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Mo. Coalition for the Environment v. U.S. Army Corps of Engineers: ENVIRONMENTAL LAW | FREEDOM OF INFORMATION ACT - Vaughn index not inadequate on face, but error not analyzing segregability; remand

1The Honorable Ralph R. Erickson, United States District Judge for the
District of North Dakota, sitting by designation.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-2218
___________
Missouri Coalition for the Environment *
Foundation, *
*
Appellant, **
Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
United States Army Corps of Engineers, *
*
Appellee. *
___________
Submitted: January 14, 2008
Filed: September 16, 2008
___________
Before COLLOTON and SHEPHERD, Circuit Judges, and ERICKSON,1 District
Judge.
___________
ERICKSON, District Judge.
In this action, the Missouri Coalition for the Environment Foundation (the
Coalition) seeks disclosure of a number of documents from the United States
Army Corps of Engineers (the Corps) pursuant to the Freedom of Information
Act (FOIA), 5 U.S.C. 552. The district court granted summary judgment in
-2-
favor of the Corps on the basis that the deliberative process privilege, 5 U.S.C.
552(b)(5), exempts all 83 documents responsive to the request. The Coalition
appeals from the judgment and we remand for further proceedings.
I.
The Corps conducted a study of flood risk and recurrence on the Mississippi,
Missouri, and Illinois Rivers known as the Upper Mississippi River System Flow
Frequency Study (UMRSFFS). This studys purpose was to identify the 100-
and 500-year flood plains. The UMRSFFS commenced in 1997 and its results
were released in 2004.
In conducting the UMRSFFS, the Corps instituted a task force to oversee
and review the study. The task force was divided into two groups the Technical
Advisory Group (TAG) and the Inter-Agency Advisory Group (IAG). The
TAG was comprised of subject matter experts from each of the seven states
relevant to the study. The IAG similarly included subject matter experts from each
of the seven relevant states but also incorporated experts from other federal
agencies, including the Federal Emergency Management Agency, the Bureau of
Reclamation, the Tennessee Valley Authority, the National Resource Conservation
Service, the United States Geological Survey, and the National Weather Service.
On behalf of the Corps, Dr. David Goldman coordinated the IAG and TAG
consultants. During the course of the study, the TAG and IAG advised the Corps
on the methodology to use for the UMRSFFS and reviewed the Corps preliminary
results. These discussions and other communication took place through meetings,
written memoranda, and informally through e-mails.
2The Coalition previously submitted a similar request in 2003, before the
UMRSFFS was fully completed, and subsequently withdrew the FOIA request in
anticipation of the later release of the information.
-3-
On April 25, 2005, the Coalition submitted a FOIA request to the Corps.2
The FOIA request solicited three broad categories of documents:
1. Each and every document that evidences a communication to or
from a member of the Flow Frequency Study Technical
Advisory Group, regardless of the other party to the
communication, relating to the Flow Frequency Study.
2. All agendas and minutes of meetings of the Flow Frequency
Study Technical Advisory Group.
3. Each and every document that evidences disagreement, dispute
or concern about the assumption adopted in the Flow Frequency
Study that flood flows have been independently and
identically distributed (aka the assumption of stationarity).
The Corps did not provide a written response to the FOIA request; however,
representatives from each party communicated by phone. No documents were
released pursuant to the request. Subsequently, the Coalition filed the instant case
in district court. In its answer to the Coalitions complaint, the Corps asserted the
requested documents were subject to a FOIA exemption.
The Corps moved for summary judgment and attached to its motion
declarations from Corps employees Thomas Minear and Dr. David Goldman and a
Vaughn index identifying 83 documents responsive to the Coalitions FOIA
request. The Vaughn index identified each document with general distinguishing
information such as the date it was generated, the author, the addressees, and
whether the document was a memorandum, e-mail, letter, agenda, or meeting
-4-
notes. A short description was provided for each document (e.g., E-mail
discussing potential methodologies to be used in FFS or Letter discussing the
FFS analysis methods). Finally, each and every document was identified as
privileged under FOIA Exemption 5, the Deliberative Process Privilege. The
Coalition cross-moved for summary judgment, arguing the Corps had failed to
prove that the documents were exempt from disclosure. Summary judgment was
granted in favor of the Corps.
II.
