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

Filing 40

ORDER AND REASONS: IT IS HEREBY ORDERED that 33 Motion for Summary Judgment is GRANTED as to the requested relief of ordering the defendant to produce the withheld documents for an ex parte in camera inspection. The motion is otherwise DENIED. I T IS FURTHER ORDERED that 34 Motion for Summary Judgment is GRANTED as to the requested relief of the court conducting an ex parte in camera inspection of the withheld documents. The motion is otherwise DENIED. IT IS FURTHER ORDERED that the defe ndant produce the withheld documents to the court for an ex parte in camera inspection within 15 days of the date of this Order. The court will then determine whether the documents were properly withheld pursuant to the claimed FOIA exemptions. Signed by Judge Mary Ann Vial Lemmon on 6/13/2018. (ajn)

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 plaintiffs,
Robert Beard, Carolyn Milton, Garry Lewis, and the Town of Livingston, Louisiana (Doc. #33), and
the defendant, the United States Army Corps of Engineers (the "USACE") (Doc. #34).
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 emails and attachments to 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 stated the names of the senders and recipients, the subject line contents, date
and number of attachments to each email. The USACE claimed that all of the documents were
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 was stated as "Internal communication, predecisional, deliberative or
Attorney/Client privileged."

The court found that the original Vaughn index was insufficient and ordered the USACE to
produce an amended Vaughn index 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 USACE produced the supplemental Vaugh index, which lists 66 emails as exempt. Also, the
USACE released 72 emails that were considered "non-exempt" after another review.
Plaintiffs filed the instant motion for summary judgment arguing that the supplemental
Vaughn index does not contain a detailed analysis of the withheld documents sufficient to test the
USACE's claimed exemptions and does not identify any of the attachments to the emails. Plaintiffs
also argue that the supplemental Vaughn index contains new documents that were not on the original
Vaughn index and uses a different numbering system than the original Vaughn index, which makes
it impossible to compare the two to ensure that all of the documents were produced or properly
withheld. Plaintiffs contend that the USACE is deliberately trying to conceal relevant non-exempt
documents. Plaintiffs seek the immediate release of all of the withheld emails and their attachments,
a revised Vaughn index giving more detailed descriptions of the withheld documents and the reasons
asserted for withholding them along with a segregability analysis, or an open in camera inspection
of the documents with counsel for both sides present. Plaintiffs additionally seek an order awarding
them attorneys' fees.
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The USACE filed a cross-motion for summary judgement arguing that its supplemental
Vaughn index complies with the court's order and that it has properly withheld the listed documents.
The USACE attached to its motion another revised Vaughn index which compares the two
previously produced Vaughn indices and indicates the status of each of the documents listed. The
USACE seeks an order finding that it has complied with its FOIA obligations and that the
documents listed on the Vaughn indices were properly withheld. However, the USACE states that
an ex parte in camera inspection "may be the most efficient method to dispose of this matter," and
consents to the court reviewing the withheld documents without counsel present to ensure that they
are indeed subject to the cited FOIA exemptions. The USACE argues that the plaintiffs' request for
attorneys' fees should be denied at this time and the court should order the plaintiffs to file a motion
on that issue after the ex parte in camera inspection.
After reviewing the supplemental Vaughn index, the comparison of the Vaughn indices and
the parties' arguments, the court finds that an ex parte in camera inspection of the withheld
documents is warranted to ensure that they are indeed subject to the FOIA exemptions claimed.
Therefore,
IT IS HEREBY ORDERED that Plaintiffs' Motion for Summary Judgment (Doc. #33) is
GRANTED as to the requested relief of ordering the defendant to produce the withheld documents
for an ex parte in camera inspection. The motion is otherwise DENIED. Plaintiffs may file a
motion for summary judgment on the attorneys' fees issue after the ex parte in camera inspection
is completed.

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IT IS FURTHER ORDERED that the Defendant's Motion for Summary Judgment (Doc.
#34) is GRANTED as to the requested relief of the court conducting an ex parte in camera
inspection of the withheld documents. The motion is otherwise DENIED.
IT IS FURTHER ORDERED that the defendant produce the withheld documents to the
court for an ex parte in camera inspection within 15 days of the date of this Order. The court will
then determine whether the documents were properly withheld pursuant to the claimed FOIA
exemptions.

New Orleans, Louisiana, this _____ day of June, 2018.

____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE

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