICE OF SPECIAL COUNSEL,
Defendant-Appellee.
ORDER Filed January 10, 2000
Before BRORBY , EBEL , and HENRY , Circuit Judges.
This matter comes before the court on Plaintiff-appellant Brent G. Poll’s
“Motion for Clarification.” Upon consideration, the motion is denied. However,
on its own motion the panel amends the order and judgment entered on
October 14, 1999, as follows:
1. By deleting the following sentence in the first full paragraph of section I
of the order and judgment: “Poll complained that he had been detailed to a
position for which he was not actually qualified, resulting in his reassignment to
an undesirable geographical location.” 2. By adding the following sentence to the first paragraph of Section III of
the order and judgment (new language in bold; entire new paragraph reproduced
below as follows):
“The FOIA allows the district court flexibility in utilizing in camera review of the disputed documents, indexing, oral testimony, detailed affidavits, or alternative procedures to determine whether a sufficient factual basis exists for evaluating the correctness of the agency determination in each case.” Anderson , 907 F.2d at 942 (quotation omitted). It does not appear that the district court conducted an in camera review of the disputed documents in this case. The disputed documents do not appear in the record, and we are therefore also unable to review them in camera. Instead, the OSC submitted an affidavit from its associate special counsel, Erin McDonnell, identifying the two memoranda which OSC had withheld from Poll, and setting forth facts in support of withholding them.
A copy of the amended order and judgment is attached.
The mandate shall issue forthwith.
Entered for the Court PATRICK FISHER, Clerk of Court
By: Keith Nelson Deputy Clerk
-2- F I L E D United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS OCT 14 1999
FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
v. No. 99-4021 (D.C. No. 96-CV-17) U.S. OFFICE OF SPECIAL (D. Utah) COUNSEL,
ORDER AND JUDGMENT *
Before BRORBY, EBEL , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Plaintiff Brent G. Poll appeals from the district court’s order granting
summary judgment in favor of the United States Office of Special Counsel (OSC)
on Poll’s complaint pursuant to the Freedom of Information Act, 5 U.S.C. § 552
(FOIA). We affirm in part, reverse in part, and remand for further proceedings.
I.
Poll is a former Management Analyst for the Department of Defense. In
August 1994 he filed a complaint with the OSC charging that he had been granted
an authorized preference or advantage in violation of 5 U.S.C. § 2302. Penney M.
Moy, a personnel management specialist with OSC, reviewed the allegations and
supporting documentation, spoke with Poll personally, and prepared a brief
written summary of the allegations and facts. Leonard M. Dribinsky, an OSC
prosecutor, later determined that the matter did not warrant further field
investigation and in July 1995, the matter was closed.
On June 20, 1995, Poll submitted a FOIA/Privacy Act request to OSC. He
requested a copy of all OSC file numbers for 1994 and 1995 and the status of
those files. Additionally, he requested copies of all materials or records
associated with OSC file number MA-94-1974, the investigative file concerning
his complaint.
-2- The OSC responded on November 21, 1995, by granting his request in part.
It supplied him with all of the OSC file numbers for 1994 and 1995 and the status
of those files. It also granted him access to materials contained in file number
MA-94-1974, with the exception of OSC internal memoranda and correspondence
control documents.
On November 29, 1995, Poll undertook an administrative appeal of the
denial of the internal memoranda. 1 The OSC received the appeal on December 7,
1995. By letter dated January 31, 1995, it notified Poll that there was a backlog
in processing FOIA matters and that it hoped to resolve his appeal within the next
month. On March 5, 1996, Poll filed this complaint in district court, complaining
that the OSC had failed to meet statutory time requirements for responding to his
FOIA appeal, and that it had wrongfully withheld the internal memoranda. The
complaint sought disclosure of the memoranda and payment of Poll’s costs of
bringing the action. The OSC later denied his administrative appeal on March 15,
1996. The district court ultimately agreed with the OSC that the documents were
protected from disclosure by the deliberative process, attorney work product and
law enforcement privileges of FOIA.
II.
1 Poll did not pursue the denial of the control documents in his appeal.
-3- On appeal in a FOIA case, our initial inquiry is “whether the district court
had an adequate factual basis on which to base its decision.” See Anderson v.
Department of Health & Human Servs. , 907 F.2d 936, 942 (10th Cir. 1990).
Assuming this prerequisite is met, in a summary judgment case such as this one,
we next “review de novo the district court’s legal conclusions that the requested
materials are covered by the relevant FOIA exemptions.” See Hale v. United
States Dep’t of Justice , 99 F.3d 1025, 1029 (10th Cir. 1996) (citation omitted).
