Telegraph v. U.S. Dept, of Justice

• Court: District Court, D. New Hampshire
• Decided: September 30, 1997
• Docket: CV-95-521-M
• Status: Published

Opinion

Telegraph v. U.S. Dept, of Justice CV-95-521-M 09/30/97 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Telegraph Publishing _____ Company, Inc.

v. Civil No. 95-521-M

United States Department _____ of Justice

O R D E R

The plaintiff. Telegraph Publishing Company, Inc.

("Telegraph"), and defendant. United States Department of Justice

("the Department"), continue their dispute concerning Telegraph's

reguest under the Freedom of Information Act ("FOIA"), 5 U.S.C.A.

§ 552, for records from the Office of the United States Attorney

for the District of New Hampshire. Currently pending before the

court are the Justice Department's motion to dismiss or, in the

alternative, for summary judgment, and Telegraph's motion for

production of a Vaughn index. As both pleadings raise the same

issue — the sufficiency of the Department's response to

Telegraph's FOIA reguest - they are considered together.

____________________________ BACKGROUND

Three members of the Nashua, New Hampshire, Board of

Aldermen, Philip Grandmaison, Steve Kuchinski, and Thomas Magee,

were investigated and ultimately pled guilty to charges arising

from the city's award of a contract for public school renovations

to Eckman Construction Company. The investigations were conducted by the Nashua Police Department, the Federal Bureau of

Investigation, and the United States Attorney for the District of

New Hampshire ("NHUSA"). After all three aldermen pled guilty,

the NHUSA announced in April 1995 that the investigation had

ended and no new charges were expected.

Andrew Wolfe, a staff reporter from The Telegraph, a

newspaper in Nashua, New Hampshire, submitted a FOIA reguest to

the NHUSA on June 21, 1995, seeking "access to any and all

records relating to the investigation and prosecution of three

former Nashua aldermen." Wolfe further explained that the

materials he sought included transcripts or tapes of

conversations involving the three defendants or other public

officials, including Harold Eckman (Eckman Construction Company),

as well as all reports and records of interviews conducted during

the investigation and all physical evidence gathered during the

investigation. At the same time, Wolfe reguested the same

information from the Nashua Police Department, under New

Hampshire's Right to Know Law.

The FOIA reguest was handled by the Executive Office for

United States Attorneys ("EOUSA") in Washington, D.C. The EOUSA

denied Wolfe's reguest, other than for public records and

newspaper clippings found in the files, on grounds that the

Privacy Act exemptions from FOIA, 5 U.S.C.A. §§ 552(b)(6) and

(b)(7)(C), permit nondisclosure of nonpublic information in the

absence of releases from those who were the subjects of his

2 requests. For its part, the Nashua Police Department simply

directed Wolfe to contact the NHUSA.

Wolfe filed an administrative appeal of the EOUSA's

decision. Telegraph Publishing Company, publisher of The

Telegraph and the plaintiff here, also filed suit in state court

for access to the Nashua police records, and filed suit in this

court, on October 26, 1995, seeking access to the NHUSA's

materials previously requested by Wolfe. Following in camera

review of disputed documents, the state superior court ordered

disclosure of most of the records in the police department files,

but this court entered a protective order preventing release of

any federal grand jury materials provided to the Nashua police

officers by federal authorities.

At the first pretrial conference in this case, held before

the Magistrate Judge on January 2, 1996, Telegraph stated that it

intended to file a motion for a Vaughn index1 of the documents

covered by its request. At the same conference, the Department

acknowledged that, after Wolfe's FOIA request and before

Telegraph filed suit, the NHUSA had inadvertently returned some

documents previously obtained by grand jury subpoenas to the

providing sources.

1 The term "Vaughn index" refers to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). It is "a general description of each document sought by the FOIA requester and explains the agency's justification for nondisclosure of each individual document or portion of a document," Church of Scientology Int'l v. United States Dep't of Justice, 30 F.3d 224, 228 (1st Cir. 1994) .

3 On January 30, Telegraph moved for production of a Vaughn

index, and the Department objected. The Magistrate Judge granted

Telegraph's motion, and the Department moved to vacate the order.

The Department then moved to dismiss Telegraph's suit, or in the

alternative for summary judgment, asserting that the court lacked

subject matter jurisdiction as the Department had not improperly

withheld information sought under the FOIA. In support of its

motion, the Department filed a declaration by Bonnie L. Gay, an

EOUSA attorney responsible for reguests and litigation under FOIA

and the Privacy Act, relying on two FOIA exemptions as

justification for withholding the reguested materials. The court

denied the Department's motion to dismiss or for summary judgment

without prejudice to refiling after producing a Vaughn index

covering the reguested information. In the meantime, Harold

Eckman and Eckman Construction Company moved to intervene, which

motion was granted.

The Magistrate Judge's order to produce a Vaughn index was

modified by the court as follows:

The government is ordered to define functional categories of records, assign individual documents to the proper categories, and explain to the court why, for each category, nondisclosure is characteristically appropriate. For all of the reguested documents that do not fall within a legitimate categorical exemption, the government is ordered to produce a Vaughn index consistent with the March 29, 1996, order of the magistrate judge and with First Circuit precedent. See, e.g.. Church of Scientology, 30 F.3d at 231 (stating that, although there is no set formula for a Vaughn index, "to serve its purpose the listing must supply a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with

4 the particular part of a withheld document to which they apply").

Telegraph Publ'q Co. v. United States Dep't of Justice, No. 95-

521, slip op. at 12 (D.N.H. July 1, 1996). The Department then

filed a status report with a supplemental declaration by Attorney

Gay, who stated that she had reviewed the pertinent documents and

assigned them to twenty-five functional categories, each of which

the Department claimed was exempt from disclosure.

Thereafter, the Department again moved to dismiss or, in the

alternative, for summary judgment, supporting its motion with a

third supplemental declaration by Attorney Gay in which she

described twenty-six categories of information and thirteen

privacy interests. The Department also moved to file a

declaration pertaining to two categories of materials for in

camera review, which was granted. Telegraph objected to

defendant's motion to dismiss, and it again moved for production

of a Vaughn index. The pending motions, which both address the

sufficiency of the Department's disclosure, are resolved as

follows.

