Reno Newspapers, Inc. v. United States Parole Commission et al, No. 3:2009cv00683 - Document 27 (D. Nev. 2011)
Court Description: ORDER GRANTING in part and DENYING in part P's 13 Motion for Summary Judgment. ( See pdf order for specifics. ) FURTHER ORD GRANTING in part and DENYING in part Ds' 17 Motion for SummaryJudgment. ( See pdf order for specifics. ) FURTH ER ORD Ds shall, by 4/19/2011, provide P with all segregable information for which Defendants made a claim of exemption (as specified herein). Signed by Judge Edward C. Reed, Jr on 3/28/2011. (Copies have been distributed pursuant to the NEF - DRM)
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Reno Newspapers, Inc. v. United States Parole Commission et al Doc. 27 1 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA RENO, NEVADA 2 3 4 5 RENO NEWSPAPERS, INC., a Nevada, ) corporation, ) 6 ) Plaintiff, ) 7 ) vs. ) 8 ) UNITED STATES PAROLE COMMISSION ) 9 and UNITED STATES DEPARTMENT OF ) JUSTICE, ) 10 ) Defendants. ) 11 ___________________________________) 3:09-CV-683-ECR-RAM Order 12 This is an action filed under the Freedom of Information Act 13 (“FOIA”), 5 U.S.C. § 552, challenging Defendants' decision to redact 14 and withhold certain documents in response to Plaintiff’s FOIA 15 request. 16 Now pending are a motion for summary judgment (#13) filed by 17 Plaintiff on July 21, 2010 and a cross-motion for summary judgment 18 (#17) filed by Defendants on September 8, 2010. The motions are 19 ripe, and we now rule on them. 20 21 I. Factual and Procedural Background 22 On September 4, 2009, Plaintiff Reno Newspapers Inc., a Nevada 23 Corporation doing business as RGJ Legal Affairs (“RGJ”) reported 24 that RGJ employee Martha Bellisle submitted a written FOIA request 25 to the United States Parole Commission (the “USPC”). (Compl. ¶ 11 26 (#1).) On September 16, 2009, the USPC’s FOIA specialist responded 27 to RGJ, enclosing 19 pages of documents with certain portions 28 Dockets.Justia.com 1 redacted and stating that the USPC was withholding 92 pages in full 2 pursuant to 5 U.S.C. § 552(b)(6) and 552(b)(7). (Id. ¶¶ 13, 14.) 3 On October 5, 2009, counsel for RGJ responded in writing, 4 specifically requesting a written index with respect to each of the 5 withheld documents so that “RGJ would be afforded a meaningful 6 opportunity to evaluate and potentially contest the USPC’s action in 7 withholding the requested documents.” (Id. ¶ 15.) Also on October 8 5, 2009, RGJ appealed the decision of the USPC’s FOIA specialist to 9 the Chairman of the USPC. (Id. ¶ 16.) The administrative appeal 10 reiterated RGJ’s request for a written index with respect to each of 11 the withheld documents. (Id.) By a letter dated October 19, 2009, 12 the Chairman of the USPC denied the administrative appeal and 13 refused to provide the RGJ with a written index with respect to the 14 withheld documents. 15 (Id. ¶ 17.) On November 23, 2009, Plaintiff filed the complaint (#1) in the 16 present lawsuit. On January 29, 2010, the FOIA specialist conducted 17 further review of the Commission’s records and sent 32 redacted 18 pages to Plaintiff. (Ds.’ Opp. and MSJ at 4 (#16).) On April 7, 19 2010, Defendants provided an additional 44 pages of records, 38 20 pages of which contain redactions. (P.’s MSJ at 10 (#13).) On May 21 25, 2010, Plaintiff appealed the April 7, 2010 disclosure to the 22 Chairman of the Commission. (Id. at 10.) On May 26, 2010, 23 Defendants provided the RGJ with an index of withheld and redacted 24 documents. (P.’s MSJ at 10 (#13).) 25 500 documents were withheld in full. 26 This index indicated that over (Id.) On July 21, 2010, Plaintiff filed a motion for summary judgment 27 (#13) asserting that documents requested by Plaintiff from 28 2 1 Defendants are not protected under FOIA. On September 8, 2010, 2 Defendants filed an opposition to Plaintiff’s motion for summary 3 judgment and cross-motion for summary judgment (#16). On October 8, 4 2010, Plaintiff filed a reply (#20) in support of Plaintiff’s motion 5 for summary judgment and in opposition to Defendants’ cross-motion 6 for summary judgment. 