VENKATARAM v. OFFICE OF INFORMATION POLICY et al
Filing
65
OPINION. Signed by Chief Judge Jerome B. Simandle on 7/25/2013. (tf, n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NATARAJAN VENKATARAM,
Plaintiff,
HON. JEROME B. SIMANDLE
Civil No. 09-6520 (JBS/AMD)
v.
OPINION
OFFICE OF INFORMATION POLICY,
Defendant.
APPEARANCES:
Mr. Natarajan Venkataram
# 58513-054
Federal Correctional Institution
P.O. Box 2000
Camp Bldg. 6695
Fort Dix, NJ 08640
Plaintiff Pro Se
Paul J. Fishman, United States Attorney
By: John Andrew Ruymann
Assistant United States Attorney
OFFICE OF THE U.S. ATTORNEY
402 East State Street
Suite 430
Trenton, NJ 08608
Counsel for Defendant
SIMANDLE, Chief Judge:
I.
INTRODUCTION
This matter concerns efforts by Plaintiff Natarajan
Venkataram to obtain documents from Defendant Office of
Information Policy, U.S. Department of Justice, related to the
government’s decision not to prosecute his business associate,
D.V.S. Raju, who at one time was a co-defendant with Mr.
Venkataram on conspiracy, bribery and money laundering charges.
Defendant now brings a second motion for summary judgment [Docket
Item 57] in response to Plaintiff’s motion to reopen the case and
compel production of documents [Docket Item 52].
For the reasons discussed below, the Court finds that
Defendant’s Vaughn index and accompanying declarations
demonstrate that Defendant properly withheld the 16 documents at
issue. Therefore, the Court will enter summary judgment in favor
of Defendant.
II.
Background.
The instant case involves a claim under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(B).
Plaintiff
seeks records from the Office of Information Policy pertaining to
the indictment and subsequent cancellation of the indictment of
Mr. Raju, who was a co-defendant with the Plaintiff on
conspiracy, bribery and money laundering charges.1
Initially, Defendant refused to turn over any documents,
neither confirming nor denying their existence, and asserting
that disclosure would violate the Privacy Act, 5 U.S.C. § 552(a),
and that records would be exempt from release under 5 U.S.C. §
1
This Court previously recounted the facts of this case in
Venkataram v. Office of Info. Policy, No. 09-6520, 2011 WL
2038735, at *1 (D.N.J. May 25, 2011). For more information about
the criminal charges, see Superseding Indictment, United States
v. Venkataram, Crim. No. 06-102-RPP-3 (S.D.N.Y. filed June 21,
2006), ECF No. 24.
2
552(b)(6) and (b)(7)(C) (“Exemption 6" and “Exemption 7(C)”).
Venkataram, 2011 WL 2038735, at *1. After Plaintiff exhausted
administrative appeals, he brought suit in this Court, and
Defendant moved to dismiss or, in the alternative, for summary
judgment. Id. The Court denied Defendant’s motion because
Defendant had invoked Exemptions 6 and 7(C) categorically. Id. at
*4. The Court ordered Defendant to show cause why the matter
should not be remanded to the Department of Justice (“DOJ”). Id.
Defendant then responded that the policy of the Executive Office
of the United States Attorneys (“EOUSA”) supported a categorical
denial of the request, relying primarily on the Privacy Act. See
Venkataram v. Office of Info. Policy, 823 F. Supp. 2d 261, 264
(D.N.J. 2011). Defendant also argued that remand would be
improper because a “Glomar response,” neither confirming nor
denying the existence of records sought, could be entered in this
case. Id. at 265. The Court rejected Defendant’s arguments and
remanded the matter to the DOJ for a more particularized analysis
of the documents requested. Id. at 266.
Seven months later, on May 30, 2012, Plaintiff filed a
motion for an order to show cause, stating that he had received
no response from Defendant and no indication that a
particularized analysis, known as a Vaughn index, was
forthcoming. See Venkataram v. Office of Info. Policy, No. 096520, 2012 WL 3283485, at *1 (D.N.J. Aug. 9, 2012) (recounting
3
the procedural history). Defendant initially responded that it
had complied with the Court’s order and provided 90 pages to
Plaintiff, along with a Vaughn index, but on July 16, 2012,
Assistant U.S. Attorney (“AUSA”) J. Andrew Ruymann advised the
Court that the previous averment of compliance was made in error
and additional records needed to be searched in the U.S.
Attorney’s Office in the Southern District of New York
(“S.D.N.Y.”). Id. No explanation was given for the error or why
the S.D.N.Y. documents had not been identified sooner. Id.
Plaintiff immediately filed a motion for contempt, which the
Court denied, reasoning that there was no evidence of bad faith
or that the proposed extended search schedule was unreasonable.
Id. at *2. The Court ordered Defendant’s revised response would
be due 45 days after Plaintiff tendered pre-payment of the
estimated search fee. Id.
Plaintiff filed a motion for a fee waiver, which the Court
denied. Venkataram v. Office of Info. Policy, No. 09-6520, 2012
WL 4120438, at *3 (D.N.J. Sept. 18, 2012), ECF No. 43. The Court
observed that Plaintiff himself had characterized delays by
Defendant as “damaging to [Plaintiff’s] efforts in other,
related, federal civil litigation.” Id. Therefore, the Court
concluded that “disclosure primarily would benefit Plaintiff and
not contribute significantly to public understanding of the U.S.
Attorney’s Office and the process by which it decides not to
4
prosecute subjects of criminal investigations.” Id. After
Plaintiff pre-paid the search fee, Defendant notified the Court
that it had released 352 pages in full and one page in part, and
withheld 205 pages in full, and provided Plaintiff an updated
Vaughn index.2 [Docket Item 46.] The Vaughn index described 16
documents withheld under one or more of the following exemptions:
§ 552(b)(3), (b)(5), (b)(6), (b)(7)(C), and Fed. R. Crim. P.
6(e). (Kornmeier Decl. Exs. B & C.) The Court then entered an
order denying Plaintiff’s motion for order to show cause [Docket
Item 47], acknowledging that the “Court makes no determination
regarding the substance of the Vaughn index and FOIA production,
2
Plaintiff correctly observes, in his opposition to the
pending motion for summary judgment, that while the cover sheet
to Defendant’s updated Vaughn index indicates that 205 pages were
withheld in full, the Vaughn index itself only describes 165
pages withheld in full, plus one page withheld in part. (Pl.