DISCUSSION

In the third supplemental declaration. Attorney Gay states

that she examined approximately 14,000 documents that are "at

issue in this litigation." Based on her review, the Department

continues to assert that all of the nonpublic materials

pertaining to the subject matter reguested by Telegraph are

exempt from disclosure under FOIA by 5 U.S.C.A. §§ 522(b) (6) and

5 (7) (C) .2 As only 464 documents are identified as "publicly

available" most of the documents responsive to Telegraph's

request are being withheld. The Department has identified the

withheld materials by assigning them to twenty-six categories and

by listing coded privacy interests pertinent to each category

that the Department contends justify nondisclosure. Based on

Gay's third supplemental declaration, the Department asserts that

none of the materials Telegraph has requested need be disclosed

under FOIA.

In its response. Telegraph argues that the third

supplemental declaration is insufficient.3 Telegraph contends

that twenty-two of the twenty-six categories4 either do not

describe the materials sufficiently to permit a reasoned

evaluation of whether the materials are exempt or not (and seeks

a more detailed Vaughn index or those materials), or are not

properly withheld under the exemptions asserted by the

Department.

2 While the Department relies on only two exemptions in its motion for summary judgment, it notes that if those two do not justify withholding all of the requested information, it plans to assert eight other exemptions.

3 Telegraph does not contest the adequacy of the Department's search or review of documents in response to its request. C f . Church of Scientology, 30 F.3d at 229-30 (agency obligated to perform reasonable search for responsive documents).

4 Telegraph waives its request for materials in four of the categories described by defendants: category one, grand jury subpoenas; category thirteen, letter to agent; category eighteen, TRW credit reports; and category twenty-five, medical records.

6 The pending motions require the court to decide whether the

Department has assigned the requested materials to appropriate

functional categories, and whether the asserted exemptions

sufficiently justify withholding each functional category of

materials. Accordingly, the court must first identify the legal

standard applicable in evaluating the sufficiency of the third

supplemental declaration, and then examine each category in light

of the privacy exemption asserted.

A. The FOIA Recruirements

FOIA requires government agencies to make their records

available to the public upon request, unless a specified

exemption applies. 5 U.S.C.A. §§ 552(a)(3) and (b). The purpose

and policy of FOIA support broad disclosure and narrow

interpretation of claimed exemptions. See Church of Scientology,

30 F.3d at 228-29 (stating FOIA policy and purpose and citing

cases). A government agency seeking to withhold materials

requested under the FOIA must provide a relatively detailed

justification; one sufficient to give "'the FOIA requester a

meaningful opportunity to contest, and the district court an

adequate foundation to review, the soundness of the

w i t h h o l d i n g " I d . at 231 (quoting Wiener v . F .B .I ., 943 F.2d

972, 977-78 (9th Cir. 1991)). When the agency's decision to

withhold information is challenged, the court conducts a de novo

review. I d . at 228. The presumption of good faith that attaches

to an agency's affidavit (or declaration) in support of

7 withholding requested information applies only when the agency

supplies "a reasonably detailed explanation." I d . at 233.

The Department relies here on 5 U.S.C.A. §§ 552(b) (6)

("Exemption 6") and (b)(7)(C) ("Exemption 7(C)") as justification

for nondisclosure. Exemption 6 protects "personnel and medical

files and similar files the disclosure of which would constitute

a clearly unwarranted invasion of personal privacy." 5 U.S.C.A.

§§ 552(b)(6). Exemption 7(C) protects "records or information

compiled for law enforcement purposes, but only to the extent

that the production of such law enforcement records or

information . . . (C) could reasonably be expected to constitute

an unwarranted invasion of personal privacy." § 552(7) (C) .

While both exemptions protect individual privacy interests.

Exemption 6 has been construed as more narrowly focused,

exempting materials only if their disclosure would "constitute" a

"clearly unwarranted" invasion of personal privacy. See United

States Dep't of Defense v. F.L.R.A., 510 U.S. 487, 496 n.6

(19 94); United States Dep't of Justice v. Reporters Comm. For

Freedom of the Press ("Reporters Committee" ), 489 U.S. 749, 756

(1989). Thus, as it appears that the parties do not dispute that

all of the materials Telegraph seeks were compiled for law

enforcement purposes, because Exemption 7 (C) provides broader

protection from disclosure, it may be presumed in this case that

any materials protected by Exemption 6 would also be protected by

Exemption 7 (C). Therefore, only Exemption 7 (C) need be

considered here. The applicability of Exemption 7 (C) may be determined by

weighing the relative privacy and public interests that are

common to "an appropriate class of law enforcement records or

information." Reporters Committee, 489 U.S. at 777. Such

functional categories, however, must permit the court to

understand the shared characteristics of materials that implicate

particular exemptions from FOIA disclosure. See Curran v. United

States Dep't of Justice, 813 F.2d 473, 475 (1st Cir. 1987); see

also In re Dep't of Justice, 999 F.2d 1302, 1309-10 (8th Cir.

1993). Therefore, "a categorical approach to nondisclosure is

permissible only when the government can establish that, in every

case, a particular type of information may be withheld regardless

of the specific surrounding circumstances." Church of

Scientology, 30 F.3d at 234; see also Reporters Committee, 489

U.S. at 776. Because FOIA applies to information, rather than

records or documents, an agency cannot justify withholding an

entire document on grounds that it contains some exempt

information. Church of Scientology, 30 F.3d at 232. The

governmental agency resisting disclosure bears the burden of

showing the correlation between the common characteristics of

each category of materials that it claims to be exempt and a

particular exemption under FOIA. Church of Scientology, 30 F.3d

at 228, 234.

As to each category of materials withheld under Exemption

7 (C), the governmental agency must show that the privacy

interests asserted outweigh the public interest in disclosure. See Reporters Committee, 489 U.S. at 776; see also Providence

Journal Co. v. United States Dep't of A r m y , 981 F.2d 552, 568

(1st Cir. 1992). The identity of the party seeking disclosure

(except when privilege is an issue) and the purpose for which the

materials are sought are irrelevant to the balancing process.

Reporters Committee, 489 U.S. at 771. Instead, disclosure

depends "on the nature of the reguested document and its

relationship to 'the basic purpose of the Freedom of Information

Act to open agency action to the light of public scrutiny.'" I d .

at 772 (guoting Department of Air Force v. Rose, 425 U.S. 352,

372 (1976)). While Telegraph argues that many of the privacy

interests asserted on behalf of individuals are greatly

diminished, the Department contends that no public interest is

served by disclosing any of the reguested materials.

