UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR PUBLIC INTEGRITY

Plaintiff, v. No. 17-cv-2426 (EGS) UNITED STATES DEPARTMENT OF COMMERCE, et al.,

Defendants.

MEMORANDUM OPINION

In 2017, the President nominated Wilbur L. Ross, Jr., as

the Secretary of Commerce and Todd M. Ricketts as the Deputy

Secretary of Commerce. Seeking certain records concerning both

nominees, Plaintiff Center for Public Integrity (“CPI”)

submitted separate requests to the United States Department of

Commerce (“DOC”) and the United States Office of Government

Ethics (“OGE”)—an independent agency within the Executive

Branch. CPI’s request to DOC sought communications between then-

nominee Secretary Ross and DOC’s Ethics Law and Programs

Division staff from November 2016 through the present. CPI filed

two requests with OGE, seeking: (1) records regarding Secretary

Ross’s financial and ethics disclosures as well as his potential

conflicts of interest; and (2) records among OGE employees about

Mr. Ricketts, or between OGE employees and Mr. Ricketts. Unsatisfied with the responses to its requests, CPI filed

this action against DOC and OGE (collectively, the “Defendants”)

under the Freedom of Information Act (“FOIA”),

.

CPI concedes that Defendants adequately searched for responsive

documents and properly applied the claimed exemptions under

FOIA. At issue here is whether Defendants released all

reasonably segregable information in certain documents withheld

in full.

Pending before the Court are the parties’ cross-motions for

summary judgment. Upon careful consideration of the parties’

submissions, the applicable law, and the entire record herein,

the Court concludes that Defendants have failed to meet their

burden of demonstrating that all reasonably segregable

information has been disclosed to CPI. Therefore, the Court

GRANTS IN PART and DENIES IN PART Defendants’ Renewed Motion for

Summary Judgment and GRANTS IN PART, DENIES IN PART, and HOLDS

IN ABEYANCE Plaintiff’s Cross-Motion for Summary Judgment.

I. Background

The following facts—drawn from the parties’ submissions—are

undisputed, except where indicated. CPI is a non-profit

organization devoted to “using the tools of investigative

journalism” to “reveal[] abuses of power, corruption and

2 betrayal of public trust.” Compl., ECF No. 1 at 2 ¶ 4. 1 Between

February 2017 and June 2017, CPI employed another tool—FOIA—in

an attempt to unearth certain records concerning Secretary Ross

and Mr. Ricketts. 2 On February 21, 2017, CPI submitted a FOIA

request to DOC, seeking any communications between the Chief of

DOC’s Ethics Law and Program Division, David Maggi, or his

staff, and Commerce Secretary nominee Ross or any of his

representatives. E.g., Decl. of David Maggi (“Maggi Decl.”), ECF

No. 15-2 at 2 ¶ 5; Pl.’s Cross-Mot. for Summ. J. & Opp’n to

Defs.’ Renewed Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 16 at 3

(“The likely date range of the records is Nov. 29, 2016 through

the present.” (citations omitted)). On March 10, 2017, OGE

received a separate request from CPI, seeking any records

pertaining to Secretary Ross’s “financial and ethics disclosures

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 The Court takes judicial notice that the President nominated Mr. Ross and Mr. Ricketts in January 2017 to serve as the Secretary of Commerce and the Deputy Secretary of Commerce, respectively. See Fed. R. Evid. 201(b); see also Press Release, Nominations Sent to the Senate, White House (Jan. 20, 2017), https://www.whitehouse.gov/presidential-actions/nominations- sent-senate/. Mr. Ross was confirmed as the Secretary of Commerce on February 27, 2017. Groundfish Forum v. Ross,

, 80 n.7 (D.D.C. 2019). Mr. Ricketts later withdrew his name from consideration. Rebecca Ballhaus, Todd Ricketts, Co-Owner of the Chicago Cubs, Ends Bid for Commerce Post, Wall St. J. (Apr. 20, 2017, 4:34 PM), https://www.wsj.com/articles/todd-ricketts-co-owner-of-the- chicago-cubs-ends-bid-for-commerce-post-1492638729. 3 and potential conflicts of interest.” Decl. of Rachel K. Dowell

(“Dowell Decl.”), ECF No. 15-5 at 2-3 ¶ 9.