Opp’n [Docket Item 58] at 9; Second Declaration of John W.
Kornmeier (“Second Kornmeier Decl.”) [Docket Item 57-3], Ex. B.)
Mr. Kornmeier acknowledges and explains this disparity in his
declaration by stating: “After a recount of the actual documents
withheld, the number has been determined to be 166. This recount
also led to a change to Document 9 in the Vaughn index in Exhibit
C from 58 to 57 pages.” (Second Kornmeier Decl. ¶ 7 n.1.)
The 39-page margin of error and the fact that Defendant only
identifies the source of error for one missing page, a
miscounting of Document 9, are considered. However, the
government’s affidavits are accorded a presumption of good faith
that cannot be overcome by mere speculation. Negley v. FBI, 169
F. App’x 591, 594 (D.C. Cir. 2006). As explained in Part III.B,
Plaintiff has not alleged the existence of any documents that
have not been produced or described in the Vaughn index; the
primary document he seeks has been identified. The Court
therefore accepts Defendant’s position that all responsive
documents withheld have been produced or described in the Vaughn
index.
5
as no substantive issue has been presented.” [Id.] The Court
stated that “if Plaintiff seeks additional relief from the Court
on this matter, the Plaintiff may seek to reopen the docket upon
filing an appropriate motion.” [Id.] The Court denied Plaintiff’s
motion for reconsideration. [Docket Item 51.]
Plaintiff then brought the present motion to reopen the case
and to compel production of the documents, arguing that Defendant
had completed an inadequate search, improperly invoked statutory
exemptions and failed to demonstrate that all reasonably
segregable portions of documents had been released. [Docket Item
52.] Defendants sought leave to file a motion for summary
judgment in opposition to Plaintiff’s motion to reopen and
compel. [Docket Item 53.] The Court reopened the case and granted
Defendant leave to file the present motion for summary judgment.
[Docket Item 55.] After an extension of time, Defendant filed the
motion, arguing that Defendant’s search was reasonable, Defendant
properly invoked exemptions, and the withheld documents were not
reasonably segregable. [Docket Item 57.]
III.
DISCUSSION
A. Summary judgment standard3
3
As an initial matter, Plaintiff argues that a motion for
summary judgment is procedurally inappropriate in this case. (Pl.
Opp’n at 6-7.) He contends that this Court’s previous order
instructed him to seek further relief from the Court by filing an
appropriate motion, and the Court should decide his motion to
compel. (Id. at 6.) However, it is true, as Defendant observes,
that FOIA requests often are decided on summary judgment. See,
6
A court shall grant summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A dispute is “genuine” if, based on the evidence in the
record, a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is “material” if it might affect the outcome of
the suit. Id. The court will view evidence in the light most
favorable to the non-moving party and extend any reasonable
favorable inferences to be drawn from that evidence to that
party. Hunt v. Cromartie, 526 U.S. 541 (1999). However, the
e.g., Kishore v. U.S. Dep’t of Justice, 575 F. Supp. 2d 243, 25152 (D.D.C. 2008) (“Summary judgment is the frequent vehicle for
resolution of a FOIA action because the pleadings and
declarations in such cases often provide undisputed facts on
which the moving parties are entitled to judgment as a matter of
law.”) Both a motion to compel and a motion for summary judgment
require the Court to review whether Defendant adequately invoked
statutory exemptions to withhold certain documents. Because
Plaintiff has had an opportunity to respond fully to Defendant’s
motion, including by Sur-Reply, and for the sake of efficiency,
the Court first will consider Defendant’s motion for summary
judgment, and, if necessary, Plaintiff’s motion to compel. See,
e.g., People for the Am. Way Found. v. Nat’l Park Serv., 503 F.
Supp. 2d 284, 288, 303, 309 (D.D.C. 2007) (considering a motion
for summary judgment and a motion to compel simultaneously).
Plaintiff makes an unavailing citation to Abdelfattah v.
U.S. Dep’t of Homeland Sec., 488 F.3d 178 (3d Cir. 2007), a case
in which the Third Circuit vacated in part the district court’s
grant of summary judgment in favor of the defendant. (Pl. Opp’n
at 6.) Nothing in Abdelfattah suggests that FOIA requests cannot
or should not be decided by summary judgment. The Court observes
that there is a difference between whether a motion for summary
judgment is appropriate procedurally and whether the motion
should be granted on the merits.
7
“nonmoving party may not, in the face of a showing of a lack of a
genuine issue, withstand summary judgment by resting on mere
allegations or denials in the pleadings; rather, that party must
set forth ‘specific facts showing that there is a genuine issue
for trial[.]’” Russo v. United States, 576 F. Supp. 2d 662, 666
(D.N.J. 2008) (quoting United States v. Premises Known as 717 S.
Woodward St., 2 F.3d 529, 533 (3d Cir. 1993)).
In the context of FOIA, “the burden is on the agency to
sustain” the withholding of certain documents and to demonstrate
that the documents withheld fell within one of the statutory
exemptions. 5 U.S.C. § 552(a)(4)(B); see also Manna v. U.S. Dep’t
of Justice, 51 F.3d 1158, 1163 (3d Cir. 1995). District courts
determine the matter de novo. § 552(a)(4)(B).
An agency will prevail on a summary judgment motion if the
agency’s affidavits “describe the withheld information and the
justification for withholding with reasonable specificity,
demonstrating a logical connection between the information and
the claimed exemption and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.”
Berger v. IRS, 487 F. Supp. 2d 482, 493 (D.N.J. 2007) (quoting
Davin v. U.S. Dep’t of Justice, 60 F.3d 1043, 1050 (3d Cir.
1995)) (internal quotation marks omitted). A court “may award
summary judgment ‘on the basis of agency affidavits alone where
the affidavits are sufficiently detailed and in good faith.’”
8
Berger, 487 F. Supp. 2d at 493 (quoting Manna v. U.S. Dep’t of
Justice, 832 F. Supp. 866, 870 (D.N.J. 1993), aff’d, 51 F.3d 1158
(3d Cir. 1995)). Agency affidavits generally are “accorded a
presumption of good faith which cannot be rebutted by purely
speculative claims about the existence and discoverability of
other documents.” Negley v. FBI, 169 F. App’x 591, 594 (D.C. Cir.
2006) (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991)).
