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IN
THE UNITED STATES DISTRICT COURT
DISTRICT OF______________________
_____________________
PLAINTIFF
CIVIL NO:___________
V.
}
SUMMARY OF AUTHORITIES IN
SUPPORT OF MOTION TO REQUIRE
INTERNAL REVENUE SERVICE
AND DETAILED
JUSTIFICATION,
ITEMIZATION AND INDEXING UNDER
VAUGHN V. ROSEN
DISTRICT DIRECTOR
______________________
DEFENDANTS
In this action under the
Freedom of Information Act (FOIA), S USC 552, as amended, and the Privacy Act, 5
USC 552a Plaintiff seeks access to all records compiled and in the possession of
the Internal Revenue Service pertaining to him or as requested in the complaint
filed in this action. The purpose of the instant motion is to compel defendants
to provide to the Court and plaintiff a detailed and specific justification,
itemization, and indexing, as required by law, for their refusal to disclose the
requested records and documents. Vaughn v. Rosen, 484 F. 2d
820 (DC Cir. 1973), Ash Grove Cement Co. v. FTC, 511
F. 2d 815 (DC Cir 1975), Pacific Architects and Engineers.
Inc. v. Renegotiation Board, 505 F 2d 383 (DC Cir
1974); Cuneo v. Schlesinger, 484 F 2d 1086 (DC Cir. 1973).
While this type of case seems especially suited for
resolution by summary judgment, and although the Federal Rules of Civil
Procedure allow such a motion to be made against the government 20 days after
filing of the Complaint, Plaintiff is prevented from making such an affirmative
motion by his total lack of knowledge of the contents of the records and
documents defendants have withheld, as well as of the purported justification
for withholding them. Defendant, in his letter attached to complaint, denied
plaintiff's request in whole or part, without detailing or justifying, or only
provided conclusory claims of exemption. This is an arbitrary and capricious act
on the part of Director and is being used against plaintiff to deny him his
lawful rights.
Defendant's answer is not likely to provide any further
information, for it need only consist of a similar general denial of plaintiff's
material allegations. In the event of such an answer, plaintiff's motion for
summary judgment would have to (1) argue in a factual and adversarial vacuum
that plaintiff is entitled as a matter of law to the requested documents and
records, or (2) imagine various conceivable arguments in relation to the
exemptions claimed and attempt to refute each of then. But in either case, the
motion might fail to extract from the defendants the detailed response necessary
for this Court to dispose of such a motion. Thus, the Government's failure to
adequately describe the records withheld and its defenses to disclosure forces
the plaintiff to proceed virtually in the dark. Although the plaintiff knows
that the requested records and documents exist, everything else about them is a
mystery. The Internal Revenue Service's refusal to make any substantive reply
turns this lawsuit on its head; the citizen is, as a practical matter, required
to bear the burden of proof which the statute expressly imposes on the agency, 5
USC 552 (a) (4) (B).
The Court of Appeals for the 9th Circuit (California),
sought to remedy just such problems in Vaughn v. Rosen. In
that case, the plaintiff sought disclosure of various government documents
concerning certain agencies' personnel management programs. The defendant Civil
Service Commission refused to produce the documents at the plaintiff's request
and the plaintiff filed suit. The defendant submitted an affidavit containing
conclusory statements that three named exemptions applied, and the trial court
granted the defendant's motion for summary judgment. The Court of Appeals
reversed and remanded the case to the trial court for further proceedings. Upon
so doing, the Court vigorously insisted that the FOIA's requirements of de
novo review with the burden of proof on the government means that the
agency is obligated to "undertake to justify in much less conclusory terms
its assertion of exemption and to index the information in a manner consistent
with guide-lines set forth by the Court. 484 F. 2d at 828. The Court of Appeals
has recently reiterated that it requires a thorough and specific justification
for the withholding of requested information and records.
......The Vaughn and Cuneo decisions mandate more than
mere indexing of allegedly exempt documents. They contemplate a procedure
whereby the agency resisting disclosure must present a "detailed
justification . . for application of the exemption to the specific documents in
dispute.
Pacific
Architects and engineers. Inc. v. Renegotiation
Board, supra, 505 F 2d at 385.. 1m0"
The Court in Vaughn recognized that "it is
anomalous but obviously inevitable that the party with the greatest interest in
obtaining disclosure is at a loss to argue with desirable legal precision for
the revelation of the concealed information The best (plaintiff) can do is to
argue that the exception is very narrow and plead that the general nature of the
documents and records sought make it unlikely that they contain such (exempt)
information. 484 F 2d at 823-24. In order to avoid shifting the burden of proof
from the agency to the citizen (or to the court on in camera
inspection), the Vaughn court mandated a procedure to allow the lawsuit
to proceed efficiently in the traditional adversary manner, with the burden of
proof borne by the Government as the Act requires. It is that procedure,
outlined in Vaughn, 484 F 2d at 826-28, which plaintiff wishes this Court
to incorporate at this stage of the instant proceedings by granting this motion.
The order sought by plaintiff would compel defendants
to provide the type of information, required by Vaughn, to proceed with
this lawsuit. For example, if defendants are relying on exemption (b) (7), they
must bear the burden of proof on a number of points with respect to records
which are claimed to fall within the exemption: (1) that each record and
document is both "investigatory and complied for authorized law enforcement
purposes. (2) That the records and documents were originally compiled for law
enforcement. (3) That there was an actual lawful criminal investigation,
progress and (4) That the information in the records and documents is in fact
confidential, (5) only from a confidential source, and (6) the disclosure itself
would reveal the confidential source.
