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February 27, 1986

Harrison Brothers Meat Packing Company, Plaintiff
United States Department Of Agriculture, Defendant


The opinion of the court was delivered by: CONABOY

The Court now considers Plaintiff's motions (a) for a "Vaughn Index" of all documents requested by Plaintiff which have been withheld or censored in part by the Defendant; (b) for an award of costs and fees pursuant to the work expended in furtherance of its motion for said "Vaughn Index"; and (c) for summary judgment that the withheld documents be released in their entirety or, in the alternative, in camera review of the pertinent documents and an Order directing Defendant to release to Plaintiff whichever of these documents or parts thereof may not properly be withheld under the terms of the Freedom of Information Act (hereinafter FOIA), 5 U.S.C. §§ 552 et sequentia. These motions have been timely briefed by the parties and are now ripe for decision.

 Plaintiff is a meat packing company which received notification from Defendant Department of Agriculture (hereinafter USDA) that it would be subjected to more stringent than usual regulation pursuant to an "Action for Intensified Regulatory Enforcement" (hereinafter IRE). Plaintiff contends that USDA's decision to impose these intensified requirements has resulted in grave hardship (although there is no particularization as to what this hardship entails) and that USDA has not or will not explain why Plaintiff has been placed in this status. Plaintiff further contends that if USDA would reveal particulars as to why Plaintiff was singled out for heightened regulation Plaintiff would be in a better position to rectify whatever problems there may be with its operation. When repeated requests for said information from USDA did not bear fruit, *fn1" Plaintiff filed this lawsuit hoping to compel release of the data which USDA has refused to voluntarily relinquish on the basis that it is material of a type which should be exempted from disclosure under FOIA.

 Preliminary Discussion

 The USDA has taken the position that it need not disclose information which it has characterized as "Specification 1" information. *fn2" This information is further categorized as an IRE plan (10 pages) and a compilation of the daily logs of the meat inspectors assigned to monitor Plaintiff's operation (1,125 pages). The USDA asserts that it may appropriately withhold this information pursuant to 5 U.S.C. § 552(b)(2) which provides that a federal agency may withhold production of documents which are "related solely to the internal personnel rules and practices of an agency." *fn3" Our task, as a result, would seem to be to interpret how wide an array of data a federal agency may shield under the ambit of the phrase quoted in the previous sentence.

 Applicable Case Law

 The United States Court of Appeals for the District of Columbia Circuit (hereinafter DCC) has long been on the leading edge of interpreting the parameters of what a federal agency must disclose and may withhold consistent with the terms of FOIA. Indeed, Plaintiff's motions for the "Vaughn Index" and costs associated therewith are based upon a DCC case, Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973), which has given its name to the index Plaintiff seeks. Vaughn, supra, is the seminal case to address the issue of how much information the government may withhold despite the liberal disclosure policy underlying FOIA.

 Vaughn manifests concern for the fact that ". . . the present method of resolving FOIA disputes actually encourages the Government to contend that large masses of information are exempt, when in fact part of the information should be disclosed." *fn4" Two reasons were cited as factors in promoting Government obfuscation:

First, there are not inherent incentives that would affirmatively spur government agencies to disclose information. Under current procedures government agencies lose very little by refusing to disclose documents. At most they will be put to a court test stacked in their favor, the burden of which can be easily shifted to another by simply averring that the information falls under one of several unfortunately imprecise exemptions. . .
Secondly, since the burden of determining the justifiability of a government claim of exemption currently falls on the court system there is an innate impetus that encourages agencies automatically to claim the broadest possible grounds for exemption for the greatest amount of information. Let the Court decide! And the tactical ploy is, to the extent that the number of facts in dispute are increased, the efficiency of the court system involved in that dispute resolution will be decreased. Vaughn at 826.

 The bottom line in Vaughn was that the government was not permitted to maintain that a "morass of material" was exempt from disclosure in a conclusory fashion. The burden was placed on the government to specify in detail which portions of a document are disclosable and which are allegedly exempt. The government was further required to index any documents which it claims it may withhold so that a Court in the process of reviewing the merits of that position might conduct said review more expeditiously. As a final note, the Vaughn Court, per Judge Wilkey, declared:

The procedural requirements we have spelled out herein may impose a substantial burden on an agency seeking to avoid disclosure. Yet the current approach places the burden on the party seeking disclosure, in clear contravention of the statutory mandate. Our decision here may sharply stimulate what must be, in the final analysis, the simplest and most effective solution -- for agencies to voluntarily disclose as much information as possible and to create internal procedures that will assure that disclosable information can be easily separated from that which is exempt. Vaughn at 828.

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