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Segregability

Court of Appeals Decisions

Elec. Priv. Info. Ctr. v. NSA, No. 11-5233, 2012 WL 1654943 (D.C. Cir. May11, 2012) (Brown, J.). Holding: Affirming the district court's grant of summary judgment to NSA on the basis that it properly asserted the Glomar response in conjunction with Exemption 3. Contrary to plaintiff's arguments, the D.C. Circuit concludes that because NSA's affidavit is "sufficient to support [its] Glomar response, requiring NSA to conduct a search and segregability analysis would be a meaningless – not to mention costly – exercise." In contrast to cases where an agency asserting the Glomar response has failed to establish that all the records, if they exist, would be protected by a certain exemption, the D.C. Circuit finds that here "it is apparent that any response to [plaintiff's] FOIA request might reveal whether NSA did or did not consider a partial cybersecurity incident, or the security settings in particular commercial technologies, to be a potential threat to U.S. Government information systems." The D.C. Circuit determines that "[a]ny such threat assessment, as well as any ensuing action or inaction, implicates an undisputed NSA 'function' – its Information Assurance mission – and thus falls with the broad ambit of Section 6 of the National Security Agency Act."

Adamowicz v. IRS, Nos. 10-263 & 10-265, 2010 WL 4978494, 106 A.F.T.R. 2d 2010-7259 (2d Cir. Dec. 8, 2010) (unpublished disposition). The Second Circuit finds that "[p]laintiffs' argument that the IRS failed to release all segregable material [with respect to documents for which the deliberative process was asserted] was not raised below, and is therefore waived." However, the Circuit also notes that the IRS's declaration "shows that to the extent that any purely factual material was withheld under this privilege, it was not segregable from deliberative portions and, further, that the IRS released any deliberative material pertaining to peripheral matters" and that plaintiffs did not assert any evidence of bad faith on the part of the agency.

Covington v. McLeod, No. 09-5336, 2010 U.S. App. LEXIS 14871 (D.C. Cir. July 16, 2010) (Per curiam). The court concludes that "because the exempt and non-exempt information in the grand jury material and proffer statement are 'inextricably intertwined,' any excision of exempt information would impose significant costs on the agency and produce edited documents with little informational value."

Elliott v. USDA, 596 F.3d 842 (D.C. Cir. 2010) (Tatel, J.). Though plaintiff failed to challenge USDA's determination on segregability at the district court, the court was required to rule on the issue itself, and did so, "ultimately concluding that no reasonably segregable portion of the blueprints could be released without presenting a risk of circumvention."

Callaway v. U.S. Dep't of Treasury, No. 08-5480, 2009 U.S. App. LEXIS 11941 (D.C. Cir. June 2, 2009) (unpublished disposition) (per curiam). "[T]here was insubstantial support for the district court's determination that the government has withheld only exempt material, and has segregated and released any responsive, non-exempt materials. The government's affidavits state only legal conclusions regarding segregability, and the Vaughn index does not explain why responsive documents containing information such as names or administrative codes could not be redacted and released."

District Court Decisions

Georgacarakos v. FBI, No. 11-1655 (JDB), 2012 WL 6210119 (D.D.C. Dec. 12, 2012) (Bates, J.). Holding: Granting defendant's motion for summary judgment."[T]he Court finds that the agency has redacted only what was necessary to protect the exempt information and has explained the basis for the redactions."

Concepcion v. U.S. Customs and Border Prot., No. 10-0599, 2012 WL 6019299 (D.D.C. Dec. 4, 2012) (Jackson, J.). Holding: Granting Customs and Border Protection's motion for summary judgment.The court finds that "[Customs and Border Protection's] declaration, coupled with a copy of the redacted Passenger Activity record, are sufficient to establish that all reasonably segregable information has been disclosed to plaintiff." Customs and Border Protection's declarant stated that she "'reviewed the document determined to be responsive [to plaintiff's FOIA request], line-by-line, to identify information exempt from disclosure or for which a discretionary waiver could apply.'"

Fox News Network, LLC v. Dep't of Treasury, No. 09 Civ 3045(FM), 2012 WL 5931808 (S.D.N.Y. Nov. 26, 2012) (Mass, Mag. J.). Holding: Granting in part and denying in part Treasury's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment. The court's in camera review reveals that some text is segregable because it "explain[s] a decision previously made by the agency" but some "explanation of past decisions contained in the redacted material is intertwined with the drafter's assessment of the unfolding events…[and] is properly redacted."

ACLU of N.J. v. DOJ, No. 11-2553, 2012 WL 4660515 (D.N.J. Oct. 2, 2012) (Salas, J.). Holding: Granting defendants' motions for summary judgment; denying plaintiff's motions for summary judgment. The court finds that all reasonably segregable information has been released. It notes that "Defendants go through all of the documents Plaintiff contends are segregable and explains why each are not … Based on the detailed factual recitations in the [FBI's] declarations and Defendants' briefs, the Court finds that Defendants have met their burden."

Skurow v. DHS, No. 11-1296, 2012 WL 4380895 (D.D.C. Sept. 26, 2012) (Sullivan, J.). Holding: Granting defendants' motion for summary judgment; denying plaintiff's cross-motion for summary judgment and determining that plaintiff is not entitled to attorney's fees. The court finds that "defendants have redacted only what was necessary to protect the exempt information, and defendants are not withholding any documents in full."

ACLU v. CIA, No. 11-0933, 2012 WL 4356338 (D.D.C. Sept. 25, 2012) (Jackson, J.). Holding: Granting defendant's motion for summary judgment as to all but one document and granting plaintiff's cross-motion for summary judgment as to the one document and remanding for further agency review. With regard to segregability, the court concludes that it need not determine whether certain "limited purely factual portions" should be segregated because it has already found that the information was properly withheld under Exemptions 1 and 3. In addition, the court's own analysis of whether portions of documents had already been officially acknowledged led it to the conclusion that "only document number 3 requires a more detailed review by the agency."

Elec. Frontier Found. v. DOJ, No. 11-939, 2012 WL 4319901 (D.D.C. Sept. 21, 2012) (Leon, J.). Holding: Granting defendant's motion for summary judgment.The court determines that "although only portions of the OLC Opinion were withheld under Exemption 1, the entirety of the OLC Opinion was withheld under Exemption 5, leaving nothing significant that could be disclosed in a redacted format."

