Coastal States Gas Corp. v. Department of Energy

• Decision Date: 30 June 1980
• Docket Number: Civ. A. No. 79-197.
• Citation: 495 F. Supp. 1172
• Parties: COASTAL STATES GAS CORPORATION, Plaintiff, v. DEPARTMENT OF ENERGY, Defendant.
• Court: U.S. District Court — District of Delaware

495 F. Supp. 1172

COASTAL STATES GAS CORPORATION, Plaintiff, v. DEPARTMENT OF ENERGY, Defendant.

Civ. A. No. 79-197.

United States District Court, D. Delaware.

June 30, 1980.

William O. LaMotte, III, and Lawrence A. Hamermesh, Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for plaintiff; J. Todd Shields, Rene P. Lavenant, Jr., and Charles S. Patterson, Jr., Fulbright & Jaworski, Houston, Tex., of counsel.

James W. Garvin, Jr., U. S. Atty., and John X. Denney, Jr., Asst. U. S. Atty., Dept. of Justice, Wilmington, Del., Alice Daniel, Asst. Atty. Gen., Vincent M. Garvey and Stephen E. Hart, Dept. of Justice, Washington, D. C., for defendant.

OPINION

MURRAY M. SCHWARTZ, District Judge.

In this action based upon the Freedom of Information Act ("FOIA" or "the Act"), 5 U.S.C. § 552, plaintiff Coastal States Gas Corporation ("plaintiff" or "Coastal")¹ has moved for partial judgment or, in the alternative, to compel preparation by the defendant Department of Energy ("DOE") of an adequate Vaughn² index. For the reasons set forth below, plaintiff's motion for partial judgment will be granted.

In October, 1978, Coastal submitted a FOIA request to DOE. (Doc. No. 1, Ex. A). After receiving no response to this request from DOE other than two letters granting itself extensions of time, (Doc. No. 1, Ex. B; Doc. No. 73 at B58), Coastal initiated this suit pursuant to 5 U.S.C. § 552(a)(4)(B) in April of 1979. Coastal filed simultaneously with its complaint a motion to compel preparation of an index of all documents asserted by DOE to be exempt from disclosure under FOIA. In filing this motion, Coastal sought to effectuate the procedures established by the U. S. Court of Appeals for the District of Columbia in the landmark case of Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974) ("Vaughn"). Following a conference with the Court, the parties, on May 9, 1979, entered into a Stipulation and Order containing, inter alia, the following provision:

4. Defendant shall, on or before June 22, 1979, file and personally serve upon Plaintiff's counsel an itemized, indexed inventory of every document responsive to Plaintiff's FOIA request which the Defendant asserts to be exempt from disclosure, accompanied by a detailed justification statement covering each refusal to release documents, divided into manageable segments and cross-referenced to the itemized, indexed inventory, which inventory shall specify for each document:

(a) The author(s), to the extent indicated in the document;

(b) The date the document was prepared, to the extent indicated in the document;

(c) The addressee(s), to the extent indicated in the document;

(d) The additional person or persons to whom the document was circulated and/or made available, to the extent indicated in the document;

(e) The subject matter;

(f) The regulation(s) expressly addressed or referred to either by number or by description (for example, "first sale exemption"), to the extent indicated in the document;

(g) The specific exemption(s) claimed to justify withholding each document, correlated specifically to the document or the segregable portion thereof claimed to be exempted from mandatory disclosure (with an explanation as to why exempt material could not be segregated from each document);

(h) A detailed justification of the basis for each claim of exemption;

(i) The specific injury to DOE which release of the document allegedly would create; and

(j) Why the public interest does not favor disclosure of the document.

(Doc. No. 6).

On July 2, 1979, DOE filed its index of documents claimed to be exempt from FOIA disclosure. (Doc. No. 16A). Accompanying this index was the affidavit of Laura Rockwood, an Attorney-Advisor to the Office of Legal Counsel, Office of the General Counsel, DOE, and a large number of documents claimed to be exempt in part, indicating those portions withheld from disclosure. Subsequent to the filing of this index, plaintiff sought discovery from DOE as to the method of its preparation of the index. The DOE filed a motion for a protective order with respect to this discovery. (Doc. No. 23). In its memorandum of points and authorities in support of this motion, the DOE stated:

Defendant has almost completed the preparation of a lengthy affidavit setting forth the facts concerning the initial handling of plaintiff's request; the scope of the extensive search that was undertaken to identify all responsive documents in May and June, 1979; defendant's efforts to segregate for release all information even if properly exempt, which would not be harmful to the government or private firms, if it were made public; and further factual description and justification by categories of the information which the government has withheld. That affidavit will be filed by the defendant no later than Friday, August 3, 1979. (Doc. No. 25 at 15) (emphasis added).

