Missouri Coalition for the Environment Foundation v. United States Army Corps of Engineers

Filing 30

MEMORANDUM AND ORDER ( SEE MEMORANDUM AND ORDER FOR COMPLETE DETAILS ) Having conducted the segregability analysis as directed by the Eighth Circuit, the undersigned adopts and incorporates herein the conclusions reached in the Memorandum and Order dated March 20, 2007. Signed by Magistrate Judge Frederick R. Buckles on 6/21/11. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MISSOURI COALITION FOR THE
ENVIRONMENT FOUNDATION,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
UNITED STATES ARMY CORPS
OF ENGINEERS,
Defendant.

No.

4:05CV02039 FRB

MEMORANDUM AND ORDER
I.

Procedural Background
Plaintiff

Missouri

Coalition

For

The

Environment

Foundation (“Plaintiff” or “Coalition”) filed its Complaint on
November 2, 2005, seeking disclosure of a number of documents from
defendant United States Army Corps of Engineers (“Defendant” or
“Corps”), pursuant to the Freedom of Information Act, or “FOIA”, 52
U.S.C.

§

552

et

seq.

All

matters

are

pending

before

the

undersigned United States Magistrate Judge, with consent of the
parties, pursuant to 28 U.S.C. § 636(c).
The

parties

had

previously

filed

cross-motions

for

summary judgment and, on March 20, 2007, this Court entered summary
judgment in favor of the Corps, and the Coalition appealed.

On

September 16, 2008, the United States Court of Appeals for the
Eighth Circuit remanded the case to the undersigned for findings on
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the issue of segregability. Missouri Coalition for the Environment
Foundation v. United States Army Corps of Engineers, 542 F.3d 1204,
1212-13 (8th Cir. 2008).
undersigned

could

In so doing, the Court wrote that the

conduct

such

analysis

on

the

record

as

it

existed, by requesting more detailed information, or, “as a last
resort, by conducting an in camera review.”

Id. at 1213, n.3.

In response to the Eighth Circuit’s decision, having
noted the Eighth Circuit’s characterization of in camera review as
a last resort, this Court requested more detailed information from
the defendant.

On September 21, 2010, Defendant provided a new

declaration from Dr. David M. Goldman (Docket No. 27, Attachment
1); an updated Vaughn index (Docket No. 27, Attachment 2); and
redacted copies of the documents Plaintiff sought. (Docket No. 27,
Attachments 3-8).1
To date, Plaintiff has filed no response to Defendant’s
submissions.

Neither party has filed any motions which remain

pending at the time of this Opinion.
The

facts

as

set

forth

in

this

Court’s

original

Memorandum and Order are adopted and incorporated herein.

In

addition, the undersigned notes the facts as set forth by the
Eighth Circuit, and specifically,

1

Defendant had previously released some of the requested material on its
website. The released material is the entirety of Document 65, and portions of
Documents 41 and 49. In its April 25, 2005 FOIA request, Plaintiff specifically
stated that its request did not include information previously released on the
Internet.

