Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DAVID T. HARDY,
Plaintiff,
v. Civil Action No. 15-1649 (BAH) BUREAU OF ALCOHOL, TOBACCO, Chief Judge Beryl A. Howell FIREARMS AND EXPLOSIVES, et al .,
Defendants. MEMORANDUM OPINION
The plaintiff, David T. Hardy, a self-described “attorney and internet blogger who disseminates information relating to firearms law issues,” Compl. ¶ 4, ECF No. 2, initiated this lawsuit against the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), the Department of Justice (“DOJ”) and DOJ’s Office of Inspector General (“OIG”), claiming that the agencies violated the Freedom of Information Act (“FOIA”), 5 U.S.C. § 522, by improperly withholding responsive documents he requested regarding ATF’s policies on registered handguns and certain documents “given to” OIG “in connection with” an OIG report on ATF’s National Firearms Registration and Transfer Record (“NFRTR”). See Compl. ¶¶ 10, 18, 21. Pending before the Court are the defendants’ Motion for Summary Judgment, Defs.’ Mot. Summ. J. (“Defs.’ Mot.”), ECF No. 22, and the plaintiff’s cross-motion for summary judgment, Pl.’s Cross-Mot. Summ. J. and Opp’n to Defs.’ Mot. (“Pl.’s Opp’n”) at 1, ECF No. 24. For the reasons stated below, both motions are granted in part and denied in part. [1]
I. BACKGROUND
On March 18, 2015, OIG received a FOIA request from the plaintiff seeking “any statements, surveys, or reports of interviews given” to OIG “in connection with OIG Report No. I-2007-006,” titled “The Bureau of Alcohol, Tobacco, Firearms and Explosives’ National Firearms Registration and Transfer Record, June 2007,” (the “NFRTR Report”), which had been prepared by OIG’s Evaluation and Inspections Division. Compl., Ex. 3, FOIA Request to OIG, ECF No. 2-3; Defs.’ Mot., Ex. 2, Decl. of Deborah M. Waller (“Waller Decl.”) ¶ 3, ECF No. 22- 2, and Ex. 4, NFRTR Report, ECF No. 22-4. [2] The report gathered information about the NFRTR (“NFRTR”), an electronic database that contains records on almost two million weapons regulated by the National Firearms Act (“NFA”). NFRTR Report at 2. OIG examined ATF’s “effectiveness in maintaining the records of registrations and transfers of NFA weapons in the NFRTR . . . in response to requests from members of Congress who had received letters from citizens expressing concern about the accuracy and completeness of the NFRTR.” Id. at 3. OIG’s review included interviews, data analyses and document reviews, an electronic survey, a site visit to an NFA Branch, which is responsible for maintaining the NFRTR, and a demonstration of the NFRTR database. Id. at 24-26.
According to both parties, the requested records at issue fall into one of three categories: “(1) records of interviews and notes of telephone interviews, (2) survey results, a draft survey, survey data summaries, and survey data analysis, and (3) miscellaneous work papers, including indexes of materials and interviews; and summaries of a document and emails that were *3 reviewed.” Defs.’ Mot., Ex. 3, Decl. of Nina S. Pelletier (“Pelletier Decl.”) ¶ 5, ECF No. 22-3; [3] see also Pl.’s Response to Defs.’ Stmt. Of Undisputed Material Facts & Pl.’s Stmt. Of Material Facts. Supp. Cross-Mot. Summ J. (“Pl.’s SUMF”) at 3, ECF No. 24.
In August 2015, OIG prepared a response to the plaintiff’s request, advising that OIG deemed the responsive records “reflect[ive] of the deliberative processes of the OIG” and exempt from disclosure pursuant to the “deliberative process” privilege under Exemption 5 of FOIA but, due to a clerical error, this letter was not actually delivered to the plaintiff until after litigation had already commenced. Waller Decl. ¶¶ 5–6; see also 5 U.S.C. § 552(b)(5) (“Exemption 5”) (exempting materials that are “pre-decisional” and “deliberative”).
In January 2016, after litigation in this matter had begun, OIG reviewed sixty documents
related to the NFRTR Report and “determined that portions of the records that were directly
quoted in the final report could be segregated and released without compromising the
deliberative processes of the OIG.” Waller Decl. ¶ 7. The following month, on February 26,
2016, OIG provided the plaintiff approximately forty pages of highly redacted documents,
consisting of records of interviews from which OIG redacted the location, the participants, the
inspector, and nearly all of the summaries of discussion during the interview, s
ee
Pl.’s Mot., Ex.
