McKinley v. Fed. Deposit Ins. Corp.

• Decision Date: 07 August 2017
• Docket Number: No. 15–cv–1764 (KBJ),15–cv–1764 (KBJ)
• Citation: 268 F.Supp.3d 234
• Parties: Vern MCKINLEY, Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant.
• Court: U.S. District Court — District of Columbia

268 F.Supp.3d 234

Vern MCKINLEY, Plaintiff,

v.FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant.

No. 15–cv–1764 (KBJ)

United States District Court, District of Columbia.

Signed August 7, 2017

Michael Bekesha, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Daniel Harold Kurtenbach, Federal Deposit Insurance Corporation, Arlington, VA, William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER DENYING CROSS MOTIONS FOR SUMMARY JUDGMENT WITHOUT PREJUDICE AND REQUIRING SUPPLEMENTAL SUBMISSIONS

KETANJI BROWN JACKSON, United States District Judge

In cases brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, the affidavits or declarations that the government files in support of its motion for summary judgment must be "non-conclusory[,]" SafeCard Servs., Inc. v. S.E.C. , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted), and describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrat[ing] that the information withheld logically falls within the claimed exemption," Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). The agency's duty to provide a detailed, non-conclusory description of its withholdings arises from the fact that "the agency in a FOIA case has both the burden of proof and all the evidence," Elec. Frontier Found. v. Dep't of Justice , 826 F.Supp.2d 157, 164 (D.D.C. 2011) (internal quotation marks and citations omitted), and the agency's fulfillment of this disclosure duty serves "three interrelated functions ... : (a) to force the agency to carefully analyze any information withheld; (b) to enable the district court to fulfill its duty of evaluating the applicability of claimed exemptions; and (c) to empower the plaintiff to present his case to the district court[,]" Budik v. Dep't of Army , 742 F.Supp.2d 20, 35 (D.D.C. 2010) (citing Keys v. Dep't of Justice , 830 F.2d 337, 349 (D.C. Cir. 1987) ).

Before this Court at present are cross-motions for summary judgment in the instant FOIA case, which center on the parties' disagreement about whether or not Defendant Federal Deposit Insurance Corporation ("FDIC") has provided sufficient support for its invocation of FOIA Exemptions 4, 5, and 8 to withhold information in response to two document requests that Plaintiff Vern McKinley submitted to the agency. (See Def.'s Mot. for Summ. J. ("Def.'s Mot."), ECF No. 10, at 4 ("Because these records fall squarely within the requirements of FOIA Exemptions 4, 5, and 8, the FDIC properly withheld these documents."); Pl.'s Mem. in Opp'n to Def.'s Mot. & in Supp. of Pl.'s Cross–Mot. for Summ. J. ("Pl.'s Mot."), ECF No. 12–1, at 6 ("The FDIC has not come close to satisfying its burden of demonstrating that all responsive records are properly being withheld.").)¹ For the reasons explained below, this Court agrees with Plaintiff that the FDIC's Vaughn index and supporting declaration manifestly fail to assert the government's reasons for withholding the documents at issue with sufficient detail; therefore, both parties' cross-motions will be DENIED WITHOUT PREJUDICE , and the FDIC will be ordered to file a supplemental declaration and/or an updated Vaughn index that addresses the issues identified in this Opinion. This Court will also require the government to submit all of the documents that remain at issue to the Court for in camera review.

I. BACKGROUND

On February 13, 2015, Vern McKinley submitted two FOIA requests to the FDIC, seeking access to "all records regarding consideration by the FDIC of placing Citibank into receivership that occurred between October 2008 and April 2009[,]" and "all records regarding any analysis by the FDIC of Citibank's solvency between October 2008 and April 2009." (Def.'s Statement of Material Facts Not in Dispute ("Def.'s Material Facts"), ECF No. 10–1, ¶¶ 1–3 (internal quotation marks and citations omitted).) In response to McKinley's FOIA requests, FDIC staff conducted searches for responsive documents in the FDIC's Division of Resolutions and Receiverships, as well as the Division of Risk Management Supervision. (See id. ¶ 4.) The FDIC's searches yielded 19 responsive records. (See id. ¶ 5.)

In a letter dated May 5, 2015, the FDIC informed McKinley that the agency had identified 19 records responsive to McKinley's requests, but that the agency had determined that all of the records were exempt from disclosure pursuant to FOIA Exemptions 4, 5, and 8, and that none of the documents contained any reasonably segregable, non-exempt information. (See id. ¶¶ 5, 8.)² Approximately one month later, McKinley submitted an administrative appeal of the agency's decision, in which he objected to the lack of information that was "cited to justify the claims of these exemptions[,]" and he further argued that the agency had failed to meet its burden of demonstrating that no reasonably segregable information existed within the documents that had been withheld. (Pl.'s Admin. Appeal Letters ("Pl.'s Appeal"), Ex. 3 to Def.'s Mot., ECF No. 10–3, at 11.) McKinley also maintained that the FDIC had waived the stated exemptions "through prior disclosure of the substance of the requested records." (Id. at 12.) The FDIC denied McKinley's appeals in their entirety on July 9, 2015 (see Def.'s Material Facts ¶ 12), and approximately three months later, McKinley initiated the instant lawsuit in order "to compel compliance with" the FOIA (Compl., ECF No. 1, at 1).

