Sensor Sys v . FAA CV-10-262-PB 5/11/12
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Sensor Systems Support, Inc.
v. Case N o . 10-cv-262-PB
Opinion N o . 2012 DNH 083
Federal Aviation Administration
MEMORANDUM AND ORDER
In the latest round of motions in this case, the Federal
Aviation Administration (“FAA”) seeks summary judgment with
respect to Sensor Systems’ claim that the FAA wrongfully
withheld from disclosure the remaining twenty-six pages of
redacted correspondence responsive to Sensor Systems’ request
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.
Sensor Systems objects to the motion and seeks attorneys’ fees. 1
For the reasons provided below, I grant in part and deny in part
1
I note that Sensor Systems’ counsel have blatantly disregarded
my previous orders regarding motion practice. They have again
combined a request for attorneys’ fees with an objection to the
FAA’s motion, in violation of Local Rule 7.1(a)(1). I alerted
counsel to the rule in my February 9, 2012 Order, see Doc. N o .
29 at 1 n.1, and explicitly rejected Sensor Systems’ request to
consolidate its objection with an affirmative motion, see Doc.
No. 31.
1
the FAA’s motion and deny without prejudice Sensor Systems’
request.
I. BACKGROUND2
In response to Sensor Systems’ FOIA request, the FAA
conducted a search and found a total of 467 responsive
documents. To date, the FAA has released 441 of those documents
in full and the remaining 26 with partial redactions. It did so
in four rounds of production, three of which occurred after
Sensor Systems filed this suit. The latest production occurred
approximately two weeks after my February 9, 2012 order granting
in part and denying in part the FAA’s motion for summary
judgment. At that time, the FAA released in full eleven
previously redacted documents and released two other documents
with fewer redactions. The FAA continues to invoke FOIA
Exemption 5 with respect to the remaining twenty-six redacted
documents.
In my last Memorandum and Order, I ordered the FAA to
either produce a supplemental Vaughn index and/or supporting
affidavit to enable me to determine whether redactions in the
2
A more detailed recitation of the facts of this case can be
found in my order of February 9, 2012. See Doc. N o . 2 9 .
2
remaining documents are exempt from disclosure, or to submit the
documents for in camera review. In response, the FAA has
produced a detailed Vaughn index describing the contents of the
redacted documents and the agency’s justification for
nondisclosure. It has also submitted a supplemental declaration
of Michael Hawthorne, the FAA Program Manager whose
correspondence was the subject of Sensor Systems’ FOIA request.
The FAA now moves for summary judgment with respect to the
remaining twenty-six documents. The agency claims the
deliberative process privilege with respect to redactions in
twenty-five of those documents and the attorney-client privilege
as to redactions in one document.
II. STANDARDS OF REVIEW
A. Summary Judgment
Summary judgment is appropriate when the record reveals “no
genuine dispute as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The evidence submitted in support of the motion must be
considered in the light most favorable to the nonmoving party,
3
drawing all reasonable inferences in its favor. See Navarro v .
Pfizer Corp., 261 F.3d 9 0 , 94 (1st Cir. 2001).
A party seeking summary judgment must first identify the
absence of any genuine issue of material fact. Celotex Corp. v .
Catrett, 477 U.S. 3 1 7 , 323 (1986). The burden then shifts to
the nonmoving party to “produce evidence on which a reasonable
finder of fact, under the appropriate proof burden, could base a
verdict for i t ; if that party cannot produce such evidence, the
motion must be granted.” Ayala-Gerena v . Bristol Myers-Squibb
Co.,
95 F.3d 8 6 , 94 (1st Cir. 1996); see Celotex,
477 U.S. at
323.
B. The FOIA Standard
The FOIA requires government agencies to make their records
available to the public upon request, unless at least one of
several enumerated exemptions applies. 5 U.S.C. §§
552(a)(3),(b). An agency seeking to withhold materials
requested under the FOIA has the burden of proving that those
materials are exempt from disclosure. Orion Research Inc. v .