1 at 1–21, ECF No. 24-1, along with an index of responsive records withheld under claim of
exemption, pursuant to
Vaughn v. Rosen
,
The plaintiff contends that OIG has improperly withheld documents under Exemption 5. Pl.’s Opp’n at 8–16. [5] If application of this exemption is not declared improper, the plaintiff requests that the Court conduct an in camera review of the withheld documents, starting with a sample of 79 pages, to determine whether they were properly withheld. Id. at 16.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” F ED . R. C IV . P. 56(a). The moving party bears the
burden of demonstrating the “absence of a genuine issue of material fact” in dispute,
Celotex
Corp. v. Catrett
,
The FOIA was enacted “to promote the ‘broad disclosure of Government records’ by
generally requiring federal agencies to make their records available to the public on request.”
DiBacco v. U.S. Army
,
In litigation challenging the sufficiency of “the release of information under the FOIA,
‘the agency has the burden of showing that requested information comes within a FOIA
exemption.’”
Pub. Citizen Health Research Grp. v. FDA
,
An agency may carry its burden of properly invoking an exemption by submitting
sufficiently detailed affidavits or declarations, a
Vaughn
index of the withheld documents, or
both, to demonstrate that the government has analyzed carefully any material withheld, to enable
the court to fulfill its duty of ruling on the applicability of the exemption, and to enable the
adversary system to operate by giving the requester as much information as possible, on the basis
of which the requester's case may be presented to the trial court.
See Judicial Watch, Inc. v. U.S.
Secret Serv.
,
The FOIA provides federal courts with the power to “enjoin the agency from withholding
agency records and to order the production of any agency records improperly withheld from the
complainant,” 5 U.S.C. § 552(a)(4)(B), and “directs district courts to determine
de novo
whether
non-disclosure was permissible,”
Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec.
, 777
F.3d 518, 522 (D.C. Cir. 2015), by reviewing the
Vaughn
index and any supporting declarations
“to verify the validity of each claimed exemption,”
Summers v. U.S. Dep’t of Justice
, 140 F.3d
1077, 1080 (D.C. Cir. 1998). As part of this review, district courts also have an “affirmative
duty” to consider whether the agency has produced all segregable, non-exempt information,
*8
regardless of whether the FOIA plaintiff has raised this issue.
Elliott v. U.S. Dep’t of Agric.
, 596
F.3d 842, 851 (D.C. Cir. 2010) (quoting
Morley v. CIA
,
III. DISCUSSION
OIG has withheld, in full or in part, records responsive to all three categories of requested documents, pursuant to the deliberative process privilege under Exemption 5. Pelletier Decl. ¶ 5; Waller Decl. ¶¶ 8–10. The contours of the deliberative process privilege are discussed first, before turning to whether OIG has sustained its burden of showing both that the contested documents are properly withheld under Exemption 5 and that all reasonably segregable portions have been disclosed.
A. Exemption 5’s Deliberative Process Privilege
Intended to protect “open and frank discussion” among government officials to enhance
the quality of agency decisions,
Dep’t of Interior v. Klamath Water Users Protective Ass’n
(“
Klamath Water
”),
The deliberative process privilege serves at least three policy purposes. First, the
privilege “protects creative debate and candid consideration of alternatives within an agency,
and, thereby, improves the quality of agency policy decisions.”
Jordan v. U.S. Dep’t of Justice
,
“To qualify for the deliberative process privilege, an intra-agency memorandum must be
both pre-decisional and deliberative.”
Abtew v. U.S. Dep’t of Homeland Sec.
,
“Under the deliberative process privilege, factual information generally must be
disclosed, but materials embodying officials’ opinions are ordinarily exempt.”
Petroleum Info.
Corp. v. U.S. Dep’t of Interior
,
Under this functional approach, an agency may not rely on the deliberative process
privilege unless, if disclosed, the factual information would reveal something about the agency’s
deliberative process,
see Playboy Enterprises, Inc. v. U.S. Dep’t of Justice
,
B. Analysis of OIG’s Application of the Deliberative Process Privilege
The plaintiff challenges OIG’s withholding under the deliberative process privilege of
511 pages in sixty responsive records falling into three categories of requested records: “(1)
*12
records of interviews and notes of telephone interviews, (2) survey results, a draft survey, survey
data summaries, and survey data analysis, and (3) miscellaneous work papers, including indexes
of materials and interviews; and summaries of a document and emails that were reviewed.”
Pelletier Decl. ¶ 5; Pl.’s SUMF at 3.
[6]
Notably, the “predecisional” character of these withheld
records is not disputed.