7 On January 21, 2011, this Court filed an order (#24) granting 8 Defendants fourteen days to file an amended Vaughn index with the 9 Court and granting Plaintiffs fourteen days thereafter to submit a 10 response. On February 7, 2011, Defendants filed their amended 11 Vaughn index (#25) (the “Amended Index”). On February 22, 2011, 12 Plaintiffs filed their response (#26) to Defendants’ Amended Index. 13 14 15 II. Summary Judgment Standard in FOIA Cases Summary judgment allows courts to avoid unnecessary trials 16 where no material factual dispute exists. N.W. Motorcycle Ass’n v. 17 U.S. Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). The court 18 must view the evidence and the inferences arising therefrom in the 19 light most favorable to the nonmoving party, Bagdadi v. Nazar, 84 20 F.3d 1194, 1197 (9th Cir. 1996), and should award summary judgment 21 where no genuine issues of material fact remain in dispute and the 22 moving party is entitled to judgment as a matter of law. 23 CIV. P. 56(c). FED. R. Judgment as a matter of law is appropriate where 24 there is no legally sufficient evidentiary basis for a reasonable 25 jury to find for the nonmoving party. FED. R. CIV. P. 50(a). Where 26 reasonable minds could differ on the material facts at issue, 27 however, summary judgment should not be granted. 28 3 Warren v. City of 1 Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116 S.Ct. 2 1261 (1996). 3 “Summary judgment is the procedural vehicle by which nearly 4 all FOIA cases are resolved.” Los Angeles Times Commc'ns, LLC v. 5 Dep't of the Army, 442 F. Supp. 2d 880, 893 (C.D. Cal. 2006). The 6 court conducts a de novo review of an agency's response to a FOIA 7 request. 5 U.S.C. § 552(a)(4)(B); U.S. Dep't of Justice v. Reporters 8 Comm. for Freedom of Press, 489 U.S. 749, 755 (1989). The usual 9 summary judgment standard detailed above does not extend to FOIA 10 cases because the facts are rarely in dispute and courts generally 11 need not resolve whether there is a genuine issue of material fact. 12 Minier v. Cent. Intel. Agency, 88 F.3d 796, 800 (9th Cir. 1996). 13 Instead, in deciding whether summary judgment is appropriate in 14 a FOIA case, the court must first evaluate “whether the agency has 15 met its burden of proving that it fully discharged its obligations 16 under the FOIA.” Id. The agency must demonstrate that it has 17 conducted a search reasonably calculated to uncover all relevant 18 documents. Zemansky v. U.S. Envtl. Prot. Agency, 767 F.2d 569, 571 19 (9th Cir. 1985). Second, if the agency satisfies its initial 20 burden, the court must determine “whether the agency has proven that 21 the information that it did not disclose falls within one of the 22 nine FOIA exemptions.” 23 at 894. Los Angeles Times Commc'ns, 442 F. Supp. 2d We have previously held that the appropriate standard for 24 summary judgment in FOIA cases is as follows: “[i]n a suit brought 25 to compel production, an agency is entitled to summary judgment if 26 no material facts are in dispute and if it demonstrates that each 27 document that falls within the class requested either has been 28 4 1 produced or is wholly exempt from the Act’s inspection 2 requirements.” Nevada v. United States DOE, 517 F. Supp. 2d 1245 (D. 3 Nev. 2007). 4 5 III. Discussion 6 A. Vaughn Index Requirement 7 As detailed in our order (#24) dated January 21, 2011, 8 government agencies seeking to withhold documents requested under 9 FOIA are required to supply the opposing party and the court with a 10 “Vaughn index,” identifying “each document withheld, the statutory 11 exemption claimed, and a particularized explanation of how 12 disclosure of the particular document would damage the interest 13 protected by the claimed exemption.” 