FOIA EXEMPTIONS and THE VAUGHN INDEX Alan Burch, 202-514-7204 alan.burch@usdoj.gov Assistant United States Attorney Civil Division District of Columbia

JUSTIFYING EXEMPTIONS Declarations must provide factual basis, so the judge can determine whether the legal standard has been met for each withholding, AND provide thorough and convincing public explanation.

Know your audience Judges are in the business of skepticism. So they don’t: take things for granted. assume knowledge of what an agency is supposed to do generally, or what it did in this case. go outside the record for any facts. like obvious cut-and-paste jobs.

More on How Judges Think FOIA places burden on govt, both legally and practically. Govt secrecy is not popular, and judges want to rely on the govt’s proof as tying their hands. The law is their standard – they want facts from you. Keep in mind the difference between restating the requirements and giving facts to satisfy the standard. De novo review means it’s irrelevant if agency thinks the legal standard has been met. Declaration as written testimony. (foundation, etc.)

Declaration & “good faith” Govt is entitled to presumption of good faith, but: Can be overcome by evidence of bad faith, e.g., unjustified delay, run-around, bait-and-switch, and The presumption ultimately creates indirect pressure on judge to scrutinize your factual showing all the more closely.

EXEMPTION 1 Classified material, where the matters are: “(A) specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy, and” “(B) are in fact classified, and the classification was proper; and Example at Training pages 21-23.

EXEMPTION 2 Records “Related solely to internal personnel rules and practices of an agency” Records are predominantly internal Trivial admin. matters of no real public interest But: Open Government Memorandum instructs us to apply presumption in favor of disclosure. Defunct: High 2 – disclosure would risk circumvention of legal requirement. Millner. Upshot: not much left of (2). Try something else.

EXEMPTION 3 “specifically exempted from disclosure by statute, provided that such statute:” “(A) requires matters be withheld from the public [so as to] leaves no discretion” OR “(B) establishes particular criteria for withholding or refers to particular types of matter to be withheld.” Examples--Grand Jury Materials, Tax Return Information, Census. BUT NOT Rap Sheets.

EXEMPTION 4 “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential” Obtained from third-party, not govt info. Privileged or Confidential Voluntarily Provided-Type that Provider Not Customarily Release to Public Required Submission—Disclosure Likely To: Impair govt’s ability to obtain necessary information, OR Cause substantial harm to the competitive position of the submitter

EXEMPTION 5 “inter-agency or intra-agency memorandums or letters … not available by law to a party other than an agency in litigation with the agency.” I.e., recognized litigation privileges. Source must be a government agency Must fall within a privilege recognized in litigation Examples: Attorney-Client, Work Product, Deliberative Process privileges.

DELIBERATIVE PROCESS (b)(5) “inter-agency or intra-agency memorandums or letters which would not be available to a party other than an agency in litigation with the agency” Encourage frank discussion, and protect against premature disclosure & public confusion Pre-Decisional: Before adoption of agency policy. Explain process & role document played in it Deliberative: Makes recommendations or expresses opinions on legal or policy matters

ATTORNEY CLIENT (b)(5) Protects client’s confidences and communications by the attorney to the client regarding advice Involves confidential communications between attorney & client Relates to legal matter for which the client has sought professional advice Must be information exchanged as confidential. This means no waiver – who else has seen or heard the communication or advice?

WORK PRODUCT (b)(5) Prepared ay attorney in contemplation of litigation. Some claim exists that is likely to lead to litigation. Can be in admin., civil, or criminal proceedings. No need to segregate factual from deliberative materials.

EXEMPTION 6 “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Covers records on an individual that can be identified as applying to that individual Balance interests of protecting individual’s privacy against the public interest in disclosing governmental activities. Personal interest in the documents is insufficient to show a public interest Categorical balancing is OK, but not too broad.

EXEMPTION 7 “records or information compiled for law enforcement purposes” Several sub-categories, but this “threshold” requirement is common to all of them: Created or acquired in course of investigation, and Rational and explained connection between the investigation’s goals and authority, on the one hand, and the information on the other. So on to the Exemption 7 subparts…

EXEMPTION 7(A) “Could reasonably be expected to interfere with enforcement proceedings.” Must show both: (1) Law enforcement proceeding pending or prospective and (2) Release of info about it could reasonably be expected to cause some articulated harm. Keep in mind that this one can expire on you during course of the litigation…

EXEMPTION 7(B) “would deprive a person of a right to a fair trial or an impartial adjudication” Rarely invoked

EXEMPTION 7(C) “could reasonably be expected to constitute an unwarranted invasion of personal privacy” Covers the individuals who take part in law enforcement activities, e.g., suspects, witnesses and investigators. Identify generally them by role. Balance individual’s privacy interests v. public interest in disclosure. Show Potential Harm By Disclosure Overlaps with _______. Standard for the showing of _________ here is _______.

EXEMPTION 7(D) “information could reasonably be expected to disclose the identity of a confidential source … and…in the case of…a criminal investigation…[the] information furnished by a confidential source.” Must explain the nature and basis of the expectation of confidentiality of the source’s identity and of the information provided. This can be express or implied from circumstances, but you need to explain the circumstances.

