Opinion
Case No. 6:02-cv-126-Orl-KRS
May 13, 2003
ORDER
This cause came on for consideration without oral argument on the following motions filed herein:
MOTION: PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO FOIA REQUEST #1-16 AND 21 (Doc. No. 91)
FILED: November 8, 2002
FILED: January 15, 2003
THEREON it is ORDERED that the motion is GRANTED in part and DENIED in part.
MOTION: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT (Doc. No. 119)THEREON ORDERED DENIED.
MOTION: PLAINTIFF'S MOTION TO STRIKE PARAGRAPHS 8, 12, 13, 14 AND 15 OF THE DECLARATION OF NANCY FEINRIDER OR, IN THE ALTERNATIVE, FOR LEAVE TO CONDUCT DISCOVERY (Doc. No. 122)
THEREON it is ORDERED that the motion is GRANTED in part and DENIED in part.
MOTION: PLAINTIFF'S MOTION . . . FOR LEAVE TO FILE A SUPPLEMENT TO ITS MEMORANDUM OF LAW. . . . (Doc. No. 124)THEREON ORDERED DENIED.
MOTION: UNOPPOSED MOTION AND ORDER FOR TWO-DAY ENLARGEMENT OF TIME FOR DEFENDANT TO FILE ITS OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE (Doc. No. 127)THEREON ORDERED DENIED.
MOTION: PLAINTIFF'S MOTION . . . FOR LEAVE TO FILE ITS FEBRUARY 17, 2003 CORRESPONDENCE WITH AMTRAK TO SUPPLEMENT ITS MOTION TO STRIKE. . . . (Doc. No. 131)THEREON ORDERED DENIED.
MOTION: PLAINTIFF'S MOTION . . . FOR LEAVE TO FILE COMPLETE CORRESPONDENCE DELIBERATELY EXCLUDED FROM THE THIRD DECLARATION OF NANCY K. FEINRIDER (Doc. No. 145)THEREON ORDERED DENIED.
On February 2, 2002, the plaintiff, Moye, O'Brien, O'Rourke, Hogan Pickert ("Moye O'Brien"), filed a complaint under the Freedom of Information Act, 5 U.S.C. § 551 et seq. ("FOIA"), seeking records from the defendant, National Railroad Passenger Corporation ("Amtrak"). It seeks to enjoin Amtrak from withholding the documents under FOIA and to compel their production. (Doc. No. 1). Amtrak answered the complaint on March 21, 2002. (Doc. No. 10). The case was referred to me for disposition by consent of the parties. (Doc. No. 34).
Moye O'Brien now seeks partial summary judgment with respect to Amtrak's response to FOIA requests 1 through 16 and 21. (Doc. No. 91). In support of its motion, Moye O'Brien submitted a memorandum of law (Doc. No. 97), the July 25, 2002 Declaration of Beverly E. Walker (Doc. No. 97, ex. 8) (the "Walker Audit Report Decl."); the September 16, 2002 Declaration of Beverly E. Walker (Doc. No. 97, ex. 10) (the "Walker Audit Back-up Materials Decl."); the August 22, 2002 Declaration of Beverly E. Walker (Doc. No. 97, ex. 11) (the "Walker Anchor Bolt Decl."); the Declaration of Medaris Oliveri (Doc. No. 97, ex. 13) (the "Oliveri Decl."); the Affidavit of Christopher Elliott (Doc. No. 97, ex. 21); the FOIA request at issue (Doc. No. 97, ex. 1); correspondence between Amtrak and Moye O'Brien regarding the administrative review of the FOIA request (Doc. No. 97, exs. 2-7, 16); counsel's summary charts (Doc. No. 97, exs. 9, 12, 14); the Amtrak/OIG/Kalkines Law Firm File Organization (Doc. No. 97, ex. 17); various documents produced by Amtrak (Doc. No. 97, exs. 18-20); and the Department of Transportation and Related Agencies Appropriations Bill, 2003 (Doc. No. 97, ex. 15).
Amtrak responded to the motion with Defendant's Opposition to Plaintiff's Motion for Partial Summary Judgment (Doc. No. 120). It supports its response with the Declaration of Nancy K. Feinrider (Doc. No. 120, ex. 1); the Declaration of D. Hamilton Peterson (Doc. No. 120, ex. 2); the Supplemental Declaration of Beverly E. Walker for Items Nos. 15 and 16 of 21 Items in Plaintiff's FOIA Request (Doc. No. 120, ex. 6) (the "Walker Supp. Decl."); the Amended Declaration of Medaris Oliveri for Records Responsive to Item Number 21 of 21 Items in Plaintiff's FOIA Request (Doc. No. 120, ex. 7) (the "Amended Oliveri Decl."); the Amended Declaration of Beverly E. Walker for Item No. 21 of 21 Items in Plaintiff's FOIA Request (Doc. No. 120, ex. 8) (the "Amended Walker Decl."); transcripts of proceedings conducted in this case (Doc. No. 120, exs. 9, 11, 13); a July 10, 2002 letter from Amtrak to Moye O'Brien (Doc. No. 120, ex. 12); and copies of various cases (Doc. No. 120, exs. 3-5, 10).
Amtrak also filed Defendant's Motion for Summary Judgment Or, In the Alternative, For Partial Summary Judgment and Supporting Memorandum of Law. (Doc. No. 119). In support of this motion, Amtrak filed correspondence between it and Moye O'Brien (Doc. No. 119, exs. 2, 3, 6, 9, 10, 11, 12, 13, 14, 17, 18); the December 10, 2002 Declaration of Beverly E. Walker (Doc. No. 119, ex. 15) (the "Walker December 2002 Decl."); transcripts of various proceedings in this case (Doc. No. 119, exs. 4, 5, 7, 8, 16); a Memorandum Opinion and Order in Nation Magazine v. Dep't of State, Civil Action No. 92-2303 (JHG) (Doc. No. 119, ex. 20); and copies of various cases (Doc. No. 119, exs. 1, 19, 21).
Moye O'Brien responded with Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment. (Doc. No. 121). It supports this memorandum with correspondence between Amtrak and Moye O'Brien (Doc. No. 121, exs. B-E), excerpts from Amtrak's Procedures Manual regarding FOIA requests ( id., ex. F), and a copy of an order issued in this case ( id., ex. A).
Moye O'Brien also filed a motion to strike portions of Feinrider's declaration or, in the alternative, to conduct discovery. (Doc. No. 122). It supports the motion with the Affidavit of Thomas F. Blair (Doc. No. 123, ex. C); excerpts from a hearing conducted on September 11, 2001 in In the Matter Of: HSR95 — HE 100-584 NCF Passthrough Issues ( id., ex. E); excerpts of a hearing conducted on August 21, 2002 in In the Matter Between: Amtrak and BBC-MEC ( id., ex. F); correspondence between Moye O'Brien and Feinrider ( id., ex. A); a variety of unauthenticated documents ( id., exs. B, D, G, H, I); and a copy of a decision in Lowrey v. FAA ( id., ex. J). Other documents were filed related to the motion to strike. (Doc. Nos. 124, 127, 131, 145).
As discussed in more detail below, material issues of fact preclude summary judgment on the asserted FOIA exemptions that require a finding that Nancy Feinrider was acting as an attorney rather than in a business capacity as a contract administrator. I will permit discovery to allow the parties to further develop the facts regarding Feinrider's role.
As to the assertion of the internal practices exemption to redact the names of auditors from otherwise nonexempt documents and the assertion of the confidential business or financial information exemption with respect to third-party business information that Amtrak now agrees to disclose, Moye O'Brien's motion for summary judgment is granted and Amtrak's motion for summary judgment is denied. I will review a limited number of documents in camera to determine whether the internal practices exemption applies.