14 972, 977 (9th Cir. 1991). Wiener v. F.B.I., 943 F.2d In meeting its burden, “the government 15 may not rely upon ‘conclusory and generalized allegations of 16 exemptions.’” Church of Scientology of Cal. v. U.S. Dep't of the 17 Army, 611 F.2d 738, 742 (9th Cir. 1980) (quoting Vaughn v. Rosen, 18 484 F.2d 820, 826 (D.C. Cir. 1973)). 19 A Vaughn index should satisfy the following requirements: 20 “(1) The index should be contained in one document, complete in 21 itself; (2) The index must adequately describe each withheld 22 document or deletion from a released document; (3) The index must 23 state the exemption claimed for each deletion or withheld document, 24 and explain why the exemption is relevant.” Voinche v. F.B.I., 412 25 F. Supp. 2d 60, 65 (D. D. C. 2006). 26 The FOIA creates a presumption in favor of disclosure of 27 government documents. Dept. of the Air Force v. Rose, 425 U.S. 352, 28 5 1 360-61 (1976). An agency may withhold a document “only if the 2 information contained in the document falls within one of the nine 3 statutory exemptions to the disclosure requirements set forth in § 4 552(b).” Bowen v. United States Food and Drug Admin., 925 F.2d 5 1225, 1226 (9th Cir. 1991). 6 construed. These exemptions are to be narrowly Cal-Almond, Inc. v. United States Dep’t of Agriculture, 7 960 F.2d 105, 107 (9th Cir. 1992); United States Dep’t of Justice v. 8 Julian, 486 U.S. 1, 7 (1988). 9 Furthermore, even if part of a document is FOIA exempt, the 10 agency still must disclose any portions which are not exempt - i.e., 11 all “segregable” information - and must address in its Vaughn index 12 why the remaining information is not segregable. The district court 13 must make specific factual findings on the issue of segregability to 14 establish that the required de novo review of the agency's 15 withholding decision has in fact taken place. 16 988. Wiener, 943 F.2d at The Court may not “‘simply approve the withholding of an 17 entire document without entering a finding on segregability . . . 18 .’” Id., citing Church of Scientology, 611 F.2d at 744. 19 The Ninth Circuit Court of Appeals has not stated that there is 20 a general presumption of good faith in an agency’s affidavits, 21 although other courts have applied such a presumption. See, e.g., 22 Jones v. FBI, F.3d 238, 242 (6th Cir. 1994) (citing United States 23 Dep’t of State v. Ray, 502 U.S. 164, 179 (1991) “We generally accord 24 Government records and official conduct a presumption of 25 legitimacy.”); Ingle v. United States Dep’t of Justice, 698 F.2d 26 259, 265 (6th Cir. 1983)(quoting Cox v. United States Dep’t of 27 Justice, 576 F.2d 1302, 1312 “If the Government fairly describes the 28 6 1 content of the material withheld and adequately states its grounds 2 for nondisclosure, and if those grounds are reasonable and 3 consistent with the applicable law, the district court should uphold 4 the government’s position.”). 5 B. Adequacy of Defendants’ Amended Vaughn Index 6 Our order (#24) dated January 21, 2011 found Defendants’ 7 original Vaughn index deficient and granted Defendants fourteen days 8 within which to file an amended Vaughn index that (i) states with 9 greater specificity why an exemption is relevant to a particular 10 document; (ii) clearly states whether any information contained in a 11 withheld document is segregable; and (iii) clarifies whether 12 Defendants had law enforcement or administrative functions with 13 respect to any exemptions claimed under 5 U.S.C. § 552(b)(7)(C). 14 Defendants filed their Amended Index (#25) with the Court on 15 February 22, 2011. 