UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHESAPEAKE BAY FOUNDATION, INC.,

Plaintiff, v. Civil Action No. 09-1054 (JDB) U.S. ARMY CORPS OF ENGINEERS,

Defendant.

MEMORANDUM OPINION

Plaintiff Chesapeake Bay Foundation, Inc. ("CBF") brings this action against the United

States Army Corps of Engineers pursuant to the Freedom of Information Act ("FOIA"),

et seq., seeking records pertaining to permits for development on two islands in the

Magothy River, a tributary of the Chesapeake River. Now before the Court are the parties' cross-

motions for summary judgment. At issue is whether the Corps properly withheld certain records

from disclosure pursuant to FOIA exemptions 5 and 7.

BACKGROUND

In April 2007, CBF submitted a FOIA request to the Corps of Engineers seeking records

"pertaining to permit requests and supporting documentation for the development of Little Island

and Dobbins Island on the Magothy River in Maryland." Compl. ¶ 1. Specifically, CBF sought

any and all permit requests, permit approval[s] and denials and all supporting documents pertaining to applications submitted by the following for development and revetment of Dobbins Island and Little Island in the Magothy River: Mr. Daryl Wagner, Dutchship LLC, Mr. David Clickner, Mrs. Diana Clickner.

Compl. ¶ 13.

A year after CBF submitted its request, the Corps "produced 126 pages of records, but withheld 497 pages of records claiming that the records were exempt from disclosure under

FOIA Exemptions 5 and 7(a)." Compl. ¶ 16. The Corps also determined that none of the

withheld documents contained segregable, non-exempt information. See Def.'s Mem. in Supp. of

Mot. for Summ. J. ("Def.'s Mem.") [Docket Entry 14], at 14. CBF administratively appealed the

Corps's response, "contesting that all of the withheld records were exempt from the FOIA," and

"request[ing] that the [Corps of Engineers] produce a Vaughn index describing who the withheld

documents were generated by, who it was provided to, the date of the document, a description of

the document . . . , and a brief summary of the contents of the document." Compl. ¶ 18

(quotation omitted). The Corps never responded to this appeal, and CBF brought this action.

Notwithstanding its dilatoriness, the Corps of Engineers has moved for summary

judgment with respect to the propriety of the claimed exemptions and the efficacy of its

segregability determination. CBF challenges the Corps's motion for summary judgment,

concluding that the Court should grant summary judgment in its favor.

STANDARD OF REVIEW

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate

"if the pleadings . . . and any affidavits show that there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material

facts are those that "might affect the outcome of the suit under the governing law." Anderson v.

Liberty Lobby, Inc.,

(1986). The movant bears the initial burden of

demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,

(1986). The party opposing a motion for summary judgment, however, "may not rely

merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or

-2- as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial." Fed.

R. Civ. P. 56(e)(2). The nonmoving party must do more than simply "show that there is some

metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp.,

(1986). Any factual assertions in the movant's affidavits will be

accepted as true unless the opposing party submits its own affidavits or other documentary

evidence contradicting the assertion. Neal v. Kelly,

(D.C. Cir. 1992).

FOIA requires federal agencies to release all records responsive to a proper request except

those protected from disclosure by one or more of nine enumerated exemptions set forth at

(b). A district court is authorized "to enjoin [a federal] agency from withholding

agency records or to order the production of any agency records improperly withheld from the

complainant."

(a)(4)(B); see also Kissinger v. Reporters Comm. for Freedom of

the Press,

(1980). The agency has the burden of proving that "each document

that falls within the class requested either has been produced, is unidentifiable, or is wholly

exempt from the Act's inspection requirements." Goland v. Cent. Intelligence Agency,

(D.C. Cir. 1978) (internal citation and quotation omitted); accord Maydak v. Dep't of

Justice,

(D.C. Cir. 2000). The district court may award summary judgment to

an agency solely on the basis of information provided in affidavits or declarations that describe

"the documents and the justifications for nondisclosure with reasonably specific detail,

demonstrate that the information withheld logically falls within the claimed exemption, and are

not controverted by either contrary evidence in the record nor by evidence of agency bad faith."

Military Audit Project v. Casey,

(D.C. Cir. 1981); accord Vaughn v. Rosen,

(D.C. Cir. 1973).

