United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge.
DocuFreedom filed this lawsuit after defendant United States
Department of Justice (“DOJ”) failed to respond
to its Freedom of Information Act (“FOIA”)
requests within the statutory time limit. Doc. 9 (Am.
Compl.). In total, DocuFreedom requested that DOJ produce 119
items from the DOJ Library and a series of emails from
defendant Karen McFadden, who coordinated DOJ's response
to DocuFreedom's FOIA requests. DOJ since has produced
112 items in full and Ms. McFadden's emails in part. And
now, only a handful of items remain in dispute: 17 DOJ
Library items and certain redactions to Ms. McFadden's
moved for summary judgment, arguing its withholdings are
proper under several FOIA exemptions. Doc. 19. DocuFreedom
challenges some, but not all, of DOJ's withholdings. Doc.
22. And DOJ has filed a Reply. Doc. 23.
of the delicate balance FOIA aims to achieve, the court
reaches some conclusions but must defer others. First, the
court grants summary judgment in DOJ's favor for certain
items under the work product privilege contained in FOIA
Exemption 5. But, the court denies summary judgment without
prejudice on this record for the remaining items-the court
directs DOJ to submit these items for in camera review and
provide supplemental briefing. Second, the court grants
summary judgment in DOJ's favor for the redactions to Ms.
McFadden's emails, sustaining the deliberative process
privilege invoked by DOJ and contained in FOIA Exemption 5.
After discussing the facts governing this motion, the court
explains its reasoning.
Summary Judgment Facts
Justice Management Division (“JMD”) is a division
of the United States Department of Justice. And within JMD is
the Library Staff. The JMD Library Staff manages DOJ's
Main Library and six other DOJ libraries
(“JMD-controlled libraries”). JMD-controlled
libraries maintain collections and other legal and general
resources that DOJ employees use for their research needs.
Library Staff also maintains the DOJ Libraries Online Catalog
(“Catalog”). The Catalog lists materials, but the
list is not limited to materials in the possession of the
JMD-controlled libraries or otherwise held by JMD. For
example, the Catalog includes materials held by libraries
managed by other DOJ components. So, many materials in the
Catalog only are accessible to employees of those other
the course of 11 months, DocuFreedom made several FOIA
requests to JMD. On February 7, 2017, JMD received a FOIA
request from DocuFreedom. DocuFreedom requested a copy of the
21, 2017, DocuFreedom requested the Catalog again, but in
spreadsheet form. DocuFreedom also requested 37 items listed
in the Catalog.
November 9, 2017, JMD received more FOIA requests from
DocuFreedom. Namely, DocuFreedom asked JMD to produce 63 more
items identified in the Catalog.
December 17, 2017, JMD received another series of FOIA
requests from DocuFreedom. DocuFreedom requested emails to
and from JMD employee Karen McFadden about DocuFreedom's
FOIA requests. And, on January 3, 2018, DocuFreedom requested
19 more items listed in the Catalog.
acknowledged DocuFreedom's January 3, 2018, FOIA request
in a timely fashion. But DocuFreedom failed to acknowledge
the requests made on July 21 and November 9, 2017.
16, 2018, JMD began sending DocuFreedom materials in response
to its FOIA requests. JMD sent DocuFreedom a searchable PDF
of the Catalog (current as of May 19, 2017) and an Excel
spreadsheet version of the Catalog (current as of January 11,
2018). Also, when possible, JMD's responses directed
DocuFreedom to all publicly available material responsive to
the FOIA requests.
produced some materials responsive to DocuFreedom's FOIA
requests, but it withheld others based on exemptions or other
statutory grounds. JMD tracked its response for each
requested item on a production table. JMD gave DocuFreedom a
copy of the production table, which outlined the production
status for all 119 items requested from the Catalog.
produced all of Karen McFadden's responsive emails about
DocuFreedom's FOIA requests. But JMD redacted portions of
these emails based on FOIA Exemptions (b)(5) and (b)(6). JMD
also withheld Items 2-13, 37, 39, 49-50, and 90. JMD asserted
that it was withholding these items under Exemption (b)(5) of
FOIA. And JMD withheld Item 10 under Exemption (b)(6). Last,
JMD did not produce Items 19, 56, 86-87, and 97 because they
were not in JMD's possession.
December 13, 2017, DocuFreedom filed a Complaint in our
court. Doc. 1. The Complaint asserts that defendants-by
failing to respond to DocuFreedom's FOIA requests from
July 21 and November 9, 2017-had violated FOIA, the
Administrative Procedures Act (“APA”), and the
Open Government Act of 2007. In March 2018, DocuFreedom filed
an Amended Complaint (Doc. 9). It incorporates
DocuFreedom's January 3, 2017, Catalog requests and its
request for Ms. McFadden's emails.
then moved to stay the case for 45 days. Doc. 10. The court
granted the stay to allow defendants either to produce the
requested materials or to identify applicable exemptions.
