KOLLAR-KOTELLY, District Judge.
The Animal Legal Defense Fund ("ALDF"), a non-profit membership organization based in California, has brought an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to compel the Department of the Air Force to release documents pertaining to its plans to divest itself of over 140 chimpanzees. Pending before the Court are the Air Force's Motion for Summary Judgment, the ALDF's opposition thereto, and the Air Force's reply. Additionally, ALDF has moved to have this Court conduct an in camera review of the documents that the Air Force has withheld. That motion also has precipitated opposition and reply briefs from the respective parties. For the reasons set forth below, the Court denies the Air Force's Motion for Summary Judgment and the ALDF's Motion for in camera Inspection.
To facilitate its aeronautical research during the 1950s and 1960s, the Air Force assembled and maintained a colony of chimpanzees that it used to conduct various experiments. While continuing to harbor this collection of chimpanzees and their offspring, beginning in 1970, the Air Force elected to permit private and public organizations to use the animals for nonmilitary experiments. By 1991, however, the Air Force Chief of Staff had determined that it was no longer "appropriate to continue maintaining an Air Force owned chimpanzee colony." Def.'s Mot. for Summ. J. ("Def.'s MSJ"), Decl. of Arthur L. Money ¶ 9. Organizing what became known as the Chimpanzee Divestment Tiger Team, the Chief of Staff sought studies and recommendations on how to dispose of the chimpanzees. During the summer of 1993, the Air Force
On April 27, 1995, the ALDF submitted its FOIA request to the Air Force. Six months later, the Air Force provided only thirty-two pages of responsive documents to the ALDF; it claimed that, though additional responsive documents existed, they were being withheld pursuant to Exemptions 4 and 5. See 5 U.S.C. § 552(b)(4)-(5). By letter dated November 28, 1995, the ALDF appealed the Air Force's denial, which the Air Force did not acknowledge until May 2, 1996. Without having received any further response from the Air Force, the ALDF filed the present action on June 27, 1996. Several months after the ALDF initiated litigation, the Air Force released an additional 283 pages of redacted and unredacted documents. The Air Force maintains that it has validly withheld or redacted information pursuant to Exemptions 4, 5, and 6. See id. § 552(b)(4)-(6).
Unless requested records fit within one or more of nine specific exemptions, FOIA "requires agencies to comply with requests to make their records available to the public." Oglesby v. United States Dep't of Army, 79 F.3d 1172, 1176 (D.C.Cir.1996). This Circuit has "repeatedly underscored, however, that the agency invoking a FOIA exemption bears the burden of `establishing its right to withhold evidence from the public.'" Senate of the Commonwealth of P.R. v. United States Dep't of Justice, 823 F.2d 574, 585 (D.C.Cir.1987) (quoting Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 861 (D.C.Cir.1980)) (brackets omitted). Moreover, even when a document falls properly within the ambit of an exemption, the agency must nevertheless release "any reasonably segregable portion" after deleting the nondisclosable portions. See 5 U.S.C. § 552(b).
To enable this Court to conduct a meaningful review of the propriety of an agency's claimed exemptions, the D.C. Circuit has held that "the Act also requires an agency in possession of material it considers exempt from FOIA to provide the requestor with a description of each document being withheld, and an explanation of the reason for the agency's nondisclosure." Oglesby, 79 F.3d at 1176. Accordingly, the Vaughn index and "the agency affidavits must ... disclos[e] as much information as possible without thwarting the exemption's purpose." King v. U.S. Department of Justice, 830 F.2d 210, 224 (D.C.Cir.1987). "The agency must provide a Vaughn affidavit explaining its reasons for withholding the documents so as to alert the FOIA requester to the nature of the documents and the claimed exemptions and allow the requester to challenge the agency's assertions." Spirko v. United States Postal Serv., 147 F.3d 992, 997 (D.C.Cir.1998).