1. Public Interest

In Reporters Committee, the Supreme Court significantly

narrowed the public interest in disclosure under FOIA. See

Department of Defense v. FLRA, 510 U.S. 487, 505 (1994)

(Ginsburg, J., concurring). The only public interest relevant to

the FOIA balancing process "is the extent to which disclosure

would serve the 'core purpose of the FOIA , ' which is

'contribut[ing] significantly to public understanding of the

operations or activities of the government .'" United States

Defense Dep't, 510 U.S. at 495 (guoting Reporters Committee, 489

U.S. at 775). The Supreme Court further explained:

10 Official information that sheds light on an agency's performance of its statutory duties falls sguarely within that statutory purpose. That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct.

Reporters Committee, 489 at 773. Thus, whether disclosure of

reguested materials serves the public interest will necessarily

depend on the degree of relevance of particular materials to the

targeted agency's function and activities. See Reporters

Committee, 489 U.S. at 773; Burge v. Eastburn, 934 F.2d 577, 580

(5th Cir. 1991). Further, because only federal agencies, as

statutorily defined, are covered by FOIA, disclosure of materials

to shed light on the workings, or misfeasance, of local

governments or officeholders is not relevant to FOIA. See 5

U.S.C.A. §§ 551(1) and 552(f); Johnson v. Wells, 566 F.2d 1016,

1018 (5th Cir. 1978); see also Davis v. United States Dep't of

Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992); Landano v. United

States Dep't of Justice, 956 F.2d 422, 430 (3d Cir. 1992),

partially vacated on other grounds and remanded, 508 U.S. 165

(1993); Thomas v. Office of the United States Attorney, 928 F.

Supp. 245, 251 (E.D.N.Y. 1996).

In this case. Telegraph asserts that disclosure of the

materials it has reguested, concerning the investigation by the

NHUSA's office, the FBI, and Nashua police, of the three Nashua

aldermen, Kuchinski, Magee, Grandmaison, and contractor, Hal

Eckman, would serve the public interest in two respects: (1) "to

illuminate the conduct of the U.S. Attorney in its handling of

11 these cases," and (2) "to reveal the details of the misconduct of

the three convicted aldermen, and perhaps other officials,

entrusted with protecting the interests of all Nashua citizens."

Plaintiff's Memorandum in Support of Its Objection to Defendant's

Motion to Dismiss, Document No. 36, at 14. Because Telegraph's

second articulated "public interest" focuses on the propriety of

activities of local officials rather than a federal agency, it is

not a public interest that serves the core purpose of FOIA, and

cannot be considered in the context of assessing the

applicability of Exemption 7(C). See, e.g., Davis, 968 F.2d at

1282 .

Telegraph's remaining identified "public interest" -- an

examination of the NHUSA's handling of the investigation and

prosecution of the aldermen -- does focus on the activities of a

federal agency and implicates a recognized public interest in the

workings of the Justice Department and in its prosecutorial

decision-making function in particular cases. See, e.g., Davin

v. United States Dep't of Justice, 60 F.3d 1043, 1059 (3d Cir.

1995); Church of Scientology, 30 F.3d at 227 n.l; Bast v. United

States Dep't of Justice, 665 F.2d 1251, 1255 (D.C. Cir. 1981).

As this court has already determined, the public may well have a

legitimate interest in verifying public reports of an

investigation and in knowing whether the investigating agency

made appropriate charging decisions. See Order, July 1, 1996, at

10 - 1 1 .

12 When a requester seeks materials about private individuals,5

which are withheld under Exemption 7 (C), rather than records of

agency action, however, the public interest is relatively

insignificant compared to individuals' own privacy interests.

See Reporters Committee, 489 U.S. at 773 and 780; see also Church

of Scientology, 30 F.3d at 238 n.22. Absent some clear link

between the requested information and a FOIA-recognized public

interest in disclosure of the information, privacy interests will

outweigh a neglible public interest. See id.; see also Maynard

v. C .I .A . , 986 F.2d 547, 566 (1st Cir. 1993). The public's

interest in disclosure may be considerably heightened, and

therefore weigh more heavily in the public/private interest

balance, if the requester can offer evidence of agency misconduct

to support disclosure of information pertaining to private

individuals.6 See, e.g., Ouinon v . F .B .I ., 86 F.3d 1222, 1231

5 Although the three aldermen, who were investigated and convicted and who are subjects of Telegraph's request, were "public officials" in their roles as aldermen, they are private individuals in the FOIA public interest context because their conduct does not reflect the conduct of a federal agency. See Providence Journal Co. v. United States Dep't of the A r m y , 981 F.2d 552, 568 (1st Cir. 1992). Telegraph's request, however, focuses on information about the NHUSA's investigation and prosecution of the aldermen which is an appropriate public interest under FOIA although the request also requires gathering information about individuals. See Nation Magazine, 71 F.3d at 895 (request for information about an individual may nevertheless be connected to an agency function).

6 The Department contends that there is no reason to engage in the balancing required by Exemption 7 (C) in this particular case because no public interest is served by Telegraph's request. See McCutchen v. United States Dep't of H.H.S., 30 F.3d 183, 188 (D.C. Cir. 1994) ("[a] mere desire to review how an agency is doing its job, coupled with allegations that it is not, does not

13 (D.C. Cir. 1986); Schiffer v. F.B.I., 78 F.3d 1405, 1410 (9th

Cir. 1996); McCutchen, 30 F.3d at 188-89; Hunt v . F .B .I ., 972

F.2d 286, 289 (9th Cir. 1992). In this case. Telegraph has

offered no evidence of misconduct or illegal activity by the

Department or the FBI in the investigation or prosecution of the

aldermen case leaving the public interest in information about

the case with little weight.

2. Privacy Interests

Privacy interests also vary in strength depending on the

particular information sought for disclosure as well as, in some

cases, the circumstances and persons on whose behalf the agency

asserts a privacy interest. In its third supplemental

declaration, the Department contends that the reguested

information includes a variety of private information, such as

individuals' connections to the criminal investigation, personal

relationships, financial matters, medical records, criminal

create a public interest sufficient to override the privacy interests protected by Exemption 7(C)." The Department's argument, if credited, would impermissibly shift its burden to establish the applicability Exemption 7 (C), by asserting appropriate privacy interests, to the FOIA reguester. Contrary to the Department's position, a FOIA reguester need not first show a public interest before the court may consider the privacy interests at stake. See, e.g.. Department of Defense v. FLRA, 510 U.S. at 507-08 (Ginsburg, J., concurring); Schiffer v. F.B.I., 78 F .3d 1405, 1410 (9th Cir. 1996) ("Initially, the FBI had to allege a privacy interest of the sort Congress intended section 552(b)(7)(C) to protect."); Computer Professionals v. United States Secret Servs., 72 F.3d 897, 904 (D.C. Cir. 1996) (both interests must be identified before balancing); Burge v. Eastburn, 934 F.2d 577, 579 (5th Cir. 1991).