Doc. 11. The court continued the stay as the parties worked
to resolve the FOIA requests. Doc. 13. Ultimately, DOJ
produced 102 of the 119 items in full and Ms. McFadden's
emails with redactions. DOJ then moved for summary judgment
(Doc. 19), asserting the remaining items and the redactions
to Ms. McFadden's emails properly were withheld under
several FOIA exemptions.
was enacted “to pierce the veil of administrative
secrecy and to open agency action to the light of public
scrutiny.” Dep't of Air Force v. Rose, 425
U.S. 352, 361 (1976). “FOIA provides the public
‘a right of access, enforceable in court, to federal
agency records, subject to nine specific
exemptions.'” Hull v. I.R.S., 656 F.3d
1174, 1177 (10th Cir. 2011) (quoting Anderson v.
Dep't of Health & Human Servs., 907 F.2d 936,
941 (10th Cir. 1990)); Trentadue v. Integrity Comm.,
501 F.3d 1215, 1225-26 (10th Cir. 2007)
(“Notwithstanding FOIA's aspiration of governmental
transparency, Congress recognized that disclosure of certain
classes of documents could harm legitimate government
interests.”). Of the nine exemptions to FOIA, two
matter in this case:
(5) inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency
in litigation with the agency;
(6) personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of personal privacy[.]
5 U.S.C. § 552(b).
principles guide the court's analysis in FOIA cases.
First, the court must broadly construe FOIA in favor of
disclosure. Integrity Comm., 501 F.3d at 1226
(citation omitted). Second, the court must apply FOIA's
exemptions narrowly. Id. (citation omitted). Third,
FOIA directs government agencies to provide “[a]ny
reasonably, segregable portion of a record . . . to any
person requesting such record after deletion of the portions
which are exempt.” Id. (quoting 5 U.S.C.
cases typically and appropriately are decided on motions for
summary judgment.” Stein v. U.S. Dep't of
Justice, 134 F.Supp.3d 457, 468 (D.D.C. 2015) (quoting
Citizens for Responsibility & Ethics in Wash. v. U.S.
Dep't of Justice, 602 F.Supp.2d 121, 123 (D.D.C.
2009)). The district court reviews de novo the
government's decision to withhold documents under any of
FOIA's statutory exemptions. Id. (citation
omitted). And, the government bears the burden to prove that
the requested information falls within one of FOIA's nine
exemptions. Hull, 656 F.3d at 1177 (citing 5 U.S.C.
§ 552(a)(4)(B)); Shapiro v. U.S. Dep't of
Justice, 969 F.Supp.2d 18, 26 (D.D.C. 2013) (“Once
[a FOIA] action is filed, the agency generally has the burden
of demonstrating that its response to the plaintiff's
FOIA request was appropriate.”) (citation omitted).
a government agency submits affidavits to satisfy its burden
of proof. Hull, 656 F.3d at 1177. Specifically,
[A]ffidavits must show, with reasonable specificity, why the
documents fall within the exemption. The affidavits will not
suffice if the agency's claims are conclusory, merely
reciting statutory standards, or if they are too vague or
sweeping. If the affidavits provide specific information
sufficient to place the documents within the exemption
category, if the information is not contradicted in the
record, and if there is no evidence in the record of agency
bad faith, then summary judgment is appropriate without
in camera review of the documents.
Id. at 1177-78 (quoting Quiñon v.
FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996)).
“Ultimately, an agency's justification for invoking
a FOIA exemption is sufficient if it appears
‘logical' or ‘plausible.'”
Stein, 134 F.Supp.3d at 468-69 (quoting ACLU v.
U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir.
2011)). If the government's affidavits or declarations
leave more to be desired, the court-in its discretion-may
order the agency to produce a Vaughn
index or to submit the requested information for
in camera review. Hull, 656 F.3d at 1178
(citing Quiñon, 86 F.3d at 1227) (further
citation omitted); see also N.Y. Times Co. v. U.S.
Dep't of Justice, 758 F.3d 436, 438 (2d Cir. 2014)
(“The Vaughn index procedure was developed to
avoid the cumbersome alternative of routinely having a
district court examine numerous multi-page documents in
camera to make exemption rulings.”),
supplemented, 762 F.3d 233 (2d Cir. 2014). In this
case, DOJ has attached both declarations and a
Vaughn index to its Memorandum in Support of Motion
for Summary Judgment. Docs. 20-1 (Feldt Decl.), 20-2 (Allen
Decl.), 20-3 (Vaughn Index).
Amended Complaint makes three claims. DocuFreedom asserts
that DOJ violated FOIA by failing to respond within the
statutory timeframe (Count I); that DOJ acted arbitrarily and
capriciously in denying its requests under the APA (Count
II); and that DOJ violated the Open Government Act of 2007 by
failing to acknowledge receipt of DocuFreedom's FOIA
requests (Count III). Doc. 9 at 20-21 (Am. Compl.
¶¶ 56-68). ...