Hardy v. ATF/OIG - Opinion and Order filed today

March 23, 2017

In an amazing opinion out of DC District Court just now, the Court granted in part and denied in part each parties' Motion for Summary Judgment.  What does this mean?  Well..... let's look at some of what the Court said:

 

As a threshold matter, the defendants’ Vaughn index is inadequate as it “completely lacks any detail regarding any particular record and does nothing more than generally state that Exemption 5 is satisfied.” Cuban v. SEC, 744 F. Supp. 2d 60, 77 (D.D.C. 2010). See Vaughn Index 1–35 (stating, with respect to each document, that they contain “deliberative, predecisional communications” or “deliberative recommendations and opinions”). These “[b]are and conclusory assertions of the privilege are not sufficient.” COMPTEL v. FCC, 910 F. Supp. 2d at 122; see also Coastal States, 617 F.2d at 861 (noting that conclusory assertions of privilege are not sufficient to carry the government’s burden of proof). As the plaintiff notes, see Pl.’s Opp’n at 14, the Vaughn Index provides the same explanation for the use of Exemption 5, regardless of the type of document, stating that each withheld document consists of “recommendations and opinions contained in the interview statement,” even if the document is clearly not an “interview statement,” but rather a “Workpaper Index and Assignments Worksheet,” an “Email Summary,” an “Interview Workpaper,” “Survey Results,” a “Document Summary,” “Final Survey Data,” “Final Survey Data Analysis,” a “Survey Draft,” or “Survey Question Analysis,” see Vaughn Index at 8–9, 15, 24–25, 32–34. OIG’s repeated explanation, which appears to have just been copied and pasted verbatim throughout the Vaughn Index, is insufficient for “[t]he Court [to] be able to conclude that the defendant’s position is the correct one to sustain the defendant’s withholding of these records.” Cuban v. SEC, 744 F. Supp. 2d at 77; see also Muttitt v. U.S. Dep’t of State, 926 F. Supp. 2d 284, 306 (D.D.C. 2013) (holding that the State Department “failed to provide sufficient information” justifying the use of Exemption 5 with respect to ten documents because the State Department’s defense “of its withholdings in its briefing consists mostly of conclusory quotations from case law that describes the kind of material normally exempt from disclosure under the privilege”). Rather than correct its Vaughn Index, OIG accuses the plaintiff of “playing games by suggesting that these few typographical errors meaningfully detract from the sufficiency of the index,” urging that “[t]he fact that the index inadvertently uses the term ‘interview statement’ in a few entries is completely immaterial given the index also contains a separate (accurate) description of each document in the index’s second column.” Defs.’ Reply at 10 n.3. OIG’s response is as disingenuous as it incorrect: the term “interview statement” is used not “in a few entries,” but for every document withheld under Exemption 5, see Vaughn Index at 1–35, a fact that only highlights OIG’s apparent lack of care in matching the “Brief Description of the Document” in the second column to the fuller “Description of Withheld Information” in the fifth column. To be sure, “a Vaughn index is not a work of literature” and “agencies are not graded on the richness or evocativeness of their vocabularies.” Landmark Legal Found. v. IRS, 267 F.3d 1132, 1138 (D.C. Cir. 2001). Nor is it “the agency’s fault that” documents at issue involve similar grounds for withholding, “thus leading to exhaustive repetition.” Id.; see also Carter, Fullerton & Hayes LLC v. Fed. Trade Comm’n, 520 F. Supp. 2d 134, 142 (D.D.C. 2007) (“While there is some degree of repetition among entries within defendant’s Vaughn index, repetition is to be expected, . . . .”). In this case, however, given the inadequacy of the Vaughn Index, which is riddled with incorrect descriptions and repetitive use of a conclusory legal standard for every withheld document, the declarations are critical in determining whether OIG sufficiently justified the applicability of Exemption 5 with respect to each document withheld.

 

The Court summarized the holding as follows:

 

In sum, as to the “Survey Results” and “Final Survey Data,” OIG’s motion is denied and the plaintiff’s cross-motion is granted.  OIG is therefore enjoined from withholding these documents on the basis of Exemption 5.  With respect to the “Survey Draft,” however, OIG’s motion is granted and the plaintiff’s cross-motion is denied.  Finally, the parties’ cross-motions for summary judgment are denied, without prejudice, with regard to the “Survey Question Analysis” and “Final Survey Data Analysis” documents.  Should OIG choose to continue to withhold these documents, the agency must renew its motion for summary judgment and supplement both its Vaughn Index and declarations, providing adequate descriptions and precisely tailored justifications for nondisclosure.

 

You may ask why this is a big deal.  This specific report categorizes the deficiencies with the NFRTR... The registry for NFA firearms.  As we get additional information, we will update everyone.

 

You can read the Order here, and the Memorandum Opinion here.

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