Pickard v. Department of Justice
Filing
210
ORDER ON SUFFICIENCY OF VAUGHN INDEX Re: Dkt. Nos. 207 208 . Signed by Judge Nathanael Cousins on 2/19/2015. (lmh, COURT STAFF) (Filed on 2/19/2015)
1
2
3
4
5
UNITED STATES DISTRICT COURT
6
NORTHERN DISTRICT OF CALIFORNIA
7
8
WILLIAM LEONARD PICKARD,
9
Plaintiff,
United States District Court
Northern District of California
11
ORDER ON SUFFICIENCY OF
VAUGHN INDEX
v.
10
Case No.06-cv-00185-CRB (NC)
DEPARTMENT OF JUSTICE,
Re: Dkt. Nos. 207, 208
Defendant.
12
13
14
In this Freedom of Information Act case, plaintiff William Pickard seeks
15
information from the federal government relating to confidential informant Gordon Todd
16
Skinner. Because the government seeks to withhold the requested documents, it filed a
17
113-page Vaughn Index. Dkt. No. 166. Such an Index was supposed to identify each
18
document withheld, as well as the statutory exemption claimed. This Index also should
19
have provided a particularized explanation of how disclosing a specific document would
20
damage the interest protected by the claimed exemption.
21
The District Court found the prior Index “supremely unhelpful,” and ordered the
22
government to submit a new Vaughn Index to the undersigned magistrate judge for review.
23
Dkt. No. 198 at 1, 8 (adding that the “declaration in support of the Vaughn Index is no
24
better” at providing information about the documents’ contents and the exemptions that
25
apply).
26
After reviewing the most recent Vaughn Index and the responsive documents, this
27
Court finds that the Index—even when viewed in combination with the government’s
28
supporting declaration—fails to sufficiently describe the withheld documents in adequate
Case No.: 06-cv-00185-CRB
1
detail so as to allow Pickard to challenge the government’s claimed exemptions. The
2
government also failed to identify what documents have already been released publicly,
3
which the District Court ordered it to do.
Accordingly, this Court orders the government to file a new Vaughn Index and
4
5
supporting declaration.
6
I.
This case has been litigated for over 8 years, and its history is therefore substantial.
7
8
BACKGROUND
The Court focuses only on the limited background relevant to this Order.
Pickard seeks documents from the Drug Enforcement Agency pertaining to DEA
10
informant Gordon Todd Skinner. District Court Judge Breyer denied the government’s
11
United States District Court
Northern District of California
9
motion for summary judgment, which argued that all documents related to Skinner were
12
categorically exempt. Dkt. No. 198. Judge Breyer also denied Pickard’s motion for
13
summary judgment, which argued that references to Skinner’s name, Skinner’s NADDIS
14
number, and information publicly disclosed by Skinner could not be exempt. Id. Judge
15
Breyer rejected that argument, finding that without a sufficiently detailed Vaughn Index,
16
the District Court could not determine the propriety of the claimed exemptions. Id.
Judge Breyer ordered the government to file a more detailed Vaughn Index and
17
18
supporting declaration, and to submit the withheld documents to the undersigned judge for
19
in camera review. Id.
20
II.
LEGAL STANDARD
21
Ordinarily, in litigation, the discovery process gives each party access to the other
22
party’s evidence. “In a FOIA case, however, because the issue is whether one party will
23
disclose documents to the other, only the party opposing disclosure will have access to all
24
the facts.” Wiener v. FBI, 943 F.2d 972, 977 (9th Cir. Cal. 1991) (citations omitted).
25
“This lack of knowledge by the party seeking disclosure seriously distorts the traditional
26
adversary nature of our legal system[].” Id. (quoting Vaughn v. Rosen, 484 F.2d 820, 824
27
(D.C. Cir. 1973)). By forcing the requesting party to rely on his opponent’s
28
representations as to the undisclosed material, the “court is deprived of the benefit of
Case No.:06-cv-00185-CRB
2
1
informed advocacy to draw its attention to the weaknesses in the withholding agency’s
2
arguments.” Id.
