District Court Decisions

Clemente v. FBI, No. 08-1252, 2012 U.S. Dist. LEXIS 51974 (D.D.C. Apr. 13, 2012) (Rothstein, J.).  Holding:  Granting, in part, the FBI's motion for summary judgment as to the adequacy of its search; denying, without prejudice, the FBI's motion for summary judgment with respect to the remaining issues; and ordering the FBI to reprocess all the records at issue in accordance with an earlier court order, and not simply the representative sample to which the parties agreed.  The court orders the FBI to reprocess all records at issue, not simply the representative sample to which the parties agreed, in order to address deficiencies identified in the court's earlier order.  The court notes that the FBI has now released certain information, such as references to informants and information identifying third-parties, "in explicit response to Judge Freidman's order from 26.5% of the sample documents."  Referencing the D.C. Circuit's decision in Meeropol v. Meese as a guide, the court finds that this error rate is "'unacceptably high.'"  Moreover, the court notes that, although the FBI has now "released the names of certain dead individuals," suggesting that it made a determination as to life status, its current submissions do not explain "how it determined the life status of individuals named or identified in the sample documents" and finds that there is "no indication that the Bureau applied this method to determine the life status of individuals identified in the non-sample documents."  Likewise, the court determines that the FBI also did not provide sufficient detail for the court to determine whether its withholdings under Exemption 7(E) were appropriate.  Accordingly, the court denies, without prejudice, the FBI's motion for summary judgment as to these issues and notes that it "should address these deficiencies if it renews its motion for summary judgment."

Lardner v. FBI,No. 09-874, 2012 WL 1109728 (D.D.C. Apr. 4, 2012) (Lamberth, J.).  Holding:  Granting, in part, defendants' motion for summary judgment with respect to the adequacy of the FBI's searches for responsive records; and denying, in part and without prejudice, their motion as it pertains to the merits of their withholdings; granting, in part, plaintiff's motion for partial summary judgment to the extent he requested that defendants reprocess the responsive records; and ordering defendants to reprocess a new sample of documents to be identified by plaintiff and to produce a complete Vaughn index addressing all withholdings; ordering DEA and IRS to also reprocess their respective records; and denying as moot plaintiff's motion to compel the release of records.  In the course of preparing its sample Vaughn index, defendants released additional material in 219 of the 289 documents in the sample.  The court finds defendants' Vaughn index "inadequate" where it did not effectively address the additional releases made during the course of litigation.  Despite the FBI's assertion that "the newly released information was the result of discretionary releases of third party names and information previously withheld under Exemptions (b)(6) and (b)(7)(C) [and as a result of its re-review of Exemptions 1 and 5 withholdings], not pure error," the court notes that "[t]he FBI provides no additional justification . . . as to why these documents were suddenly deemed proper for release" and concludes that "the sheer magnitude of the additional releases indicates that the sample is not an accurate illustration of the whole."  In addition, the court finds that "the defendants' Vaughn index indicates that the FBI withheld a significant amount of information under Exemption (b)(2)," and in particular under "High 2," which was abrogated by the Supreme Court's decision in Milner.  The court determines that "[i]n light of the Milner decision, a reprocessing of the responsive documents is justified to allow the FBI to release additional information that was withheld solely under Exemption 2."