B. Adequacy of the search
FOIA requires that an agency conduct a reasonable search for
responsive records. Adbelfattah v. U.S. Dep’t of Homeland Sec.,
488 F.3d 178, 182 (3d Cir. 2007). “The relevant inquiry is not
‘whether there might exist any other documents possibly
responsive to the request, but rather whether the search for
those documents was adequate.” Id. (quoting Weisberg v. U.S.
Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)) (emphasis
in original). An agency will prevail on summary judgment if it
provides a “reasonably detailed affidavit, setting forth the
search terms and the type of search performed, and averring that
all files likely to contain responsive materials . . . were
searched.” Id. (quoting Valencia-Lucena v. U.S. Coast Guard, 180
F.3d 321, 326 (D.C. Cir. 1999) and Oglesby v. U.S. Dep’t of Army,
920 F.2d 57, 68 (D.C. Cir. 1990)).
Plaintiff argues that Defendant’s search was inadequate
9
“because it failed to produce records pertaining to his
application for relief . . . .” (Pl. Mot. [Docket Item 52] at 2.)
Plaintiff also asserts that Defendant failed to provide an
affidavit describing the search. (Id.) In his opposition to the
motion for summary judgment, Plaintiff adds that the “main
document in question” -- the agreement between the United States
and Mr. Raju to nolle prosequi the case, which Plaintiff asserts
was created in June 2007 -- “has been acknowledged as being in
existence by the United States Attorney’s Office for the Southern
District of New York; yet it was not produced nor was its
existence recognized by Defendants.” (Pl. Opp’n at 8-9; Pl. SurReply [Docket Item 60] at 1.)
Defendant submits three declarations in support of its
motion. First, Michelle Smith, a paralegal and FOIA/Privacy Act
contact in the U.S. Attorney’s Office in the S.D.N.Y., describes
the steps she took to retrieve 33 boxes of records from the
Federal Records Center in Missouri and additional records from
AUSA Andrew Dember, the prosecutor, and forward them to the EOUSA
for review. (Smith Decl. [Docket Item 57-4] ¶¶ 2-7.) Second, Mr,
Kornmeier, an attorney advisor with the EOUSA, declares that “all
responsive documents” were forwarded to the EOUSA. (Second
Kornmeier Decl. ¶ 6.)
Regarding the allegedly missing document, Mr. Kornmeier
clarifies that the document Plaintiff seeks actually appears as
10
Document 2 on the Vaughn index. (Third Declaration of John. W.
Kornmeier (“Third Kornmeier Decl.”) [Docket Item 64] ¶ 5.) He
declares:
The confusion apparently stems from the fact that the
document is dated January 12, 2007, whereas Mr.
Venkataram states the date was in June 2007. An
examination of the document shows that although the
date of the document, an offer contained in a letter,
is January 12, 2007, the date of the acceptance of the
offer is not until June 2007.
(Id.)
These declarations are sufficient to demonstrate that the
Defendant’s search in this case was reasonable and adequate. An
agency’s search need not be exhaustive; it need only be adequate.
Adbelfattah, 488 F.3d at 182. The search returned 518 responsive
documents, 382 of which were released in full. (Second Kornmeier
Decl. Ex. B.) Mr. Kornmeier’s declaration suffices to demonstrate
that the primary document Plaintiff seeks was uncovered in
Defendant’s search and described in the Vaughn index, even though
Plaintiff expected the document to bear a different date. Indeed,
both Documents 2 and 4 of the Vaughn index “contain[] an
agreement between the parties on Mr. Raju’s case.” (Second
Kornmeier Decl. Ex. C at 1-2.) Plaintiff has not set forth facts
that show the search was insufficient or failed to produce
specific documents, other than those adequately answered by
Defendant’s affidavits, which are entitled to a presumption of
good faith. See Russo, 576 F. Supp. 2d at 666 (stating that the
11
non-moving party must set forth specific facts showing a genuine
issue for trial); Negley, 169 F. App’x at 594 (stating that
agency affidavits are entitled to a presumption of good faith).
Therefore, the Court will grant summary judgment in favor of
Defendant on the issue of the adequacy of Defendant’s record
search.
C. Exemption 5
Section 552(b)(5) permits agencies to withhold documents
that are “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[.]” Exemption 5 encompasses
both “the work product privilege” and “the governmental
deliberative process privilege.” Berger, 487 F. Supp. 2d at 49899 (citing Dep’t of Interior v. Klamath Water Users Protective
Ass’n, 532 U.S. 1, 8 (2001)); see also Heggestad v. U.S. Dep’t of
Justice, 182 F. Supp. 2d 1, 6-7 (D.D.C. 2000) (stating the
“exemption has been construed to encompass documents normally
privileged in the civil discovery context,” including documents
protected by the work product and deliberative process
privileges) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
149, 151 (1975)). Defendant invokes this exemption for Documents
7, 8, 9, 10, 12, 13 and 14 of the Vaughn index, which together
account for 138 of the 165 pages withheld in full.
i. Work product protection
12
The work product doctrine protects the confidentiality of
documents prepared by or for attorneys in anticipation of
litigation. Berger, 487 F. Supp. 2d at 499-500; In re Chevron
Corp., 633 F.3d 153, 164 (3d Cir. 2011). The privilege covers
both factual material prepared in anticipation of litigation and
mental impressions. See, e.g., Tax Analysts v. IRS, 117 F.3d 607,
620 (D.C. Cir. 1997). Exemption 5 protection extends to documents
“created by an attorney in the course of an investigation prior
to a decision to litigate” or those that “consider[] or
recommend[] closing an investigation instead of litigating a
case.” Heggestad, 182 F. Supp. 2d at 11 (citing SafeCard Servs.,
Inc., 926 F.2d at 1202, and A. Michael’s Piano, Inc. v. Fed.
Trade Comm’n, 18 F.3d 138, 146 (2d Cir. 1994)).
The documents withheld under Exemption 5 include internal
U.S. Attorney’s Office memos discussing “the proposed nolle
prosequi for Mr. Raju” (Documents 7, 8), notes prepared by or for
AUSA Dember or by the New York City Department of Investigation
in anticipation of prosecution of Mr. Raju (Document 9), a memo
prepared for AUSA Dember discussing potential witnesses against
Mr. Raju and facts about the alleged fraud (Document 10), a page
from a draft of an agreement to settle Mr. Raju’s case with the
government (Document 12), e-mails discussing the case and the
merits of settlement between or among AUSA Dember, other members
of the U.S. Attorney’s Office, and the Department of
13
Investigation (Document 13), and investigative material prepared
by the Department of Investigation detailing, among other things,
a chronology of the case, monies received and dispersed, and
summaries of documents produced in response to a Grand Jury
Subpoena (Document 14). (Second Kornmeier Decl. Ex. C.) The
Vaughn index entries for these documents include assertions that
each document “is attorney work product, which contains no nonexempt material. Therefore, there is nothing to segregate.” (Id.)