-3- ANALYSIS

According to the Corps of Engineers, the 497 pages of undisclosed records at issue here

relate to "pending Corps of Engineers enforcement investigations and permit actions involving

. . . Little Island [and] Dobbins Island." Def.'s Mem., Statement of Undisputed Material Facts, ¶

10. Hence, the Corps contends that the information contained in these documents is properly

withheld pursuant to FOIA exemption 7 to ensure that disclosure does not "interfere with the

Corps of Engineer's [sic] attempts to enforce the Clean Water Act." Def.'s Mem. at 6.

Exemption 7 applies to "records or information compiled for law enforcement purposes, but only

to the extent that the production of such records or information" would "reasonably be expected

to interfere with enforcement proceedings."

(b)(7)(A). Here, the Corps asserts

that disclosure would dissuade people "from cooperating with the agency" during enforcement

actions because "[i]ndividuals may be deterred from providing information to the Corps." Def.'s

Mem. at 6; Def.'s Mem., Declaration of Sandra Zelen ("First Zelen Decl."), ¶ 4.

The Corps also seeks to withhold documents pursuant to FOIA exemption 5 to ensure

"honest and frank communication within the agency." Def.'s Mem. at 13. Exemption 5 applies

to "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."

(b)(5). "'Courts have

construed this exemption to encompass the protections traditionally afforded certain documents

pursuant to evidentiary privileges in the civil discovery context, including materials which would

be protected under the attorney-client privilege, the attorney work-product privilege, or the

executive deliberative process privilege.'" Rockwell Int'l Corp. v. Dep't of Justice,

(D.C. Cir. 2001) (quoting Formaldehyde Inst. v. Dep't of Health and Human Servs., 889 F.2d

-4- 1118, 1121 (D.C. Cir. 1989)). Here, the Corps withholds records pursuant to the deliberative

process privilege. See Def.'s Mem. at 7. In the FOIA context, the deliberative process privilege

applies to inter- or intra-agency documents that are both predecisional and deliberative. See

Baker & Hostettler LLP v. Dep't of Commerce,

(D.C. Cir. 2006).

The agency bears the burden of justifying any withholding. See

(a)(4)(B);

see also Coastal States Gas Corp. v. Dep't of Energy,

(D.C. Cir. 1980) ("[T]he

burden is on [the agency] to establish [its] right to withhold information from the public.").

"[W]hen an agency seeks to withhold information, it must provide a relatively detailed

justification, specifically identifying the reasons why a particular exemption is relevant and

correlating those claims with the particular part of a withheld document to which they apply."

Morley v. Cent. Intelligence Agency,

(D.C. Cir. 2007). This justification --

taking the form of a Vaughn index, sufficiently detailed affidavits or declarations, or both --

"must explain specifically which of the nine statutory exemptions to FOIA's general rule of

disclosure supports the agency's decision to withhold a requested document or to delete

information from a released document." Founding Church of Scientology, Inc. v. Bell,

(D.C. Cir. 1979); see also Vaughn,

. Therefore a "'[c]ategorical

description of redacted material coupled with categorical indication of anticipated consequences

of disclosure is clearly inadequate.'" Morley, 508 F.3d at1122 (quoting King v. Dep't of Justice,

(D.C. Cir. 1987)).

A.

To fulfill FOIA's mandate to provide detailed support for its withholdings, the Corps has

submitted declarations from Carl Lorenz, legal advisor to the Secretary of the Army, and Sandra

-5- Zelen, Enforcement Program Manager for the United States Army Engineer District, Baltimore.

See Def.'s Mem., Declaration of Carl Lorenz ("Lorenz Decl."), ¶ 1; First Zelen Decl. at ¶ 1; Def.'s

Reply in Supp. of Mot. for Summ. J. ("Def.'s Reply") [Docket Entry 19], Decl. of Sandra Zelen

("Second Zelen Decl."), ¶ 1. Yet despite the fact that the Corps has withheld nearly 500 pages of

records, the three declarations contain but a few cursory paragraphs addressing the applicability

of the exemptions to the disputed documents. In support of the Corps's withholding of

documents pursuant to exemption 5, Lorenz asserts only that "[r]ecords relating to deliberative

process within the Corps or between the Corps and the Maryland Department of Environment

were flagged." Lorenz Decl. at ¶ 6. And to support the claims under exemption 7, Lorenz states

only that "[b]ecause the Corps had an enforcement pending for potential permit non-compliance

on Little Island [and Dobbins Island], certain records relating to those investigations were

flagged for potential withholding under exemption 7."