16 The Amended Index is a seventy-entry index divided into two 17 categories: material from the Commission and the material from the 18 United States Probation Office (the “USPO”). Each category is 19 further divided into two subcategories: documents released in part 20 and documents withheld in full. 21 22 i. Form of Amended Index In their response, Plaintiffs allege that the Amended Index 23 fails as a proper Vaughn index because “it is not in affidavit form 24 and/or sworn to.” (P.’s Resp. at 3 (#26).) Plaintiffs correctly 25 state that both the Ninth Circuit Court of Appeals and the D.C. 26 Circuit Court of Appeals have issued opinions contemplating that a 27 Vaughn index may be in affidavit form. Wiener v. F.B.I., 943 F.2d 28 7 1 972, 979 (9th Cir. 1991); Vaughn v. Rosen, 484 F. 2d 820, 826 fn. 20 2 (D.C. Cir. 1973). Here, however, Plaintiffs incorrectly conflate 3 the courts’ finding that a Vaughn index may take the form of an 4 affidavit with a holding that a Vaughn index must take such form. 5 Indeed, the Ninth Circuit Court of Appeals has held that while “[a]n 6 affidavit may be necessary to verify that the agency has nothing 7 more in its possession than what it has described,” the “form of 8 disclosure is not critical.” Fiduccia v. United States Dep’t Of 9 Justice, 185 F.3d 1035, 1043-44 (9th Cir. 1999). Rather, “what 10 matters is the substantive adequacy of the disclosures, in whatever 11 form...[a]ny form - letter, Vaughn index, affidavit, copy of 12 redacted document - may be adequate or inadequate, depending on the 13 circumstances.” Id. at 1044. 14 We therefore find that Plaintiff’s contention that the Amended 15 Index fails as a proper Vaughn index because it is not in affidavit 16 form, nor was it submitted through sworn testimony by Defendants, 17 fails. 18 19 ii. Exemptions Claimed In Amended Index In their original Vaughn index, Defendants did not in every 20 case explain why an exemption listed with respect to a withheld 21 document was relevant. (Order (#24).) As such, the original index, 22 as a whole, failed to demonstrate a “logical connection between the 23 information and the claimed exemption . . . .” Salisbury v. United 24 States, 690 F.2d 966, 970 (D.C. Cir. 1982). 25 In its response (#26) to Defendants’ Amended Index, Plaintiff 26 alleges that the Amended Index is deficient in that it fails to 27 explain (i) as to the deliberative process exemption claims, why 28 8 1 release of the documents would adversely impact Defendants’ conduct 2 in the future; and (ii) as to the privacy claims, how any particular 3 document could potentially result in harassment, embarrassment or 4 unwarranted public attention to either parolee Garrido or third 5 parties. 6 We find that Defendants’ Amended Index successfully addresses 7 the deliberative process exemption claims pursuant to 5 U.S.C. § 8 552(b)(5) and the law enforcement exemption claims pursuant to 5 9 U.S.C. § 552(b)(7), but does not sufficiently segregate unprotected 10 information for which a privacy exemption is claimed under 5 U.S.C. 11 § 552(b)(6). 12 a. Exemption Pursuant to 5 U.S.C. § 552(b)(5) - The 13 Deliberative Process Privilege 14 The “deliberative process” exemption under 5 U.S.C. § 552(b)(5) 15 (“Exemption 5") exempts from public disclosure confidential inter16 agency memoranda on matters of law or policy. 5 U.S.C. § 552(b)(5); 17 See Nat’l Wildlife Fed’n v. United States Forest Serv., 861 F.2d 18 1114 (9th Cir. 1988). To qualify for Exemption 5 under the 19 “deliberative process” privilege, “a document must be both (1) 20 ‘predecisional’ or ‘antecedent to the adoption of agency policy’ and 21 (2) ‘deliberative,’ meaning ‘it must actually be related to the 22 process by which policies are formulated.’” Nat’l Wildlife Fed’n, 23 861 F.2d at 1117. These requirements recognize that the underlying 24 purpose of the “deliberate process” privilege to “‘protect[] the 25 consultative functions of government by maintaining the 26 confidentiality of advisory opinions, recommendations, and 27 deliberations comprising part of a process by which governmental 28 9 1 decisions and policies are formulated.’” Id. at 1118 (quoting Jordan 2 v. United States Dep’t of Justice, 591 F.2d 753, 774 (D.C. Cir. 3 1974). This protection encourages the frank and open discussion of 4 ideas and therefore improves the inter- and intra-agency decision5 making process. 