Shortly after McKinley filed the instant action, and in an effort to narrow the issues before the Court, the FDIC agreed to provide a Vaughn index to McKinley. (See Def.'s Material Facts ¶ 13.) McKinley reviewed this listing, and notified the Court that he now challenges only twelve out of the agency's nineteen original record withholdings. (See Joint Status Report, ECF No. 9, ¶ 5.) In addition, McKinley has further clarified that he is not mounting any challenge to the adequacy of the agency's search. (See Def.'s Material Facts ¶ 15.)

On March 16, 2016, the FDIC filed a motion for summary judgment, to which it attached both a statement of material facts as to which there is no genuine dispute and a supporting declaration from the supervisor of the FDIC's FOIA group. (See Def.'s Mot.; Def.'s Material Facts; Decl. of Hugo A. Zia ("Zia Decl."), Ex. to Def.'s Mot., ECF No. 10–2, at 1.) Also attached to the FDIC's motion is a Vaughn index that is formatted as a table with 19 entries that correspond to the 19 withheld documents—seven rows of which are shaded in gray to indicate the withholdings that McKinley is no longer challenging. (See Vaughn Index, Ex. 5 to Def.'s Mot., ECF No. 10–3, at 22–31.) In its summary judgment motion, the FDIC first argues that McKinley failed to exhaust the applicable administrative appeal process. (See Def.'s Mot. at 8 ("[Plaintiff] challenged the FDIC's failure to provide detailed explanations of the reasons for withholding records from disclosure[,]" but "did not raise a [substantive] challenge to any of the three specific exemptions claimed by the FDIC in denying his FOIA requests").) The agency further contends that it appropriately withheld the twelve responsive records at issue pursuant to Exemptions 4, 5, and 8, and also that the responsive records contain no non-exempt, segregable information. (See id. at 9–15.)

McKinley filed a combined brief in opposition and cross-motion for summary judgment on April 14, 2016. (See generally Pl.'s Mot.) In that filing, McKinley insists that he properly exhausted all administrative remedies (see id. at 9–10), and he also maintains that the FDIC has not provided sufficient support for its invocation of Exemptions 4, 5, and 8 (see id. at 10–14). (See also Pl.'s Reply in Supp. of Pl.'s Cross–Mot. for Summ. J. ("Pl.'s Reply"), ECF No. 15, at 5 ("[T]he FDIC failed to provide the Court with the information necessary for it to determine whether the records responsive to McKinley's FOIA requests are being properly withheld.").) In addition, McKinley argues that the agency has officially acknowledged the information that it has withheld, and therefore, disclosure is required notwithstanding any otherwise applicable exemptions. (See Pl.'s Mot. at 15–17.)

On May 23, 2016, the parties' cross-motions became ripe for this Court's review. (See Def.'s Mot.; Pl.'s Mot.; Def.'s Consolidated Reply in Supp. of its Mot. & Opp'n to Pl.'s Cross–Mot. for Summ. J. ("Def.'s Reply"), ECF No. 13; Pl.'s Reply.)

II. LEGAL STANDARD

The "FOIA generally requires the disclosure, upon request, of records held by a federal government agency[.]" Gov't Accountability Project v. FDA , 206 F.Supp.3d 420, 428 (D.D.C. 2016) (alteration in original) (internal quotation marks and citation omitted). However, the FOIA also includes nine exemptions that permit agencies to withhold certain information from disclosure. See Judicial Watch, Inc. v. Dep't of the Treasury , 796 F.Supp.2d 13, 23 (D.D.C. 2011). These exemptions are to be construed narrowly, see Dep't of the Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), and the government bears the burden of demonstrating that any withheld information falls within the claimed exemptions, see Maydak v. Dep't of Justice , 218 F.3d 760, 764 (D.C. Cir. 2000).

Significantly for present purposes, to prevail on a motion for summary judgment that claims that an agency has satisfied its duties under the FOIA, "the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements." Weisberg v. Dep't of Justice , 627 F.2d 365, 368 (D.C. Cir. 1980) (internal quotation marks and citation omitted); see also McKinley v. FDIC , 756 F.Supp.2d 105, 111 (D.D.C. 2010) ("[T]he burden of proof is always on the agency to demonstrate that it has fully discharged its obligations under the FOIA."). To satisfy its...