Defendant argues that these records, which “reflect such
matters as trial preparation, trial strategy, interpretations,
and personal evaluations and opinions pertinent to Mr. Raju’s
criminal case” and which were “prepared by an attorney or at an
attorney’s request” squarely fit within the work-product
privilege. (Def. Mot. Br. at 19-20; Second Kornmeier Decl. ¶ 13.)
Plaintiff first argues that Defendant waived its right to
claim Exemption 5 because Defendant did not invoke the exemption
in its first motion for summary judgment. (Pl. Opp’n at 5.) This
argument is without merit. In FOIA cases, a district court may
consider new claims of exemption raised for the first time after
remand. Lame v. U.S. Dep’t of Justice, 767 F.2d 66, 71 (3d Cir.
1985) (citing with approval Jordan v. U.S. Dep’t of Justice, 591
F.2d 753, 779-80 (D.C. Cir. 1978), overruled in part on other
grounds, Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670
F.2d 1051 (D.C. Cir. 1981)).
14
In this case, Defendant initially and improperly claimed
Exemptions 6 and 7(C) categorically, and the Court, ordering
Defendant to show cause why the matter should not be remanded,
stated that Defendant would need to assert a different basis for
withholding the documents or produce a particularized accounting
of withheld material. See Venkataram, 2011 WL 2038735, at *4 (“it
is now clear that Defendant must either rely on some other basis
for withholding the records, or else perform a document-bydocument review of responsive records”). On remand, Defendant did
just that; Defendant created a Vaughn index which, for the first
time, evinced a document-by-document analysis, and Defendant was
well within its right to assert any and all exemptions it
believed covered each document. Defendant continues to assert
that all documents covered by Exemption 5 also qualify for
Exemptions 6 and 7(C). In sum, there is nothing inconsistent
about Defendant’s submissions to this Court. There has been no
waiver.
Plaintiff next argues that “[e]ven if the Court finds that
the Section 552(b)(5) exemption has not been waived, the
documents should be produced for the Court’s in camera inspection
and determination as to segrability.” (Pl. Opp’n at 7.) Plaintiff
thus appears to argue only that non-privileged portions of these
documents should be produced; Plaintiff does not argue that these
documents do not qualify as work product or that they do not
15
contain deliberative material. The Court agrees with Defendant
and, apparently, Plaintiff that the documents withheld under
Exemption 5 qualify as attorney work product. The Court bases
this finding on the detailed Vaughn index descriptions and
averments of Mr. Kornmeier. Therefore, the Court will grant
summary judgment in favor of Defendants for all documents claimed
under Exemption 5 if Defendant has met its segregability
requirement.
ii. Segregability
Agencies are “entitled to a presumption that they complied
with the obligation to disclose reasonably segregable material.”
Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir.
2007). Such a presumption may be overcome by a “quantum of
evidence,” which means that the plaintiff must, at least,
“produce evidence that would warrant a belief by a reasonable
person” that segregable material exists. See id. (quoting Nat’l
Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004) and
observing that United States v. Chem. Found., Inc., 272 U.S. 1,
14-15 (1926), requires a more demanding showing to overcome the
presumption). An agency satisfies its segregability obligations
by “(1) providing a Vaughn index that adequately describes each
withheld document and the exemption under which it was withheld;
and (2) submitting a declaration attesting that the agency
released all segregable material.” Muttitt v. Dep’t of State, No.
16
10-202, 2013 WL 781709, at *14, *21 (D.D.C. Mar. 4, 2013) (citing
Loving v. Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008)).
Here, Defendant provides a detailed description of each
document withheld under Exemption 5 and states in the Vaughn
index that, because the entirety of the documents qualify as
attorney work product, no segregable material exists. (Second
Kornmeier Decl. Ex. C.) Mr. Kornmeier’s declaration further
asserts, albeit within the section discussing Exemption 7(C),
that “[n]o additional segregable portions were determined
releaseable from materials in the Vaughn Index . . . .” (Second
Kornmeier Decl. ¶ 20.) Mr. Kornmeier also states: “The attorney
work product and deliberative process are so interwoven as to
make it all, in essence, attorney work product.” (Id. ¶ 14.)
Combined, these descriptions and statements justify
Defendant’s withholding the entire exempted documents. The Court
finds that Defendant has met its segregability obligation for the
documents withheld under Exemption 5. Therefore, those documents
have been properly identified, described and withheld from
Plaintiff. Summary judgment will be entered in favor of
Defendants for Documents 7, 8, 9, 10, 12, 13, and 14.
iii. Deliberative process privilege
Even if these documents did not qualify as work product,
most of them would qualify for Exemption 5 under the deliberative
17
process privilege.4
The deliberative process privilege exists to “protect the
quality of agency decision-making.” NLRB, 421 U.S. at 151. For a
document to qualify for the deliberative process privilege, it
must be (1) “predecisional, that is, ‘antecedent to the adoption
of agency policy,’” and (2) “deliberative in nature, i.e., it
must be ‘a direct part of the deliberative process in that it
makes recommendations or expresses opinions on legal or policy
matters.’” Heggestad, 182 F. Supp. 2d at 7. “The agency must
establish ‘what deliberative process is involved, and the role
played by the documents in issue in the course of that process”
and “must describe ‘the nature of the decisionmaking authority’”
vested in the person or office making the decisions. Muttitt,
2013 WL 781709, at *17 (citing Senate of P.R. v. U.S. Dep’t of
Justice, 823 F.2d 574, 585-86 (D.C. Cir. 1987) and Elec. Frontier
4
Arguably, the description of Document 12 is insufficient
to claim deliberative process privilege: “One page of a draft
document from Mr. Raju’s agreement to settle his case with the
government.” (Second Kornmeier Decl. Ex. C. at 7.) The Index
further states that Document 12 “was prepared in anticipation of
litigation, [and] contains information used by the government to
determine how to treat Mr. Raju’s case.” (Id.) Material otherwise
properly withheld from disclosure under Exemption 5 loses its
exempt status if the agency “expressly incorporates the material
in its final decision.” Berger, 487 F. Supp. 2d at 499 (quoting
Cuccaro v. Sec’y of Labor, 770 F.2d 355, 358 (3d Cir. 1985)). To
the extent the final decision or agreement with Mr. Raju
expressly incorporates the page of the draft withheld as Document
12, the document arguably would lose its deliberative process
privilege, although the agreement could qualify for an exemption
independently.
