Kowack v. United States Forest Service et al

Filing 11

ORDER denying 5 Motion for an in camera inspection of documents. IT IS FURTHER ORDERED that Defendants shall file a public Vaughn Index and their motion for summary judgment within 30 days of this Order, and that all deadlines in the 7/7/2011 Order are VACATED. Signed by Judge Donald W. Molloy on 10/4/2011. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

MARK KOWACK,

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Plaintiff,
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vs.
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UNITED STATES FOREST SERVICE,
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an Agency of the United States
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Department of Agriculture, and
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THOMAS L. TIDWELL, Chief of the
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United States Forest Service,
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Defendants.
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___________________________________ )

CV 11-95-M-DWM

ORDER

Plaintiff Mark Kowack moves the Court for an in camera inspection of
documents that he claims have been wrongfully withheld from him by the
Defendants under the Freedom of Information Act, 29 U.S.C. § 552. (Dkt # 5).
The Defendants claim they have validly withheld the documents under various
exemptions in the Freedom of Information Act. See Defendants’ Response Brief,
2–4 (dkt # 6).
If a federal agency does not disclose information requested under the
Freedom of Information Act, the agency must demonstrate that any responsive
information is exempt from disclosure under the Act. 5 U.S.C. § 552 (a)(4)(B). In
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order to meet this burden, agencies commonly submit a “Vaughn Index.” See
Vaughn v. Rosen, 484 F.2d 820, 823–25 (D.C. Cir. 1973). In that index, the
agency must “identify each withheld document, describe its contents to the extent
possible, and give a particularized explanation of why each document falls within
the claimed exemption.” Yonemoto v. Dept. of Veterans Affairs, 648 F.3d 1049,
1062 (9th Cir. 2011) (citations and internal quotation marks omitted). As the Ninth
Circuit has explained:
The Vaughn index need not, of course, disclose facts that would
undermine the very purpose of its withholding, but it should reveal as
much detail as possible as to the nature of the document, without
actually disclosing information that deserves protection. If the agency
is unable to carry its burden with public affidavits, it may attempt to do
so with in camera affidavits, but only after it has attempted to justify
FOIA withholdings in as much detail as possible on the public record.
Id. (citations and internal quotation marks omitted).
Here, the Plaintiff asks the Court to bypass the Vaughn Index and proceed
directly to an in camera inspection of the contested documents themselves. While
the Court has discretion to order an in camera inspection, 5 U.S.C. § 552(a)(4)(B),
it will not do so here, where the agency has not yet filed a Vaughn Index. See
Yonemoto, 648 F.3d at 1062. The Court does, however, order the Defendants to
submit a Vaughn Index.
The Defendants ask the Court to set a deadline for their motion for summary
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judgment and vacate all deadlines in the Court’s July 7, 2011, Scheduling Order
(dkt # 4). The Court grants these requests and will reset the deadlines, if necessary,
after its review of the Vaughn Index and the motion for summary judgment.
Accordingly, IT IS HEREBY ORDERED that Plaintiff Mark Kowack’s
Motion for In Camera Inspection (dkt # 5) is DENIED.
IT IS FURTHER ORDERED that Defendants United States Forest Service
and Thomas L. Tidwell shall file a public Vaughn Index within thirty (30) days of
the date of this Order.
IT IS FURTHER ORDERED that Defendants shall file their motion for
summary judgment within thirty (30) days of the date of this Order. Response and
reply briefs shall be filed in accordance with the Court’s Local Rules.
IT IS FURTHER ORDERED that all deadlines in the Court’s July 7, 2011,
Scheduling Order (dkt # 4) are VACATED. If necessary, the Court will reset the
deadlines following its review of the Vaughn Index and the motion for summary
judgment.
Dated this 4th day of October, 2011.

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