IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DICKSTEIN SHAPIRO LLP,

Plaintiff,

v. Civil Action No. 1:08CV226 (STAMP) DEPARTMENT OF DEFENSE and DEPARTMENT OF THE NAVY,

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING AS FRAMED PLAINTIFF’S CROSS-MOTION FOR IN CAMERA REVIEW

I. Background

The plaintiff, Dickstein Shapiro LLP, filed this civil action

against the Department of Defense and Department of the Navy

(collectively the “Department of Defense”), alleging that the

defendants improperly withheld agency records in response to a

Freedom of Information Act (“FOIA”) request.1 The defendants

thereafter filed a motion for summary judgment, in which they argue

that the Department of Defense discharged its statutory obligations

under FOIA by conducting reasonably adequate searches and by

withholding only information protected from disclosure by FOIA

exemptions.

The plaintiff filed a response in opposition arguing that

summary judgment should be denied because genuine issues of

material fact remain in dispute, specifically, the defendants’

refusal to disclose documents pursuant to the plaintiff’s FOIA

1 The undersigned judge is presiding over this case by assignment. request. In support of this motion, the plaintiff claims that the

defendants’ declarations and Vaughn indices2 fail to provide the

detail necessary for the plaintiff or this Court to conduct a

thorough review of the defendants’ alleged exemptions. The

plaintiff also filed a cross-motion for in camera review,

requesting that should this Court believe that further review is

necessary to evaluate the claimed exemptions, it conduct an in

camera review of those documents.

The defendants filed a reply, as well as a response opposing

the plaintiff’s cross-motion for in camera review. The plaintiff

thereafter filed a timely reply to its cross-motion.

Finding that it would be beneficial, this Court scheduled a

telephonic status and scheduling conference to discuss the motions

currently pending before it. On December 17, 2009, this Court held

a status and scheduling conference in this matter. After hearing

from the parties, this Court determined that a revised Vaughn index

that refines and articulates in more detail the reasons why the

documents should be exempt would be helpful to this Court.

Accordingly, the defendants were directed to file a revised

Vaughn index on or before February 1, 2010. Furthermore, following

receipt of the revised Vaughn index and an opportunity to review

such index, the parties were ordered to file a joint status report

2 To meet its burden of proving the applicability of FOIA exemptions, the agency refusing disclosure must produce a detailed index (“Vaughn index”) of documents withheld sufficient to enable a review of the claimed exemptions. See Vaughn v. Rosen,

(D.C. Cir. 1973).

2 to this Court apprising this Court of whether further briefing was

desired in this matter, and if so, how it should proceed. This

status report was also to discuss the matter and the methodology of

supplying a sampling of documents for an in camera review, should

this Court choose to conduct one in the future.

Thereafter, the following documents were filed: (1)

defendants’ response to order of the court; (2) defendants’ second

response to order of the court; (3) defendants’ third response to

order of the court; (4) parties’ joint status report; (5)

plaintiff’s supplement to joint status report; (6) defendants’

supplemental brief in support of their motion for summary judgment

and opposition to plaintiff’s cross-motion for in camera review;

and supplement to plaintiff’s opposition to defendants’ motion for

summary judgment and cross-motion for in camera review. For the

reasons set forth below, this Court grants as framed the

plaintiff’s cross-motion for in camera review.

II. Discussion

A. In Camera Review, In General

“The basic purpose of FOIA is to ensure an informed citizenry,

vital to the functioning of a democratic society, needed to check

against corruption and to hold the governors accountable to the

governed.” NLRB v. Robbins Tire & Rubber Co.,

(1978). The government agency has the burden of establishing the

adequacy of its search for the requested documents. Carney v.

United States Dep’t of Justice,

(2d Cir. 1994).

3 The FOIA also places the burden of justifying nondisclosure on the

government agency.

(a)(4)(B). Thus, the government

agency has the burden to demonstrate that any document withheld

falls within a stated exemption. See

(a)(4)(B) (“the

burden is on the agency to sustain its action [of withholding a

record under a stated exemption]”). Moreover, the FOIA exemption

must be narrowly construed in favor of disclosure. Wickwire Gavin,

P.C. v. U.S. Postal Serv.,

(4th Cir. 2004).

Accordingly, FOIA requires that “any reasonable segregable portion

of the record shall be provided . . . after deletion of the

portions which are exempt . . . .”

(b).

Subsection 552(b) delineates nine exemptions to the disclosure

requirement. The government agency’s burden of proving that an

exemption applies may be met through affidavits which must be

relatively detailed, nonconclusory and submitted in good faith.

See Simmons v. United States Dep’t of Justice,

(4th Cir. 1986). The Fourth Circuit has stated that:

If the government fairly describes the contents of the material withheld and adequately states its ground for nondisclosure, and if those grounds are reasonable and consistent with the applicable law, a district court should uphold the government’s position. The court is entitled to accept the credibility of the affidavits, so long as it has no reason to question the good faith of the agency.

