SHAPIRO v. DEPARTMENT OF JUSTICE

Filing 50

MEMORANDUM OPINION & ORDER denying without prejudice the government's combined 38 Motion to Dismiss and Alternative Motion for Summary Judgment and denying without prejudice the plaintiff's 41 Cross-Motion for Summary Judgment. See text for details. The parties shall propose a schedule for further proceedings on or before June 25, 2020. Signed by Judge Dabney L. Friedrich on June 11, 2020. (lcdlf1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RYAN NOAH SHAPIRO,
Plaintiff,
v.

No. 16-cv-1959 (DLF)

UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant.
MEMORANDUM OPINION AND ORDER
Ryan Noah Shapiro is a Ph.D. candidate in the Department of Science, Technology, and
Society at the Massachusetts Institute of Technology. Compl. ¶ 1, Dkt. 1. He seeks access to
various Department of Justice documents under the Freedom of Information Act (FOIA), 5
U.S.C. § 552. Id. ¶¶ 9–32. His request includes the “Lewis List” and related materials. See id.
The Department relies on the Lewis List to determine whether allegations of misconduct must be
disclosed in connection with court proceedings. Declaration of Vinay J. Jolly (“Jolly Decl.”)
¶ 25, Dkt. 14-1. Shapiro filed this lawsuit alleging that the Department violated FOIA by
unlawfully withholding responsive records. Compl. ¶ 34.
Before the Court are the Department of Justice’s Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment, Dkt. 38, and Shapiro’s Cross-Motion for Summary Judgment,
Dkt. 41. At issue on summary judgment is the Department’s basis for invoking FOIA
Exemptions 5, 6, 7(C), and 7(F) to withhold responsive records. See Pl.’s Opp’n at 9 n.4, Dkt.
40. Because the Department’s supporting materials lack sufficient detail to determine whether

the Department properly invoked these exemptions, the Court will deny both motions without
prejudice.
A FOIA dispute is unusual in our adversarial system. The plaintiff “faces an
‘asymmetrical distribution of knowledge’ where the agency alone possesses, reviews, discloses,
and withholds the subject matter of the request.” Judicial Watch, Inc. v. Food & Drug Admin.,
449 F.3d 141, 146 (D.C. Cir. 2006) (quoting King v. U.S. Dep’t of Justice, 830 F.2d 210, 218
(D.C. Cir. 1987)). The agency meanwhile “has the difficult obligation to justify its actions
without compromising its original withholdings by disclosing too much information.” Id.
With this balancing act in mind, the D.C. Circuit has settled on requiring the agency to
submit the following information: The agency must “describe each document or portion thereof
withheld.” King, 830 F.2d at 223. It must “specifically identify[] the reasons why a particular
exemption is relevant.” Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251
(D.C. Cir. 1977). It must “correlat[e] those” claimed exemptions “with the particular part of a
withheld document to which they apply.” Id. And “for each withholding it must discuss the
consequences of disclosing the sought-after information.” King, 830 F.2d at 223–24.
This set of requirements “serves three important functions that help restore a healthy
adversarial process.” Judicial Watch, 449 F.3d at 146. First, “it forces the government to
analyze carefully any material withheld.” Id. Second, “it enables the trial court to fulfill its duty
of ruling on the applicability of the exemption.” Id. And third, “it enables the adversary system
to operate by giving the requester as much information as possible” for challenging the
withholdings in court. Id.
Form follows function, and so agencies “frequently rely on Vaughn indices” to satisfy
these requirements. DiBacco v. U.S. Army, 795 F.3d 178, 186 n.2 (D.C. Cir. 2015). A Vaughn

2

index is “a system of itemizing and indexing” that correlates the agency’s “refusal justification
with the actual portions of the document” withheld. See Vaughn v. Rosen, 484 F.2d 820, 827
(D.C. Cir. 1973). That said, an agency’s supporting materials can take any form so long as they
meet all the requirements mentioned above. See Judicial Watch, 449 F.3d at 146. Here, the
Department of Justice has opted not to submit a Vaughn index. It relies instead on seven
supporting affidavits.1 It also has offered to provide documents for in camera review if
necessary. See Def.’s Opp’n at 2 n.1, Dkt. 44.
The Department’s supporting affidavits do not satisfy these requirements. To start, in
most instances, the affidavits do not describe “each document or portion thereof withheld” in
enough detail for the Court to evaluate the claimed exemption. King, 830 F.2d at 223. Take the
Lewis List itself. The Tischner Declaration suggests that the list has two columns of
information—the officer’s name and a designation such as “no record found” or “see
supervisor.” Tischner Decl. ¶ 14–16. But the Nails Declaration suggests that the list also
includes other “identifying information” and “AUSA notations providing the reason for the
officer being flagged.” Nails Decl. ¶ 28. The Court cannot evaluate the justifications for
withholding the Lewis List without more clarity about what it contains.
There are other examples. The Department of Justice described one set of documents as
“three emails and their attachments” contained “[o]n the U: drive [in] a folder named ‘Lewis.’”
Nails Decl. ¶ 20. It described another set as “documents contained on the I: drive related to the
Lewis [sic] List and Lewis [sic] Committee.” Id. ¶ 21. It described one document merely as “an