3
In light of this problem, “[g]overnment agencies seeking to withhold documents
4
requested under the FOIA are required to supply the opposing party with a Vaughn index
5
identifying each document withheld, the statutory exemption claimed, and a particularized
6
explanation of how disclosure of the particular document would damage the interest
7
protected by the claimed exemption.” Kucernak v. FBI, 129 F.3d 126 (9th Cir. 1997)
8
(internal quotation marks and citation omitted). “Specificity is the defining requirement of
9
the Vaughn index.” Wiener v. FBI, 943 F.2d at 979 (emphasis added). Thus, the index
must reveal “as much information as possible without thwarting the exemption’s purpose.”
11
United States District Court
Northern District of California
10
King v. DOJ, 830 F.2d 210, 224 (D.C. Cir. 1987).
12
The purpose of the Vaughn Index is to “afford the FOIA requester a meaningful
13
opportunity to contest, and the district court an adequate foundation to review, the
14
soundness of the withholding.” Wiener, 943 F.2d at 977 (quoting King, 830 F.2d at 218).
15
“The index thus functions to restore the adversary process to some extent, and to permit
16
more effective judicial review of the agency’s decision.” Id. at 978.
17
Notably, “[i]n camera review of the withheld documents by the court is not an
18
acceptable substitute for an adequate Vaughn index” because the Court’s review “does not
19
permit effective advocacy.” Id. at 979; see also Martins v. U.S. Citizenship & Immigration
20
Servs., 962 F. Supp. 2d 1106, 1129 (N.D. Cal. 2013) (“In camera review may supplement
21
an adequate Vaughn index, but may not replace it.”).
22
III. DISCUSSION
23
The Court has reviewed the government’s most recent Vaughn Index and the
24
accompanying supporting declaration of attorney William Little, Jr. Dkt. No. 207. The
25
Court has also reviewed the withheld documents under seal in order to assess whether the
26
Vaughn Index and supporting declaration describe each withheld document with enough
27
detail so as to reveal “as much information as possible without thwarting the exemption’s
28
purpose.” King, 830 F.2d at 224.
Case No.:06-cv-00185-CRB
3
1
This Vaughn Index was produced in response to an order by Judge Breyer.
2
Specifically, Judge Breyer ordered the government to explain—in the Index itself or in a
3
supporting declaration—three details: (1) “what information is in the documents”; (2)
4
“whether that information has already been released publicly”; and (3) “what exemptions
5
would apply that would overcome the presumption in favor of disclosure.” Dkt. No. 198 at
6
9 (citing United States Dep’t of State v. Ray, 502 U.S. 164, 173 (U.S. 1991)).
7
Judge Breyer also criticized the government’s prior Vaughn Index as “conclusory
8
and circular,” and “provid[ing] neither the Court nor the Plaintiff with any useful
9
information about the content of the documents or how the claimed exemptions appl[ied].”
Dkt. No. 198 at 8. To provide guidance as to the level of detail, Judge Breyer pointed to
11
United States District Court
Northern District of California
10
the Wiener case, which involved a university professor’s FOIA request concerning the
12
FBI’s investigation of John Lennon. There, the Ninth Circuit explained how the
13
government should have described a particular document in its Vaughn Index:
14
15
16
17
18
19
Without violating the privacy interests of the informant or the
third party, the FBI could have stated that HQ-8 recites
information provided by a third party to an FBI informant
detailing the third party’s knowledge of several activists and
protest activities planned at the 1972 Republican National
Convention, discussing the possibility that John Lennon would
organize a series of concerts to raise money to finance the
activity, and describing rivalries and jealousies within activist
organizations.
20
Wiener, 943 F.2d at 984. Indeed, courts generally reject Vaughn Indexes when they
21
provide “boilerplate explanations,” particularly those that are part of an agency’s “master
22
response” that they use for several different FOIA requests. Wiener, 943 F.2d at 978; see
23
also Ctr. for Biological Diversity v. OMB, No. 07-cv-04997 MHP, 2008 WL 5129417, at
24
*7 (N.D. Cal. Dec. 4, 2008) (finding Vaughn Index inadequate where descriptions of
25
documents were “replicated verbatim throughout the index”).
26
Here, the Vaughn Index and supporting declaration does describe in detail the titles
27
of sections within the documents and the number of paragraphs that each section contains.
