UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
GEORGE LARDNER, )
)
Plaintiff, )
)
v. ) 03-cv-0874 (RCL)
)
FEDERAL BUREAU OF INVESTIGATION, )
et al., )
)
Defendants. )
)
MEMORANDUM OPINION
I. INTRODUCTION
This Freedom of Information Act (“FOIA”), 5 U.S.C. §§ 552 et seq., case comes before
the court on cross-motions for summary judgment. Plaintiff George Lardner (“Lardner”) filed
this action against defendants, Federal Bureau of Investigation (“FBI”), United States
Department of Justice, Drug Enforcement Agency (“DEA”), and five other John Doe federal
agencies. The defendants filed a motion [50] for summary judgment, and the plaintiff filed a
motion [51] for partial summary judgment, motion [58] to compel the release of records, and
supplemental cross-motion [80] for summary judgment. Upon consideration of the filings, the
entire record herein and the relevant law, the Court will GRANT–IN–PART the defendants’
motion for summary judgment, finding in favor of the defendants with respect to the
reasonableness of the FBI's search for responsive records and DENY-IN-PART WITHOUT
PREJUDICE as it pertains to the merits of the defendants’ withholdings; and (2) GRANT–IN–
PART plaintiff's motion for partial summary judgment with respect to the request ordering the
defendants to reprocess all responsive records and DENY-IN-PART WITHOUT PREJUDICE as
it pertains to the merits of the defendants’ withholdings. The Court additionally DENIES the
plaintiff’s motion to compel as moot.1
II. BACKGROUND
A. Plaintiff’s FOIA Requests
Lardner is a Pulitzer Prize winning journalist and author. Pl.’s Supp. Mot. at 1. By
letters dated September 14, 1993 and January 21, 2003, Lardner filed FOIA requests, seeking
access to an array of records pertaining to Aniello Dellacroce (“Dellacroce”), the Underboss of
the Gambino Crime Family who died in 1985; Sam Giancana (“Giancana”), the deceased
underboss of the Chicago Crime Family; and all records concerning the FBI’s Top Hoodlum
Program. Vaughn Index, Hardy Second Supp. Decl. (“Hardy Decl. 2”) at 9-10. A detailed
description of the handlings of Lardner’s requests is set forth below.
1. FOIA Request Concerning Aniello Dellacroce
By letter dated January 21, 2003, addressed to FBIHQ, Lardner made a FOIA request for
all records at FBIHQ and all FBI field offices concerning Dellacroce. Hardy Decl. 2 at 9. In
2
addition, Lardner requested a search of all the electronic surveillance (ELSUR) indices,
including confidential source and informant files. Id. By letter dated February 3, 2003, FBIHQ
acknowledged receipt of Lardner’s FOIA request and assigned it FOIPA Request Number
972696. Defs.’ Mot. Summ. J., Hardy Supp. Decl. (“Hardy Supp. Decl.”) at 13. By letter dated
October 20, 2005, FBIHQ released records concerning Dellacroce to Lardner. Id. at 14. By letter
1
The Court denies as moot the plaintiff’s motion to compel the release of records transferred to the
National Archives and Records Administration. The FBI agreed to process 600 pages per month
beginning in July 2009, and the plaintiff filed this motion to compel release at a faster rate. The FBI
made its final release of material to the plaintiff on August 31, 2009, and therefore, this motion to compel
is now moot.
2
ELSUR (electronic surveillance) Indices are used to maintain information on subjects whose electronic
and/or voice communications have been intercepted as the result of a warrantless and/or consensual
ELSUR or a court-ordered ELSUR conducted by the FBI. Hardy Decl. 2 at 19.
2
dated December 21, 2005, FBIHQ made a further release of records concerning Dellacroce to
plaintiff. In this letter, the FBI advised Lardner that some documents concerning Dellacroce that
originated with other agencies were referred to those agencies for direct response to him. Id. at
15.
2. FOIA Request Concerning the Top Hoodlum Program Prior to 1960
By letter dated September 14, 1993, addressed to FBIHQ, Lardner made a FOIA request
for all records dated prior to 1960 concerning Sam Giancana and the FBI’s Top Hoodlum
Program. Id. at 15. By letter dated September 24, 1996, FBIHQ advised Lardner that this
request was assigned FOIPA Request Number 380541. Id. at 16. By letter dated June 11, 2001,
FBIHQ released 2,531 pages of documents to Lardner concerning this request. Id. at 18.