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The Corps conducted a study of flood risk and
recurrence on the Mississippi, Missouri, and Illinois
Rivers known as the Upper Mississippi River System Flow
Frequency Study (“UMRSFFS”). This study’s purpose was to
identify the 100- and 500-year flood plains. The UMRSFFS
commenced in 1997 and its results were released in 2004.
In conducting the UMRSFFS, the Corps instituted a
task force to oversee and review the study. The task
force was divided into two groups-the Technical Advisory
Group (“TAG”) and the Inter-Agency Advisory Group
(“IAG”). The TAG was comprised of subject matter experts
from each of the seven states relevant to the study. The
IAG similarly included subject matter experts from each
of the seven relevant states but also incorporated
experts from other federal agencies, including the
Federal Emergency Management Agency, the Bureau of
Reclamation, the Tennessee Valley Authority, the National
Resource Conservation Service, the United States
Geological Survey, and the National Weather Service. On
behalf of the Corps, Dr. David Goldman coordinated the
IAG and TAG consultants. During the course of the study,
the TAG and IAG advised the Corps on the methodology to
use for the UMRSFFS and reviewed the Corps’ preliminary
results. These discussions and other communication took
place through meetings, written memoranda, and informally
through e-mails.
On April 25, 2005, the Coalition submitted a FOIA
request to the Corps.2 The FOIA request solicited three
broad categories of documents:
1. Each and every document that evidences a
communication to or from a member of the Flow
Frequency Study Technical Advisory Group,
regardless
of
the
other
party
to
the
communication, relating to the Flow Frequency
Study.
2. All agendas and minutes of meetings of the
Flow Frequency Study Technical Advisory Group.
3. Each and every document that evidences
disagreement, dispute or concern about the
assumption adopted in the Flow Frequency Study
that flood flows have been “independently and
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identically distributed” (aka the assumption
of “stationarity”).
The Corps did not provide a written response to the
FOIA request; however, representatives from each party
communicated by phone. No documents were released
pursuant to the request. Subsequently, the Coalition
filed the instant case in district court. In its answer
to the Coalition’s complaint, the Corps asserted the
requested documents were subject to a FOIA exemption.
The Corps moved for summary judgment and attached to
its motion declarations from Corps employees Thomas
Minear and Dr. David Goldman and a Vaughn index
identifying 83 documents responsive to the Coalition’s
FOIA request. The Vaughn index identified each document
with general distinguishing information such as the date
it was generated, the author, the addressees, and whether
the document was a memorandum, e-mail, letter, agenda, or
meeting notes. A short description was provided for each
document
(e.g.,
“E-mail
discussing
potential
methodologies to be used in FFS” or “Letter discussing
the FFS analysis methods”). Finally, each and every
document was identified as privileged under FOIA
Exemption 5, the Deliberative Process Privilege. The
Coalition cross-moved for summary judgment, arguing the
Corps had failed to prove that the documents were exempt
from disclosure. Summary judgment was granted in favor of
the Corps.
2

The Coalition previously submitted a similar request
in 2003, before the UMRSFFS was fully completed, and
subsequently withdrew the FOIA request in anticipation
of the later release of the information.

Missouri Coalition for the Environment Foundation, 542 F.3d at
1207 -1208 (footnote in original).
II.

Discussion
The FOIA mandates disclosure of records held by a federal

agency

unless

exemptions.
provide

such

documents

fall

within

5 U.S.C. §§ 552; 552(b).

wide-ranging

public

access

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certain

enumerated

The FOIA is intended “to
to

government

documents.”

Missouri Coalition for the Environment Foundation, 542 F.3d at 1208
(quoting Miller v. U.S. Dep’t of Agric., 13 F.3d 260, 262 (8th Cir.
1993)).

The FOIA permits access “to official information long

shielded unnecessarily from public view”, and is therefore “broadly
conceived.”

Id. (quoting EPA v. Mink, 410 U.S. 73, 80 (1973)).

“An agency may withhold documents and parts of documents pursuant
to nine enumerated statutory exemptions.”
2005 WL 3275802, *4 (D.D.C.

Manchester v. F.B.I.,

August 9, 2005) (citing 5 U.S.C. §

552(b)). The FOIA’s dominant objective is disclosure, not secrecy,
and the FOIA’s nine exemptions from compelled disclosure must
Davis v. CIA, 711 F.2d 858, 861

therefore be narrowly construed.
(8th Cir. 1983).
district

court

The FOIA provides for de novo review by a

of

an

agency

decision

to

withhold

requested

information, and places the burden on the agency to demonstrate
that a claimed exemption applies.

5 U.S.C. §§ 552; 552(a)(4)(B);

In re Department of Justice, 999 F.2d 1302, 1305 (8th Cir. 1993).
In the case at bar, the Corps claims Exemption 5, the
Deliberative Process Privilege, as its basis for withholding each
of

the

documents

Plaintiff

seeks.