EXEMPTION 7(E) “would disclose techniques and procedures for law enforcement investigations and prosecutions, or…guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” Must describe enough of the technique (while withholding the sensitive details) for the court to easily infer the risk of circumvention of the law.

EXEMPTION 7(F) “could reasonably be expected to endanger the life or physical safety of any individual.” Must provide enough facts to demonstrate a nexus between disclosure and possible harm Examples of info that can be covered: Names and identifying information of law enforcement officers, witnesses, confidential informants, who are in sensitive or risky situations.

EXEMPTION 8 “Contained in or related to examination, operating or condition reports prepared by, on behalf of, or for use of an agency in the regulation or supervision of financial institutions” Examples: Bank examination reports, bank ratings, bank examiner’s examination notes. Unlikely to use Exemption 8 unless you’re at a banking agency, or helping on a banking criminal investigation.

EXEMPTION 9 “geological and geophysical information and data, including maps, concerning wells” Limited to oil & mineral exploration, maybe water also.

PRIVACY ACT 5 USC 552a(b)(2) FOIA generally empowers but does not require withholding of Exempted records. BUT The Privacy Act has 4 main goals, including protection of personal info held by the govt. Disclosure of Personal Info may be barred by Privacy Act. For example, compare: Deliberative process info, e.g., name of person Exemption 6 or 7(C) with no public interest. 4 Purposes of the Privacy Act: (1) restrict release of personal info, (2) give individuals access to their records, (3) permit amendment, and (4) set code of “fair information practices,” particularly for inter-agency sharing of info.

VAUGHN INDEX/DECLARATION Itemized Index. See, e.g., Training pages 1-5 Correlates each withheld document or portion thereof with specific FOIA exemption(s). Justifies nondisclosure of the particular info. Court can make rational and explained decision without looking at the documents Vaughn v. Rosen and function over format. Consider attaching disclosed some docs for clarity.

Vaughn Index’s CONTENTS for each withholding: Date of document Source or author Recipient(s). Remember waiver issue. Subject matter Nature of document, e.g., letter, memo, brief, etc. Exemptions claimed, matched to each withholding Facts supporting each exemption, per above. Discuss segregability of factual info.

JEOPARDY – REVIEW Don’t page ahead until told to do so.

DECLARATION EXCERPT (b)(5) protects the disclosure of privileged documents which are not ordinarily available to a party in litigation. Principally, there are three categories of such privileged documents: attorney work product, deliberative process, and attorney client Agency applied to Documents XXXX because they related to the deliberative process. Records contain information related to the deliberative process of the agency in its consideration of possible criminal actions against plaintiff or are documents protected by attorney client privilege To disclose info would reveal deliberative process. Disclosure would jeopardize the candid and comprehensive considerations essential for efficient and effective agency decisionmaking.

HOLDING-- Declarant states that documents contain information related to the deliberative process of the agency in its consideration of possible criminal actions against the plaintiff BUT fails to indicate “what deliberative process is involved and the role played by the documents at issue in the course of that process.”

VAUGHN EXCERPT R-6---EMAIL dated March 31, 2006 from J. Brambilla, former Chief of Staff, IBB to C. Booker, former Legal Counsel/Acting General Counsel and an email dated march 30, 2006 from B. Conniff, former Executive Director, to J. Brambilla EXEMPTION (b)(5)—Attorney/Client Commun.—1 email involves a mgmt official requesting another mgmt official seek legal advise from the former Legal Counsel/Acting General Counsel; other email is to the Legal Counsel requesting advice regarding retirees entering the building

HOLDING--SUFFICIENT Defendant satisfied requirements because emails reveal internal deliberations and preliminary thoughts and approaches of BBG employees in consideration of request to obtain unescorted access to federal space—BASED ON IN CAMERA REVIEW

VAUGHN EXCERPT “Memo to File concerning investigation activity” ENTIRE DOCUMENT WITHHELD “Exemption (b)(7)(D) exempts from mandatory release information compiled for law enforcement purposes if its release could reasonably be expected to disclose the identity of a confidential source. This exemption was particularly applied to protect individuals who provided information as confidential sources during a criminal investigation by withholding”

JUDICIAL HOLDING--INADEQUATE Simply quoting the statutory language of an exemption does not meet obligation to provide facts. The declaration effectively implies that the agency decided it was good enough, but the agency hasn’t give the judge the info for the judge to make up his/her own mind. E.g., circumstances of confidentiality.

Training page 6 EXCERPT (b)(7)(E) DECLARATION

HOLDING—ADEQUATE “Declaration explains that the information relating to the techniques and procedures that the FBI is withholding would, if released, identify which among the 27 techniques and procedures listed on the documents were used in subject investigation and the FBI’s evaluation of those techniques. The FBI does not want this information to fall into the hands of other investigative targets who might find information useful in evading detection. The Declaration provides adequate justification for withholding information under 7E.”

EXERCISES Draft Paragraph For Exemptions 5, Training page 7 first. Then Training page 8. Exemption 6, on Training page 9. Separately, p.10 Exemption 7C, on Training page 11 Identify the Exempted info on Training page 20, and note which Exemptions apply to particular info.