For the second time in two months, a federal appeals court has remanded a Freedom of Information Act (FOIA) case due to a federal district court’s failure to perform a proper segregability analysis before allowing the government to withhold information.
On the heels of a U.S. Circuit Court of Appeals for the District of Columbia decision in July, the 8th Circuit on Sept. 16 refused to affirm a district court’s summary judgment allowing the U.S. Army Corps of Engineers to withhold documents from an environmental group. The appeals court said that the lower court needed to analyze whether portions of the documents could be produced without violating the government’s deliberative-process privilege. Missouri Coalition for the Env’t Found. v. U.S. Army Corps of Engineers, No. 07-2218.
The U.S. Army Corps of Engineers began a study in 1997 to identify the 100-year and 500-year flood plains along the Mississippi, Missouri and Illinois rivers. The study, known as the Upper Mississippi River System Flow Frequency Study, was released in 2004.
A St. Louis environmental group, the Missouri Coalition for the Environment Foundation, filed a request with the corps seeking documents related to the study, pursuant to FOIA, 5 U.S.C. 552.
Although the corps and the coalition discussed the request, the corps never released any documents, and the coalition sued the corps in the U.S. District Court for the Eastern District of Missouri.
‘Vaughn’ index
The corps produced a Vaughn index, following guidelines articulated by the D.C. Circuit in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), listing 83 documents responsive to the coalition’s request that it was withholding.
The corps claimed that the documents were exempt from disclosure under one of the nine FOIA exemptions: information covered by the deliberative-process privilege, 5 U.S.C. 552(b)(5), a designed to encourage deliberations with government agencies by protecting them from public disclosure.
The district court granted summary judgment to the corps, holding that all 83 documents were subject to the deliberative-process privilege. The coalition appealed.
Before the 8th Circuit, the coalition argued that the corps’ Vaughn index was insufficient in showing whether the corps had complied with FOIA; that not all the documents were subject to the privilege; and that the district court had failed to perform a segregability analysis pursuant to 5 U.S.C. 552(b). The section says that, if the privileged portion of a document is reasonably segregable, the government is required to redact the privileged portions and produce the rest.
The 8th Circuit held that the Vaughn index was legally sufficient, but remanded the case with instructions to the district court to perform the segregability analysis.
D.C. Circuit ruling
The 8th Circuit’s decision follows the D.C. Circuit’s July decision in Stolt-Nielsen Transp. Group Ltd v. U.S., 534 F.3d 728 (D.C. Cir. 2008), in which the court remanded a case to the U.S. District Court for the District of Columbia due to that court’s failure to conduct a proper segregability analysis.
In Stolt-Nielsen, a shipping firm filed a FOIA request with the U.S. Department of Justice seeking documents related to an antitrust investigation. The Justice Department filed a Vaughn index of documents with the court, claiming that the documents were subject to various FOIA exemptions.
The district court granted summary judgment to the government, holding that the documents were exempt, but the D.C. Circuit reversed, holding that the district court’s segregability analysis was insufficient.
J. Mark Gidley of the Washington office of White & Case, who represented Stolt-Nielsen, believes that the circuit court holdings in Missouri Coalition and Stolt-Nielsen may represent a judicial trend requiring the government to produce more redacted documents under FOIA’s segregability provisions.
