Williams Mullen v. United States Army Criminal Investigation Command
Filing
67
MEMORANDUM OPINION.Signed by District Judge James C. Cacheris on 11/22/2011. (jall)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
WILLIAMS MULLEN,
Plaintiff,
v.
UNITED STATES ARMY CRIMINAL
INVESTIGATION COMMAND,
Defendant.
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1:10cv262 (JCC/TCB)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Defendant United
States Army Criminal Investigation Command’s Motion to Vacate
the Court’s Amended Scheduling Order, Motion to Set a Summary
Judgment Briefing Schedule, and Motion for Leave to File a
Representative Sampling.
For the following reasons, the Court
will grant the Motion to Vacate the Court’s Amended Scheduling
Order and grant in part the Motion to Set a Summary Judgment
Briefing Schedule and Motion for Leave to File a Representative
Sampling.
I.
Background
This case arises out of an alleged illegal withholding
of records by Defendant United States Army Criminal
Investigation Command (USACIDC or Government).
Plaintiff
Williams Mullen filed a complaint to compel production of
1
certain documents in USACIDC’s possession relating to its
clients--Unconventional Concepts, Inc. (UCI) and Michael J.
Hopmeier--under the Freedom of Information Act (FOIA), 5 U.S.C.
§ 552.
Plaintiff filed its original FOIA request on July 31,
2007.
(Compl. ¶ 5; Ex. A.)
USACIDC denied that request on
October 16, 2007, citing an active investigation regarding UCI
and Mr. Hopmeier.
(Compl. ¶ 8; Ex. 3.)
After Mr. Hopmeier
allegedly learned that investigation was complete, on July 7,
2009, Plaintiff resubmitted its FOIA request on August 31, 2009.
(Compl. ¶ 10; Ex. 5.)
USACIDC denied it on September 29, 2009,
again citing an active investigation.
(Compl. ¶ 11; Ex. 6.)
Plaintiff appealed to the Army Office of General Counsel (Army
OGC), but the Army OGC affirmed the decision on January 8, 2010,
again citing the investigation.
(Compl. ¶¶ 12, 14; Ex. 8.)
Plaintiff requested by letter that the Army OGC reconsider on
January 26, 2010, but received no response.
(Compl. ¶ 15; Ex.
9.)
On March 17, 2010, Plaintiff filed its first Complaint
against USACIDC for alleged FOIA violations.
[Dkt. 1.]
(Compl. ¶¶ 16-17);
On May 4, 2010, the Court issued a scheduling order
(the Scheduling Order) directing the parties to finish discovery
by September 10, 2010.
[Dkt. 10.]
On May 14, 2010, Defendant
moved to vacate the Scheduling Order and to stay the proceedings
2
for ninety days to allow it time to review and release documents
previously withheld due to the investigation.
[Dkts. 11-12.]
Those documents fell into three categories: documents
from a 2005 investigation, the 2006 report of investigation (the
2005 Materials and 2006 Materials), and approximately 37,000
pages of field files from the investigation (the Field Files).
(D. Mem. in Supp. Mot. Stay [Dkt. 29] (D. Mot. Stay) at 3.)
Defendant provided a cost estimate for production of these files
and twice asked for confirmation that Plaintiff would pay the
cost.
Id.
Plaintiff initially refused but later agreed to pay
for production of the 2005 Materials and 2006 Materials.
(D.
Mot. Stay at 4.)
Per Defendant’s request, the Court issued an Order on
June 14, 2010, staying proceedings until September 12, 2010 (the
Stay).
[Dkt. 27.]
USACIDC then produced redacted copies of
both sets of documents on June 11, 2010, and June 25, 2010,
respectively, but, at Plaintiff’s request did not produce the
Field Files.
(D. Mot. Stay at 5.)
Six weeks later, on July 28,
Plaintiff requested production of the Field Files.
at 5.)
(Mot. Stay
The Court then granted several enlargements of the stay
period to allow USACIDC to continue processing and releasing the
responsive documents.
[Dkts. 40, 43, 46, 51, 54.]
The last
order granting a stay was on August 8, 2011, and it extended the
time for production an additional sixty days–-until October 7,
3
2011 (the Final Stay Order).
