RUBEN CASTILLO, District Judge.
The International Union of Elevator Constructors Local 2 ("Union") and Frank Christensen ("Christensen") (collectively, "Plaintiffs") bring this action under the Freedom of Information Act ("FOIA" or "the Act"), 5 U.S.C. § 552 et seq., seeking documents from the United States Department of Labor ("Department of Labor"). (R. 1, Compl. ¶ 1.) While the Department of Labor has released some publicly available responsive documents to Plaintiffs' FOIA request, it invoked FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A), to withhold over 4,000 pages of responsive documents, (R. 1, Compl., Ex. H at 2.) The Union filed this suit to challenge the Department of Labor's withholdings under Exemption 7(A), which applies when the production of information compiled for law enforcement purposes could reasonably be expected to interfere with enforcement proceedings, 5 U.S.C. § 552(b)(7)(A). Plaintiffs now move for an order compelling the Department of Labor to prepare a Vaughn index detailing the withheld documents. (R. 15, Pls.' Mot. For Order Requiring Vaughn Index ("Pls.' Mot.").) For the reasons stated below, the motion is denied.
On July 18, 2008, the business manager for the Union, Frank Christensen, mailed a FOIA request to the director of the Office of Labor-Management Standards ("OLMS")
The parties subsequently reached a settlement. (R. 11, Status Report at 1.) The Department of Labor agreed to provide all publicly available responsive documents to Plaintiffs, and the suit was dismissed without prejudice on September 29, 2009.
After the Department of Labor did not respond to their FOIA appeal within 20 days, Plaintiffs filed a motion to reinstate the prior suit in this Court on January 13, 2010. (R. 11, Status Report at 2.) The Court entered and continued the motion to reinstate. (Id.) On January 22, 2010, the Court ordered the Department of Labor to produce the documents requested under FOIA or to file an affidavit explaining why the documents were being withheld. (Id.) On January 25, 2010, the Department of Labor denied Plaintiffs' appeal, again invoking FOIA Exemption 7(A). (R. 1, Compl. Ex., H.) This denial constituted final agency action for the purposes of judicial review. (Id.) The Court permitted the Department of Labor to file an affidavit explaining why the remaining records were being withheld, and the Department of Labor filed its affidavit on March 31, 2010.
Plaintiffs filed the complaint in this case on March 26, 2010 in order to preserve the statute of limitations with respect to the Department of Labor's denial of Plaintiffs' appeal.
The Freedom of Information Act generally envisions a policy favoring broad disclosure of federal agency records. See Solar Sources, Inc. v. United States, 142 F.3d 1033, 1037 (7th Cir.1998) (citing NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978)). At the same time, however, the Act also contemplates that certain government documents should not be subject to public disclosure, and Congress included nine exemptions from its disclosure requirements. See 5 U.S.C. § 552(b), When invoking an exemption, the government bears the burden of justifying its withholding
Freedom of Information Act litigation creates unique challenges for courts, and the concept of the "Vaughn index" developed in response to those challenges, Vaughn v. Rosen, 484 F.2d 820, 824-26 (D.C.Cir.1973), cert, denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). Specifically, the court in Vaughn was concerned by the information asymmetry between the party seeking disclosure and the government agency claiming an exemption. Id. at 823-24, Such an imbalance, the court believed, "seriously distorts the traditional adversary nature of our legal system's form of dispute resolution." Id. at 824-25 ("Ordinarily, the facts relevant to a dispute are more or less equally available to adverse parties. In a case arising under the FOIA this is not true ... and hence the typical process of dispute resolution is impossible.").