Elec. Frontier Found. v. DOJ, No. 10-641, 2012 WL 3900737 (D.D.C. Sept. 10, 2012) (Walton, J.). Holding: Granting the defendant's motion for summary judgment on the withholdings, and granting the defendant's motion for summary judgment in part as to the segregability of the documents. The court deems the defendant's submissions, detailing how "factual material in these documents is privileged because it is either 'inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government's deliberations'…or 'reflects an "exercise of discretion and judgment calls'" sufficient to establish that this material is protected by the deliberative process privilege. These materials contain the "views and reactions," "personal opinions about various topics, actions, and individuals," and "subjective impressions and recommendations regarding the HLCG deliberations" that cannot be "extricated neatly." The court concludes that "the [defendant] has generally carried its burden showing the nonsegregability of its withholdings – save for one exception." As to this one document, the defendant's declaration "does not give a detailed justification for why there was no segregable information in this particular document." The defendant must "better explain its segregability efforts regarding this document."

Hooker v. HHS, No. 11-1276, 2012 WL 3574061 (D.D.C. Aug. 21, 2012) (Jackson, J.). Holding: Denying, in part, defendants' motion for summary judgment as to the adequacy of its search for certain correspondence and ordering the release of additional segregable material withheld under Exemption 6; granting, in part, defendants motion for summary judgment as to adequacy of their search for certain other documents, and their withholdings under Exemptions 5 and 6; treating as conceded withholdings and redactions of four articles under the Copyright Act of 1976, where plaintiff failed to challenge them; and concluding defendants' properly released all reasonably segregable non-exempt information that was withheld pursuant to Exemption 5. Based on its in camera review, the court concludes that it "is satisfied that defendants complied with their duty to segregate exempt from non-exempt information in the records withheld or redacted under Exemption 5." However, the court determines that "defendants' redactions and withholdings under Exemption 6 were excessive" and orders them to segregate any non-exempt material for release, and to provide the court with a supplemental declaration on this point.

Inst. for Pol'y Stud. v. CIA, No. 06-960, 2012 WL 3301028 (D.D.C. Aug. 14, 2012) (Lamberth, J.). Holding: Granting, in part, defendants' motion for summary judgment on the basis that certain withholdings under Exemptions 1, 2, 3 and 7(E) were proper and that plaintiff conceded other withholdings under Exemptions 2, 3, 6, 7(C), 7(D) and 7(F), and that all reasonably segregable material was released; denying plaintiff's motion to strike portions of the declarations; and ordering CIA to conduct searches for responsive records in three different directorates which were not initially searched. The court finds that defendant's assertion that "a 'line-by-line review was conducted for all documents at issue to identify and release reasonably segregable, non-exempt portions of documents'" coupled with the descriptions provided in the VaughnIndex, "provide sufficient detail for the justification to withhold the material."

Hall v. CIA, No. 04-814, 2012 WL 3143839 (D.D.C. Aug. 3, 2012) (Lamberth, J.). Holding: Granting, in part, CIA's renewed motion for summary judgment on the basis that its searches for certain responsive records were adequate, that certain withholdings under Exemptions 1, 3, 5 and 6 were proper, and that it released all reasonably segregable material; ordering CIA to conduct searches for other records; concluding that CIA must take affirmative steps with respect to certain referred records; ordering release of certain information withheld under Exemption 6; determining DOD must further justify certain Exemption 3 withholdings; and denying plaintiffs' requests for discovery and for in camera review. "Because the CIA has adequately demonstrated with reasonable specificity that no withheld documents contain reasonably segregable factual information, both in the records released before the [court's earlier] Order and after, the Court holds that the CIA has met its segregability requirements under FOIA."

Pub.Emp's for Envtl. Resp. v. Off.of Sci. & Tech. Pol'y, No. 11-1518, 2012 WL 3126778 (D.D.C. July 30, 2012) (Leon, J.). Holding: Granting defendant's motion for summary judgment on the basis that its withholdings under Exemptions 4 and 5 were appropriate, and that it released all reasonably segregable material. The court finds that "contrary to [plaintiff's] contentions, it is evident that OSTP released all reasonably segregable non-exempt material" where its declaration "adequately states, 'OSTP conducted a careful, line-by-line review of each document withheld in full and in part to determine that there was no reasonably segregable factual or non-deliberative information responsive to plaintiff's request'" and its "Vaughn Index describes in detail all of the redacted portions of the documents."

Judicial Watch, Inc. v. DHS, No. 11-606, 2012 WL 3065390 (D.D.C. July 30, 2012) (Kessler,J.). Holding: Granting DHS's motion for summary judgment on the basis that its withholdings pursuant to the deliberative process privilege were proper, and that it released all reasonably segregable material. The court holds that DHS released all reasonably segregable information where its declarations "indicate that all withheld documents were reviewed line-by-line to identify reasonably segregable material" and its "Vaughn Indices demonstrate DHS and ICE's efforts to separate the segregable information identified in each withheld or redacted record." The court concludes that these submissions "'are sufficient to fulfill the agency's obligation to show with 'reasonable specificity' why a document cannot be further segregated.'"

ACLU v. U.S. Dep't of State, No. 11-1072, 2012 WL 2989833 (D.D.C. July23, 2012) (Kollar-Kotelly,J.). Holding: Granting the State Department's motion for summary judgment on the basis that it properly withheld the requested information pursuant to Exemption 1 and released all reasonably segregable information; and denying plaintiff's cross-motion for summary judgment and its request for in camera review. Based upon the State Department's declaration which described its review of the records, along with the court's "searching review of the documents that the State Department has withheld only in part, the Court finds that the State Department has adequately demonstrated, in reasonable and non-conclusory terms, that all non-exempt material has either been disclosed to [plaintiff] or is not reasonably segregable."