6 Plaintiff contends that Defendants have not alleged any facts 7 to show that the deliberative process would be compromised by 8 showing what facts Defendants relied upon in deciding that Garrido 9 was a suitable candidate for parole. (P.’s Resp. at 12 (#26).) 10 disagree. We Where Defendants have claimed exemption under 5 U.S.C. § 11 552(b)(5) for a particular document, they have identified such 12 document as both predecisional and deliberative. For example, with 13 respect to item 23 on the Amended Index, Defendants claim Exemption 14 5 protection on the basis that the document “includes the USPC’s 15 analysis of the case and tentative recommendation by the hearing 16 examiner for the parole decision.” (Am. Index at 17 (#25).) That 17 the recommendation was tentative indicates that the document was 18 predecisional, and that it includes an analysis and recommendation 19 indicates that the document was deliberative. 20 Plaintiff emphasizes the lapse in time between the creation of 21 the requested documents and Plaintiff’s FOIA request for such 22 documents as if this lapse is material to Defendant’s privacy 23 interest in the information contained therein. (P.’s Resp. at 11 24 (#26).) 25 date. FOIA protection, however, does not come with an expiration To impose a time limit on the protection for communications 26 involving an agency’s deliberative process would effectively 27 28 10 1 eliminate the incentive for the frank and open discussion of ideas 2 that Exemption 5 is intended to engender. 3 b. Exemption Pursuant to 5 U.S.C. § 552(b)(6) - 4 Clearly Unwarranted Invasion of Personal Privacy and Defendants’ 5 Duty to Segregate Unprotected Information. 6 5 U.S.C. § 552(b)(6) exempts from disclosure under FOIA 7 “personnel and medical files and similar files, the disclosure of 8 which would constitute a clearly unwarranted invasion of personal 9 privacy” (“Exemption 6"). The threshold question here is whether 10 the requested documents constitute “personnel and medical and 11 similar files.” The Ninth Circuit Court of Appeals has held that 12 personnel files “ordinarily contain information such as ‘where [an 13 individual] was born, the names of his parents, where he has lived 14 from time to time, his high school or other school records, results 15 of examinations, [and] evaluations of his work performance.” 16 Dobronski v. F.C.C., 17 F.3d 275, 277 (9th Cir. 1994), quoting Dep’t 17 of the Air Force v. Rose, 425 U.S. 352, 377 (1976). The Ninth 18 Circuit Court of Appeals has held, for example, that there is no 19 blanket exemption for presentence investigation reports under FOIA. 20 Julian v. United States Dep’t of Justice, 806 F.2d 1411 (9th Cir. 21 1986). However, the Ninth Circuit has noted in dicta that Exemption 22 6 may be triggered when a request for a presentence report is made 23 by a third party, as opposed to by the subject of the report. Id. at 24 1417, n. 4. 25 We have previously ruled that the language of Exemption 6 26 expresses “a carefully considered congressional policy favoring 27 disclosure which instructs the court to tilt the balance in favor of 28 11 1 disclosure.” Associated Gen. Contractors, Etc. v. United States, 2 Etc., 488 F. Supp. 861 (D. Nev. 1980). 3 The Ninth Circuit Court of Appeals has held that courts should 4 consider the following four factors in determining whether an 5 invasion of privacy is “clearly unwarranted” for purposes of 5 6 U.S.C. § 552(b)(6): 7 “(i) the plaintiff’s interest in disclosure; (ii) the public 8 interest in the disclosure; (iii) the degree of the invasion of 9 personal privacy; and (iv) the availability of any alternate means 10 of obtaining the requested information.” Dobronski v. F.C.C., 17 11 F.3d 275 (9th Cir. 1994). See also Church of Scientology of 12 California v. United States Dep’t of Army, 611 F.2d 738 (9th Cir. 13 1979). 