The Freedom of Information Act is intended to provide wide-ranging
public access to government documents. Miller v. U.S. Dept of Agric., 13 F.3d
260, 262 (8th Cir. 1993). The Act, which permits access to official information
long shielded unnecessarily from public view is therefore broadly conceived.
EPA v. Mink, 410 U.S. 73, 80 (1973).
The Act itself provides nine specific statutory exemptions. 5 U.S.C.
552(b). These are to be narrowly construed to ensure that disclosure, rather than
secrecy, remains the primary objective of the Act. Miller v. U.S. Dept of Agric.,
13 F.3d at 262 (citing Dept of the Air Force v. Rose, 425 U.S. 352, 361 (1976)).
The Deliberative Process Privilege, FOIA Exemption 5, exempts 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. 5 U.S.C. 552(b)(5).
The purpose of the exemption is designed to ensure that open, frank discussions
between subordinate and chief will not be made impossible by the agencies having
to operate in a fishbowl. Schwartz v. IRS, 511 F.2d 1303, 1305 (D.C. Cir. 1975)
(quoting S. Rep. 813, 89th Cong., 1st Sess. (1965)). The goal of the privilege is
clear and straightforward: to allow full and frank discussion while preserving the
goal of an open government.
-5-
This Court reviews a district courts grant of summary judgment in a FOIA
case de novo. Missouri, ex rel. Garstang v. U.S. Dept of Interior, 297 F.3d 745,
749 (8th Cir. 2002). Our review is the same as it was for the district court: The
record is evaluated in the light most favorable to the nonmoving party to determine
whether there is no genuine issue of any material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Garstang, 297 F.3d at
749 (citing Miller v. U.S. Dept of Agric., 13 F.3d at 262). In a FOIA case,
summary judgment is available to a defendant agency where the agency proves
that it has fully discharged its obligations under FOIA, after the underlying facts
and the inferences to be drawn from them are construed in the light most favorable
to the FOIA requester. Miller v. U.S. Dept of State, 779 F.2d 1378, 1382 (8th
Cir. 1985) (citing Weisberg v. U.S. Dept of Justice, 705 F.2d 1344, 1350 (D.C.
Cir. 1983).
The Coalition argues that, viewed in the light most favorable to the
Coalition, the Corps Vaughn index is insufficient to show whether the Corps
obligations under FOIA were discharged. As a result, the Coalition posits, some of
the documents should have been released. Alternatively, the Coalition proposes
that even if the Vaughn index is adequate, some of the documents in whole or in
part are not subject to the exemption. The Corps contends that it satisfied its
FOIA obligations with an adequate Vaughn index that properly demonstrated the
documents were subject to the deliberative process privilege.
Vaughn Indices
To help determine whether a governmental agency has discharged its burden
under FOIA, Vaughn indices may be used. Crancer v. Dept of Justice, 999 F.2d
1302, 1305 (8th Cir. 1993). The Vaughn court recognized the problems associated
with FOIA requests for claimed-exempt documentation, including the requesting
partys inability to advocate its position in light of its lack of knowledge and the
courts difficulty reviewing massive documentation. Vaughn v. Rosen, 484 F.2d
-6-
820, 826 (D.C. Cir. 1973). Thus, Vaughn indices serve two purposes: First, to
ensure an effectively helpless partys right to information is not submerged
beneath governmental obfuscation and mischaracterization and second, to permit
the court system effectively and efficiently to evaluate the factual nature of
disputed information. Id.
This Court has held that a proper Vaughn index
provides a specific factual description of each document sought by the
FOIA requester. Specifically, such an index includes a general
description of each documents contents, including information about
the documents creation, such as date, time, and place. For each
document, the exemption claimed by the government is identified, and
an explanation as to why the exemption applies to the document in
question is provided.
Crancer, 999 F.2d at 1306 (internal citations and quotations omitted). Such an
index allows both the district court and the requesting party to evaluate the
decision to withhold records and ensure compliance with FOIA. Barney v. IRS,
618 F.2d 1268, 1272 (8th Cir. 1980). Here, the Vaughn index contained all
necessary identifying information and stated the applicable exemption. Although
the index itself failed to explain why the exemption applied to each document, the
affidavits provided in conjunction with the index indicated that the documents
were deliberative involving give-and-take, critiques, comments, and
recommendations by members of the two groups.