Island Film, S.A. v. U.S. Dep't of the Treasury, No. 08-286, 2012 WL 2389990 (D.D.C. June26, 2012) (Roberts, J.). Holding: Granting, in part, defendant's motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemptions 4, 5, 6, 7(C) and 7(D) and conducted a reasonable search, the adequacy of which was not challenged by plaintiff; ordering defendant to provide additional submissions to justify withholding information for which it invoked Exemption 2, which is precluded by Milner, and to support certain withholdings under Exemptions 7(D) and 7(E); and directing defendant to provide segregbility analysis for certain specific documents withheld in full, but determining that defendant released all reasonably segregable portions from the remaining documents. The court orders Treasury to "supplement its Vaughn index and supporting affidavit to reflect whether Treasury could disclose portions of [certain] documents [withheld in full] in the event that its supplemental justifications for invoking Exemptions 7(D) and 7(E) are found to be insufficient." However, the court concludes that Treasury has adequately established that it released all reasonably segregable portions for the remaining documents where its "Vaughn index is sufficiently comprehensive, describing the exemptions invoked and the parts of the document to which the exemptions apply."

Am. Immigr. Laws.Ass'n v. DHS,No. 10-1224, 2012 WL 1066499 (D.D.C. Mar.30, 2012) (Sulllivan,J.). Holding: Concluding that plaintiff has failed to establish that the withheld information is in the public domain; determining that defendant adequately supported its Exemption 7(E) withholdings; and denying, without prejudice, defendant's motion for summary judgment insofar as it did not demonstrate that it disclosed all reasonably segregable information, and ordering defendant to supplement its submissions on this point. The court concludes that the agency's "submissions fail to describe the proportion of exempt to non-exempt information and fail to establish that any non-exempt information is 'inextricably intertwined' with exempt information." The court also determines that USCIS must explain any differences between the withheld information and other information that the agency has officially disclosed in other formats. The court orders defendant to submit revised Vaughn submissions in order to address the issue of segregability.

Abdelfattah v. U.S. Immigr.& Customs Enforcement, No. 07-1858, 2012 U.S. Dist. LEXIS 44387 (D.D.C. Mar.30, 2012) (Lamberth,J.). Holding: Granting Immigration and Customs Enforcement's (ICE's) renewed motion for summary judgment on the grounds that it properly asserted Exemptions 7(C) and 7(E), and disclosed all reasonably segregable information. The court dismisses plaintiff's conclusory assertion that ICE failed to produce all reasonably segreable information. The court finds that ICE is entitled to summary judgment where its declarations were sufficiently detailed and contained a statement "representing that a 'line-by-line search [for segregable information] was conducted.'"

Thompson v. DOJ, No. 11-272, 2012 WL 1066729 (D.D.C. Mar.30, 2012) (Walton,J.). Holding: Granting FBI's motion for summary judgment on the basis that it conducted an adequate search and properly justified its claims of Exemptions 7(C) and 7(E). Based on its review of the FBI's declaration and the redacted records, the court concludes that "these submissions adequately specify 'which portions of the document[s] are discloseable and which are allegedly exempt. '"

Gov't Accountability Project v. DOJ, No. 11-342, 2012 WL 1038616 (D.D.C. Mar.29, 2012) (Bates,J.). Holding: Granting defendant's motion for summary judgment on the basis that plaintiff failed to exhaust its administrative remedies with respect to one request, DOJ conducted adequate searches for responsive records, and properly invoked the deliberative process and attorney work-product privileges to withhold certain information; and denying plaintiff's cross-motion for summary judgment and its requests for discovery and in camera review. The court notes that because the attorney work-product privilege applies, "it need not consider whether any information in the documents was properly segregable."

Surgick v. Cirella, No. 09-3807, 2012 U.S. Dist. LEXIS 43426 (D.N.J. Mar.29, 2012) (Hillman,J.). Holding: Granting the IRS's motion for summary judgment on the basis that it conducted a reasonable search for responsive records, and properly invoked Exemption 3 to withhold certain third-party tax records; and dismissing as moot the IRS's motion to strike plaintiffs' demands for a jury trial. The court concludes that the IRS properly withheld tax records related to a private corporation pursuant to Section 6103 of the Internal Revenue Code, which prohibits disclosure of tax return information. Additionally, "the Court agrees with the IRS that FOIA's segregation requirement is not applicable in this case because Plaintiffs seek [a private company's] tax returns," finding that "not only are the documents entirely exempt from disclosure, but also... there is no form of non-exempt information in these documents which the IRS could segregate and disclose to Plaintiffs." Further, the court observes that "even if the IRS were to redact identifiers from the documents at issue, such redaction is insufficient to deprive the requested documents of their protected status under Section 6103."

ViroPharma Inc. v. HHS, No. 08-2189, 2012 WL 892926 (D.D.C. Mar.16, 2012) (Friedman,J.). Holding: Granting defendant's motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemptions 4 and 5, as well as made certain redactions under Exemption 6, which plaintiff did not dispute; ordering defendant to provide supplemental declarations or a Vaughn index with respect to certain documents identified by the court; and denying plaintiff's motion for summary judgment and its motion for in camera review. "Having reviewed the Vaughn index and the declarations submitted by the defendants, the Court concludes that, except [for the documents which it previously identified], defendants have satisfied their segregability obligations for all documents that they have withheld or withheld in part under an enumerated exemption."

Performance Coal Co. v. U.S. Dep't of Labor, No. 10-1698, 2012 WL 746411 (D.D.C. Mar.7, 2012) (Leon,J.). Holding: Granting defendants' motion for summary judgment on the basis that they conducted an adequate search, properly asserted Exemptions 5, 7(A), and 7(C), and released all reasonably segregable non-exempt material; and denying plaintiff's cross-motion for summary judgment. The court holds that defendants released all reasonably segregable information to plaintiff, noting that "[i]n the absence of contrary evidence or specific cites to potentially unsegregated documents, the declarations are afforded the presumption of good faith."

Roberts v. FBI, No. 11-575, 2012 WL 604178 (D.D.C. Feb. 24, 2012) (Bates, J.). Holding: Granting FBI's motion for summary judgment on the basis that it conducted an adequate search, justified its withholdings under Exemptions 3 and 7(C), and produced all reasonably segregable non-exempt information. "The Court has reviewed the FBI's declaration and copies of the redacted records, and finds that these submissions adequately specify 'which portions of the document[s] are discloseable and which are allegedly exempt.'"