In early 2017, OGE received FOIA requests for records

relating to the financial disclosures and potential conflicts of

interest of civilian nominees submitted by the President to the

Senate for confirmation. E.g., Defs.’ Statement of Material

Facts Not in Dispute (“Defs.’ SOMF”), ECF No. 15-7 at 2; Pl.’s

Counter-Statement of Material Facts (“Pl.’s SOMF”), ECF No. 16-1

at 2. On June 14, 2017, OGE received a request from CPI for any

communications between OGE employees regarding Mr. Ricketts, or

from OGE employees to Mr. Ricketts or any of his

representatives. Pl.’s SOMF, ECF No. 16-1 at 1-2 (citing Dowell

Decl., ECF No. 15-5 at 4 ¶ 15).

OGE and DOC subsequently conducted searches of their

systems and shared drives. Pl.’s SOMF, ECF No. 16-1 at 2-3, 4.

Initially, DOC located 437 responsive documents, but released

three responsive documents in June 2017. Id. at 5. Dissatisfied

with those results, CPI administratively appealed DOC’s

withholdings in September 2017. Maggi Decl., ECF No. 15-2 at 3 ¶

9.

On November 9, 2017, CPI brought this action against DOC

and OGE, challenging the responses to its FOIA requests. See

Compl., ECF No. 1 at 3-4 ¶¶ 13-22. In December 2017, OGE

released twenty-four pages of responsive documents, subject to

4 redactions under FOIA Exemptions 5 and 6. Dowell Decl., ECF No.

15-5 at 4 ¶ 17. Since certain responsive records were created by

DOC employees, OGE “referred [those] responsive records that

originated with [DOC] to that Department on December 12, 2017.”

Id. In January 2018, OGE turned over 151 pages, subject to

redactions under FOIA Exemptions 3, 4, 5, and 6, and withheld

177 pages in full, subject to the same claimed exemptions. 3 Id.

at 3 ¶ 12. Subject to redactions under those same FOIA

exemptions, OGE released 238 pages in February 2018, withholding

337 pages in full. Dowell Decl., ECF No. 15-5 at 3 ¶ 13. OGE

then released sixty pages, invoking the same FOIA exemptions,

and withheld in full 539 pages in March 2018. Id. at 3 ¶ 14.

DOC conducted a “line-by-line review” of 6,853 pages of

documents in April 2018, and 5,800 pages of documents in May

2018. Maggi Decl., ECF No. 15-2 at 3 ¶¶ 11-13. Following that

review and CPI’s administrative appeal, DOC released 132

3 Exemption 3 allows an agency to withhold or redact information prohibited from disclosure by another statute if the statute “establishes particular criteria for withholding or refers to particular types of matters to be withheld.”

(b)(3). Exemption 4 exempts from disclosure “trade secrets and commercial or financial information obtained from a person that is privileged or confidential.”

§ 552(b)(4). 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.” Id. § 552(b)(5). Exemption 6 covers “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Id. § 552(b)(6). 5 documents in full and 130 documents in part, withholding sixty-

three documents in June 2018. Id. at 4 ¶ 14. DOC also released

in part 153 documents that included portions authored by both

DOC and OGE employees, referring CPI to OGE’s release of thirty-

eight e-mail chains totaling 154 pages that were not authored by

DOC employees. Id. Finally, DOC withheld certain documents in

full or in part, invoking Exemptions 3, 4, 5, and 6. See id. at

4-6 ¶¶ 16-24.

The parties filed cross-motions for summary judgment. See

Defs.’ Renewed Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. 15 at

1-23; see also Pl.’s Mot., ECF No. 16 at 1-6. Defendants argue

that they are entitled to summary judgment because there is no

genuine dispute of material fact as to whether the agencies:

(1) conducted adequate and reasonable searches; (2) produced all

non-exempt, responsive documents; and (3) satisfied their

obligations to segregate exempt from non-exempt information.

Defs.’ Mot., ECF No. 15 at 9, 22. Defendants submitted

declarations as well as indices of responsive records under

Vaughn v. Rosen,

(D.C. Cir. 1973) (the “Vaughn

indices”). 4 E.g., Ex. 1, Dowell Decl., ECF No. 15-6 at 1-164; Ex.

1, Maggi Decl., ECF No. 15-3 at 1-72; Ex. 2, Maggi Decl., ECF

4 “A Vaughn index describes the documents withheld or redacted and the FOIA exemptions invoked, and explains why each exemption applies.” Prison Legal News v. Samuels,

, 1145 n.1 (D.C. Cir. 2015) (citations omitted). 6 No. 15-4 at 1-4. The Vaughn indices list the records released

and those withheld, in whole or in part, under the FOIA

exemptions. CPI neither contests the adequacy of the searches,

nor challenges the applicability of the claimed exemptions.