A. Exemption 5
Asserting the deliberative-process privilege, the work-product privilege, and the attorney-client privilege, the Air Force has withheld several documents under the rubric of Exemption 5, which protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency." 5 U.S.C. § 552(b)(5). Pellucid and well-established precedent in this Circuit, however, compels this Court to deny the Air Force's motion for summary judgment. First, the Air Force has failed to submit a sufficiently detailed Vaughn index and agency affidavit that demonstrate as a matter of law that it is entitled to judgment on its Exemption 5 claims. Second, by averring in the most conclusory terms
1. Deliberative Process
The deliberative-process privilege permits an agency to withhold "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). To satisfy its burden of establishing its "right to withhold evidence from the public," Coastal States, 617 F.2d at 861, the Air Force must demonstrate that two elements exist within each of the documents withheld under the deliberative-process privilege: (1) the material must be predecisional and (2) it must be deliberative. See Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C.Cir.1997); Army Times Publishing Co. v. Department of the Air Force, 998 F.2d 1067, 1070 (D.C.Cir.1993); Wolfe v. Department of Health & Human Servs., 839 F.2d 768, 774 (D.C.Cir.1988) (en banc). To be predecisional, the document must "precede[ ], in temporal sequence, the `decision' to which it relates," Hinckley v. United States, 140 F.3d 277, 284 (D.C.Cir.1998) (quoting Senate of the Commonwealth of P.R., 823 F.2d at 585); to be deliberative, it must "reflect[ ] the give-and-take of the consultative process." Id. "Both requirements stem from the privilege's `ultimate purpose, which is to prevent injury to the quality of agency decisions' by allowing government officials freedom to debate alternative approaches in private." In re Sealed Case, 121 F.3d 729, 737 (D.C.Cir.1997) (quoting Sears, 421 U.S. at 151, 95 S.Ct. 1504) (internal brackets omitted).
The Court need not reach the predecisional issue
Despite these clear requirements, the Air Force offers not a single description of any of the withheld documents. All that the Air Force has provided the ALDF and this Court are a conclusory affidavit and copies of the redacted
"Exemption 5, and the deliberative process privilege, reflect the legislative judgment that `the quality of administrative decisionmaking would be seriously undermined if agencies were forced to operate in a fish-bowl because the full and frank exchange of ideas on legal or policy matters would be impossible'" Tax Analysts, 117 F.3d at 617 (quoting Mead Data Central, Inc. v. U.S. Department of the Air Force, 566 F.2d 242, 256 (D.C.Cir.1977)). Accordingly, the Air Force must demonstrate that disclosing the withheld documents "would actually inhibit candor in the decision-making process if made available to the public." Army Times, 998 F.2d at 1072. To underscore the inadequacy of the Air Force's evidence on this point, it is useful to examine a passage from this Circuit's holding in Army Times, which rejected the Air Force's conclusory claims of damage to agency candor:
Id. at 1070. Strikingly similar to the defective affidavit submitted by Major Roomsburg in Army Times, the declaration of Assistant Secretary of the Air Force, Arthur L. Money, in the case at bar states: "Public disclosure of the Air Force's deliberations about divestment issues would have a chilling effect on the free and frank discussions necessary to arrive at an appropriate solution for the chimpanzees' divestment from the Air Force." Def.'s MSJ, Decl. of Money ¶ 22. Such a conclusory assertion, especially when coupled with the Air Force's failure to describe any of the documents and explain how they factored into the deliberative process, militates against granting summary judgment to the Air Force.
In Senate of the Commonwealth of Puerto Rico, this Circuit, though expressly disclaiming any attempt to provide "an encompassing definition of `conclusory assertion,'" noted that "it is enough that where no factual support is provided for an essential element of the claimed privilege or shield, the label `conclusory' is surely apt." Senate of the Commonwealth of P.R., 823 F.2d at 585 (Ginsburg, Ruth Bader, J.). Interestingly, although in that case the Department of Justice had provided "each document's issue date, its author and intended recipient, and the briefest of references to its subject matter," id., the D.C. Circuit still found the agency's proof to be "conclusory." Here, the Air Force has not even done that much; nothing in
FOIA mandates that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt." 5 U.S.C. § 552(b). Put to practice, "[i]t has long been the rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Mead Data Central, Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 260 (D.C.Cir.1977). So important is the segregability inquiry under FOIA that "it is error for a district court to simply approve the withholding of an entire document without entering a finding on segregability, or the lack thereof." Schiller v. NLRB, 964 F.2d 1205, 1210 (D.C.Cir.1992) (quoting Church of Scientology v. U.S. Department of the Army, 611 F.2d 738, 744 (9th Cir.1979)).