At the oral argument on defendant's motion on August 2, 1979, counsel for the DOE stated:

The Government, as the cases have indicated, is entitled to attempt to provide by means of affidavit information about the document that's being withheld. The Government has prepared and will be filing tomorrow in the Court here an additional affidavit which will be providing additional information about the documents that are being withheld in this lawsuit. And it is the Government's contention that when this affidavit is examined in conjunction with the papers that have already been filed in this case — the other indexes — that there will be more than sufficient information on the public record before the Court and available to Plaintiff's counsel in order for an adversarial dispute about the invocation of the exemptions to take place.

(Doc. No. 34 at 9-10). See also Doc. No. 34 at 12-13, 15.

No such affidavit further substantiating the DOE's assertions of exemption was ever filed. Similarly, the DOE's promised summary judgment motion (Doc. No. 25 at 15; Doc. No. 34 at 10) was never filed. After the defendant's motion for a protective order was denied, discovery ensued and on December 7, 1979, plaintiff filed the instant motion. Oral argument on this motion took place on February 28, 1980. On February 27, 1980, at 3:00 p. m., the DOE filed the affidavit of Christopher M. Was, an attorney in the Office of General Counsel, DOE, (Doc. No. 71) and a "Revised DOE Index of Exempt Documents Other than Documents Exempt Solely Under 5 U.S.C. § 552(b)(4)." (Doc. No. 71A). The revised index had been promised by DOE in its answering brief on plaintiff's motion for partial judgment. (Doc. No. 51 at 4-5). The DOE contends that its filing of the revised index dictates against granting plaintiff's motion for partial judgment. The Court does not agree and will grant plaintiff's motion to strike this index. (Doc. No. 72).

I. DOE'S COMPLIANCE WITH THE MAY 9, 1979 ORDER

DOE apparently does not vigorously contest the plaintiff's view that the July 2 index failed to comply with the May 9 Order, for its statement of the issues presented by this motion, contained in its answering brief, addresses only the propriety of partial judgment as a remedy in this case and whether the DOE should be ordered to prepare a revised index, in light of its promise to do so. Similarly, at oral argument, counsel for DOE, while not conceding that the July index was "woefully inadequate," did not vigorously challenge plaintiff's contention that the index failed to comply with the Court's Order. See, e. g., Doc. No. 73, at B-37, B-40, B-41, B-44, B-51, B-55. (Transcript of hearing on plaintiff's motion for partial judgment). Indeed, implicit in the DOE's filing of a revised index is its belief, expressed several times by counsel, that the July index had many "deficiencies."

An analysis of the July 2 index demonstrates conclusively that the index does not comply with this Court's Order. This index would be of absolutely no help to the Court in determining whether the numerous documents claimed by DOE to be exempt from disclosure are in fact exempt. Moreover, Coastal is unable to adequately argue to the Court from this index that specific documents are not exempt. Thus, the situation present in this case is not unlike that which prompted the District of Columbia Circuit in Vaughn v. Rosen, supra, to establish the indexing requirement in FOIA cases. The party seeking to effectuate the Act's policy of disclosure "is at a loss to argue with desirable legal precision for the revelation of the concealed information," 484 F.2d at 823, in the absence of a factual showing by the government that the exemptions have been properly claimed for specific documents.

As alluded to supra, the DOE does not seriously argue it has complied with the Court's Order, but instead points to the Revised Index filed one day prior to the hearing as "the most compelling reason that such action partial judgment is inappropriate." (Tr. B-32). This contention will be addressed next.

II. PARTIAL JUDGMENT³ AS AN APPROPRIATE REMEDY

The requirement that the government file a detailed index in support of its claims of exemptions under FOIA was established by the courts in response to the difficulties encountered by FOIA plaintiffs in overcoming such assertions. See Vaughn v. Rosen, 484 F.2d 820, 823-24 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). This requirement, announced in Vaughn and refined in many subsequent cases, has been repeatedly described as "critical to effective enforcement of FOIA." Founding Church of Scientology of Washington, D. C., Inc. v. Bell, 603 F.2d 945, 947 (D.C.Cir. 1979). Similarly, the 1974 FOIA Amendments were enacted by Congress in response to the many difficulties and delays in obtaining documents experienced by FOIA requesters and litigants. See generally S.Rep. No. 93-854, 93d Cong., 2d Sess. (1974), reprinted in Staffs of Senate Committee on the Judiciary and House Committee...