[Dkt. 54.]
The Final Stay Order
instructed Plaintiff to either file an amended complaint stating
what remains to be litigated or file a stipulation of voluntary
dismissal at the close of the stay.
[Dkt. 54.]
It also stated
that “should an amended complaint be filed, the parties will
thereafter work to propose a summary judgment briefing schedule
to the Court.”
[Dkt. 54.]
On August 8, 2011, USACIDC advised the Court that it
had completed production of responsive documents on August 5,
2011.
[Dkt. 52.]
Yet, Plaintiff received another set of
documents on October 4, 2011.
[Am. Compl. ¶ 16.]
USACIDC
submits that as recently as November 2, 2011, it identified and
released additional pages of responsive documents (D. Mem. [Dkt.
61] at 2) and Plaintiff confirms that on November 3, 2011, it
received approximately 181 additional pages (P. Opp. [Dkt. 64]
at 5).
The Government now states that it is unaware of any
additional document corrections to its release.
(D. Mem. at 2.)
At this point in time, Defendant has released more than 41,000
pages of responsive documents, approximately 23,763 of which
have been redacted or withheld in full.
(D. Mem. at 3.)
Believing that production was completed on August 5,
2011, on August 10, 2011, Plaintiff requested via email
correspondence that USACIDC provide a Vaughn Index (the Vaughn
4
Index or Index).1
[Dkt. 55 Ex. B.]
The Government responded
that it would produce a Vaughn Index with a summary judgment
briefing scheduling order.
[Dkt. 55 Ex. C.]
Plaintiff replied
that it sought to avoid compelling the production of the Index
through a Court hearing, and that only after reviewing the Index
could it determine to voluntarily dismiss the case or file an
amended complaint objecting to the Government’s withholdings.
[Dkt. 55 Ex. D.]
The parties continued to exchange
communication about the Index, but were unable to come to an
agreement regarding its production.
[Dkt. 55 Exs. D-F.]
As a result of their inability to come to an agreement
on a Vaughn Index, and the continued production of documents,
Plaintiff filed an Amended Complaint on October 7, 2011.
55.]
[Dkt.
Plaintiff now seeks the production of all records
responsive to the July 31, 2007, and August 31, 2009, FOIA
requests, the production of a full Vaughn Index, and attorneys’
fees and other litigation costs.
(Am. Compl. [Dkt. 55] ¶ 19.)
On November 1, 2011, this Court issued an Amended
Scheduling Order (the Amended Scheduling Order), requiring the
parties to file proposed discovery plans one week before the
Rule 16(b) pretrial conference on November 30, 2011.
[Dkt. 58.]
On November 3, 2011, Defendant filed its Motion to Vacate the
1
“A Vaughn index is a list describing the documents an agency [has withheld].
The list must include sufficiently detailed information to enable a district
court to rule whether the document falls within a FOIA exemption.” Rein v.
USPTO, 553 F.3d, 353 n. 6 (4th Cir. 2009).
5
Amended Scheduling Order.
[Dkt. 59.]
Defendant also filed a
Motion to set a Summary Judgment Briefing Schedule [Dkt. 63] and
a Motion for Leave to File a Representative Sampling [Dkt. 60].
On November 14, 2011, Plaintiff filed opposition to
Defendant’s motions.
November 17, 2011.
[Dkt. 64.]
Defendant filed its reply on
[Dkt. 65.]
Defendant’s motions are now before the Court.
III.
Analysis
As the Fourth Circuit has noted, “FOIA was enacted as
a general disclosure statute pertaining to all federal records.”
Bowers v. DOJ, 930 F.2d 350, 353 (4th Cir. 1991).
However,
“Congress ‘realized that legitimate governmental and private
interests could be harmed by release of certain types of
information.’”
Id. at 353-54 (quoting FBI v. Abramson, 456 U.S.
615, 621 (1982)).
It therefore created certain exemptions to
disclosure under FOIA, but nevertheless required that such
exemptions “be narrowly construed.”
Hunton & Williams v. U.S.