Generally, a more substantial Vaughn index one that provides for each
document requested a specific explanation as to why an exemption applies is
preferable to a bare bones index. Even so, in camera review of the documentation
in this case was not necessary. Barney, 618 F.2d at 1272. In Barney, we held that
in camera inspection should be limited as it is contrary to the traditional judicial
role of deciding issues in an adversarial context upon evidence openly produced in
court. Id. (quoting Cox v. U.S. Dept of Justice, 576 F.2d 1302, 1311 (8th Cir.
-7-
1978)). If the material is fairly described and the reason for nondisclosure is
adequately stated and supported by the law, the agencys position should be upheld
without in camera inspection. Id.
The sworn declarations from Mr. Minear and Dr. Goldman provide adequate
additional information to explain why the documents should be exempt. See
Miller v. U.S. Dept of State, 779 F.2d at 1387 (holding that an agency carries its
burden of proof by providing affidavits to explain why documents are subject to an
exemption). Boilerplate or conclusory affidavits, standing alone, are insufficient to
show that no genuine issue of fact exists as to the applicability of a FOIA
exemption. Miller v. U.S. Dept of Agric., 13 F.3d at 263. Even so, a
governmental agency can properly conclude that open and frank intra-agency
discussion would be chilled by public disclosure of [a document] generated as
part of the agencys deliberative process. Missouri, ex rel. Shorr v. U.S. Army
Corps of Engineers, 147 F.3d 708, 711 (8th Cir. 1998).
The affidavits supplied in this case discuss the UMRSFFS process and the
nature of the communications between parties. Mr. Minears affidavit describes
the basis for the exemption:
These communications are exempt from disclosure under Exemption
5 because they are predecisional and part of the deliberative process.
They involve the give-and-take that is inherent in such a study
process. The documents consist of the TAG members freely
critiquing the work of the Corps and other TAG members as the TAG
worked over the years to advise the Government regarding the best
study process. Release of these documents could deter not only such
group members from speaking freely in the future, but also deter
Government agencies from empanelling such groups of experts. . . .
(Minnear Aff. p. 3). Considering the identifying information supplied in the
Vaughn index and the additional information provided in the affidavits, we cannot
conclude that the Vaughn index was, on its face, inadequate under Crancer. 999
F.2d at 1306.
-8-
Deliberative Process Privilege
Whether the Vaughn index and affidavits were themselves adequate, the
Coalition argues that the Corps failed to prove it had discharged its obligations
under FOIA. The Coalition argues certain categories of documents, such as
meeting agendas and documents discussing UMRSFFS methodology or the goals
of the committees, could not reasonably be exempt under the deliberative process
privilege and should have been disclosed.
The FOIA deliberative process privilege exempts from disclosure interagency
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. 5 U.S.C.
552(b)(5); Shorr, 147 F.3d at 710. The deliberative process exemption permits
nondisclosure if the document is both predecisional and deliberative. Shorr, 147
F.3d at 710 (citing Assembly of Cal. v. U.S. Dept of Commerce, 968 F.2d 916,
920 (9th Cir. 1992)). A predecisional document may be virtually any document
that contains personal opinions and is designed to assist agency decision-makers in
making their decisions. Assembly of Cal., 968 F.2d at 920. A document is
deliberative if its disclosure would expose the decision-making process in such a
way that candid discussion within the agency would be discouraged, undermining
the agencys ability to perform its functions. Id. Documents need not contain only
subjective information to be exempt under the deliberative process privilege. See
Mead Data Cent., Inc. v. U.S. Dept of the Air Force, 566 F.2d 242, 256 (D.C. Cir.
1977). Purely factual material may be exempted if that material would expose the
deliberative process of an agency. Id.
The Coalition raises the unlikelihood that every responsive document is
exempt under the deliberative process privilege. Initially, this argument appears
quite seductive; however, the Coalitions FOIA request is obviously tailored to
ferret out disagreement or contradiction that arose in the process of creating the
UMRSFFS. See Barney v. IRS, 618 F.2d 1268, 1273 (8th Cir. 1980) (finding it
apparent by the very nature of plaintiffs request that documents would be
-9-
exempt). The Coalition asked for three categories of documents: Those evidencing
communication to or from the TAG, those evidencing disagreement or dispute
about certain conclusions, and agendas and meeting minutes of the TAG. No
purely factual, objective categories of documents were requested. That these
documents could reveal the deliberative process of the TAG and IAG can be fairly
concluded from the Vaughn index and its supporting affidavits.