With respect to all other issues, the motions for summary judgment are denied. Amtrak failed to present evidence sufficient to sustain its burden of proving that the claimed exemptions apply to all withheld documents. In the ordinary case, this would result in summary judgment in favor of Moye O'Brien. However, decisions binding on this Court require that the district court to have a sufficiently developed factual record before ruling on the applicability of the claimed FOIA exemptions. See, e.g., Ely v. FBI, 781 F.2d 1487 (11th Cir. 1986); Stephenson v. IRS, 629 F.2d 1140 (5th Cir. 1980); cf. Miscavige v. IRS, 2 F.3d 366, 367 (11th Cir. 1993) ("In reviewing determinations by the district court under FOIA, we must decide whether the district court had an adequate factual basis to render a decision that is not clearly erroneous."). In an abundance of caution, therefore, I will hold evidentiary hearings to permit the parties to present a more complete factual record regarding the claimed exemptions.
Following is a discussion of the basis for the limited granting of Moye O'Brien's summary judgment motion. I will also review the deficiencies in Amtrak's submission and the issue of fact regarding Feinrider's role. This analysis should be considered a guide to the evidence that the Court considers important in determining the applicability of the claimed exemptions.
II. FACTUAL BACKGROUND.
In 1991, Congress appropriated funds to Amtrak to create a high speed rail corridor between Washington, D.C. and Boston, Massachusetts. (Feinrider Decl. ¶ 2; Peterson Decl. ¶ 5). The project was known as the Northeast Corridor Electrification Project, sometimes referred to herein as the Project. (Feinrider Decl. ¶ 1; Peterson Decl. ¶ 5). Later that year, Amtrak entered into a contract with the joint venture of Morrison Knudsen and Spie Group to design and construct the electrification of the tracks on the north end of Amtrak's northeast corridor, which runs from New Haven, Connecticut to Boston, Massachusetts. The parties mutually agreed to terminate this contract in 1995. (Feinrider Decl. ¶¶ 2-3; Peterson Decl. ¶¶ 6-7).
In December 1995, Amtrak entered into a design and build contract with the joint venture known as BBC-MEC to complete the work on the Project. Among other things, the contract specified the grades and quality of materials to be used on the Project and the applicable standards of workmanship. (Feinrider Decl. ¶ 5). It also required Amtrak to appoint a Contracting Officer who was authorized by Amtrak to administer the contract on its behalf. (Elliott Aff. ¶ 7). Between 1996 and 1999, the Contracting Officer was John Popoff. After Popoff left, Steve Alleman became the Contracting Officer. Christopher Elliott, formerly the Project Director for BBC-MEC and now its executive in charge of the Project, avers that attorney Nancy Feinrider served as the Contract Administrator for Popoff and Alleman. (Elliott Aff. ¶ 8). Feinrider denies that she served in that capacity. (Feinrider Decl. ¶ 12). Feinrider, who was associated with the law firm of Kalkines, Arky, Zall Bernstein, LLP, which later merged with Manatt, Phelps Phillips, LLP ("Manatt Phelps"), avers that she has been outside counsel for Amtrak with respect to the legal work on the Project since December 1997. ( Id. ¶ 8). Her law firm replaced Holland Knight, the previous Project counsel. ( Id.).
The contract has a dispute resolution mechanism. It requires that all requests for equitable adjustments ("REAs") claiming $100,000 or more be submitted to a dispute resolution board, referred to as the DRB, if not resolved by the parties. ( Id. ¶ 9). BBC-MEC submitted more than 600 Requests for Equitable Adjustment ("REA") to Amtrak and approximately thirty claims for contract price increases for construction costs arising from changes to the original design. ( Id. ¶ 6). Other than claims pending before the DRB, the only litigation between Amtrak and BBC-MEC was one action in federal court over the scope of a subpoena. (Elliott Aff. ¶ 12).
From the inception of the Project, Amtrak conducted project audits. The audits of BBC-MEC included audits regarding various contract allowance items and REAs and audits to determine the accuracy and reasonableness of BBC-MEC's claims. (Peterson Decl. ¶ 12). As a part of some of the audits, Amtrak auditors reviewed financial information from BBC-MEC files. (Elliott Aff. ¶ 21). The audit section of Amtrak's Office of the Inspector General ("OIG-Audit") prepared final audit reports of some of these audits, and it transmitted them to Amtrak's management. Amtrak's Office of the Inspector General ("OIG") also referred to some of the final audit reports in its mandatory semi-annual reports to Congress. (Peterson Decl. ¶ 14).
Amtrak had numerous disputes with BBC-MEC about contract claims and other matters. (Feinrider Dec. ¶ 14). Some of those disputes involved anchor bolts. In 1996, Amtrak wrote to BBC-MEC about two anchor bolts that snapped off a pier after being hit by a construction vehicle. Amtrak requested that BBC-MEC state what action it was taking to ensure that all anchor bolts used to date met specifications and were acceptable. ( Id. ¶ 18 attachment B). In 1997 and 1998, BBC-MEC sought compensation arising from damage to foundation anchor bolts. This dispute was never submitted to the DRB. ( Id. ¶ 15).
On May 18, 2000, Amtrak sent a letter to BBC-MEC addressing impact testing of the anchor bolts. (Elliott Aff. ¶ 10 exhibit A). In 2000, Amtrak began exploring its potential claims against BBC-MEC related to the anchor bolts used on the Project. It raised these potential claims as a defense to BBC-MEC's request for a final acceptance certificate for the Project. (Feinrider Decl. ¶ 16 attachment C). Amtrak provided expert reports relating to its anchor bolt claims to BBC/MEC and the DRB in August 2002. (Feinrider ¶ 16). The anchor bolt claims were withdrawn as an objection to issuance of the final acceptance certificate on September 10, 2002. (Elliott Aff. ¶ 14).
In conjunction with the Department of Justice, the United States Attorney's Office in New Haven, Connecticut and the Federal Bureau of Investigation, Amtrak's OIG initiated a series of ongoing civil and criminal investigations of BBC-MEC shortly after BBC-MEC began work on the Project. (Peterson Decl. ¶ 15). Some of these investigations involve BBC-MEC's representations regarding anchor bolts that it and its subcontractors supplied to and installed on the Project. ( Id. ¶ 17). The purpose of the investigations is to determine whether BBC-MEC or others connected with BBC-MEC and the Project defrauded Amtrak and obtained federal funds to which they were not legally entitled. The schemes to defraud under investigation include whether inflated claims were submitted for payment, whether deficient or noncompliant materials were used and whether false or fictitious claims or statements were made in connection with the Project. (Peterson Decl. ¶¶ 15-16).
Although the date when the investigation commenced is not contained in the evidence, the anchor bolt investigation began before Moye O'Brien submitted its FOIA request. (Peterson Decl. ¶ 18). The evidence discloses that a subpoena duces tecum was issued to BBC-MEC and search warrants were executed in June 2000. ( Id.).
During the course of the investigation, OIG and DOJ investigating attorneys supervised the creation of a computer database, known as the Microsoft Access Database, solely for OIG's internal use. This database identifies certain issues that OIG has determined are pertinent to one or more of the ongoing investigations. (Peterson Decl. ¶ 20).
III. THE FOIA REQUESTS.
In a letter dated May 1, 2001, Moye O'Brien sent Amtrak twenty-one numbered FOIA requests for documents related to the Project. (Doc. No. 97, ex. 1). Moye O'Brien represents that the documents requested relate to the contract between Amtrak and BBC-MEC. (Doc. No. 91 at 2).
Requests I through 16 seek audit documents prepared when BBC-MEC was involved in the Project and specific final audits. Requests 17 through 20 seek audit documents created when the Morrison Knudsen/Spie Group joint venture was involved in the Project. Request 21 seeks documents related to the issue of anchor bolts used in the Project. (Doc. No. 97, ex. 1).
