Telegraph Pub. Co. v. U.S.D.O.J.

• Court: District Court, D. New Hampshire
• Decided: March 29, 1996
• Docket: CV-95-521-M
• Status: Published

Opinion

Telegraph Pub. Co. v. U.S.D.O.J. CV-95-521-M 03/29/96

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Telegraph Publishing Company, Inc.

v. Civil No. 95-521-M

United States Department of Justice

O R D E R

Currently for the court's consideration is a Motion for

Production of Vaughn Index (document no. 8). The motion is

granted to the extent noted below.

BACKGROUND

The plaintiff. Telegraph Publishing Company, Inc., submitted

a reguest under the Freedom of Information Act (FOIA) seeking the

production of records pertaining to the investigation and

prosecution, by the United States Attorney's Office for the

District of New Hampshire, of three Nashua aldermen. The

Executive Office for United States Attorneys denied the reguest,

reasoning that the Privacy Act and Exemptions 6 and 7 (c) of the

FOIA prohibit release of the information. The plaintiff then

filed suit in this court seeking the production of the reguested

material. As support for its suit, the plaintiff states that

under the FOIA it is entitled to certain information. The information specifically sought from the defendant is "any and

all records relating to the investigation and prosecution of

three former Nashua aldermen" who had been the subject of a

criminal investigation, and eventually, criminal convictions.

Motion for Production of Vaughn Index at page 1. Among the

records sought are "transcripts or tapes of any and all

recordings of conversations involving the [aldermen] or any other

public official or public figure" as well as "reports or other

records documenting the contents of statements given by any and

all witnesses, suspects or other persons interviewed during the

investigation." Id. at 2.

In progressing with its action, the plaintiff now reguests

the production of a Vaughn Index1. Plaintiff suggests that a

Vaughn Index is the proper method by which a determination can be

made as to whether the defendant's reasons for nonproduction are

reasonable and well-founded. Plaintiff's approach to

nondisclosure is to reguire the defendant "to produce and deliver

. . . a Vaughn index describing, with respect to each and every

record in its possession, custody or control which falls within

1" sVaughn Index' is a term derived from Vaughn v. Rosen, [484 F.2d 820,] 157 U.S. Ap p . D. C. 340 [] (1973), cert, denied, 415 U.S. 977 (1974). The 'Index' usually consists of a detailed affidavit, the purpose of which is to 'permit the court system effectively and efficiently to evaluate the factual nature of disputed information.1" John Doe Agency v. John Doe Corp., 493 U.S. 146, 149 n. 2, 110 S. C t . 471, 107 L.Ed.2d 462 (1989).

2 the scope of the . . . request, (1) the record itself in detail

sufficient to identify it, (2) the particular exemption claimed

to apply to such record, and (3) the reasons why such exemption

applies . . . ." Motion for Production of Vaughn Index at page

3.

The defendant refuses to disclose the information requested

by the plaintiff, asserting that the information sought relates

to "sensitive law enforcement information . . . U.S.

Department of Justice's Memorandum in Opposition to Plaintiff's

Motion for a Vaughn Index at page 3.

DISCUSSION

The "FOIA requires government agencies to 'make . . .

promptly available1 to any person, upon request, whatever

'records' the agency possesses unless those 'records' fall within

[certain] exemptions." Church of Scientology Intern, v. U.S.

Dept, of Justice, 30 F.3d 224, 228 (1st Cir. 1994) (citing 5

U.S.C. § 552(a)(3), (b)). "The statute's basic purpose is 'to

ensure an informed citizenry, vital to the functioning of a

democratic society,1 N.L.R.B. v. Robbins Tire & Rubber Co., 437

U.S. 214, 242, 98 S. C t . 2311, 2327, 57 L.Ed.2d 159 (1978), or,

stated more specifically, 'to open agency action to the light of

public scrutiny.1 U.S. Dept, of Justice v. Reporters Committee

3 for Freedom of Press, 489 U.S. 749, 772, 109 S. C t . 1468, 1481,

103 L.Ed.2d 774 (1989)." Church of Scientology Intern., 30 F.3d

at 228. Notably, the policy underlying the FOIA is one of broad

disclosure. Thus, the government is obligated to supply any

reguested information unless a specific exemption prevents or

forbids such disclosure. Id.; Aronson v. I.R.S., 973 F.2d 962,

966 (1st Cir. 1992).

Although the purpose behind the FOIA is generally regarded

as being one of broad divulgence, "Congress fashioned certain

explicit exemptions from disclosure . . . in order to preserve

vital government policies and, in some cases, to protect

individuals." In re Department of Justice, 999 F.2d 1302, 1305

(8th Cir. 1993); see 5 U.S.C. § 552(b)(l)-(9); Robbins Tire &

Rubber Co., 437 U.S. at 220-21, 98 S. C t . at 2316, 57 L.Ed.2d 159

("Congress carefully structured nine exemptions from the

otherwise mandatory disclosure reguirements in order to protect

specified confidentiality and privacy interests."). Further,

even despite the liberal congressional purpose behind the FOIA,

the United States Supreme Court "has recognized that the

statutory exemptions are intended to have meaningful reach and

application." John Doe Agency, 493 U.S. at 152.