EPA,
615 F.2d 5 5 1 , 553 (1st Cir. 1980) (citing
5 U.S.C. §
552(a)(4)(B)). The court conducts a de novo review as to the
validity of the asserted exemptions. Church of Scientology
4
Int’l v . U.S. Dep’t of Justice, 30 F.3d 2 2 4 , 228 (1st Cir.
1994). Although the FOIA authorizes courts to conduct in camera
review of challenged documents, “[t]he legislative history
indicates that, before in camera inspection is ordered, an
agency should be given the opportunity to demonstrate by
affidavit or testimony that the documents are clearly exempt
from disclosure, and that the court is expected to accord
‘substantial weight’ to the agency’s affidavit.” Bell v . United
States,
563 F.2d 4 8 4 , 487 (1st Cir. 1977).
To satisfy its burden under the FOIA without submitting
undisclosed records for in camera inspection, “the agency must
furnish a detailed description of the contents of the withheld
material and of the reasons for nondisclosure, correlating
specific FOIA exemptions with relevant portions of the withheld
material.” Orion Research, 615 F.2d at 553; see Church of
Scientology, 30 F.3d at 231 (“[The agency] must supply a
relatively detailed justification, specifically identifying the
reasons why a particular exemption is relevant and correlating
those claims with the particular part of a withheld document to
which they apply.” (internal quotation marks and emphasis
omitted)). The agency’s justification for the withholding must
5
be sufficient to give “‘the FOIA requester a meaningful
opportunity to contest, and the district court an adequate
foundation to review, the soundness of the withholding.’”
Church of Scientology, 30 F.3d at 231 (quoting Wiener v . F B I ,
943 F.2d 9 7 2 , 977-78 (9th Cir. 1991)). If the agency’s
justification for the withholding is sufficient, the court
“‘need not go further to test the expertise of the agency, or to
question its veracity when nothing appears to raise the issue of
good faith.’” Bell, 563 F.2d at 487 (quoting Weissman v . CIA,
565 F.2d 6 9 2 , 697 (D.C. Cir. 1977)).
III. ANALYSIS
The FAA defends its decision to withhold the redacted
information in the remaining twenty-six documents by invoking
the deliberative process privilege and the attorney-client
privilege, both protected under FOIA Exemption 5 . Sensor
Systems objects to the motion, arguing that the FAA’s latest
Vaughn index and Hawthorne’s declaration are too vague and
conclusory to allow the court to meaningfully evaluate the
6
claimed exemptions.3 I consider each of the FAA’s arguments in
turn.
A. Deliberative Process Privilege
The FAA claims the deliberative process privilege with
respect to twenty-five redacted documents involving intra-agency
email exchanges pertaining to implementation of the agency’s
December 2007 agreement with the Government of Bermuda. In that
agreement, the FAA agreed to loan equipment for a radar system
upgrade at an airport in Bermuda. The Government of Bermuda
subsequently contracted with Sensor Systems to install and
maintain the loaned equipment. A review of the FAA’s
submissions shows that the agency has met its burden of proving
that the privilege applies with respect to all but one document
in this category.
3
Sensor Systems also argues that the latest Vaughn index and
declaration are suspect on their faces because the FAA’s
incremental release of previously withheld documents
demonstrates a lack of good faith. Courts have “‘emphatically
reject[ed]’ the notion that an agency’s disclosure of documents
it had previously withheld renders its affidavits suspect.”
Meeropol v . Meese, 790 F.2d 9 4 2 , 953 (D.C. Cir. 1986); see
Shafmaster Fishing C o . v . United States,
814 F. Supp. 1 8 2 , 185
(D.N.H. 1993) (“The fact that further disclosure occurred after
plaintiff’s initial request is not dispositive of the issue of
the agency’s bad faith.”).
7
The First Circuit has held that a document must be both
“predecisional” and “deliberative” to qualify for the
deliberative process privilege. Providence Journal C o . v . U.S.