As in all summary judgment cases, we examine the record and reasonable
inferences therefrom in the light most favorable to the nonmoving party. See id.
III.
“The FOIA allows the district court flexibility in utilizing in camera review
of the disputed documents, indexing, oral testimony, detailed affidavits, or
alternative procedures to determine whether a sufficient factual basis exists for
evaluating the correctness of the agency determination in each case.” Anderson ,
907 F.2d at 942 (quotation omitted). It does not appear that the district court
conducted an in camera review of the disputed documents in this case. The
disputed documents do not appear in the record, and we are therefore also unable
to review them in camera. Instead, the OSC submitted an affidavit from its
associate special counsel, Erin McDonnell, identifying the two memoranda which
-4- OSC had withheld from Poll, and setting forth facts in support of withholding
them.
Where an agency relies on an affidavit to justify withholding of documents
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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRENT G. POLL,
Plaintiff-Appellant,
v. No. 99-4021
U.S. OFFICE OF SPECIAL COUNSEL,
Defendant-Appellee.
ORDER Filed January 10, 2000
Before BRORBY , EBEL , and HENRY , Circuit Judges.
This matter comes before the court on Plaintiff-appellant Brent G. Poll’s
“Motion for Clarification.” Upon consideration, the motion is denied. However,
on its own motion the panel amends the order and judgment entered on
October 14, 1999, as follows:
1. By deleting the following sentence in the first full paragraph of section I
of the order and judgment: “Poll complained that he had been detailed to a
position for which he was not actually qualified, resulting in his reassignment to
an undesirable geographical location.” 2. By adding the following sentence to the first paragraph of Section III of
the order and judgment (new language in bold; entire new paragraph reproduced
below as follows):
“The FOIA allows the district court flexibility in utilizing in camera review of the disputed documents, indexing, oral testimony, detailed affidavits, or alternative procedures to determine whether a sufficient factual basis exists for evaluating the correctness of the agency determination in each case.” Anderson , 907 F.2d at 942 (quotation omitted). It does not appear that the district court conducted an in camera review of the disputed documents in this case. The disputed documents do not appear in the record, and we are therefore also unable to review them in camera. Instead, the OSC submitted an affidavit from its associate special counsel, Erin McDonnell, identifying the two memoranda which OSC had withheld from Poll, and setting forth facts in support of withholding them.
A copy of the amended order and judgment is attached.
The mandate shall issue forthwith.
Entered for the Court PATRICK FISHER, Clerk of Court
By: Keith Nelson Deputy Clerk
-2- F I L E D United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS OCT 14 1999
FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
v. No. 99-4021 (D.C. No. 96-CV-17) U.S. OFFICE OF SPECIAL (D. Utah) COUNSEL,
ORDER AND JUDGMENT *
Before BRORBY, EBEL , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Plaintiff Brent G. Poll appeals from the district court’s order granting
summary judgment in favor of the United States Office of Special Counsel (OSC)
on Poll’s complaint pursuant to the Freedom of Information Act, 5 U.S.C. § 552
(FOIA). We affirm in part, reverse in part, and remand for further proceedings.
I.
Poll is a former Management Analyst for the Department of Defense. In
August 1994 he filed a complaint with the OSC charging that he had been granted
an authorized preference or advantage in violation of 5 U.S.C. § 2302. Penney M.
Moy, a personnel management specialist with OSC, reviewed the allegations and
supporting documentation, spoke with Poll personally, and prepared a brief
written summary of the allegations and facts. Leonard M. Dribinsky, an OSC
prosecutor, later determined that the matter did not warrant further field
investigation and in July 1995, the matter was closed.
On June 20, 1995, Poll submitted a FOIA/Privacy Act request to OSC. He
requested a copy of all OSC file numbers for 1994 and 1995 and the status of
those files. Additionally, he requested copies of all materials or records
associated with OSC file number MA-94-1974, the investigative file concerning
his complaint.
-2- The OSC responded on November 21, 1995, by granting his request in part.
It supplied him with all of the OSC file numbers for 1994 and 1995 and the status
of those files. It also granted him access to materials contained in file number
MA-94-1974, with the exception of OSC internal memoranda and correspondence
control documents.
On November 29, 1995, Poll undertook an administrative appeal of the
denial of the internal memoranda. 1 The OSC received the appeal on December 7,
1995. By letter dated January 31, 1995, it notified Poll that there was a backlog
in processing FOIA matters and that it hoped to resolve his appeal within the next
month. On March 5, 1996, Poll filed this complaint in district court, complaining
that the OSC had failed to meet statutory time requirements for responding to his
FOIA appeal, and that it had wrongfully withheld the internal memoranda. The
complaint sought disclosure of the memoranda and payment of Poll’s costs of
bringing the action. The OSC later denied his administrative appeal on March 15,
1996. The district court ultimately agreed with the OSC that the documents were
protected from disclosure by the deliberative process, attorney work product and
law enforcement privileges of FOIA.
