842 F. Supp. 2d 859
E.D. Va.2012Background
- FOIA dispute alleges improper withholding by the Army of documents relating to Pinnacle, Clark, and FBFC/FBRC housing projects for soldiers at Fort Benning and Fort Belvoir.
- Pinnacle challenges the Army’s declarations, the search for responsive records, and the accuracy of the Vaughn index.
- Category A–C document withholding involves Exemption 5 (attorney-client and deliberative process) and Exemption 4 (Clark-submitted materials).
- Clark controls both Clark Pinnacle Benning LLC and FBFC; the Army owns 49% of FBFC, with Clark Pinnacle Benning owning 51%.
- The record includes a May 2010 binder from Clark’s outside counsel (Kirkland & Ellis) provided to the Army, and extensive post-approval correspondence about Pinnacle’s termination.
- Georgia state court litigation between Pinnacle and Clark-related entities informs the background, while the Army’s FOIA response occurred in 2010–2011 with a Vaughn index later produced.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Buchholz declaration is legally sufficient personal knowledge for FOIA purposes. | Pinnacle argues lack of personal knowledge in the Buchholz declaration. | Army contends Buchholz had personal knowledge through position and duties; supplemental declarations cure gaps. | Declaration deemed sufficient; supplementation cures any deficiency. |
| Whether the Army’s search for responsive records was adequate. | Pinnacle claims gaps in search for contract documents, Fort Belvoir materials, and financial statements. | Search was detailed and reasonably calculated to uncover responsive records; missing items not shown to exist. | Search adequate; gaps unsubstantiated; no material fact showing inadequacy. |
| Whether the Vaughn index adequately describes and maps withheld documents to exemptions. | Pinnacle asserts errors undermine trust in the index and disclose errors indicate bad faith. | Index was reviewed, corrected, and supplemented; remaining issues require in-camera review for deliberative process documents. | Vaughn index generally adequate; in-camera review ordered for deliberative-process items. |
| Whether Exemption 5 and Exemption 4 classifications are properly applied to Category A–C documents. | Pinnacle contends misapplication or overbreadth of exemptions. | Category A–C documents properly withheld under attorney-client, deliberative process, common-interest doctrine, and confidentiality under Exemption 4. | Exemptions 5 and 4 applied properly; Category B supported by common interest; Category C confidential under National Parks and Critical Mass tests. |
Key Cases Cited
- Rein v. U.S. Dept. of Justice, 553 F.3d 128 (4th Cir. 2008) (deliberative process and attorney-client privileges; need for detailed explanations)
- National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974) (test for confidentiality under Exemption 4 (impair ability to obtain info or harm to competitor))
- Critical Mass Energy Proj. v. Nuclear Regulatory Comm’n, 975 F.2d 871 (D.C. Cir. 1992) (voluntary submissions; confidential information not typically released)
- Hunton & Williams v. U.S. Dept. of Justice, 590 F.3d 272 (4th Cir. 2010) (common interest doctrine; shared public-interest considerations)
- Klamath Water Users Protective Ass’n v. Dept. of the Interior, 532 U.S. 1 (1991) (Exemption 5 scope; distinguishable on facts (self-interested lobbying))
- City of Virginia Beach v. U.S. Dept. of Commerce, 995 F.2d 1247 (4th Cir. 1993) (deliberative process privilege; need for predecisional and deliberative showing)
- Ethyl Corp. v. U.S. E.P.A., 25 F.3d 1241 (4th Cir. 1994) (bear on reasonableness of search and segregability)
- Spannaus v. U.S. Dept. of Justice, 813 F.2d 1289 (4th Cir. 1987) (summary judgment standard in FOIA refusals; deference to agency affidavits)
- Wickwire Gavin, P.C. v. U.S. Postal Service, 356 F.3d 588 (4th Cir. 2004) (FOIA exemptions narrowly construed in favor of disclosure)