14 histories, and identities of "cooperating witnesses," "potential

witnesses," "third parties," and "individuals who provided

information to law enforcement agencies" who are not otherwise

identified in the declaration. The Department also states,

through its declaration, that the reguested information includes

names of state and federal law enforcement personnel.

Telegraph argues that the privacy interests of the three

convicted aldermen and Eckman in the reguested information are

diminished to the point of extinction. The Department counters

by asserting that even the convicted defendants retain

significant privacy interests in personal information about them.

Telegraph contends that law enforcement personnel have no privacy

interest in protecting their involvement in the cases, while the

Department adamantly asserts important privacy interests.

Case law provides some general guidance in resolving such

disputes, though general principles must always be applied in the

context of the particular facts of a given case. Under some

circumstances, individuals retain a strong privacy interest in

their identities, and information identifying individuals may be

withheld to protect that privacy interest. Church of

Scientology, 30 F.3d at 238. Witnesses who give statements to

law enforcement agents during a criminal investigation retain a

significant interest in having their identities and other

information about them kept confidential. Burge, 934 F.2d at

579. Third parties mentioned in raw investigative files also

have a strong interest in nondisclosure of their identities to

15 avoid "unwarranted association with criminal activity,"

reputational harm, and increased or intrusive interest in them by

the public and press. Nation Magazine, Washington Bureau v.

United States Customs Servs., 71 F.3d 885, 894 (D.C. Cir. 1995);

see also Computer Professionals, 72 F.3d at 904. Citizens

convicted of crimes also retain a privacy interest in aspects of

their criminal histories, as well as other unrelated private

information. See, e.g.. Reporters Committee, 489 U.S. at 769;

Davis, 968 F.2d at 1281. Law enforcement personnel, including

FBI agents, also have significant privacy interests in keeping

their names or other identifying information from being generally

disclosed. Davin, 60 F.3d at 1058; Maynard, 986 F.2d at 566.

Public employees or officials whose conduct implicates the

actual performance by a federal agency of its assigned

governmental functions, have a diminished expectation of privacy,

although they still retain some privacy interest in materials

held by the agency. See, e.g.. Providence Journal, 981 F.2d at

5 68; New England Apple Council v. Donovan, 725 F.2d 139, 143 (1st

Cir. 1984). In this case, however, none of the individuals named

in Telegraph's reguest were or are federal employees, officials,

or officeholders. Eckman's former candidacy for a United States

Senate seat is not the focus of Telegraph's FOIA reguest. Cf.

Nation Magazine, 71 F.3d at 887 and 894 n.9 (Perot retained

privacy interest in records, sought in FOIA reguest, regarding

his offers to aid Customs Service while he was a candidate for

president). Telegraph has cited no authority to support its

16 assertion that local public officials have a diminished privacy

interest, in the FOIA context, in information gathered about them

while holding local office. C f . Strassmann v. United States

Dep't of Justice, 792 F.2d 1267, 1269 (4th Cir. 1986)

(recognizing state governor's privacy interest in evidence that

he would exercise his Fifth Amendment right not to testify in a

grand jury investigation of the state Liguor Commission). Even

if the aldermen have a diminished privacy interest in information

related to their office, they still retain a privacy interest in

information about them personally. See, e.g., Nix v. United

States, 572 F.2d 998, 1006 (4th Cir. 1978) ("One who serves his

state or nation as a career public servant is not thereby

stripped of every vestige of personal privacy, even with respect

to the discharge of his official duties." (Emphasis added.))

Telegraph also contends that Eckman has a diminished privacy

interest in not being associated with the investigation and

prosecution of the Nashua aldermen, because he himself held a

press conference along with Philip Grandmaison, one of the

charged aldermen and an Eckman employee, in which he publicly

announced that he was also a target of the federal investigation.

Telegraph offers the affidavit of its city editor which confirms

that the news conference took place and attaches newspaper

articles about it. Neither the Department nor Eckman, who has

intervened in this suit, contests Telegraph's assertion.

Therefore, Eckman's news conference will be considered in

evaluating his privacy interest in withheld information.

17 Having established the general framework of FOIA with

respect to information withheld by an agency, the court now turns

to the sufficiency of the Department's justification for

withholding the reguested information.

B. The Third Supplemental Declaration and Exemption 7 (C)

The third supplemental declaration's adeguacy depends first

on whether the Department's categorization of materials provides

meaningful detail sufficient to permit the court to weigh public

and privacy interests relative to the withheld materials, and to

allow Telegraph to present its case to the court. The Department

is entitled to summary judgment7 if the third supplemental

declaration and other materials of record, taken in the light

most favorable to Telegraph, "show that there is no genuine issue

as to any material fact and that [the Department] is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(c); see also

Burka v. United States Dep't H.H.S., 87 F.3d 508, 514 (D.C. Cir.

1996); Aronson v. United States Dep't of Housing and Urban Dev.,

822 F.2d 182, 188 (1st Cir. 1987). When the party moving for

summary judgment also bears the burden of proof on the issue in

dispute, summary judgment will not be granted unless, based on

the record taken in the light most favorable to the nonmoving

7 The court considers the Department's motion as a motion for summary judgment, rather than as a motion to dismiss, as the Department's declarations and other materials submitted by the parties are considered in deciding the motion. See Fed. R. Civ. P. 12 (b) .

18 party, no reasonable jury could find for the nonmoving party.

See Winnacunnet v. National Union, 84 F.3d 32, 35 (1st Cir.

1996); see also Laninqham v. United States Nav y , 813 F.2d 1236,

1241 (D.C. Cir. 1987). Thus, the Department is entitled to

summary judgment only if its declarations:

describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection between the information and the claimed exemption . . . , and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.

Davin, 60 F.3d at 1050 (guotations and citations omitted).

