Opinion
Civil Action 3:00-CV-1285-P
March 5, 2002
MEMORANDUM OPINION AND ORDER
Now before the Court are the following:
1. Plaintiff FlightSafety Services Corporation's Motion for Summary Judgment or Alternatively, Motion for In Camera Review and Preparation of Vaughn Index of Documents, with brief in support and appendix, filed March 5, 2001;
2. Defendant's Response and Memorandum Brief in Opposition to Plaintiff's Motion for Summary Judgment or Alternatively, Motion for In Camera Review and Preparation of Vaughn Index of Documents, with appendix, filed April 23, 2001;
3. Plaintiffs Reply in Support of Plaintiff FlightSafety Services Corporation's Motion for Summary Judgment or Alternatively, Motion for In Camera Review and Preparation of Vaughn Index of Documents, filed May 8, 2001;
4. Defendant Department of Labor's Motion for Summary Judgment, with memorandum brief in support and appendix, filed April 23, 2001;
5. Plaintiff FlightSafety Services Corporation's Response to Defendant's Motion for Summary Judgment, with brief in support and appendix, filed May 25, 2001;
6. Defendant's Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment, filed June 22, 2001; and
7. Plaintiffs Response to Defendant's Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment, filed July 5, 2001.
After a thorough review of the evidence, the pleadings, the parties' briefs, and the applicable law, for the reasons set forth below, the Court is of the opinion that Plaintiff's Motion for Summary Judgment should be GRANTED in PART and DENIED in PART, and Defendant's Motion for Summary Judgment should be DENIED.
BACKGROUND
This is an action arising from the partial denial by the Department of Labor ("DOL") of plaintiff FlightSafety Services Corporation's ("FSSC") requests for statistical information concerning salaries and wages under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1996 Supp 2001), submitted on its behalf by Dr. Bobby McMasters on October 19, 1999. Masters Aff. at ¶ 6 (Pl.'s App. in Supp. of Mot. Summ. J. [hereinafter "Pl.'s App. I"] at 6).
The evidence establishes that FSSC provides ground-based air crew training services to the U.S. Government's Department of Defense at the Altus AFB facility in Jackson County, Oklahoma. See McMasters Aff. at ¶ 2, 4 (Pl.'s App. I at 2-3). Wages paid to certain of FSSC's employees in these services are governed by the Service Contract Act ("SCA"), 41 U.S.C. § 351 et seq. (1987 Supp. 2001), determined by various SCA Wage Determinations that are issued by the Employment Standards Administration ("ESA") of the Wage and Hour Division of the DOL. See McMasters Aff. at ¶ 4 (Pl.'s App. I at 2). In issuing these Wage Determinations, the DOL is charged with establishing the SCA wage rate that equals the prevailing wage rate in the geographic area where the services will be provided. Masters Aff. at ¶ 4 (Pl.'s App. I at 2). Plaintiff asserts the relevant geographic area with regard to FSSC's Altus facility encompasses Comanche, Cotton, Green, Hamilton, Jackson, Jefferson, Kiowa, Stephens, and Tillman Counties in Oklahoma and Archer, Baylor, Clay, Wichita, and Wilbarger Counties in Texas. Masters Aff. at ¶ 4 (Pl.'s App. I at 2).
As part of its efforts to obtain information regarding the DOL's administration of the SCA and in particular, the DOL's basis for issuing the relevant SCA Wage Determination covering its Altus facility, FSSC submitted to the Bureau of Labor Statistics ("BLS") an extensive request for documents under the FOIA on October 19, 1999. See McMasters Aff. at ¶¶ 5-6 (Pl.'s App. I at 2-3). By letter dated February 7, 2000, the BLS responded to FSSC's request by (1) providing several of the documents requested in the October 19 letter, (2) referring Dr. McMasters to an earlier response he received from the ESA where many of the documents requested had already been turned over, and (3) refusing to provide certain data as protected by the "commercial and financial" exemption of the FOIA under 5 U.S.C. § 552(b)(4). See Miller Decl. at ¶ 2 (Def.'s App. in Supp. Mot. Summ. J. [Def.'s App.] at 1-2). Specifically, the BLS refused to provide Plaintiff with the following documents:
The Bureau of Labor Statistics ("BLS") is a component of the DOL.