Exemption

5

exempts

from

disclosure “inter-agency or intra-agency memorandums 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

purpose of the exemption is designed “to ensure that ‘open, frank
discussions

between

subordinate

and

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chief’

will

not

be

made

impossible by the agencies having to ‘operate in a fishbowl.’”
Missouri Coalition for the Environment, 542 F.3d at 1209 (quoting
Schwartz v. IRS, 511 F.2d 1303, 1305 (D.C.Cir. 1975.))

“The goal

of the privilege is clear and straightforward: to allow full and
frank discussion while preserving the goal of an open government.”
Id. “Exemption 5 permits nondisclosure if the document in question
is an inter- or intra-agency memorandum which is both predecisional
and deliberative.”

State of Missouri, ex rel. Shorr v. United

States Army Corps of Engineers, 147 F.3d 708, 710 (8th Cir. 1998)
(citing Assembly of State of California v. United States Department
of Commerce, 968 F.2d 916, 920 (9th Cir. 1992).
A document is “pre-decisional” when it is designed to
assist agency decision-makers in arriving at their conclusions, and
which contains the personal opinions of the writer rather than the
agency’s

policy.

Id.

“A

document

is

deliberative

if

its

disclosure would expose the agency’s decision-making process in a
way that would discourage candid discussion and thus undermine the
agency’s ability to perform its functions; the focus is on whether
the document is part of the agency’s deliberative process.”

Id.

Exemption 5 does not apply to factual matters, unless they are
“inextricably intertwined” with pre-decisional policy discussions,
and could not be extracted without compromising the deliberative
process.

Mink, 410 U.S. at 87-88; Washington Research Project,

Inc. v. Department of Health, Education and Welfare, 504 F.2d 238,

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249 (D.C. Cir. 1974).
“The purpose of the deliberative process privilege is to
allow agencies freely to explore alternative avenues of action and
to engage in internal debates without fear of public scrutiny.”
Shorr, 147 F.3d at 710 (citing Assembly of State of California, 968
F.2d at 920.)

Factors to examine in deciding whether a document

falls within the pre-decisional memoranda/deliberative process
exemption include: (1) the identity of the writer and recipient;
(2) the nature of the contents of the document; namely, whether it
is an opinion or recommendation; (3) the timing of the document
relative to the timing of the agency decision; and (4) the status
of the document as an opinion or recommendation.

See Shorr, 147

F.3d at 710; National Wildlife Federation v. United States Forest
Service, 861 F.2d 1114, 1118-20 (9th Cir. 1988); Schell v. United
States Department of H.H.S., 843 F.2d 933, 940 (6th Cir. 1988).
The undersigned has once again reviewed all of the
evidence of record filed in conjunction with the previously-filed
cross-motions for summary judgment.

In addition, the undersigned

has reviewed the materials submitted by the Corps on September 21,
2010; namely, the new Declaration of Dr. David M. Goldman (Docket
No. 27, Attachment 1); the revised Vaughn index (Docket No. 27,
Attachment 2); and the redacted copies of all of the 83 withheld
documents that are the subject of this lawsuit.
Attachments 3-8).

(Docket No. 27,

As indicated above, Plaintiff has in no way

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challenged the adequacy of Defendant’s efforts, Dr. Goldman’s
declaration, the revised Vaughn index, or the redacted documents
provided.

Having reviewed all of the evidence that the record now

contains, the undersigned hereby adopts and incorporates herein all
findings made in this Court’s Memorandum and Order dated March 20,
2007, and also makes the following supplemental findings.
A.

