("Peer"), Rocky Mountain Chap. v. U.S. E.P.A., Civil Action No. 96-N-2727.

• Decision Date: 07 August 1997
• Docket Number: Civil Action No. 96-N-2727.
• Citation: 978 F.Supp. 955
• Parties: PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY ("PEER"), ROCKY MOUNTAIN CHAPTER, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant.
• Court: U.S. District Court — District of Colorado

978 F.Supp. 955

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY ("PEER"), ROCKY MOUNTAIN CHAPTER, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant.

Civil Action No. 96-N-2727.

United States District Court, D. Colorado.

August 7, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jacqueline P. Taylor, Bruce J. Pederson, Pederson & Taylor, Denver, CO, for Plaintiff.

Robert D. Clark, Asst. U.S. Atty., for Defendant.

ORDER AND MEMORANDUM OF DECISION

NOTTINGHAM, District Judge.

This case arises out of a Freedom of Information Act [hereinafter "FOIA"] request which Plaintiff Public Employees For Environmental Responsibility, Rocky Mountain Chapter, made of Defendant United States Environmental Protection Agency [hereinafter "EPA"]. Plaintiff claims defendant improperly withheld certain documents encompassed in its FOIA request. The matter is before the court on (1) "Plaintiff's Motion for Summary Judgment" filed April 25, 1997, and (2) "[Defendant's] Second Amended Motion for Summary Judgment" filed May 12, 1997.¹ Jurisdiction is based on 5 U.S.C.A. § 552(a)(4)(B) (West 1996 & Supp.1997).

FACTS

On May 17, 1996, plaintiff made a written FOIA request of defendant, pursuant to 5 U.S.C.A. § 552(a)(3) (West 1996 & Supp. 1997), seeking "[t]he [EPA's] Office of Inspector General (OIG) Investigations manual, as well as all other documents setting forth, governing, or related to the internal rules, policies and procedures the EPA's OIG employs, follows, or is bound by in conducting any EPA OIG investigation." (Compl. for Relief Under the Freedom of Information Act ¶ 7, Ex. I [FOIA Request Letter of May 17, 1996] [filed Nov. 25, 1996] [hereinafter "Compl."]; admitted at Answer ¶ 6 [filed Jan. 6, 1997].) On June 20, 1996, defendant provided selected portions of documents to plaintiff ([Def's] Second Am. Mot. for Summ. J., Statement of Undisputed Material Facts ¶ 3 [filed May 12, 1997] [hereinafter "Def's Br."]; admitted at Pl.'s Reply Br. Regarding The Parties' Mots. for Summ. J., Resp. to EPA's Statement of Undisputed Material Facts ¶ 3 [filed May 23, 1997] [hereinafter "Pl.'s Reply"].) Defendant withheld the remainder of materials covered by plaintiff's FOIA request on the ground that a FOIA statutory exemption — exemption 7(E) — protected them from disclosure. (Br. in Supp. of Pl.'s Mot. for Summ. J., Statement of Undisputed Facts ¶ 7 [filed Apr. 25, 1997] [hereinafter "Pl.'s Br."].) On July 21, 1996, plaintiff filed a FOIA appeal with defendant. (Def's Br., Statement of Undisputed Material Facts ¶ 5; admitted at Pl.'s Reply, Resp. to EPA's Statement of Undisputed Material Facts ¶ 5.) To date, defendant has not made a determination on plaintiff's appeal. (Pl.'s Br., Statement of Undisputed Material Facts ¶ 5.)

On November 26, 1996, plaintiff filed a complaint in this court alleging a FOIA violation. (Compl.) On March 7, 1997, defendant filed a Vaughn index of withheld documents and a declaration by Allen P. Fallin, Assistant Inspector General for Investigations in the OIG, describing the documents and the reason(s) defendant withheld each. (Vaughn Index of Documents Withheld Pursuant to Exemption (7)(E) of FOIA, Attach. [Fallin Decl.] [filed Mar. 7, 1997] [hereinafter "Vaughn Index"].) On March 12, 1997, defendant released additional documents to plaintiff. (Def's Br., Statement of Undisputed Material Facts ¶ 8, Ex. D [letter from Def's counsel to Pl.'s counsel of 3/12/97 (describing release of "redacted Section 5 of Chapter 205 of the OIG Manual")]; admitted at Pl.'s Reply, Resp. to EPA's Statement of Undisputed Material Facts ¶ 8.)

