Original document created: 2000/5/16

SUSAN B. LONG and DAVID BURNHAM
                 Plaintiffs,                   
                                                             Civil Action No. 1:00CV00211 PLF
v.

DEPARTMENT OF JUSTICE
                  Defendant. 

Introduction

This case concerns access to databases that track the caseload of the United States Attorneys' Offices and serve as the government's principal source of information for public reports and statistics on federal law enforcement activities. Timely public access to this information is vital because the databases contain significant information on current public policy issues -- such as the enforcement priorities of federal prosecutors or pending budget requests. The Department of Justice, however, has thwarted plaintiffs' efforts to obtain this data by either claiming that the data is exempt or by repeatedly delaying disclosure. Although the Department has conceded that most of the data is subject to public disclosure, it has postponed releasing data from fiscal years 1974-1997, and from the Department's most recent fiscal year(which ended in September 1999), without any legal justification.

Indeed, the Department is now thwarting access to these records by refusing to honor commitments and concessions that it made last year. From March 1998-June 1999, plaintiffs spent 15 months in litigation with the Department concerning release of case management data before the Department finally produced a Vaughn index. The Department's June 1999 Vaughnindex conceded that critical data fields that the Department has been withholding from plaintiffs for years are not exempt under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and should have been released. On June 18, 1999, the Director of the Executive Office of United States Attorneys ("EOUSA") wrote a letter confirming that the Department would release these critical fields to plaintiff in the future, and in October 1999 the agency affirmed that it would release these fields for the case management records from 1974 to the present. After months of refusing to set a schedule for releasing the records, the agency finally promised that it would begin delivering the first installment of data files, with the fields that had been improperly withheld in the past, by early March 2000.

When March arrived, however, the agency announced that it had changed its mind and would not honor the commitments made by the EOUSA Director or the FOIA Unit. Instead, the EOUSA declared that it would continue to withhold the data while it developed "new guidelines" on which portions of the databases would be withheld. The Department has refused to commit to a schedule for release of the records, and the Department's Answer to the complaint in this action fails to identify any statutory exemption or other defense to justify continued delay in releasing the records.

The Department's conduct is inconsistent with the FOIA, which not only requires public disclosure of such records, but explicitly directs that agencies make records "promptly available,"5 U.S.C. § 552(a)(3)(A), so that they can inform public debate about the operation of government. Indeed, circuit court decisions have made clear that courts should not tolerate dilatory tactics by agencies that thwart the timely release of records -- including conceding and then reasserting exemption claims, as the agency has done here.

Accordingly, plaintiffs move for judgment to compel the Department to release these records promptly. With respect to the First Count of the Complaint, the withholding of year-end data for1974-1997, and 1999, plaintiff moves for partial summary judgment on the Department's obligation to release, without further delay, the data that even the Department concedes is not exempt. The Department's new claims that certain fields are exempt have yet to be substantiated in any Vaughn index, but the Department should not be permitted to delay release of the concededly non-exempt data any further.

Plaintiffs also move for summary judgment on the remaining two counts because these claims present legal issues that can be resolved in their entirety now. With respect to the Second Count, the Department's claim that it may withhold all data prior to year-end verification is untenable under this Circuit's decision in Petroleum Information Corp. v. United States Department of the Interior, 976 F.2d 1429 (D.C. Cir. 1992). With respect to the Third Count of the Complaint, the Department has never identified any basis for withholding the documentation that plaintiffs requested on November 23, 1999, and plaintiffs move for a judgment ordering that the records be released without further delay.

BACKGROUND

A.    The EOUSA Databases

The Executive Office for the United States Attorneys ("EOUSA") maintains databases that contain data on the caseloads handled by each of the 94 United States Attorneys Offices.1  These centralized databases contain information on conviction rates for criminal cases, the sentences obtained by federal prosecutors, the types of civil actions brought by federal agencies,and numerous other matters. Moreover, the information drawn from this centralized EOUSA database is used by the Department of Justice to make management and policy decisions, to justify budget requests, and to demonstrate the success of law enforcement initiatives. Indeed,the Department of Justice estimates that the EOUSA databases are used to produce approximately 2,500 reports each year -- including the Attorney General's Annual Report andUnited States Attorneys Annual Statistical Reports. See Tab C, Declaration of Verlyn L. Bryant,Jr. ¶ 3.