Abuhouran v. U.S. State Dep't, No. 11-271, 2012 WL 473241 (D.D.C. Feb. 14, 2012) (Huvelle,J.). Holding: Dismissing the amended complaint brought by plaintiff's sister for lack of standing under Federal Rule of Civil Procedure 12(b)(1); treating as conceded defendants' claims of exemption, the court concludes that the defendants properly withheld information pursuant to Exemptions 1, 5, 6, 7(A) and 7(C) and that the State Department released all reasonably segregable information; and denying plaintiff's request for costs and fees as he is not a prevailing party. The court is satisfied that the State Department complied with its obligation to disclose all reasonably segregable information where it conducted a document-by-document, line-by-line review of records released in part and properly withheld three documents in full.

Milton v. DOJ, No. 08-242, 2012 WL 386479 (D.D.C. Feb.8, 2012) (Roberts,J.). Holding: Granting BOP's renewed motion for summary judgment on the basis that certain telephone conversations are not reasonable segregable because BOP lacks the technological capacity to segregate the non-exempt portions. The court holds that BOP is not required to segregate the plaintiff's side of the telephone conversations at issue where it lacks the technological capability to do so. As to plaintiff's contention that there are "multiple free and low-cost programs . . . that would enable the BOP to edit the .wav files at issue," the court concludes that plaintiff "has not presented any authority for the proposition that the FOIA obligates agencies to acquire new technological capacity in order to comply with disclosure requests." Additionally, the court finds that BOP's "failure to demonstrate efforts to secure the technology necessary to edit .wav files, where the agency is under no obligation to do so, is not evidence of bad faith."

Nat'l Immigr.Project of the Nat'l Law.Guild v. DHS, No. 11-3235, 2012 WL 375515 (S.D.N.Y. Feb.7, 2012) (Rakoff, J.). Holding: Granting, in part, plaintiff's motion for summary judgment and ordering defendants to disclose factual portions of an email chain that contain statements of agency policy; and, in all other respects, denying plaintiff's motion for summary judgment, and granting defendant's cross-motion for summary judgment. The court finds that "the government has not provided any justification, much less a 'detailed justification,' for finding that the non-exempt material in the email chain 'is not reasonably segregable' from the exempt material."

Skybridge Spectrum Found. v. FCC, No. 10-1496, 2012 WL 336160 (D.D.C. Feb. 2, 2012) (Kollar-Kotelly,J.). Holding: Granting FCC's motion for summary judgment on the basis that plaintiff conceded the merits of the FCC's withholding decisions; but also concluding that, on the merits, the FCC's withholdings under Exemptions 4 and 6 were appropriate and that it properly released all reasonably segregable information. Based on its review of the documents at issue and the FCC submissions that "explain[] how it carefully reviewed and released all reasonably segregable information, a process that included at least three rounds of review," the court concludes that "the FCC has adequately demonstrated, in reasonable and non-conclusoryterms, that all non-exempt material has either been disclosed to [plaintiff] or is not reasonably segregable."

Tarzia v. Clinton, No. 10-5654, 2012 WL 335668 (S.D.N.Y. Jan.30, 2012) (Maas,Mag.) (decision& order). Holding: Granting, in part, defendant's motion for summary judgment with respect to withholdings under Exemptions 1 and 5 and certain aspects of its search; and denying, in part, defendant's motion for summary judgment with respect to other aspects of its search, and on the issue of segregability for a document protected by the deliberative process privilege. The court finds that "to the extent that the [requested deliberative] emails include purely factual information regarding . . . 'family planning practices' that is severable 'without compromising the private remainder of the documents,' they must be released."

Schoenman v. FBI, No. 04-2202, 2012 WL 171576 (D.D.C. Jan.23, 2012) (Kollar-Kotelly,J.). Holding: Denying plaintiff's two motions to late file where he failed to establish "good cause" for the requested extensions and did not demonstrate that his failure to act within the specified times was the product of "excusable neglect" under Federal Rule of Civil Procedure 6(b)(1); granting CIA's motion for summary judgment on the basis that its withholdings pursuant to Exemptions 1 and 3 were proper; denying plaintiff's cross-motion for summary judgment; and entering final judgment marking the end of the case. Based on its review of the documents and the CIA's declaration which "describe[s] how the CIA carefully reviewed and released all reasonably segregable information, which included conducting a line-by-line review of each document in an attempt to identify and release non-exempt portions of each document," the court concludes "the CIA has adequately demonstrated, in reasonable and non-conclusory terms, that all non-exempt material has either been disclosed to [plaintiff] or is not reasonably segregable."

Am. Mgmt. Servs., LLC v. Dep't of the Army, No. 11-442, 2012 U.S. Dist. LEXIS 8124 (E.D.Va. Jan.23, 2012) (Ellis,J.). Holding: Granting, in part, Army's motion for summary judgment based on its withholdings pursuant to Exemptions 4 and 6, as well as information protected by the attorney client privilege of Exemption 5; concluding that the Army released all reasonably segregable portions of those records; and deferring, in part, Army's motion for summary judgment with respect to documents solely withheld pursuant to the deliberative process privilege, which the court will review in camera. The court holds that "[i]n its declarations and Vaughn index, the Army has demonstrated with reasonable specificity that the withheld documents include no reasonably segregable information beyond that already released, and there is no reason to question the Army's good faith in this regard." Moreover, the court finds that "[t]he Army is under no obligation 'to commit significant time and resources to the separation of disjointed words, phrases or even sentences which taken separately or together have minimal or no information content.'"

McCann v. HHS, No. 10-1758, 2011 WL 6251090 (D.D.C. Dec. 15, 2011) (Boasberg, J.). Holding: Granting HHS's motion for summary judgment where it properly withheld material pursuant to Exemptions 5, 6, and 7(E) and disclosed all reasonably segregable information. The court determines that HHS demonstrated that it disclosed all reasonably segregable information where its declarant indicated that "the documents were 'scrutinized' for segreability . . . and states that '[f]or records withheld in their entirety, there was no reasonably segregable material or [any] non-exempt information amounted to essentially meaningless words and phrases.'"

