Cury v. United States Department of State

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 JULIO CURY, et al., CASE NO. C23-0499JLR 11 Plaintiffs, ORDER v. UNITED STATES DEPARTMENT OF STATE, et al., Defendants.

This case arises under the Freedom of Information Act (“FOIA”). (See generally Compl. (Dkt. # 1).) Before the court is the parties’ January 26, 2024 joint status report. (JSR (Dkt. # 11).) The parties are unable to agree on a summary judgment briefing schedule. Plaintiffs Julio Cury and Takao Yamada (“Plaintiffs”) assert that Defendants the United States Department of State and the United States Department of Homeland Security (together, the “Agencies”) bear the burden of proof in this FOIA action and, as such, “[t]he next step is for [the Agencies] to file a motion for summary judgment demonstrating that there is no genuine issue of material fact regarding the question of whether they have properly processed the requests under FOIA.” (JSR at 1, 3.) The Agencies assert that Plaintiffs have failed to adequately specify their concerns with the Agencies’ productions or withholdings and, consequently, the Agencies are unable to narrow the issues remaining for summary judgment. (Id. at 2 (stating that Plaintiffs have “demand[ed] that ‘everything will need to be briefed’” and provided only “a high-level list of issues that expressed general concern with the adequacy of each agency’s search and withholdings”).) The Agencies propose that Plaintiffs file an opening motion for summary judgment, after which the Agencies will file an opposition and potentially cross-move for summary judgment. (Id. at 4.) “Plaintiffs reject the suggestion that they are required to provide any specific objections regarding a process about which they have limited to no knowledge.” (Id. at 3.)

13 Notwithstanding the above, the parties all express a willingness to cooperate in limiting the issues in controversy. (See id. at 3-4.) In particular, “Plaintiffs are willing to engage in a reasonable discussion to limit the issues in controversy” if the Agencies “provide more information—for instance . . . draft Vaughn[1] indexes.” (Id. at 3.)

17 Although Vaughn indexes are neither required nor necessary in every FOIA case, Advocs.

18 for the W. v. DOJ, 331 F. Supp. 3d 1150, 1159-60 (D. Idaho 2018), they are a well-accepted and widely utilized mechanism to ensure the requesting party has “sufficient information upon which to determine whether the government agency 22 1 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).

1 properly withheld the requested documents,” Schiffer v. FBI, 78 F.3d 1405, 1408 (9th Cir. 1996). In this court’s view, a Vaughn index will help facilitate the exchange of information and tailor the issues in this case. See, e.g., Wiener v. FBI, 943 F.2d 972, 977-98 & n.5 (9th Cir. 1991) (“The role of the Vaughn index in enabling the adversary process to function in FOIA cases is universally recognized.” (collecting cases)). The court therefore ORDERS as follows: 7 1. The Agencies shall provide Plaintiffs: (1) a draft Vaughn index, and (2) an accompanying affidavit, by no later than March 22, 2024. The draft Vaughn index shall describe “each document withheld, the statutory exemption claimed, and an explanation of how disclosure would damage the interest protected.” Schiffer, 78 F.3d at 1408. The affidavit shall describe each agency’s document productions thus far and the search processes that each agency employed to identify and produce those documents.

13 2. Plaintiffs shall provide the Agencies a letter response to the Vaughn index by no later than April 5, 2024. Plaintiffs’ letter shall specifically identify the productions and/or withholdings to which Plaintiffs object, and an explanation of the basis for each particular objection.

17 3. The parties shall meet and confer in good faith regarding the draft Vaughn index, the affidavit, and Plaintiffs’ letter response to the same, with the goal of narrowing and/or eliminating issues remaining for summary judgment, by no later than April 19, 2024.

21 4. The parties shall file a joint status report advising of their progress and proposing an agreed summary judgment briefing schedule, or if they cannot agree on a briefing schedule, competing proposals on a summary judgment briefing schedule by no later than April 26, 2024.

3 Dated this 28th day of February, 2024.

A JAMES L. ROBART 5 United States District Judge