Miriam McD. Miller is co-counsel for Administrative Law, Division of Legislation and Legal Counsel, Office of the Solicitor, in the DOL. Miller Decl. at ¶ 1 (Def.'s App. at 1).
(i) An electronic copy of all raw data collection to create Wage Determination Number 94-2526 Revisions 1 through 11 (inclusive) for the Wichita Falls, Texas area (by revision), in a standard government electronic formal (ASCII, Tab-Delimited, Microsoft Excel, Microsoft Access, etc.) with any uniquely identifying private company descriptive (company name street address) redacted. Please also provide documentation describing the column variable and their appropriate units of measure;
(ii) An electronic copy of all raw data collected to create the Occupations Employment Statistics 1997 Metropolitan Area Occupational Employment and Wage Estimates for Lawton, Oklahoma, in a standard electronic format (ASCII, Tab-Delimited, Microsoft Excel, Microsoft Access, etc.) with any uniquely identifying private company descriptive (company name street address) redacted. Please also provide documentation describing the column variable and their appropriate units of measure;
(iii) An electronic copy of all raw data collected to create Wage Determination Number 94-2431 Revisions 1 through 12 (inclusive) for the Oklahoma City, Oklahoma Area (by Revision), in a standard electronic format (ASCII, Tab-Delimited, Microsoft Excel, Microsoft Access, etc.) with any uniquely identifying private company descriptive (company name street address) redacted. Please also provide documentation describing the column variable and their appropriate units of measure;
(iv) An electronic copy of all raw data collected to create the Occupational Employment Statistics 1997 Metropolitan Area Occupational Employment and Wage Estimates for Wichita Falls, Texas, in a standard government electronic format (ASCII, Tab-Delimited, Microsoft Excel, Microsoft Access, etc.) with any uniquely identifying private company descriptive (company name street address) redacted. Please also provide documentation describing the column variable and their appropriate units of measure; and
(v) An electronic copy of all raw data collected to create the Occupational Compensation Survey, National Summary, 1995, in a standard government electronic format (ASCII, Tab-Delimited, Microsoft Excel, Microsoft Access, etc.) with any uniquely identifying private company descriptive (company name street address) redacted. Please also provide documentation describing the column variable and their appropriate units of measure.
McMasters Aff. at ¶ 7 (Pl.'s App. I at 3-4). Stated more succinctly, FSSC's request insists upon a redacted electronic copy of all raw data collected to create (1) specified Wage Determinations for Wichita Falls, Texas and Oklahoma City, Oklahoma, (2) the 1997 Occupations Employment Statistics ("OES") for Lawton, Oklahoma and Wichita Falls, Texas, and (3) the 1995 Occupational Compensation Survey ("OCS"), National Summary ("NCS"). See Miller Decl. at ¶ 3 (Def.'s App. at 3).
On February 28, 2000, FSSC filed an appeal letter with the Solicitor of Labor ("Solicitor"), requesting a review of the BLS's denial of its FOIA request. McMasters Aff. at ¶ 8 (Pl.'s App. I at 4 Exh. H). After receiving the appeal letter, a representative of the Solicitor's Office advised FSSC that it would be two (2) years before a determination would be made on its appeal. McMasters Aff. at ¶ 9 (Pl.'s App. I at 5). Plaintiff also claims he was later advised by another of the Solicitor's representatives that it was not possible to expedite the appeal of its FOIA request or to obtain these documents without litigation. McMasters Aff. at ¶ 9 (Pl.'s App. I at 5).