When faced with this dilemma in FOIA litigation, some courts inspect the disputed documents in camera to determine whether the government agency has properly invoked an exemption. See Solar Sources, 142 F.3d at 1035. As Plaintiffs argue in their brief, however, such an examination can prove burdensome, and does not enable the party seeking disclosure to effectively advocate for disclosure. Thus, Vaughn indexes are used as an attempt to rectify the imbalance that exists in FOIA cases by providing a detailed justification for each withheld document. Vaughn, 484 F.2d at 826. In its most common form, a Vaughn index is a "comprehensive listing of each withheld document cross-referenced with the FOIA exemption that the Government asserts is applicable." Solar Sources, 142 F.3d at 1037 n. 3 (citations omitted). Specifically, "[i]n preparing a Vaughn Index, an agency must list the title of the document or category of documents, the date of the document, the author and recipient(s), a detailed factual description of the document, and the statutory exemption the agency is claiming to support nondisclosure." Becker v. I.R.S., 34 F.3d 398, 401 n. 9 (7th Cir.1994). While courts frequently use a Vaughn index as a tool to address the adversarial deficiencies in FOIA litigation, an index is not required in every case. As discussed in the next section, Exemption 7(A)—the exemption asserted by the Department of Labor in this case—has generally been treated differently by courts when determining the appropriateness of compelling the production of a Vaughn index.
In this case, the Department of Labor claims the withheld documents fall under Exemption 7(A). Exemption 7(A) exempts from production "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7). In NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978), the Supreme Court addressed the distinguishing characteristics of Exemption 7(A), and the burden the government must bear when invoking it. When claiming an exemption under 7(A), the government need show only "that, with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally `interfere with enforcement proceedings.'" Robbins Tire, 437 U.S. at 236, 98 S.Ct. 2311.
Given this categorical approach, when the exemption claimed by the government is Exemption 7(A), a detailed Vaughn index "is generally not required. . ." Wright, 822 F.2d at 646 (citations omitted). In fact, "[a] Vaughn index requirement in a 7(A) case would make little sense: `When . . . a claimed FOIA exemption consists of a generic exclusion, dependent upon the category of records rather than the subject matter which each individual record contains, resort to a Vaughn index is futile.'" Solar Sources, 142 F.3d at 1040 (quoting Church of Scientology v. I.R.S., 792 F.2d 146, 152 (D.C.Cir.1986) (Scalia, J.)); see also In re Dep't of Justice, 999 F.2d 1302 (8th Cir.1993) (en banc) (issuing a writ of mandamus, vacating the district court's order directing the production of a Vaughn index, and remanding for further proceedings in a case in which the government invoked Exemption 7(A)); Lewis v. I.R.S., 823 F.2d 375, 380 (9th Cir. 1987) (affirming district court's denial of a Vaughn index in a case in which Exemption 7(A) applied). Instead, an "agency need only provide sufficient information to allow a court to review the agency's claimed exemption." Wright, 822 F.2d at 646. This can generally be accomplished through sufficiently detailed affidavits or declarations. See Bassiouni v. CIA, 248 F.Supp.2d 795, 796 (N.D.Ill.2003) (citations omitted).
Thus, Plaintiffs' request that the Court order the Department of Labor "to provide a comprehensive listing describing each withheld document and to cross-reference all of the withheld documents with
Compelling the production of a Vaughn index could also effectively defeat the very purpose of Exemption 7(A). In enacting Exemption 7(A), "Congress recognized that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it came time to present their case." Robbins Tire, 437 U.S. at 224, 98 S.Ct. 2311. The Department of Labor argues that providing Plaintiffs with a detailed Vaughn index would "aid plaintiffs in discovering the exact nature of the documents supporting the Department of Labor's case against them earlier than they otherwise would or should."
At this stage of the litigation, the Court finds that ordering the production of a Vaughn index is not appropriate. Instead, the Department of Labor must first be given an opportunity to justify its invocation of Exemption 7(A) at the summary judgment stage by showing that "with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally interfere with enforcement proceedings." Solar Sources, 142 F.3d at 1037 (internal quotation omitted). A Vaughn index will not be necessary if the Department of Labor can meet its burden through "sufficiently detailed
For the foregoing reasons, Plaintiffs' motion is denied. The Court orders the case set for a status hearing on October 19, 2010 at 9:45 a.m. to set a summary judgment briefing schedule.