18
Found. v. U.S. Dep’t of Justice, 826 F. Supp. 2d 157, 168 (D.D.C.
2011)).
Courts have held that documents containing deliberations
about whether to pursue prosecution or declining prosecution may
qualify for Exemption 5. See Berger, 487 F. Supp. 2d at 499
(holding that a letter memorializing the U.S. Attorney’s decision
not to prosecute a plaintiff qualified for the deliberative
process privilege because the analysis and recommendations
contained in the letter preceded the ultimate determination by
the DOJ not to prosecute); Jackson v. U.S. Attorney’s Office, 293
F. Supp. 2d 34, 40-41 (D.D.C. 2003) (holding that the
deliberative process privilege protects an investigating AUSA’s
notes when drafted “in deciding whether to prosecute a criminal
complaint”); Heggestad, 182 F. Supp. 2d at 10-11 (rejecting the
plaintiff’s argument that documents were “not subject to the
deliberative process and attorney work product privileges because
they recommend declining prosecution,” because such a contention
“is unsupported by fact and law”); SafeCard Servs. Inc., 926 F.2d
at 1202 (stating that documents created by an attorney in the
course of an investigation prior to a determination to litigate
may be protected); A. Michael’s Piano, Inc., 18 F.3d at 146-47
(affirming the district court’s ruling that Exemption 5 applies
“even if a staff attorney is considering or recommending closing
an investigation”).
19
In this case, the Vaughn index clearly demonstrates that the
withheld documents were created prior to the final decision not
to prosecute Mr. Raju and that they contain or reveal opinions or
recommendations about whether to prosecute Mr. Raju. The index
describes documents created by or sent to attorneys who were
integral to the ultimate decision or recommendation that the
government cancel the indictment of Mr. Raju. Therefore,
Documents 7, 8, 9, 10, 13 and 14 also qualify for the
deliberative process privilege, and Defendant would be entitled
to summary judgment as to those documents.
D. Exemption 7(C)
Exemption 7(C) permits an agency to withhold “records or
information compiled for law enforcement purposes, but only to
the extent that the production of such law enforcement records or
information . . . could reasonably be expected to constitute an
unwarranted invasion of personal privacy[.]” § 552(b)(7)(C). To
determine if the release of information would constitute an
“unwarranted” invasion of privacy, the court “must balance the
public interest in disclosure against the [privacy] interest
Congress intended the Exemption to protect.” ACLU v. U.S. Dep’t
of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011) (quoting U.S. Dep’t of
Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.
749, 776 (1989)). The U.S. Supreme Court has said that “whether
disclosure of a private document under Exemption 7(C) is
20
warranted must turn on the nature of the requested document and
its relationship to the basic purpose of the Freedom of
Information Act to open agency action to the light of public
scrutiny.” Reporters Comm., 489 U.S. at 772 (quoting Dep’t of Air
Force v. Rose, 425 U.S. 352, 372 (1976)) (internal quotation
marks omitted). When privacy concerns addressed by Exemption 7(C)
are present, the requester must “establish a sufficient reason
for the disclosure.” Favish, 541 U.S. at 172. The requester
“bears the burden of showing (1) that ‘the public interest sought
to be advanced is a significant one, an interest more specific
than having the information for its own sake,’ and (2) that the
information he seeks ‘is likely to advance that interest.’” Roth
v. U.S. Dep’t of Justice, 642 F.3d 1161, 1174-75 (D.C. Cir. 2011)
(quoting Favish, 541 U.S. at 172).
Defendant invokes Exemption 7(C) for Documents 1, 2, 3, 4,
5, 6, 11, 15 and 16, which together account for 27 pages withheld
in full and one page withheld in part. (Second Kornmeier Decl.
Ex. C.) These documents include letters between AUSA Dember, Mr.
Raju’s attorney, and others, discussing the proposed settlement
of Mr. Raju’s case (Documents 1, 2 & 4), letters sending records
regarding Mr. Raju to attorneys involved in the case (Documents 3
& 5), a proffer letter “detailing what Mr. Raju had to say as to
the facts of his case” (Document 6), and a signed proffer
agreement (Document 11). (Id.) Documents 15 (business
21
correspondence between Mr. Raju and a third party) and 16 (e-mail
concerning a business contract) were not originally created by
law enforcement officials but became part of Defendant’s file.
(Id.)
Defendant asserts that the “EOUSA applied Exemption 7(C) to
withhold the identities of and personal information about Mr.
Raju and other third party individuals,” including “individuals
such as special federal agents, government employees, and local
law enforcement personnel who participated in the investigation
and prosecution of this case.” (Def. Mot. Br. at 23.) Defendant
asserts that “[i]ndividual duties and assignments are not public
and such publicity as would likely arise from disclosure would
seriously impede, if not totally jeopardize, law enforcement
effectiveness in subsequent cases, even subjecting such
individuals to harassment or harm.” (Id. at 23-24.) In the Vaughn
index itself, Defendant states that each “private confidential”
document concerns “Mr. Raju’s criminal case and as such
implicates his fundamental right to privacy. There are no public
interests to weigh against this privacy since the subject is Mr.
Raju’s criminal case and not the government’s behavior.” (Second
Kornmeier Decl. Ex. C.)
Plaintiff does not contest, and the Court finds, that these
22
documents were compiled for law enforcement purposes.5
Plaintiff’s main argument in favor of disclosure is that Mr. Raju
has no privacy interest in these documents. Plaintiff contends
that Mr. Raju was formally indicted on criminal charges and,
thus, disclosure of “the requested records would not associate
Mr. Raju ‘unwarrantedly with criminal activity.’” (Pl. Opp’n at
4.) Plaintiff suggests that the public has “a right to know why
two codefendants, charged with the same offenses, were not
treated similarly and what the Government’s criteria methodology
and rationales were in deciding to nolle prosequi D.V.S. Raju’s
case[.]” (Id.) Plaintiff further asserts that the “public and
press have a vested interest in seeing how our government
operates; e.g., knowing whether the federal government was
deprived of millions of dollars due to the nolle prosequi that
enabled Raju’s unjust enrichment; and learning how the Office of
the U.S. Attorney employs its discretionary power.” (Pl. SurReply at 2.)
