Opinion
Civil Action No 96-1387 (JAR).
April 4, 2005
MEMORANDUM OPINION
This case arises under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2000), pertaining to Samuel R. Queen's suit seeking disclosure of documents relating to the Federal Bureau of Investigation ("FBI") investigation of Queen for his involvement in a heroin distribution organization. Before the court are the parties' cross-motions for summary judgment. Also before the court is Queen's motion for production of a more specificVaughn index. The court grants Queen's motion for production of a more specific Vaughn index and denies the parties' cross-motions for summary judgment without prejudice.
BACKGROUND
In 1994, Queen submitted FOIA requests for records pertaining to the FBI criminal investigation of Queen. The FBI advised Queen, by letter dated September 1, 1995, that it located approximately 20,000 responsive pages and requested advance payment of $1,990.00 for processing fees. After the FBI denied Queen's fee waiver request, he narrowed his FOIA request by letter dated April 10, 1996, to paperwork that pertains to "money, property, real property, seizures, forfeitures, and all other materials within the definition of `property.'" Defendant's Motion for Summary Judgment (Sept. 1, 1999), at Exhibit C.
On June 18, 1996, Queen filed this FOIA case against the FBI, the Department of Justice Criminal Division ("DOJ"), the Drug Enforcement Administration ("DEA"), and the Executive Office for the United States Attorney ("EOUSA"). On November 10, 1997, the court entered judgment for the DEA. On March 17, 1998, the court granted summary judgment in favor of the DOJ and EOUSA. On May 6, 1998, the FBI produced documents responsive to Queen's narrowed FOIA request, although withholding certain materials pursuant to 5 U.S.C. §§ 552(b)(2), 552(b)(3), 552(b)(7)(C), 552(b)(7)(D), and 552(b)(7)(E). In total, the FBI asserts that it found 414 pages responsive to Queen's request, released 172 pages in part, withheld 19 pages in their entirety, and released the rest.
On motion for summary judgment, Queen alleges that he never received any of the documents released by the FBI. Queen argues that even if he received the documents responsive to his narrowed FOIA request, the FBI should have produced all 20,000 documents responsive to his initial FOIA request. On October 9, 1999, Queen filed a motion requesting an index of all withheld documents and portions of documents pursuant to Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973) [hereinafter Vaughn index].
On cross-motion for summary judgment, the FBI asserts that it released all documents responsive to Queen's narrowed FOIA request that are not subject to exemption. In support of its motion, the FBI supplied the declaration of Scott A. Hodes, Attorney-Advisor of the FBI and Acting Chief in the Litigation Unit, Freedom of Information-Privacy Acts Section [hereinafter Second Scott Hodes Declaration], in which Hodes describes the procedures followed by the FBI headquarters in responding to Queen's FOIA request. The affidavit identifies the records responsive to Queen's FOIA request by the total number of pages discovered. It also provides a description of the exemptions taken and the type of information withheld under each exemption. In response to Queen's motion for a Vaughn index, the FBI asserts that the Second Scott Hodes Declaration satisfies the requirements of Vaughn.
DISCUSSION
In Vaughn, the D.C. Circuit determined that "courts will simply no longer accept conclusory and generalized allegations of exemptions, . . . but will require a relatively detailed analysis in manageable segments." Vaughn, 484 F.2d at 826. Thereafter, a defendant agency in an FOIA case is required to produce aVaughn index compiled of all documents and portions of documents the agency wishes to withhold. Church of Scientology of California, Inc. v. Turner, 662 F.2d 784, 785 n. 1 (D.C. Cir. 1980). Queen argues that the Second Scott Hodes Declaration fails to satisfy Vaughn's requirements because it fails to describe each document and deletion with sufficient specificity and fails to correlate exemptions taken with specific information withheld. The court agrees.An agency can satisfy Vaughn's requirements by submission of agency affidavits that provide "the kind of detailed, scrupulous description that enables a District Court judge to perform a searching de novo review." Id. at 786; see Keys v. United States Dep't of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987) (explaining that "[i]t is the function, not the form, of the index that is important"). The agency's Vaughn index is expected to serve three important functions:
[I]t forces the government to analyze carefully any material withheld, it enables the trial court to fulfill its duty of ruling on the applicability of the exemption, and it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court.Lykins v. United States Dep't of Justice, 725 F.2d 1455, 1463 (D.C. Cir. 1984). In order to perform these functions, a Vaughn index must satisfy certain bare minimum requirements:
(1) The index should be contained in one document, complete in itself.