Subsequently, on June 13, 2000, FSSC commenced three separate actions against the DOL and the BLS, later consolidated into this one action, seeking the disclosure of these requested documents and an award of reasonable attorney's fees and other litigation costs reasonably incurred pursuant to the FOIA, 5 U.S.C. § 552(a)(4)(E). See generally Pl.'s Orig. Compl. The parties have now filed cross-motions for summary judgment, with defendant BLS insisting that (1) no information has been improperly withheld; (2) disclosure of the requested records would impair BLS's ability to collect wage data in the future; (3) disclosure of the requested data would cause substantial competitive harm; and (4) undertaking a re-coding of data would require BLS to create records and expend unnecessary resources. See generally Mem. Br. Supp. Def.'s Mot. Summ. J. ("Def.'s Br.") at 6-20. Meanwhile, FSSC contends that (1) the redacted documents as requested are disclosable under the FOIA; (2) all units of information in the documents must be analyzed separately for exemption status; (3) the BLS has provided insufficient information upon which to conduct an analysis of "substantial harm" after redaction; (4) the BLS has provided no evidence to show any burden with regard to redacting the responsive documents; and (5) alternatively, production of a Vaughn index and in-camera inspection by the Court would be appropriate. Each of these arguments will be addressed below.
In the consolidation of these actions, the parties also agreed to dismiss all claims against the DOL with prejudice, with the BLS remaining as sole Defendant. See Agreed Order of Partial Dismissal dated April 24, 2001.
DISCUSSION
I. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate in any case where the critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant. Little v. Liquid Air Corp., 37 F.3d 1069, 1076 (5th Cir. 1994). However, all evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323. The nonmovant can satisfy its burden by tendering depositions, affidavits, and other competent evidence to buttress these claims. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The mere existence of some factual dispute will not defeat a motion for summary judgment. Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995). Only disputes over facts that might affect the outcome of the suit under the governing law will preclude summary judgment. Id. Moreover, a dispute about a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-323. The Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Moreover, "[t]he party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.
Summary judgment generally resolves most FOIA cases. Cooper v. Cameron Corp. v. United States Dep't of Labor, ___ F.3d ___, No. 00-21077, 2002 WL 75919 at *3 (5th Cir. Jan. 21, 2002); see also Public Employee for Envtl. Responsibility v. EPA, 978 F. Supp. 955, 959 (D. Colo. 1997). Because the threshold question is whether the requester can even see the documents, the character of which determines whether they can be released, the FOIA "expressly places the burden on the agency to sustain its action' and directs the district courts to `determine the matter de novo,' giving no deference to the agency's determinations." Cooper, 2002 WL 75919 at *2 (quoting United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1986)); see also Avondale Indus., Inc. v. N.L.R.B., 90 F.3d 955, 958 (5th Cir. 1996). Thus, the district court will grant an agency's motion for summary judgment only if the agency identifies the documents at issue and explains why they fall under exemptions. Cooper, 2002 WL 75919 at *2.
II. Legal Analysis
A. The Freedom of Information Act
Enacted to facilitate public access to Government documents, the FOIA was designed to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny. Avondale Indus., 90 F.3d at 958 (quoting United States Dep't of State v. Ray, 502 U.S. 164, 173 (1991)). Counterbalancing this general philosophy of full agency disclosure, Congress also recognized that "public disclosure is not always in the public interest and consequently [the Act] provides that agency records may be withheld from disclosure under any one of the nine exemptions defined in 5 U.S.C. § 552(b). Halloran v. Veterans Admin., 874 F.2d 315, 318 (5th Cir. 1989) (quoting Baldrige v. Shapiro, 455 U.S. 345, 353 (1982)). The Act is therefore to be construed with a view to disclosure, not secrecy, and exemptions from it are not be read broadly. Sharyland Water Supply Corp. v. Block, 755 F.2d 397, 398 (5th Cir. 1985). One who seeks to prevent disclosure of material must prove that the material is within one of the FOIA exemptions. Id. The Court also noted that the purpose for which the requester has requested documents under the FOIA is of no purpose in determining whether the documents must be disclosed. See Alirez v. NLRB, 676 F.2d 423, 425 ("The FOIA is to be broadly construed in favor of disclosure and, unless requested material in the possession of a federal agency falls within one of the statutory exemptions structured to protect specified confidentiality and privacy interests, it must be made available on demand to any member of the general public").