DOJ, 590 F.3d 272, 276 (4th Cir. 2010) (citing Bowers, 930 F.2d
at 354).
FOIA places the burden on the government agency to
sustain its action to withhold information under any of the FOIA
exemptions.
Wickwire Gavin, P.C. v. USPS, 356 F.3d 588, 591
(4th Cir. 2004).
Once a requestor of information files a judicial
challenge to an agency’s denial of its FOIA request, “a district
6
court must make a de novo determination of whether government
records were properly withheld under an FOIA exemption
provision.”
Willard v. IRS, 776 F.2d 100, 102 (4th Cir. 1985).
The government can meet its burden to demonstrate that the
withheld material was exempted from disclosure by “describing
the withheld material with reasonable specificity and explaining
how it falls under one of the enumerated exemptions.”
Hanson v.
USAID, 372 F.3d 286, 290 (4th Cir. 2004)(citing Miscavige v.
IRS, 2 F.3d 366, 367-68 (11th Cir. 1993)).
A.
Motion to Vacate Discovery Order
The Government requests that the Court vacate its
Amended Scheduling Order governing discovery and set a summary
judgment briefing schedule.
[Dkts. 59, 63.]
USACIDC argues
that the Amended Complaint presents questions of law regarding
whether documents were properly withheld under FOIA exemptions
and that such questions should be resolved on motions for
summary judgment.
(D. Mem. at 3-4.)
Plaintiff counters that
discovery is appropriate in this case because Defendant has not
submitted any evidence of the procedures it used to identify and
produce the documents, or any evidence establishing that it
properly withheld information pursuant to FOIA exemptions.
Opp. at 6.)
(P.
Thus, what is initially at issue in this case is a
question this Court has already considered: “whether or not
discovery is appropriate prior to the government filing a motion
7
for Summary Judgment explaining the appropriateness of its
decisions.”
Thompson v. United States, No. 1:09cv1246, 2010 WL
231782, at *2 (E.D. Va. Jan. 19, 2010).
circumstances, it is not.
Absent unusual
See id. at *2-3.
In the Fourth Circuit, the applicability of FOIA
exemptions “and other FOIA determinations should be resolved on
summary judgment.”
Hanson, 372 F.3d at 290.
“In order to
prevail on its motion for summary judgment, the [government]
must establish that it performed a proper search for documents
responsive to plaintiff’s requests.”
Wickwire Gavin, P.C. v.
Def. Intelligence Agency, 330 F. Supp. 2d 592, 596 (E.D. Va.
2004).
And, whether a given document properly falls within the
scope of one of the statutory exemptions is a question of law.
Ethyl Corp. v. EPA, 25 F.3d 1241, 1246 (4th Cir. 1994).
Thus,
the Court can properly evaluate Plaintiff’s concerns about
production procedures and FOIA exemptions after the Government
has filed its summary judgment motion explaining its decisions.
This Court has previously recognized that
“‘[d]iscovery in FOIA is rare’ and ‘only appropriate when an
agency has not taken adequate steps to uncover responsive
documents.’”
Thompson, 2010 WL 231782 at *3 (citing Schrecker
v. DOJ, 217 F.Supp.2d 29, 35 (D.D.C. 2002).
Plaintiff submits
many cases supporting the fact that discovery is at times
appropriate in FOIA cases, but fails to demonstrate that
8
discovery is proper at this point in the case.
The cases
Plaintiff cites address whether courts should have granted
particular summary judgment motions, not whether discovery
should have been conducted prior to the filing of motions for
summary judgment.
See Local 3, Int’l Bhd. of Elec. Workers v.
NLRB, 845 F.2d 1177, 1179 (2d Cir. 1988) (affirming the district
court’s grant of summary judgment denying plaintiff’s request
for discovery); Weisberg v. DOJ, 627 F.2d 365, 371 (D.C. Cir.
1980) (reversing the district court’s grant of summary judgment
because “issues genuinely existed as to the thoroughness of the
FBI search” and “summary judgment [should be] predicated in part
on a finding that the document search was complete”); Phillippi
v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976)(reversing district
court’s grant of summary judgment because the government should
have provided a public affidavit addressing the requested
records).
