Case Detail

FOIA Project Annotation: A federal court in West Virginia has ruled that the Justice Department properly invoked Exemption 5 (deliberative process privilege) to protect a series of emails sent to various components of the agency regarding whether the agency had defended the Army Corps of Engineers against challenges to the levee system in New Orleans brought by environmental groups. The court rejected a claim that a handwritten tally of U.S. Attorneys was protected by Exemption 2 (internal practices and procedures) and found that Justice had both failed to explain the status of some emails and to indicate whether any of the material was segregable. The suit was brought by Keeper of the Mountains Foundation after the Executive Office for U.S. Attorneys and the Office of Information and Privacy withheld some records. DOJ's involvement in the matter stemmed from a request by a staffer for Sen. James Inhofe (R-OK) for information that might show that environmental groups had halted necessary levee improvements by the Corps of Engineers. A poll of U.S. Attorneys ultimately indicated the agency had not been involved in defending the Corps of Engineers against such groups. Other records created as a result of the request included a variety of emails to various offices and an exchange of letters between Rep. John Conyers (D-MI) and Attorney General Alberto Gonzales. The court found that OIP's Vaughn index did not refer to several emails that had been identified and that others were referred to only as having been reviewed by EOUSA without any explanation of what action OIP took. Finding OIP's index inadequate, the court declined the plaintiff's invitation to conduct an in camera review and ordered the parties to resolve the issue through negotiation, including the possibility of a supplemental Vaughn. EOUSA had claimed Exemption 2 to withhold a handwritten tally of U.S. Attorneys' responses, noting that it "reflects the internal practice of DOJ's informal tracking of responses from various USAOs" and that it contained nothing of public interest. But the court, agreeing that it was internal, found that "the DOJ's role in assisting a Senator in assigning blame for a putative government failure on a political constituency is important public information. So, too, are the results reflected in the tally. The tally is, thus, far from trivial." Turning to the Exemption 5 claims, the court found that they were both predecisional and deliberative and noted that "the four EOUSA exchanges and six OIP messages were part of the chain of communication in which employees of the agency brainstormed ways to respond to the Senate committee and the newspaper story. This give-and-take of the deliberative process serves as an adequate basis upon which to deny disclosure." However, finding that OIP had failed to indicate that it had conducted a segregability analysis as to some of the withheld records, the court instructed OIP to provide further substantiation of its claims concerning a lack of segregability.
Issues: Exemption 2 - Risk of circumvention, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Litigation - Segregability analysis

Date Filed	Doc #	Docket Text
2006-02-09	1	COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF. Filing Fee $250.00. Receipt # 17938. (Attachments: # 1 Exhibit(s) A, B and C; and # 2 Civil Cover Sheet) (taq) (Entered: 02/13/2006)
2006-02-09		CASE assigned to Judge John T. Copenhaver, Jr. (ras) (Entered: 02/13/2006)
2006-02-13	2	STANDING ORDER IN RE: ASSIGNMENT AND REFERRAL OF CIVIL ACTIONS AND MATTERS TO MAGISTRATE JUDGES ENTERED JULY 21, 2004. This matter referred to Magistrate Judge Stanley for discovery. (cc: attys; any unrepresented party) (taq)
2006-02-14	3	SUMMONS ISSUED by the Clerk on behalf of Keeper of the Mountains Foundation for United States Department of Justice, re: 1 Complaint for Declaratory and Injunctive Relief; returnable 30 days. Original and 5 copies served by Clerk via certified mail, return receipts requested; Fee: $50.00; Receipt #17938. (taq) Modified on 2/22/2006 (Howie, Susan).
2006-03-08	4	SUMMONS RETURNED EXECUTED BY CERTIFIED MAIL for United States Department of Justice, re: 1 Complaint for Declaratory and Injunctive Relief. Return Receipt Card signed by Dee Wriston. U.S. Attorney served on 2/21/2006, answer due 4/24/2006. (taq)
2006-03-08	5	SUMMONS RETURNED EXECUTED BY CERTIFIED MAIL for United States Department of Justice, re: 1 Complaint for Declaratory and Injunctive Relief. Return Receipt Card signed by Dee Wriston. U.S. Attorney's Office, served 2/21/06; answer deadline previously set for 4/24/06. (taq) Modified on 3/10/2006 (Howie, Susan).