By letter dated July 20, 2001, Amtrak denied the FOIA request based on specified FOIA exemptions. It notified Moye O'Brien that it could appeal the denial within thirty days of the date of the letter. (Doc. No. 97, ex. 2).
In an August 20, 2001, letter to James T. Lloyd, Senior Vice President and General Counsel of Amtrak, Moye O'Brien appealed the denial of the FOIA request. (Doc. No. 97, ex. 4). By letter dated October 8, 2001, Lloyd told Moye O'Brien that he could not address the merits of the appeal because "virtually all of the documents subject to your request are in the possession of Amtrak's Office of the lnspector General (OIG)." (Doc. No. 97, ex. 6). On February 4, 2002, Moye O'Brien filed its complaint in this case. (Doc. No. 1).
By letter dated May 14, 2002, Amtrak's FOIA officer, Oliveri, provided "an additional response" to the original FOIA request. The letter stated that Amtrak had identified approximately 1800 boxes of potentially responsive records. Amtrak estimated that the costs to process the request would exceed $171,000.00. It requested payment of $171,000.00, within forty-five days of the date of the letter, before it would begin processing the FOIA request. (Doc. No. 97, ex. 7).
Thereafter, 1 held a series of conferences with the parties. I ordered that responses to the FOIA requests be staged and required Amtrak to respond to groups of requests in turn. (Doc. No. 67). Through the course of these conferences, Moye O'Brien refined its FOIA requests, and Amtrak revised its estimates of the number and location of responsive documents. (See, e.g., Doc. Nos. 68, 74, 77). Moye O'Brien paid or committed to pay all estimated fees for searching for documents responsive to FOIA requests 1 through 16 and 21. (See Doc. No. ¶ 9 at 7, 11, 14; Doc. No. 121 at 1-2). The resolution of the remaining FOIA requests, including searching for electronic mail and other computer-stored records, remains pending.
IV. APPLICABLE LAW.
Congress enacted the FOIA to enable the public to have access to government information unnecessarily shielded from public view. . . . The Act requires federal agencies to release requested information unless the information is covered by at least one of nine statutory exemptions. In keeping with the philosophy of broad disclosure underlying the FOIA, we interpret the exemptions narrowly. . . . Moreover, the government agency that seeks to withhold information bears the burden of proving that an exemption applies.Nadler v. U.S. Dep't of Justice, 955 F.2d 1479, 1484 (11th Cir. 1992) (internal citations omitted). Although Amtrak is not a federal agency, it must comply with FOIA pursuant to statute. 49 U.S.C. § 24301 (e).
The district court must have an adequate factual basis to render a decision about the applicability of FOIA exemptions. Miscavige v. IRS, 2 F.3d 366, 367 (11th Cir. 1993). "It is well established in this Circuit that in most situations blanket objections and mere conclusory allegations or affidavits will not suffice for disposition of FOIA claims." Id. "[A]ffidavits can be sufficient for summary judgment purposes in a FOIA case if they provide as accurate a basis for decision as would sanitized indexing, random or representative sampling, in camera review or oral testimony." Id. at 368. If the affidavits do not provide an adequate basis for decision, the Court may require the agency to submit the documents for in camera review or to provide a Vaughn Index, which is "a detailed index showing justification for withholding each document." Id. at 367-68 (citing Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)). "[I]n camera review `is to be utilized in only the rare case such as . . . [when] the disputed documents are relatively brief, few in number, and where there are few claimed exemptions.'" Ely v. FBI, 781 F.2d 1487, 1493 (11th Cir. 1986) ( quoting Currie v. IRS, 704 F.2d 523, 531 (11th Cir. 1983)). "Vaughn Indexes are most useful in cases involving thousands of pages of documents." Miscavige, 2 F.3d at 368.
V. ANALYSIS.
A. Exhaustion of Administrative Remedies.
After this lawsuit was filed, Amtrak provided a "supplemental response" to the FOIA request in which it indicated that it had approximately 1800 boxes of potentially responsive documents. Because that notice came so late in time — long after Amtrak's initial assertion of blanket exemptions to the request and its refusal to process the appeal — and because the issues in dispute were wide-ranging, I entered orders requiring resolution of different groups of FOIA requests at different times. All fees have been paid or committed to be paid for FOIA requests 1 through 16 and 21, which are the requests at issue here.
Amtrak argues that summary judgment must be granted in its favor because Moye O'Brien has not paid costs incurred by Amtrak for designing the E-mail Retrieval and Collection Estimate. (Doc. No. 119 at 15). As noted above, I staged review of the FOIA requests in this case in order to address the issues in more manageable groups. The issue of production of electronic mail and other computer-stored records is not before me in the instant motions. Moreover, the record does not reflect that Moye O'Brien refused to pay reasonable estimated costs for responding to FOIA requests not yet ripe for consideration by the Court. Therefore, I find Amtrak's argument that Moye O'Brien must pay the costs for FOIA requests not at issue does not support summary judgment in its favor.
None of the cases cited by Amtrak involve litigation in which the court decided to consider and resolve FOIA requests in groups, rather than altogether. In many of the cases, the requester failed to pay any of the requested costs. See, e.g. Pollack v. Dep't of Justice, 49 F.3d 115 (4th Cir. 1995); Judicial Watch v. FBI, 190 F. Supp.2d 29 (D.D.C. 2002); Trueblood v. U.S. Dep't of the Treasury, 943 F. Supp. 64 (D.D.C. 1996); Strout v. U.S. Parole Comm'n, 842 F. Supp. 948 (E.D. Mich. 1994) (Court found that agency did not err in requiring plaintiff to pay search costs before it delivered the requested documents.). In Trenerry v. IRS, 78 F.3d 598, 1996 WL 88459 (10th Cir. Mar. 1, 1996), the plaintiff had outstanding fees due for an earlier FOIA request. The court refused to take jurisdiction of the new FOIA request until the outstanding fee was paid. The other cases cited by Amtrak involve failure to exhaust presuit administrative remedies. See, e.g., Taylor v. Appleton, 30 F.3d 1365 (11th Cir. 1994); Oglesby v. U.S. Dept. of the Army, 920 F.2d 57 (11th Cir. 1990).
I find that Moye O'Brien's payment and commitment to pay search fees with respect to FOIA requests 1 through 16 and 21 is sufficient to permit the Court to resolve the summary judgment motions with respect to these requests, even though the processing of other requests are pending. Accordingly, Amtrak's request for summary judgment on this basis is denied.
B. Exemptions from Disclosure.
Amtrak relies on several exemptions to support withholding documents responsive to the FOIA requests at issue. I will address the exemptions with respect to the specific FOIA requests. Thereafter, I will address Moye O'Brien's argument that Amtrak has not conducted a complete search for documents responsive to FOIA request 21.
1. Exemptions Claimed To Documents Responsive to FOIA Requests 1 Through 14.
Amtrak states that it located the final audit reports described in FOIA requests 2, 3, 4, 7, 8, 11, 12 and 13. (Walker Audit Report Decl. ¶¶ 10, 13). It disclosed these records to Moye O'Brien, except that it redacted confidential commercial or financial information obtained from a third party from two final audit reports responsive to FOIA request 13. ( Id. ¶¶ 14-15). Amtrak asserts that the redacted information is protected by 5 U.S.C. § 552 (b)(4) ("exemption 4").
Amtrak avers that it has not located records responsive to FOIA requests 1, 5, 6, 9 and 10. It attests that the Amtrak OIG did not always complete announced audits and did not always issue final audit reports. Nevertheless, it does not state whether the final audit reports described in FOIA requests number 1, 5, 6, 9 and 10 were issued. (Walker Audit Report Decl. ¶¶ 10-12; see also Peterson Decl. ¶ 12).
Amtrak avers that it located twenty-eight draft audit reports responsive to FOIA request 14. ( Id. ¶ 13). It withheld approximately 200 pages of these records under the deliberative process exemption within 5 U.S.C. § 552 (b)(5) ("exemption 5"). ( Id. ¶ 16). Moye O'Brien asserts that Amtrak has not established that this exemption applies to these documents.