Accordingly, the third supplemental declaration is examined under

the applicable legal standards.8

The third supplemental declaration divides the approximately

14,000 documents at issue into twenty-six categories and, using a

coded system, assigns one or more of thirteen generic privacy

interests to each category. The description for each privacy

interest is the same for all categories of documents so that when

the Department asserts a particular privacy interest for a

category of documents, the declaration refers to the single

generic description for that privacy interest by its number. For

instance, the first privacy interest, "connection with the

Although Telegraph hints at bad faith actions by the Department in its handling of documents and litigation, the court finds that the record presented here is insufficient to support such a claim. Nevertheless, because the Department's justification for withholding reguested information lacks sufficient detail and specificity in many cases, the Department's declaration is not entitled to a good faith presumption. See Church of Scientology, 30 F.3d at 233.

19 criminal investigation of Nashua aldermen," is described in

general terms in the section pertaining to the first category of

documents, "Grand jury re third parties." When the declaration

again references the same first privacy interest for the third,

fourth, fifth, and other categories of documents, the declaration

states privacy interest "1" and refers back to the first category

for the generic description of the first privacy interest without

providing any particularized detail relevant to the specific

category of documents.

A coded system, such as that used to provide the privacy

interests, has been approved in the First Circuit when it "more

efficiently and clearly" serves the function of a Vaughn index.

Maynard, 986 F.2d at 559 n.13. However, a coded system that

fails to provide the necessary detailed description of withheld

documents does not fulfill the agency's FOIA obligation. See

Davin, 60 F.3d at 1050 ("an agency using justification codes must

also include specific factual information concerning the

documents withheld and correlate the claimed exemptions to the

withheld documents"); see also King v. United States Dep't of

Justice, 830 F.2d 210, 224 (D.C. Cir. 1987) ("Categorical

description of redacted material coupled with categorical

indication of anticipated conseguences of disclosure is clearly

inadeguate.")

Many of the categories provided by the Department include

documents whose contents are not sufficiently described, nor are

they well understood or self evident, with the result that public

20 interest in the information is difficult or impossible to assess.

Then, the coded descriptions of the asserted privacy interests,

without any particularization to the information in the category,

offer no solid basis to evaluate the actual privacy interests

implicated by disclosure of particular information. To compound

the problem, the individuals whose privacy interests the

Department is protecting by withholding the documents are

generally referred to as "third parties" without further

identification or explanation of their potentially different

roles or status in the investigation and prosecutions. In many

categories, at least a functional identity of the "third party"

is necessary to evaluate discrete privacy interests. Finally,

the Department's across-the-board assertion that redaction of

identifying information would not allow disclosure of any of the

withheld documents ignores the reduced privacy interests of the

three convicted aldermen and Eckman in the fact of their

connection to the investigation, and therefore is ineffective to

preclude consideration of redaction as a solution.

Because of the deficiencies in the declaration, a

comprehensive final determination as to the validity of the

Department's decision to withhold the documents is not possible.

Nevertheless, as to some of the categories, the information

described is readily understood and a decision can be made based

on the current declaration. Each category is addressed as

follows with direction as to whether the description and

21 justification in the declaration is sufficient, and if so,

whether the information is properly withheld.

1. Materials Responsive to Grand Jury Subpoenas9

The first category for review, the second listed in the

third supplemental declaration, consists of 10,259 documents that

are "copies of third party checks, copies of third party phone

logs, phone bill statements, bills of repair and invoices."

Neither the identities of the "third parties" to whom these

materials belong nor their status (i.e., defendants, targets of

the investigation, other associates of those individuals, or

other witnesses) is revealed. The Department contends that this

assortment of documents shares the common characteristic of being

individuals' private records that the government happens to be

storing and that contain private information that actual or

prospective grand jury witnesses were reguired to produce. The

Department further contends that the information contained in the

documents is private because it reveals details about the

individuals' personal lives such as what they spent money on,

details about their financial credit, and with whom they talk on

the telephone. Telegraph objects that this large category

9 At this stage, the Department relies exclusively on Exemptions 6 and 7 (C) but has indicated that it will assert Exemption 3 (which allows the withholding of grand jury materials. Church of Scientology, 30 F.3d at 235) if the privacy exemptions are not sufficient to justify withholding all information. As the Department has not addressed Exemption 3, the court does not consider its applicability to the reguested information.

22 inappropriately groups dissimilar information, such as telephone

logs and personal checks, which reguire separate balancing

assessments for the claimed privacy exemption and fails to

identify the individuals whose privacy is being protected.

The court agrees that the grand jury materials described by

the Defendant are not as uniform or well-understood as the "rap

sheets" considered in Reporters Committee. The court recognizes

however, that the personal information in telephone bills and

logs, checks, repair bills, and other business or service

invoices generally implicates the same type of personal privacy

interests, suggesting a single functional category. The court

also recognizes that the individuals whose records these are,

whoever they may be, have a strong privacy interest in all of

these records. In this category, while individuals' identities

might be hidden through redaction on each document, without

identities, the information would be of little use to the public

Unless one knows who paid what to whom and who talked to whom,

the records would have little significance with respect to

assessing the Department's handling of the investigation and

prosecution of the aldermen cases. In addition, because

Telegraph relies on a relatively weak public interest in a

general review of the Department's conduct of the aldermen

investigation and prosecutions, given the absence of evidence of

wrongdoing or misfeasance, the asserted public interest cannot

overcome a recognized privacy interest in the information.

Accordingly, despite the somewhat ill-defined category, the Department has carried its burden of showing through a

sufficiently detailed explanation that disclosure of these

documents "could reasonably be expected to constitute an

unwarranted invasion of personal privacy" such that these

documents are exempt from disclosure under FOIA. 5 U.S.C.A. §

552 (b) (7) (C) .

2. Facsimile Machine Cover Sheets

The declaration describes this category of five documents as

public information except for the names of federal and state law

enforcement personnel and other individuals who were connected

with the investigation in some way. The Department contends that

disclosure of the individuals' names would identify them with the

investigation of the Nashua aldermen, which in turn would harm

their reputations and possibly subject them to public scrutiny.10

As to law enforcement personnel, the Department contends

identifying them would reveal their assignment to the case, which

is private information.