Segregability Analysis
In its opinion, on the issue of segregability, the Eighth

Circuit wrote as follows:
In a FOIA action, the focus is on the information
sought, not the documents themselves. Schiller v.
N.L.R.B., 964 F.2d 1205, 1209 (D.C. Cir. 1992) (citing
Mead Data Cent., Inc., 566 F.2d at 260). “Any reasonably
segregable portion of a record shall be provided to any
person requesting such record after deletion of the
portions which are exempt under this subsection.”
5
U.S.C. § 552(b). The withholding of an entire document
by an agency is not justifiable simply because some of
the material therein is subject to an exemption. Rugiero
v. U.S. Dep’t of Justice, 257 F.3d 534, 553 (6th Cir.
2001). Rather, non-exempt portions of documents must be
disclosed unless they are “inextricably intertwined” with
exempt portions. Mead Data Cent., Inc., 566 F.2d at 260.
Effectively, each document consists of “discrete units of
information,” all of which must fall within a statutory
exemption in order for the entire document to be
withheld. Billington v. U.S. Dep't of Justice, 233 F.3d
581, 586 (D.C. Cir. 2000).
In every case, the district court must make an
express finding on the issue of segregability. Morley v.
CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007); Rugiero, 257
F.3d at 553; Church of Scientology of Cal. v. U.S. Dep't
of the Army, 611 F.2d 738, 744 (9th Cir. 1979). But cf.
Becker v. IRS, 34 F.3d 398, 406 (7th Cir. 1994)
(suggesting that segregability may be presumed considered
if the district court reviews the documents in camera).
The agency has the burden to show that the exempt
portions of the documents are not segregable from the
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non-exempt material. Davin v. U.S. Dep’t of Justice, 60
F.3d 1043, 1052 (3d Cir. 1995). If the agency’s
justification is inadequate, the district court may
require an agency to submit a more specific affidavit.
See PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 253
(D.C. Cir. 1993). The agency’s justification must be
relatively detailed, correlating specific parts of the
requested documents with the basis for the applicable
exemption.
Schiller, 964 F.2d at 1209-10 (citing
Schwartz v. IRS, 511 F.2d 1303, 1306 (D.C. Cir. 1975) and
King v. U.S. Dep’t of Justice, 830 F.2d 210, 224 (D.C.
Cir. 1987)). The requisite specificity of an affidavit
and the reasonableness of segregation are dependent upon
the proportion and distribution of non-exempt information
in a given document:
For example, if only ten percent of the
material is non-exempt and it is interspersed
line-by-line throughout the document, an
agency claim that it is not reasonably
segregable because the cost of line-by-line
analysis would be high and the result would be
an essentially meaningless set of words and
phrases might be accepted. On the other
extreme, if a large proportion of the
information in a document is non-exempt, and
it is distributed in logically related
groupings, the courts should require a high
standard of proof for an agency claim that the
burden of separation justifies nondisclosure
or that disclosure of the non-exempt material
would
indirectly
reveal
the
exempt
information.
Mead Data Cent., Inc., 566 F.2d at 261. Such detailed
explanation and justification should enable a district
court to conduct its review in open court, preserving the
adversarial
nature
of
the
process
and
avoiding
undesirable, in camera line-by-line analyses.
Id. at
261.
Missouri Coalition for the Environment Foundation, 542
F.3d at 1211-12.
In his most recent Declaration, Dr. Goldman stated that
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he personally “reviewed all 83 withheld documents to determine if
portions of the documents could be segregated and released to the
Plaintiff.”

(Docket No. 27, Attachment 1, at page 3).

Dr. Goldman

stated that he determined that the majority of the documents
contained a few words or sentences that were purely factual, and
did not evidence the give and take deliberative process discussing
various scientific study matters.

(Id.)

Dr. Goldman stated that

he personally redacted each document, providing those portions
which Dr. Goldman determined, following his review, were segregable
as purely factual and releasable, and omitting the remaining
portions which were not segregable and contained deliberative
information evidencing the give and take discussions of Defendant’s
consultants discussing the methodologies that should be recommended
to the Corps for use in the study.

(Id.)

Defendant also provided an updated Vaughn index.

As it

is different from the one previously provided, the undersigned will
consider its adequacy in compliance with the Eighth Circuit’s
instructions to conduct a segregability analysis.