(2) The index must adequately describe each withheld document or deletion from a released document.
(3) The index must state the exemption claimed for each deletion or withheld document, and explain why the exemption is relevant.Founding Church of Scientology, Inc. v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).
The Second Scott Hodes Declaration fails to satisfy theVaughn requirements because neither the plaintiff nor the court can evaluate the validity of the FBI's exemption claims. "A withholding agency must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information." King v. United States Dep't of Justice, 830 F.2d 210, 223 — 24 (D.C. Cir. 1987) (emphasis in original). In this case, the affidavit fails to provide any document descriptions, let alone specifically describe the type of information withheld. See Scott v. CIA, 916 F. Supp. 42, 48 (D.D.C. 1996) (finding declaration inadequate because it failed to provide the date of the documents, the number of documents withheld, and the nature and type of material contained in the documents). Instead, the FBI indexing method describes the type of information withheld under exemption headings, without reference to which documents and deletions contain which type of information and without correlation between the exemption headings and specific documents withheld and deletions. See Dellums v. Powell, 642 F.2d 1351, 1360 (D.C. Cir. 1980) (holding that each document withheld "must be broken down into manageable segments that are cross-referenced to the relevant claim, defense, or privilege"); Ray v. Turner, 587 F.2d 1187, 1196 (D.C. Cir. 1978) (finding "[a] glaring defect" with aVaughn index that "lumps the exemptions together and fails to identify whether different exemptions are claimed as to different parts of each document"). This type of indexing method fails to meet the FBI's burden of demonstrating the applicability of the exemptions invoked as to each document or segment withheld.
For example, for the nineteen pages withheld in their entirety, it is unclear whether the FBI withheld one nineteen-page document, multiple documents, or specific pages from one or more documents disclosed in part.
Accordingly, the court concludes that the defendant has not provided an adequate Vaughn index upon which to determine whether the claimed exemptions are justified. The FBI must provide a more specific Vaughn index, covering the 414 documents responsive to Queen's narrowed FOIA request. Because the court concludes that the FBI's Vaughn index is deficient, it does not reach the merits of whether the defendant properly asserted exemptions from FOIA disclosure. Neither does the court reach the merits of Queen's allegation that he never received any documents responsive to his FOIA request.
Queen asserts that the FBI should have released all 20,000 pages responsive to his initial FOIA request because his request was limited in time and the FBI did not respond in a timely manner. The court concludes that it was appropriate for the FBI to respond to Queen's narrowed FOIA request. By letter dated April 10, 1996, Queen narrowed his request for documents in order to avoid advance payment of the FBI's processing fees. See 5 U.S.C. 552(a)(4)(A)(v) ("No agency may require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250."). Queen may not now claim that his narrowed FOIA request expired, and demand production of the documents responsive to his initial FOIA request, without paying the FBI's required fees.
Under the FOIA, affidavit evidence may be sufficient to satisfy the court, on summary judgment, that an agency conducted a reasonable search for documents responsive to a FOIA request.Nation Magazine v. United States Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995). By analogy, affidavit evidence may also be sufficient to satisfy the agency's burden to show that the responsive documents were mailed to the FOIA requester. See Pollack v. United States Bureau of Prisons, 1991 U.S. Dist. Lexis 11535, *2 (D.D.C. Aug. 19, 1991) (holding that an agency employee affidavit satisfies the court that the agency mailed requested documents, where "[t]he affidavit is specific and detailed, and the attached photograph and return receipt corroborate the affidavit"). Here, the Second Scott Hodes Declaration, detailing the search for responsive documents, is supplemented by an apparent cover page indicating that the responsive documents were sent to Queen on May 6, 1998.
In support of his allegation that he never received any documents from the FBI, Queen produced a request submitted to the mail room supervisor of the Federal Bureau of Prisons for verification of the receipt of documents from the FBI on or around May 6, 1998. A mail room officer responded that there was no record of the receipt of documents in the log books. On renewed motion for summary judgment, the FBI may wish to submit additional evidence to counter Queen's evidence, by providing either a supplementary affidavit or additional corroborating evidence, in order to satisfy the court that the responsive documents were mailed. Of course, the FBI may choose to send copies of the documents with the Vaughn index.
CONCLUSION
For the reasons set forth above, the court directs the defendant to file a more specific Vaughn index in accordance with the court's rulings. The court denies the parties' cross-motions for summary judgment without prejudice to the renewal of cross-motions for summary judgment after the defendant provides an adequate Vaughn index.