For these five documents, private individuals other than the

three defendants and Eckman are likely to have a significant

A similar generic privacy interest justification for withholding information was found to be too general to satisfy the agency's obligation under FOIA. Davin, 60 F.3d at 1051 ("the possibility that disclosure could 'announce to the world that they were of investigative interest to the FBI and therefore permit derogatory inferences to made therefrom,' . . . [is] broad enough to apply to any FOIA reguest.") Nevertheless, the Department's explanation will be considered in each context in which it is raised to determine whether it is sufficiently tied to the content of withheld information. Id.

24 privacy interest in not being publicly associated with a criminal

investigation, and the public's interest in the conduct of the

investigation does not justify revealing their identities. The

three aldermen and Eckman, however, have no privacy interest in

their contact with the investigation as that is public knowledge,

so that their names need not be redacted. Law enforcement

personnel have a privacy interest in avoiding harassment and

annoyance in their personal and official lives based on

identification with the investigation. See The Providence

Journal, 981 F.2d at 568. The public's interest in the

identities of individual officers assigned to an investigation is

generally negligible, and Telegraph's asserted public interest in

ascertaining the role of various law enforcement groups in the

investigation does not reguire individual identities if the

Department can identify whether the individual was associated

with the Nashua police or the F B I . The Department shall release

the five documents with names of individuals and law enforcement

personnel, other than the three aldermen and Eckman, redacted.

It shall not redact information identifying a police department

or agency.

3. Agents' Notes re Grand Jury Subpoenas to Third Parties

The Department says that disclosure of these three documents

would invade the privacy of individuals referred to in the notes

because their connection with the criminal investigation would be

revealed. In this category, the individuals' identities are

25 critical. If they are the three aldermen and Eckman, there is no

privacy interest to protect. Other third parties, however, have

significant privacy interests in not being associated with the

investigation, and those interests certainly would overcome the

weak public interest in the information. As this category is

insufficient to allow a meaningful balancing of relevant

interests, however, none can be made. The Department is directed

to clarify the identities of the third parties without

identifying individuals other than the three aldermen and Eckman.

4. Chronology Detailing Events and Statements by Third Parties. Prepared by Agent11

The Department states that the chronology of events, and

statements by third parties, contained in a fifteen page document

prepared by a federal agent, implicates ten of the thirteen

privacy interests of "third parties," including law enforcement

personnel, cooperating witnesses, sources, and potential

witnesses. Privacy interests in some information, such as

medical records, personal expense accounts, and credit histories

are sufficiently weighty as to any "third party" to justify

nondisclosure. Other privacy interests, such as an individual's

connection with the criminal investigation, "personal details,"12

11 The court again notes that because the Department has relied on only the privacy exemptions, it does not consider the possible application of other exemptions under § 552 (b) .

12 The explanation offered for "personal details" states: "Disclosure of documents containing private details about an individual can lead to disclosures that would reveal the identity

26 relationships to defendants, and personal experiences depend for

their significance on the individual involved or are too general

to provide a sufficient justification for nondisclosure.

Individuals other than the defendants and Eckman have a privacy

interest in nondisclosure of their connection to the

investigation such that their identities should be protected.

But even without the individuals' identities revealed, the

chronology would seem to provide a good source for evaluating the

investigation.

As the Department has failed to meet its burden to provide

sufficient detail to justify withholding this document in its

entirety, it must either redact the truly private information,

with appropriate explanation, and release the document, or

prepare a more complete and specific explanation of why the

entire document is exempt from disclosure.13

of an individual's relatives, what babysitters a family uses, who baked a birthday cake for whom, who is invited to an engagement or anniversary dinner, whose children play together, and charitable endeavors of individuals." The same could be said for almost any information about an individual that would allow someone to do further investigation. To the extent the withheld chronologies, in fact, reveal individuals' baby sitters, relatives, recipients of birthday cakes, friends, and charities, they may involve significant privacy interests. The Department must be more specific.

13 The Department provides a general explanation of why redaction would not sufficiently protect the privacy interests at stake in the 14,000 withheld documents. While the explanation may apply to many documents, it does not apply to all. For instance, to the extent the Department argues that redaction of identifying information will not protect the three aldermen defendants from being identified with the investigation, the Department is protecting a nonexistent privacy interest. On the other hand, the court agrees that in circumstances where the

27 5. Presentence Reports on Third Party Defendants

Although presentence reports are subject to FOIA disclosure,

they often contain information that is sufficiently private to

justify withholding them under a privacy exemption. See Crooker

v. United States Parole Comm'n, 760 F.2d 1, 3 n.2 (1st Cir.

1985). As has been discussed, the public's general interest in

the conduct of the investigation and prosecutions does not weigh

heavily against the defendants' significant privacy interest in

the information contained in presentence reports. The Department

appropriately withheld the presentence reports.

6. Correspondence Between Attorneys Representing Third Parties and the United States Attorney

The Department groups 164 pages of correspondence into a

category that it describes as implicating general privacy

interests in financial information, medical records, criminal

histories, personal experiences, telephone records, relationship

to the defendants, and other personal details about targets of

the investigation (some of whom were not indicted), witnesses,

and other sources of information. As the contents of such

correspondence is not specifically described, well-known, or

self-evident, the extent of public interest in the information

individuals identities cannot be hidden by redaction and the information is private (such as personal financial or medical information), withholding entire documents is the only solution. The Department's general, across-the-board approach, however, does not satisfy its burden of demonstrating why redaction, in some cases, would not protect privacy interests. See Church of Scientology, 30 F.3d at 238 n.22.

28 cannot be determined and the generic privacy interests asserted

are not adequate to justify withholding the documents.

The Department shall provide greater detail about the

identities of the third parties (breaking them into classes if

necessary to protect their actual identities) and the particular

privacy interests implicated by the letters (e.g., all of the

defendants' attorneys' letters implicate their connection to the

investigation but only some may reveal financial or telephone

information), and to explain whether redaction could be effective

to permit disclosure of any of the withheld correspondence.

7. Correspondence From Assistant United States Attorney to Probation Officer Regarding the Defendants

Five pages of correspondence from the Assistant United

States Attorney handling the prosecution of the defendants to the

Probation Officer is withheld because it contains personal

details and the criminal histories of the defendants. Although

the "personal details" privacy interest presented by the

Department is terribly imprecise, the information gathered by the

probation department (a neutral information-gathering arm of the

court) is known by the court to include significantly private

information about a defendant. Telegraph contends that the

correspondence would serve the public interest by revealing the

prosecutor's thought process and information known at that stage

of the case. Recognizing some validity to the public interest

asserted, the court nevertheless concludes that the defendants'

privacy interests protecting the kind of personal information

29 described outweighs the articulated public interest. This

category is properly withheld.