Dep’t of Army, 981 F.2d 5 5 2 , 557 (1st Cir. 1992). A document is
“predecisional” if the agency can (1) “pinpoint the specific
agency decision to which the document correlates;” (2)
“establish that its author prepared the document for the purpose
of assisting the agency official charged with making the agency
decision;” and (3) “verify that the document precedes, in
temporal sequence, the decision to which it relates.”
Id.
(internal quotation marks and citations omitted). A document is
“deliberative” if i t : (1) “formed an essential link in a
specified consultative process;” (2) “reflects the personal
opinions of the writer rather than the policy of the agency;”
and (3) “if released, would inaccurately reflect or prematurely
disclose the views of the agency.” Id. at 559 (internal
quotation marks and alterations omitted).
The FAA’s supplemental Vaughn index and Hawthorne’s
supporting declaration provide sufficient detail to enable me to
determine that the redacted portions on twenty-four pages of
responsive documents are entitled to nondisclosure based on the
8
deliberative process privilege.4 Vaughn document 100 is
representative:
E-mail exchange between FAA employees Carey Fagan and
Rick Castaldo dated 3/27 and 3/30/09 regarding the
prospects of creating a business development office in
Bermuda. Redacted portion of e-mail reveals FAA
employees discussing the rules governing the
establishment of a business development office for air
traffic services, to which Bermuda may ultimately have
been a customer and [Sensor Systems] may ultimately
have competed to support.
Doc. N o . 30-3 at 3 . The description clearly identifies the
creation of a business development office in Bermuda as the
contemplated agency decision. The index entry also demonstrates
that the redacted portions of the exchange involve “the mental
processes of the agency in considering alternative courses of
action prior to settling on a final plan,” Nat’l Wildlife Fed’n
v . U.S. Forest Serv., 861 F.2d 1114, 1121-22 (9th Cir. 1988), as
opposed to the agency’s official policy on the subject.
With the exception of Vaughn document 269, the remaining
index entries with respect to documents for which the FAA claims
the deliberative process privilege provide similarly adequate
justifications for nondisclosure. In each instance, the FAA has
4
Vaughn Doc. Nos. 9, 1 0 , 2 3 , 6 5 , 7 1 , 7 6 , 7 7 , 8 1 , 9 9 , 1 0 0 , 103,
104, 1 0 7 , 1 0 8 , 109, 1 2 0 , 1 2 1 , 150-2, 154-5, 1 5 7 , & 267.
9
identified both the contemplated agency decision or action that
predated the document and the deliberative nature of the
communication. Because the twenty-four redacted documents
thereby meet the First Circuit’s “deliberative document” test,
the FAA is entitled to summary judgment with respect to those
documents. See Prudential Journal, 981 F.2d at 559-560.
The FAA’s submissions fail to satisfy the agency’s burden
with respect to Vaughn document 269. The document is an email
dated June 2 9 , 2009 from Hawthorne to FAA employee Mark Brady
discussing the radar upgrade work. The FAA describes the
redacted portions of the document as follows:
Employee’s second-hand account of the nature of
technical issues with Bermuda to his Chief Operating
Officer and Vice President for Business Services. The
redaction specifically provides open, frank
discussions at the direction of leadership in support
of the FAA-imposed communication restrictions imposed
in March 2009. Deliberative.
Doc. N o . 30-3 at 5 . In his declaration, Hawthorne elaborates
that the redactions “concern my second-hand account of the
nature of technical issues with Bermuda” in response to a
request from his Chief Operating Officer “for an open, frank
account of the issues underlying the FAA-imposed, Bermuda-
related communication restrictions imposed in March 2009.”
10
Hawthorne Decl. ¶ 1 6 , Doc. N o . 30-2. In neither narrative has
the FAA provided sufficient information to enable me to
determine whether the email predated any sort of contemplated
agency decision or action. See Providence Journal, 981 F.2d at
557. Its descriptions of the document merely suggest that the
redactions concern a subordinate’s account of past events to his
superior.
Because the FAA has not identified a decision that
correlates to the document, it has failed to satisfy the
predecisional prong of the deliberative process privilege test.