Confidential Business and Financial Information Exemption.
With respect to confidential information redacted from two final audit reports, Walker stated in her July 25, 2002 declaration that Amtrak was "attempting to obtain that third party's determination about whether it considers OIG's summaries of its commercial and financial information contained in the reports as remaining confidential." (Walker Audit Report Decl. ¶ 15). In a third declaration, Oliveri avers that the third party has not responded to Amtrak's inquiry. Therefore, Amtrak intends to disclose the previously redacted information. (Doc. No. 151). Based on this representation, I determine that Moye O'Brien's request for summary judgment with respect to the redaction of information from two final audit report under exemption 4 should be granted, and Amtrak's motion for summary judgment with respect to these redactions should be denied.
Deliberative Process Exemption.
Exemption 5 states that the FOIA disclosure requirements do not apply to matters that are "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552 (b)(5). "The test we apply under Exemption 5" is whether the documents would be `routinely' or `normally' disclosed upon a showing of relevance.'" Nadler, 955 F.2d at 1490.
Amtrak must prove two elements to sustain the deliberative process assertion. "First, the document must be `predecisional,' i.e., `prepared in order to assist an agency decisionmaker in arriving at his decision.'" . . . Second, it must be `deliberative,' that is, `a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters.'" Id. at 1491 (internal citations omitted). "[P]urely factual material that does not reflect the agency's deliberative process generally is not protected. . . . Factual material may be withheld, however, when that material is so inextricably connected to the deliberative material that its disclosure would reveal the agency's decision making processes . . . or when it is impossible to segregate in a meaningful way portions of the factual information from the deliberative information." Id.
With respect to the "deliberative process" involved in audits, D. Hamilton Peterson, an attorney for the Inspector General of Amtrak, avers that the OIG "was created to oversee and centralize both audit and investigative functions in order to combat fraud, waste, and abuse." (Peterson Decl. ¶ 4). The OIG-Audit department has responsibility for conducting audits of various Amtrak activities and of companies working under contract with Amtrak. ( Id. ¶ 17). "Audit issues" are also pursued at the direction of OIG counsel or after consultation with OIG counsel. ( Id. ¶ 9). Before an audit begins, a Senior Director of the OIG-Audit department selects the auditor to be assigned to the audit and prepares a memorandum stating the justification for selecting the auditor. ( Id. ¶ 18). Audit steps include a preliminary survey that provides the background information and outlines the objectives, scope and timing of the audit. ( Id. ¶ 9) The auditor is required, among other things, to be "responsible for recognizing and investigating any evidence of irregular circumstances, which may indicate fraudulent activity by the auditee." ( Id. ¶ 9). The auditor creates work papers that reflect the auditor's professional judgment about how to conduct the audit, whether claims are valid, and so forth. ( Id. ¶¶ 10-11). The auditor prepares a draft audit report that senior auditors review and comment on before a final audit report is prepared as a confidential communication to Amtrak management. Peterson opines that this is a deliberative process. ( Id. ¶¶ 11, 14).
Amtrak avers generally as to each draft audit report withheld from production as follows:
The document contains handwritten notes and edits. The document represents pre-decisional deliberations and contains recommendations and suggestions with regard to formulating a final audit report. It reflects the personal opinions of the auditor(s) and/or his or her or their supervisor. Disclosure of this document would discourage frank, open discussion on matters of policy between OIG subordinates and superiors and would render OIG employees reluctant to express their opinions on important matters facing OIG, to the detriment of the OIG's decision-making process.
It makes the same assertion regarding draft transmittal memos and a fax cover sheet. Amtrak asserts that release of draft exhibits and attachments to some of the reports, the content of which are not described, "would reveal the auditor's preliminary conclusions and calculations, and would further chill future OIG deliberations." (Walker Audit Reports Decl. ¶¶ 16).
Amtrak's conclusory averments are insufficient to establish that the draft audit reports were predecisional and part of a deliberative process. Among other things, Amtrak does not provide the following information:
It does not state the purpose of each audit: was it merely a routine reconciliation of payments against invoices or was it conducted to help a decision maker address a specific issue? See, e.g., EPA v. Mink, 410 U.S. 73, 89 (1973) ("Exemption 5 . . . requires different treatment for materials reflecting deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other.").
It does not describe the Amtrak decision or policy discussion of which each audit was a part. See, e.g., Covington Burling v. Food and Nutrition Serv., 744 F. Supp. 314, 320 (D.D.C. 1990) ("To be ruled predecisional, the court must `be able to pinpoint an agency decision or policy to which these documents contributed.'"); see also Jowett v. Dep't of the Navy, 729 F. Supp. 871 (D.D.C. 1989) (evidence showed that audit was done at the request of a contracting officer to assess the merits of a request for equitable adjustment of a claim).
It does not address who had the authority to approve the final audit report, whether that "decision maker" approved the draft audit report or any part of it, or whether the substance of the "draft" was changed before it was adopted in final form. See Fla. House of Representatives v. U.S. Dep't of Commerce, 961 F.2d 941, 946 n. 4 (11th Cir. 1992) ("By expressly adopting the reasoning of her subordinate, the decisionmaker has in effect converted a rejected proposal into the rationale for the agency's working law. As a consequence, the documents are no longer considered predecisional for they now support and explain the agency's position in the same manner a postdecisional document explains an agency decision.").
Finally, Amtrak does not explain in sufficient detail why purely factual portions of each audit report, if any exist, should not be disclosed even if the draft audit report also contains exempt material. See, e.g., Playboy Enterprises, Inc. v. Dep't of Justice, 677 F.2d 931, 935 (D.C. Cir. 1982) (summary of facts uncovered during an investigation severable when the purpose of the investigation was merely to gather facts).
2. Exemptions Claimed To Documents Responsive to FOIA Requests 15 and 16.
Amtrak also withholds many documents responsive to FOIA requests 15 and 16, referred to generally as audit back-up materials, based on the internal practices exemption, 5 U.S.C. § 552 (b)(2)("exemption 2"), the deliberative process exemption and the work product exemption, both of which are included within exemption 5. Both parties seek summary judgment on the internal practices exemption and the deliberative process exemption asserted with respect to these documents.
Neither party addressed the propriety of the work product exemption as it pertains to documents responsive to FOIA requests 15 and 16. Therefore, I will not address this exemption in connection with the documents listed in the index to the Walker Audit Back-Up Declaration.
Internal Practices Exemption.
The internal practices exemption protects matters that are "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552 (b)(2). "[T]he general thrust of the exemption is simply to relieve agencies of the burden of assembling and maintaining for public inspection matter in which the public could not reasonably be expected to have an interest." Dep't of the Air Force v. Rose, 425 U.S. 352, 369-70 (1976). One court has divided documents protected by exemption 2 into two categories.
The first category covers trivial administrative data, or so-called "Low 2 exemptions," which include file numbers, mail routing stamps, data processing notations and other administrative markings. . . . The second category, "high 2," consists of predominately internal documents the disclosure of which would likely circumvent agency regulations and statutes.Schreker v. U.S. Dep't of Justice, 74 F. Supp.2d 26, 31 (D.D.C. 1999), aff'd in pertinent part and rev'd in other respects, 254 F.3d 162 (D.C. Cir. 2001).
Amtrak avers that, pursuant to exemption 2, it has withheld materials "such as the identity of auditors performing the audit work." (Walker Audit Back-up Materials Decl. ¶¶ 11; accord Walker Supp. Decl. ¶ 8). Therefore, it deleted the "names of the individual(s)" from several auditor's statements, (Walker Audit Back-up Materials Decl., index [Auditor's Statements of Independence, Bates Nos. 5028, 5029, 5428-33, 201854, 202316, 202518-21, 202892, 204571]; Walker Supp. Decl., doc. nos. 38, 46, 76, 110), and from two cover sheets, (Walker Audit Back-up Materials Decl., index [Cover Sheets Bates Nos. 5244, 203169]).