Zelen's declarations are similarly categorical. She contends that "[r]elease of the

requested documents in these files would interfere with these investigations and jeopardize the

unresolved enforcement actions." First Zelen Decl. at ¶ 10. She further assures the Court that

"[b]ased upon my 20 years of enforcement experience, individuals have been deterred from

providing information to the Corps when their identity and information provided was released to

the public."

Although in her second declaration Zelen sorts the withheld records into various

groups -- comprising, for example, "letters from concerned citizens" and "copies of photographs

obtained during the course of the enforcement action" -- she simply repeats the same vague and

conclusory justifications for withholding the documents. See, e.g., Second Zelen Decl. at ¶ 5B

("Disclosure of these documents would reveal the position of the Corps and [the Maryland

-6- Department of the Environment] during the ongoing negotiations and potentially impede the

enforcement action.");

at 5C ("Release of the opinions of individual enforcement agents to the

public would discourage the free exchange of opinion during the decision-making process.");

at ¶ 5E ("Allowing information to be released during an investigation therefore would betray

public trust and impede prospective enforcement actions, including this one.").

Declarations that contain "merely a 'categorical description of redacted materials coupled

with categorical indication of anticipated consequences of disclosure [are] clearly inadequate.'"

PHE, Inc. v. Dep't of Justice,

(D.C. Cir. 1993) (quoting King,

). Such is the case here: at their most descriptive, the Corps's declarations are nothing more

than "vague, broad [, and] wholesale claims of exempt status." Elec Privacy Info. Ctr. v. Dep't of

Justice,

(D.D.C. 2007). But the Corps of Engineers may not explain itself

by "generalities." Judicial Watch, Inc. v. Food & Drug Admin.,

(D.C. Cir.

2006). Instead, it must marry a specific exemption with a particular part of the withheld

document. See PHE, Inc.,

. Because of this failure, the Court cannot assess the

propriety of the Corps's withholdings on the basis of the Lorenz and Zelen declarations.

B.

Perhaps recognizing the inadequacy of its declarations, the Corps included a Vaughn

index with its opposition to plaintiff's cross-motion for summary judgment. The index provides

some information regarding the withheld records -- such as dates and brief descriptions of a

record's subject -- but it does not describe how the asserted exemptions apply to the withheld

documents. See Morley,

. Nor does it "subdivide the document[s] under

consideration into manageable parts cross-referenced to the relevant portion of the government's

-7- justification." Vaughn,

. In short, the index does not, as it must, "specifically

identify[] the reasons why a particular exemption is relevant and correlat[e] those claims with the

particular part of a withheld document to which they apply." Mead Data Cent., Inc. v. Dep't of

the Air Force,

(D.C. Cir. 1977). To be sure, the Corps need not offer

"repetitive, detailed explanations for each piece of withheld information." Judicial Watch, Inc. v.

Food & Drug Admin.,

. But it must provide enough information "to enable the

court and the opposing party to understand the withheld information in order to address the

merits of the claimed exemptions."

.

Connecting the Corps's declarations to the Vaughn index does not cure these deficiencies.

Declarations and a Vaughn index may work in tandem, with "the court validating the index

because it 'tied each individual document to one or more exemptions, and the [agency's]

declaration linked the substance of each exemption to the documents' common elements.'"

Morley,

(quoting Judicial Watch, Inc. v. Food & Drug Admin.,

). But this is possible only where the declarations are specific enough to permit the court to

tie an exemption's justification to particular information that was withheld. The Corps's

declarations fail in this regard, and therefore even when considered together with the Vaughn

index, they cannot sustain the Corps's withholdings.

The Corps's exemption 5 claims readily illustrate this failure. The Corps maintains that it

has withheld numerous records pursuant to exemption 5 because they relate to "the deliberative

process within the Corps of Engineers or between the Corps and the Maryland Department of

Environment." Def.'s Mem. at 7. But to support its claim under exemption 5, the Corps states

only that "[r]ecords relating to the deliberative process within the Corps or between the Corps

-8- and the Maryland Department of Environment were flagged for potential withholding under

exemption 5." Lorenz Decl. ¶ 6. This statement provides no basis for concluding that the

withheld information is either predecisional or deliberative, as required for this exemption. See

Baker & Hostettler LLP,

.