8. Correspondence from the FBI to the United States Attorney Dated 3/31/93

The declaration describes the correspondence as nine pages

summarizing the statements of ten witnesses about matters before

the grand jury. The Department lists nine of the thirteen coded

privacy interests including connection to the investigation,

financial matters, telephone information, personal details, and

medical records as justification for nondisclosure. Telegraph

acknowledges the potential privacy interests in the information

and suggests that redaction of the witnesses' identities and

other names from the documents would cure at least some of the

privacy interests asserted. Telegraph also contends that it

needs more detail about the information in the correspondence to

present its case, although it assumes that the correspondence

"would shed a good deal of light on the government's

investigation and prosecution of the three Nashua aldermen."

Despite Telegraph's uncertainty, this category seems

relatively clear: witnesses before the grand jury gave evidence

pertaining to the investigation. The summary of witnesses'

statements would certainly provide some insight into the type and

amount of evidence of wrongdoing in the aldermen cases, but

balanced against the substantial privacy interests of the

witnesses and unindicted suspects in the investigation,

disclosure of the documents with all identifying information

30 would very likely constitute an unwarranted invasion of personal

privacy. Accordingly, the Department shall respond to the

possibility of redacting identifying information from the

correspondence to permit partial disclosure.

9. Criminal Authorization Sheet re Third Party Defendants

The Department contends that the six-page criminal

authorization sheet is exempt from disclosure because it reveals

social security numbers and the identities of suspects who were

not indicted. Because neither the court nor Telegraph knows what

information a "criminal authorization sheet" may be expected to

include, neither can assess the public interest in the

information or weigh it against the privacy interests asserted by

the Department. If there were a public interest in the

information, it would seem that redaction of the social security

numbers and other identifying information about unindicted

suspects might cure the privacy issues raised. The Department

shall provide a more detailed description of the information

withheld in this category and shall also address redaction of

sensitive information.

10. Prosecution Memoranda, Draft Indictment and Cover Letter From AUSA to Public Integrity Section, Criminal Division, Department of Justice, re Third Party Defendants

The Department describes this category of eighteen pages as

"various prosecutorial documents" that connect individuals to the

criminal investigation, including suspects who were investigated

31 but not indicted, witnesses, and informants. The Department also

states that the documents include individuals' financial

information. It seems likely that the prosecution memoranda,

whatever they may be, implicate protectable privacy interests.

The imprecise category, however, is insufficient to support

summary judgment in the Department's favor. The Department shall

provide a Vaughn index of these documents to allow a reasoned

evaluation of the competing interests implicated by disclosure.

11. Correspondence--Character Letters by Third Parties re Third Party Defendant for use in Sentencing

The information in this category of 240 pages is readily

understood and evaluated. The information is private, and the

defendants' privacy interests in the information is not overborn

by the public's interest in reviewing the investigation. As

disclosure of this information would be an unwarranted invasion

of the defendants' privacy and the privacy of those writing the

letters, the correspondence in this category is properly

withheld.

12. Nashua Police Department Reports of Five Witness Interviews

The witness interviews were conducted during ten days prior

to convening the grand jury and provided the information that

became the focus of the grand jury's proceedings. The reports

comprise fifty-one pages. The Department lists seven of the

coded privacy interests in support of withholding the reports:

32 connection with the investigation, financial matters, personal

details, individuals' relationships to the criminal defendants,

cooperating witnesses and other sources of information, names of

law enforcement personnel, and potential witnesses. Telegraph

asserts that this category and the next include information that

might shed light on the interaction between city and federal law

enforcement in this case.

While the court credits the Department's assertion of

privacy interests in the reports, because the presentation is

bereft of detail specific to the reports, it is difficult to

weigh the competing interests. Many of the privacy concerns that

are based on identification of individuals or their names could

certainly be addressed through appropriate redaction. Whether

redaction can address all or most of the privacy concerns so that

the balance tips in favor of disclosure of some of the

information cannot be determined on this record. The

declaration, therefore, is insufficient.

The Department shall review the reports and provide a more

detailed analysis, as reguired in a Vaughn index, of the privacy

interests implicated by the information and the possible

ameliorative effect of redaction.

13. Nashua Police Department Reports of Third Party Witnesses' and Targets' Interviews After the Grand Jury Convened

The Department contends that the 391 pages of reports made

after the grand jury convened involve all thirteen of the privacy

33 interests listed: the same privacy interests as the earlier

reports along with privacy interests in financial information,

telephone records and numbers, personal details, and individuals'

relationships with the defendants. The Department does not

explain the significance of separate categories for reports made

before and after the convening of the grand jury. The same

concerns and problems apply to this category as to its

counterpart, number twelve, and the Department shall respond

accordingly.

14. FBI Reports of Third Parties for the Grand Jury

The Department categorically withheld 112 pages of FBI

"302s" or reports of interviews of witnesses, targets, and

confidential informants that were prepared for the grand jury on

grounds that the reports implicate all thirteen privacy

interests. The same issues apply to this category as were

discussed in numbers twelve and thirteen, and the Department

shall respond accordingly.

15. Grand Jury Transcripts and Exhibits

The Department withheld all grand jury transcripts and

exhibits, separated into two different categories, on grounds

that they contain private information. Relying exclusively on

the privacy exemptions, 6 and 7 (c) , the Department asserts that

it need not claim the grand jury exemption. The Department's

piecemeal approach to its FOIA obligations is both frustrating

34 and unjustifiably time consuming. While the transcripts and

exhibits no doubt contain some private information, they may also

contain information that is sufficiently nonprivate that it would

be disclosable but for Exemption 3 and Federal Rule of Criminal

Procedure 6(e). The Department's justification is insufficient

as presented, and it shall address all applicable exemptions in

appropriate detail.

16. Assistant United States Attorneys' Notes on Investigation and Correspondence With Third Parties

The declaration describes 137 pages in the category as lists

of guestions for the grand jury proceeding and notes about

witnesses and their statements to the grand jury. As in prior

categories, the Department asserts several of the coded privacy

interests (connection with the investigation, financial matters,

telephone information, personal details, relationship to the

defendants, and status as witness or informant) without

particularized detail pertaining to the information in this

category. The category lacks sufficient detail to determine

whether redaction of private information and names would be

sufficient to protect the privacy interests asserted. The

Department shall address the category in greater detail,

including whether redaction would allow disclosure of at least

some of the information.