On April 25, 1997, plaintiff moved for summary judgment. (Pl.'s Mot. for Summ. J. [filed Apr. 25, 1997].) On May 2, 1997, defendant filed with the court the "full, unredacted version of the responsive documents." (Def's Br., Statement of Undisputed Material Facts ¶ 10; admitted at Pl.'s Reply, Resp. to EPA's Statement of Undisputed Material Facts ¶ 10.) On May 12, 1997, defendant moved for summary judgment. (Def.'s Br.) Attached to defendant's summary-judgment brief is a supplemental declaration of Allen P. Fallin discussing the withheld documents and the applicability of the 7(E) exemption thereto. (Id., Ex. C [Fallin Supplemental Decl.].) The parties agree that the case is ripe for judicial determination. (Pl.'s Br., Statement of Undisputed Material Facts ¶ 6; Answer ¶¶ 18, 20.) According to plaintiff, defendant fails to carry its burden of justifying application of exemption 7(E), and, even if defendant may properly withhold certain portions of documents pursuant to that exemption, defendant has failed to segregate that material. Defendant argues that it properly withheld the documents at issue because disclosure would reveal law enforcement techniques which would likely result in circumvention of the law. Defendant further argues that portions of the OIG manual have been rescinded and are thus beyond the scope of plaintiff's FOIA request.

ANALYSIS

1. Legal Standard

Under rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Concrete Works of Colorado, Inc. v. City and County of Denver, 36 F.3d 1513, 1517 (10th Cir.1994), cert. denied, 514 U.S. 1004, 115 S.Ct. 1315, 131 L.Ed.2d 196 (1995). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works, Inc., 36 F.3d at 1518 (citing Celotex Corp., 477 U.S. at 325, 106 S.Ct. at 2554). The nonmoving party may not rest solely on the allegations in that party's own pleadings, but must instead designate "specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553; Fed.R.Civ.P. 56(e). Only admissible evidence may be considered when ruling on a summary judgment motion. See World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.1985). The factual record must be viewed in the light most favorable to the nonmoving party. Concrete Works, Inc., 36 F.3d at 1518 (citing Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 [10th Cir.1990]). FOIA claims are typically resolved on summary judgment, provided the above standard is satisfied. See KTVY-TV v. United States, 919 F.2d 1465, 1468 (10th Cir.1990). A FOIA defendant may prevail on a motion for summary judgment where it proves that the documents within the FOIA request have been produced or fall within a statutory exemption. See Carney v. United States Dep't of Justice, 19 F.3d 807, 812 (2d Cir.1994); Trenerry v. Dep't of Treasury, 986 F.2d 1430 (table), No. 92-5053, 1993 WL 26813, at *2 (10th Cir. Feb.5, 1993) (unpublished opinion) (citing Miller v. United States Dep't of State, 779 F.2d 1378, 1382-83 [8th Cir.1985]).

2. FOIA & Statutory Exemptions

FOIA provides the public with a right of access to federal agency records. See 5 U.S.C.A. § 552(a) (West 1996 & Supp. 1997). This right is subject to nine exemptions listed in the statute. See 5 U.S.C.A. § 552(b) (West 1996 & Supp.1997). Generally, courts liberally construe FOIA in favor of disclosure. Anderson v. Department of Health and Human Servs., 907 F.2d 936, 941 (10th Cir.1990). The government agency therefore bears the burden of justifying its decision to withhold documents. Johnson v. United States Dep't of Justice, 739 F.2d 1514, 1516 (10th Cir.1984). A court reviews de novo an agency's decision to withhold requested information. Anderson, 907 F.2d at 941. "The district court must determine whether all of the requested materials fall within an exemption to the FOIA and may not simply conclude that an entire file or body of information is protected without consideration of the component parts." Id.

Courts use a Vaughn index to aid review in FOIA cases. This is "a compilation prepared by the government agency ... listing each of the withheld documents and explaining the asserted reason for its nondisclosure." Id. at 940 n. 3 (citing Vaughn v. Rosen, 484 F.2d 820 [D.C.Cir.1973]). A Vaughn index must be adequately detailed to permit the court to determine whether a sufficient factual basis exists to support the agency's refusal to disclose the information at issue. Id. at 942. If the government agency's Vaughn index and affidavits are reasonably clear, specific, and detailed, the court normally affords agency determinations substantial weight. See Gardels v. Central Intelligence Agency, 689 F.2d 1100, 1104-05 (D.C.Cir. 1982); Hayden v. National Security Agency/Central Security Serv., 608 F.2d 1381, 1387 (D.C.Cir.1979). An agency may not, however, rely on documents which provide insufficient detail, lack specificity, and offer only conclusory statements. See Anderson, 907 F.2d at 942; see also PHE, Inc. v. Department of Justice, 983 F.2d 248, 250 (D.C.Cir.1993) ("[A]n affidavit that contains merely a `categorical description of redacted materials coupled with categorical indication of anticipated consequences of disclosure is clearly inadequate.'") (quoting King v. United States, 830 F.2d 210, 217 [D.C.Cir.1987]); Hayden, 608 F.2d at 1387 ("The affidavits will not suffice if the agency's claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping."). An affidavit should demonstrate logically how the release of specific information might create a risk of...