Pl.’s Mot., ECF No. 16 at 2, 5; see also Pl.’s Reply, ECF No. 20

at 1-2. Rather, CPI argues that “Defendants have not released

all reasonably segregable non-exempt information.” Pl.’s Mot.,

ECF No. 16 at 2. The briefing is now complete, and the parties’

cross-motions for summary judgment are ripe and ready for the

Court’s adjudication.

II. Legal Standard

The “vast majority” of FOIA cases can be resolved on

summary judgment. Brayton v. Office of the U.S. Trade

Representative,

(D.C. Cir. 2011). A court may

grant summary judgment only if “there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). Likewise, in ruling on

cross-motions for summary judgment, the court shall grant

summary judgment only if one of the moving parties is entitled

to judgment as a matter of law upon material facts that are not

genuinely disputed. See Citizens for Responsibility & Ethics in

Wash. v. U.S. Dep’t of Justice,

(D.D.C.

2009) (citation omitted). Under FOIA, “the underlying facts and

the inferences to be drawn from them are construed in the light

7 most favorable to the FOIA requester[,]” and summary judgment is

appropriate only after “the agency proves that it has fully

discharged its [FOIA] obligations . . . .” Moore v. Aspin,

(D.D.C. 1996) (citations omitted).

When considering a motion for summary judgment under FOIA,

the court must conduct a de novo review of the record. See

(a)(4)(B). The court may grant summary judgment

based on information provided in an agency’s affidavits or

declarations when they are “relatively detailed and non-

conclusory,” SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991) (citation omitted), and “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). Such affidavits or declarations are “accorded

a presumption of good faith, which cannot be rebutted by ‘purely

speculative claims about the existence and discoverability of

other documents.’” SafeCard Servs.,

(citation omitted).

III. Analysis

As the summary judgment briefing makes clear, the only

issue in dispute is whether Defendants have disclosed all

reasonably segregable, non-exempt information that is responsive

to CPI’s requests. See, e.g., Pl.’s Reply, ECF No. 20 at 1;

Defs.’ Reply in Support of Defs.’ Mot. & Opp’n to Pl.’s Mot.

8 (“Defs.’ Opp’n”), ECF No. 18 at 1-2. 5 Defendants urge the Court

to find that they fulfilled their duty to segregate exempt from

non-exempt information. Defs.’ Mot., ECF No. 15 at 22. Relying

on OGE and DOC’s examination of the records, Defendants contend

that they “determined that all reasonably segregable non-exempt

information was disclosed and that the information withheld

could not be segregated and released.”

(citing Dowell Decl.,

ECF No. 15-5 at 13 ¶ 47; Maggi Decl., ECF No. 15-2 at 6 ¶¶ 25-

27). To support their position, Defendants argue that they

“submitted detailed Vaughn indices describing every document

withheld in full.” Defs.’ Opp’n, ECF No. 18 at 2.

CPI challenges Defendants’ segregability decisions, arguing

that “Defendants have provided only conclusory assertions, that

they have reviewed the documents page by page and line by line

5 CPI does not challenge the adequacy of the searches or the claimed FOIA exemptions. Pl.’s Mot., ECF No. 16 at 2 (“[CPI] does not contest the adequacy of Defendants’ search for responsive records.”); id. at 5 (“[CPI] will not contest the applicability of the FOIA exemptions that Defendants have claimed.”). The Court therefore finds that CPI has conceded these issues. See Cavezza v. U.S. Dep’t of Justice,

(D.D.C. 2015) (finding that the plaintiff conceded the issues of the search and claimed exemptions where he neither contested the adequacy of the search nor “challenge[d] any of [the] redactions or the claimed exemptions”); see also Campbell v. Nat’l R.R. Passenger Corp.,

(D.D.C. 2018) (“Plaintiffs do not offer any response to this argument, and thus concede it.”). Accordingly, the Court GRANTS Defendants’ motion for summary judgment with respect to the adequacy of Defendants’ searches and their claimed FOIA exemptions. 9 and can release no additional non-exempt information.” Pl.’s

Mot., ECF No. 16 at 5. CPI states that “Defendants have applied

the exemptions too broadly and have not established that they

are justified in withholding documents in full.”

