Monday, September 30, 2013
Re: Request for records concerning reports submitted by intelligence agencies to the President's Intelligence Advisory Board (PIAB) in a specified time period Disposition: Granting and denying defendant's motion for summary judgment in part; denying plaintiff's cross-motion for summary judgment
- Vaughn Index: The court finds that defendant's have not submitted an adequate Vaughn Index. The court advises defendants to "bear in mind that the purpose of the submissions is not merely to inform the Plaintiff of the agency's conclusion that a particular document or portion thereof is exempt from disclosure under one or more of the statutory exemptions, but to afford the Plaintiff an opportunity to intelligently advocate for the release of the withheld information and to afford the Court an opportunity to intelligently review the soundness of the withholding."
- Exemption 1 & Vaughn Index: The court determines that DOD has not provided a sufficient Vaughn Index with respect to its Exemption 1 withholdings. "The DOD has failed to provide a particularized explanation of how disclosure of the withheld information in each document would damage the claimed interest protected by nondisclosure." "The DOD's Vaughn index consists of boilerplate language, which is identical or nearly identical for every document described." The index "does not discuss any particular document." Likewise, the court finds that the Office of the Inspector General of the United States Army has not submitted a sufficient Vaughn. Its index "contains boilerplate language, which is nearly identical for each of the eleven redacted documents." Finally, the court also concludes that the FBI did not "tailor its explanation for nondisclosure under Exemption 1 to its numerous redactions." The FBI's "declaration does not provide a relatively detailed justification identifying the specific reasons why information was withheld under Exemption 1 on a document by document basis."
- Exemption 5/Deliberative Process/Vaughn Index: The court also finds that ODNI failed to meet its burden to show that information was properly withheld pursuant to Exemption 5 and the deliberative process privilege. "ODNI has not provided a sufficiently detailed description of the contents of the documents at issue." "Nor has the ODNI provided a relatively detailed explanation identifying the specific reasons why information was withheld under the deliberative process privilege." However, with respect to one set of documents covered by the presidential communications privilege, the court finds that ODNI also properly withheld them pursuant to the deliberative process privilege. The court finds that they "contain predecisional information because they were prepared by the ODNI to assist the IOB [Intelligence Oversight Board] in fulfilling its obligation to advise the President on intelligence community activities under Executive Order 13462." "The Court finds that the documents are also deliberative because they contain intelligence oversight assessments and recommendations related to intelligence policy matters for the IOB's consideration in formulating advice and recommendations to the President." Nonetheless, the court finds that "absent more information" it "cannot conclude that the ODNI has released all non-exempt material."
- Exemption 5/Attorney-Client Privilege/Vaughn Index: The court holds that the FBI has not provided sufficient information justifying its withholdings pursuant to the attorney-client privilege. The FBI's Vaughn index does "not identify how a lawyer is involved or identify how the document contains legal advice." It does not "describe with a reasonable level of specificity the nature of the legal issues for which advice was being sought by the FBI and whether the withheld information conveys legal advice predicated on confidential information provided by the FBI." The court similarly concludes that "DHS has not adequately shown that material for which the attorney-client privilege has been invoked involved confidential communications or that it related to a specific legal matter for which the DHS sought legal advice."
- Exemption 5/Presidential Communications Privilege: The court holds that ODNI properly invoked Exemption 5 and the presidential communications privilege to withhold six documents described as a memo reviewing intelligence community reporting. The court concludes that these documents "are protected from disclosure under the presidential communications privilege because they were 'solicited and received' by immediate White House advisers (i.e., the IOB) who have 'broad and significant responsibility for investigating and formulating the advice to be given the President' on intelligence matters under Executive Order 13462." "The IOB solicited and received the documents from the ODNI in the course of performing its sole function of advising and assisting the President on intelligence community activities under Executive Order 13462." "The information in the documents relate to presidential decision making on national security policy; specifically, the President's decisions regarding intelligence policies and procedures."
- Exemption 7(D): The court finds that the FBI did not provide "specific details demonstrating that any informant provided the FBI information based on an implied assurance of confidentiality, and that disclosure could reasonably be expected to disclose the source's identity." The court finds that the FBI "proffered generalized and conclusory reasons" instead of an explanation on a "document by document basis."
- Exemption 7(E): The court also finds that the FBI's Exemption 7E withholdings were not adequately justified. "The FBI has withheld information from numerous documents without providing a description of how, for each specific document, the release of that information would reasonably risk circumvention of the law." "Nor did the FBI explain for each specific withholding regarding a law enforcement technique that the information withheld goes beyond a generally known technique." The court finds that DHS's Exemption 7(E) withholdings have not be adequately justified for the same reasons.
- Segregability: The court finds that "[n]one of the [d]efendants has offered a particularized explanation establishing that all reasonably segregable portions of each challenged document have been segregated."
- In camera review: The court rejects plaintiff's request for in camera review of the withheld materials. Instead, the court affords defendants "the opportunity to cure the deficiencies described through the filing of revised Vaughn indices and supporting declarations." The court also rejects plaintiff's request for summary judgment and notes that it has concluded that "[d]efendants' Vaughn submissions are inadequate, not that information has been improperly withheld."
In Camera Review
Updated August 6, 2014