Elec. Frontier Found. v. DOJ, No. 10-641, 2011 WL 5966379 (D.D.C. Nov.30, 2011) (Walton, J.). Holding: Concluding that defendants' submissions are insufficient for the court to determine the propriety of the DOJ's assertion of Exemption 5 and granting plaintiff's motion for summary judgment on this point; denying defendants' motion for summary judgment without prejudice, and ordering the defendants to provide revised Vaughn submissions to address the issues identified by the court. As a general matter, the court notes that "[u]pon consideration of the DOJ's justifications, and given the number of redacted documents that it has produced to the plaintiff, [it] does not doubt that the DOJ has conducted a segregability analysis of responsive documents." "Nevertheless, the Court believes that the DOJ can provide a more comprehensive description as to the various documents withheld in full" and finds that "[a]s it stands now, the DOJ's description of its segregation efforts is too categorical for the Court to evaluate whether any factual material in the documents withheld in full is 'inextricably intertwined' with the deliberative material such that the agency can permissibly withhold documents in their entirety." The court suggests that the agency in its revised Vaughn submissions "should, for example, 'describe what proportion of the information in [the] document[s],' if any, 'is non-exempt and how that material is dispersed throughout the document[s].'"

Eslaminia v. FBI, No. 99-3249, 2011 WL 5118520 (N.D. Cal. Oct. 28, 2011) (Patel, J.). Holding: Granting, in part, the FBI's motion for summary judgment with respect to documents for which it asserted Exemption 1, but ordering the release of certain excerpts within those documents, which were designated by the court as reasonably segregable. Based on itsin camera review, the court holds that "excerpts from [certain] documents may be disclosed without adversely affecting the national security concerns established by the defendant F.B.I., while the remainder of the documents may be withheld."

Beltranena v. U.S. Dep't of State, No. 09-CV-01457, 2011 WL 5022789 (D.D.C. Oct. 21, 2011) (Rothstein, J.). Holding: Granting defendant's renewed motion for summary judgment based on the adequacy of its search and its claims of exemption; denying plaintiff's requests for discovery, an in camera review, and attorneys' fees. The court concludes that "the Department has discharged its obligation to provide [plaintiff] with all the information that is 'reasonably segregable'" where the supplemental declaration "carefully outlines, on a document-by-document basis, the process by which the Department conducted it segregability determinations." Additionally, the court notes that when the agency relies on Exemption 3 as a basis for withholding information, as the State Department did here, "the scope of the exemption is not provided in the text of FOIA itself, but rather by the disclosure-prohibiting statute made applicable by the exemption." Here, the court comments that it "is mindful that while an agency must provide a 'detailed justification' for the non-segregability of any material withheld, an agency is also constrained by the need to avoid compromising 'the secret nature of potentially exempt information.'" Referencing a D.C. Circuit case involving the Immigration and Nationality Act, which was cited as a basis for withholding in this case, the court observes the broad reach of Section222(f), which "effectively prevents visa applicants from obtaining any materials beyond those that had at one time or another been in the applicant's possession."

Rimmer v. Holder, 10-1106, 2011 U.S. Dist. LEXIS107883 (M.D. Tenn. Sept. 22, 2011) (Trauger,J.). Holding: Granting summary judgment to defendants based on the propriety of their withholdings. Although the court notes that "[t]here are a handful of places in the record" where defendants' assertion of Exemption 7(C) "does not provide information that is facially 'identifying'" to an individual, it "presumes that the defendants are being extremely 'careful' to redact information that could, if certain connections between individuals were made, arguably be used to identify particular individuals who provided information to law enforcement that was damaging to the plaintiff." Therefore, "given the challenges posed by the 'reasonable segregability' standard, and the heightened privacy protections that are owed to these individuals who willingly provide potentially incriminating information to law enforcement and the fact that none of the information redacted sheds light on how the Government entity actually performs its functions or suggests that the government agency has been involved in imprisoning an innocent individual, [the court concludes that] the redactions are not inappropriate."

Adionser v. DOJ, No. 10-27, 2011 U.S. Dist. LEXIS105035 (D.D.C. Sept. 15, 2011) (Leon,J.). Holding: Granting summary judgment in favor of defendants based on the adequacy of their searches and the propriety of their exemption claims. The court finds that "EOUSA, FBI, DEA, and BOP released all reasonably segregable non-exempt information." The court notes that "[i]n the absence of contrary evidence or specific cites to potentially unsegregated documents, the declarations are afforded the presumption of good faith." Here, "[t]he Vaughn indices, declarations, and annotations identify the exemptions claimed for each individual document and indicate that any information that could be segregated, was released." With respect to the segregability of certain recorded telephone conversations, the court finds that BOP's declaration "sufficiently states, plaintiff did not provide consent of all third parties to the calls for release of their portions of conversations, and because BOP does not have the equipment necessary to edit digitally stored recordings, the 'withheld recordings of telephone conversations cannot be segregated and release of the unedited recordings would result in an unwarranted invasion of personal privacy of other individuals.'"

Judicial Watch, Inc. v. U.S. Dep't of the Treasury, No. 10-302, 2011 WL 3582152 (D.D.C. Aug. 16, 2011) (Howell, J.). Holding: Granting summary judgment to Treasury based on its withholdings under Exemption 5, but ordering defendant to release reasonably segregable information from one document or to demonstrate why this information is not segregable. The court concludes that "the factual material in the disputed documents [consisting of information related to AIG's historical and proposed compensation payments and structures] was properly redacted or withheld using the deliberative process exemption here." The court notes that, as in this case, "where factual material was assembled into a summary or memorandum through an exercise of judgment in determining which facts to highlight 'for the benefit of an official called upon to take discretionary action,' [the] deliberative process privilege may be properly asserted."

Judicial Watch, Inc. v. U.S. Dep't of the Treasury, No. 10-302, 2011 WL 3582152 (D.D.C. Aug. 16, 2011) (Howell, J.). Holding: Granting summary judgment to Treasury based on its withholdings under Exemption 5, but ordering defendant to release reasonably segregable information from one document or to demonstrate why this information is not segregable. Based on its in camera review, the court concludes "the 'Current Draft Talking Points' documents contains information that is both reasonably segregable and not confidential in nature." The court notes that certain portions are "easily separable from the exempt portions and would not produce incomplete sentences devoid of any meaning."