CPI points

to “segregable non-exempt information contained in several

documents that have been withheld in full.” Pl.’s Reply, ECF No.

20 at 1. CPI asserts that “there remain several e-mails,

memoranda and letters that have been withheld in full,”

but

information in those documents is “easily segregable” because

Defendants include certain information—dates, names of senders,

recipients, and subject-matter descriptions—in their Vaughn

indices. 6 Id. at 1-2.

6 The remaining dispute involves a narrow set of documents withheld in full, which includes letters, e-mails, and memoranda. See, e.g., Defs.’ Opp’n, ECF No. 18 at 3 (citing Ex. 1, Maggi Decl., ECF No. 15-3 at 60, 64, 69, 71, 72; Ex. 1, Dowell Decl., ECF No. 15-6 at 30); Pl.’s Reply, ECF No. 20 at 1 n.1. Defendants state that “the vast majority of records withheld in full by Defendants consist[s] of draft documents, such as drafts of an ethics agreement, draft appendices to an ethics agreement, and draft financial disclosure forms.” Defs.’ Opp’n, ECF No. 18 at 3. Within that set of documents, CPI does not challenge the draft documents withheld in their entirety. Pl.’s Reply, ECF No. 20 at 1 (“Plaintiff accepts that the draft documents at issue here are predecisional and deliberative.”); see also Defs.’ Opp’n, ECF No. 18 at 3 (arguing that “settled law protects the entirety of the drafts from disclosure.”). Because CPI does not contest that the draft documents were properly withheld under the claimed FOIA exemptions, the Court GRANTS Defendants’ motion for summary judgment and DENIES CPI’s cross-motion for summary judgment with respect to the withholdings that consist of draft documents. 10 A. Segregability

The Court has an “affirmative duty” to consider whether

Defendants have satisfied their segregability obligations.

Trans–Pac. Policing Agreement v. U.S. Customs Serv.,

(D.C. Cir. 1999). Under FOIA, if a record contains

some information that is exempt from disclosure, any reasonably

segregable information not exempt from disclosure must be

released after deleting the exempt portions, unless the non-

exempt portions are inextricably intertwined with exempt

portions. Trans–Pac.,

. The Court may rely on

the agency’s descriptions of the withheld records and its

declaration that it has released all segregable information to

conclude that the agency has fulfilled its obligation to show

with “reasonable specificity” why documents cannot be further

segregated. Loving v. U.S. Dep’t of Defense,

(D.C. Cir. 2008) (citation omitted). Nevertheless, an agency

must provide “a detailed justification and not just conclusory

statements to demonstrate that all reasonably segregable

information has been released.” Valfells v. CIA,

(D.D.C. 2010) (citation and internal quotation marks

omitted).

“Agencies are entitled to a presumption that they complied

with the obligation to disclose reasonably segregable material,”

which must be overcome by some “quantum of evidence” from the

11 FOIA requester. Sussman v. U.S. Marshals Serv.,

(D.C. Cir. 2007). Here, CPI argues that Defendants have

failed to provide a “factual basis” for this Court to evaluate

whether all reasonably segregable information has been produced.

Pl.’s Mot., ECF No. 16 at 5. CPI notes that “OGE has withheld at

least 1,053 pages in full” and “[DOC] has withheld at least 469

pages in full.” 7

(citing Dowell Decl., ECF No. 15-5 at 3 ¶

12-14; Maggi Decl., ECF No. 15-2 at 4 ¶ 14). According to CPI,

“[i]t does not seem possible that no non-exempt information can

be released from these documents” because the names of senders

and recipients, dates, titles, and subject lines are not exempt.

CPI points out that “[DOC] and OGE have in many cases

apparently listed this information in Vaughn indexes.”

To the contrary, Defendants assert that they have reviewed

the responsive documents and deemed that all non-exempt and

segregable information has been released to CPI. See Defs.’