3. FOIA Request Concerning the Top Hoodlum Program from 1960 Forward
By letter dated January 21, 2003, addressed to FBIHQ, Lardner made a FOIA request for
all records at FBIHQ, including ELSUR records, concerning the Top Hoodlum Program from
1960 forward and any successor or related program or files. By letter dated February 3, 2003,
FBIHQ acknowledged receipt of Lardner’s FOIA request and assigned it FOIPA Request
Number 972694. Over the following three years, the FBI released tens of thousands of
documents to Lardner concerning this request and the request for records prior to 1960.
B. Procedural History
On April 11, 2003, Lardner filed this complaint, requesting the release of all records of
the FBI, DEA, and five other John Doe federal agencies pertaining to his FOIA requests. On
February 23, 2004, the parties filed a joint report with the Court and a signed stipulation in which
the FBI agreed to process approximately 34,000 pages of investigative records concerning the
Top Hoodlum Program prior to and after 1960. The FBI also agreed to provide the Court and
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Lardner with a Status Report regarding any documents referred to other agencies and agreed to
attempt to track down documents designated as missing.3 Additionally, the FBI agreed to search
the ELSUR indices in the 19 field offices.
Plaintiff selected 150 sample documents from the thousands of processed records so that
the FBI could create a Vaughn index. The FBI examined the 307 pages and filed its motion for
summary judgment on November 24, 2008. The plaintiff filed a motion for partial summary
judgment on November 26, 2008, raising arguments as to the adequacy of the search and request
for reprocessing of all responsive documents.
The FBI filed a Vaughn index on August 27, 2010. The plaintiff subsequently filed a
supplemental cross-motion for summary judgment on December 14, 2010. Accordingly, the
parties' cross-motions for summary judgment are now ripe for review.
III. ANALYSIS
A. Legal Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be
granted when “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is
properly granted against a party who “after adequate time for discovery and upon motion . . .
fails to make a showing sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial .” Celotex Corp. v. Catrett,
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In effectuating Lardner’s FOIA requests, the FBI identified responsive records that originated from the
DEA and IRS. The FBI subsequently referred these documents to the corresponding agencies for
processing. The DEA and IRS submitted independent declarations explaining their withholdings of
information under FOIA.
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477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must draw all
justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence
as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the
mere existence of a scintilla of evidence” in support of its position. Id. at 252.
FOIA cases are typically and appropriately decided on motions for summary judgment.
See, e.g., Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir.1993); Rushford v. Civiletti, 485 F. Supp.
477, 481 n.13 (D.D.C. 1980). In a FOIA case, a court may award summary judgment to an
agency upon the agency's showing that it conducted a search “reasonably calculated to uncover
all relevant documents.” Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C.
Cir.1983). The adequacy of a search is measured by a standard of reasonableness, which must
be decided on a case by case basis. Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990).
The question is whether the search itself was adequate notwithstanding the fact that other
responsive documents may exist. Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551
(D.C. Cir. 1994). An agency is not required to search every record system, but must conduct a
good faith, reasonable search of those record systems likely to possess the requested information.
Oglesby v. United States Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
B. Adequacy of the FBI’s Search
FOIA requires agencies of the federal government to release records to the public upon
request, unless one of nine statutory exemptions applies. See NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 136 (1975); 5 U.S.C. § 552(b). To prevail in a FOIA case, the plaintiff must show
that an agency has (1) improperly (2) withheld (3) agency records. United States Dep't of Justice
v. Tax Analysts, 492 U.S. 136, 142 (1989).
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The adequacy of a search is measured by a standard of reasonableness and depends on
the individual circumstances of each case. Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir.
1990). The question is not whether other responsive documents may exist, but whether the
search itself was adequate. Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994).
Before it can obtain summary judgment in a FOIA case, “an agency must show, viewing the
facts in the light most favorable to the requester, that . . . [it] has conducted a search reasonably
calculated to uncover all relevant documents.” Id. There is no requirement that an agency must
search every record system, but the agency must conduct a good faith, reasonable search of those
systems of records likely to possess the requested information. Oglesby v. Dep't of Army, 920
F.2d 57, 68 (D.C. Cir. 1990). Once an agency has provided adequate affidavits, the burden shifts
back to the plaintiff to demonstrate a lack of a good faith search. Short v. U.S. Army Corps of
Engineers, 593 F. Supp. 2d 69, 73 (D.D.C. 2009) (citing Maynard v. CIA, 986 F.2d 547, 560 (1st
Cir. 1993).