[7]
Consequently, analysis is limited to whether OIG has provided
adequate detail in the
Vaughn
Index and Waller and Pelletier declarations regarding the three
categories of documents to show that the “deliberative” prong of the deliberative process
privilege is met, justifying withholding of the records.
[8]
See, e.g.
,
Army Times Publ’g Co. v.
*13
Dep’t of Air Force
,
Rather than correct its
Vaughn
Index, OIG accuses the plaintiff of “playing games by suggesting that these
few typographical errors meaningfully detract from the sufficiency of the index,” urging that “[t]he fact that the
index inadvertently uses the term ‘interview statement’ in a few entries is completely immaterial given the index
also contains a separate (accurate) description of each document in the index’s second column.” Defs.’ Reply at 10
n.3. OIG’s response is as disingenuous as it incorrect: the term “interview statement” is used not “in a few entries,”
but for
every
document withheld under Exemption 5,
see Vaughn
Index at 1–35, a fact that only highlights OIG’s
apparent lack of care in matching the “Brief Description of the Document” in the second column to the fuller
“Description of Withheld Information” in the fifth column. To be sure, “a
Vaughn
index is not a work of literature”
and “agencies are not graded on the richness or evocativeness of their vocabularies.”
Landmark Legal Found. v.
IRS
,
The plaintiff additionally argues that the NFRTR is used in civil forfeiture proceedings “to determine
whether an NFA-regulated firearm is properly registered.” Pl.’s Opp’n at 10. The Supreme Court has expressly
cautioned, however, against the use of this kind of “hypothetical litigation” in order to determine the applicability of
Exemption 5: “[I]t is not sensible to construe the [FOIA] to require disclosure of any document which would be
disclosed in the hypothetical litigation in which the private party’s claim is the most compelling.”
NLRB v. Sears,
Roebuck & Co.
,
OIG appears to suggest a blanket rule covering all the documents, asserting that even if
the documents contain purely factual information, they were produced in preparation for a final
public report and thus are non-disclosable.
See
Defs.’ Reply at 5 (asserting that even purely
factual matter “‘may so expose the deliberative process within an agency’ that the material is
appropriately privileged.” (quoting
Mead Data Central, Inc. v. Dep’t of Air Force
, 566 F.2d at
256). The “limited exception to the general principle that purely factual material may not be
withheld under Exemption 5 may not be read so broadly, however, as to swallow the rule,”
Nat’l
Whistleblower Ctr. v. Dep’t of Health & Human Servs.
,
Trade Comm’n v. Grolier, Inc.
,
At issue, then, is whether, for
each
contested document withheld in part or in full, the
declarations establish (1) “‘what deliberative process is involved,”
Senate of P.R. v. U.S. Dep’t of
Justice
,
1. Records of Interviews and Telephone Interview Notes OIG’s declarant describes the first category of documents, “records of interviews and notes of telephone interviews,” as summaries of “information that line-level inspectors believed was relevant to the review that resulted in the” NFRTR report. [10] Pelletier Decl. ¶ 6. Although neither the Vaughn Index nor the declarations provide any information about who was interviewed, the NFRTR Report itself explains that OIG interviewed 58 ATF officials and staff, 10 contractors, 2 board members of the National Firearms Act Trade and Collectors Association, a representative of the National Rifle Association, and a federal firearms licensee. NFRTR Report at 24. The report also provides a table of the specific titles of each person interviewed, along with where the interview was conducted. Id. at 25, (Table 2: Officials Interviewed).
While conceding that some notes “are factual in nature,” OIG’s declarant states that the records nonetheless “shed[] light on the deliberative process at work” because they illustrate “(1) the specific topics that the inspectors chose to focus on in developing their findings, and (2) what *16 information inspectors chose to communicate to their supervisors.” Pelletier Decl. ¶ 6. Accordingly, OIG’s declarant asserts that the notes are deliberative because they “reflect[] the thoughts of the author and internal communications about OIG findings still in development.” Id. OIG is correct for at least two reasons.
First, to the extent information in the documents includes “recommendations” or
“opinions on legal or policy matters,” they are clearly “deliberative” in nature and non-disclosure
is permissible under Exemption 5.
Vaughn v. Rosen
,
Second, even if the documents contain “purely factual material,” that information is still
covered by Exemption 5 because it would reveal the agency’s deliberative process. The
“Records of Interviews” and “Telephone Interview Notes” in this case are factual summaries
“culled by [OIG] from [a] much larger universe of facts presented to it” and therefore “reflect an
‘exercise of judgment as to what issues are most relevant to the pre-decisional findings and
recommendations.’”
