ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (C.A. No. 79-00197)
Before Adams, Garth and Sloviter, Circuit Judges.
This appeal presents two interrelated questions dealing with the role of a district court in passing on requests for information submitted under the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(B) (FOIA). First, did the district court abuse its discretion in refusing to consider a revised index and affidavit, submitted by the government immediately prior to the hearing on the plaintiff's "motion for partial judgment" to explain the claimed exemptions? Second, did the district court err in ordering a government agency to produce forthwith all documents for which claims of exemption were not adequately supported by the initial index provided to justify the withholding? Because we conclude, in the circumstances here, that the district court abused its discretion in rejecting the revised index and erred in ordering immediate disclosure of the documents, we vacate the order of the district court and remand.
In October, 1978, plaintiff Coastal States Gas Corp. (Coastal) transmitted a FOIA request to defendant Department of Energy (DOE).*fn1 Coastal sought agency records pertaining to (1) the formulation, adoption, interpretation and territorial application by DOE of certain petroleum price and allocation regulations; (2) regulations concerning an exemption from the petroleum price charged for the "first sale into U.S. Commerce" of imports; and (3) enforcement activity by DOE against firms alleged to have violated regulations because of participation in a "foreign transaction." Coastal candidly admitted that the records sought were directly related to questions raised by a Proposed Remedial Order*fn2 issued by DOE to Coastal on September 6, 1978.
DOE did not comply with the ten day period provided in the statute for an agency response to a FOIA request, 5 U.S.C. § 552(a)(6)(A); instead, it answered Coastal with two letters granting itself extensions of time. Having exhausted its administrative remedies,*fn3 Coastal initiated a FOIA suit in the district court, in April 1979, pursuant to § 552(a)(4)(B).*fn4 Coastal simultaneously filed a motion to compel preparation by DOE of a Vaughn index covering all documents that DOE asserted to be exempt from disclosure under FOIA. A Vaughn index is a procedural tool developed in Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 826-28 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974), to enable a district court to evaluate allegations of exemption advanced by a governmental agency, and to assure that claimed exemptions are justified under the Act. The contemplated indexing system would subdivide requested documents into manageable sections and cross-reference relevant portions to the various justifications for nondisclosure asserted by the government. An adequate Vaughn index would thus narrow the scope of the court's inquiry, contribute to informed court evaluation of disputed documents, aid appellate review, and enhance an opposing party's ability to argue effectively against nondisclosure.
Under the FOIA statute, which embodies a policy of expedited handling of requests for documents, a government agency has thirty days to answer a FOIA complaint and motion, rather than the sixty day period usually accorded the government. 5 U.S.C. § 552(a)(4)(C). After a court conference, the parties entered into a stipulation, which was approved by an order dated May 9, 1979, setting June 15, 1979 as the production date for the non-exempt documents and June 22 as the filing date for the Vaughn index of withheld documents. The order approving the stipulation contained a provision carefully detailing the information which the government was required to set forth in the index so as to justify nondisclosure.*fn5 At DOE's request the deadline for filing the Vaughn index was extended to July 2, 1979. Pursuant to the May 9 order, DOE collected and reviewed over 800 documents; 500 were immediately released and approximately 200, withheld in whole or in part, are in issue here.*fn6
Following DOE's filing of the Vaughn index together with counsel's affidavit, which described the withheld documents, Coastal sought discovery from DOE concerning the method employed to prepare the index. DOE responded with a motion for a protective order to limit discovery to interrogatories. It also represented that it would file an affidavit with the court the next day, supplying additional information regarding the documents being withheld and theoretically mooting the need for discovery. In addition DOE stated that it intended to move for summary judgment by August 17, 1979. The district court denied DOE's application for a protective order, and explained that it would not rule on a summary judgment motion in a FOIA case if the plaintiff had not been afforded an opportunity to examine the scope and adequacy of the agency's document search and to discover what documents are in existence.*fn7
Although DOE never filed the motion for summary judgment as it had promised, discovery nonetheless ensued. Then, on December 7, 1979, Coastal filed a "motion for partial judgment," requesting production of all documents listed in the July 2, 1979 index*fn8 and a compilation of a new, adequate Vaughn index covering any documents not ordered disclosed. Coastal failed to denominate with any particularity what type of proceeding was sought, but requested an expedited hearing. In doing so, it invoked the docket priority directive of § 552(a)(4)(D).*fn9 Oral argument was set for February 28, 1980. The day before the hearing, DOE filed with the court a revised 400-page Vaughn index and an accompanying affidavit the revised index and affidavit that it had promised in its January 11, 1980 answering brief. Coastal immediately countered with a motion to strike the revised index and affidavit on the ground they were untimely filed.
The district court granted the plaintiff's motion to strike the revised index, maintaining that to permit DOE "to rely upon its latest eleventh-hour effort to delay these proceedings would make a mockery of the legislation."*fn10 The district judge reasoned that DOE's long-standing knowledge of the Vaughn index requirement, the acknowledged importance of such indices in the effective enforcement of the FOIA, and the congressional policy favoring expeditious handling of FOIA cases militated against allowing the agency to revise and correct its index until it "got it right." Next, the court found that DOE's initial July 2 index did not comply with the order of May 9 requiring a particularized justification for any refusal to release a document. The inadequacy of the document index, the district judge declared, created four problems: the court was incapable of determining whether the documents were in fact exempt; Coastal was unable to argue with desirable legal precision that specific records were not exempt;*fn11 in camera review, on the basis of such minimal information would be unfair to Coastal and extremely burdensome and unproductive for the court; and meaningful appellate review would be difficult.*fn12 Thus, the deficient index also provided the basis for the district court's rejection of in camera review as a viable alternative for determining possible exemptions.
Nevertheless, the judge specifically rejected the plaintiff's argument that the failure by DOE to comply with the May 9 Order merited the sanction of partial judgment as a matter of discovery law. Rather, in holding that partial judgment ordering production without consideration of the revised index was an appropriate remedy, the district court relied on what it characterized as "the provisions and policies of the FOIA," "the well-established purpose for requiring the filing of an adequate Vaughn index," and on the trial court's "inherent power to control the proceedings before it."*fn13 After the district judge denied DOE's motion for reconsideration of the order, the agency sought a stay from this Court pending appeal. Finding that the "partial judgment" granted by the district court achieved the plaintiff's very objective to compel production of documents and that compliance with the order would effectively moot DOE's claim that the documents are in fact exempt, a stay was granted.
First, we hold that this Court has jurisdiction pursuant to § 1292(a)(1), on the ground that this appeal was from an interlocutory order granting injunctive relief.*fn14 Because the order to produce in and of itself grants full relief to the FOIA requester, this is a quintessential case of an interlocutory order with "serious, perhaps irreparable, consequence," and which can be "effectually challenged" only by immediate appeal.*fn15
The procedural history of this matter has been related in some detail because it is critical to a proper disposition of the immediate controversy. As is now well-known, FOIA was enacted in furtherance of the belief that "an informed electorate is vital to the proper operation of a democracy."*fn16 The Act's central provision instructs agencies, upon request, to release promptly responsive records in their possession,*fn17 subject to nine specific exemptions.*fn18 Moreover, the FOIA places the burden of proof on the agencies to establish and sustain their claims of exemption.*fn19 Unfortunately, requests under the Act have produced almost as much advice from courts about how the FOIA ought to operate as they have generated information from agencies about how the government actually operates.
The Supreme Court, in adjudicating FOIA suits, has recently evolved a tripartite test to determine whether a district court has authority to order the production of documents pursuant to 5 U.S.C. § ...