Plaintiff also suggests that Defendant’s invocation of
5
This finding is self-evident for Documents 1 through 6 and
Document 11. Even though Documents 15 and 16 were not originally
created by law enforcement or during the process of the
investigation or litigation, the records still may be considered
“compiled for law enforcement purposes.” See Crowell & Moring v.
Dep’t of Def., 703 F. Supp. 1004, 1006-1010 (D.D.C. 1989)
(concluding that records do not need to be created or generated
by law enforcement to be “compiled” for law enforcement purposes
by the agency and examining amendments to Exemption 7 language to
support this conclusion).
23
Exemptions 6 and 7(C) is improper because the Court has rejected
these exemptions (Pl. Opp’n at 4), but this is a misreading of
the Court’s orders. The Court merely instructed Defendant not “to
reargue categorical exemptions which this Opinion rejects.”
Venkataram, 823 F. Supp. 2d at 266. Defendant asserts each
exemption individually in the present Vaughn index, and thus,
does not contravene this Court’s orders. This Court did not
exclude Exemptions 6 and 7(C) from application on an individual
document basis.
The Court will conduct the required balancing test,
considering privacy interests first and then public interests at
stake here.
i. Privacy interest
In general, the privacy interests of an individual who has
been formally indicted but never prosecuted are somewhat stronger
than those who have been convicted or entered a public plea and
somewhat weaker than those who have been investigated but never
publicly charged. Cf. ACLU, 655 F.3d at 7 (stating that a
convicted defendant has weaker privacy interests than those
“individuals who have been acquitted or whose cases have been
dismissed” and “plainly substantially weaker than the privacy
interests of individuals who have been investigated but never
publicly charged at all”); Judicial Watch, Inc. v. U.S. Dep’t of
Justice, 898 F. Supp. 2d 93, 105 (D.D.C. 2012) (“Although public
24
disclosure of a person’s association with criminal activity does
not waive that person’s privacy interests completely, such public
disclosure diminishes the person’s privacy interests to some
degree.”).
The D.C. Circuit has emphasized that a person’s privacy
interest in information diminishes when that information is
already freely available to the public. ACLU, 655 F.3d at 9
(citing Reporters Comm., 489 U.S. at 763-64, for the proposition
that “information may be classified as ‘private’ if it is . . .
not freely available to the public”). In ACLU, the DOJ withheld a
list of case names and docket numbers for 255 criminal
prosecutions in which the police used mobile location tracking
data without first securing a warrant. Id. at 4. Conducting a
balancing test under Exemption 7(C), the D.C. Circuit repeatedly
observed that the information sought, or the personal information
that the documents would reveal, was “information that is
available in public records.” Id. at 8-10. The court acknowledged
that even public information can be protected in certain
circumstances, as was the case with the comprehensive “rap
sheets” at issue in Reporters Comm., 489 U.S. at 762, 780. Id. at
9. But the court distinguished the requested case names and
docket numbers, which at most would disclose “the fact of a
single conviction” for an individual, from the rap sheets in
Reporters Comm., which plucked publicly available information
25
from “practical obscurity” and presented a comprehensive
compilation of an individual’s criminal history. Id. at 9-10.
After the court found that disclosure would not compromise much
more than a de minimis privacy interest for the convicted
individuals and that a significant public interest existed in the
data sought, the court concluded that disclosure of the
information did not constitute an unwarranted invasion of privacy
under Exemption 7(C). Id. at 12, 16.
In this case, some information about Mr. Raju is already
available to the public. The facts that Mr. Raju was indicted on
criminal charges and that the indictment was cancelled are a
matter of public record. The content of the superseding
indictment is also publicly available. Because the documents
sought by Plaintiff concern only a single indictment, and not a
comprehensive compilation of any criminal activity, Mr. Raju has
little or no legitimate privacy interest in the publicly
available information implicated in this case. See ACLU, 655 F.3d
at 9-10 (describing only a limited incursion on privacy with the
disclosure of documents that reveal “the fact of a single
conviction, not a comprehensive scorecard of a person’s entire
criminal history across multiple jurisdictions”). Mr. Raju’s
interest in keeping private that he was subject of an
investigation was greatly diminished, if not extinguished, when
he was formally indicted. Cf. Fund for Constitutional Gov’t v.
26
Nat’l Archives & Records Serv., 656 F.2d 856, 864 (D.C. Cir.
1981) (describing a strong privacy interest in keeping private
the fact that an individual was the subject of an investigation,
when the individual had not been charged with crimes); Judicial
Watch, Inc., 898 F. Supp. 2d at 103 (stating that “the revelation
of the fact that an individual has been investigated for
suspected criminal activity represents a significant intrusion on
that individual’s privacy cognizable under Exemption 7(C)”)
(quoting Fund for Constitutional Gov’t, 656 F.2d at 865).
Therefore, Mr. Raju’s privacy interest in preventing disclosure
of documents that would reveal (1) that he was the subject of an
investigation, (2) the content of accusations or (3) the fact
that the indictment was canceled is weak at best.
However, the documents sought by Plaintiff, if disclosed,
would reveal additional information about Mr. Raju not currently
available to the public. The documents claimed under Exemption
7(C) contain details about the criminal case against Mr. Raju,
including financial records, as well as Mr. Raju’s commentary “as
to the facts of his case” and private business correspondence.
(Second Kornmeier Decl. Ex. C. at 1-3, 7, 10.) Disclosure of
factual information tending to corroborate the criminal
allegations against Mr. Raju, or of any admission of guilt or
statement discussing Mr. Raju’s alleged involvement in criminal
activity, goes beyond what is available in the public record and
27
would represent a significant intrusion on Mr. Raju’s privacy.