Ancient Coin Collectors Guild v. U.S. Dep't of State
,
This principle was plainly set out in Montrose Chemical Corp. of California v. Train , 491 F.2d 63, 68–69 (D.C. Cir. 1974), where the Circuit addressed whether summaries of more than 10,000 pages of public factual information, created by the Environmental Protection Agency in deciding whether to cancel DDT registrations, were properly withheld under Exemption 5. The Circuit considered whether a requester may “use the FOIA to discover what factual information the [agency] aides cited, discarded, compared, evaluated, and analyzed to assist the [agency] in *17 formulating [its] decision,” or if “such discovery [is] an improper probing of the mental processes behind a decision of an agency.” Id . at 68. “[E]ven if [an agency] cited portions of the [public record] verbatim,” the Circuit held that Exception 5 applied because an agency could be “making an evaluation of the relative significance of the facts recited in the record.” Id. Recognizing that “separating the pertinent from the impertinent is a judgmental process, sometimes of the highest order,” the Circuit explained that “no one can make a selection of [facts] without exercising some kind of judgment, unless he is simply making a random selection.” Id.; see also id. at 71 (“The work of the assistants in separating the wheat from the chaff is surely just as much part of the deliberative process as is the later milling by running the grist through the mind of the administrator.”).
For this reason, interview notes and summaries are routinely found to be subject to
Exemption 5.
See, e.g.
,
McKinley v. Bd. of Governors of Fed. Reserve Sys.
,
As the records of interviews and interview notes constitute information “line-level
inspectors believed was relevant” from the interviews they conducted, Pelletier ¶ 6, the
inspectors would have had to “extract[] pertinent material” from a larger universe of facts,
*18
Mapother
,
One final argument proffered by OIG warrants consideration. OIG’s declarant states that disclosure of the interview notes would “chill the open, frank discussion between OIG inspectors and Department employees who are obligated by DOJ regulation and order to cooperate with OIG audits and inspections, . . . .” Pelletier Decl. ¶ 4. Specifically with respect to the “Records of Interviews” and “Telephone Interview Notes,” OIG argues that “[t]he fact that a relatively small number of Department employees were interviewed as part of the inspection at issue here increases the chance that disclosure of the interview notes . . . could lead to the identification of individuals who provided information to the OIG.” Id. In the circumstances of this case, that argument is not persuasive.
To be sure, Exemption 5 protects against disclosure that would “‘discourage candid
discussion within the agency.’”
Access Reports v. U.S. Dep
’
t of Justice
,
Nevertheless, for the two reasons discussed above, the “Records of Interviews” and “Telephone Interview Notes” are protected by Exemption 5 and need not be disclosed. Accordingly, OIG’s motion for summary judgment is granted with respect to the first category of documents.
2. Survey-Related Documents The defendants assert that the documents in the second category of survey-related documents—consisting of “Survey Results,” “Final Survey Data,” “Survey Draft,” “Final Survey Data Analysis,” and “Survey Question Analysis”—are all likewise deliberative. The “Survey Results” and “Final Survey Data” are discussed first, before turning to the “Survey Draft” and then to the “Final Survey Data Analysis” and “Survey Question Analysis.” [11]
a) Survey Results and Final Survey Data Portions of the “Survey Results,” Bates numbers 0205-0214, 0491-0500, and “Final Survey Data,” Bates numbers 0381-0470, Vaughn Index at 15, 32–33, were quoted in the final *20 report and have been produced. Nevertheless, OIG’s declarant asserts that, like the records of interviews and interview notes, disclosing the remainder of the “Survey Results” and “Final Survey Data” “would clearly illustrate the deliberative process the OIG engaged in to determine what information was reliable and relevant to the findings in the final report.” Pelletier Decl. ¶ 7; see also Defs.’ Mem. at 10. OIG is mistaken.
Unlike the “Records of Interviews and “Telephone Interview Notes,” survey data is
quintessentially factual information that reveals little about an agency’s deliberative process.
The raw survey results and data are not summaries by individuals who “cull[ed]”
information “from [a] much larger universe of facts,” and thus do not “reflect an ‘exercise of
judgment.’”
Ancient Coin Collectors Guild v. U.S. Dep't of State
,
Similarly,
Ludlam v. United States Peace Corps.