1. Sam Giancana Records
Lardner challenges the sufficiency of the FBI’s search regarding Sam Giancana records
stating that, “while there are references to Giancana scattered throughout the records that have
been provided, there appears to be no body of records on Giancana comprising a file or files, as
such, and the existing volume appears to be far below what would be expected.” Pl.’s Supp.
Mot. at 5. Additionally, Lardner asserts that the National Archives advised him that 21 file
boxes of material on Sam Giancana are located in their Kennedy Assassination Records
Collection. Id. at 6. Therefore, Lardner asserts that the FBI’s search is inadequate with regards
to Sam Giancana. Id.
6
In response, the FBI filed three detailed declarations of David M. Hardy, describing the
document search for Giancana. Mr. Hardy is the Section Chief of the Record/Information
Dissemination Section, Records Management Division of the FBI. Hardy Decl. 2 at 1. His
duties include supervising 277 employees whose collective mission is to effectively plan, direct,
and manage responses to requests for access to FBI records and information pursuant to the
FOIA. Id. at 1-2. Mr. Hardy indicates in his declaration that the FBI searched two databases of
the Central Records System (“CRS”)4 for any records pertaining to Giancana. Id. at 21.
Specifically, the FBI searched both the Automated Data Base (“ADB”) and the Inactive Indices
of the CRS.5 Id. According to Mr. Hardy’s third supplemental declaration, following this
search of the main records at the headquarters, the FBI released 38 pages of information (in full
or part) to Lardner in 1998 concerning Giancana.
“The question is not whether any other documents possibly responsive to the request
exist, but rather whether the search for those documents was adequate.” Steinberg, 23 F.3d at
551 (citation and internal quotation marks omitted). It is the plaintiff's burden in challenging the
adequacy of an agency's search to present evidence rebutting the agency's initial showing of a
good faith search. See Maynard v. Central Intelligence Agency, 986 F .2d 547, 560 (2d Cir.
1993); Weisberg, 705 F.2d at 1351–52. Lardner suggests, without support, that additional
responsive records must exist. Mere speculation as to the existence of records not located as a
result of the agency’s search does not undermine the adequacy of the search. See Weisberg, 745
F.2d at 1485 (focus of Court's inquiry is on reasonableness of search, not whether undisclosed
4
The CRS records consist of administrative, applicant, criminal, personnel, and other files compiled for law
enforcement purposes. Hardy Decl. 2 at 16.
5
The ADB contains all records dated after January 1, 1958 for national security, applicant and administrative
matters, and after January 1, 1973 for criminal investigative matters. The Inactive Indices contains all records dated
prior to 1958 for national security, applicant and administrative matters and all records dated prior to 1973 for
criminal investigative matters. Hardy Decl. 2 at 21 n.20.
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records may exist). Additionally, Lardner’s affidavit that the National Archives has a
voluminous collection of records on Giancana does not create a justifiable inference that the FBI
possesses the same records and is withholding them. Lardner does not specify which offices
these records originated from or their respective dates. However, Lardner’s initial FOIA request
specifically sought pre-1960 records and was addressed to the FBIHQ office. Therefore, without
additional information regarding the records contained in the 21 boxes, Lardner fails to present
sufficient evidence that these records would indeed contain responsive documents to his request.
Thus, the Court cannot find the defendants’ search inadequate as it pertains to records on
Giancana.
2. Aniello Dellacroce Records
Lardner challenges the sufficiency of the defendants’ search for Aniello Dellacrose
records because the FBI did not provide him with records from Dellacroce’s informant file. Pl.’s
Supp. Mot. at 6. In support of this assertion, Lardner argues that, in a previous case, the FBI
admitted it does not search confidential indices without third-party privacy waivers. Pl.’s Reply
to Defs.’ Opp’n to Pl.’s Supp. Mot. (“Pl.’s Reply”) at 6. Therefore, Lardner argues that a
separate index exists, and the FBI failed to conduct a search of it. Id. Lardner additionally
argues that the FBI failed to conduct any search for Dellacrose records in its field offices. Id. at
7. Finally, Lardner argues that the FBI’s search is inadequate because he did not receive actual
photographs, but instead he received copies of Dellacrose. Pl.’s Supp. Mot. at 9.