The Coalition also argues that the prior release of some of the documents, in
whole or part, destroys the credibility of the index and affidavits. We are not
persuaded that the fact the UMRSFFS report was ultimately released and that some
of the information in the final report was contained in the requested documentation
affects the deliberative or predecisional nature of the requested documents.
We therefore conclude the Vaughn index is sufficient to establish that some
of the information requested is, in fact, exempted by the deliberative process
privilege. However, because the district court failed to analyze the segregability of
the documents, we cannot conclude at this time that the privilege applied, as the
district court concluded, to all 83 responsive documents in their entirety.
Segregability
In a FOIA action, the focus is on the information sought, not the documents
themselves. Schiller v. N.L.R.B., 964 F.2d 1205, 1209 (D.C. Cir. 1992) (citing
Mead Data Cent., Inc., 566 F.2d at 260). Any reasonably segregable portion of a
record shall be provided to any person requesting such record after deletion of the
portions which are exempt under this subsection. 5 U.S.C. 552(b). The
withholding of an entire document by an agency is not justifiable simply because
some of the material therein is subject to an exemption. Rugiero v. U.S. Dept of
Justice, 257 F.3d 534, 553 (6th Cir. 2001). Rather, non-exempt portions of
documents must be disclosed unless they are inextricably intertwined with
exempt portions. Mead Data Cent., Inc., 566 F.2d at 260. Effectively, each
document consists of discrete units of information, all of which must fall within
-10-
a statutory exemption in order for the entire document to be withheld. Billington
v. U.S. Dept of Justice, 233 F.3d 581, 586 (D.C. Cir. 2000).
In every case, the district court must make an express finding on the issue of
segregability. Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007); Rugiero, 257
F.3d at 553; Church of Scientology of Cal. v. U.S. Dept of the Army, 611 F.2d
738, 744 (9th Cir. 1979). But cf. Becker v. IRS, 34 F.3d 398, 406 (7th Cir. 1994)
(suggesting that segregability may be presumed considered if the district court
reviews the documents in camera). The agency has the burden to show that the
exempt portions of the documents are not segregable from the non-exempt
material. Davin v. U.S. Dept of Justice, 60 F.3d 1043, 1052 (3d Cir. 1995). If the
agencys justification is inadequate, the district court may require an agency to
submit a more specific affidavit. See PHE, Inc. v. U.S. Dept of Justice, 983 F.2d
248, 253 (D.C. Cir. 1993). The agencys justification must be relatively detailed,
correlating specific parts of the requested documents with the basis for the
applicable exemption. Schiller, 964 F.2d at 1209-10 (citing Schwartz v. IRS, 511
F.2d 1303, 1306 (D.C. Cir. 1975) and King v. U.S. Dept of Justice, 830 F.2d 210,
224 (D.C. Cir. 1987)). The requisite specificity of an affidavit and the
reasonableness of segregation are dependent upon the proportion and distribution
of non-exempt information in a given document:
For example, if only ten percent of the material is non-exempt and it is
interspersed line-by-line throughout the document, an agency claim
that it is not reasonably segregable because the cost of line-by-line
analysis would be high and the result would be an essentially
meaningless set of words and phrases might be accepted. On the other
extreme, if a large proportion of the information in a document is
non-exempt, and it is distributed in logically related groupings, the
courts should require a high standard of proof for an agency claim that
the burden of separation justifies nondisclosure or that disclosure of
the non-exempt material would indirectly reveal the exempt
information.
3We offer no opinion whether the index and affidavits are sufficient to complete
the segregability analysis contemplated by this opinion. On remand, the district court
is free to conduct the analysis as it deems appropriate, be that on the record as it exists,
by requesting a more detailed index or affidavit, or, as a last resort, by conducting an
in camera review.
-11-
Mead Data Cent., Inc., 566 F.2d at 261. Such detailed explanation and justification
should enable a district court to conduct its review in open court, preserving the
adversarial nature of the process and avoiding undesirable, in camera line-by-line
analyses. Id. at 261.
Here, the district court made no findings on the issue of segregability.
Although the issue was properly raised and preserved for appeal, we are unable to
determine from the record whether the issue was considered and rejected or not
considered at all.3 Therefore, we must remand the case for a segregability analysis
consistent with this opinion.
III.
We remand for further proceedings.
______________________________
 

 
 
 

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