,
In this case, OIG sent an electronic survey to 609 ATF Industry Operations Investigators (“IOIs”), and 334 responded within the three weeks allotted for responses. NFRTR Report at 26. According to the report, 299 of these 334 responding IOIs “had experience inspecting federal firearms licensees with NFA weapons.” Id. Appendix II of the report reproduced the electronic survey, disclosing all of the questions. Id. at 64-66, (Appendix II: OIG Survey Questions to Industry Operations Investigators). The survey included both multiple choice questions as well as questions that called for narrative responses. Id. at 65. For example, one question asked, “How often is a discrepancy between the NFRTR inventory report and the [federal firearms license] inventory due to an error in the NFRTR?” and provided the following possible answers: “Always,” “Most of the time,” “Sometimes,” “Never,” and “Don’t know.” Id . Additional *22 survey questions, calling for narrative responses, included “What do you do when there is a discrepancy between the NFRTR Inventory report and the [federal firearms license] inventory? Please describe the process and the actions you take.” Id.
OIG released portions of the survey results in the final report, including aggregate data from the multiple choice questions as well as numerous direct quotations from the narrative responses. For example, OIG stated in the report that “46.5 percent (139 of 299) [of the IOIs] reported that they found a discrepancy between the NFRTR inventory report and a licensee’s inventory ‘always’ or ‘most of the time,’” and that “44.4 percent of respondents (133 of 299) said that the discrepancy was due to an error in the NFRTR ‘always’ or ‘most of the time.’” Id. at 8; see also id. at 25-26. Further, throughout the report, OIG quotes directly from individual narrative responses by the IOIs who responded to questions from the survey. See, e.g. , id. at 14– 17, 22, 27–28.
Given that OIG has already produced in the NFRTR Report the survey questions in their
entirety, and the results and data in part, to withhold the remaining survey results and data, OIG
must explain how the withheld information is “different from those released in any relevant
respect.”
Army Times Publ’g Co. v. Dep't of Air Force
,
Further, the “Survey Results” and “Final Survey Data” are anonymized collections of
information from 334 individuals and, thus, disclosure of the results and data could not be used
to identify any particular respondent.
See Wilderness Soc’y v. U.S. Dep’t of Interior
, 344 F.
Supp. 2d 1, 15 (D.D.C. 2004) (noting that “in cases where there is no identifying information
that would link an individual to a document” there is little likelihood that disclosure would injure
an agency’s deliberative process). Even quotes from narrative responses to questions from the
survey cannot be tied to any particular survey respondent. Therefore, public disclosure is
unlikely “in the future to stifle honest and frank communication within the agency.”
Id.
(quoting
Coastal States,
Finally, this Circuit distinguishes between documents that “bear on the formulation or
exercise of agency policy-oriented
judgment
,” and “materials relating to standard or routine
computations or measurements over which the agency has no significant discretion.”
Petroleum
Info. Corp. v. U.S. Dep't of the Interior
,
Thus, with respect to the “Survey Results” and “Final Survey Data,” OIG’s motion for
summary judgment is denied and the plaintiff’s cross-motion is granted, as OIG has not provided
sufficient “justifications for nondisclosure . . . to demonstrate that material withheld is logically within the domain of” Exemption 5.
PHE, Inc. v. U.S. Dep’t of Justice
,
b)
Survey Draft
The “Survey Draft,” Bates numbers 0489–0490,
Vaughn
Index at 33, is described as “a
draft containing deliberative recommendations and opinions,”
id
. Since “[d]raft documents” are
typically considered deliberative,
Coastal States
,
c) Final Survey Data Analysis and Survey Question Analysis The record is sparse in describing what the Vaughn Index refers to as “Survey Question Analysis” and “Final Survey Data Analysis,” Bates numbers 0501–0511 and 0471–0488, respectively, Vaughn Index at 32–35. Specifically, the four documents titled “Survey Question Analysis,” are not referenced by OIG’s declarants or in the government’s briefing, leaving only the Vaughn Index’s vague and conclusory assertions that the documents “contain[] deliberative, pre-decisional information.” Compare Vaughn Index at 33–35 with Pelletier Decl. ¶¶ 5, 7, and Defs.’ Mem. at 2–3, 6, 8, 10–11.
The single document described in the Vaughn Index as “Final Survey Data Analysis” is discussed by OIG’s declarant only together with two other documents, “survey data summaries” and a “draft survey.” Pelletier Decl. ¶ 7. According to OIG’s declarant, these three documents “document the OIG’s process of creating the survey and reviewing survey results” and disclosure would “illustrate the OIG’s process of selecting and analyzing data to formulate the findings published in the final report” as well as “create confusion by providing the public with information that may not have ultimately been the grounds for the OIG’s findings.” Pelletier Decl. ¶ 7; see also Defs.’ Mem. at 10. In other words, OIG provides only one general *26 justification for all three of these documents together, when, by its description, “Final Survey Data Analysis,” appears to be different in nature from “survey data summaries” or a “draft survey.”