28
See, e.g., Dkt. No. 207 at ¶ 28 (“The Drug Related Information section contains 15
Case No.:06-cv-00185-CRB
4
paragraphs that are number sequentially.”). But it uses the same boilerplate text to
2
describe the contents of those paragraphs. For instance, a 15-paragraph section of an 8-
3
page “Report of Investigation” is said to contain “information provided by a source that is
4
related to several individuals and details their involvement in the illicit manufacturing and
5
distribution of a controlled substance.” Id. The section actually describes information
6
involving the moving of an LSD laboratory, money the DEA reportedly seized, and efforts
7
by different individuals to exchange money from one currency to another. The
8
government could have revealed this information in the Vaughn Index, without violating
9
the privacy interests of any third parties or DEA agents. See Wiener, 943 F.2d at 979
10
(“Unless the agency discloses as much information as possible without thwarting the
11
United States District Court
Northern District of California
1
[claimed] exemption’s purpose, the adversarial process is unnecessarily compromised.”)
12
(internal quotation marks and citation omitted).
13
Instead, the government uses identically broad language—“information provided by
14
a source that is related to several individuals and details their involvement in the illicit
15
manufacturing and distribution of a controlled substance”—to describe numerous
16
documents. See also, e.g., Dkt. No. 207 at ¶ 13 (stating that paragraph “memorialize[s] the
17
source’s conduct and activities related to a criminal investigation of a third-party and
18
contains details regarding the source.”). And nearly all of the documents in the supporting
19
declaration end with the language:
20
21
22
23
24
25
26
27
28
Nothing in the report reflects any Government misconduct or
DEA’s performance of its responsibilities. After withholding
all exempt information, only incomprehensible words and
phrases would remain and no useful information regarding any
FOIA cognizable public interest. Thus, the report was
withheld in its entirety pursuant to the Privacy Act, Exemption
(j)(2), and the FOIA, Exemptions (b)(7)(C), (b)(7)(D),
(b)(7)(E) and (b)(7)(F).
Dkt. No. 207; see also Biological Diversity, 2008 WL 5129417 at *7 (“Any documents
that were of the same type would be given the same explanation for withholding.”). The
Court acknowledges the government’s attempt to further describe the form of the
Case No.:06-cv-00185-CRB
5
1
document. But by ending each document with the same language listing the same
2
exemptions, just as in Wiener, the Court finds that the government made “no effort . . . to
3
tailor the explanation to the specific document withheld.” Wiener, 943 F.2d at 978-79.
Put simply, by using boilerplate language throughout the declaration—both to
4
5
describe the contents of the document and to describe what exemptions apply—the
6
government failed to sufficiently describe the information in the documents, and provide a
7
“particularized explanation” of how disclosure would damage the interest protected by the
8
claimed exemption. See Kucernak, 129 F.3d at 126 (9th Cir. 1997) (citation omitted).
9
Consequently, Pickard has not had a meaningful opportunity to challenge the Vaughn
10
Index exemptions.
Additionally, the government failed to identify information in the documents that
United States District Court
Northern District of California
11
12
has already been released publicly. The most glaring example of this involves pages
13
numbered 285 through 320 of a document that the declaration describes as “court dockets
14
obtained from the Oklahoma State Court Network through the World Wide Web.” Dkt.
15
No. 207-1 at ¶ 79. What the government described is already a public document, and was
16
easily found on the World Wide Web by this Court. Moreover, the government fails to
17
mention that the document concerns and contains Gordon Todd Skinner’s name, the very
18
subject of Pickard’s FOIA request, and a known government informant. See Wiener, 943
19
F.2d at 979 (“Remarkably, in the original Vaughn index submitted by the FBI, John
20
Lennon’s name does not appear at all.”); Pickard v. DOJ, 653 F.3d 782, 784 (9th Cir.
21
2011) (“We simply hold that since Skinner has already been officially identified as an
22
informant by government counsel and agents, the cat is out of the bag . . . .”). Without a
23
more tailored explanation beyond the boilerplate language identified above, the Court does
24
not see how these pages, much less the document in its entirety should be withheld.
25
//
26
27
28
Case No.:06-cv-00185-CRB
6
1
2
IV. CONCLUSION
Because the government failed to follow the standard under Wiener, the Court finds
3
that its most recent Vaughn Index—in combination with Little’s sixth declaration in
4
support—is not sufficiently detailed. Therefore, the Court orders the government to
5
submit an adequate Vaughn Index in accordance with this Order within 28 days.
6
Any party may appeal this non-dispositive order to Judge Breyer within 14 days.
7
Fed. R. Civ. P. 72(a).
8
IT IS SO ORDERED.
9
Dated: February 19, 2015
_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge
Case No.:06-cv-00185-CRB
7
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?