That the Government may fail to meet its burden at
the summary judgment stage, is not a reason to order discovery
in FOIA cases before the Government has had the opportunity to
meet that burden.
In reviewing cases where courts supported discovery
prior to summary judgment, this Court has noted the
distinguishing presence of “‘bad faith’ or ‘malfeasance’ on the
part of the government in its delayed response to FOIA
requests.”
Id. (citing Citizens for Responsibility & Ethics in
9
Wash. v. U.S. DOJ, No. 05-2078, 2006 U.S. Dist. LEXIS 34857,
2006 WL 1518964, at *3 (D.D.C. June 1, 2006);
Judicial Watch,
Inc. v. Dep't of Commerce, 127 F. Supp. 2d 228 (D.D.C. 2000)).
Plaintiff submits that there is evidence that one of the
government agencies involved in this matter demonstrated bad
faith in handling responsive documents.
(P. Opp. at 8.)
Specifically, Plaintiff argues that an email produced pursuant
to a different FOIA request indicates an attempt to manipulate
documents that are responsive to the requests in this case.
Opp. at 8-9.)
(P.
Assuming for the moment that Plaintiff is
correct, that piece of evidence is not the type that would alone
necessitate discovery prior to summary judgment.2
See Citizens
for Responsibility & Ethics in Wash., 2006 U.S. Dist. LEXIS
34857 at *9-10 (finding that discovery was appropriate because
the government had not produced a “single responsive document”
and there were questions about whether the government “processed
its FOIA requests in a reasonable and expeditious manner”).
Thus, for the reasons stated above, the Court will
grant Defendant’s Motion to Vacate the Court’s Amended
Scheduling Order [Dkt. 59].
B.
Summary Judgment Briefing Schedule
Turning next to the summary judgment briefing
schedule, USACIDC requests that the Vaughn Index be filed with
2
The single email that Plaintiff suggests indicates bad faith was produced
pursuant to a different FOIA request in a different case and it is not clear
it involves documents that are even responsive in this case.
10
its motion for Summary Judgment 90 days from the issuance of the
Court’s order on this matter.
Defendant proposes that Plaintiff
would then have 30 days file its cross motion for summary
judgment and opposition, and Defendant would have 21 days to
file a reply.
(D. Mot. SJ [Dkt. 63] at 1.)
There is no dispute
that a Vaughn Index is necessary in this case or that the
Government should provide one.
However, the parties dispute the
appropriate timing of the production of the Index and its scope.
a. Timing of Vaughn Index
Turning first to the timing of the production of a
Vaughn Index, USACIDC seeks to file its Vaughn Index with, and
in support of, its motion for summary judgment.
(D. Mem. at 6.)
Plaintiff requests the Vaughn Index “at least three months
before filing for summary judgment.”
(P. Opp. at 12.)
This Court has previously approved of the government’s
filing of a Vaughn Index with the filing of a summary judgment
motion.
See Thompson, 2010 WL 231782 at *3.
It is neither
necessary, nor often efficient, however, for the government to
wait until the filing of a summary judgment motion to produce an
Index.
Often an Index is provided upon the plaintiff’s request,
prior to the filing of any summary judgment motions.
See Gavin
v. Def. Intelligence Agency, 330 F.Supp.2d 592, 595 (E.D. Va.
July 26, 2004).
See also Jarno v. Dep't of Homeland Sec., 365
F. Supp. 2d 733, 736-737 (E.D. Va. 2005)(demonstrating that
11
motions for summary judgment are not necessary when the Index is
produced and the plaintiff decides to dismiss the case).
When, however, the parties cannot come to an agreement
on a voluntary production of the Index, the Court is often
called to act.
This Court recognizes that “[r]egarding the
issue of when during litigation a Vaughn Index should be filed,
i.e., at the summary judgment stage or earlier, there is no
general consensus among the courts that have considered the
issue.”
Keeper of the Mts. Found. v. U.S. DOJ, No. 2:06-cv-
00098, 2006 U.S. Dist. LEXIS 39915, at *6 (S.D. W. Va. June 14,
2006).
In assessing the timing of the filing of the Index,
courts have considered whether the government has indicated that
it plans to file a dispositive motion.
