Robert Beard, et al v. U.S. Army Corps of Engineers

Filing 28

ORDER AND REASONS that Defendant's 25 Motion for Summary Judgment is DENIED. IT IS FURTHER ORDERED that Plaintiffs' 26 Motion for Summary Judgment is GRANTED as to the requested relief of ordering the defendant to produce a supplemental Vaughn Index. IT IS FURTHER ORDERED that the defendant produce an amended Vaughn index within 30 days of the date of this order as stated herein. Signed by Judge Mary Ann Vial Lemmon on 3/1/2018. (cms)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT BEARD, ET AL.

CIVIL ACTION

VERSUS

NO: 17-2668

U.S. ARMY CORPS OF ENGINEERS

SECTION: "S" (1)

ORDER AND REASONS
This matter is before the court on cross motions for summary judgment filed by the
defendant, the United States Army Corps of Engineers (the "USACE"), and the plaintiffs, Robert
Beard, Carolyn Milton, Garry Lewis, and the Town of Livingston, Louisiana.
This case involves a Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, request for
documents made by plaintiffs to the USACE. Plaintiffs assert that the USACE is improperly
withholding 154 emails that are responsive to their FOIA request. Plaintiffs filed a motion to
compel a Vaughn index, which is a privilege log explaining the documents withheld and the reasons
for the USACE's withholding them. In response, the USACE produced a Vaughn index that states
the names of the senders and recipients, the subject line contents, date and number of attachments
to each email. The USACE claims that all of the documents are withheld under FOIA Exemption
5, which protects from production "inter-agency or intra-agency memorand[a] or letters which would
not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. §
552(b)(5). The reason listed for withholding every entry on the Vaughn index is stated as "Internal
communication, predecisional, deliberative or Attorney/Client privileged."
The USACE agues that it produced all documents responsive to the plaintiff's FOIA request
and an adequate Vaughn index for the withheld documents. The USACE maintains that all of the

documents were properly withheld under FOIA Exemption 5 as "Internal communication,
predecisional, deliberative or Attorney/Client privileged."
Plaintiffs argue that the Vaughn index produced by the USACE is inadequate because it does
not identify the senders and recipients of the emails as either internal agency employees, employees
of other government agencies or non-governmental employees. Plaintiffs argue that some of the
subject lines state that the emails are "EXTERNAL," which would indicate that the privilege
asserted under Exemption 5 may have been waived if one of the parties privy to the email is not a
government employee or an attorney. Plaintiffs also argue that some of the subject lines indicate
that the emails contain final reports, which would not be predecisional, or talking points, which
could be for public disclosure if the document is preparing an agency employee for a public meeting.
Further, plaintiffs argue that the USACE failed to segregate out and produce purely factual
information which would not be subject to exclusion under Exemption 5. Plaintiffs contend that
there is no information in the Vaughn index justifying the withholding of every one of the emails
listed as protected by "attorney/client privilege" because there is no indication that attorneys were
parties to all of the emails or that all of the emails include confidential information provided by the
client to an attorney. Finally, plaintiffs argue that the USACE failed to explain that the documents
contain no information that could be segregated and produced or describe the portion of the
information that is non-exempt and how it is dispersed throughout the document. The plaintiffs seek
immediate release of all of the 154 withheld emails and their attachments, a revised Vaughn index
giving more detailed descriptions of the withheld documents and the reasons asserted for

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withholding them, or an open in camera inspection of the documents with counsel for both sides present.
After reviewing the Vaughn index, the court finds that it is not adequate to explain the
withheld documents and the justification for withholding them for all of the reasons asserted by
plaintiffs. The USACE must provide more detail for the plaintiffs and the court to determine
whether the documents were properly withheld under Exemption 5. As such,
IT IS HEREBY ORDERED that the Defendant's Motion for Summary Judgment (Doc.
#25) is DENIED.
IT IS FURTHER ORDERED that Plaintiffs' Motion for Summary Judgment (Doc. #26)
is GRANTED as to the requested relief of ordering the defendant to produce a supplemental Vaughn
Index.
IT IS FURTHER ORDERED that the defendant produce an amended Vaughn index within
30 days of the date of this order that: specifically identifies the parties to the emails, including their
names, positions, job duties and professional affiliation; includes more detailed descriptions of the
content of the emails and their attachments other than simply the subject line of the email; describes
the portion of the information that is non-exempt and how it is dispersed throughout the document
so that it cannot be separately produced; and, explains the exact reason that the document is
withheld, either as an internal communication that is predecisional and deliberative or an
attorney/client communication. The government must also produce any segregable non-exempt
information in the documents within 30 days of the date of this order. After reviewing the amended
Vaughn index and any additional documents produced, the plaintiffs may file another motion for
summary judgment addressing any perceived inadequacies in the amended Vaugh index. At that
time, the court will determine whether an in camera review is necessary, and if so, whether it should
be ex parte.

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New Orleans, Louisiana, this _____ day of March, 2018.
1st

____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE

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