January 24, 2005
Mimi Hull, President
AUSWR Board Members and general membership
This is a follow-up to my January 7, 2005, report regarding two boxes of papers I received during the last week in December from the Department of Labor (DOL) responsive to the Freedom of Information Act (FOIA) request made in March 2004, the subject of the Hull v. Department of Labor lawsuit filed in the Denver Federal Court.  Today, the United States Attorney who is defending the DOL in this FOIA case, sent me a 31 page fax containing what is known as a "Vaughn Index."  I have attached hereto in Adobe PDF file format, the 31 page index.

In this pending FOIA litigation, the DOL bears the burden of proving grounds for withholding requested records.  The most commonly used device for meeting this burden of proof is the "Vaughn Index," fashioned by the Court of Appeals for the District of Columbia Circuit more than two decades ago in a case entitled Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).  In that case, the federal court rejected the federal agency's conclusory affidavit stating that requested FOIA documents were subject to exemption.  Likewise, in this FOIA proceeding, the DOL initially said it would disclose nothing, that everything in its files that had been requested under FOIA was exempt from disclosure.  We doubted that to be the truth, but, we could not compel the DOL to give us a Vaughn Index until we had filed the civil lawsuit.  It is well settled that a requester is not entitled to receive a Vaughn Index during the FOIA administrative process.

Now that the civil action is pending, the DOL has given us a Vaughn Index.  Although the DOL turned over to me about 4,200 pages of documents, you can see from reviewing the attached Vaughn Index that there are many pages of documents that the DOL contends are exempt from disclosure under FOIA.  And, the fact of the matter is the federal court judge is going to accept the ‘word’ of the DOL.  The case law developed under FOIA shows that federal courts do not allow a requester to engage in discovery to try to prove the DOL is wrong or not telling the truth.

Discovery is greatly restricted in FOIA actions.   See Public Citizen Health Research Group v. FDA, 997 F. Supp. 56, 72 (D.D.C. 1998) ("Discovery is to be sparingly granted in FOIA actions."), aff'd in part, rev'd in part & remanded, 185 F.3d 898 (D.C. Cir. 1999);  Katzman v. Freeh, 926 F. Supp. 316, 319 (E.D.N.Y. 1996) ("[D]iscovery in a FOIA action is extremely limited . . . .");  Center for Nat'l Sec. Studies v. Office of Indep. Counsel, No. 91-1691, slip op. at 3 (D.D.C. Mar. 2, 1993) ("In the context of FOIA cases, discovery is generally inappropriate.").  It is generally limited to the scope of an agency's search, its indexing and classification procedures, and similar factual matters.  In general, courts do not allow even limited discovery until after the government moves for summary judgment and submits its supporting affidavits and memorandum of law.  See, e.g., Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993) ("The plaintiff's early attempt in litigation of this kind . . . to take discovery depositions is inappropriate until the government has first had a chance to provide the court with the information necessary to make a decision on the applicable exemptions.");  Farese v. United States Dep't of Justice, No. 86-5528, slip op. at 6 (D.C. Cir. Aug. 12, 1987) (affirming denial of discovery filed prior to affidavits because discovery "sought to short-circuit the agencies' review of the voluminous amount of documentation requested"); Simmons v. United States Dep't of Justice, 796 F.2d 709, 711-12 (4th Cir. 1986); Military Audit Project v. Casey, 656 F.2d 724, 750 (D.C. Cir. 1981);  Founding Church of Scientology v. United States Marshals Serv., 516 F. Supp. 151, 156 (D.D.C. 1980) (barring discovery until defendant had opportunity to submit second Vaughn affidavit).