Personnel directories containing the names and addresses of agency employees may be properly withheld under exemption 2. See Hale v. U.S. Dep't of Justice, 973 F.2d 894, 902 (10th Cir. 1992) (FBI personnel directories containing the names and addresses of FBI employees properly withheld under exemption 2). However, Amtrak has not cited any case in which a court concluded that exemption 2 permitted an agency to redact names of individuals before disclosing otherwise nonexempt documents. As discussed in more detail below, for purposes of exemption 5, the identity of an auditor is often important to make a determination of whether that auditor's work was part of the agency's deliberative process. See, e.g., Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 868 (D.D.C. 1980) ("The identity of the parties to a memorandum is important; a document from a subordinate to a superior official is more likely to be predecisional, while a document moving in the opposite direction is more likely to contain instructions to staff explaining the reasons for a decision already made."). Because there is no issue of fact regarding the redaction of auditor's names from auditor statements and the cover sheets produced by Amtrak, I find that Moye O'Brien's motion for summary judgment should be granted with respect to the assertion of exemption 2 as to these redactions, and Amtrak's motion for summary judgment should be denied with respect to the assertion of exemption 2 as to these redactions.
Amtrak also withheld electronic mail regarding engagement letters and a fax cover sheet in their entirety under exemption 2. (Walker Audit Back-up Materials Decl., index [Email re: Engagement Letters, Bates No. 201868; Fax Cover Sheet Bates No. 202837]). I cannot determine from the brief description of the electronic mail and fax cover sheet withheld whether these are merely transmittal documents that may be exempt from production, or whether they also contain substantive information. Therefore, I will review these documents in camera to assess the application of exemption 2 to them.
Deliberative Process Exemption.
As to most of the documents withheld under the deliberative process exemption, Amtrak avers generally as follows:
The document represents pre-decisional deliberations and contains recommendations and suggestions with regard to formulating a final audit report. Disclosure of this document would discourage frank, open discussion on matters of policy between OIG subordinates and superiors and would render OIG employees reluctant to express their opinions on important matters facing OIG, to the detriment of the OIG's decision-making process.
(Walker Audit Back-up Material Decl. ¶ 10 and attached index; Walker Supp. Decl. ¶ 7 and attached index). It additionally avers, as to some of the documents, as follows:
In its response to Moye O'Brien's motion for summary judgment, Amtrak refers to the indices as Vaughn indices. A true Vaughn index identifies discrete portions of documents and identifies the exemption pertaining to each portion of the document. See Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973). In most cases, such an index provides the date, source, recipient, subject matter and nature of each document in sufficient detail to permit the requesting party to argue effectively against the claimed exemptions and for the court to assess the applicability of the claimed exemptions. See, e.g., Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 248-51 (D.C. Cir. 1977). The indices filed by Amtrak do not meet this level of specificity.
In addition, disclosure of this document would provide to the reviewer critical insight into the audit process, which would enable a requester to circumvent the audit process in the future.
(Walker Supp. Decl., attached index).
With respect to a document described as "confidential communications from a consultant retained by Amtrak," Amtrak avers as follows:
Disclosure of this document would also discourage frank, open discussion between Amtrak agents and Amtrak's Counsel on matters of formulating a final ligation position and would make Amtrak agents reluctant to express their opinions on important matters facing Amtrak, to the detriment of the corporation's decision-making process.
( Id., index [Amtrak's Consultant Settlement Memorandum to Amtrak, Bates Nos. 201320-323.]).
Amtrak's evidence to support applying the deliberative process privilege to these documents is insufficient for the same reasons it was insufficient as to the draft audit reports. Without knowing the audits to which each back-up document relates, and the context in which each audit was conducted, I am unable to determine whether these documents were part of a deliberative process. In at least one instance, it is impossible to determine from the description of the document whether it relates to an audit. ( Id., index [Notes to File, Bates No. 203755]).
Moreover, the descriptions of some of the back-up materials suggest that they are postdecisional rather than predecisional documents. Postdecisional documents are not exempt under the deliberative process exemption. NLRB v. Sears, Roebuck Co., 421 U.S. 132, 151 (1975) ("[C]ommunications made after the decision and designed to explain it" are not within deliberative process exemption.).
Several documents refer to "exit conferences." (E.g., id., index [Auditor's Memorandum to File regarding MOU II Acceleration Payment Audit Exit Conference Bates Nos. 5445-51; Internal Memorandum, Bates Nos. 202257-202258; Auditor's Internal Exit Conference Notes Bates Nos. 204587-592; Auditor's Memorandum to File regarding Hayward Baker Audit Exit Conferences, Bates Nos. 204572-204585; Interoffice Memorandum, Bates No. 204796; Interoffice Memorandum, Bates Nos. 204855-871; Interoffice Memorandum, Bates No. 204872]). Amtrak does not explain when or why an "exit conference" is conducted or whether it had reached a decision before conducting such a conference.
Other documents refer to evaluations of and responses to audits. (See, e.g., id., index [Interoffice Memorandum, Bates No. 5002; Internal Memorandum re Audit Report — Equipment Charges — Moveable Bridges-Report #01-303, Bates No. 202431; Internal Memorandum re Audit Report — Equipment Charges — Moveable Bridges-Report #01-303, Bates No. 202432-33; Internal Memorandum re Audit Report — Sales and Use Tax Audit, Northend Electrification Project — #01-301, Bates No. 202843-857; Internal Memorandum re Audit Report Harmonic Filters Allowance Item Report #00-301, Bates No. 202965-966; Internal Memorandum re Audit Report #206-1998, Bates No. 204608; E-mails and Internal Memorandum re Hayward Baker Audit Report #98-214, Bates Nos. 204873-877]). These descriptions suggest that the author of the document was responding to a decision that had been made. Another document discusses disposition of audit workpapers. ( Id., index [Auditor's Handwritten Notes re disposition of workpapers for Hayward Baker pre-award audit Bates No. 204526]).
Some of the withheld documents appear to be statements of agency policy regarding how to conduct audits generally. (E.g., id., index [Independent Review Checklist, Bates Nos. 5016-5018; Audit Review Checklists Bates Nos. 5418-25]). If so, these documents may not be protected by the deliberative process exemption. See Coastal States Gas Corp., 617 F.2d at 868.
3. Exemptions Claimed To Documents Responsive to FOIA Request 21.
Amtrak disclosed more than 1000 pages of documents responsive to FOIA request 21. (Amended Oliveri Decl. ¶ 22). It withheld all additional documents responsive to FOIA request 21 based upon the law enforcement exemption, 5 U.S.C. § 552 (b)(7)(A)("exemption 7(A)"), and the deliberative process, attorney-client, and work product exemptions encompassed by exemption 5. (Amended Walker Decl. ¶ 18; Amended Oliveri Decl. ¶¶ 23-24; Walker December 2002 Decl. ¶ 10). It also withholds a database printout and portions of other documents under exemption 2. (Amended Walker Decl. ¶ 18; Amended Oliveri Decl. ¶ 24).
In her original declaration, Oliveri asserts exemption 4 with respect to a portion of a document. (Oliveri Decl. ¶ 20). She did not again rely on this exemption in her amended declaration. Therefore, I am uncertain whether Amtrak still asserts that this exemption applies. Accordingly, I will not reach the question of the applicability of exemption 4 to this document at this time.
