Harper v. Department of the Army Huntington District, Corps of Engineers

Filing 13

OPINION AND ORDER denying 2 Motion to Compel Preparation of a Vaughn Index. Signed by Magistrate Judge Norah McCann King on 11/24/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LEANTRA HARPER,
Plaintiff,
vs.

Civil Action 2:14-cv-986
Magistrate Judge King

DEPARTMENT OF THE ARMY
HUNTINGTON DISTRICT, CORPS OF
ENGINEERS,
Defendant.

OPINION AND ORDER
This is an action under the Freedom of Information Act (“FOIA”),
5 U.S.C. § 552, in which plaintiff, acting as the representative of a
group of concerned citizens, seeks information regarding horizontal
hydraulic fracturing in the Muskingum Watershed Conservancy District.
This matter is now before the Court, with the consent of the parties
pursuant to 28 U.S.C. § 636(c), for consideration of plaintiff’s
Motion to Compel Preparation of a Vaughn Index (“Plaintiff’s Motion”),
Doc. No. 2.

Plaintiff’s Motion, which was filed on the same day as

the Complaint, seeks
an itemized, indexed inventory of every agency record or
portion thereof responsive to Plaintiff’s request which
Defendant asserts to be exempt from disclosure, accompanied
by a detailed justification statement covering each refusal
to release records or portions thereof in accordance with
the indexing requirements of Vaughn v. Rosen, 484 F.2d 820
(D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).
Plaintiff’s Motion, p. 1.

Defendant opposes Plaintiff’s Motion,

arguing that there is no basis to compel preparation of a Vaughn index
at this stage of the litigation.

Defendant’s Memorandum in Opposition

to Plaintiff’s Motion to Compel Preparation of a Vaughn Index, Doc.
No. 11.
“[U]nder the FOIA an agency must disclose all records requested
by ‘any person,’ 5 U.S.C. § 552(a)(3), unless the information sought
falls within one of the nine enumerated exemptions listed in section
552(b).”

Vaughn v. United States, 936 F.2d 862, 865 (6th Cir. 1991).

In the case presently before the Court, defendant asserts that it has
properly withheld documents pursuant to the exemptions in 5 U.S.C. §
552.

Defendant Department of the Army, Huntington District, Corps of

Engineers’ Answer to Plaintiff’s Complaint, Doc. No. 12, p. 3.

It is

defendant’s burden “to demonstrate . . . that the materials sought may
be withheld due to an exemption.”

Vaughn, 936 F.2d at 866 (citing

Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989)).
A “Vaughn index” is “a document-by-document index, specially
prepared for litigation purposes, in which the agency describes the
contents of its records and the reasons why each of the disputed items
is claimed to be exempt from disclosure.”

Dickerson v. Dep't of

Justice, 992 F.2d 1426, 1429 n.2 (6th Cir. 1993).

There is “no hard

and fast rule” with respect to when a Vaughn index is required.

Id.

at 1431 (citing Vaughn, 936 F.2d at 867).
The government must provide evidence that enables the court
to make a reasoned, independent assessment of the claim of
exemption.
Whether that evidence comes in the form of an
in camera review of the actual documents, something
labelled [sic] a “Vaughn Index,” a detailed affidavit, or
oral testimony cannot be decisive. The ultimate goals
remain to “(1) assure that a party's right to information
is
not
submerged
beneath
government
obfuscation
and
mischaracterization, and (2) permit the court system

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effectively and efficiently to evaluate the factual nature
of disputed information.”
Vaughn, 936 F.2d at 867 (quoting Vaughn, 484 F.2d at 826).

“[N]o

particular method of achieving those requirements is mandated.

A

court's primary focus must be on the substance, rather than the form,
of the information supplied by the government to justify withholding
requested information.”

Id. at 866.

Considering the foregoing, the Court concludes that a Vaughn
index is not appropriate at this juncture.

First, a Vaughn index is

not required in every case, see id.; Kurz-Kasch, Inc. v. Dep't of
Def., 688 F. Supp. 311, 313 (S.D. Ohio 1987) (“[A Vaughn index] is
merely a technique utilized to assist the Court when necessary and
should not be applied per se in every FOIA case.”), and plaintiff has
offered no explanation as to why an index is necessary in this case.
Moreover, the government has not yet supplied information to justify
withholding the requested information, and it will not be required to
do so until April 2015 when dispositive motions are due.

It is

therefore not evident whether a Vaughn index will be necessary for the
Court to make a reasoned, independent assessment of defendant’s claim
of exemption.

As noted supra, the Court’s “primary focus must be on

the substance, rather than the form, of the information supplied by
the government to justify withholding requested information.”
936 F.2d at 866.

Vaughn,

The Court therefore concludes that it would be

improper to compel production of a Vaughn index in this case prior to

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the government having the opportunity to establish that an exemption
applies.
Accordingly, Plaintiff’s Motion, Doc. No. 2, is DENIED.

November 24, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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