In response, Mr. Hardy’s affidavit states that, “the FBI searched the indices to the CRS at
FBIHQ for mains and cross-references on Aniello Dellacroce . . . . Any confidential [indices]
files would be located through a search of the FBI’s automated CRS.” Defs.’ Reply to Pl.’s
Opp’n to Defs.’ Mot. for Summ. J., Hardy Third Supp. Decl. (“Hardy Decl. 3”) at 5. The
8
defendants additionally argue that Lardner did not submit separate requests to any of the FBI’s
field offices for records Dellacroce as required by 28 C.F.R. Section 16.3(a). In response to
Lardner’s request for the original photographs of Dellacroce, the defendants cite Lardner’s
original request, which states, “[t]his is a request . . . for access to and copies of the following
records.” Pl.’s Reply, Ex. C. The defendants argue that because Lardner requested copies of the
records, the FBI adequately complied with his request.
As an initial matter, the Court fails to see how Lardner’s argument concerning whether or
not he received copies or originals of photographs qualifies as a challenge to the sufficiency of
the search. Additionally, Lardner’s evidence regarding the existence of a separate confidential
index is insufficient to rebut the agency’s showing of a good faith search. Dellacroce died in
1985, and therefore, the FBI would not need to obtain his consent prior to searching through the
applicable records as it did in Lardner’s aforementioned case. Thus, Lardner fails to provide the
Court with any convincing evidence that rebuts the defendants’ assertion that all confidential
files were searched through the CRS search.
In addressing Lardner’s argument that the FBI failed to search each individual field office
for records on Dellacroce, the Court notes that an agency subject to the FOIA is required to
disclose records in response to a FOIA request only if certain conditions are met. One of those
conditions is that the requester must submit a FOIA request “in accordance with published rules
stating the time, place, fees (if any) and procedures to be followed.” 5 U.S.C. § 552(a)(3). The
FBI has published regulations specifying the procedures to be followed in submitting a FOIA
request, which require in the instant case, that Lardner submit a separate request to each FBI
field office that he seeks records from. See 28 C.F.R. § 16.3(a). Lardner does not dispute the
fact that he addressed his Dellacroce FOIA request to the FBI’s Washington D.C. Headquarters.
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Pl.’s Reply, Ex. D. Thus, Lardner did not comply with the applicable FBI FOIA regulations and
thus did not effectively initiate a FOIA request, let alone exhaust his administrative remedies as
he is required to do. “The failure to comply with an agency's FOIA regulations [in submitting a
request] is the equivalent of a failure to exhaust.” West v. Jackson, 448 F. Supp. 2d 207, 211
(D.D.C. 2006); see also Flowers v. IRS, 307 F. Supp. 2d 60, 67 (D.D.C. 2004) (stating that “
‘failure to file a perfected request therefore constitutes failure to exhaust administrative remedies'
”) (quoting Dale v. IRS, 238 F. Supp. 2d 99, 103 (D.D.C. 2002)).
3. ELSUR Material
Lardner next challenges the sufficiency of the search by arguing that the pre-1960
ELSUR indices search, which turned up no records, was inadequate because he believes these
records must exist. Id. at 10. In support of this assertion, Lardner points to eighty JUNE MAIL6
serials from 1968 that were generated by searching for Giancana records. Pl.’s Reply at 11.
This, Lardner argues, indicates that far more responsive records exist than were provided to him.
Id.
Hardy’s declaration states that the FBI conducted an automated ELSUR search for
records dated after 1960, as well as a manual search of the 3x5 ELSUR index cards containing
records prior to 1960. Hardy Decl. 3 at 5. This manual search included seven boxes of cards for
over 500 search terms/subjects as requested by Lardner’s April 15, 2004 faxed list. Hardy
asserts that this search was the most likely method to uncover any documents responsive to
Lardner’s requests. Id. at 6.
6
JUNE MAIL refers to certain documents concerning microphone or telephone surveillance which are
filed separately from the main file and maintained in the Special File Room, which is a secure storage
facility within FBIHQ to which access is restricted. Defs.’ Mot. for Summ. J., Hardy Supp. Decl. at 23
n.21.
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Lardner’s assertion that the existence of responsive ELSUR records from 1968 indicates
that pre-1960’s responsive records must exist as well is simply insufficient to withstand
summary judgment. As previously stated, mere speculation as to the existence of records not
located as a result of the agency’s search does not undermine the adequacy of the search. See
Weisberg, 745 F.2d at 1485.
