Approaching the Bench
The importance of agency affidavits to the successful defense of any FOIA lawsuit was emphasized in Update's Winter issue. Courts have become increasingly more demanding of such affidavits in recent FOIA cases. They have rejected them for procedural as well as substantive inadequacies.(1) Thus, we need to focus attention on the specifics of agency affidavits which justify withholding of records.
STEP ONE: AGENCY PROCEDURES
The typical affidavit submitted to a court to explain why an agency is withholding records requested under FOIA should serve three purposes. First, it should explain to the court the entire administrative process before the lawsuit and any administrative developments since the lawsuit. The affidavit should list chronologically and attach relevant administrative correspondence. Also, when agency procedures such as how the agency maintains or retrieves records are relevant, the affidavit should explain the agency process.
STEP TWO: VAUGHN INDEX
Second, the affidavit should generally describe the records withheld or itemize them.(2) This requirement means preparing a list of each record withheld in whole or in part with identifying characteristics, such as title, date, addressor/addressee and general subject matter. If most of the records have been withheld only in part it is often appropriate to submit copies of these records in the deleted form furnished to the requester as an attachment to the affidavit to help explain the withholding to the court.
STEP THREE: JUSTIFYING CLAIMS OF EXEMPTIONS
Finally, the affidavit should explain how the withheld information is exempt from disclosure under the applicable FOIA exemption(s). This explanation must show how each of the withheld records or portions fit the particular standards of the exemption(s) claimed. For example, to justify withholding under the "deliberative process" component of exemption five, each of the following points should be made as a result of various court decisions:
(a) that the record pertains to a "predecisional" agency matter and does not embody the final agency decision on such matter.(3)
(b) that the withheld information consists of recommendations, opinions, suggestions and analyses pertaining thereto, and thus is "deliberative."(4)
(c) that any disclosure of the information withheld would impair the deliberative process of the agency by inhibiting the full and frank exchange of views necessary with respect to such matters.(5)
(d) that all factual information not covered by some other exemption has been segregated and released, except where such information is "inextricably intertwined" with exempt material, or where the disclosure of such factual information would itself "expose" the deliberative process.(6)
With such detailed attestations--and with a full description of the administrative process and of the general nature of the records withheld--the agency, the lawyers and the court are in the best possible position to evaluate and to protect the important interests recognized in FOIA exemptions.
1. See, e.g., Founding Church of Scientology v. Bell, 603 F.2d 945, 947-49 (D.C. Cir. 1979).
2. Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).
3. See, e.g., Coastal States Gas Corp. v. Department of Energy, No. 79-2181 (D.C. Cir., February 15, 1980) (slip opinion at 21-27).
4. See, e.g., Jordan v. Department of Justice, 591 F.2d 753, 773-74 (D.C. Cir. 1978) (en banc).
5. See, e.g., Mead Data Central, Inc. v. United States Department of Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977).
6. See, e.g., Mervin v. FTC, 591 F.2d 821, 825-26 (D.C. Cir. 1978).
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