2006-03-08	6	SUMMONS RETURNED EXECUTED BY CERTIFIED MAIL for United States Department of Justice, re: 1 Complaint for Declaratory and Injunctive Relief. Return Receipt Card signed by Ernest L. Parker. Honorable Alberto R. Gonzales served on 2/24/06; answer deadline previously set for 4/24/06. (taq)
2006-03-08	7	SUMMONS RETURNED EXECUTED BY CERTIFIED MAIL for United States Department of Justice, re: 1 Complaint for Declaratory and Injunctive Relief. Return Receipt Card signed on behalf of FOIA/PA, Office of Information and Privacy; answer deadline previously set for 4/24/06. (taq)
2006-03-23	8	ANSWER TO COMPLAINT FOR DECLARATORY JUDGMENT by United States Department of Justice. (Curry, Kelly)
2006-03-24	9	ORDER AND NOTICE: Joinder of Parties, amended pleadings due by 4/13/2006. Rule 12(b) Motions 4/13/2006. Rule 26(f) Meeting 4/24/2006. Last day to file report of Rule 26(f) Meeting 5/1/2006. Scheduling Conference at 10:30 AM on 5/19/2006 in Charleston. Entry of Scheduling Order 5/26/2006. Last Day to make Rule 26(a)(1) disclosures 5/31/2006. Signed by Judge John T. Copenhaver, Jr. on 3/24/2006. (cc:attys) (jkk)
2006-05-01	10	REPORT AND/OR INITIAL DISCLOSURES by Keeper of the Mountains Foundation, United States Department of Justice. (Curry, Kelly) (Edited text to add plaintiff as a filer) Modified on 5/2/2006 (Howie, Susan).
2006-05-02	11	MOTION by Keeper of the Mountains Foundation for Vaughn Index. (mkw) (Entered: 05/04/2006)
2006-05-02	12	MEMORANDUM by Plaintiff Keeper of the Mountains Foundation in support of 11 MOTION for Vaughn Index, with exhibits attached. (mkw) (Entered: 05/04/2006)
2006-05-02		MOTION REFERRED TO Magistrate Judge Mary E. Stanley: 11 MOTION by Keeper of the Mountains Foundation for Vaughn Index. (skh) (Entered: 05/04/2006)
2006-05-04	13	MOTION by United States Department of Justice to Reset Scheduling Conference re 9 Judge Copenhaver's Order and Notice,. (Curry, Kelly)
2006-05-08	14	ORDER granting deft's 13 MOTION to reset scheduling conference; the conference is rescheduled for 3:00 p.m. on 6/16/06. Signed by Judge John T. Copenhaver, Jr. on 5/8/2006. (cc: attys) (taq)
2006-05-19	15	BRIEF by Defendant United States Department of Justice in opposition to 11 MOTION by Keeper of the Mountains Foundation for Vaughn Index (Attachments: # 1 Exhibit(s) Unpublished filing# 2 Exhibit(s) Unpublished Filing) (Curry, Kelly)
2006-06-06	16	NOTICE OF HEARING the parties are NOTIFIED that the court will conduct a telephonic hearing on pltf's 11 MOTION for Vaughn Index on 6/12/2006 at 10:00 AM; the court will initiate the call to both parties. Signed by Magistrate Judge Mary E. Stanley on 6/6/2006. (cc: attys) (taq)
2006-06-12	17	MOTION HEARING held by Magistrate Judge Mary E. Stanley on 6/12/2006; re: 11 MOTION by Keeper of the Mountains Foundation for Vaughn Index Court Reporter: Courtflow. (taj)
2006-06-12	18	MOTION by Keeper of the Mountains Foundation to Continue June 16 2006 Scheduling Conference . (DePaulo, William)
2006-06-13	19	ORDER directing that the conference scheduled for 3:00 p.m. on 06/16/06 be rescheduled for 9:30 a.m. on 06/30/06. Signed by Judge John T. Copenhaver, Jr. on 6/13/2006. (cc: attys) (mkw)
2006-06-14	20	MEMORANDUM OPINION AND ORDER granting pltf's 11 MOTION for Vaughn Index; deft shall file an index pursuant to Vaughn by 6/26/06. Signed by Magistrate Judge Mary E. Stanley on 6/14/2006. (cc: attys) (opinion posted to the court's website at www.wvsd.uscourts.gov) (taq)
2006-06-21	21	NOTICE OF CHANGE OF ATTORNEY INFORMATION by Marc A. Perez on behalf of United States Department of Justice. (mkw)
2006-06-22	22	STATEMENT OF VISITING ATTORNEY from Marc A. Perez. Local counsel: Kelly R. Curry. (Curry, Kelly)
2006-06-26	23	NOTICE by Defendant United States Department of Justice re 20 Order on Motion / Application / Petition for Miscellaneous Relief, of Filing Vaughn Index (Attachments: # 1 Exhibit(s) A -- Vaughn Index) (Curry, Kelly) (Modified on 6/27/2006 for clarification) (Howie, Susan).