In Providence Journal
Co. v. U.S. Dep't of Army, 769 F. Supp. 67, 68-69 (D. R.I.
1991), the court granted plaintiff’s motion for a Vaughn Index
prior to summary judgment because it found the argument that
court should wait until government files a dispositive motion
“insufficient and sterile” in light of fact that government had
not even indicated when it would file such a motion.
Here,
USACIDC submits that it will file an Index with its motion for
summary judgment and so there is no concern that the Court would
be waiting for an event that may not occur.
12
Courts that hold the Index should be filed after the
filing of dispositive motions reason that “[t]he filing of a
dispositive motion, along with detailed affidavits, may obviate
the need for indexing the withheld documents.”
620 F. Supp. 212, 213 (D. D.C. 1985).
Stimac v. DOJ,
Again, this concern is
not present here since USACIDC seeks to file the Index with its
motion for summary judgment.
Courts that hold that the Index should be filed before
the filing of dispositive motions reason that access to the
Index at an earlier stage in the litigation is “the more
efficient and fair approach.”
Keeper of the Mts. Found., 2006
U.S. Dist. LEXIS 39915 at *8.
Courts have found that “[i]n
light of both the passage of time since the initial request and
the purpose of the Vaughn index to educate both the requester
and the Court, [] it would be unfair to allow the [d]efendants
months to prepare their case and then force [p]laintiff to
formulate its entire case within the two weeks it has to respond
to the motion.”
Cal. ex rel. Brown v. EPA, No. C 07-02055, 2007
U.S. Dist. LEXIS 66036, at *6 (N.D. Cal. Aug. 27, 2007); see
also Cal. ex rel. Brown v. U.S. EPA, No. C-08-0735 SC, 2008 U.S.
Dist. LEXIS 62528, at *9-10 (N.D. Cal. Aug. 1, 2008)(holding
that “it is more appropriate for the EPA to produce the Vaughn
index now and allow Plaintiff to review it prior to summary
judgment”); Hansen v. U.S. Dep't of Air Force, 1991 U.S. Dist.
13
LEXIS 4934, No. 91-0099-LFO, 1991 WL 199748, at * 1 (D.D.C.
1991) (granting motion for a Vaughn index and finding it unfair
to allow the government four months to file a dispositive motion
and then allow the opposing party only two weeks to formulate
their entire case and respond to that motion).
Turning to fairness and efficiency concerns in this
case, Plaintiff argues that “[i]t would be inequitable to allow
Defendant almost two years to complete its case and only give
Plaintiff a month to formulate its response.”
(P. Opp. at 12.)
Defendant’s motion comes on the heels of a document production
that has continued for well over a year.
The Court granted
USACIDC the initial stay to process documents on June 14, 2010,
and USACIDC completed its production on November 2, 2011.
At
this point Defendant has produced more than 41,000 pages of
documents, approximately 23,763 of which have been redacted or
withheld.
(D. Mem. at 3.)
Considering the passage of time and
the volume of documentation, the Court finds that it would be
unfair to require Plaintiff to respond 30 days after Defendant
provides a Vaughn Index.
The Court believes, however, that it can address
concerns of fairness and efficiency with the timing of the
summary judgment briefing schedule.
As a result, given the
current posture of this case, this Court finds that the filing
of a Vaughn index with Defendant’s motion for summary judgment
14
is appropriate.
Thus, the Court will grant in part Defendant’s
Motion to Set a Summary Judgment Briefing Schedule.
This Court
will modify the scheduling order such that Defendant shall file
its motion for summary judgment 90 days from the issuance of
this Order; Plaintiff shall file a response in opposition 90
days from the filing of Defendant’s motion for summary judgment;
and, Defendant has 30 days to file a reply brief to Plaintiff’s
response in opposition.
b. Scope of Vaughn Index
Turning next to the nature of the Vaughn Index,
Plaintiff seeks a full and complete Vaughn Index.3
19.)
(Am. Compl. ¶
Defendant requests that this Court permit it to file the
Index based on a sampling.
(D. Mem. at 6.)