For the purposes of this information, Mr. Raju’s privacy interest
is more analogous to that of an individual who was investigated
and never charged, rather than a convicted criminal, because the
evidence against him was never aired in a public criminal
proceeding. Cf. ACLU, 655 F.3d at 9 (“The fact that information
about these proceedings is readily available to the public
reduces further still the incursion on privacy resulting from
disclosure.”). Courts have recognized that individuals who have
been acquitted or whose cases have been dismissed retain a
privacy interest in the facts of their criminal cases. Id. at 7
(“This is not to say that a convicted defendant has no privacy
interest in the facts of his conviction. . . . But it is to say
that those interests are weaker than for individuals who have
been acquitted or whose cases have been dismissed.”). To nolle
prosequi a case is to abandon it or to have it dismissed. BLACK’S
LAW DICTIONARY (9th ed. 2009). Although disclosure of these
documents would not associate Mr. Raju with a criminal
investigation for the first time, Mr. Raju nonetheless has a
significant privacy interest in materials that go beyond the
allegations and reveal details that would shed light on actual
guilt or innocence, including any statements accepting
responsibility for his actions or admitting guilt. Mr. Raju also
has a privacy interest in statements he made concerning third
28
parties, including Plaintiff, to the extent those statements were
never revealed during the criminal proceedings.
These documents also implicate privacy interests of third
parties. The Vaughn index expressly discusses third parties
related to Documents 15 and 16. Document 15 is correspondence
between Mr. Raju and a third party, negotiating Mr. Raju’s
purchase of an interest in the third party’s project, as well as
payment of a note. (Second Kornmeier Decl. Ex. C at 10.) The
Vaughn index also states that this document “is included in the
responsive material out of an abundance of caution as it appears
to be irrelevant to the case involving Mr. Raju and Mr.
Venkataram.” (Id.) Document 16 is an e-mail concerning a business
contract and was released to Plaintiff, except for the names of
third parties, to protect their privacy. (Id.) The descriptions
of the remaining documents claimed under Exemption 7(C) do not
specifically mention third parties or state that third parties’
privacy interests are at stake. Rather, the Vaughn index only
suggests that the documents “implicate[] [Mr. Raju’s] fundamental
right to privacy.” (Id.) Mr. Kornmeier’s declaration asserts more
generally that the material withheld under Exemption 7(C)
reference the identities of third parties, including law
enforcement and government employees. (Second Kornmeier Decl. ¶¶
18-19.)
Because Vaughn index entries for Documents 1-6 and 11 make
29
no references to third parties, the interests of third parties
cannot be used to justify withholding those documents. The
interests of third parties may be considered when analyzing
Documents 15 and 16.
ii. Public interest
On the other side of the scale, the “only public interest
relevant for purposes of Exemption 7(C) is one that focuses on
the citizens’ right to be informed about what their government is
up to.” Sussman, 494 F.3d at 1115 (quoting Davis v. U.S. Dep’t of
Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) and Reporters
Comm., 489 U.S. at 776); accord ACLU, 655 F.3d at 6. Where the
privacy interest asserted “is to show that responsible officials
acted negligently or otherwise improperly . . . , the requester
must establish more than a bare suspicion in order to obtain
disclosure. Rather, the requester must produce evidence that
would warrant a belief by a reasonable person that the alleged
Government impropriety might have occurred.” Favish, 541 U.S. at
174. In such a case, “the public interest is ‘insubstantial’
unless the requester puts forward ‘compelling evidence that the
agency denying the FOIA request is engaged in illegal activity’
and shows that the information sought ‘is necessary in order to
confirm or refute that evidence.’” Davis, 968 F.2d at 1282.
Here, Plaintiff suggests impropriety of the prosecutors’
actions in his complaint: “The actions of the Assistant United
30
States Attorney are questionable and suspicious and should be
subject to review to confirm that they have complied with their
fiduciary duty to the citizens of the United States.” (Compl. ¶
27.) Plaintiff also argues that the public has “a right to know”
why one co-defendant was prosecuted and the other was not, and
that the public interest implicated is “seeing how our government
operates; e.g., knowing whether the federal government was
deprived of millions of dollars due to the nolle prosequi that
enabled Raju’s unjust enrichment; and learning how the Office of
the U.S. Attorney employs its discretionary power.” (Pl. SurReply at 2; Pl. Opp’n at 4.)
To the extent Plaintiff justifies disclosure by suggesting
government officials acted improperly, the public interest here
is insubstantial, because Plaintiff has not put forward any
compelling evidence that the Department of Justice was engaged in
illegal activity when it decided not to prosecute Mr. Raju. See
Davis, 968 F.2d at 1282. When balanced against Mr. Raju’s privacy
interests, and those of third parties (in Documents 15 and 16),
the insubstantial public interest militates against disclosure of
the documents.
Plaintiff’s remaining argument is that disclosure of these
documents would inform the public about the operations of the
Department of Justice and the U.S. Attorney’s Office, notably
shedding light on the use of prosecutorial discretion. As the
31
U.S. District Court in the District of Columbia recently
concluded, “a decision not to prosecute a person, standing alone,
does very little to ‘shed[] light on the agency’s performance of
its statutory duties.’” Judicial Watch, Inc., 898 F. Supp 2d. at
106 (citing the ABA Criminal Justice Standards, which notes that
a “prosecutor may in some circumstances and for good cause
consistent with the public interest decline to prosecute,
notwithstanding that sufficient evidence may exist which would
support a conviction”). There certainly is a public interest in
learning about the Department of Justice’s exercise of
prosecutorial discretion, but the public value of disclosing
these contested documents is limited because the records
represent only a single data point. It is hard to extrapolate
about the operations of an agency from one exercise of
discretion.6 The Court finds that Plaintiff has not shown any
significant public interest in the disclosure of the remaining
documents under Exemption 7(C) or that the release of these
documents would advance that interest.
The Court does not hold that the public interest in
disclosing documents related to a single criminal prosecution or
decision not to prosecute is always insubstantial. The present
case is not one in which there is any evidence of prosecutorial
6
Compare this case with ACLU, 655 F.3d at 12-14, which
found a strong public interest in records related to 255 criminal
prosecutions.
32
impropriety, let alone compelling evidence, which would heighten
the public interest value of disclosure.7 Moreover, the Plaintiff
himself has articulated a personal interest in disclosure that
likely motivated his request and outweighs the purported public
interest. He has argued to this Court that the government’s
withholding of the documents was “damaging to [Plaintiff’s]
efforts in other, related, federal civil litigation.”8
Venkataram, 2012 WL 4120438, at *3. This Court previously found,
when reviewing Plaintiff’s application for a FOIA fee waiver,
that disclosure of the requested documents “primarily would
benefit Plaintiff and not contribute significantly to public
understanding of the U.S. Attorney’s Office and the process by
which it decides not to prosecute subjects of criminal
investigations.” Venkataram, 2012 WL 4120438, at *3.