Amtrak avers that it identified documents potentially responsive to FOIA request 21 in the following locations: (1) a collection of Amtrak project official files which were retained by the Amtrak project office and which were identified through use of the document control database; (2) a collection of Amtrak project records which were compiled by Amtrak's OIG in connection with its ongoing investigation of BBC-MEC's role in the Project and which were identified through the Microsoft Access Database; and (3) approximately thirty-four boxes of BBC-MEC subcontractor documents that the OIG subpoenaed from BBC-MEC's subcontractors and vendors on the Project. It also located an additional box of potentially responsive documents which OIG investigators had assembled for OIG's anchor bolt investigation. Additionally, it obtained a print-out of all entries in its Microsoft Access Database. (Amended Walker Decl. ¶¶ 8-12, 16; Walker December 2002 Decl. ¶¶ 2, 6).
With respect to the records compiled by Amtrak's OIG, Amtrak describes the documents only by categories, as follows:
• External Correspondence Concerning OIG's Anchor Bolt Investigation ("External Correspondence");
• Correspondence;
• Reports on Anchor Bolt Testing and Status ("Reports");
• Cost Data;
• Project Specifications ("Specifications");
• Project Work Instructions ("Work Instructions");
• BBC-MEC Internal Communications ("Internal Communications");
• Microsoft Access Database Print-Out ("Database Print-Out").
(Amended Walker Anchor Bolt Decl., ¶¶ 14, 16; Walker December 2002 Decl. ¶ 10).
Internal Practices Exemption.
Amtrak specifically asserts that exemption 2 permits it to withhold the following information responsive to FOIA request 21: two fax transmittal sheets (Amended Oliveri Decl., doc. nos. 2, 13); a consultant Invoice to Amtrak counsel ( id., doc. no. 8); routing slips ( id., doc. no. 14; Oliveri Decl., Internal Amtrak Memorandum, AP0148-49); transmittal sheets (Amended Oliveri Decl., doc. nos. 17, 18, 20, 25, 33, 39, 40, 41; Oliveri Decl., Consultant Communication with Amtrak Counsel with Attachment, Bates No. AP0143-47; Draft Test Results Concerning Anchor Bolt Prepared by a Consultant with Attachment, Bates No. AP0238-43; Consultant's Draft Proposal for Anchor Bolt Testing, Bates No. AP0244-47; Consultant's Proposal for Amtrak High Speed Rail Project, Bates No. AP0248-55; Amtrak Counsel's Memorandum, Bates No. AP0256-57; Consultant's Curriculum Vitae, Bates No. AP0259-93; OIG Memorandum to Amtrak's Counsel and Amtrak Staff Concerning Anchor Bolt Testing with Attachments, Bates No. AP0346-55; Amtrak's Counsel Draft Memorandum and Compilation with Attachments, Bates No. AP0365-88; Amtrak's Counsel Memorandum to Client with Attachments, Bates No. AP0764-77); a consultant's business card (Amended Oliveri Decl., doc. no. 19); portions of tables in the document control database ( id., doc. no. 46; Oliveri Decl., Four Tables in the Document Control Database); and an Amtrak Counsel's Litigation Database (Amended Oliveri Decl., doc. no. 47; Oliveri Decl., Amtrak Counsel's Litigation Database). As to each of these documents, Amtrak also claimed another exemption. Because summary judgment cannot be granted at this time with respect to the other claimed exemptions, I find that it is appropriate to withhold ruling on the propriety of these exemption 2 claims pending the resolution of the other asserted exemptions.
Attorney-Client Privilege Exemption.
Exemption 5 exempts from disclosure documents protected by the attorney-client privilege. See, e.g., Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1997). The attorney-client privilege is narrowly construed and is limited to disclosures necessarily made to obtain informed legal advice which might not have been made absent the privilege. See Coastal States Gas Corp., 617 F.2d at 862. It includes an attorney's written communications to a client. Id.
The agency must show that the communications were confidential. Mead Data Cent., Inc., 566 F.2d at 254. It can do so by demonstrating that "the communication is based on confidential information provided by the client," id., and that the documents "were circulated no further than among those members `of the organization who are authorized to speak or act for the organization in relation to the subject matter of the communication.'" Coastal States Gas Corp., 617 F.2d at 863 (quoting Mead Data Cent., Inc., 566 F.2d at 253 n. 24).
Amtrak asserts the attorney-client privilege for all or a portion of documents described in the Amended Oliveri Declaration. (Amended Oliveri Decl., doc. nos. 6, 7, 10, 11, 14, 15, 16, 20, 24, 26, 30, 31, 33, 42). The documents for which Amtrak asserts the attorney-client privilege were created by or sent to Nancy Feinrider or another member of her law firm. Material issues of fact exist regarding whether Feinrider served as counsel or contract administrator. (Compare Feinrider Decl. ¶ 13 Attachment A with Elliott Decl. ¶ 8).
Even assuming that Feinrider and her law firm were acting as counsel to Amtrak rather than as contract administrators, Amtrak has not presented sufficient facts to sustain its assertion of the attorney-client privilege. It has not presented evidence about the distribution of the documents, other than providing the names of the individuals to whom a communication was addressed, or about its efforts to maintain the confidentiality of the communications. It has not stated whether the information upon which the communications were based was provided by Amtrak. In most cases, it also has not sufficiently described the subject matter of the communication for the Court to determine whether the communication was made for the purpose of obtaining or giving legal advice. Finally, it has not adequately addressed the question of whether there are segregable, nonexempt portions of any of these documents.
Work Product Exemption.
Exemption 5 also exempts from disclosure documents protected by the work product doctrine. See, e.g., Sears, Roebuck Co., 421 U.S. at 154. "The work-product privilege protects documents that reveal an attorney's mental impressions and legal theories and were prepared by the attorney in contemplation of litigation." Nadler, 955 F.2d at 1491-92. It also includes documents prepared by an agent of the attorney in contemplation of litigation. See United States v. Nobles, 422 U.S. 225, 238 (1975).
"The `testing question' for the work-product privilege, . . . is `whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'" In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) ( quoting Senate of Puerto Rico v. U.S. Dep't of Justice, 823 F.2d 574, 586 n. 42 (D.C. Cir. 1987)) (other internal quotations omitted). In some circumstances, courts require that a specific claim be identified for the agency to be able to assert the work product exemption, but in other instances courts have found it sufficient for the agency to show that its lawyers were providing advice about issues that may arise in future litigation. See In re Sealed Case, 146 F.3d at 885 (discussing seemingly inconsistent rulings on this issue by the United States Court of Appeals for the District of Columbia Circuit).
With respect to anchor bolt issues generally, Feinrider avers that, in 1996, the Project Contracting Officer wrote to BBC-MEC about safety concerns related to broken anchor bolts. (Feinrider Decl. ¶ 18 Attachment B). Feinrider attests that BBC-MEC made claims for compensation for damage to foundation anchor bolts in 1997 and 1998. No DRB proceedings arose from these claims. (Feinrider Decl. ¶ 15). Beginning in 2000, Amtrak began investigating whether it might have claims against BBC-MEC, or defenses to BBC-MEC's request for a final acceptance certificate for the Project, based on unspecified anchor bolt issues. ( Id. ¶ 16). Some of those anchor bolt issues are discussed in a October 26, 2000 letter from Amtrak's Senior Associate General Counsel to Moye, O'Brien. ( Id., attachment C). Amtrak raised anchor bolt issues as a defense to issuance of a final acceptance certificate in February 2002, but it withdrew that claim in September 2002. (Elliott Decl. ¶¶ 13-14).
Feinrider avers that she treated "all claims or disputes between Amtrak and BBC-MEC as litigation matters as soon as such an issue arose," because the Project contract required certain REAs to be submitted to the DRB for resolution. (Feinrider Decl. ¶ 14). However, no REAs involving anchor bolts have been submitted to the DRB for resolution. (Feinrider Decl. ¶ 16). Amtrak did not provide information about the amount in issue on REAs involving anchor bolts, so I cannot determine whether the amount of any such claim was sufficient to require it to be presented to the DRB if not resolved. Even assuming that some of the REA's were sufficient to trigger the dispute resolution process, Amtrak has not shown when REAs involving anchor bolts were submitted and when they were resolved. Without this information, I cannot determine when there were issues in dispute or reasonably contemplated to be in dispute before the DRB regarding anchor bolt issues.