Mot., ECF No. 15 at 22 (citing Dowell Decl., ECF No. 15-5 at 13

¶ 47; Maggi Decl., ECF No. 15-2 at 6 ¶¶ 25-27). Defendants argue

that they are entitled to the presumption of compliance with

7 The number of pages withheld in full include the uncontested draft documents. Compare Pl.’s Mot., ECF No. 16 at 5, with Pl.’s Reply, ECF No. 20 at 1. Because CPI does not contest that the draft documents were properly withheld under the claimed FOIA exemptions, see Pl.’s Reply, ECF No. 20 at 1, the estimates in CPI’s cross-motion for summary judgment do not accurately reflect the total number of disputed documents. 12 their segregability obligations because CPI has not offered any

evidence to rebut that presumption. Defs.’ Opp’n, ECF No. 18 at

2. Defendants take issue with CPI’s suggestion that Defendants

should have released the names of senders and recipients in e-

mails and memoranda, the dates on the documents, and the titles

of the documents or subject lines. Id. at 2-3. Defendants

contend that there is no obligation to release such information

because “[CPI] has not made any showing that there was

informational value in releasing fragments of information from

these records . . . where the content of the communications was

withheld.” Id. at 3. Defendants argue that “[CPI] concedes . . .

that Defendants submitted declarations stating that agency

personnel reviewed the documents page by page and line by line

to determine whether additional information could be segregated

and released and determined that it could not.” Id. at 2.

It is undisputed that the declarations aver that DOC and

OGE took a line-by-line and page-by-page approach in reviewing

the responsive records. E.g., Dowell Decl., ECF No. 15-5 at 13 ¶

47 (“With respect to each of the responsive documents, OGE’s

FOIA staff conducted a page-by-page, line-by-line review.”);

Maggi Decl., ECF No. 15-2 at 6 ¶ 25 (“[DOC] carefully reviewed

each responsive record on a page by page and line by line basis

in an attempt to identity reasonably segregable, non-exempt

information.”). “Regardless of whether a declaration that an

13 agency conducted a ‘line-by-line’ search is sufficient to

satisfy an agency’s obligations in and of itself, a statement

representing that a ‘line-by-line’ search was conducted along

with a sufficiently detailed Vaughn index and declarations

enumerating the reasons why each document was properly withheld

is ‘sufficient to fulfill the agency’s obligation’ regarding

segregability.” ViroPharma Inc. v. Dep’t of Health & Human

Servs.,

(D.D.C. 2012) (citations

omitted). “[A] blanket declaration that all facts are so

intertwined to prevent disclosure under the FOIA does not

constitute a sufficient explanation of non-segregability.” Ctr.

for Biological Diversity v. EPA,

, 152

(D.D.C. 2017) (quoting Wilderness Soc’y v. U.S. Dep’t of

Interior,

(D.D.C. 2004)). “Rather, for

each entry the defendant is required to ‘specify in detail which

portions of the document are disclosable and which are allegedly

exempt.’” Wilderness Soc’y,

. (quoting

Animal Legal Def. Fund, Inc. v. U.S. Dep’t of Air Force,

(D.D.C. 1999) (emphasis in original)).

Having completed a review of the Vaughn indices and the

declarations submitted in support of Defendants’ motion for

summary judgment, the Court finds that the presumption that OGE

and DOC complied with their segregability obligations is

overcome by their failure to provide sufficient justifications

14 for each document withheld in full. See Hardy v. Bureau of

Alcohol, Tobacco, Firearms & Explosives,

(D.D.C. 2017). Defendants have failed to meet their burden

of “prov[ing] that no segregable information exists.” Wilderness

Soc’y,

. For the reasons articulated below,

OGE’s Vaughn index does not meet the non-segregability test, and

DOC’s Vaughn indices fall short of that test. See

Defendants

also do not demonstrate that they properly withheld the non-

exempt “header” information in the disputed documents.

1. OGE’s Vaughn Index Is Deficient

With regard to OGE’s Vaughn index, the parties point to a

letter as an e-mail attachment, dated January 9, 2017, that OGE

withheld in full. Defs.’ Opp’n, ECF No. 18 at 3 n.1 (citing Ex.

1, Dowell Decl., ECF No. 15-6 at 30); see also Pl.’s Reply, ECF

No. 20 at 1 n.1. The letter does not fall within the category of

uncontested “draft documents” because the Vaughn index does not

describe it as a draft letter. Compare Ex. 1, Dowell Decl., ECF

No. 15-6 at 30, with Ex. 1, Maggi Decl., ECF No. 15-3 at 69

(withholding in full the “Draft YG Letter” under Exemption 5).

The Vaughn index states that “[t]his document is a two page PDF

letter, which was submitted to OGE and [DOC] by Wilbur Ross as

part of the process of drafting his ethics agreement. It

contains additional information about financial matters

referenced on his draft financial disclosure report.” Ex. 1,

15 Dowell Decl., ECF No. 15-6 at 30. It also states: “[t]he letter

is protected under Exemption 4 because it contains confidential

financial information that was obtained from Mr. Ross as part of

the process of drafting his ethics agreement. This information

would not otherwise be available to the public on a financial

disclosure report, ethics agreement, or other disclosure.”