14 In their Amended Index, Defendants describe as personnel, 15 medical or similar files withheld in full pursuant to Exemption 6 16 documents such as Garrido’s parole application, a USPC assessment 17 prepared before a parole hearing, the USPC’s initial parole hearing 18 summary, bank statements, and monthly parole supervision reports 19 submitted by Garrido to the USPO Probation Officer. 20 In its response (#26) to the Amended Index, Plaintiff contends 21 that “it defies credulity to believe” that there is no information 22 contained in the documents withheld by Defendants that would not 23 violate a privacy interest of Garrido or a third party. (P’s Resp. 24 at 10 (#26).) 5 U.S.C. § 552(b) directs that “[a]ny reasonably 25 segregable portion of a record shall be provided to any person 26 requesting such record after deletion of the portions which are 27 exempt. . . .” 28 A district court may not “simply approve the 12 1 withholding of an entire document without entering a finding on 2 segregability.” Weiner, 943 F.2d at 988. 3 In evaluating the merits of applying Exemption 6 to the 4 documents withheld in whole by Defendants, we have considered the 5 four factors set forth by the Ninth Circuit Court of Appeals in 6 Dobronski. Both Plaintiff and the public have strong interest in 7 the disclosure of information regarding Defendants’ decision that 8 Garrido was a suitable candidate for parole, as the motivating 9 factors behind this decision could indicate a deficiency in our 10 nation’s parole system. Garrido’s privacy interest in the withheld 11 documents appears to range from a clear privacy interest in medical 12 (Am. Index ¶ 61 (#26)) and bank records (Id. ¶ 58) to a more 13 nebulous one in documents such as a USPO Probation Officer’s 14 chronological reports (Id. ¶ 54). With respect to the fourth prong 15 of the Dobronski test, there does not appear to be an alternate 16 source of information for Defendants’ reasoning in determining that 17 Garrido was eligible for parole. 18 Given Plaintiff’s and the public’s strong interest in the 19 Defendants’ determination that Garrido was eligible for parole and 20 the congressional policy in favor of disclosure, we are inclined to 21 agree with Plaintiffs that the Amended Index (#25) fails to 22 adequately justify Defendants’ failure to disclosure any “reasonably 23 segregable portion” of the following documents withheld in full on 24 the basis of Exemption 6, listed by paragraph number as they appear 25 on the Amended Index (#25): ¶ 22-¶ 32, ¶ 54-¶ 56, ¶ 59, ¶ 62, ¶ 65, 26 ¶ 66. 5 U.S.C. § 552(b). We therefore order Defendants to release 27 28 13 1 to Plaintiff all segregable information contained in the foregoing 2 documents. 3 iii. Clarifying Whether Defendants had Law Enforcement or 4 Administrative Functions with respect to any Exemptions Claimed 5 Under 5 U.S.C. § 552(b)(7). 6 5 U.S.C. § 552(b)(7) encompasses six different exemptions that 7 shield from public disclosure information about individuals where 8 the “information [was] compiled for law enforcement purposes” 9 (collectively, “Exemption 7"). The threshold issue in any Exemption 10 7 claim is “whether the agency involved may properly be classified 11 as a ‘law enforcement’ agency.” Church of Scientology of California 12 v. United States Dep’t of Army, 611 F.2d 738, 748 (9th Cir. 1979). 