“[T]o sustain its burden of showing that records were properly withheld under Exemption
5,” however, “an agency must provide in its declaration and
Vaughn
index precisely tailored
explanations for each withheld record at issue.”
Nat’l Sec. Counselors v. CIA
, 960 F. Supp. 2d at
188. OIG has failed to provide a particularized account of the “Final Survey Data Analysis” and
a specific rationale for its nondisclosure.
See Animal Legal Def. Fund, Inc. v. Dep’t of Air
Force
,
Indeed, with respect to both the four “Survey Question Analysis” documents and the
single “Final Survey Data Analysis” document, OIG has not provided “precisely tailored”
descriptions of “what deliberative process [was] involved” in drafting the documents or “the role
played by the documents . . . in the course of that process.”
Coastal States,
OIG relies on
Reliant Energy Power Generation, Inc. v. Fed. Energy Regulatory Comm’n
(“Reliant Energy”)
,
Lastly, OIG’s argument that releasing the “Final Survey Data Analysis” document would
“create confusion” with the public is without merit.
See
Pelletier Decl. ¶ 7; Defs.’ Mem. at 10.
The “risk of public confusion is a subsidiary rationale for the deliberative process privilege,”
Petroleum Info. Corp. v. U.S. Dep't of Interior
,
Accordingly, given the insufficient information about the nature of the documents, there is a genuine dispute as to the material fact of whether the “Survey Question Analysis” and “Final Survey Data Analysis” documents include deliberative information. Thus, the parties’ cross- motions are denied, without prejudice, with respect to these documents.
* * *
In sum, as to the “Survey Results” and “Final Survey Data,” OIG’s motion is denied and the plaintiff’s cross-motion is granted. OIG is therefore enjoined from withholding these documents on the basis of Exemption 5. With respect to the “Survey Draft,” however, OIG’s motion is granted and the plaintiff’s cross-motion is denied. Finally, the parties’ cross-motions for summary judgment are denied, without prejudice, with regard to the “Survey Question Analysis” and “Final Survey Data Analysis” documents. Should OIG choose to continue to withhold these documents, the agency must renew its motion for summary judgment and *29 supplement both its Vaughn Index and declarations, providing adequate descriptions and precisely tailored justifications for nondisclosure.
3. Remaining Work Papers
Only two documents listed in the Vaughn Index are described as “workpapers”: (1) “Interview Workpaper,” Bates numbers 0201–0204, Vaughn Index at 14; and (2) “Workpaper Index and Assignments Worksheet,” Bates numbers 0140–0142, Vaughn Index at 8. OIG’s declarant clarifies, however, that, in addition to those two documents, the remaining workpapers at issue include (3) an “Email Summary,” Bates numbers 0150–0152, Vaughn Index at 9; and (4) a “Document Summary,” Bates numbers 0306–0309, Vaughn Index at 24-25. See Pelletier Decl. ¶ 8.
The first document, “Interview Workpaper,” “is a spreadsheet analyzing interview responses,” that OIG describes as deliberative because it “provides a clear window into the OIG’s thought process regarding what information should or should not be included in the final report.” Id . The second document, “Workpaper Index and Assignments Worksheet,” is described by OIG’s declarant as “an OIG-generated log of all interviews and other data collected in the OIG’s review of the NFRTR,” and as deliberative because “it sheds light on what information the OIG was weighing and considering in developing its final report.” Id . Finally, the third and fourth documents are “a summary of an email chain which the OIG reviewed in the course of preparing the NFRTR Report,” and “a summary of a document containing information the OIG reviewed in the course of preparing the NFRTR Report,” both of which OIG asserts “shed light on what information the OIG deemed possibly relevant to its findings.” Id . [13]
The “Interview Workpaper” falls under Exemption 5. Even if the document contains
purely factual material derived from interview notes, this document was prepared by “culling”
information “from [a] much larger universe of facts,” namely the interviews, and thus “reflect[s]
an exercise of judgment.”
Ancient Coin Collectors Guild v. U.S. Dep't of State
,
With respect to the “Workpaper Index and Assignments Worksheet,” OIG has not met its
burden of demonstrating that this document is subject to nondisclosure under Exemption 5.
Given that the NFRTR Report already divulges significant information about who was
interviewed, how many interviews were conducted, and where they were conducted, along with
information about how other data was collected, OIG has not explained why the disclosure of the
“log of all interviews and other data collected” must be withheld in full. As there is a high
likelihood that some of the information in the “Workpaper Index and Assignments Worksheet”
has already been disclosed in the NFRTR Report, and thus is “completely harmless,” this
“suggests that other information in the [document] also might be released without threatening
[OIG’s] deliberative process.”