4. Missing Files
Lastly, Lardner argues that the files deemed “missing” are unsatisfactory. Pl.’s Reply at
11. He asserts that the FBI has not provided sufficient details regarding the process used to
locate missing files, and further, why this process failed to locate all responsive records. Id.
Hardy’s declaration states that some Top Hoodlums files were placed on “special locate”
and continue to be missing. Hardy Decl. 3 at 6. He further states missing files are either “In
File” but unable to locate, or “Charged Out” to another employee but unable to locate. Id. at 7.
In this type of situation, the employee responsible for the search will look for the file on the shelf
or in any of the expected areas and follow up with the last employee to check out the file;
however, in this situation, these efforts did not locate every document deemed missing. Id.
Although missing files are understandably frustrating to Lardner, the adequacy of a FOIA
search is generally determined not by the fruits of the search, but by the appropriateness of the
methods used to carry out the search. Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir.
1994). After all, particular documents may have been accidentally lost or destroyed, or a
reasonable and thorough search may have missed them. Miller, 779 F.2d at 1384-85; see also
Goland v. CIA, 607 F.2d 339, 353 (D.C. Cir. 1978). Lardner’s attorney attempts to salvage this
argument by referencing his own personal experience finding missing books as a librarian’s
assistant in college. This argument is completely inadequate to withstand summary judgment.
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Therefore, the Court does not find that Lardner has demonstrated the lack of a good faith search
for the missing records.
C. Plaintiff’s Request for Reprocessing
In addition to arguing that the defendants failed to adequately search for records, Lardner
requests that the defendants reprocess all responsive documents because in submitting its Vaughn
index, the defendants released additional information on 219 of the 289 documents Vaughned.
Id. Thus, Lardner asserts that a 76% error rate in the Vaughn index mandates a reprocessing of
all additional responsive documents. Id. The defendants argue that the newly released
information was the result of discretionary releases of third party names and information
previously withheld under Exemptions (b)(6) and (b)(7)(C), not pure error. Defs.’ Opp’n to Pl.’s
Supp. Cross-Mot. for Summ. J. at 6. Further, the defendants argue that, in order to achieve
maximum disclosure, it additionally reprocessed all records involving Exemption (b)(1) and
(b)(5) in the sample. Id.
“Because of its unique evidentiary configuration, the typical FOIA case ‘distorts the
traditional adversary nature of our legal system's form of dispute resolution.’ ” Judicial Watch,
Inc. v. FDA, 449 F.3d 141, 145–46 (D.C. Cir. 2006) (quoting King v. DOJ, 830 F.2d 210, 218
(D.C. Cir. 1987)). “When a party submits a FOIA request, it faces an ‘asymmetrical distribution
of knowledge’ where the agency alone possesses, reviews, discloses, and withholds the subject
matter of the request.” Id. (quoting King, 830 F.2d at 218). Accordingly, the FOIA places the
burden on the agency to establish its right to withhold information under one of the enumerated
FOIA Exemptions. Id. An agency may do so through producing a Vaughn index, which is an
affidavit that indexes and specifically describes withheld or redacted documents and explains
why each withheld record, is exempt from disclosure. King, 830 F.2d at 219. The index thus
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helps restore the normal adversarial balance by “forc[ing] the government to analyze carefully
any material withheld,” thereby enabling “the trial court to fulfill its duty of ruling on the
applicability of the exemption” and enabling “the adversary system to operate by giving the
requester as much information as possible, on the basis of which he can present his case to the
trial court.” Keys v. DOJ, 830 F.2d 337, 349 (D.C. Cir. 1987) (internal quotation marks and
citation omitted).
As the D.C. Circuit has made clear, “it is the function, not the form, of the index that is
important.” Id. “Any measure will adequately aid a court if it ‘provide[s] a relatively detailed
justification, specifically identif[ies] the reasons why a particular exemption is relevant and
correlat [es] those claims with the particular part of a withheld document to which they apply.’ ”
Judicial Watch, 449 F.3d at 146. While there is no set form for a Vaughn index, the D.C. Circuit
has noted three important elements for an adequate Vaughn index: (1) the index should be one
document that is complete in itself, (2) the index must adequately describe the withheld
documents or deletions, (3) the index must state the particular FOIA exemption, and explain why
the exemption applies. Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir.
1979).
As is particularly relevant here, “[r]epresentative sampling is an appropriate procedure to
test an agency's FOIA exemption claims when a large number of documents are involved.”
Bonner v. 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.’ ” Id.