Defendant here asserts that the source of data for the salary and wage information which FSSC now seeks in the form of OES, OCS, and NCS surveys were procured by the BLS with a pledge of confidentiality to those establishments (i.e., individual business locations) contributing to these surveys. Miller Decl. ¶ 14 (Def.'s App. at 7). As such, BLS contends that all this data is exempted
More specifically, BLS asserts that the source data for the OCS survey, discontinued in 1996, consisted of about 25,000 establishments collected annually in a sample representing the contiguous United States, and an additional 7,000 establishments in surveys required for administering the Service Contract Act. Miller Decl. ¶ 5 (Def.'s App. at 4). The NCS survey, which replaced the OCS, called for 36,000 establishments, with one-half providing wage date and the remaining one-half providing both wage and benefit information. Miller Decl. ¶ 6 (Def.'s App. at 5). And finally, the source of data for the OES survey consists of a total 1.2 million establishments collected over three years. Miller Decl. ¶ 7 (Def.'s App. at 5).
from disclosure under Exemption 4 of the FOIA. Miller Decl. ¶ 8 (Def.'s App. at 5).
B. Exemption 4
Exemption 4 of the FOIA protects "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). In order to bring a matter (other than a trade secret) within this exemption, it must be shown that the information is (a) commercial or financial, (b) obtained from a person, and (c) privileged or confidential. Cont'l Oil Co. v. Federal Power Comm'n, 519 F.2d 31, 35 (5th Cir. 1975). For purposes of the FOIA, a "person" includes an individual, partnership, corporation, association, or public or private organization other than an agency. 5 U.S.C. § 551(2). Thus, there is little doubt here that the business establishments surveyed by BLS are persons within the Act's definition, and unquestionably, information relating to the employment and wages of workers constitutes commercial or financial information withing the meaning of the exemption. Hustead v. Norwood, 529 F. Supp. 323, 326 (S.D. Fla. 1981). The dispute, therefore, comes down to whether the information is confidential. See Cont'l Oil, 519 F.2d at 35.
Information is confidential under Exemption 4 if its disclosure would likely (1) impair the government's ability to obtain necessary information in the future; or (2) cause substantial competitive harm to the person from whom it was obtained. Calhoun v. Lyng, 864 F.2d 34, 36 (5th Cir. 1988); see also Cont'l Oil, 519 F.2d at 35. To show impairment of future investigatory capabilities the agency must adduce factual data from which the district court may infer that disclosure is likely to make others reluctant to cooperate on future investigations. Calhoun, 864 F.2d at 36. To show substantial competitive harm, the agency must show by specific factual or evidentiary material, not simply by conclusory or generalized allegations, that (1) the person or entity from which information was obtained actually faces competition; and (2) substantial harm to a competitive position would likely result from disclosure of the information in the agency's records. Calhoun, 864 F.2d at 36; see also Sharyland Water Supply, 755 F.2d at 399.
The BLS is the principal data-gathering agency of the federal government in the broad field of labor economics, which includes information on employment, unemployment, wages, productivity, prices and occupational safety and health. Miller Decl. ¶ 9 (Def.'s App. at 6). Because it is not empowered with any statutory right to procure the data it needs, it must give the source of information a pledge of confidentiality. Miller Decl. ¶ 9 (Def.'s App. at 6). Moreover, being a specifically designated statistical agency within the Executive Branch, whose activities are predominately the collection, compilation, processing, or analysis of information for statistical purposes, it also subject to the requirements of the Office of Management and Budget's ("OMB") Order Providing for the Confidentiality of Statistical Information. See 62 Fed. Reg. 35043, 35047 (June 27, 1997) ("OMB Order"). Specifically, the OMB Order requires that:
(a) Information that a statistical agency or unit acquires for exclusively statistical purposes may be used only for statistical purposes, and shall not be disclosed, used, in identifiable form for any other purpose unless otherwise compelled by law . . .
(b) [A]t the time of the collection, [the agency must] inform the respondents from whom such information is collected that such information may be used only for statistical purposes and may not be disclosed, or used, in identifiable form for any other purpose, unless otherwise compelled by law.