In his declaration, Money attempts to dispose of the segregability issue with the single averment that no withheld document was "reasonably segregable because it was so intertwined with protected material that segregation was not possible or its release would have revealed the underlying protected material." Def.'s MSJ, Money Decl. ¶ 17. This unsophisticated parroting of FOIA's statutory language is patently insufficient. Such a blanket, conclusory statement defies the well-established precedent that governs an agency's obligation to segregate nonexempt material:
King v. U.S. Department of Justice, 830 F.2d 210, 224 (D.C.Cir.1987) (emphasis added). This Circuit recently has held that when faced with a conclusory agency affidavit claiming that all reasonably segregable information has been disclosed, "[n]either the [plaintiff] nor the court ... is obliged to accept that conclusion without more specification of the types of material in the file." Kimberlin v. DOJ, 139 F.3d 944, 950 (D.C.Cir.1998) (emphasis added). Like the declaration of Money, the agency declaration in Kimberlin failed to "specify in detail which portions of the document[s] are disclosable and which are allegedly exempt." Vaughn, 484 F.2d at 827.
Moreover, that the documents requested by the ALDF spring from a potentially controversial policy does not insulate the Air Force from FOIA's segregability command or permit it to submit vague, nonspecific declarations about segregability. In Armstrong v. Executive Office of the President, 97 F.3d 575 (D.C.Cir.1996), a case that touched upon sensitive foreign intelligence and national security, the D.C. Circuit affirmed the district court's determination that the government affidavits demonstrated with "reasonable specificity" why the documents could not be further segregated. See id. at 578. There, however, the government heeded Schiller's rule that "requires the agency to correlate claimed exemptions with particular passages [within each document]." Id. In contrast to the Air Force's submissions in this case, in Armstrong, the government justified its inability to segregate by describing the documents' general subject matter and the reasons why further segregation was impossible. In one document, for example, the government averred that it could not segregate any portion "because it discusses throughout intelligence data as well as cooperative counter-terrorist actions flowing from that intelligence." Id. The Circuit also recognized the sufficiency of the agency's rationale for refusing to segregate in another document: "This note consists of an extensive review of numerous intelligence cables, revealing
By no means rich with detail or lavish with compromising revelations, the government's affidavits in Armstrong were "reasonably specific" to permit the district court to make intelligent findings about segregability as to each document withheld. No such "specificity" lurks within Money's declaration or the corresponding Vaughn index in this case. Therefore, if the Air Force continues to withhold documents from the ALDF based on Exemption 5's deliberative-process privilege, it shall strictly adhere to these instructions: First, for each document in which information has been redacted or withheld based on Exemption 5, the Air Force shall "`specify in detail which portions of the document are disclosable and which are allegedly exempt.'" Schiller, 964 F.2d at 1210 (quoting Vaughn, 484 F.2d at 827). Second, in doing so, the Defendant shall not offer one finding for all documents; rather, the Defendant shall make specific findings for each document withheld. The Air Force is advised that it should consider the agency affidavits in Armstrong to be a model that it should emulate when describing the contents of documents and the ability to segregate redacted material further. Finally, the Air Force shall "correlate claimed exemptions with particular passages." Schiller, 964 F.2d at 1209.
