Hardy v. Bureau of Alcohol, Tobacco, Firearms, and Explosives
243 F. Supp. 3d 155
| D.D.C. | 2017Background
- Plaintiff David T. Hardy, a firearms-law blogger, submitted a FOIA request to DOJ OIG seeking interview statements, survey materials, and workpapers relating to OIG Report No. I-2007-006 (the NFRTR Report).
- OIG located 60 responsive documents (511 pages) across three categories: interview records/telephone notes; survey materials (drafts, results, analyses); and miscellaneous workpapers (indexes, summaries, spreadsheets). OIG withheld most material under FOIA Exemption 5 (deliberative process), producing only a highly redacted set and a Vaughn index.
- Plaintiff challenged OIG’s Exemption 5 withholdings and requested in camera review if the exemption was upheld; OIG moved for summary judgment and plaintiff filed a cross-motion.
- The parties did not dispute that the documents were pre-decisional; the contested question was whether they were deliberative and whether segregable non-exempt factual material was released.
- The Court found OIG’s Vaughn index and declarations uneven: some categories were supported as deliberative, others were inadequately described or plainly factual and thus not exempt.
- Rulings: Court upheld withholding for interview records/telephone notes, the survey draft, and an interview-workpaper; ordered disclosure of raw survey results/final survey data; and denied, without prejudice, summary judgment as to several analysis/index/summaries, directing OIG to supplement its Vaughn index or produce the documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Exemption 5 to interview records/notes | Hardy: notes are factual and should be disclosed; any privilege argument is conclusory | OIG: notes reflect inspectors’ judgments and internal deliberations and would reveal deliberative process | Court: Withholding affirmed — interview summaries reflect culling/judgment and are deliberative (Exemption 5 applies) |
| Applicability of Exemption 5 to raw survey results/final survey data | Hardy: raw survey data are factual and were partly published; withheld portions must be disclosed | OIG: survey material evidences deliberation about what was reliable/relevant and could reveal process | Court: Withholding denied — raw survey results/data are factual, anonymized, already partly published, and not protected by Exemption 5 |
| Applicability of Exemption 5 to survey draft and survey analyses | Hardy: draft/analyses may be factual or segregable; must be described | OIG: draft and analyses are deliberative and would reveal decisionmaking/edits | Court: Survey draft withheld (Exemption 5 applies); but survey question analyses and final survey data analysis inadequately described — denial without prejudice and required supplementation |
| Segregability and sufficiency of Vaughn index/declarations for workpapers/index/email summaries | Hardy: Vaughn is conclusory; OIG must provide tailored justifications or produce documents | OIG: provided declarations and Vaughn; asserts line-by-line review and nondisclosure justified | Court: Vaughn/declarations insufficient for several workpapers (Workpaper Index, Email Summary, Document Summary); denied without prejudice and ordered OIG to supplement or produce material |
Key Cases Cited
- Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) (describing purpose of deliberative-process privilege)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (establishing requirement for index describing withheld documents)
- Montrose Chem. Corp. v. Train, 491 F.2d 63 (D.C. Cir. 1974) (agency selection/summarization of facts can be deliberative)
- Mead Data Central, Inc. v. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977) (functional approach; factual material may be privileged if disclosure would expose deliberative process)
- Army Times Publ’g Co. v. Dep’t of Air Force, 998 F.2d 1067 (D.C. Cir. 1993) (survey/poll results are factual and not protected when comparable released data exist)
- Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504 (D.C. Cir. 2011) (selection/organization of facts as part of deliberative process)
- Milner v. U.S. Dep’t of Navy, 562 U.S. 562 (2011) (FOIA exemptions are exclusive and construed narrowly)
- Mapother v. U.S. Dep’t of Justice, 3 F.3d 1533 (D.C. Cir. 1993) (factual material assembled via judgment can be deliberative)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (rejecting hypothetical-litigation test for Exemption 5 availability)
- Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) (agency bears burden to show both predecisional and deliberative nature)