Defendant’s plan
generally proposes that the sampling be based on roughly one
percent of the 23,763 pages of responsive documents that have
been redacted or withheld in full.
(D. Mem. at 8.)
i. Representative Sample
The agency bears the burden of demonstrating that
requested information comes within a FOIA exemption.
Spannaus
v. DOJ, 813 F.2d 1285, 1288 (4th Cir. 1987)(citing FBI v.
Abramson, 456 U.S. 615, 622, 72 L. Ed. 2d 376, 102 S. Ct. 2054
(1982)).
“Vaughn requires an agency in denying a request for
documents under the Freedom of Information Act to furnish
3
Plaintiff has submitted, however, that it would waive an indexing of
information withheld or redacted under Exemptions (b)(6) and (b)(7)(C).
Opp. at 15.)
15
(P.
detailed justifications for exemption claims, itemize and index
documents in such a manner as to correlate justifications for
refusal to disclose where actual portions of documents are
claimed to be exempt.”
Bowers v. DOJ, 930 F.2d 350, 352 (4th
Cir. 1991).
“‘Representative sampling is an appropriate procedure
to test an agency's FOIA exemption claims when a large number of
documents are involved.’”
In re DOJ, 999 F.2d 1302, 1318 (8th
Cir. 1993)(quoting Bonner v. U.S. Dep’t of State, 928 F.2d 1148,
1151 (D.C. Cir. 1991)).
“Representative sampling allows the
court and the parties to reduce a voluminous FOIA exemption case
to a manageable number of items that can be evaluated
individually through a Vaughn index or an in camera inspection.
If the sample is well-chosen, a court can, with some confidence,
‘extrapolate its conclusions from the representative sample to
the larger group of withheld materials.’”
Bonner, 928 F.2d at
1151 (quoting Fensterwald v. CIA, 443 F. Supp. 667, 669 (D.D.C.
1977)).
Here approximately 23,763 pages of responsive
documents have been redacted or withheld.
Courts have permitted
sampling in cases with a much smaller volume of documents than
the volume in the case at hand.
See Rosenfeld v. DOJ, 57 F.3d
803, 806 (9th Cir 1995) (“It [the FBI] released 4,985 [pages] in
redacted form, and withheld 1,652 pages in their entirety.”); In
16
re U.S. Dep’t of Def., 848 F.2d 232, 233 (D.C. Cir. 1988) (“DOD
withheld in whole or in part approximately 2,000 pages of
documents . . . .”).
As a result, a representative sample is
appropriate in this case.
ii. Process for Selecting the Sample
The Court turns next to the sample itself, as courts
have cautioned that “the technique will yield satisfactory
results only if the sample employed is sufficiently
representative, and if the documents in the sample are treated
in a consistent manner.”
Bonner, 928 F.2d at 1151.
The Government proposes three different sampling plans
that depend on the subset of documents.
For the 2005
investigation, 2006 report of investigation, and the 2006
investigation’s field files, there are a total of 39,571 pages,
approximately 23,425 of which have been redacted or withheld in
full.
(D. Mem. at 8.)
USACIDC requests the sample draw from
approximately one percent of the 23,425 pages.
One percent of
23,425 is approximately 235 and USACIDC submits that, starting
with bates stamp page one, it will index every 165th page in
order to obtain those 235 pages.
The number 165 is obtained by
dividing the full universe of pages-–39,571-–by 235.
Mem. at 9.)
(See D.
Thus, when Defendant produces its Index it will be
producing every 165th page from the full universe of pages,
i.e., pages produced, pages withheld, and pages redacted.
17
As a
result, Defendant submits that if the 165th page is part of a
document that was released in full, “then the first redacted or
withheld document following the 165th page will be included in
the representative sample.”
(D. Mem. at 9.)
For the agent activity summaries, Defendant proposes
that three pages--the first, eighty-second, and 162nd pages-–
from the approximately 162 pages of documents would be indexed.
(D. Mem. at 9.)
For the 2005 investigation, 2006 report of
investigation, the 2006 investigation’s field files, and agent
activity summaries, the Index would describe the basis for
withholding not only the specific page, but for the entire
document that encompasses that page.