62 Fed. Reg. at 35048 (citing Section 2(a), (b)). Moreover, the BLS Commissioner, in compliance with Section 6 of OMB Order (mandating implementation through the issuance of appropriate rules), see Id., has issued Commissioner's Order No. 3-93 entitled "Confidential Nature of BLS Records." Comm'r Order No. 3-93 (Dep't of Labor Aug. 18, 1993) ("BLS Order"). This BLS Order provides that, "in conformance with existing law and Department regulations it is the policy of BLS that . . . data collected or maintained by . . . BLS under a pledge of confidentiality shall be treated in a manner that will assure that individually identifiable data will be used only for statistical purposes and will be accessible only to authorized persons." Id. at 2; see also Cohen Decl. at ¶ 1 (Def.'s App. at 42).
Stephen H. Cohen is the Director of Mathematical Statistics Research Center ("MSRC"), Office of Survey Methods Research in BLS, responsible for coordinating long-term research within MSRC, and within and between-agency research projects. Cohen Decl. at ¶ 1 (Def.'s App. at 42). Mr. Cohen is also chair of the BLS Disclosure Review Boards and serves on an Office of Management and Budget ("OMB") interagency committee (Confidentiality and Data Access) that discusses best practices on avoidance of unauthorized data disclosure. Cohen Decl. at ¶ 1 (Def.'s App. at 42).
Based on the foregoing, defendant BLS argues that there can be no doubt that disclosure of the requested records would impair its ability to collect wage data in the future. See Miller Decl. at ¶ 12 (Def.'s App. at 7). In addition, the Wage Survey, National Compensation Survey, and Occupation Employment Survey forms at issue in this case all contain pledges to the nongovernment establishments providing information to the BLS that such information will be used only for statistical purposes and will be held in confidence and will not be disclosed without their written consent, to the full extent permitted by law. See Def.'s App. at 22-33, Exh. C (sample survey forms). The Court finds there can be no doubt on this record that disclosure of the requested information would impair the BLS' ability to collect that data in the future. It is reasonable to conclude that such an opening wedge of disclosure would make it difficult, if not impossible, for the BLS to collect other data which is essential to its efficient operation since not empowered with any statutory right to procure the data it needs. See Hustead, 529 F. Supp. at 326-327 (finding BLS' pledge of confidentiality was an absolute requirement to secure reports). The Court also agrees that DOL statisticians must continue to have access to the commercial and financial data which are the grist of reports such as the Consumer Price Index, the unemployment level, wage and price surveys and the like, which is obtained only upon an assurance of a confidential pledge, without having to worry about reneging on that pledge. Id. at 327.
In addition, BLS argues that disclosure of the requested records to FSSC would cause substantial harm to the competitive position of the establishments from whom the information was obtained. More specifically, the BLS asserts that it follows practices similar to those of other federal statistical agencies in order to ensure that specific information about a survey respondent cannot be inferred in tables of statistical estimates ("tabular data") or in the specific survey responses provided by respondents ("micro data") released for statistical purposes. Cohen Decl. ¶ 3 (Def.'s App. at 43). A major risk factor associated with releasing such micro data files is that the files might contain records from easily identifiable high profile establishments (those with unique characteristics such as unusual occupations for the industry, very high wage rates, etc.). Cohen Decl. ¶ 5 (Def.'s App. at 44). The BLS states that the files requested by Dr. McMasters contain specific wage rates collected from a small subset of a fixed, published list of narrowly defined occupations in the OCS data. Miller Decl. at ¶ 16 (Def.'s App. at 8). Similarly, the NCS data requested includes narrowly defined occupations selected at random from a company's job list, which in turn are selected by using probability techniques from a list of those present at each establishment. Id. And finally, the OES data includes the exact number of workers in each sampled establishment, classified by a published occupational coding scheme and wage interval. Cohen Decl. at ¶ 7 (Def.'s App. at 45). Thus, the BLS believes that releasing the micro data files for each of these programs for the same geographic area only increases the likelihood of disclosure of these establishments (e.g., using data in one file can assist in disclosing data in the other file). Id.; see also Miller Decl. at ¶ 16 (Def.'s App. at 8). On this record, as presented by the agency, the Court finds that if such data were to be released, it would have the potential to permit someone with knowledge the capacity to identify at least some of the more high profile respondent establishments included in the BLS' records.
