Savada v. United States Department of Defense
Savada v. United States Department of Defense
Opinion of the Court
MEMORANDUM OPINION
The plaintiff in this case, Alan Jay Sava-da, was employed as a cartographer by the Defense Mapping Agency, a component of the Department of Defense, from April 1979 until April 1987. This position required that the plaintiff have a very high
Plaintiff subsequently sought to investigate the basis for the denial of his SCI clearance. In October of 1987, plaintiff made a formal demand on DIS and DIA, requesting access to his records under the Freedom of Information Act, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. Both agencies provided him with the vast majority, but not all, of the records plaintiff requested.
The parties agreed in this case to proceed by the filing of an index of documents pursuant to Vaughn v. Rosen, 484 F.2d 820, 828 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), and to then have the court decide the case after each party filed summary judgment motions. Each parties’ motion for summary judgment has been fully briefed, and the agencies have filed declarations in support of the withholding of documents which are claimed to be exempt from release.
DIS has provided a Vaughn index that identifies each relevant document by a document number, and this index is cross-referenced to an affidavit by Dale Hartig, a DIS official, (the “Hartig Declaration”) in which Hartig explains his reasons for withholding the documents. According to plaintiff, there are fourteen documents listed in the Vaughn index supplied by DIS which are still in contention: 42, 49, 76-81, 89, 95-97, and 99-100. See Plaintiffs Cross-Statement of Material Facts As To Which There is No Genuine Issue at 4. However, DIS Document 76 was partially released, and, after plaintiffs motion was filed, DIS released parts of Documents 42 and 49. See Defendants’ Opposition to Plaintiffs Cross-Motion for Summary Judgment at 2. That leaves a total of eleven documents which are still withheld in their entirety by DIS.
Despite these submissions on behalf of the defendants, we are unable on the basis of this record to determine the validity of defendants’ claimed exemptions. Fortunately, we apparently are only concerned with twenty-eight documents which remain in contention.
As to these documents, the Court requires a supplementation of the materials already supplied. The court is required to conduct a de novo review of an agency’s action in FOIA and Privacy Act cases. 5 U.S.C. § 552(a)(4)(B) (FOIA); 5 U.S.C. § 552a(g)(3)(A) (Privacy Act). The declarations submitted in this case lack supporting details which would allow the Court to properly review the government’s claimed exemptions. See Senate of Puerto Rico v. United States Dept. of Justice, 823 F.2d 574, 585 (D.C.Cir. 1987); Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854, 861 (D.C.Cir. 1980).
For example, Lt. Col. Meyer asserts in his declaration that most of the documents were withheld because they were prepared in contemplation of “pending litigation.” Yet the declaration contains no discussion of pending or reasonably anticipated litigation which would exempt the documents from release under the work-product doctrine. Also, the contents of the documents must be more thoroughly described so that the court can ensure that the documents are indeed work-product. Cf. Nishnic v. U.S. Dept. of Justice, 671 F.Supp. 776, 784 (D.D.C. 1987) (level of detail in Vaughn index sufficient for court to uphold disclosure under work-product). The declarations which describe documents allegedly exempt under the deliberative process privilege are similarly lacking in supporting details, and the court therefore can not rule on the propriety of the claimed exemptions for these documents. We therefore order the government to submit additional materials justifying the claimed exemptions for the withheld documents in this case.
An order consistent with the foregoing has been entered this day.
ORDER
Upon consideration of each party’s motion for summary judgment, the oppositions thereto, and the entire record herein, and for the reasons stated in an accompanying Memorandum Opinion entered this day, it is by the Court this 14th day of November, 1990,
ORDERED that both parties’ motions for summary judgment are denied without prejudice; and it is
ORDERED that defendants are to submit the following additional information to the court to justify their withholding of the remaining documents in this case:
1. If a document is withheld under a claim of work-product privilege, defendants are to state the nature of the litigation that was pending or list concrete facts which would support the reasonableness of a belief that litigation was likely when the document was prepared. Defendants must also describe the content of the document in sufficient detail so the court can ensure the document is work-product material.
2. If a document is withheld under the deliberative-process privilege, defendants must supply a brief summary of the content of the document, and an explanation of the role the document played in the deliberative process. Defendants must also disclose any facts which may appear in a document*243 claimed to be exempt under this privilege, unless disclosing the facts would reveal the deliberative process. Factual material may also be withheld if it can not be reasonably segregated from the exempt materials. Defendants must further show that a document withheld under the deliberative process privilege is not covered by the Privacy Act. And it is
FURTHER ORDERED that defendants shall submit this information to the court within thirty days of this Order.
. Plaintiff resigned from the Defense Mapping Agency on April 9, 1987. Previously, on March 6, 1987, plaintiff made a written request for a statement of reasons for defendants' denial of plaintiff’s access to SCI materials. Defendants did not prepare such a document prior to plaintiffs resignation and now claim that further steps in the adjudication of plaintiffs clearance were terminated by his resignation.
. At this time, most of the documents identified by DIS and DIA as responsive to plaintiffs request have been released. Out of 100 documents that DIS identified in answer to plaintiffs request, only eleven documents at this time are being completely withheld by DIS, and three documents are being partially withheld. DIA identified 120 documents in response to plaintiff’s request, and is now withholding seventeen documents. DIA is also withholding portions of five other documents.
. Although there was some dispute over whether plaintiff had initiated an appeal from DIA's decision denying plaintiffs access to his records within the mandatory time period, DIA considered the appeal, and its reasons for denial are submitted with the Defendants' Opposition to Plaintiff’s Cross-Motion for Summary Judgment.
. Plaintiff also names as defendants one individual at each agency who the plaintiff claims had the final authority for the decision made regarding his documents.
Reference
- Full Case Name
- Alan Jay SAVADA v. UNITED STATES DEPARTMENT OF DEFENSE
- Cited By
- 1 case
- Status
- Published