AWAN v. UNITED STATES DEPARTMENT OF JUSTICE et al

Filing 35

ORDER denying the motion to compel the production of a traditional Vaughn index, contained in 27 Plaintiff's Response to Defendants' Reply in Support of Motion for Summary Judgment. Signed by Judge Beryl A. Howell on 7/13/2011. (DJMAC, ) Docket text modified on 7/14/2011 (DJMAC, ).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

KHALID AWAN,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
JUSTICE, et al.
Defendants.

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Civil Action No. 10-1100 (BAH)

MEMORANDUM OPINION AND ORDER
Plaintiff commenced this case against the U.S. Department of Justice, the Federal Bureau
of Investigation, and Attorney General Eric Holder under the Freedom of Information Act
(FOIA). See Compl. for Injunctive Relief, ECF No. 1. The Defendants have moved for
summary judgment, claiming that several FOIA exemptions justify certain withholdings in their
response to the Plaintiff’s FOIA request. See Defs.’ Mot. for Summ. J., ECF No. 19. The
Plaintiff has since moved the Court to issue an order “directing the Defendants to create a list of
documents, describing each document located by a general description and date of creation, and
file location, in response to his FOIA request.” Pl.’s Resp. to Defs.’ Reply in Supp. of Mot. for
Summ. J. ¶ 1, ECF No. 27 [hereinafter Mot.]. “Without such a list,” the Plaintiff asserts that he
“cannot fairly argue whether or not an exemption properly applies or whether or not an expanded
search is appropriate.” Id.
The Plaintiff thus asks that the Court order the Defendant to prepare a Vaughn index. A
Vaughn index is a document that correlates all withholdings with specific FOIA exemptions and
the agency’s specific nondisclosure justifications. Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.

Cir. 1973). A traditional Vaughn index is not necessary, however, so long as the defendant
“provide[s] a relatively detailed justification [for a withholding], specifically identif[ies] the
reasons why a particular exemption is relevant[,] and correlat[es] those claims with the particular
part of a withheld document to which they apply.” Mead Data Cent., Inc. v. U.S. Dep’t of the
Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). A defendant can do so via “supporting
affidavits.” Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 146 (D.C. Cir. 2006).
Additionally, a defendant can employ a coded approach, whereby the defendant breaks
FOIA exemptions down into several categories, assigns code designations to those categories,
explains those designations, and identifies on redacted copies of partially withheld documents
the codes applicable to particular withholdings. See, e.g., Queen v. Gonzales, No. 96-cv-1387,
2005 WL 3204160, at *3 (D.D.C. Nov. 15, 2005). However, because such “coded commentary
supplies little information beyond that which can be gleaned from context,” a coded approach
often does not provide the Court with enough information to evaluate withholdings “where there
exists wholesale deletions of numerous pages.” Coleman v. Fed. Bureau of Investigation, No.
89-cv-2773, 1991 WL 333709, at *4 (D.D.C. Apr. 3, 1991), aff’d No. 92-5040, 1992 WL 373976
(D.C. Cir. Dec. 4, 1992). Instead, where whole pages have been withheld but the filing of a
more fulsome public explanation of those withholdings would reveal the very information sought
to be withheld, a defendant may explain such withholdings through in camera submissions, if
further explanation is needed. See Lykins v. U.S. Dep’t of Justice, 725 F.2d 1455, 1464 (D.C.
Cir. 1984) (recognizing situations where “the government may be unable to divulge more
information publicly without giving away the information it is trying to withhold”). In such
situations, “the [public] description and explanation the agency offers should reveal as much

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detail as possible as to the nature of the document, without actually disclosing information that
deserves protection.” Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996).
In this case, the Defendants have employed a coded approach, which is explained in the
affidavit of David M. Hardy, the Section Chief of the Record/Information Dissemination Section
of the Records Management Division of the Federal Bureau of Investigation. 2d Decl. of David
M. Hardy ¶¶ 1, 42–44, ECF No. 19-2 [hereinafter Hardy Decl.]. Employing that approach, the
Defendants publicly filed a copy of the release made to the Plaintiff with codes explaining
individual redactions on the pages of those documents. See Hardy Decl. Ex. Z, ECF Nos. 19-4 to
19–5. Under the standards discussed above, this approach appears to satisfy the requirements of
Vaughn with respect to partial withholdings.1 The Plaintiff’s motion to compel the production of
a traditional Vaughn index will therefore be denied.
However, the Defendants also withheld several pages in their entirety. See Ex. Z. Most
of those whole-page withholdings are easily justified as duplicative of other pages that were at
least partially released. See Kishore v. U.S. Dep’t of Justice, No. 07-cv-1299, 2008 WL
4853413, at *1 (D.D.C. 2008) (“The FBI’s withholding of duplicates of five released pages is
immaterial to the FOIA claim . . . .”). But the Defendants also withheld an 11-page span based
on FOIA exemptions 3, 6, and 7(C) and (D). See Ex. Z at Awan-49 to Awan-59. The
Defendants assert that they have publicly released all that they can about these pages without
identifying “the material sought to be protected.” Hardy Decl. ¶ 42. To evaluate the legitimacy

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The Court notes, however, that “even where information has been only partially
withheld, such that the FBI has provided a partially redacted document for reference, the released
text of the documents does not always provide sufficient context to evaluate the withheld
material.” Schoenman v. Fed. Bureau of Investigation, 604 F. Supp. 2d 174, 198 (D.D.C. 2009).
The Court may, of course, upon consideration of the Defendant’s motion for summary judgment,
still conclude that the Defendants’ withholdings have not been justified.
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of this withholding without compromising the protection of that information, the Court will order
in camera inspection.
Accordingly, it is hereby
ORDERED that the motion to compel the production of a traditional Vaughn index,
contained in Plaintiff’s Response to Defendants’ Reply in Support of Motion for Summary
Judgment, ECF No. 27, is DENIED; and it is
FURTHER ORDERED that the Defendants shall, within 15 days, file under seal for in
camera inspection either an additional affidavit in support of its withholding of pages Awan-49
through Awan-59 of Exhibit Z of the Second Declaration of David M. Hardy Exhibit Z, a copy
of those pages, or both.
SO ORDERED this 13th day of July, 2011.

Beryl A. Howell

/s/
BERYL A. HOWELL
United States District Judge

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