Army Times Publ’g Co. v. Dep't of Air Force
,
At a minimum, OIG has failed to explain how the information in the “Workpaper Index and Assignments Worksheet” differs so significantly from the publicly released information as to implicate adversely the interests to be protected by Exemption 5.
Moreover, while OIG’s declarant attests that OIG conducted a “line-by-line review” and
“has released all reasonably segregable non-exempt information to Plaintiff,” Waller Decl. ¶ 13,
this attestation is undermined by the withholding of the entire document, despite the publicly
available information.
See Gatore v. U.S. Dep’t of Homeland Sec.
,
Relatedly, OIG has also not met its burden of showing that the “Email Summary” and “Document Summary” are subject to Exemption 5 or that no additional segregable information exists that may be disclosed from these documents. Although these documents are only partially withheld, see Vaughn Index at 9, 24; see also Pl.’s Cross-Mot., Ex. 1 at 4–7, ECF No. 24-1 (redacted productions of the “Email Summary” and “Document Summary”), they are highly redacted, disclosing only limited information from the documents quoted in the NFRTR Report, compare Pl.’s Cross-Mot., Ex. 1 at 4–7 with NFRTR Report at 22–23, 46. The “Email Summary” appears to be a summary of an e-mail chain originating with a person identified in the NFRTR Report as having the title of “Examiner.” NFRTR Report at 38–39. The OIG declarants provide no information about whether this email qualifies as a supplemental response to a survey *32 question or about whether, contrary to his identification in the NFRTR Report, the author was nonetheless somehow involved in the deliberative process for the final report. Likewise, no information is provided about any remaining emails in the chain, including the nature of the information, who authored the emails or to whom they were sent, let alone their role in the deliberative process.
Similarly, no information is provided about the author of the “Document Summary” or the nature of the information it contains. While the NFRTR Report, at 46, attributes to a “Deputy Chief, Field Management Staff, Field Operations” a quoted statement that appears to be contained in the “Document Summary,” no other information is provided for the Court to be able to assess whether the author of the “Document Summary” was involved in some way in the deliberative process, whether the information summarized was provided by the “Deputy Chief, Field Management Staff, Field Operations” to supplement interview or survey responses, or whether this document contains other segregable, factual information.
The presumption that OIG complied with its segregation obligation is overcome by the
fact that OIG’s justification for withholding the documents, even in part, “falls far short of the
specificity required to justify non-segregation.”
McGehee v. U.S. Dep’t of Justice,
800 F. Supp.
2d 220, 238 (D.D.C. 2011) (citing
Johnson v. Exec. Office for U.S. Attorneys,
Accordingly, with regard to the “Workpaper Index and Assignments Worksheet,” the
“Email Summary” and the “Document Summary,” the parties’ cross-motions are denied, without
prejudice. Should OIG continue withholding these documents, it is directed to submit a revised
Vaughn
Index or supporting declaration that “reassesses the issue of segregability” and “provides
an adequate description of each [document] to support the defendant[s’] assertion that no”
portion, or no other portion, “may be released.”
Gatore v. United States Dep't of Homeland Sec.
,
IV. CONCLUSION
With respect to the three categories of documents, the parties’ cross-motions for summary judgment are resolved as follows: (1) the defendants’ motion for summary judgment is granted with respect to the “Records of Interviews,” the “Telephone Interview Notes,” the “Survey Draft,” and the “Interview Workpaper,” which documents are listed in the Vaughn Index, at 1–5, 9–31, 33, with Bates numbers 001–0020, 0021–0050, 0113–0139, 0143–0149, 0153–0200, 0201–0204, 0215–0217, 0218–0305, 0310–0380, and 0489–0490; (2) the defendants’ motion is denied, and the plaintiff’s cross-motion is granted, with respect to “Survey Results” and “Final Survey Data,” which documents are listed in the Vaughn Index, at 32–33, with Bates numbers 0381–0470 and 0491–0500; and (3) the parties’ cross-motions are denied, without prejudice, with respect to the “Survey Question Analysis,” “Final Survey Data Analysis, “Workpaper Index and Assignments Worksheet,” the “Email Summary” and “Document Summary,” which documents are listed in the Vaughn Index, at 8, 9–10, 24–25, 33–35, with Bates numbers 0140–0142, 0150–0152, 0306–0309, 0471–0488, and 0501–0511. For this last category of responsive records, OIG may either (a) supplement its Vaughn Index and declarations in accordance with this opinion, or (b) supply the plaintiff with the withheld documents.