In an across-the-board declaration as to the segregability

issue, OGE’s declarant attests that the agency “determined that

no additional information can be released without jeopardizing

information that falls within the scope of one or more FOIA

exemptions described above.” Dowell Decl., ECF No. 15-5 at 13 ¶

47. This conclusory statement is insufficient to satisfy OGE’s

burden with respect to FOIA’s segregability requirements. See

Stolt-Nielsen Transp. Grp. Ltd. v. United States,

(D.C. Cir. 2008) (explaining that an agency’s “conclusion on

a matter of law is not sufficient support for a court to

conclude that the self-serving conclusion is the correct one”);

see also Comptel v. FCC,

(D.D.C. 2012)

(finding that an agency’s Vaughn index and declaration were

insufficient where the Vaughn index did not indicate that all

reasonably segregable information had been released for each

document and the declaration contained conclusory assertions to

justify withholding information). OGE’s declaration fails to

demonstrate that no segregable, non-exempt information exists

16 within the two-page letter. See Ex. 1, Dowell Decl., ECF No. 15-

6 at 30. Given that “an agency cannot justify withholding an

entire document simply by showing that it contains some exempt

material,” Mead Data Cent., Inc. v. U.S. Dep’t. of Air Force,

(D.C. Cir. 1977), the Court agrees with CPI

that it is possible that some of the information contained in

the letter and the other documents withheld in full should be

released. See Vaughn,

(“[A]n entire document is

not exempt merely because an isolated portion need not be

disclosed . . . . [T]he agency may not sweep a document under a

general allegation of exemption . . . . It is quite possible

that part of a document should be kept secret while part should

be disclosed.”).

As it stands, OGE’s Vaughn index does not indicate that the

non-exempt information is “inextricably intertwined with exempt

portions” to justify withholding each document in full. Mead

Data,

. The Court need not identify every entry

in the Vaughn index to determine whether it is deficient.

Wilderness Soc’y,

n.17 (“Such information

is clearly either present or not in a document and the

defendants can surely locate the deficient entries in the Vaughn

index without this Court listing each of them.”). OGE’s

declaration and its Vaughn index do not provide a sufficient

justification and enough details for withholding the documents

17 in their entirety. See Gatore v. U.S. Dep’t of Homeland Sec.,

(D.D.C. 2016) (“[T]he possibility that

the defendant now simply refuses to release [the documents], as

a whole, regardless of their specific contents, and contrary to

the representation that each responsive document received a

line-by-line review, represents a ‘quantum of evidence’ that

overrides the presumption in favor of the agency’s segregability

determination.”). The Court is unable to evaluate whether any

non-exempt portions are inextricably intertwined with exempt

portions. See Mead Data, 566 F.2d at 260–61. The Court therefore

finds that OGE has not met the non-segregability test.

2. DOC’s Vaughn Indices Are Deficient

DOC’s Vaughn indices fail to provide sufficient details in

the descriptions of the factual materials contained in the

documents withheld in full to allow this Court to determine that

DOC has satisfied its segregability obligations. See Ctr. for

Biological Diversity, 279 F. Supp. 3d at 152. The parties

identify an e-mail, dated December 26, 2016, as an example of

the disputed documents that DOC withheld in full. See Defs.’

Opp’n, ECF No. 18 at 3 (citing Ex. 1, Maggi Decl., ECF No. 15-3

at 60); see also Pl.’s Reply, ECF No. 20 at 1 n.1. The Vaughn

index describes the e-mail from Theodore Kassinger to David

Maggi as “[c]onference call information” that is withheld in

full under Exemption 4. Ex. 1, Maggi Decl., ECF No. 15-3 at 60.

18 The Vaughn index states that the basis for the assertion of the

exemption is that “[t]he withheld records [are] comprise[d] [of]

deliberations conference call numbers and passcodes.” Id.

(emphasis added). It provides nothing else. See id. There is no

information in the Vaughn index about the “deliberations”

contained in the e-mail. See id. The Vaughn index does not

answer the question of whether any exempt portions can be

redacted. See id.

