The opinion of the court was delivered by: Paul Barbadoro United States District Judge
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.*fn1
For the reasons provided below, I grant in part and deny in part the FAA's motion and deny without prejudice Sensor Systems' request.
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 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.
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, drawing all reasonable inferences in its favor. See Navarro v. Pfizer Corp., 261 F.3d 90, 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. 317, 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 it; if that party cannot produce such evidence, the motion must be granted." Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996); see Celotex, 477 U.S. at 323.
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 551, 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 Int'l v. U.S. Dep't of Justice, 30 F.3d 224, 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 484, 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 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. FBI, 943 F.2d 972, 977-78 (9th Cir. 1991)). If the agency's justification for the ...