FOIA Facts: Inside the Process of Preparing a Vaughn IndexBy Scott A. Hodes, Published on September 28, 2003
Anyone who has ever been involved in Freedom of Information Act (FOIA) litigation is aware of the strange document that determines the outcome of many FOIA cases. This document, known as a Vaughn Index, is what agencies prepare to justify any FOIA withholdings they have made.
When the FOIA was created, there was no mechanism in the Act for the government to justify its withholdings or for plaintiffs to have a description of what the information being withheld from them was. The Court of Appeals for the District of Columbia Circuit came up with an answer in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The DC Circuit required agencies to prepare an itemized index, correlating each withholding with a specific FOIA exemption and a justification for that justification. Vaughn at 827. The required justification became standard in almost all FOIA cases.
The only alternative to a Vaughn Index is for agencies to submit their withheld material to the court in camera, and then let the court decide if the agencies processing was proper. This alternative, however, has many drawbacks. Plaintiffs receive no opportunity to challenge the redactions because they don’t know the agencies rationale for withholding them. Defendant agencies lose control over their documents, and in the case of an overzealous judge, may lose appellate rights. Finally, courts would be overburdened if they had to review all the raw documents withheld in the hundreds of FOIA cases brought each year.
A plaintiff’s challenge of the government’s use of an exemption in a FOIA case triggers the need for the government to produce a Vaughn. A number of factors determine exactly how the finished Vaughn will look. The Vaughn Index can take many forms such as a straight affidavit, a narrative document, an affidavit with a chart or index detailing the withholdings attached, or a hybrid of any of these examples. All Vaughns serve the same purpose; give a meaningful justification for any withheld materials.
The bottom line for any Vaughn Declaration is that that it must allow a court to decide if the agency’s FOIA withholdings were proper. The types and size of the withholdings will often dictate the format the declaration takes. For instance, if only a few pieces of information are withheld, a simple affidavit justifying them will most likely be more than adequate. However, a case involving hundreds, or even thousands of documents, and probably thousands of redactions will require more than a small affidavit. As the amount of work involved in a large Vaughn is a huge strain on an agency’s legal and FOIA resources, the agency will seek to provide a justification for only a sample of the withheld material. Additionally, the agency may seek to provide a coded Vaughn. A coded Vaughn involves giving each redaction a specific code and then providing a justification for each code, rather than specifically pointing out where each redaction is on a certain page. The coded documents are then attached to a declaration, which is a general affidavit describing and justifying the redaction categories. A coded Vaughn can be done with a sample of the withheld material to provide a manageable size to the Vaughn. The bottom line is that agencies don’t like preparing Vaughns and will do whatever it takes to make the final product as small and simple as possible.
Regardless of the format of the overall declaration, the most important thing in preparing a Vaughn is to adequately and meaningfully describe and justify the withheld documents. The person who will be the declarant must ensure that the redactions are properly described. Many agency declarants utilize a staff, often paralegals, to assist in the preparation of the declaration. A good trick for declarants is to read a draft declaration before reviewing the underlying withheld material. This enables agency personnel to see the case from the perspective of the plaintiff and the court. If the declarant can make no sense of something in a declaration, then the agency will know that there is a problem and a target for attack by the plaintiff. After review of the index, the declarant must then review the withheld material.
A Vaughn Index is a factual document. Legal arguments and case sites should rarely, if ever, be used. The Assistant United States Attorney (AUSA) will cite the applicable law in a dispositive motion used to support the Vaughn. Whenever an AUSA filed one of my Vaughns without a supporting brief, trouble was never usually far behind. The Court had nothing in front of it to rule on, and the bare declaration, no matter how well prepared it was, was usually just used as a punching bag by plaintiffs.
The use of computers has aided
the Vaughn process by allowing agencies to use previous indices as
templates. However, this can cause problems in that agencies that fail to
carefully proofread their Vaughn products may add arguments and
justifications not applicable to the case at hand. Furthermore, the use of
previous indices may not provide justifications with enough specificity to
justify the redactions in the case before the court.
Another important step in the preparation of the Vaughn Index is that someone with both knowledge of FOIA case law and release authority should examine the underlying documents. In many cases, FOIA processors accidentally withhold information that is either intended for release or is clearly releasable. This material should be released before the filing of the Vaughn. Additionally, information that may be protectible by the agency, but for some reason the agency doesn’t want to litigate over or push the envelope on should also be released before the Vaughn is prepared and filed.
It can’t be stated too many times that preparing an adequate Vaughn document is a time consuming and labor intensive task. Agency FOIA department are nearly always under funded and inadequately staffed. The expertise of those who can prepare adequate Vaughn Indices is rarely appreciated. When Vaughn declarations are well done, the product can be quite large. This in turn creates a problem for the courts, which have large caseloads, and don’t have the time to quickly review the large Vaughn Indices. Thus Vaughn’s and their underlying dispositive motions may sit on a court’s docket for upwards of a year before being ruled on. However, it doesn’t appear that any changes to FOIA litigation appear on the horizon. Thus, the Vaughn Index will be a staple of FOIA litigation for the foreseeable future.
Plaintiffs and their counsel, who are opposing a Vaughn Index for the first time, should make sure they can follow an agency’s logic and rationales. If the plaintiff is having difficulty with the agency’s Vaughn, they should contact counsel with FOIA expertise to help them review the document and assist them in preparing a meaningful reply to the government’s document.