Similarly, the descriptions in the Vaughn index do not

provide sufficient information about documents withheld in full

that fall outside of the narrow set of “draft documents.” See

id. at 69, 71, 72. The Vaughn index fails to identify the

authors of some documents and leaves out the number of pages for

each document. See id. at 69, 71, 72. As such, those entries are

deficient. See Wilderness Soc’y,

n. 13

(finding that challenged entries in a Vaughn index were

deficient because, inter alia, the entries did not identify the

authors); see also Ctr. for Biological Diversity, 279 F. Supp.

3d at 144 (“[T]ypically, a comprehensive Vaughn index will at

least include the following information: “(1) an index

identification number [(i.e., a Bates stamp number)]; (2) the

document’s subject; (3) its date; (4) the author; (5) the

recipient; (6) the total number of pages; . . . ([7]) the

disposition (that is, whether entirely or partially withheld);

19 ([8]) the reason for being withheld; ([9]) the statutory

authority for the withholding; and ([10]) the number of pages

containing withheld information.” (quoting Judicial Watch, Inc.

v. FDA,

, 146–47 (D.C. Cir. 2006)). “Both

substantively and structurally, [DOC’s] two Vaughn indices are

patently insufficient.”

DOC’s declaration is equally problematic. In general terms,

DOC’s declarant avers that “[t]here is no further reasonably

segregable information to be released and all segregable

information has been released to [CPI]. Further disclosure of

these records would adversely affect the candor of future agency

deliberations.” Maggi Decl., ECF No. 15-2 at 6 ¶ 27. However,

“[t]he declarations must afford the plaintiff ‘a meaningful

opportunity to contest, and the district court an adequate

foundation to review, the soundness of the withholding.’”

Wilderness Soc’y,

(quoting King v. U.S.

Dep’t of Justice,

(D.C. Cir. 1987)). Because

DOC’s Vaughn indices do not give CPI an opportunity to challenge

the information withheld in the documents, the Court finds that

DOC has failed to demonstrate that the information is not

reasonably segregable. “Accordingly, if [DOC] intends to

withhold any document, in full or part, and disclaims any

segregable information, [DOC] must provide a particularized

explanation of non-segregability for each document.” Ctr. for

20 Biological Diversity, 279 F. Supp. 3d at 152 (emphasis in

original).

3. Release of the Header Information

“Non-exempt information intertwined with exempt information

does not need to be released when doing so would ‘produce only

incomplete, fragmented, unintelligible sentences composed of

isolated, meaningless words.’” Judicial Watch, Inc. v. U.S.

Dep’t of Treasury,

(D.D.C. 2011) (quoting

Brown v. U.S. Dep’t of Justice,

(D.D.C.

2010)); see also Mead Data,

n.55 (“[A] court may

decline to order an agency to commit significant time and

resources to the separation of disjointed words, phrases, or

even sentences which taken separately or together have minimal

or no information content.”).

As previously stated, the disputed documents, which include

e-mails, letters, and memoranda, have been withheld in full.

Defendants argue that the agencies have “no obligation” to

release “senders, recipients, dates, and subject lines from [the

disputed] documents.” Defs.’ Opp’n, ECF No. 18 at 3. Defendants

maintain that there is no requirement to segregate such

information because CPI has failed to show that there was

“informational value” in disclosing “fragments of information”

from those documents.

CPI disagrees.

CPI argues that the “header information,” which consists of

21 names of senders and recipients, titles, subject-matter

descriptions, is non-exempt information that can be reasonably

segregable with “minimal time and effort” for three primary

reasons. Pl.’s Reply, ECF No. 20 at 2. First, the header

information is non-exempt information that “is distributed in

logically related groupings.”

(quoting Mead Data,

). Next, the header information has more than minimal or

no information content because “the sender’s name on an email or

letter communicates the identity of the person writing and

sending it” and the creators of the documents include titles and

subject fields with specific meanings.

Finally, “[a]gencies

may not substitute their own judgment of what information will be

helpful to the requester, in place of the requirement under FOIA to

provide all meaningful information.”

(citing Stolt-Nielsen,

; Antonelli v. BOP,

(D.D.C.

2009)). The Court agrees.

In Judicial Watch, Inc. v. United States Department of the

Treasury, the agency withheld in full a committee’s meeting

minutes that consisted of internal deliberations of the

committee.

. After conducting an in

camera inspection of those documents, the court determined that

those portions of the minutes regarding the committee’s internal

deliberative process were properly withheld.