II.
1 Poll did not pursue the denial of the control documents in his appeal.
-3- On appeal in a FOIA case, our initial inquiry is “whether the district court
had an adequate factual basis on which to base its decision.” See Anderson v.
Department of Health & Human Servs. , 907 F.2d 936, 942 (10th Cir. 1990).
Assuming this prerequisite is met, in a summary judgment case such as this one,
we next “review de novo the district court’s legal conclusions that the requested
materials are covered by the relevant FOIA exemptions.” See Hale v. United
States Dep’t of Justice , 99 F.3d 1025, 1029 (10th Cir. 1996) (citation omitted).
As in all summary judgment cases, we examine the record and reasonable
inferences therefrom in the light most favorable to the nonmoving party. See id.
III.
“The FOIA allows the district court flexibility in utilizing in camera review
of the disputed documents, indexing, oral testimony, detailed affidavits, or
alternative procedures to determine whether a sufficient factual basis exists for
evaluating the correctness of the agency determination in each case.” Anderson ,
907 F.2d at 942 (quotation omitted). It does not appear that the district court
conducted an in camera review of the disputed documents in this case. The
disputed documents do not appear in the record, and we are therefore also unable
to review them in camera. Instead, the OSC submitted an affidavit from its
associate special counsel, Erin McDonnell, identifying the two memoranda which
-4- OSC had withheld from Poll, and setting forth facts in support of withholding
them.
Where an agency relies on an affidavit to justify withholding of documents
in a FOIA case, the affidavit must be “sufficiently detailed to permit meaningful
assessment of the exemption claims.” PHE, Inc. v. Department of Justice , 983
F.2d 248, 252 (D.C. Cir. 1993); see also Hale , 99 F.3d at 1030-31. The affidavit
must contain “reasonably detailed descriptions of the documents and allege facts
sufficient to establish an exemption.” Maricopa Audubon Soc. v. United States
Forest Serv. , 108 F.3d 1089, 1092 (9th Cir. 1997). The agency must also explain
how release of the documents will frustrate the purpose of the exemption; this
explanation must be sufficiently detailed “to afford the requester an opportunity
to intelligently advocate release of the withheld documents and to afford the court
an opportunity to intelligently judge the contest.” Weatherhead v. United States ,
157 F.3d 735, 740 (9th Cir. 1998) (quotation omitted), cert. granted , 67 U.S.L.W.
3749 (U.S. Sept. 10, 1999) (No. 98-1904). An affidavit which merely parrots the
language of the statute and is drawn in conclusory terms is not sufficient to permit
proper review of the agency decision. See Anderson , 907 F.2d at 942. The
affidavit need not be so detailed, however, that it effectively discloses the
information shielded by the claim of exemption. See Hale , 99 F.3d at 1031 n.6.
Dribinsky memorandum
-5- The affidavit describes the first document withheld as a two-page
memorandum from Penney Moy to Leonard Dribinsky. This memorandum
“contains the author’s rendition of factors considered in a review of the merits
of Mr. Poll’s case, with a recommendation for appropriate action.” Appellee’s
App. at 65.
OSC claims that this memorandum was properly withheld under FOIA’s
“deliberative process” privilege. FOIA exempts from disclosure documents which
a private litigant could not obtain against the agency through normal discovery
rules. See 5 U.S.C. § 552(b)(5); Grand Cent. Partnership, Inc. v. Cuomo , 166
F.3d 473, 481 (2d Cir. 1999). This exemption encompasses the traditional
attorney-client and work-product privileges, see id. , and also provides an
“executive ‘deliberative process’ privilege” designed to protect predecisional
internal memoranda from public disclosure, see Maricopa Audubon Soc’y , 108
F.3d at 1092; see also NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 150 (1975).
McDonnell advanced the following facts to support withholding the
memorandum under the deliberative process privilege. She stated that the
memorandum contained a recommendation which was subject to two levels of
review and therefore did not reflect the OSC’s final agency decision. It was
prepared to assist the special counsel in deciding what further action to take on
the complaint. It was based on a distillation of documents and facts prepared by
-6- the complaints examiner assigned to the case. McDonnell opined that disclosure
of the memorandum “would reveal those facts the examiner thought would be
most significant for the decision-maker to have and thus would reveal the
deliberative process itself” and “would impair the expression of candid opinions
among OSC personnel and adversely affect the quality of the deliberative and pre-
decisional process within OSC.” Appellee’s App. at 67.
