Mo. Coalition for Environment v. U.S. Army Corps

• Decision Date: 16 September 2008
• Docket Number: No. 07-2218.,07-2218.
• Citation: 542 F.3d 1204
• Parties: MISSOURI COALITION FOR the ENVIRONMENT FOUNDATION, Appellant, v. UNITED STATES ARMY CORPS OF ENGINEERS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

542 F.3d 1204

MISSOURI COALITION FOR the ENVIRONMENT FOUNDATION, Appellant, v. UNITED STATES ARMY CORPS OF ENGINEERS, Appellee.

No. 07-2218.

United States Court of Appeals, Eighth Circuit.

Submitted: January 14, 2008.

Filed: September 16, 2008.

Aryeh Kaplan (a supervised law student from Washington University), St. Louis, MO, argued (Edward J. Heisel, Interdisciplinary Environmental Clinic, Washington University, St. Louis, MO, on the brief), for appellant.

Jane Rund, Asst. U.S. Atty., St. Louis, MO, argued, for appellee.

Before COLLOTON and SHEPHERD, Circuit Judges, and ERICKSON,¹ District Judge.

ERICKSON, District Judge.

In this action, the Missouri Coalition for the Environment Foundation (the "Coalition") seeks disclosure of a number of documents from the United States Army Corps of Engineers (the "Corps") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The district court granted summary judgment in favor of the Corps on the basis that the deliberative process privilege, 5 U.S.C. § 552(b)(5), exempts all 83 documents responsive to the request. The Coalition appeals from the judgment and we remand for further proceedings.

I.

The Corps conducted a study of flood risk and recurrence on the Mississippi, Missouri, and Illinois Rivers known as the Upper Mississippi River System Flow Frequency Study ("UMRSFFS"). This study's purpose was to identify the 100-and 500-year flood plains. The UMRSFFS commenced in 1997 and its results were released in 2004.

In conducting the UMRSFFS, the Corps instituted a task force to oversee and review the study. The task force was divided into two groups — the Technical Advisory Group ("TAG") and the Inter-Agency Advisory Group ("IAG"). The TAG was comprised of subject matter experts from each of the seven states relevant to the study. The IAG similarly included subject matter experts from each of the seven relevant states but also incorporated experts from other federal agencies, including the Federal Emergency Management Agency, the Bureau of Reclamation, the Tennessee Valley Authority, the National Resource Conservation Service, the United States Geological Survey, and the National Weather Service. On behalf of the Corps, Dr. David Goldman coordinated the IAG and TAG consultants. During the course of the study, the TAG and IAG advised the Corps on the methodology to use for the UMRSFFS and reviewed the Corps' preliminary results. These discussions and other communication took place through meetings, written memoranda, and informally through e-mails.

On April 25, 2005, the Coalition submitted a FOIA request to the Corps.² The FOIA request solicited three broad categories of documents:

1. Each and every document that evidences a communication to or from a member of the Flow Frequency Study Technical Advisory Group, regardless of the other party to the communication, relating to the Flow Frequency Study.

2. All agendas and minutes of meetings of the Flow Frequency Study Technical Advisory Group.

3. Each and every document that evidences disagreement, dispute or concern about the assumption adopted in the Flow Frequency Study that flood flows have been "independently and identically distributed" (aka the assumption of "stationarity").

The Corps did not provide a written response to the FOIA request; however, representatives from each party communicated by phone. No documents were released pursuant to the request. Subsequently, the Coalition filed the instant case in district court. In its answer to the Coalition's complaint, the Corps asserted the requested documents were subject to a FOIA exemption.

The Corps moved for summary judgment and attached to its motion declarations from Corps employees Thomas Minear and Dr. David Goldman and a Vaughn index identifying 83 documents responsive to the Coalition's FOIA request. The Vaughn index identified each document with general distinguishing information such as the date it was generated, the author, the addressees, and whether the document was a memorandum, e-mail, letter, agenda, or meeting notes. A short description was provided for each document (e.g., "E-mail discussing potential methodologies to be used in FFS" or "Letter discussing the FFS analysis methods"). Finally, each and every document was identified as privileged under FOIA Exemption 5, the Deliberative Process Privilege. The Coalition cross-moved for summary judgment, arguing the Corps had failed to prove that the documents were exempt from disclosure. Summary judgment was granted in favor of the Corps.