Marshall v. FBI, No. 10-871, 2011 WL 3497801 (D.D.C. Aug. 10, 2011) (Collyer, J.). Holding: Granting the FBI's motion for summary judgment on the basis that it conducted an adequate search and properly withheld third party information pursuant to Exemption 7(C). The court determines that "the FBI met its burden of showing with reasonable specificity why documents could not be further segregated" where its declaration "indicates that the FBI only redacted names, telephone numbers, and other information that could be used to identify FBI agents and personnel and third parties."

McGehee v. DOJ, No. 01-1872, 2011 WL 3375532 (D.D.C. Aug. 5, 2011) (Kessler,J.). Holding: Granting, in part, defendant's motion for summary judgment with respect to the adequacy of its search and its withholdings pursuant to Exemptions 3, 7(C), 7(D), and 7(E); and denying, in part, defendant's motion with respect to the adequacy of its Vaughn Index. The court concludes that the FBI's submissions are "deficient and must be supplemented" because "[a]lthough the court was able to determine the propriety of the asserted Exemptions based upon the Defendant's affidavits, the failure of the Vaughn Index to provide any specific information regarding the missing pages and numerous redactions renders it impossible to evaluate the FBI's conclusions that the pages included no segregable portions." Additionally, the court finds that the FBI's statement that "'[e]very effort was made to provide plaintiff with all material in the public domain and with all reasonably segregable portions of released material' falls far short of the specificity required to justify non-segregation."

Judicial Watch, Inc. v. DOJ, No. 10-851, 2011 WL 3343622 (D.D.C. Aug. 4, 2011) (Walton,J.). Holding: Granting DOJ's motion for summary judgment with respect to its withholdings pursuant to the Exemption 5; and ordering DOJ to provide additional information regarding the segregability of documents protected by the deliberative process privilege. With respect to the documents withheld pursuant to the deliberative process privilege, the court determines that "the description of the DOJ's segregation efforts is too general for the Court, and the plaintiff, to evaluate whether any factual material in these documents is 'inextricably intertwined' with the deliberative material and would thus permit the DOJ to withhold the documents in their entirety." DOJ is directed to supplement its filings addressing the issue of segregation.

Nat'l Day Laborer Organizing Network v. U.S. Immigr.& Customs Enforcement Agency, No. 10-34888, 2011 WL 2693655 (S.D.N.Y. July 11, 2011) (Scheindlin, J.). Holding: Granting, in part, and denying, in part, defendants' motion for summary judgment; granting, in part, and denying, in part, plaintiffs' motion for summary judgment; and ordering defendants to provide additional justification regarding certain information withheld pursuant to the deliberative process and attorney-client privileges. With respect to documents reviewed incamera, the court orders defendants to release the segregable, nonexempt factual portions of certain documents withheld pursuant to the deliberative process privilege, such as "factual recitations and legal justifications for Secure Communities."

Mingo v. DOJ, No. 10-1673, 2011 WL 2559221 (D.D.C. June 29, 2011) (Howell,J.). As an initial matter, the court notes the plaintiff only contests BOP's decision to withhold video disks in their entirety pursuant to Exemption7(C), but finds that it nevertheless is obligated to conduct a segregability finding with respect to both the disks and the eighteen pages withheld in full. The court concludes that BOP properly asserted Exemption 7(C) to withhold "medical records of other inmates and staff who were involved in the altercation, none of whom has consented to the release of such information." Additionally, the court notes that "Plaintiff does not suggest that an overriding public interest compels the release of those pages." In terms of the withheld video disks containing "different camera views of the altercation and the images of 'at least 50 different inmates,'" the court finds that BOP properly withheld this material where it does not have the technical capability to redact the disks and "Plaintiff has not proffered contrary evidence or any evidence of agency bad faith" or presented "any claim of an overriding public interest."

Surgick v. Cirella, No. 09-3807, 2011 WL 2600650 (D.N.J. June 29, 2011) (Hillman,J.). Holding: Denying IRS's motion to dismiss without prejudice. The court finds that the IRS properly withheld tax records related to a private corporation pursuant Section 6103(a) of the Internal Revenue Code, "which generally prohibits the dissemination of tax return information by a federal agency." The court finds that because plaintiffs failed to provide any authorization from the company, "the IRS is prohibited from releasing [the corporation's] tax information." However, the court also concludes that because "[i]t is unclear whether segregation could be utilized with respect to those documents requested by Plaintiffs," "before the Court may dismiss Plaintiffs' claims entirely, the IRS should at least address the applicability and plausibility of segregation in this matter in a subsequent brief."

Milton v. DOJ, No. 08-242, 2011 WL 1743234 (D.D.C. May 6, 2011) (Roberts, J.). Holding: Denying BOP's motion for summary judgment without prejudice, finding that although BOP properly invoked Exemption 6 as a basis for withholding certain recordings, it did not satisfy its obligations with respect to segregability. The court concludes that BOP's "affidavit provides no basis for concluding that the Department of Justice cannot segregate non-exempt portions of [the telephone recordings]." The court finds that "[i]t is unclear whether the Department of Justice is claiming that no technology or program exists for editing or modifying [these recordings], whether the Department of Justice merely lacks that technology, or whether it is impossible to segregate the files for some other reason." Moreover, "the generalized assertion that efforts to segregate calls are difficult because individuals may interrupt each other on the phone and because segregated portions of the calls may lack context is a conclusory claim that is insufficient to demonstrate that there are no portions of these calls that are reasonably segregable." The court affords BOP time to file a renewed motion for summary judgment.

McKinley v. FDIC, No. 10-420, 2010 WL 5209337 (D.D.C. Dec. 23, 2010) (Sullivan, J.). The court concludes that the FDIC "has not met its burden to show that it has disclosed all reasonably segregable information" because it "provided no explanation as to how it met the segregability requirement."

Amnesty Int'l USA v. CIA, No. 07-5435, 2010 WL 5421928 (S.D.N.Y. Dec. 21, 2010) (Preiska, J.). The court concludes that the CIA is not required to segregate any remaining nonexempt information from an email containing attorney work-product, where "'only a few meaningless words or phrases would remain.'"

Am. Postal Workers Union, AFL-CIO v. USPS, No. 09-237, 2010 WL 3833941 (D.D.C. Sept. 30, 2010) (Sullivan, J.). "In light of plaintiff's lack of objection to defendant's assertion of non-segregability and the narrow category of information requested by plaintiff, namely records containing a list of lump-sum bonuses and salary increases for employees of the Postal Service, the court agrees with the agency that there is no segregable portion of the records."