1

See Jolly Decl.; Declaration of Gary A. Nails (“Nails Decl.”), Dkt. 14-2; Declaration of Richard
Tischner, Dkt. 14-3; Declaration of Assistant Chief Robert Contee, Dkt. 30-1; Second
Declaration of Gary A. Nails, Dkt. 31-1; Second Declaration of Vinay J. Jolly (“Second Jolly
Decl.”), Dkt. 31-2; Declaration of David M. Hardy, Dkt. 38-1.

3

Excel spreadsheet named ‘MPD Members’” that “contained the names and other identifying
information of MPD officers.” Id. ¶ 29. And when it withheld each of former Assistant U.S.
Attorney (AUSA) Roy McLeese’s emails that related to the Lewis List—3,199 emails in all—it
described those emails as falling mainly into two categories. Second Jolly Decl. ¶¶ 5–6. Not
only did the Department fail to describe the emails that fell beyond those two categories, but also
the descriptions of the two categories themselves are “too vague and non-specific to evidence
that [the agency] carefully analyzed all information withheld.” Budik v. Dep’t of Army, 742 F.
Supp. 2d 20, 36 (D.D.C. 2010). The Department’s descriptions of other documents are similarly
vague. See, e.g., Nails Decl. ¶¶ 17–30.
The Department of Justice also has not “correlat[ed]” its claimed exemptions “with the
particular part of a withheld document to which they apply.” Mead Data Cent., 566 F.2d at 251.
For example, the Department “asserted Exemption 5 to protect [an] AUSA’s internal comments
and memoranda and emails between AUSAs.” Jolly Decl. ¶ 28. It used Exemption 6 “to protect
information pertaining to third-party individuals.” Id. ¶ 40. It invoked Exemption 7(C) to
withhold “[a]ll of the information at issue in this matter.” Id. ¶ 32. And it applied Exemption
7(F) “to the documents in this case in conjunction with other exemptions.” Id. ¶ 42. With
descriptions this general, the Court cannot discern whether the Department has “claim[ed]
exemptions too broadly, thereby sweeping unprotected information within the statute’s reach.”
Judicial Watch, 449 F.3d at 147.
Of course, the Department of Justice need not “treat each document individually,” and
“codes and categories may be sufficiently particularized to carry the agency’s burden of proof.”
Id. But the Department’s submissions do not resemble the specificity of other submissions that
the D.C. Circuit has blessed. See id. (affirming a categorical approach when the agency coupled

4

a detailed Vaughn index with affidavits justifying the withheld categories). They resemble
instead the “broad, sweeping, generalized claims under several exemptions covering voluminous
information running many hundreds of pages” that “sparked the remand in Vaughn” itself. Mead
Data Cent., 566 F.2d at 251.
None of this is to say that the Department of Justice cannot ultimately show that its
withholdings were proper under one or more exemptions. Nor does this opinion prevent the
Department from explaining why in camera review might be appropriate for particular
documents. But for now, the Court lacks “the minimal information necessary to make a
determination” in this FOIA dispute. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d
854, 861 (D.C. Cir. 1980). The Department must therefore “identify with reasonable specificity
the information withheld from each document,” provide “a reasonably detailed justification for
invoking the exemption,” connect “the claimed justification with the specific information
withheld,” Budik, 742 F. Supp. 2d at 39, and “for each withholding . . . discuss the consequences
of disclosing the sought-after information,” King, 830 F.2d at 223–24.
For these reasons, it is
ORDERED that the Department of Justice’s Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment, Dkt. 38, is DENIED without prejudice. It is further
ORDERED that Shapiro’s Cross-Motion for Summary Judgment, Dkt. 41, is DENIED
without prejudice. It is further
ORDERED that the Department of Justice supplement the record with a Vaughn index,
additional affidavits, or other materials that address the deficiencies identified in this
memorandum opinion. It is further

5

ORDERED that the parties shall confer and propose a schedule for further proceedings,
including renewed motions for summary judgment, if necessary, on or before June 25, 2020.

________________________
DABNEY L. FRIEDRICH
United States District Judge

June 11, 2020

6