“To qualify for the deliberative process privilege, a document must be both
predecisional and deliberative.” Grand Cent. Partnership , 166 F.3d at 482. “A
document is predecisional when it is prepared in order to assist an agency
decisionmaker in arriving at his decision.” Id. (quotation omitted). It is
deliberative when it is “actually related to the process by which policies are
formulated” and decisions are made. See id.
McDonnell’s affidavit supplies an adequate factual basis to support the
district court’s determination that the deliberative process privilege applied to the
Dribinsky memorandum. Moreover, we affirm the district court’s legal
conclusion that the memorandum falls within the deliberative process privilege.
That being the case, we need not consider the other two bases for withholding
disclosure advanced by OSC.
-7- Telephone memorandum
The affidavit identifies the second document withheld as a memorandum of
a telephone conversation between Poll and an OSC examiner, prepared by the
examiner for attorney review. This memorandum “records the author’s mental
impressions of selected relevant portions of what was stated during the telephone
conversation pertaining to Mr. Poll’s complaint.” Appellee’s App. at 70.
McDonnell opined that the document was neither a verbatim transcript nor
a comprehensive summary of the telephone conversation and that it was therefore
protected under 5 U.S.C. § 552(b)(5).
The affidavit does not disclose which § 552(b)(5) privilege is asserted.
It does not discuss what harms could be expected to result from releasing the
document. While it is true that from the information given, the district court
could have concluded that the memorandum reflected the predecisional opinions
or impressions of its author, see Grand Central , 166 F.3d at 482, the affidavit
presents no specific facts from which the court could further conclude that the
memorandum related to the decision-making process, see id. Moreover, there is
no discussion of how this document fits within the work-product privilege.
The OSC also relies on the § 552(b)(7)(C) privacy exception as to this
document. McDonnell stated that portions of the memorandum referred to
persons other than Poll, and opined that “[r]elease of the Memorandum would
-8- subject . . . individuals identified in the telephone memorandum to speculation
as well as possible harassment.” Appellee’s App. at 70. These conclusory
statements do not provide a sufficient factual basis to support withholding of the
memorandum under the privacy exception.
“The federal agency resisting disclosure bears the burden of justifying
nondisclosure.” Audubon Soc’y v. United States Forest Serv. , 104 F.3d 1201,
1203 (10th Cir. 1997). That burden has not been met in this instance as to the
telephone memorandum. Accordingly, we must remand for further factual
development on this issue. We note that since the OSC affidavit proved
insufficient, the district court may choose to inspect the telephone memorandum
in camera to determine whether it satisfies the relevant criteria for withholding.
IV.
Poll also appeals from the district court’s decision denying his request to
recover court costs from OSC. A district court may, in its discretion, award
reasonable attorney fees and litigation costs if the plaintiff has “substantially
prevailed” in FOIA litigation. See 5 U.S.C. § 552(a)(4)(E). A “plaintiff has
‘substantially prevailed’ in a FOIA case if the lawsuit was reasonably necessary
and substantially caused the requested records to be released.” See Gowan v.
United States Dep’t of Air Force , 148 F.3d 1182, 1195 (10th Cir.), cert. denied ,
119 S. Ct. 593 (1998). Poll has not substantially prevailed to date because he has
-9- not obtained release of the requested records. If, on remand, the district court
orders release of records or OSC discloses them as a result of this suit, the district
court may need to reconsider this issue.
The judgment of the United States District Court for the District of Utah is
AFFIRMED in part, REVERSED in part, and REMANDED for further
proceedings in accordance with this order and judgment. 2
Entered for the Court
David M. Ebel Circuit Judge
2 Poll also argues that the FOIA obligates OSC to respond to certain questions he presented to it concerning the federal merit system. The district court did not address this claim. Even if Poll adequately articulated this claim before the district court, it lacks merit. “Under FOIA, an individual may only obtain access to records written or transcribed to perpetuate knowledge or events. Therefore, FOIA neither requires an agency to answer questions disguised as a FOIA request, [nor] to create documents or opinions in response to an individual’s request for information.” Hudgins v. IRS , 620 F. Supp. 19, 21 (D.D.C. 1985) (quotation and citations omitted), aff’d , 808 F.2d 137 (D.C. Cir. 1987); see also DiViaio v. Kelley , 571 F.2d 538, 542 (10th Cir. 1978) (holding petitioner’s request to be told whether the CIA ever had photographed him or had disseminated photographs outside of the agency was outside the scope of FOIA).
-10-