Moreover, determinations of whether discovery should be permitted--and, if so, the type and extent of such discovery--are always vested in the sound discretion of the district court.  Regardless, courts do not allow a FOIA plaintiff to engage in discovery efforts into the agency's thought processes for claiming particular exemptions.  Moreover, discovery is not permitted when a plaintiff seeks to obtain the contents of withheld documents--the issue that lies at the very heart of a FOIA case. Pollard v. FBI, 705 F.2d 1151, 1154 (9th Cir. 1983) (affirming denial of discovery when directed to substance of withheld documents at issue);   Public Citizen, 997 F. Supp. at 73 (same);  Katzman, 926 F. Supp. at 319 (same);  Moore v. FBI, No. 83-1541, slip op. at 6 (D.D.C. Mar. 9, 1984) (denying discovery requests that "would have to go to the substance of the classified materials" at issue and noting that "[t]his is precisely the case when the court can and should exercise its discretion to deny that discovery"), aff'd, 762 F.2d 138 (D.C. Cir. 1985) (unpublished table decision);  Laborers' Int'l Union v. United States Dep't of Justice, 578 F. Supp. 52, 56 (D.D.C. 1983) (sustaining objections to interrogatories when answers would "serve to confirm or deny the authenticity of the document held by plaintiff"), aff'd, 772 F.2d 919 (D.C. Cir. 1984).

At this time, we will not be permitted to learn anything more about the nature and scope of the DOL’s investigation.  Discovery is not permitted when the plaintiff is plainly using the FOIA lawsuit as a means of questioning investigatory action taken by the agency or the underlying reasons for undertaking such investigations.  Cecola v. FBI, No. 94 C 4866, 1995 WL 143548, at *3 (N.D. Ill. Mar. 31, 1995) (disallowing deposition concerning factual basis for assertion of Exemption 7(A), as "there is concern that the subject of the investigation not be alerted to the government's investigative strategy");  Williams v. FBI, No. 90-2299, slip op. at 7-8 (D.D.C. Aug. 6, 1991); see also Frydman v. Department of Justice, No. 78-4257, slip op. at 3-4 (D. Kan. Jan. 3, 1990) (denying discovery concerning electronic surveillance investigative practices).

In general, discovery is denied altogether if the court is satisfied from the agency's affidavits that no factual dispute remains, and when the affidavits are "relatively detailed" and submitted in good faith.  Consequently, discovery is routinely denied when the plaintiff's "efforts are made with [nothing] more than a 'bare hope of falling upon something that might impugn the affidavits'" submitted by the defendant agency.  Public Citizen, 997 F. Supp. at 73 (quoting Founding Church of Scientology v. NSA, 610 F.2d 824, 836-37 n.101 (D.C. Cir. 1979)); see Kay v. FCC, 976 F. Supp. 23, 34 n.35 (D.D.C. 1997) (concluding that because plaintiff failed to submit "concrete evidence of bad faith," discovery actually sought only to discredit agency declaration), aff'd, 172 F.3d 919 (D.C. Cir. 1998) (unpublished table decision).

We can try to seek a recovery of attorney's fees and costs.  FOIA contains a "fee-shifting" provision permitting the trial court to award reasonable attorney fees and litigation costs if a plaintiff has "substantially prevailed."   5 U.S.C. § 552(a)(4)(E).   The award of fees and costs is entirely within the discretion of the court.  See, e.g., Anderson v. HHS, 80 F.3d 1500, 1504 (10th Cir. 1996) ("Assessment of attorney's fees in an FOIA case is discretionary with the district court.").  To be eligible for a fee award, the plaintiff must "substantially prevail" within the meaning of subsection (a)(4)(E).  The determination of whether the plaintiff has substantially prevailed is "largely a question of causation." Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1496 (D.C. Cir. 1984);  Church of Scientology v. Harris, 653 F.2d 584, 587 (D.C. Cir. 1981).  The plaintiff must prove that prosecution of the suit was reasonably necessary to obtain the requested records and that a causal nexus existed between the suit and the agency's disclosure of the records.   See, e.g., Maynard v. CIA, 986 F.2d 547, 568  (1st Cir. 1993).

We are not yet prepared to drop this case, simply because the DOL has given us some 4,200 pages of documents records and says the rest - about 1,500 pages - should be withheld because the investigation is “ongoing.”  We will seek further assurances that the investigation is, indeed, continuing and absent some firm declaration from the DOL, we can ask for an in-camera inspection of the withheld documents.  Also, we will pursue a claim for payment of costs and fees, since it took the civil lawsuit to motivate the DOL to make disclosure of the 4,200 pages of documents.
The  status conference concerning the Hull case before Magistrate Judge Schlatter originally set for Thursday, January 27, 2005, has been reset for Tuesday, February 8, at 9:00 a.m.  I will send you a written report about what happens.
Attachment    (DOL's Vaughn Index - 31 pages)