13 “The term ‘law enforcement purpose’ has been construed to require an 14 examination of the agency itself to determine whether the agency may 15 exercise a law enforcement function.” Id. An agency with “a clear 16 law enforcement mandate, such as the FBI, need only establish a 17 ‘rational nexus’ between enforcement of a federal law and the 18 document for which an exemption is claimed.” Id.; see also 19 Rosenfeld v. United States Dep’t of Justice, 57 F.3d 803, 808 (9th 20 Cir. 1995). However, “an agency which has a ‘mixed’ function, 21 encompassing both administrative and law enforcement functions, must 22 demonstrate that it had a purpose falling within its sphere of 23 enforcement authority in compiling the particular document.” 24 Id. In their Amended Index, Defendants allege that each of the USPC 25 and USPO has a singular law enforcement purpose rather than a mixed 26 law enforcement and administrative function. (Am. Index at 1 (#25).) 27 Defendants ground this allegation in a reading of the Parole 28 14 1 Commission and Reorganization Act (“PCRA”), Pub. L. 94-233, 90 Stat. 2 219-231, codified at 18 U.S.C. § 4201 (1976), that establishes a 3 statutory law enforcement function for the USPC and USPO. Absent 4 compelling evidence presented by Plaintiff to the contrary, we are 5 persuaded that Defendants are agencies with law enforcement mandates 6 for purposes of Exemption 7. 7 In its response (#26), Plaintiff alleges that Defendants’ 8 declarations of their law enforcement purposes are insufficient to 9 address the threshold of Exemption 7. According to Plaintiff, 10 Defendants rely solely on their status as law enforcement agencies 11 as the premise from which we should conclude that any record 12 maintained by Defendants was compiled for law enforcement purposes. 13 We disagree. As to each entry in the Amended Index for which 14 Defendants assert Exemption 7, Defendants provide a description of 15 how the particular document has a rational nexus to Defendants’ law 16 enforcement activities. 17 We therefore find that Defendants have properly asserted 18 Exemption 7 on the Amended Index. 19 C. Admissibility of Special Report 20 Attached to Plaintiff’s motion (#13) for summary judgment 21 is a Special Report by the Office of the Inspector General of the 22 State of California (#13-2) (the “Special Report”) concerning the 23 California Department of Corrections and Rehabilitation’s 24 supervision of parolee Garrido. In their opposition to Plaintiff’s 25 motion for summary judgment and cross-motion for summary judgment 26 (#16), Defendants challenge the admissibility of the Special Report 27 on various evidentiary grounds: (i) that the Special Report is 28 15 1 hearsay; (ii) that no foundation has been laid to establish that the 2 California Inspector General is familiar with the federal parole 3 system or with Garrido’s case in particular; (iii) that the 4 California Inspector General’s statements in the Special Report are 5 not subscribed as true under penalty of perjury; (iv) that the 6 Special Report is not relevant to the issues raised in this FOIA 7 action; and (v) that the Special Report has not been properly 8 authenticated. (Ds.’ Resp. at 8-9 (#16).) 9 We find that Defendants’ first and third challenges to the 10 Special Report fail because the Special Report was submitted not “to 11 prove the truth of the matter asserted,” but to demonstrate the 12 public’s perception and legitimate concern as to Garrido’s parole 13 and supervision. See, e.g., Dep’t of the Air Force v. Rose, 425 14 U.S. 352, 360 (1976)(newspaper excerpts and press releases allowed 15 to illustrate the extent of public concern). Defendants’ second 16 challenge to the Special Report is likewise not well taken. The 17 Special Report indicates that the California Inspector General 18 reviewed Garrido’s federal parole files and based his comments on 19 Defendants’ performance on such review. Defendants’ fourth 20 challenge to the Special Report, alleging that it is not relevant to 21 the issue at hand, also fails. The State of California’s 22 investigation into Garrido’s parole and supervision indicates that 23 there may be a public interest in a similar investigation at the 24 federal level as well. Finally, Defendants argue that the Special 25 Report has not been properly authenticated. Plaintiff correctly 26 notes that Federal Rule of Evidence 901 requires only evidence 27 “sufficient to support a finding that the matter in question is what 28 16 1 its proponent claims.” (P’s Reply at 7 (#20).) The Special Report 2 bears the signature of the California Inspector General, which 3 renders the document self-authenticating pursuant to Federal Rule of 4 Evidence 902(2). 