As the Eighth

Circuit noted, a proper Vaughn index “provides a specific factual
description of each document sought by the FOIA requester”, and
includes

a

“general

description

of

each

document’s

contents,

including information about the document’s creation, such as date,
time, and place.
government

is

For each document, the exemption claimed by the

identified,

and

an

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explanation

as

to

why

the

exemption

applies

to

the

document

in

question

is

provided.”

Missouri Coalition for the Environment Foundation, 542 F.3d at
1209-10 (citation omitted).
In this case, the Vaughn index provided in response to
this Court’s July 23, 2010 Order contains all of the necessary
information.

It spans 55 pages in spreadsheet form, and includes

distinguishing information for each document, including the date of
origination; the author; the addressee(s); whether copies were
provided (and, if so, to whom); and whether the document was a
memo, e-mail, letter, agenda, meeting notes, or, in the case of
Document 54, a “memo and e-mail.”

(Docket No. 27, Attachment 2).

The index further lists, for each document, the statutory exemption
claimed: Exemption 5, the deliberative process privilege.

(Docket

No. 27, Attachment 2).
Defendant’s index also provides, as required, relatively
detailed factual information about each document on an individual
basis, correlating the redacted portions with the basis for the
applicability of Exemption 5, and explaining why the redacted
portions contain no segregable material.
for

the

Environment

Foundation,

542

See Missouri Coalition

F.3d

at

1212

(citations

omitted) (the agency bears the burden of showing that the exempt
portions are not segregable, and “[t]he agency’s justification must
be relatively detailed, correlating specific parts of the requested
documents with the basis for the applicable exemption.”)

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For

example, the description of Document 1, classified as meeting
notes, reads: “[n]otes of July 18, 1997 TAG Meeting discussing
goals and requirements of TAG related to the Flow Frequency Study
(FFS).

The

remaining

redacted

information

cannot

be

further

segregated because it is comprised entirely of discussions among
TAG members regarding what methodologies to use for the study.”
(Docket No. 27, Attachment 2, at page 2).

Typical descriptions of

documents classified as memos read: “[d]ocument discussing a draft
of a TAG report to be submitted to the Corps.

The remaining

redacted information cannot be further segregated because it is
comprised entirely of Dr. Jery Stedinger’s opinion on the potential
methodologies, as well as a summary of other TAG members’ opinions,
on the potential methodologies to use for the study”,

(Id. at page

10); and “[s]ummary of recommendations made by TAG and IAG at June
7 and 8, 2000 meeting and subsequently discussing flood frequency
curve estimates, including revisions.

The remaining redacted

information cannot be further segregated because it is comprised
entirely of Dr. David Goldman’s opinions and comments regarding the
final changes to be made to the TAG’s recommendations to the Corps
regarding what methodologies to use for the study.”
49).

(Id. at page

With regard to the documents classified as e-mails, typical

descriptions read: “[e]-mail commenting on Dr. Jery Stedinger’s
comments on draft TAG report.

The remaining redacted information

cannot be further segregated because it is comprised entirely of

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Dr. William Lane’s (TAG Member) opinions on potential methodologies
to use for the study”,
to

Dr.

David

(Id. at page 9), and “[e]-mail responding

Goldman’s

comments

discussing

the

possible

implications of the FFS. The remaining redacted information cannot
be further segregated because it is comprised entirely of Wilbert
Thomas’s responses to Dr. David Goldman’s questions regarding what
methodologies to use for the study.” (Docket No. 27, Attachment 2,
at page 11).
The undersigned has reviewed each description contained
in

Defendant’s

Vaughn

index,

and

has

found

that

all

of

the

descriptions are relatively detailed, and correlate the specific
redacted parts of each requested document with the basis for the
application

of

Exemption

5.