The only explicit assertion of the work product exemption that I have located with respect to documents responsive to FOIA request 21 is contained in Oliveri's amended declaration. In that declaration, some descriptions state that a document was prepared in anticipation of litigation, but Amtrak did not explicitly assert the work product exemption. For purposes of this order, I will address only those documents which Amtrak expressly asserted were protected by the work product exemption.
Material issues of fact exist regarding whether Feinrider served as counsel or contract administrator and whether documents she authored were written in her capacity as an attorney for Amtrak or as a business advisor.
Amtrak's descriptions are insufficient to support the work product exemption regarding other documents. For example, it is often not clear when documents were prepared. (See, e.g., Amended Oliveri Decl., ¶ 25, consultant report and Grodzinski memorandum included within doc. no. 11). The subject matter of the document is often not sufficiently described. (See, e.g., id. doc. no. 18). In at least one instance, it is not clear whether documents were compiled by Manatt Phelps or by previous Project counsel. ( Id., doc. no. 42). In another instance, it is unclear whether the person who received the document was affiliated with Amtrak. ( Id., doc. no. 9). Amtrak has not shown that documents which were distributed at a meeting disclosed any attorney's thought processes protected by the work product exemption or were prepared or gathered in anticipation of litigation. ( Id., doc. no. 26). For the documents described as relevant to the "ongoing arbitration dispute with the DRB," Amtrak provides insufficient information about such "ongoing arbitration dispute" for me to determine whether the documents in question appear to reasonably relate to that arbitration.
The evidence also is insufficient to support a finding that Amtrak's litigation database was prepared in contemplation of specifically identified ongoing or contemplated litigation. Oliveri avers that Amtrak acquired the litigation database "to assist in OIG's pursuit of statutory or regulatory claims which may lie against BBC-MEC." (Amended Oliveri Decl. ¶ 9). She attests that the litigation database was created by Amtrak's Project counsel, but she does not state whether that was Manatt Phelps or prior Project counsel. She does not state when the litigation database was created. (Amended Oliveri Decl. ¶ 12). Moreover, because the litigation database is, in large part, simply scanned images of all of the Project documents initially indexed in the document control database, it is difficult to see how the litigation database reflects any attorney's litigation strategy or thought process.
Finally, Oliveri's conclusory declaration that release of any portion of these documents would reveal the attorneys' work product does not provide a sufficient basis for the Court to determine whether there is nonexempt material that must be disclosed in these documents. See, e.g. Gutman v. U.S. Dep't of Justice, 238 F. Supp.2d 284, 295-96 (D.D.C. 2003), and cases cited therein; 5 U.S.C. § 522 (b). To support a segregability determination, Amtrak must, at a minimum, present testimony from a lawyer who was directly involved in the prospective litigation at issue and who can state, after a thorough review of each document, why purely factual information and other nonexempt material cannot be segregated from the remainder of the document and disclosed. See Mervin v. FTC, 591 F.2d 821 (D.C. Cir. 1978); Gutman, 238 F. Supp.2d at 296; see also Mead Data Cent., Inc., 566 F.2d at 261.
Deliberative Process Exemption.
Amtrak also asserts that the deliberative process exemption applies to many documents responsive to FOIA request 21 that have not been produced. Once again, however, Amtrak fails to describe the "deliberative process" to which these documents purportedly relate in sufficient detail for me to determine whether the documents are both predecisional and deliberative. Among other things, it does not explain the subject of the deliberations to which each document pertains, or who within Amtrak was responsible for making the decision at issue, and if and when the decision in question was made. Without this information, I do not have a sufficient basis to determine whether the document was predecisional. It also fails to reveal whether the documents in question contained recommendations to or were considered by the decisionmaker. In most cases, it does not disclose who wrote the document or to whom it was distributed. Without this information, I cannot determine whether the documents were part of a deliberative process. Finally, Amtrak makes only conclusory statements about segregability of nonexempt portions of the documents. There statements are wholly insufficient to support a segregability determination.
Law Enforcement Exemption.
FOIA's law enforcement exemption covers "records or information compiled for law enforcement purposes," 5 U.S.C. § 552 (b)(7), but only when that "disclosure would effectuate one or more of the six specified harms." John Doe Agency v. John Doe Corp., 493 U.S. 146, 156 (1990). To support this exemption, Amtrak must prove that the records at issue were compiled for a law enforcement purpose at the time it responded to the FOIA request. Id. at 155. Law enforcement purposes include "the enforcement of civil, criminal, and administrative statutes and regulations. . . ." Rosenglick v. IRS, No. 97-747-CIV-ORL-18A, 1998 WL 773629, *3 (M.D. Fla. Mar. 10, 1998). In this case, Amtrak asserts that release of the documents could reasonably be expected to interfere with enforcement proceedings.
Moye O'Brien argues that because Amtrak is not exclusively a "law enforcement agency," it must prove that each document compiled relates to a particular law enforcement inquiry rather than an administrative review. By implication, it asserts that any documents truly gathered for law enforcement purposes would already be in the possession of the FBI or DOJ.
Case law interpreting the assertion of exemption 7(A) by an agency with mixed law enforcement and non-law enforcement functions requires the Court to consider the purpose of the investigation and to determine whether the information was gathered as part of an inquiry about a potential violation of the law, rather than in the course of the agency's administrative function of overseeing compliance with its rules and regulations. See Birch v. U.S. Postal Serv., 803 F.2d 1206, 1209-10 (D.C. Cir. 1986) ( citing Rural Hous. Alliance v. U.S. Dep't of Agriculture, 498 F.2d 73, 81 (D.C. Cir. 1974)). For instance, a court denied the NLRB's assertion of a law enforcement exemption when the agency showed only that the documents in dispute were compiled for the purpose of enforcing the National Labor Relations Act. Comm. on Masonic Homes of the R.W. Grand Lodge, F. A.M. v. NLRB, 556 F.2d 214, 219 (3th Cir. 1977). However, in Birch, the court found that the Postal Service showed that it compiled documents for a law enforcement purpose because the documents were part of an investigation of improper use of third-class postage on certain mailings based on information the agency received from a United States Attorney. 803 F.2d at 1210.
The Amtrak OIG, like OIGs for other designated federal entities, was created to oversee both audit and investigative functions. 5 U.S.C. App. 3 §§ 2, 6, 8(a)(2). The evidence is undisputed that Amtrak's OIG is participating with the FBI and DOJ in ongoing civil and criminal investigations concerning whether BBC-MEC and others violated the law by defrauding or making false claims or statements to Amtrak. While the date the investigations began is unclear, it is undisputed that they commenced before Moye O'Brien submitted its FOIA request. The evidence is also undisputed that, as part of these investigations, Amtrak's OIG created the Microsoft Access Database to catalog documents that it had compiled and identified as having potential evidentiary value in these investigations. In responding to and pursuant to Moye O'Brien's request, Amtrak searched only the Microsoft Access Computer Database to identify most of the documents that it now withholds under exemption 7(A). The remaining documents were located in a file of documents assembled by OIG investigators for use in the ongoing investigations and in subpoenaed records. As such, the undisputed evidence presently before the Court shows that the documents Amtrak withholds pursuant to exemption 7(A) were compiled as part of the ongoing investigations of fraud, false claims and false statements, rather than as part of Amtrak's administrative and regulatory oversight activities.
There is no evidence which indicates that the documents were compiled after the FOIA request was received in an effort to avoid disclosure of otherwise nonexempt documents. See John Doe Corp., 493 U.S. at 155 n. 6. Amtrak's identification of other responsive documents not compiled by OIG also supports a finding that Amtrak has not transferred documents to its OIG to avoid their production in response to this FOIA request.