5 Defendants’ objections to the admission of the Special Report 6 are therefore not well taken. We find that the Special Report is 7 admissible for the purpose of demonstrating the public’s perception 8 and legitimate concern as to Garrido’s parole and supervision. 9 10 IV. Conclusion 11 In FOIA cases, the burden is on the government to show (i) that 12 withheld documents and redacted portions of documents are exempt 13 from disclosure; and (ii) that portions of withheld documents that 14 are not FOIA-exempt are not segregable from the remainder of the 15 document. These showings are made by the production of a Vaughn 16 index, which must (i) detail each withheld document and each 17 deletion from a released document; (ii) state the exemption claimed 18 for each deletion or withheld document; (iii) explain why such 19 exemption is relevant; and (iv) state why a document held in full 20 was not segregable. 21 We have found that the Amended Index properly asserts the 22 deliberative process exemption claims pursuant to 5 U.S.C. § 23 552(b)(5) and the law enforcement exemption claims pursuant to 5 24 U.S.C. § 552(b)(7), but does not sufficiently segregate unprotected 25 information for which a privacy exemption is claimed under 5 U.S.C. 26 § 552(b)(6). As such, Defendants will be required to release to 27 Plaintiff all segregable information contained in the following 28 17 1 documents as listed on the Amended Index (#25): ¶ 23, ¶ 24, ¶ 26, ¶ 2 27, ¶ 28, ¶ 29, ¶ 30, ¶ 32, ¶ 54, ¶ 55, ¶ 59, ¶ 62, ¶ 65. 5 U.S.C. § 3 552(b). 4 IT IS, THEREFORE, HEREBY ORDERED that Plaintiff’s motion (#13) 5 for summary judgment is GRANTED in part and DENIED in part: GRANTED 6 as to Defendants’ claims of exemption under 5 U.S.C. § 552(b)(6) 7 with respect to the segregable information contained in the 8 following documents as listed on the Amended Index (#25): ¶ 22-¶ 32, 9 ¶ 54-¶ 56, ¶ 59, ¶ 62, ¶ 65, ¶ 66; and DENIED as to Defendants’ 10 claims of exemption under 5 U.S.C. § 552(b)(5), 5 U.S.C. § 552(b)(7) 11 and 5 U.S.C. § 552(b)(6) with respect to the following documents as 12 listed on the Amended Index (#25): ¶ 33, ¶ 34, ¶ 57, ¶ 58, ¶ 60, ¶ 13 61, ¶ 63, ¶ 64, ¶ 67-¶ 70. 14 IT IS HEREBY FURTHER ORDERED that Defendants’ cross-motion 15 (#17) for summary judgment is GRANTED in part and DENIED in part: 16 GRANTED as to Defendants’ claims of exemption under 5 U.S.C. § 17 552(b)(5), 5 U.S.C. § 552(b)(7) and 5 U.S.C. § 552(b)(6) with 18 respect to the following documents as listed on the Amended Index 19 (#25): ¶ 33, ¶ 34, ¶ 57, ¶ 58, ¶ 60, ¶ 61, ¶ 63, ¶ 64, ¶ 67-¶ 70; 20 and DENIED as to Defendants’ claims of exemption under 5 U.S.C. § 21 552(b)(6) with respect to the following documents as listed on the 22 Amended Index (#25): ¶ 22-¶ 32, ¶ 54-¶ 56, ¶ 59, ¶ 62, ¶ 65, ¶ 66. 23 IT IS HEREBY FURTHER ORDERED that Defendants shall, within 24 twenty-one (21) days, provide Plaintiff with all segregable 25 information for which Defendants made a claim of exemption pursuant 26 to 5 U.S.C. § 552(b)(6) with respect to the segregable information 27 28 18 1 contained in the following documents as listed on the Amended Index 2 (#25): ¶ 22-¶ 32, ¶ 54-¶ 56, ¶ 59, ¶ 62, ¶ 65, ¶ 66. 3 4 DATED: March 28, 2011. 5 6 ____________________________ 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19
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