Spannaus v. United States Dep’t of Justice,

, 1289

(1987)(citing Barney v. IRS,

(8th Cir. 1980)).

4 The plaintiff contends that the defendants have not met their

burden to justify the withholding of documents under the following

four exemptions:

(1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such executive order;

. . .

(2) related solely to the internal personnel rules and practices of an agency;

. . .

(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;

. . .

(7)(E) records or information compiled for law enforcement records or information [which] would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.

(b)(1), (b)(2), (b)(5)(C) and (b)(7)(E). The

plaintiff, therefore, argues that an in camera review is necessary

to evaluate these claimed exemptions. Indeed, in camera review is

appropriate in a case such as this, the plaintiff contends, where

“the agency affidavits merely parrot the language of the statute

and are drawn in conclusory terms, [and] the court’s responsibility

to conduct de novo review is frustrated.” Allen v. Cent.

Intelligence Agency,

(D.C. Cir. 1980). The

5 defendants, in turn, argue that they have demonstrated the adequacy

of their search as to the FOIA requests.

Title

, provides that the

court “may examine the contents of such agency records in camera to

determine whether such records or any part thereof shall be

withheld under any of the exemptions.” Whether in camera review is

necessary is within the discretion of the district court. Robbins

Tire & Rubber Co.,

. In EPA v. Mink,

(1973), the Supreme Court explained:

Plainly in some situations, in camera inspection will be necessary and appropriate. But it need not be automatic. An agency should be given the opportunity, by means of detailed affidavits or oral testimony, to establish to the satisfaction of the District Court that the documents sought fall clearly beyond the range of material that would be available to a private party in litigation with the agency.

.

After a review of the defendants’ Vaughn indices and attached

declarations, this Court finds that an in camera review is

necessary, as these documents fail to allow this Court to determine

whether the government has met its burden of demonstrating that the

withheld documents or information contained therein fall within the

claimed exemptions.

B. Type of In Camera Review

“Whether and how to conduct an in camera examination of the

documents rests in the sound discretion of the court, in national

security cases as in all other cases.” Ray v. Turner,

(D.C. Cir. 1978). Courts have generally employed two

6 sampling procedures for in camera review, those being

representative sampling and random sampling. Under representative

sampling, documents are selected that are “representative” of those

being withheld and submitted to the court for in camera review.

Bonner v. U.S. Dep’t of State,

(D.C. Cir. 1991).

Whether the government selects the documents to produce, or whether

the plaintiff is involved in this selection is usually dependent on

whether the plaintiff has any information on the nature of the

records being withheld. Conversely, random sampling provides that

the government will select, for example, every tenth document at

issue to deliver to the court. See e.g. Meeropol v. Meese,

(D.C. Cir. 1986).

In their joint status report, the parties in this case dispute

which sampling procedure is appropriate. The plaintiff’s position

is that representative sampling is appropriate, and that the

plaintiff be permitted to designate the records to be included for

the in camera review. Nevertheless, the plaintiff does not oppose

the defendants selecting half of the sample, while the plaintiff

selects the other half. The plaintiff contends that whoever

selects the documents, that a 10% sample is appropriate in this

case.

In contrast, the defendants argue that a random sampling of 5%

of the records is appropriate. Should this Court adopt the

representative sampling approach, however, the defendants request

7 that they be allowed to choose half of the total percentage of all

records ordered for the in camera review.

For reasons appearing to the Court, this Court holds that

representative sampling of five percent of the documents is the

appropriate sampling procedure in this civil action. Under this

method, the defendants will select half of the sample, followed by

the plaintiff’s selection of the other half of the sample. The

selected documents shall fairly and equally represent the

particular FOIA exemptions at issue. The parties shall submit to

the undersigned judge at his office at United States Courthouse,

P.O. Box 791, Wheeling, West Virginia, 26003 (or United States

Courthouse, Room 228, 1125 Chapline Street, Wheeling, West

Virginia, 26003) the subject documents on or before September 15,

2010 for an in camera inspection for the undersigned judge to

review. However, if the defendants believe that for security

purposes some other method of delivery is necessary, it shall

promptly advise this Court. The office of the United States

Attorney for the Northern District of West Virginia and the local

officers of the Federal Bureau of Investigation are also located in

the above-mentioned courthouse in Wheeling, West Virginia.

If the parties determine that they will need additional time

to prepare this sampling, they shall immediately contact this Court

by motion providing this Court with a requested date to file the

documents.

8 III. Conclusion

For the reasons set forth above, the plaintiff’s cross-motion

for in camera review is hereby GRANTED AS FRAMED. The parties

shall comply with the procedures outlined above.

IT IS SO ORDERED.

The Clerk is directed to transmit a copy of this order to

counsel of record herein.

DATED: August 2, 2010

/s/ Frederick P. Stamp, Jr FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

9