2006-06-28	24	NOTICE OF CHANGE OF ATTORNEY INFORMATION by Kelly R. Curry for on behalf of United States Department of Justice. (Curry, Kelly)
2006-06-28	25	MOTION by United States Department of Justice to Continue Scheduling Conference (Unopposed) . (Curry, Kelly)
2006-06-29	26	ORDER re 22 Statement of Visiting Attorney and Designation of Local Counsel, directing that Marc A. Perez is admitted pro hac vice as counsel for deft in this action. Signed by Judge John T. Copenhaver, Jr. on 6/29/2006. (cc: attys) (taq)
2006-06-30	27	ORDER granting deft's unopposed 25 MOTION to Continue the scheduling conference; the conference is rescheduled for 1:30 p.m. on 9/8/06; further directing that the parties file a status report by 9/1/06, advising the court of the status of the production of responsive documents, which report should include an update, if any, to the parties' 10 Joint Rule 26(f) report. Signed by Judge John T. Copenhaver, Jr. on 6/30/2006. (cc: attys) (taq)
2006-06-30		SET DEADLINES/HEARINGS: Scheduling Conference rescheduled for 01:30 PM on 9/8/2006; and Status Report due by 9/1/2006 pursuant to the court's 27 order entered of even date. (taq)
2006-09-01	28	STATUS REPORT by United States Department of Justice, Keeper of the Mountains Foundation. (Attachments: # 1 Exhibit(s) letter) (Curry, Kelly) (Modified on 9/5/2006 to add plaintiff as a filer) (Howie, Susan).
2006-11-01	29	ORDER directing that the parties are to file no later than 11/15/06, a joint proposed schedule leading to the final disposition of this action. Signed by Judge John T. Copenhaver, Jr. on 11/1/2006. (cc: attys) (mkw)
2006-11-15	30	RESPONSE by Keeper of the Mountains Foundation to the Court's 29 Order. (Curry, Kelly)
2007-01-10	31	MOTION by United States Department of Justice for Summary Judgment (Attachments: # 1 Exhibit(s) 1# 2 Exhibit(s) 2# 3 Exhibit(s) Unpublished Case)(Curry, Kelly)
2007-01-10	32	MEMORANDUM by United States Department of Justice in support of 31 MOTION by United States Department of Justice for Summary Judgment. (Curry, Kelly)
2007-01-31	33	RESPONSE by Keeper of the Mountains Foundation in opposition to 31 MOTION by United States Department of Justice for Summary Judgment (Attachments: # 1 Exhibit(s))(DePaulo, William) (Modified title of entry on 2/1/2007) (Howie, Susan).
2007-02-16	34	REPLY by United States Department of Justice to 33 Memorandum In Opposition. (Attachments: # 1 Exhibit(s))(Curry, Kelly)
2007-03-02	35	MEMORANDUM by Keeper of the Mountains Foundation in opposition to 31 MOTION by United States Department of Justice for Summary Judgment (DePaulo, William)
2007-08-28	36	MEMORANDUM OPINION AND ORDER directing that the issues raised in defendant's 31 MOTION for Summary Judgment are granted and denied as more fully set forth herein; directing the parties to confer with plaintiff with respect to PAO 4 and OLA 17, 22, 23, 24, 25, and 26 and PAO 5, 9, 11, 12 and OLA 9, 14, 15, and 21; directing the defendant, specifically OIP, to file by 10/01/07 a supplemental Vaughn index addressing the disclosure of these documents; directing the defendant, specifically OIP, to review the draft letters from the Assistant Attorney General to Congressman Conyers, identified as OLA 7 and 8, to determine whether any portions of the letters are disclosable and shall file its determination by 10/01/07. Signed by Judge John T. Copenhaver, Jr. on 8/28/2007. (cc: attys) (mkw) (Modified for clarification on 8/29/2007) (Howie, Susan).
2007-10-01	37	STATUS REPORT by Keeper of the Mountains Foundation, United States Department of Justice (Attachments: # 1 Second Declaration of Melanie Ann Pustay)(Riess, Daniel)
2008-09-04	38	MEMORANDUM OPINION AND ORDER directing that the issues raised in defendant's 31 MOTION for Summary Judgment are resolved as follows: 1) the motion as to withholding the two-page tally of U.S. Attorneys' Offices entitled "Alternative Dispute Resolution Survey of EOUSA Cases" (which has been ordered released) is denied; 2) the motion as to withholding POA 4 (which has been released) is denied; 3) the motion as to withholding PAO 5, 9, 11, 12 and OLA 9, 14, 15, 17, 21, 22, 23, 24, 25, 26 is granted; 4) the motion as to withholding OLA 7 and 8, the two draft letters from Assistant Attorney general to Congressman Conyers is granted. Signed by Judge John T. Copenhaver, Jr. on 9/4/2008. (cc: attys) (mkw)
2008-09-04	39	JUDGMENT ORDER in accordance with the Court's memorandum opinions and orders filed 08/28/07 and this same day, directing that plaintiffs, having received the U.S. Attorney's two-page tally and PAO 4, take nothing further and judgment be entered for the defendant and against the plaintiffs in the remainder of this action and that this action be dismissed; further directing that this action be stricken from the docket of the court. Signed by Judge John T. Copenhaver, Jr. on 9/4/2008. (cc: attys) (mkw)
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