Similarly, to the extent that defendants rely upon
exemption 5 they must provide a thorough explanation of how and why the records
claimed to fall within the exemption are part of a pro- decisional, deliberative
process. "Crucial to the decision of this (exemption 5) case is an
understanding of the function of the documents in issue in the context of the
administrative process which generated them. NLRB v. Sears.
Roebuck & ~ 421 US 132 95 S Ct 1804, 1518. Defendants must further
demonstrate that the records contain no factual matters which can be separated
from deliberative materials. Environmental Protection Agency v.
Mink, 410 U.S. 73, 91 (1973).
As to those records pertaining to Plaintiff himself,
Defendants should be required to state that no documents or parts thereof
describes how any individual exercises rights guaranteed by the First Amendment.
Or, unable to do so, Defendants should be required to state whether such
information is (1) authorized by statute, (2) authorized by the Plaintiff, or
(3) pertinent to and within the scope of an authorized law enforcement activity.
In addition to such detailed justification of claimed
exemptions, the Court of Appeals in Vaughn also required defendants to
itemize and index the disputed records and documents so as to correlate
statements in the justification with actual portions of the documents. This
requirements is particularly important in a case such as the instant action
where the disputed documents are substantial in number and diverse in nature.
The proposed order will require defendants to correlate the statements in their
justification to actual portions of the requested records. As the Court of
Appeals suggested in Vaughn:
It seems probable that some portions may fit under one
exemption, while other segments tall under another, while still other segments
are not exempt at all and should be disclosed. The itemization and indexing that
we herein require should reflect this. Vaughn V. Rosen. supra.
Upon receipt of the information mandated by Vaughn, plaintiff may be able
to prepare a motion for summary judgment which would subject defendants'
rationale to the "adequate adversary testing (484 F 2d at 828) which the Vaughn
decision sought to encourage in Freedom of Information Act-Privacy Act cases.
Moreover, this information will allow the Court "to meet the requirements
of Vaughn v. Rosen that judicial determination under the
FOIA be based upon a detailed record . Ash Grove Cement Co.
v.FTC supra, 511 F. 2d at 817.
The proposed order, which will enable the parties to
join issue at the earliest possible date, is further warranted by the
requirement that FOIA cases be "expedited in every way , 5 USC 552 (a) (4)
(D). Indeed, in executing the Vaughn mandate, several judges of this
Court have explicitly ordered defendants to supply plaintiffs with a detailed
itemization, justification and index, and the instant motion is consistent with
this procedure, E.g., Cutler V. CAB, 375 F Supp. 722, 724-25
(1974) (Gesell, J.); Robertson v. Department of Defense,
Civ. NO. 74-644 (Order of Aug. 23, 1974) (Parker, J.); Owens v. Bureau
of Prisons, Civ. No. 74-78 (Order of Feb. 13, 1974 and Apr 8,
1974) (Waddy, J.); Consumers Union v. ICC, Civ. No.
1859-73 (order of Dec. 18, 1973) (Corcoran, J.). The fact that defendants may
not have yet answered plaintiff s complaint is irrelevant. 5 USC 552 (a) (4) (c)
allows the Government thirty (30) days in which to answer an FOIA complaint, but
this rule does not free the Government from responding to summary judgment
motions as early as twenty (20) days after the filing of a complaint. See
6 Moore's Federal Practice, 56.07, P2092. Indeed, in Owens v. Bureau
of Prisons, supra, the Court issued an order requiring the
Government to submit a Vaughn showing concurrently with its response to
the complaint.
In Clarkson vs. IRS and John
Henderson. District Director-GA in USD0 ND-GA #79-1650,
District Judge Richard C. Freeman ruled:
"Under the FOIA, the agency must show that each document requested has been
produced, is unidentifiable, or is exempt. Marx vs. US 578 F 2nd
261. The justification for the non-disclosure of information may not consist of
conclusory allegations of exemption; and requires a relatively detailed
analysis; correlating the documents or portions of the documents claimed to be
exempt with the reason for their exemption. Cuneo vs. Schlessinger
484 F 2nd 1086. The government has not provided plaintiff with an adequate
accounting of why his request is exempt from disclosure . . . Defendants are
ORDERED TO RESPOND TO PLAINTIFF'S [Vaughn-Rosen] Motion within 30 days of
the date of this order .
In conclusion, Plaintiff seeks an order of this Court
compelling the defendants to provide the information mandated by the law, as
stated in Vaughn v. Rosen, so that plaintiff can adequately
perform his adversary role as proponent of disclosure of the requested documents
and records, and so that the Court can base its decision on the type of detailed
records which our Court of Appeals require in FOIA cases. The order sought, on
the other hand, would not significantly burden the defendants, but only require
them to provide the Court and the plaintiff with information which defendants
should have prepared in the court of the administrative determination of the
problem at issue. Furthermore, such an order will contribute to the expedition
to which FOIA cases are entitled by statute.
DATE:
__________________
_________________________
Attorney Pro Se
ADDRESS:_____________________
This is to certify that I have on this date delivered or mailed to
opposing parties copies of the pleading.
DATE AND ADDRESS
ABOVE
_____________________________
Attorney pro se
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