Gray v. U.S. Army Crim. Investigation Command, No. 09-1310, 2010 WL 3833937 (D.D.C. Sept. 30, 2010) (Sullivan, J.). The court finds that defendants' "blanket assertion" that all records were withheld in full pursuant to Exemptions 6, 7(A) and 7(C) because "[a]ll records were compiled in the course of an ongoing investigation and disciplinary action [and] [t]herefore none of the materials were segregable" was not sufficient to "establish that there are no segregable portions of the withheld documents."

Jarvik v. CIA, No. 08-1911, 2010 WL 3832557 (D.D.C. Sept. 28, 2010) (Urbina, J.). The court concludes that based on the CIA's public and classified declarations "there is no segregable material because all of the information is exempt" pursuant to Exemption 1.

ACLU v. DHS, No. 08-1100, 2010 U.S. Dist. LEXIS 98849 (D.D.C. Sept 20, 2010) (Walton, J.). "[T]he court's review of the defendants' declarations justifying the non-disclosure of records, as well as their Vaughn indices, convinces the Court that defendants have satisfied their burden of demonstrating that all reasonably segregable information has been disclosed to the plaintiffs."

Sussman v. U.S. Marshals Serv., No. 03-610, 2010 U.S. Dist. LEXIS 90723 (D.D.C. Sept. 1, 2010) (Kennedy, J.). The court notes that for some records USMS "did not withhold phrases around [information identifying third parties], such as the date on which an event occurred and that someone 'attempted to contact' someone else 'by telephone,' and, accordingly, reasons that other redacted documents "could have been similarly treated." The court also orders the release of plaintiff's name, and "identical information" that had been released in other places on the released pages.

Brown v. DOJ, No. 08-0821, 2010 WL 3398866 (D.D.C. Aug. 30, 2010) (Huvelle, J.). The court finds the defendants released all reasonably segregable, nonexempt portions of responsive material. Moreover, "[p]laintiff's argument that the FBI should have released plaintiff's name, cities, and file numbers on documents that are otherwise exempt from production is unavailing; defendant need not expend substantial time and resources to 'yield a product with little, if any, informational value.'"

Holt v. DOJ, No. 09-1515, 2010 WL 3386016 (D.D.C. Aug. 26, 2010) (Walton, J.). The court denies plaintiff's request for an in camera review where it finds that "defendant's supporting declarations and exhibits . . . adequately 'specify in detail which portions of the document[s] are disclosable and which are allegedly exempt."

Richardson v. DOJ, No. 09-1916, 2010 WL 3191796 (D.D.C. Aug. 13, 2010) (Huvelle, J.). Upon review of EOUSA's declarations and Vaughn index, the court "finds that these submissions adequately specify 'which portions of the document[s] are disclosable and which are allegedly exempt."

Showing Animals Respect & Kindness v. Dep't of the Interior, No. 09-877, 2010 WL 3191801 (D.D.C. Aug. 12, 2010) (Kollar-Kotelly, J.). The court concludes that defendants have released all nonexempt segregable portions where the declaration indicates that the declarant "personally reviewed each of the documents . . . and conducted a thorough segregability analysis" and the Vaughn index "provides detailed descriptions of each document and portions that are withheld either in part or in whole."

Amnesty Int'l USA v. CIA, No. 07-5435, 2010 WL 3033822 (S.D.N.Y. Aug. 2, 2010) (Preska, J.). The court finds that "the law is clear that the reasonable segregation requirement of FOIA does not require the CIA 'to commit significant time and resources to a task that would yield a product with little, if any, informational value.'"

Fischer v. DOJ, No. 07-2037, 2010 WL 2745811 (D.D.C. July 13, 2010) (Huvelle, J.). The court finds that the FBI has satisfied its segregability obligations and that its "conscientious efforts at segregation are manifest by the agency's disclosure to plaintiff of 1,108 partially redacted pages of records compared with only 48 pages withheld in full." The court finds that "[t]he exemptions at work here and the defendant's reasons for withholding implicate sensitive information." Further, "'there is nothing in the record to indicate that such [withholdings] are inappropriate,'" and the "non-exempt information is so intertwined with exempt information that the FBI could not release any meaningful portion without disclosing exempt information."

Kalwasinski v. BOP, No. 08-9593, 2010 WL 2541159 (S.D.N.Y. June 23, 2010) (Crotty, J.) (adopting magistrate's recommendation). BOP "successfully established that it did not withhold any reasonably segregable non-exempt information" from the pages that were withheld in full and that "redactions of all exempt material . . . would leave only meaningless information."

Tamayo v. DOJ, 07-21299 (S.D.Fla. June 18, 2010) (Jordan, J.) . Because records withheld by the FBI pursuant to Exemption 1 "are properly classified, none of the classified information is segregable and subject to disclosure." The court also notes that none of the records withheld pursuant to Exemptions 6 and 7(C) "contain reasonably segregable portions subject to release."

Valfells v. CIA, No. 09-1363, 2010 WL 2428034 (D.D.C. June 17, 2010) (Collyer, J.). The court concludes that the FBI's declaration "provides a 'detailed justification' and not just 'conclusory statements' to demonstrate that all reasonably segregable information has been released."

Vento v. IRS, No. 09-289, 2010 WL 2181312 (D.D.C. June 2, 2010) (Facciola, Mag. J.). The IRS is ordered to explain to the court why it withheld the names of the sender and recipient of emails it withheld, and why this information could not be reasonably segregated out and released.

Lieff, Cabraser, Heimann& Bernstein, LLC v. DOJ, No. 09-00157, 2010 WL 1063785 (D.D.C. Mar. 24, 2010) (Kennedy, J.). The court finds that the ATD has made a sufficient showing that there were no releaseable portions of its correspondence with the bank participant. ATD's declaration "describes concerns about releasing dates, letterhead, and information about the length of the records in addition to disclosing any of their content." However, ATD "has conceded that it could redact exempt material from the [leniency] letter. The concern that releasing the letter even without the exempt material would compromise the confidentiality policy on which the Bank and other actual and potential leniency applicants rely is neither logical nor grounded in law." Thus, "[t]he letter must be produced with appropriate redactions."