Typically, when a requester seeks documents related to
another private citizen, “the requester does not intend to
7
Production of compelling evidence of illegal activity is
not required when the requester does not justify the request on
those grounds. Citizens for Responsibility & Ethics in Washington
v. U.S. Dep’t of Justice, 846 F. Supp. 2d 63, 74 (D.D.C. 2012).
However, any evidence of governmental misconduct would increase
the public interest in disclosure and could be considered in a
general balancing analysis of Exemption 7(C).
8
The Southern District of New York recently denied
Plaintiff’s motion to compel discovery of documents related to
Mr. Raju under Rule 16, Fed. R. Crim. P. Venkataram v. United
States, Nos. 11-cv-6503, 11-cv-8005 & 06-cr-102, 2013 WL 245810,
at *3 (S.D.N.Y. Jan. 23, 2013) (deciding discovery motions
related to Plaintiff’s coram nobis petition).
33
discover anything about the conduct of the agency that has
possession of the requested records.” Reporters Comm., 489 at
773. The main purpose of FOIA is “not fostered by disclosure of
information about private citizens that is accumulated in various
governmental files but that reveals little or nothing about an
agency’s own conduct.” Id.; see also Berger, 487 F. Supp. 2d at
502 (“The public interest in disclosure here is minimal; the
primary value of disclosure is to Plaintiffs, not the public at
large.”). The Court finds no evidence that this is anything but
the typical case described by the U.S. Supreme Court. Little
would be revealed about the U.S. Attorney’s Office by disclosing
the details of Mr. Raju’s proffer, especially when the government
successfully prosecuted Mr. Raju’s co-defendant, the Plaintiff
here.
In ACLU, the D.C. Circuit discussed several factors that
contributed to its finding of significant public interest value
of the documents withheld in that case, including (1) widespread
media attention given to cell phone tracking data, (2)
congressional hearings on the law enforcement practice, (3)
divided courts on the legal issue, and (4) an ongoing public
policy discussion. Plaintiff does not suggest that these or
similar factors are present and weigh in his favor in this case,
other than to suggest that reporters from the New York Daily News
have sought interviews with Plaintiff and that he “need only
34
telephone The News and release the information for publication.”
Venkataram, 2012 WL 4120438, at *1. There is no evidence in the
record that suggests Plaintiff’s criminal case, or the indictment
of Mr. Raju, garnered widespread media attention or that
revelations about the decision not to prosecute Mr. Raju would
garner such attention upon release of the records. Other than
Plaintiff’s self-serving assertions, there is no evidence that
any journalist, organization or other individual has any interest
in disseminating the information gleaned from the withheld
documents to the public.
iii. Balancing
Mr. Raju retains a strong privacy interest in non-public
facts and commentary about his alleged criminal conduct contained
in the withheld documents, as he never had to face a criminal
prosecution in open court and such details have not been
revealed. The Court finds there is an insubstantial public
interest in the disclosure of the details of Mr. Raju’s proffer
and settlement agreement, because disclosure would reveal little
about the operations of the U.S. Attorney’s Office. Documents 15
and 16, which concerned business transactions between Mr. Raju
and third parties, appear to contain no information regarding the
operations of Defendant, and thus no public interest would be
served by the release of the withheld documents or third party
identities. Based in part on Plaintiff’s own statements, the
35
Court concludes that the primary purpose of this FOIA request is
to serve private litigation interests, not the core transparency
function of FOIA itself.
Plaintiff has not succeeded in showing a significant public
interest to outweigh the privacy interests at stake or that the
disclosure of the contested documents likely would advance that
public interest. Therefore, disclosure of the documents would
result in an unwarranted invasion of privacy. Defendant properly
withheld documents under Exemption 7(C) and is entitled to
summary judgment, if it satisfied its segregability obligations.9
iv. Segregability
As previous discussed, agencies are entitled to a
presumption that they complied with the obligation to disclose
reasonably segregable material. Documents are properly withheld
if described sufficiently in a Vaughn index, the exemption is
9
The Court has considered the option of reviewing the
remaining documents in camera. Such review is discretionary, and
expressly permissible under the statute: “. . . the court shall
determine the matter de novo, and may examine the contents of
such agency records in camera to determine whether such records
or any part thereof shall be withheld under any of the exemptions
. . . .” 5 U.S.C. § 552(a)(4)(B). In camera review is justified
when the Vaughn index and affidavits are insufficient to tell
whether disclosure would reveal information that implicates
privacy interests. Mays v. DEA, 234 F.3d 1324, 1328 (D.C. Cir.
2000) (ordering in camera review because the Vaughn index was
insufficient to tell whether disclosure would reveal identities
of third parties). At the same time, in camera review is
disfavored, and only should be ordered when the Vaughn index and
affidavits are insufficient. Berger, 487 F. Supp. 2d at 494.
Here, the materials of record in the Vaughn index and in the
government’s affidavits suffice for judicial review.
36
identified, and the agency submits a declaration attesting that
it released all segregable material. Muttitt, 2013 WL 781709, at
*14, *21.
Here, the Vaughn index described the documents with adequate
detail and Mr. Kornmeier declared that “[n]o additional
segregable portions were determined releaseable from materials in
the Vaughn Index, other than what is therein identified as
released in part.” (Second Kornmeier Decl. ¶ 20.) Combined, these
descriptions and statements justify Defendant’s withholding of
the documents. The Court finds that Defendant has met its
segregability obligation for the documents withheld under
Exemption 7(C). Therefore, those documents have been properly
identified, described and withheld from Plaintiff. Summary
judgment will be entered in favor of Defendants for Documents 1,
2, 3, 4, 5, 6, 11, 15 and 16.
E. Plaintiff’s motion to compel
Having determined that Defendant is entitled to summary
judgment on the adequacy of the records search and that all
documents described in the Vaughn index were properly withheld,
Plaintiff’s motion to compel will be dismissed as moot.
IV.
CONCLUSION
The Court finds that Defendant’s search for records was
adequate and that all documents described in the Vaughn index
were properly withheld under Exemptions 5 & 7(C). Defendant,
37
therefore, is entitled to summary judgment. Plaintiff’s motion to
compel is dismissed as moot. An accompanying Order will be
entered.
July 25, 2013
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
38
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