See id. In light of the fact that this is the second time the
FAA has failed to satisfy its burden with respect to this
document, I direct the agency to produce Vaughn document 269 for
in-camera review.
B. Attorney-Client Privilege
The FAA claims the attorney-client privilege with respect
to Vaughn document 2 7 7 , an email exchange between Hawthorne and
FAA attorney Mark Bury. Hawthorne’s declaration provides
sufficient facts to permit a conclusion that the privilege
applies.
11
The attorney-client privilege “protects confidential
communications made by a client to his attorney.” Maine v . U.S.
Dep’t of the Interior, 298 F.3d 6 0 , 70 (1st Cir. 2002). The
First Circuit has explained that
[t]he privilege also protects from disclosure
documents provided by an attorney if the party
asserting the privilege shows: (1) that he was or
sought to be a client of the attorney; (2) that the
attorney in connection with the document acted as a
lawyer; (3) that the document relates to facts
communicated for the purpose of securing a legal
opinion, legal services or assistance in legal
proceedings; and (4) that the privilege has not been
waived.
Id. at 71 (internal quotation marks and alterations omitted).
The agency asserting the privilege must explain in a non-
conclusory fashion “how the documents claimed to be protected
establish that they relate to a confidential client
communication.”
Id. The agency cannot “assume[] that the
requirement of client communicated confidentiality is satisfied
merely because the documents are communications between a client
and attorney.” Id.; see Mead Data Cent., Inc. v . U.S. Dep’t of
the Air Force,
566 F.2d 2 4 2 , 253 (D.C. Cir. 1977) (“The
[attorney-client] privilege does not allow the withholding of
documents simply because they are the product of an attorney-
12
client relationship . . . . It must also be demonstrated that
the information is confidential.”).
The FAA describes Vaughn document 277 as an email exchange
between Hawthorne and FAA attorney Mark Bury and states that
“[r]edacted portions concern a legal interpretation of a
statement used on a document the FAA received from [Sensor
Systems].” Although this description alone is insufficient to
permit a conclusion that the attorney-client privilege applies,
Hawthorne’s declaration supplements the description as follows:
Redactions to Vaughn document 277 concern a legal
interpretation of a statement used on a document the
FAA received from [Sensor Systems]. I requested FAA
attorney Mark Bury’s legal advice on how to handle
[Sensor Systems’] cost data information. I was
concerned if I somehow mishandled or disclosed it in a
manner not authorized by [Sensor Systems] I could
subject the FAA to legal liability. The e-mail was
only sent to Mark Bury and was not shared with others.
Hawthorne Decl. ¶ 1 7 , Doc. N o . 30-2. Hawthorne’s declaration
thus makes it clear that the email was sent to an agency
attorney for the purpose of obtaining legal advice. The fact
that Hawthorne sent the email only to attorney Bury and did not
share it with a third party supports an inference of
confidentiality. See Maine, 298 F.3d at 7 2 . There is no
indication, moreover, that Hawthorne authorized attorney Bury to
13
disclose the communication to anyone else. Although Sensor
Systems speculates that attorney Bury may have disclosed
contents of the communication to others, pure speculation is
insufficient to demonstrate that the attorney-client privilege
has been waived. Because the FAA has met its burden in this
instance, I grant its motion for summary judgment with respect
to Vaughn document 277.
IV. CONCLUSION
For the aforementioned reasons, I grant the FAA’s motion
for summary judgment (Doc. N o . 30) with respect to all remaining
documents with the exception of Vaughn document 269. I direct
the agency to produce that document for in-camera review within
7 days from the date of this Memorandum and Order. I also deny
without prejudice Sensor Systems’ request for attorneys’ fees.
Sensor Systems shall not renew its request for fees until after
I make a determination with respect to the remaining document.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
May 1 1 , 2012
cc: G. Shepard Bingham, Esq.
14
Matthew A . Caffrey, Esq.
Michael T . McCormack, Esq.
15