See

Missouri

Coalition

for

the

Environment Foundation, 542 F.3d at 1212 (citation omitted) (the
agency’s

justification

correlate

specific

exemption claimed).

must

parts

be

of

relatively

the

detailed,

must

document

requested

and
with

the

The undersigned concludes that the updated

Vaughn index comports with the requirements as enumerated by the
Eighth

Circuit,

inasmuch

as

it

provides

specific

factual

descriptions of each document; includes a general description of
each

document’s

contents;

identifies

the

statutory

exemption

claimed; and sufficiently explains why the exemption applies to the
redacted material.

Id. at 1209-10 (citation omitted).

To require

Defendant to describe each document in greater detail would require

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Defendant to disclose the substance of the confidential information
therein.

Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1974) (a

defendant is not required to describe each document with such
detail that the secret nature of the document would be disclosed).
Defendant also provided redacted copies of all of the
documents at issue in this litigation. (Docket No. 27, Attachments
3 - 8).

Each document is identified by number, and information

indicating the document’s origin, author, and classification is
given.

See (Id.)

As Dr. Goldman stated in his Declaration, for

the majority of these documents, a few factual sentences are
released, followed by blocks of space with markings indicating that
material had been redacted.

See (Id.)

For example, in Document

36, entitled “DRAFT Memorandum for record 4/13/99” and authored by
Dr. Goldman, a redacted portion is preceded by the following text:
“The following summarizes the recommendations of the TAG members,
except Jon Hosking, and, IAG members, except Don Woodward, who
could not be present due to prior commitments.
comments

with

regard

to

the

enlisted in the near future.”
pages 18 and 21).

overall

There [sic]

recommendations

will

be

(Docket No. 27, Attachment 5, at

Document 42, an email from Will Thomas to Dr.

Goldman, contains a redacted portion preceded by the following: “In
your comments sent last night you commented”.

(Id. at page 41).

In Document 52, authored by Dr. Lane and sent to Dr. Goldman and
the TAG and IAG, a redacted portion is preceded by the statement:

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“My previous e-mails have already addressed many of my concerns, so
I will limit this to just a few of those which I have not covered
and which seem to me to be very serious.”

(Docket No. 27,

Attachment 6, at page 21).
In
undersigned

conducting
has

reviewed

this
all

segregability
of

the

analysis,

information

of

the

record,

particularly Dr. Goldman’s most recent Declaration, the redacted
copies of each document at issue, and Defendant’s most recent
Vaughn index and its descriptions of each document.

As noted

above, Dr. Goldman’s Declaration clearly shows that he reviewed and
processed each and every requested document for the purpose of
identifying and releasing any and all segregable information.
Defendant’s justifications are sufficiently detailed, and they
correlate the specific redacted information with the basis for
claiming Exemption 5.

In addition, Dr. Goldman’s statement in his

Declaration that the redacted portions of the documents are not
segregable

is

supported

by

review

of

the

redacted

documents

themselves.
In a manner consistent with the Eighth Circuit’s decision
remanding this case for findings on the issue of segregability, the
undersigned has considered and analyzed the segregability issue,
albeit without the benefit of adversarial comment, and concludes
that Defendant’s segregability analysis is sufficiently detailed,
and that Defendant has met its burden of demonstrating that the

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redacted portions of the documents contain no segregable material.
See,

e.g.,

Manchester,

segregability

analysis

2005

WL

3275802

at

where

the

defendant

*4

(upholding

categorized

and

justified withheld information, attached all of the partially
redacted pages with coded markings, and included “deleted page
sheets” for pages withheld in their entirety).

As there is no

indication that Defendant has acted in bad faith in segregating and
releasing nonexempt information in the pages released to Plaintiff,
the

undersigned

finds

no

reason

to

disbelieve

Dr.

Goldman’s

statement that all reasonably segregable non-exempt material has
been released to Plaintiff, and that the redacted portions contain
no reasonably segregable material.
Having conducted the segregability analysis as directed
by the Eighth Circuit, the undersigned adopts and incorporates
herein the conclusions reached in the Memorandum and Order dated
March 20, 2007.

_____________________________
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 21st day of June, 2011.

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