17. Assistant United States Attorney's Correspondence With Law Enforcement Agencies About Investigation

35 The three pages in this category consist of correspondence

to law enforcement agencies including the New Hampshire State

Police and the Nashua Police Department. The Department contends

that the correspondence would reveal the names and identities of

law enforcement personnel, and unindicted suspects. The

Department shall address redaction with respect to this category.

18. Grand Jury Exhibits

The Department withheld 561 pages of grand jury exhibits as

implicating most of the listed privacy interests. To the extent

that these exhibits reveal financial matters, medical records,

telephone information, and identities of individuals with

reasonable privacy interests in the information, that information

is properly withheld. If otherwise disclosable information is

included in the category, the Department shall address whether

the identities of individuals may be redacted to protect their

privacy interests in that information.

19. FBI Reports of Documents Received Pursuant to Grand Jury Subpoenas

This category includes nineteen pages of "302" reports that

the Department describes as a chronicle of documents received by

the FBI in response to grand jury subpoenas. The Department

asserts privacy interests in revealing connections to the

investigation, financial matters, telephone records, medical

records, and social security numbers. Although the court is not

familiar with an FBI chronicle of this type, it seems likely that

36 this category does not include individuals' private records, but

only refers to them, and that redaction of individuals'

identities and social security numbers might protect their

legitimate privacy interests. The Department shall provide

greater detail about the category, as necessary to properly

describe its contents, and shall address redaction of the

reports.

20. Two Categories of Materials Submitted In Camera

As to the first category of in camera information, the

Department contends that disclosure of its existence in the

possession of the Department would indicate that the grand jury

had considered individuals connected with the information to be

implicated in the aldermen investigation and thus invade their

privacy. The court disagrees. The withheld information is

described as ninety-two pages of campaign contribution lists of

all of the Nashua aldermen and women from 1982 through 1992.

Since three Nashua aldermen were indicted, the fact that

contribution lists were part of the investigatory file (whether

or not they were examined by the grand jury) should surprise no

one. Thus, the mere connection between the lists and the

investigation does not invade the privacy of unindicted people.

The court makes no finding as to the relative privacy and public

interests in the contents of the lists, as Telegraph has not yet

had an opportunity to present its case for disclosure.

37 The first category also includes a variety of other

documents that the Department contends it cannot publicly

identify without violating the privacy of individuals. The

first, a newspaper article by Andrew Wolfe, dated April 6, 1994,

is described as implicating an uninvolved third party in the

investigation because the article mentions that defendant Magee

visited him in the hospital. The privacy interest, if any, in

the article does not prevent identification.

The existence of correspondence pertaining to a FOIA reguest

to the Department on behalf of Eckman need not be withheld as

Eckman made his connection to the investigation a matter of

public record. The last two items are described as a letter to

the Department from a third party (no information about the

subject matter is provided) and a letter to defendant Magee

concerning closing an investigation, with a newspaper article

attached. Those items implicate sufficiently private interests

of the identified parties to tip the balance against public

identification.

The second category consists of various audio and video

tapes. The first two audio tapes are properly withheld. The

video tape about defendant Kuchinski that was televised in April

1991 need not be protected from identification. The age of the

video tape, in this case, should not be determinative, as Andrew

Wolfe made his first reguest for information four years after the

tape was broadcast, when it was not "practically obscure" as the

Department now argues. The fact that the last two video tapes

38 exist in the file may be revealed as Eckman has not protected his

privacy as a target of the investigation.

The Department shall decide whether the in camera materials

that now must be appropriately identified (the campaign

contribution lists, the April 1994 article, the FOIA reguest on

behalf of Eckman, the Kuchinski video tape, and two Eckman video

tapes) are exempt from FOIA disclosure, and if so, properly

justify withholding them.

21. Table of Contents of Trial Notebook

The Department states that the table of contents "reiterates

all of the above categories" referring, apparently, to the

twenty-five categories listed in the declaration before the

contents category and invokes all of the listed privacy

interests. No further explanation is offered. As the Department

has not identified the source or use of the trial notebook or

provided any factual specifics about the information included, it

has not carried its burden to describe a category of withheld

information with sufficient detail to allow the court to weigh

competing interests. A Vaughn index is reguired to determine

whether this category of information is exempt from disclosure.

In summary, the Department has provided a sufficient

justification for withholding the following categories of

information as identified in the third supplemental declaration

and the declaration for in camera review: (1) category 2,

39 materials responsive to grand jury subpoenas; (2) category 6,

presentence reports; (3) category 8, correspondence from the AUSA

to the Probation Officer; (4) category 12, character letters; (5)

category 23, the last two items described (letters); (6) category

24, the first two audio tapes. As to the remaining information,

the Department's showing is insufficient to permit identifying

and balancing competing interests under Exemptions 6 and 7 (c).

For the remaining categories of documents, the Department shall

provide either greater detail and specification as to the

identified category or a Vaughn index of individual documents.

In either case, the Department shall address the efficacy of

appropriate redaction with respect to individual documents or

categories of documents. Further, the Department shall raise and

fully address all exemptions that it contends are applicable to

justify nondisclosure of any of the withheld information.

C. Attorneys' Fees

Telegraph reguests that it be awarded attorneys' fees at

this stage in the litigation. FOIA allows the court, in its

discretion, to award attorneys' fees to a reguesting party who

substantially prevails in an FOIA reguest. 5 U.S.C.A. §

552(a)(4)(E). An attorneys' fee award depends upon a two-step

process: substantial success and the balance of four eguitable

factors. See Maynard, 986 F.2d at 568. Although an interim

award of fees may be appropriate in some cases. Telegraph has

made an insufficient showing in support of its reguest. See,

40 e.g., Allen v. F.B.I, 716 F. Supp. 667, 672 (D.D.C. 1988).

Accordingly, the court declines to exercise its discretion to

award attorneys' fees at this stage.

CONCLUSION

For the foregoing reasons. Telegraph's motion for a Vaughn

index (document no. 34) is granted in part and denied in part,

and the Department's motion for summary judgment (document no.

30) is granted in part and denied in part.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 30, 1997

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