3. Work-product and attorney-client privileges
The Air Force invoked the work-product privilege component of Exemption 5 to withhold one document, and invoked the attorney-client privilege to withhold a different document. Both claims, like the Air Force's deliberative-process claim, fail for lack of proof on essential elements. Looking initially to the work-product privilege, that doctrine "does not extend to every written document generated by an attorney." Jordan v. United States Dep't of Justice, 591 F.2d 753, 775 (D.C.Cir.1978) (en banc). Rather, its protections extend only to documents that have been prepared "in contemplation of litigation." Sears, 421 U.S. at 154, 95 S.Ct. 1504; Coastal States, 617 F.2d at 864. Money's declaration devotes only a single, spare sentence to justify the Air Force's work-product claim: "In addition to the deliberative process privilege, and the attorney-client privilege, attorney work product material was withheld in order to protect documents and other memoranda prepared by an attorney in contemplation of litigation." Def.'s MSJ, Money Decl. ¶ 24. This Circuit has previously found inadequate an agency's conclusory assertion that a withheld document was prepared by attorneys "in anticipation of litigation." Senate of the Commonwealth of P.R., 823 F.2d at 586. By failing to describe even in the most general of details the document's subject matter or identifying the litigation that the agency anticipated — that is to say, by failing to provide a single fact — the Air Force may not obtain judgment as a matter of law on this claim.
Turning to the attorney-client privilege, this Circuit has held that the privilege protects confidential communications from clients to their attorneys made for the purpose of securing legal advice or services. In re Sealed Case, 737 F.2d 94, 98-99 (D.C.Cir.1984). "In the governmental context, the `client' may be the agency and the attorney may be an agency lawyer." Tax Analysts, 117 F.3d at 618. To prevail on its attorney-client privilege claim, therefore, the Air Force must establish that the information conveyed formed part of a confidential communication to or by an attorney in the course of a professional relationship. See Mead Data Central, 566 F.2d at 258. Again, Money's declaration simply paraphrases in conclusory terms the formal legal requirements: "[I]nformation concerning confidential communication between an Air Force attorney and her client relating to a legal matter for which the Air Force sought
B. Exemption 4
Exemption 4 protects from disclosure "trade secrets and commercial or financial information obtained from a person [that are] privileged or confidential." 5 U.S.C. § 552(b)(4). Invoking Exemption 4, the Air Force withheld two documents, each of which allegedly is a proposal for divestment tendered in confidence to the Air Force by Coulston International Corporation ("CIC"). "The test for whether information is `confidential' depends in part on whether the information was voluntarily or involuntarily disclosed to the government." Bartholdi Cable Co. v. FCC, 114 F.3d 274, 281 (D.C.Cir.1997). Where the information was disclosed voluntarily, it will be considered confidential "if it is of a kind that would customarily not be released to the public by the person from whom it was obtained." Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 879 (D.C.Cir.1992) (en banc).
In its Motion for Summary Judgment, the Air Force claims that because CIC submitted these proposals voluntarily, instead of under government compulsion, the documents were properly withheld pursuant to Exemption 4 based on Critical Mass. Although Critical Mass fashioned a less stringent standard to justify withholding documents that have been voluntarily submitted to government agencies, it certainly did not liberate agencies from their burden of proving that all essential elements of the exemption exist. To prevail under the Critical Mass standard, the agency must demonstrate that the withheld documents: (1) contain financial or commercial information; (2) were submitted voluntarily; and (3) are "confidential"; that is, they are "of a kind that would customarily not be released to the public by the person from whom [they] w[ere] obtained." Id. at 879.
Based on Money's declaration, it is not clear that the Air Force has satisfied any of the three elements. First, though Money states that CIC's proposals contain "commercial and financial information," he never offers any general description of the documents to permit the ALDF or this Court to test the accuracy of that claim. Yet even were that proffer sufficient to satisfy the first prong of Critical Mass, Money's declaration falls short on the remaining two requirements. While the Air Force's Motion for Summary Judgment suggests that CIC submitted its proposals voluntarily, see Def.'s MSJ at 5, nowhere in his declaration does Money aver that CIC's submissions came to the Air Force "voluntarily." Finally, and most glaring, Money never indicates whether CIC does not customarily release such information to the public. It is worth noting that unless Money would have personal knowledge about CIC's customary practices, the Air Force will need an affidavit from an officer of CIC to satisfy this final element of Critical Mass. See FED.R.CIV.P. 56(e) ("Supporting and opposing affidavits shall be made on personal knowledge...."). Accordingly, the Air Force's Motion for Summary Judgment with respect to Exemption 4 is denied.