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(quoting Fensterwald v. CIA, 443 F. Supp. 667, 669 (D.D.C. 1977)); see also Meeropol v.
Meese, 790 F.2d 942, 958 (D.C. Cir. 1986). However, the D.C. Circuit has cautioned that “the
technique will yield satisfactory results only if . . . the documents in the sample are treated in a
consistent manner.” Bonner, 928 F.2d at 1151.
The defendants’ Vaughn index is, in a word, inadequate. In re-processing the sample
documents for preparation of the Vaughn index, the FBI determined that information previously
withheld out of concern for privacy did not warrant continued exclusion. The FBI provides no
additional justification in any of Hardy’s declarations as to why these documents were suddenly
deemed proper for release. As previously stated, a Vaughn index, if done properly, allows the
parties and court to examine the withholding justifications through a representative sampling.
While the fact that “some documents in a sample become releasable with the passage of time
does not, by itself, indicate any agency lapse,” Bonner, 928 F.2d at 1153, here, the sheer
magnitude of the additional releases indicates that the sample is not an accurate illustration of the
whole.
Additionally, the defendants’ Vaughn index indicates that the FBI withheld a significant
amount of information under Exemption (b)(2). On March 7, 2011, the U.S. Supreme Court
decided the case of Milner v. Dep't of the Navy, 131 S. Ct. 1259 (2011). In Milner, the Court
curtailed the application of FOIA Exemption 2, holding that it is applicable only to records
relating to the issues of employee relations and human resources. Milner, 131 S. Ct. at 1271.
The Supreme Court held that the Department of the Navy, therefore, could not assert Exemption
2 as grounds for withholding sensitive explosive maps and data based on the argument that the
materials presented a risk of circumvention of agency regulation, otherwise known as “High 2.”
Id. Here, the FBI similarly withheld a significant amount of information under “High 2.” In
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light of the Milner decision, a reprocessing of the responsive documents is justified to allow the
FBI to release additional information previously withheld solely under Exemption 2.
Accordingly, the Court shall grant the plaintiff’s motion for partial summary judgment
and shall require the FBI to reprocess the responsive documents and provide the Court and
plaintiff with a single, comprehensive Vaughn index. In addition, in light of the Court's
determination that the defendants must provide a complete Vaughn index before either the Court
or plaintiff can properly evaluate the defendants’ withholdings and its processing of the sample
records, the Court shall deny without prejudice the parties' cross-motions as they pertain to the
merits of the defendants’ withholdings. Finally, the parties are required to meet and confer and
submit a joint status report no later than 20 days from today, suggesting a schedule for the
defendants’ submission of a final Vaughn index and, as appropriate, for the subsequent filing of
dispositive motions with respect to the merits of the defendants’ withholdings.
IV. CONCLUSION
For the reasons set forth above, the Court shall: (1) GRANT–IN–PART the FBI's [50]
motion for summary judgment, finding in favor of the defendants with respect to the
reasonableness of the FBI's search for responsive records and DENY-IN-PART WITHOUT
PREJUDICE as it pertains the merits of the defendants’ withholdings; (2) GRANT–IN–PART
plaintiff's [51] motion for partial summary judgment with respect to the request ordering the
defendants to reprocess all responsive records and DENY-IN-PART WITHOUT PREJUDICE as
it pertains to the merits of the defendants’ withholdings. The defendants are therefore required to
submit a final and complete Vaughn index that accounts for all documents. This index will be
created from a new sample of documents to be identified by the plaintiff after the defendants
complete their reprocessing of all responsive records. Upon submission of the defendants’ final
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Vaughn index, the parties may re-file their cross-motions as to the merits of the defendants’
withholdings, as appropriate. Additionally, although it is unclear to the Court whether the
documents for the original Vaughn index contained withholdings from the DEA and IRS, both
agencies shall also be required to reprocess their respective responsive records as outlined in this
Memorandum Opinion. Accordingly, the parties are required to meet and confer and submit a
joint status report suggesting a schedule for submission of a new Vaughn index no later than 20
days from today. In preparing a schedule, counsel should be keenly aware of both the age of the
requests here as well as the age of this litigation. The time has come to bring this case to a
conclusion. Additionally, the Court DENIES as moot the plaintiff’s motion [58] to compel the
release of records.
A separate Order and Judgment consistent with these findings shall issue this date.
Signed by Royce C. Lamberth, Chief Judge, on April 4, 2012.
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