Meanwhile, Plaintiff argues that it "has always recognized that, as a whole, the requested raw data was exempt on [the] basis [of Exemption 4] in the original FOIA request, [but that] FSSC specifically asked BLS to redact `any uniquely identifying private company descriptives,' in recognition of the specific FOIA provision concerning redaction of documents." Pl.'s Br. Supp. Resp. to Def's Mot. Summ. J. ("Pl.'s Br. Resp.") at 12. Under the FOIA "any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt." 5 U.S.C. § 552(b). The BLS, however, argues that the effectiveness of re-coding (changing) the occupational codes to dummy codes, together with the removal of company and address information as suggested by FSSC, has not been adequately investigated. Cohen Decl. ¶ 8 (Def.'s App. at 45). BLS believes the potential problems with re-coding would be that a knowledgeable person could possibly associate a dummy code with the actual occupation, based upon its unique character associated with the specificity of the data elements released in the area/industry, and match these micro data files with published estimates. Id. Further, BLS claims it would have to spend a significant amount of time and resources on in-depth analysis of the recoded data to determine whether the re-coding actually prevents indirect identification of respondents in the micro data as described above. Id.
Without having the benefit of an in camera examination of these documents, nor a detailed affidavit linking specific information in the requested material with the revelation of confidential matter, the Court at this time finds that it cannot make a proper determination as to whether there exists any "reasonably segregable" portions of the requested raw data required to be turned over to FSSC. See Cooper Cameron, 2002 WL 75919 at *10 (finding insufficient DOL counsel's declaration where she did not describe why release of information in the requested material would impede effective OSHA investigations, threaten the privacy of persons mentioned in that material, or reveal confidential identifies in the context of a 7(C) exemption claim). Under these circumstances, "[w]here there are any doubts as to whether a claimed exemption applies, the court . . . should order either an in camera inspection or a Vaughn Index." McNamera v. United States Dep't of Justice, 974 F. Supp. 946, 956 (W.D. Tex. 1997).
Plaintiff has suggested here that the BLS should be ordered to prepare a Vaughn index for the responsive documents in addition to an in camera inspection of the documents by the Court. See Br. Supp. Pl.'s Mot. Summ. J. at 13. The purpose of a Vaughn index is to justify an agency's withholding of documents by correlating each document with a particular FOIA exemption. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).
Although the Court is well aware of the principle that an agency is not required by the FOIA to create a document that does not exist in order to satisfy a request, see Yeager v. DEA, 678 F.2d 315, 321 (D.C. Cir. 1982) (citing NLRB v. Sears, Roebuck Co., 421 U.S. 132, 161-162 (1975)), it shall withhold judgment on Defendant's claim that re-coding here would constitute such a creation until an in camera examination has taken place.
C. Request for Attorney's Fees
Plaintiff also asserts that it is entitled to an award of reasonable attorney's fees and litigation costs here. Under the FOIA "the court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred . . . in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E). Based on the foregoing, the Court finds any determination as to Plaintiff's attorney's fees would be premature at this time.
CONCLUSION
Accordingly, upon careful review of the parties' arguments and the relevant law, for the reasons stated above, the Court concludes that Plaintiff's Motion for Summary Judgment shall be GRANTED in PART and DENIED in PART, and Defendant's Motion for Summary Judgment shall be DENIED. Further, the Court ORDERS that In Camera review of the requested documents by FlightSafety Services Corporation shall take place within thirty (30) days from the signing of this ORDER and that the Bureau of Labor Statistics shall also within that time period provide the Court with a Vaughn Index:
1. Adequately describing each record within its possession responsive to Plaintiff's request;
2. Stating what exemption the agency claims and explaining why the agency believes the record falls within the exemption. The agency does not have to describe a record to the extent that the description compromises its secrecy. A description is sufficient if it enables a court to reach its own conclusion as to what is in the record. Mere conclusory and generalized statements that a record falls within an exempt category, however, are insufficient; and
3. Making clear whether the government claims an exemption for the entire document or only a portion thereof.IT IS SO ORDERED.