II.

The Freedom of Information Act is intended "to provide wide-ranging public access to government documents." Miller v. U.S. Dep't of Agric., 13 F.3d 260, 262 (8th Cir.1993). The Act, which permits access "to official information long shielded unnecessarily from public view" is therefore "broadly conceived." EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).

The Act itself provides nine specific statutory exemptions. 5 U.S.C. § 552(b). These are to be narrowly construed to ensure that disclosure, rather than secrecy, remains the primary objective of the Act. Miller v. U.S. Dep't of Agric., 13 F.3d at 262 (citing Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). The Deliberative Process Privilege, FOIA Exemption 5, exempts "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." 5 U.S.C. § 552(b)(5). The purpose of the exemption is designed "to ensure that `open, frank discussions between subordinate and chief' will not be made impossible by the agencies having to `operate in a fishbowl.'" Schwartz v. IRS, 511 F.2d 1303, 1305 (D.C.Cir.1975) (quoting S. Rep. 813, 89th Cong., 1st Sess. (1965)). The goal of the privilege is clear and straightforward: to allow full and frank discussion while preserving the goal of an open government.

This Court reviews a district court's grant of summary judgment in a FOIA case de novo. Missouri, ex rel. Garstang v. U.S. Dep't of Interior, 297 F.3d 745, 749 (8th Cir.2002). Our review is the same as it was for the district court: The record is evaluated in the light most favorable to the nonmoving party to determine whether there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Garstang, 297 F.3d at 749 (citing Miller v. U.S. Dep't of Agric., 13 F.3d at 262). In a FOIA case, summary judgment is available to a defendant agency where "the agency proves that it has fully discharged its obligations under FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester." Miller v. U.S. Dep't of State, 779 F.2d 1378, 1382 (8th Cir.1985) (citing Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C.Cir.1983)).

The Coalition argues that, viewed in the light most favorable to the Coalition, the Corps' Vaughn index is insufficient to show whether the Corps' obligations under FOIA were discharged. As a result, the Coalition posits, some of the documents should have been released. Alternatively, the Coalition proposes that even if the Vaughn index is adequate, some of the documents — in whole or in part — are not subject to the exemption. The Corps contends that it satisfied its FOIA obligations with an adequate Vaughn index that properly demonstrated the documents were subject to the deliberative process privilege.

Vaughn Indices

To help determine whether a governmental agency has discharged its burden under FOIA, Vaughn indices may be used. Crancer v. Dep't of Justice, 999 F.2d 1302, 1305 (8th Cir.1993). The Vaughn court recognized the problems associated with FOIA requests for claimed-exempt documentation, including the requesting party's inability to advocate its position in light of its lack of knowledge and the court's difficulty reviewing massive documentation. Vaughn v. Rosen, 484 F.2d 820, 826 (D.C.Cir.1973). Thus, Vaughn indices serve two purposes: First, to ensure an "effectively helpless" party's right to information "is not submerged beneath governmental obfuscation and mischaracterization" and second, to "permit the court system effectively and efficiently to evaluate the factual nature of disputed information." Id.

This Court has held that a proper Vaughn index

provides a specific factual description of each document sought by the FOIA requester. Specifically, such an index includes a general description of each document's contents, including information about the document's creation, such as date, time, and place. For each document, the exemption claimed by the government is identified, and an explanation as to why the exemption applies to the document in question is provided.

Crancer, 999 F.2d at 1306 (internal citations and quotations omitted). Such an index allows both the district court and the requesting party to evaluate the decision to withhold records and ensure compliance with FOIA. Barney v. IRS, 618 F.2d 1268, 1272 (8th Cir.1980). Here, the Vaughn index contained all necessary identifying information and stated the applicable exemption. Although the index itself failed to explain why the exemption applied to each document, the affidavits provided in conjunction with the index indicated that the documents were deliberative — involving "give-and-take," critiques, comments, and recommendations by members of the two groups.

Generally, a more substantial Vaughn index — one that provides for each document requested a specific explanation as to why an exemption applies — is preferable to a bare bones index. Even so, in camera review of the documentation in this case was not necessary. Barney, 618 F.2d at 1272. In Barney, we held that "in camera inspection should be limited as it is `contrary to the traditional judicial role of deciding issues in an adversarial context upon evidence...