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

Filing 42

ORDER AND REASONS - IT IS HEREBY ORDERED that the USACE has complied with its FOIA obligations and the documents listed on the Vaughn indices were properly withheld. If plaintiffs intend to file a Motion for attorneys' fees, they must set such motion for hearing no later than December 19, 2018. Signed by Judge Mary Ann Vial Lemmon on 10/30/2018.(sa)

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 a 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
argued 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 contended that the USACE was deliberately trying to conceal relevant nonexempt documents. Plaintiffs sought 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
sought an order awarding them attorneys' fees.
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
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USACE sought 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 stated that
an ex parte in camera inspection "may be the most efficient method to dispose of this matter," and
consented to the court reviewing the withheld documents to ensure that they are indeed subject to
the cited FOIA exemptions.
After reviewing the supplemental Vaughn index, the comparison of the Vaughn indices and
the parties' arguments, the court found that an ex parte in camera inspection of the withheld
documents was warranted to ensure that they are indeed subject to the FOIA exemptions claimed.
The court granted both parties' motions for summary judgment as to the requested relief of ordering
the USACE to produce the withheld documents for an ex parte in camera inspection, and stated that
plaintiffs may file a motion for summary judgment on the attorneys' fees issue after the ex parte in
camera inspection is completed. The court ordered the USACE to produce the withheld documents
to the court for an ex parte in camera inspection within 15 days of the date of the Order.
The USACE timely produced the documents. The court has completed its ex parte in
camara inspection of the documents. The court finds that all of the documents listed on the
USACE's revised Vaughn index and produced for the ex part in camera inspection were properly
withheld for the reasons listed as to each document on the operable Vaughn index. Therefore,
IT IS HEREBY ORDERED that the USACE has complied with its FOIA obligations and
the documents listed on the Vaughn indices were properly withheld. If plaintiff's intend to file a
motion for attorneys' fees, they must set such motion for hearing no later than December 19, 2018.
New Orleans, Louisiana, this 30th day of October, 2018.
_____

____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE

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