C. Exemption 6
It is not clear that there exists any controversy over the Air Force's Exemption 6 claims. The Air Force maintains that it has applied Exemption 6 only to withhold the identities of individuals.
D. In camera Inspection is not Warranted
Due largely in part to the Air Force's abject failure to provide a proper Vaughn index and affidavit that describe the withheld documents in sufficient detail and make adequate segregability findings with respect to each document, the ALDF has moved for in camera inspection of several representative documents. Although the ALDF's concerns are understandable, the D.C. Circuit "has repeatedly observed that a district court should not undertake in camera review of withheld documents as a substitute for requiring an agency's explanation of its claimed exemptions in accordance with Vaughn." Spirko v. United States Postal Serv., 147 F.3d 992, 997 (D.C.Cir.1998); see also PHE, Inc. v. DOJ, 983 F.2d 248, 251-53 (D.C.Cir.1993); Schiller, 964 F.2d at 1209; Lykins v. United States Dep't of Justice, 725 F.2d 1455, 1463 (D.C.Cir.1984). Instead,
Spirko, 147 F.3d at 997 (citation omitted).
Because "in camera review should not be resorted to as a matter of course, simply on a theory that `it can't hurt,'" Quiñon v. FBI, 86 F.3d 1222, 1228 (D.C.Cir.1996), the Court denies the ALDF's motion. By permitting the Air Force to submit a more detailed affidavit and Vaughn index in order to comply with the law of this Circuit, the Court advances several salutary interests. First, if the Air Force submits proper documentation, there will be no need to perform an in camera inspection — avoiding the large tax on judicial resources that invariably attends such a procedure. See Quiñon, 86 F.3d at 1228. Second, a proper affidavit and Vaughn index will allow the ALDF to respond intelligently to the Air Force's claimed exemptions, and move for summary judgment in their own right. See id. Finally, to resort to an in camera inspection now might deprive this Court's ultimate decision of "meaningful review by an appellate court." Spirko, 147 F.3d at 997.
Although the Court has denied ALDF's request, let there be no misunderstanding about the Air Force's obligations and this Court's willingness to enforce the provisions of FOIA. As the D.C. Circuit recently held: "If [in its second attempt] the agency fails to provide a sufficiently detailed explanation to enable the district court to make a de novo determination of the agency's claims of exemption, the district court then has several options, including inspecting the documents in camera, requesting further affidavits, or allowing the plaintiff discovery." Spirko, 147 F.3d at 997.
For the foregoing reasons, the Court denies the Air Force's Motion for Summary Judgment. In doing so, the Court does not eschew the substantial burdens and costs that the Air Force will incur. Nonetheless, FOIA articulates a "general philosophy of full agency disclosure," Jordan, 591 F.2d at 755, and therefore
Senate of the Commonwealth of P.R., 823 F.2d at 587 (Ginsburg, Ruth Bader, J.)
An accompanying Order sets forth a briefing schedule that establishes deadlines for the Air Force to submit a detailed affidavit and Vaughn index. It also sets dates by which the parties are to file cross-motions for summary judgment. If the Air Force does not file sufficiently detailed materials, the ALDF may renew its motion for in camera inspection when it files its cross-motion for summary judgment/opposition to the Air Force's motion for summary judgment.
For the reasons expressed in the accompanying Memorandum Opinion, it is, this 16 day of February 1999, hereby
Defendant's Motion for Summary Judgment, Vaughn index, and agency affidavits April 16, 1999 Plaintiff's Cross-Motion for Summary Judgment/Opposition to Defendant's Motion for Summary Judgment May 7, 1999 Defendant's Reply/Opposition to Plaintiff's Motion for Summary Judgment May 21, 1999 Plaintiff's Reply June 4, 1999; and it is