. The

court, however, found that the agency “improperly withheld

22 reasonably segregable information in the minutes—namely, the

headers at the top of each set of minutes that list the date and

time of the meeting, the names of the . . . [c]ommittee members

present, and the names of observers.”

The court also found

that the agency’s explanation—that the “Vaughn Index indicate[d]

that the minutes were withheld in full because ‘there is no

meaningful, reasonably segregable portion of the document[s]

that can be released’”—did not “satisfy the [agency’s] burden of

proving that the headers at the top of each set of minutes that

list[ed] the date and names of attendees [were] not reasonably

segregable from the rest of the minutes.”

(citation

omitted). The court ordered the agency to release the header

information because “[r]elease of [those] headers would not

create such indecipherable sentences; the headers [were] at the

top of each page and [were] easily separable from the exempt

portions of the minutes.”

The same is true here. Given the narrow set of disputed

documents in this case, the Court agrees with CPI that the

header information is easily segregable from the exempt portions

of the disputed documents. See

Defendants’ argument—that

releasing the header information would somehow result in

fragments with no meaning, see Defs.’ Opp’n, ECF No. 18 at 3—is

inconsistent with D.C. Circuit precedent. See Stolt-Nielsen,

(holding that it is not a justification for an

23 agency to “argue[] that the redacted documents without names and

dates would provide no meaningful information” because “FOIA

does not require that information must be helpful to the

requestee before the government must disclose it. FOIA mandates

disclosure of information, not solely disclosure of helpful

information.”); see also Elec. Privacy Info. Ctr. v. U.S. Dep’t

of Homeland Sec.,

(D.D.C. 2013) (“The

nonexempt (and concededly segregable) information here has

meaning, and the agency may not withhold information simply

because its ‘value to the requestor’ may be low.” (quoting Mead

Data,

n. 55)). Furthermore, Defendants do not

argue that segregating the non-exempt, header information from

the exempt portions of the documents withheld in full would

require DOC and OGE “to commit significant time and resources.”

Mead Data,

n.55; see generally Defs.’ Opp’n, ECF

No. 18. The Court therefore concludes that Defendants must

disclose the header information in the disputed documents—dates,

names of senders and recipients, titles, and subject-matter

descriptions—that is segregable and non-exempt. Accordingly, the

Court DENIES IN PART Defendants’ motion for summary judgment.

* * *

The Court directs Defendants to submit amended Vaughn

indices and declarations that reevaluate the segregability issue

for all non-draft documents that were withheld in full. See

24 Gatore,

; cf. Am. Immigration Lawyers Ass’n

v. U.S. Dep’t of Homeland Sec.,

(D.D.C.

2012) (“Because a district court should not undertake in camera

review of withheld documents as a substitute for requiring an

agency’s explanation of its claims exemptions in accordance with

Vaughn, the Court finds that the best approach is to direct

defendants to submit revised Vaughn submissions.” (citations

omitted)). As set forth in Center for Biological Diversity v.

EPA, this Court prescribes the following format for the amended

Vaughn indices:

[A]ny supplemental Vaughn index [must] include a separate numbered entry for each document, including for each email (or email chain) and for each email attachment (which shall be separately listed in consecutive order after its associated email): (1) a document number; (2) an index identification number (i.e., a Bates stamp number); (3) the document’s subject or title; (4) its date; (5) the author and the author’s job title; (6) the recipient and the recipient’s job title; (7) the total number of pages; (8) the disposition (whether it is entirely or partially withheld); (9) the reason for being withheld; (10) the statutory authority for the withholding; and (11) the number of pages with redacted, withheld information.

279 F. Supp. 3d at 145 (citing Judicial Watch v. FDA, 449 F.3d

at 146–47). Accordingly, the Court HOLDS IN ABEYANCE CPI’s

cross-motion for summary judgment with respect to the header

information in the portions of the documents withheld in full.

25 IV. Conclusion

For the reasons set forth above, the Court GRANTS IN PART

and DENIES IN PART Defendants’ motion for summary judgment. The

Court GRANTS IN PART, DENIES IN PART, and HOLDS IN ABEYANCE

Plaintiff’s cross-motion for summary judgment. Within sixty days

of the issuance of this Memorandum Opinion, Defendants shall

submit amended Vaughn indices and declarations. A separate Order

accompanies this Memorandum Opinion.

SO ORDERED

Signed: Emmet G. Sullivan United States District Judge August 8, 2019

26