Accordingly, OIG shall file jointly with the plaintiff, by April 21, 2017, a proposed schedule to govern further proceedings to conclude this matter.
An appropriate Order accompanies this Memorandum Opinion.
Date: March 22, 2017
__________________________ BERYL A. HOWELL Chief Judge
Notes
[1] The plaintiff “agrees that Summary Judgment is appropriate as to” ATF since that agency “finally complied with Plaintiff’s FOIA request.” Pl.’s Opp’n at 1. Accordingly, judgment will be entered in favor of ATF.
[2] Deborah Waller is the Government Information Specialist and the Freedom of Information Act Officer for OIG. Waller Decl. ¶ 1.
[3] Nina Pelletier is the Assistant Inspector General for the DOJ, OIG, Evaluation and Inspections Division, which conducts reviews of DOJ components and makes recommendations for their improvement. Pelletier Decl. ¶¶ 1–2.
[4] “A
Vaughn
index describes the documents withheld or redacted and the FOIA exemptions invoked, and
explains why each exemption applies.”
Prison Legal News v. Samuels,
[5] The plaintiff does not dispute that OIG performed a reasonable search, nor does he claim that Exemptions 3 and 6 were improperly used to protect the names and identities of certain individuals. Pl.’s Opp’n at 7. Moreover, although the plaintiff argues defendants “waived” Exemption 6 insofar as it relates to the National Firearm Act Trade Collectors Association, the defendants correctly note that Exemption 6 has not been invoked with respect to any documents referencing the NFATCA. See Defs.’ Reply Supp. Mot. Summ. J. (“Defs.’ Reply”), at 11–12, ECF No. 27. Thus, the only issue in dispute is whether OIG justifiably withheld documents pursuant to Exemption 5.
[6] As defendants note, the plaintiff also appears to marshal an argument that if there is a “public interest” in
“verifying that agency watchdogs are doing their job,” that is somehow an exception to Exemption 5.
See
Pl.’s
Mem. at 13–14;
see
Defs.’ Reply at 8. No such exception exists in the law.
See, e.g.
,
Winterstein v. U.S. Dep’t of
Justice
,
[7] The defendants assert that the documents at issue are all “predecisional,”
see, e.g.
, Defs.’ Mem. at 8;
Vaughn
Index at 1–35, and the plaintiff nowhere disputes this assertion. Consequently, the Court deems the
plaintiff’s silence to be a concession that the predecisional requirement of the deliberative process privilege is
satisfied for the challenged documents.
See, e.g.
,
Abdus-Sabur v. Hope Vill., Inc.
, No. CV 16-156 (RBW), 2016 WL
7408833, at *9 (D.D.C. Dec. 22, 2016) (citing
Hopkins v. Women’s Div., Gen. Bd. of Global Ministries
, 284 F.
Supp. 2d 15, 25 (D.D.C. 2003),
aff’d,
98 Fed. App’x. 8 (D.C. Cir. 2004) (“It is well understood in this Circuit that
when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the
defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”));
see also Saunders v.
Mills
,
[8] As a threshold matter, the defendants’
Vaughn
index is inadequate as it “completely lacks any detail
regarding any particular record and does nothing more than generally state that Exemption 5 is satisfied.”
Cuban v.
SEC
,
[10] The responsive documents listed in the Vaughn Index are not numbered, but identified only with Bates numbers. The “Records of Interviews” are designated with the following Bates numbers: 001-0020, 0113-0139, 0143-0149, 0153-0200, 0218-0305, and 0310-0380. Vaughn Index at 1–3, 5–8, 9–14, 16–24, 25–31. The “Telephone Interview Notes” are labeled as Bates numbers 0021-0112 and 0215-0217. Id. at 3–4, 15.
[11] OIG’s declarant and briefing reference “survey data summaries,” Pelletier Decl. ¶¶ 5, 7; Defs.’ Mem. at 2, 3, 8, 10, 11, but no documents are so described in the Vaughn Index. Given this gap between the declarant’s statement and the Vaughn Index, the information intended to be covered by any discussion of “survey data summaries” in the declarant’s statement is unclear.
[12] OIG relies on
Reliant Energy Power Generation, Inc. v. Fed. Energy Regulatory Comm’n
(“
Reliant
Energy
”),
[13] To bolster the withholding of these contested work papers, the defendants point out that OIG audits are subject to “peer review” by other Inspectors General, a process that “ensures OIGs conduct their work according to applicable standards and respects the sensitivity of deliberative material.” Defs.’ Reply at 9 n.2. While peer review may enhance the reliability and integrity of OIG audits, this is no substitute for the transparency provided by the