IN DEFENDING THE WITHHOLDING OF RECORDS IN FOIA In FOIA litigation "the burden is on the agency to sustain its action." 5 U.S.C. $552 (a) (4) (B). The Government typically carries the burden by moving for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure and submitting an affidavit (or declaration pursuant to 28 U.S.C. $1746) in support thereof. The affidavit usually begins by identifying the affiant--who must be familiar with the processing of the request and the subject matter of the records--and describing his or her qualifications. It then describes the entire administrative processing of the request, beginning with the request letter, the agency acknowledgment, the determination letter, etc. (It is often helpful to describe here what materials were released, e.g., 200 pages released in their entireties, 20 pages released with excisions, 2 pages withheld in their entireties.) Copies of all relevant correspondence should be included as attachments to the affidavit. Next, depending on circumstances, the affidavit should describe the procedures employed in searching for the requested records. Finally, and most importantly, the affidavit must in some manner describe the items withheld, correlating each item to the exemption asserted and demonstrate that all required elements of each exemption are satisfied. There are a number of alternative procedures by which this last requirement may be satisfied. The following listing includes the most common of these alternatives: 1. The traditional, exhaustive--and exhausting--document by document, page by page, paragraph by paragraph, line by line itemization. See, e.g., Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974); Attachment A (declaration filed in Williams case) (pp. 1-10); Attachment B (Appendix A to opinion in Conoco, Inc. v. U.S. Department of Justice, 687 F.2d 724, 731-32 (3d Cir. 1982) (pp. 11-12). "Coded" affidavit. See, e.g., Attachment C (affidavit filed in Hayward case) (pp. 13-27); 2. 3. "Fill in the blanks" affidavit. See, e.g., Attachment D (affidavit filed in Heimerle case) (pp. 28-33). 4. Categorical or generic affidavit. See, e.g., NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 223-24 (1978) (Exemption 7(A), 1 category); J.P. Stevens & Co. v. Perry, 710 F.2d 136, 140-43 (4th Cir. 1983) (Exemption 7(A), 16 categories); Agee v. CIA, 517 F. Supp. 1335, 1337-38 (D.D.C. 1981) (Exemption 1, 15 categories). But see Campbell v. HHS, 682 F.2d 256, 263-65 (D.C. Cir. 1982) (Exemption 7(A), statement of particularized interference required for those documents submitted by target of the investigation). 5. Refusing to confirm or deny whether requested records exist: the "Glomar" denial. See, e.g., Antonelli v. F.B.I., 721 F.2d 615, 618-19 (7th Cir. 1983) (Exemptions 6, 7 (C) & 7 (D)); Gardels v. CIA, 689 F.2d 1100, 1104-06 (D.C. Cir. 1982) (Exemption 1). See also Attachment E [affidavit filed in Daily Orange Corp. v. CIA, 532 F. Supp. 122 (N.D.N.Y. 1982) (pp. 34-40)]. See, 6. Indexing only a sample of withheld documents. e.g., Airline Pilots Ass'n v. FAA, 552 F. Supp. 811, 813-14 (D.D.C. 1982); Peck v. FBI, 3 GDS 482,353 (N.D. Ohio 1981) [Attachment F (pp. 41-42)]. But cf. Lame v. Department of Justice, 654 F.2d 917, 927-29 (3d Cir. 1981). 1. In camera affidavit. See, e.g., Doyle v. FBI, No. 83-5500, slip op. at 4-6 (9th Cir. Dec. 27, 1983); Hayden v. NSA, 608 F.2d 1381, 1385 (D.C. Cir. 1979), cert. denied, 446 U.S. 937 (1980); Weberman v. NSA, 2 GDS 182,067 (S.D.N.Y. 1981) [Attachment G (pp. 43-44)]. 8. In camera testimony. See e.g, Pollard v. FBI, 705 F.2d 1151, 1154 (9th Cir. 1083) (should be transcribed); North American Man/Boy Love Ass'n v. FBI, 3 GDS 83,094 (S.D.N.Y. 1982) [Attachment H (pp. 45-46)], aff'd mem., 718 F.2d 1086 (2d Cir. 1983). 9. In camera inspection of documents. See, e.g., Ingle v. Department of Justice, 698 F.2d 259, 264-67 (6th Cir. 1983); Allen v. CIA, 636 F.2d 1287, 1291-92 (D.C. Cir. 1980); Williams v. Department of Justice, 556 F.Supp. 63, 64 (D.D.C. 1982) (judge reviews a sample of documents withheld). 10. "Oral Vaughn. See Attachment I (pp. 47-48). 11. Trial of contested issues. See, e.g., National Parks & Conservation Ass'n v. Morton, 547 F.2d 673, 680 (D.C. Cir. 1976). I, Richard L. Huff, declare the following to be true and correct: : 1. I am a Co-Director of the Office of Information and Privacy, Office of Legal Policy, United States Department of Justice. One of the re: onsibilities of my Office is to review files within the Office of the Attorney General, the Office of the Deputy Attorney General and the Office of the Associate Attorney General that are the subjects of Freedom of Information Act and/or Privacy Act requests to determine whether they contain records within the scope of a request and, if so, what portions of those records should be made available to the requester. In processing such requests, I and my staff coordinate with personnel of the three mentioned Offices and, in many cases, personnel of other components of the Department of Justice. I make the statements herein on the basis of personal knowledge, as well as information acquired in the course of performing my official duties. 2. On August 26, 1981, Harrison A. Williams, through his agent Richard Bast, requested access to records pertaining to himself maintained by the Department of Justice (Exhibit A). 3. By letter dated October 30, 1981, Jean K. FitzSimon, Acting Deputy Director, Office of Privacy and Information Appeals, notified Mr. Williams that no records pertaining to him had been located in the Office of the Deputy Attorney General but that caterial had been located in the office of the Attorney General (Exhibit B). These ATTACHMENT A |