(D. Mem. at 8.)
Finally,
a categorical Vaughn Index would be prepared for the
approximately 176 pages of registered source documents that were
withheld in full because these documents were all withheld on
the same basis.
(D. Mem. at 9.)
1. Representative Selection
Plaintiff argues that this methodology “merely
provides a ‘random sampling’ of its withholdings rather than a
‘representative sampling.’”
(P. Opp. at 15.)
Plaintiff points
out that under the Defendant’s methodology some of the documents
indexed would only show that USACIDC “withheld individual names
and a signature.”
(P. Opp. at 14.)
Plaintiff contends that an
indexing of redactions of individual names and contact
18
information would not constitute a representative sampling, and
thus requests a “full and complete Vaughn index.”
(P. Opp. at
15.)
Plaintiff is correct that the methodology outlined by
USACIDC randomly selects documents to index, but at a certain
point the percentage of documents randomly sampled is high
enough that it produces a representative sample.
And, here the
methodology would pull from all types of files: the 2005
Materials, the 2006 Materials, and the Field Files.
If there
are documents that only contain redactions of names and
signatures in the full universe of documents, it is to be
expected that a representative sample would on occasion produce
such documents.
And there is no requirement that every type of
exemption invoked by Defendant must be covered in the Index.
See Weisberg v. DOJ, 745 F.2d 1476, 1490 (D.C. Cir. 1984)(noting
that the appellant complained that the sampling methodology did
not provide examples of the [defendant’s] use of certain
exemptions, but “discern[ing] no error whatever in the
[d]istrict [c]ourt’s decision to require sampling rather than
examining each and every document on which challenged exemptions
were claimed”).
Courts recognize that where “the number of
documents is excessive [] it would not realistically be possible
to review each and every one,” and thus a sampling procedure may
be appropriate.
Id. at 1483, 1485, 1490 (D.C. Cir.
19
1984)(affirming the adequacy of Vaughn indices in a case where
plaintiff received over 60,000 pages of documents and the
district court ordered a Vaughn Index of every two hundredth
document and then a supplemental Vaughn index when the first
index produced a large number of pages containing no excisions).
Thus, the Court believes that the general methodology outlined
by USACIDC is capable of creating a representative sample in
this case.
2. Appropriate Volume of Documents
Finally, turning to the volume of documents that will
create a representative sample, the Court finds that an
approximately two percent sample of the 23,425 redacted or
withheld pages from the release of the documents located in the
2005 investigation, 2006 report of investigation, and the 2006
investigation’s field files is sufficient.
Considering that
there are 39,571 responsive pages in the 2005 investigation,
2006 report of investigation, and the 2006 investigation’s field
files, every 84th page shall be indexed starting with the page
of bates stamp one.4
indexed.
Thus, at a minimum 471 pages shall be
The Court emphasizes that this is just the minimum, as
the index shall describe the basis for withholding not only the
specific page, but for the entire document that encompasses that
4
To be clear, the Index shall include pages redacted or withheld pursuant to
Exemptions (b)(6) and (b)(7)(C). Invocation of those exemptions would
representative of the full universe of documents and they are to treated the
same as any other exemption.
20
page.
Also, if any of the documents pulled as a result of every
84th page being indexed are documents that were fully released,
then Defendant should index the next redacted or withheld
document.
For the 162 pages of agent activity summaries, every
40th page shall be selected.
selected.
Thus, at least 4 documents will be
The processes described above regarding indexing the
entire document and moving to the next redacted or withheld
document shall apply.
Finally, the Court approves of a
categorical Vaughn Index for the approximately 176 pages of
registered source documents that were withheld in full since
those documents were all withheld on the same basis.
Thus, as described above, the Court will grant in part
Defendant’s Motion for Leave to File a Representative Sampling.
IV.
Conclusion
For these reasons, the Court will grant Defendant’s
Motion to Vacate the Court’s Amended Scheduling Order, grant in
part Defendant’s Motion to Set a Summary Judgment Briefing
Schedule, and grant in part Defendant’s Motion for Leave to File
a Representative Sampling.
An appropriate Order will issue.
November 22, 2011
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
21
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