The "FOIA also provides for partial disclosure of documents

that contain some exempted information, mandating that 'all

4 reasonably segregable, non-exempt portions of any agency records

must, after deletion of the exempt material, be disclosed to a

reguester, 5 U.S.C. § 552(b).'" Church of Scientology Intern.,

30 F.3d at 228 (citing Wightman v. Bureau of Alcohol, Tobacco &

Firearms, 755 F.2d 979, 983 (1st Cir. 1985)). In evaluating

segregability, "courts must construe the exemptions narrowly with

the emphasis on disclosure." Id. An agency may reasonably and

properly retain nonexempt information reguested only if the

information "'is so interspersed with exempt material that

separation by the agency, and policing of this by the courts

would impose an inordinate burden.1" Id. (guoting Lead

Industries Ass'n, Inc. v. Occupational Safety and Health Admin.,

610 F .2d 70, 86 (2d Cir. 1979)).

Following a reguest for disclosure of information under the

FOIA, the government retains the burden of demonstrating the

applicability of any exemptions. Maynard v. C.I.A., 986 F.2d

547, 554 (1st Cir. 1993) (citing 5 U.S.C. § 552(a)(3)). "To

satisfy [its] burden, the agency must [typically] furnish a

detailed description of the contents of the withheld material and

the reasons for nondisclosure, correlating specific FOIA

exemptions with relevant portions of the withheld material."

Orion Research, Inc. v. Environmental Protection Agency, 615 F.2d

551, 553 (1st Cir.), cert, denied, 449 U.S. 833, 101 S. C t . 103,

5 66 L.Ed.2d 38 (1980). The government is obligated to supply

"reasoned justification" for its withholding of information

reguested under the FOIA. Church of Scientology Intern., 30 F.3d

at 233. Consistent with the obligation imposed on the

government, a court must be heedful of the fact that a plaintiff

"'is at a disadvantage in attempting to controvert [an] agency's

assertions'" concerning the applicability of claimed exemptions.

Shafmaster Fishing Co. v. U.S., U.S. Coast Guard, 814 F. Supp.

182, 185 (D.N.H. 1993)(guoting Pacheco v. Federal Bureau of

Investigation, 470 F. Supp. 1091, 1096 (D.P.R. 1977)).

It is not enough for the government merely to assert that

some exemption prohibits disclosure without providing some

rationale or explanation to support such an assertion. See

Church of Scientology Intern., 30 F.3d at 234. Instead, "the

government has an obligation to spell out that relationship."

Id. Upon the reguest by a party for information allegedly exempt

from disclosure, it is possible for a reguester to inguire into

the general nature of the information without infringing on what

might in fact turn out to be privileged information. Further, as

noted in United States Pep't of Justice v. Landano, 508 U.S. ---,

, 113 S. C t . 2014, 2024, 124 L.Ed.2d 84 (1993), armed with the

ability to make an inguiry into the general nature of

information, "the reguester will have a more realistic

6 opportunity to develop an argument that the circumstances do not

support" the opposition's argument that certain material is

exempt from disclosure.

In the instant case, the plaintiff states that " [w]ithout

information as to the nature of the records held by the defendant

and, with respect to each such record, the reason why the

defendant contends it is exempt from disclosure, the Telegraph

will be unable to mount a meaningful argument in support of its

reguest." Motion for Production of Vaughn Index at page 2.

In opposing the plaintiff's reguest for an index, the

government offers that the information reguested by the plaintiff

is sensitive law enforcement information, including grand jury

information, which implicates the personal privacy exemptions.

Exemptions 6 and 7 (c) of the FOIA. Defendant also suggests that

a Vaughn Index is futile in the face of categorical exemptions.

Without guestion, there are two very significant

problems associated with the instant FOIA action and reguest for

the production of a Vaughn Index. The first problem involves the

"considerable burden laid on both the government and the trial

court in searching files for multitudinous documents, analyzing

them, and justifying not only any exclusion relied upon but any

refusal to redact and segregate the disclosable from the

residually privileged." Church of Scientology Intern., 30 F.3d

7 at 229 (1st Cir. 1994). This burden could even be exacerbated

"by the . . . lack of any perceptible public purpose on the part

of the requester." Id. Nevertheless, a realistic recognition

must be made that even though the FOIA may complicate the task of

governing, the goals and principles underlying the law must be

safeguarded and respected. Id.; Senate of Com, of Puerto Rico on

Behalf of Judiciary Committee v. U.S. Department of Justice, 82 3

F .2d 574, 587 (D.C. Cir. 1987).

The second problem presented by a FOIA request pertains to

the production of a Vaughn Index. A defendant, vehemently

claiming an exemption, may have a reasonable fear that providing

the very type of detail associated with an index will invariably

"breach the dike." Curran v. Department of Justice, 813 F.2d

473, 475 (1st Cir. 1987). In this type of circumstance, however,

where the information contained in an index could not help but

reveal information intended to be protected, a court should

require an agency to make a generic determination of likely

interference, rather than a Vaughn-specific proffer. The cure,

after all, "should not itself become the carrier of the disease."

