Village of Hobart v. US Department of the Interior et al

Filing 22

ORDER denying motion for discovery and in camera review signed by Chief Judge William C Griesbach on 9-23-14. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
VILLAGE OF HOBART,
Plaintiff,
v.

Case No. 14-C-201

DEPARTMENT OF THE INTERIOR, et al.,
Defendants.

ORDER DENYING DISCOVERY AND IN CAMERA REVIEW

Plaintiff filed this action under the Freedom of Information Act (FOIA) after the Department
of the Interior withheld all documents responsive to Plaintiff’s FOIA request. The Department cited
Exemption 5, which protects “inter-agency and or intra-agency memorandums or letters which
would not be available by law to a party ... in litigation with the agency.” 5 U.S.C. § 552(b)(5). This
exemption covers work product, which prevents “a party [from] discover[ing] documents and
tangible things that are prepared in anticipation of litigation or for trial by or for another party or its
... agent.” Fed.R.Civ.P. 26(b)(3)(A); see FTC v. Grolier, 462 U.S. 19, 20 (1983) (“It is well
established that [exemption 5] was intended to encompass the attorney work[ ]product rule.”).
Appleton Papers, Inc. v. E.P.A., 702 F.3d 1018, 1022 (7th Cir. 2012). The government has provided
the Plaintiff with a Vaughn index (named after Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973)) in
which it identifies the responsive documents and provides a description of the basis for withholding.
(ECF No. 16-4.)
Plaintiff has filed a motion seeking in camera review of the documents in question to

determine whether the documents being withheld are actually exempt from disclosure. “In camera
review is considered the exception, not the rule, and the propriety of such review is a matter
entrusted to the district court's discretion.” Local 3, Int'l Bhd. of Elec. Workers, AFL–CIO v. NLRB,
845 F.2d 1177, 1180 (2d Cir. 1988).
Here, Plaintiff believes review is justified in part because of circumstances it views as
suspicious. Specifically, the Village notes that the Interior Department originally claimed there
were 94 pages of responsive documents, but more recently it claimed there were 150 pages. This
is not suspicious, however, because if a government agency were going to wrongfully conceal or
withhold documents, it would not tell the seeking party that it now had more documents that were
responsive to its requests. And in any event, the government’s explanation for the mixup is quite
plausible: the files contained two “PDF Portfolios,” which themselves contain multiple documents
that can sometimes appear, erroneously, only as a single document. (ECF No. 18-1 at ¶¶ 9-10.)
The Village also notes that certain communications with third parties are not reflected in the
Vaughn index, but any such documents were outside the scope of the FOIA request, which asked
for documents prepared in response to a 2009 memorandum. That is, the communications Plaintiff
believes are missing would have pre-dated the 2009 memorandum, but its FOIA request asked only
for documents subsequent to the memorandum.
In sum, I agree with Plaintiff that in some circumstances in camera review would be
warranted, and of course it is authorized by the statute itself. But here the government’s affidavits
reveal a sincere effort to explain the alleged discrepancies, which means the case (at this stage) is
no different from the mine run of FOIA cases in which in camera review and discovery are not
undertaken.
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For these reasons, the motion for in camera review and discovery is DENIED.

SO ORDERED this 23rd day of September, 2014.

/s William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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