Alternatively, the Corps suggests that the Court may determine that withholding was

appropriate under exemption 5 merely because the Corps discussed the information either

internally or with its consultant, the Maryland Department of Environment. See Def.'s Mem. at

12. Not so. The deliberative process privilege does not generally shield purely factual

information from disclosure. See Judicial Watch, Inc. v. Dep't of Justice,

(D.C. Cir. 2004). Nor does it shield information that the agency fails to place within a particular

decisionmaking context. See Judicial Watch, Inc. v. U.S. Postal Serv.,

, 265-

66 (D.D.C. 2004). By not offering anything beyond the most conclusory statements, the Corps

has not carried its burden of demonstrating that exemption 5 applies.

Many of the Corps's exemption 7 claims are similarly deficient. For example, the Corps

seeks to withhold numerous documents comprising investigation materials that are now "in the

hands of the actual targets of the investigation and their agents." Pl.'s Reply in Supp. of its Cross

Motion for Summ. J. ("Pl.'s Reply") [Docket Entry 21], at 4. The Corps withholds these

documents on the grounds that "[r]elease of the documents in these files would interfere with

these investigations and jeopardize the unresolved enforcement actions. . . . Based upon my 20

years of enforcement experience, individuals have been deterred from providing information to

the Corps when their identity and information provided was released to the public." First Zelen

Decl. at ¶ 10. But despite the promise of Ms. Zelen's experience, the Corps does not explain how

-9- its investigation will be impaired by the release of information that the targets of the investigation

already possess. See Campbell v. Dep't of Health and Human Servs.,

(D.C.

Cir. 1982) (agency faces high burden to justify withholding investigation records requested by

third party when target of investigation already possesses them). This blithe attempt to fulfill its

FOIA obligations typifies the Corps' approach to many of the exemption 7 claims.

C.

The Corps's summary judgment submissions demonstrate a reflexive attitude of non-

disclosure. Such an approach is anathema to the President's directive that "[a]ll agencies should

adopt a presumption in favor of disclosure, in order to renew their commitment to the principles

embodied in FOIA."

, at 4683 (Jan. 26, 2009). And it fails to abide with

consistent precedent requiring detailed explanations of why each claimed exemptions is relevant

to, and correlated with, the withheld records. See Morley,

. Accordingly, the

Court will not grant summary judgment in the Corps of Engineer's favor.

Nevertheless, the Court can imagine that the asserted justifications may be valid as to at

least some of the withheld records. Accordingly, the Court will not grant summary judgment in

CBF's favor at this time. Rather, if the Corps wishes to maintain its exemption claims, it must

supplement its Vaughn index and declarations, adequately describing the records withheld and

specifically detailing how the claimed exemptions apply to the withheld information. The Corps

must pay particular attention to ensure that the asserted justification actually supports the claimed

exemption. Without these additional submissions, the Court -- and CBF -- will continue to labor

under an "'asymmetrical distribution[] of knowledge' where the agency alone possesses, reviews,

discloses, and withholds the subject matter of the request." Judicial Watch, Inc. v. Food & Drug

-10- Admin.,

. And the Corps will be unable to meet its burden "to establish [its] right

to withhold information from the public." Coastal States,

.

D.

To the extent that the Corps continues to withhold information, it must also ensure that it

produces all non-exempt and reasonably segregable information from the withheld records. See

Stolt-Nielson Transp. Group Ltd. v. United States,

(D.C. Cir. 2008)

("[T]he focus of FOIA is information, not documents, and an agency cannot justify withholding

an entire document simply by showing that it contains some exempt material."); Oglesby v. Dep't

of the Army,

(D.C. Cir. 1996). Although the Corps asserts that "[a] review

of Defendant's declarations and attached exhibits reveals that Defendant carefully reviewed the

information and confirms that all reasonably segregable, non-exempt material has been released,"

Def.'s Mem. at 14, it provides no evidence to support this assertion.1 The Corps, then, asks the

Court to take on faith that it has fulfilled this obligation. The Court declines to do so. The Corps

must supply the Court with the necessary tools to perform a review of segregability -- this

includes not only a detailed justification of the reasons for withholding information, but also a

description of the document from which the information was redacted. See Mead Data Cent.,

Inc.,

; see also Stolt-Nielson Transp. Group Ltd.,

.

CONCLUSION

For the foregoing reasons, the parties' cross motions for summary judgment are denied

without prejudice. Because the Corps's Vaughn submissions are inadequate, it must supplement

1 Instead, to support this statement, the Corps references only the first three paragraphs of the Lorenz declaration, which simply discuss Lorenz's position with the Army and his initial review of the records at issue here. There is no mention of segregability.

-11- these submissions. A separate order will be issued on this date.

/s/ JOHN D. BATES United States District Judge

Dated: December 30, 2009

-12-