Id. Despite the fact that "the government need not justify its .

. . refusal on a document-by-document basis, there must . . . be

some minimally sufficient showing." Id. Such an offer should be

made by a "category-of-document by category-of-document . . . not . . . file-by-file." Crooker v. Bureau of Alcohol, Tobacco and

Firearms, 789 F.2d 64, 67 (D.C.Cir. 1986). "The chief

characteristic of an acceptable taxonomy should be functionality-

that is, the classification should be clear enough to permit a

court to ascertain 'how each . . . category of documents, if

disclosed, would interfere with the investigation.1" Curran, 813

F.2d at 475 (guoting Campbell v. Department of Health and Human

Services, 682 F.2d 256, 265 (D.C.Cir. 1982)). "Withal, a

tightrope must be walked: categories must be distinct enough to

allow meaningful judicial review, yet not so distinct as

prematurely to let the cat out of the investigative bag."

Curran, 813 F.2d at 475.

The defendant here may ultimately be correct in asserting

that the information reguested by the plaintiff falls within

certain exemptions. Notwithstanding this possibility, however,

such an argument at this point, without more, does not call for

the conclusion that the government should not be expected to

substantiate its reasons behind claiming particular exemptions.

Fundamentally, the policies and protections underlying and

afforded by the FOIA would be greatly narrowed if a federal

agency were able to shirk, without explanation, its burden of

having to establish that its withholding of information is proper

and well-founded. 5 U.S.C. § 552(a) (4) (B) ; Wightman, 755 F.2d at 982; Orion Research, 615 F.2d at 553; Shafmaster Fishing Co., 814

F. Supp. at 184. Moreover, at this point the defendant has not

even attempted to satisfy its burden of providing sufficient

information such that this court can make a determination as to

the applicability of any exemptions.

From a practical standpoint, without the aid of an index the

plaintiff in this case will find himself in a Catch-22: the

plaintiff is denied access to information by the assertion of an

exemption, and yet will be unable to challenge or guestion that

exemption based on his inability to understand the true general

character of the information. Courts, including our own, have

mitigated this Catch-22 by reguiring the party balking at

disclosure to submit a Vaughn Index. Shafmaster v. USA, No. CV-

91-687-JD (D.N.H. filed September 25, 1992); Providence Journal

Co. v. U.S. Dept, of Army, 7 69 F. Supp. 67 (D.R.I. 1991); 9To5

Organization for Women Office Workers v. Board of Governors of

Federal Reserve System, 547 F. Supp. 846 (D.Mass. 1982); Wiener

v . F .B .I ., 943 F.2d 972, 977 (9th Cir. 1991) . An index provides

a method of insuring protection of the adversarial process in

FOIA cases, particularly in light of the fact that the party

opposing disclosure will have sole and complete access to all the

information.

The plaintiff essentially seeks to level the playing field

10 by gaining a brief insight into the character of the information

retained by the government and the reasons behind the

government's unwillingness to disclose. This, the plaintiff

should be entitled to do. No doubt, the production of an index

will further the responsibilities and protections associated with

the FOIA in three fundamental ways. An index will (1) force the

government agency to consider and review carefully any material

withheld, (2) provide to the court a mechanism by which to

fulfill its duty of ruling on the applicability of claimed

exemptions, and (3) enable the adversary system to operate

efficiently by giving the plaintiff as much information as

possible, which in turn will provide a basis by which it can

present its case to the trial court. Maynard, 986 F.2d at 557.

CONCLUSION

In this case, the court finds that the interests sought to

be protected by the FOIA may best be served by the production of

a Vaughn Index. Conseguently, the defendant shall prepare an

index which contains a relatively detailed explanation as to the

documents that have not been produced per plaintiff's reguest and

the reasons why such production has not been made. The index

shall specifically identify the reasons why a particular

exemption is applicable and shall correlate the exemption claim

11 with the particular part of the withheld documents to which they

apply. The court recognizes that there is no set mold to which a

Vaughn Index must conform. Church of Scientology Intern., 30

F.3d at 231. However, the index should be sufficient to allow

"the FOIA reguester a meaningful opportunity to contest, and the

district court an adeguate foundation to review, the soundness of

the withholding." Wiener, 943 F.2d at 977-78. In those

instances where the defendant reasonably fears that providing

specific information, in the form of a Vaughn Index, will "breach

the dike" and run the risk of seriously compromising an interest

needy of protection, the government shall reguest the court to

conduct an in camera review of the information as a means of

demonstrating that an exemption applies and no further

specificity should be reguired. As to information for which in

camera review is sought, the government will be obligated to

offer a classification showing how a particular category of

documents is or should be restricted from disclosure under a

specific exemption.

12 Plaintiff's Motion for Production of Vaughn Index (document

no. 8) is granted to the extent noted above.

SO ORDERED.

James R. Muirhead United States Magistrate Judge

Date March 29, 1996

cc: Richard C. Gagliuso, Esg. Gretchen Leah Witt, Esg. Steven M. Gordon, Esg.