Moye O'Brien contends that to the extent this compilation of documents includes business records created before any investigation began, they do not fall within exemption 7(A). The Supreme Court rejected this argument in John Doe Corporation, stating as follows:
We thus do not accept the distinction that [the] Court of Appeals drew between documents that originally were assembled for law enforcement purposes and those that were not so originally assembled but were gathered later for such purposes. The plain language of Exemption 7 does not permit such a distinction. Under the statute, documents need only to have been compiled when the response to the FOIA request must be made.493 U.S. at 155. Nevertheless, to the extent that duplicates of the documents compiled by the OIG are found in files or locations other than in the documents compiled for purposes of the ongoing investigations, these documents are not exempt from production under exemption 7(A). Amtrak need not, of course, reveal that any such document is a duplicate of a document compiled by its OIG.
Moye O'Brien contends that it is improper to permit Amtrak to describe these records solely by categories rather than individually. However, description by category of documents claimed to fall under exemption 7 (A) has been approved by many courts, including in cases involving mixed-function agencies. See, e.g., Kay, 867 F. Supp. 11, 18 (D.D.C. 1994); Gould, Inc. v. GSA, 688 F. Supp. 689, 703 (D.D.C. 1988).
Amtrak must prove that harm will result from the disclosure of each category of information. Amtrak posits several types of harm which could result from disclosure here. Amtrak contends that disclosure of most categories of documents would improperly reveal the scope, directions and trends of the investigation, as well as its strengths and weaknesses. Further, it states that disclosure would allow the requester to learn what evidence had already been gathered, and would hinder the collection of additional evidence, for example, by providing an opportunity for evidence to be altered, suppressed or fabricated. Amtrak asserts that disclosure would reveal OIG's sources of information and the individuals under investigation, leading to the possibility of witness tampering. Disclosure could allow the target an early opportunity to formulate defenses. (Amended Walker Decl. ¶¶ 21-22; Walker December 2002 Decl. ¶ 10). Amtrak attests that disclosure of Cost Data would identify prematurely potential targets and potential witnesses. ( Id.; Amended Walker Decl. ¶¶ 24-25).
While Amtrak has described several types of harm that courts have found are likely to arise from disclosure of documents that have been compiled for law enforcement purposes, see NLRB v. Robbins Tire Co., 437 U.S. 214, 224-25 (1978); Wichlacz v. U.S. Dep't of Interior, 938 F. Supp. 325, 331 (E.D. Va. 1996), aff'd, 114 F.3d 1178 (4th Cir. 1997); Kay v. FCC, 976 F. Supp. 23, 38 (D.D.C. 1997), it has not presented any evidence to support its conclusion that such harm would likely arise here. Amtrak has not presented evidence that documents withheld under exemption 7(A) are exhibits to be used in a legal proceeding, are statements of prospective witnesses, were submitted to the investigators in confidence, are unknown to the requester, or that prospective witnesses expressed fear of injury or retaliation if their identities were disclosed. See, e.g., Kay, 976 F. Supp. at 36; Gould, Inc., 688 F. Supp. at 704; Parker/Hunter v. SEC, No. 80-3034, 1981 WL 1675, at *3 (D.D.C. Apr. 29, 1981). Such evidence is particularly persuasive when it is presented through affidavits or testimony of the prosecutor or investigating agents actually involved in the law enforcement proceeding. See, e.g., Parker/Hunter, 1981 WL 1675, at *3-4 (affidavit from SEC attorney); Rosenglick, 1998 WL 773629, at *3 (affidavits from investigating agents).
Further, Amtrak has failed adequately to address the issue of whether there are nonexempt portions of these documents that can be segregated and disclosed. Its conclusory statement that release of any portion of the documents would reveal the scope and nature of the OIG's investigation (see Amended Walker Decl. ¶ 31), and its unsworn representation that the administrative burden of making a segregability review would be too great (see doc. no. 120 at 27-28), are insufficient to permit the Court to determine whether nonexempt portions of the documents have been improperly withheld under the claims of exemption 7 (A).
C. Adequacy of the Search.
Moye O'Brien contends that Amtrak's search for documents responsive to FOIA request 21 is inadequate. It relies on the Elliott declaration to establish that responsive records may be in Amtrak's office or former office in Old Saybrook, Connecticut (Elliott Decl. ¶ 16), or in Amtrak's engineering department office located in Philadelphia, Pennsylvania ( id. ¶¶ 17-18, 20). Amtrak sought leave to file a reply addressed to this issue, but I find that a reply would not be helpful at this juncture because there is some dispute about how Moye O'Brien narrowed its search request for documents responsive to FOIA request 21. Therefore, I find that summary judgment on the issue of the adequacy of the search is premature. See Oglesby, 920 F.2d at 68.
VI. CONCLUSION.
For the reasons discussed above, Plaintiff's Motion for Partial Summary Judgment as to FOIA Request #1-16 and 21 (Doc. No. 91) is GRANTED in part with respect to the assertion of exemption 2 to the redaction of the names of individuals from the auditor statements and two cover sheets and the assertion of exemption 4 to the redaction of third party confidential business or financial information from two final audit reports. It is ORDERED that within twenty days from the date of this order Amtrak shall disclose the complete copies of these documents previously disclosed in redacted form.
It is further ORDERED that within twenty days from the date of this order Amtrak shall submit to the Court, under seal for in camera review, complete copies of the Email re: Engagement Letters, Bates No. 201868, and Fax Cover Sheet. Bates No. 202837, for which it asserted only exemption 2.
In all other respects, Plaintiff's Motion for Partial Summary Judgment as to FOIA Request #1-16 and 21 (Doc. No. 91) and Defendant's Motion for Summary Judgment Or, in the Alternative, for Partial Summary Judgment (Doc. No. 119) are DENIED.
In camera review of other documents at issue will not be fruitful until the parties have presented a more complete picture of the context in which the documents were created, used or compiled. Therefore, I will hold evidentiary hearings to permit the parties to present evidence sufficient for me to determine whether the evidence supports application of the asserted exemptions to all or a portion of the withheld documents.
Before such evidentiary hearings, Amtrak shall present more detailed indices of the withheld documents. I will set forth the requirements for such indices by separate order. In general, Amtrak should organize the indices so that all documents related to a particular deliberative process are grouped together, e.g. all documents related to a particular REA determination or all documents related to a particular audit. Except with respect to documents claimed to fall under exemption 7(A), the indices shall be in the form of a table that sets forth the identification of the document, the date it was prepared, the person who prepared it, the people to whom it was distributed, the subject matter of the document, and each exemption claimed with respect to the document, with exemption 5 assertions being further categorized as deliberative process," "attorney-client," or "work product." Amtrak must also provide a legend for each table that identifies the individuals named in the table by their relationship to the agency or to the Project.
Amtrak shall bring to each evidentiary hearing complete copies of the withheld documents at issue in that hearing for in camera review upon request of the Court. Amtrak shall present evidence at the hearings sufficient to determine whether there are nonexempt portions of any withheld document that may be segregated and disclosed.
I will permit discovery on Feinrider's role as attorney versus contract administrator. Therefore, Plaintiff's Motion . . . for Leave to Conduct Discovery (Doc. No. 122-2) is GRANTED, but the motion to strike (Doc. No. 122-1) and related motions (Doc. Nos. 124, 127, 131, 145) are DENIED. It is ORDERED that such discovery may be conducted in any manner permitted by the Federal Rule of Civil Procedure. The discovery period will close on June 27, 2003. All motions related to discovery must be filed and served before that date.
Finally, it is ORDERED that counsel for the parties shall confer in a good faith effort to resolve the scope of the search requested for documents responsive to FOIA request 21. I will schedule a conference by separate notice at which I will address this issue as well as the schedule for evidentiary hearings.