Gov't Accountability Project v. HHS, No. 07-1702, 2010 WL 779774 (D.D.C. Mar. 9, 2010) (Kollar-Kotelly, J.). Since the court ordered the release of information withheld under Exemption 4, segregability is not at issue for that material. With regard to the information withheld pursuant to Exemption 6, the court finds that defendants demonstrated that they had disclosed all reasonably segregable information where the declaration asserted that the relevant records were reviewed "'page-by-page and line-by-line'" as well as reviewed again for accuracy and that the redactions were limited to "specific references to patient initials, patient hospital admission dates, names of low-level employees and other identifying information."

Chesapeake Bay Found., Inc. v. U.S. Army Corps of Eng'rs, No. 09-1054, 2009 WL 5159756 (D.D.C. Dec. 30, 2009) (Bates, J.). The agency's affidavits do not demonstrate that it has satisfied its obligation to release all reasonably segregable information from the withheld records. If the agency continues to withhold information, "it must supply the Court with the necessary tools to perform a review of the segregability [which] includes not only a detailed justification of the reasons for withholding the information, but also a description of the document from which the information was redacted."

Hussain v. DHS, No. 07-1633, 2009 WL 4884019 (D.D.C. Dec. 18, 2009) (Friedman, J.). DHS's explanation that "'USCIS has now released all reasonably segregable portions of the document to plaintiff'" is insufficient to meet its "burden with regard to segregability because it does not show with reasonable specificity why the documents cannot be further segregated and additional portions disclosed."

Hall v. CIA, No. 04-00814, 2009 WL 3768002 (D.D.C. Nov. 12, 2009) (Kennedy, J.). "The CIA's Vaughn index does not provide information sufficient for the Court to review its compliance with FOIA's requirement that reasonably segregable portions of records be released." Defendant's "supplemental filing must include more information about the segregability of documents, 'specify[ing] in detail which portions of the document are disclosable and which are allegedly exempt,' . . . mak[ing] specific findings for each document withheld[,] . . . and 'correlat[ing] claimed exemptions with particular passages.'"

McLaughlin v. DOJ, No. 06-2048, 2009 WL 3711004 (D.D.C. Nov. 4, 2009) (Collyer, J.). The court finds that defendant has made a sufficient showing that it conducted a proper segregability review. Defendant will, however, be required to clarify the status of two responsive pages.

Smith v. FBI, No. 07-1183, 2009 WL 3347186 (D.D.C. Oct. 19, 2009) (Roberts, J.). Defendant has now provided the court with sufficient information to demonstrate that its segregability decisions were proper. Plaintiff's assertion that the FBI should have released materials to him that were allegedly provided to him during the criminal discovery process is unfounded. "[A]n agency responding to a FOIA request is not foreclosed from asserting exemptions to withhold information that it had previously disclosed to a party in a non-FOIA proceeding."

Roth v. DOJ, No. 08-822, 2009 WL 3019781 (D.D.C. Sept. 23, 2009) (Huvelle, J.). Upon reviewing certain records in camera, the court orders the FBI to release certain "nonexempt, segregable information" which had originally been withheld pursuant to Exemption 7(C). The court also orders that the FBI produce additional segregable portions of a record withheld under Exemption 7(D) and other exemptions where it "was unable to determine what, if any, material in this part of the document came from [a confidential] source."

In Defense of Animals v. USDA, No. 02-557, 2009 WL 2974764 (D.D.C. Sept. 18, 2009) (Roberts, J.). Defendants failed to demonstrate that all reasonably segregable nonexempt information was released. Neither the Vaughn index, nor the trial testimony of two experts "provide[d] any analysis as to whether all information that could not be used by [the facility's] or its clients' competitors for commercial advantage ha[d] been reasonably segregated from any of the 1017 pages." Accordingly, the court orders USDA to release all the records that had been previously withheld either in whole or in part, after redaction of the information that plaintiff no longer contested.

The Shinnecock Indian Nation v. Kempthorne, No. 06-5013, 2009 WL 2873174 (E.D.N.Y. Sept. 9, 2009) (Bianco, J.). Finally, the court finds that much of the releaseable factual material contained in the draft document was released in the second document, so the court declines to order Interior to release virtually identical material from the first document, due to the practical difficulties in doing so and because releasing this information "would compromise the private remainder of the [draft] document." To the extent that the factual sections of the two documents differ, disclosing this would reveal part of the agency's deliberative process. Moreover, "the facts as presented by the author of the first memorandum are done in a fashion that 'reveal[s] the "evaluative" process by which [he, as a member of the decision-making chain] arrived at [his] conclusions and what those predecisional conclusions are.'"

Covington v. McLeod, No. 08-1220, 2009 WL 2525933 (D.D.C. Aug. 19, 2009) (Bates, J.). Given that plaintiff seeks "a record of a [third-party's] proffer and what occurred before the grand jury," no segregation is possible. "The nature of the information requested in this particular case is simply incompatible with segregation."

Calhoun v. DEA, No. 08-01059 (N.D. Ohio June 25, 2009) (Limbert, Mag. J.). Though the court disagrees with DEA's conclusions on segregability, the court finds that DEA addressed this issue in good faith, and is not guilty of bad faith, contrary to plaintiff's assertion.

Defenders of Wildlife v. U.S. Border Patrol, No. 04-1832, 2009 WL 1620790 (D.D.C. June 11, 2009) (Friedman, J.). DHS has not shown that its efforts to segregate out and release material from otherwise withholdable documents was adequate. DHS has "'not "show[n] with reasonable specificity why the documents cannot be further segregated" and additional portions disclosed.'"

Antonelli v. BOP, No. 07-2016, 2009 WL 1593701 (D.D.C. June 9, 2009) (Kollar-Kotelly, J.). With the exception of attorney work-product documents, which are appropriately withheld in their entireties, BOP did not meet its burden of showing that it could not have segregated out and released portions of otherwise exempt documents. Though BOP's declarant claimed that "'no meaningful portions [of withheld documents] could be released without destroying the integrity'" of the document, that "is not significantly probative of the issue." Instead, "an agency must demonstrate that the 'exempt and nonexempt information are "inextricably intertwined," such that the excision of exempt information would impose significant costs on the agency and produce an edited document with little informational value.'"

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