These EOUSA databases are also a rich resource for those who seek to examine critically the claims made by the Department, or to study the conduct and priorities of federal prosecutors in civil or criminal litigation. For example, when the Chicago-Sun Times reported that local authorities were dissatisfied with the attention that federal officials were giving to drug prosecutions, it found that the local authorities' complaints were supported by statistics showing that federal drug prosecutions in Chicago had dropped by 62 percent since 1992.2  An investigative report by the Washington Post on whether the federal government had developed a consistent plan for addressing environmental threats to the Chesapeake Bay found that federal officials in Maryland and Virginia were moving in opposite directions: while federal prosecutions of environmental crimes had tripled in Maryland, the number of cases brought by federal prosecutors in Virginia had declined by more than 60%.3  When journalist William Grieder conducted a study of the effect of sentencing guidelines on the criminal justice system,he discovered that the data showed sentences in the federal system vary widely depending on how local federal prosecutors exercise their power.4   An issue of The American Lawyerexamining the legal legacy of the Clinton Administration found that the data revealed a number of important trends, including a substantial increase in the median time to reach a final disposition in federal criminal prosecutions.5

In each of these examples, the journalists researching the stories obtained data and/or reports analyzing the statistical data from the Transactional Records Access Clearinghouse ("TRAC") . TRAC is a nonprofit organization affiliated with Syracuse University and operated by plaintiffs Susan Long and David Burnham, who are the co-directors of TRAC. TRAC's mission is to compile and disseminate comprehensive information about the functioning of federal law enforcement and regulatory agencies. TRAC regularly requests case management data from the EOUSA, analyzes the data, and creates various information products that are distributed on the World Wide Web, or on tape and diskettes. Moreover, TRAC provides journalists, scholars, and members of the public with assistance in interpreting the data and understanding the terminology used in the data. TRAC compiles many data sets on governmental activities, but the data on the activities of federal prosecutors are among the most important and widely used. Tab B, Burnham Decl. ¶ 4.

Department of Justice officials have criticized statistics released by TRAC as faulty or inaccurate. Answer ¶ 10. In doing so, Department officials sometimes assert that TRAC's reports are flawed because data that has not been made available to TRAC demonstrates that TRAC's data is incorrect or incomplete. For example, in late 1996 and early 1997, United States Attorneys from the Western District of Kentucky and the District of Minnesotain dependently wrote letters to local papers asserting that stories based on TRAC data were inaccurate, and that their data refuted TRAC's statistics about the handling of criminal referrals by their respective offices. After hearing of these attacks, TRAC requested copies of the case management data maintained by each of these United States Attorneys Offices. The data used for TRAC's reports had come from EOUSA databases in Washington that are built from data provided by each of the 94 United States Attorneys Offices, including databases of the Western District of Kentucky and Minnesota. In response to TRAC's request for the data under the FOIA, the Department released a few paper records but did not release any electronic records. Instead, the Department asserted that there were no database records to release, because no such records ever existed or the records had been destroyed. See Long v. United States Department of Justice, 10 F. Supp.2d 205, 207-08 (N.D.N.Y. 1998).

Accordingly, in March 1998, TRAC brought a FOIA action in the Northern District of New York to compel the Department to release the data from the local databases. The Court directed the Department of Justice to produce an index of the records and portions of the records that the Department claimed were exempt from disclosure, in accordance with Vaughn v. Rosen, 484F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974) ("Vaughn index"). Long v. United States Department of Justice, 10 F. Supp.2d at 209.

Although the Court ordered the Department to produce its Vaughn index by August 7, 1998, the Department continued to resist producing an index and a second order directing the Department to produce an index (and awarding sanctions for noncompliance) was entered on January 25,1999. Another five months passed before the Department finally, in June 1999, produced a table that lists all of the fields in the case management databases for the United States Attorneys Offices whose records were at issue in that action, and states the Department's position on whether the fields are exempt from disclosure under the FOIA. While a few fields are listed as exempt in whole or in part under 5 U.S.C. § 552(b)(6) and (7)(C) because of privacy concerns,the Department concluded that all other fields must be released under the Act. See Tab A, Long Decl. ¶ 7 & EXHIBIT 15.

In the June 1999 Vaughn index, the Department conceded that the Department's responses to prior TRAC FOIA requests had improperly withheld data fields that are not exempt under the FOIA. In a series of FOIA requests from 1989 to 1997, TRAC had requested the nationwide EOUSA Central System files for fiscal years 1974-1997, and the EOUSA removed or deleted certain fields from the copies of the data that were released in response to these requests. SeeTab A, Long Decl. ¶ 9. The fields that the Department withheld from the 1974-1997 data include fields that the June 1999 Vaughn index acknowledges are not covered by a FOIA exemption. Moreover, the fields that have been withheld from the 1974-1997 data include fields that "link" the entries in one table of a database to another. Where these pivotal linking fields are deleted, entire tables of data cannot be interpreted because the information that connects the data in one table with the data in another table is missing. See Tab A, Long Decl. ¶ 9; Tab B,Burnham Decl. ¶ 12; see infra at 25. Thus, the fiscal year 1974-1997 data cannot be fully utilized by researchers because the EOUSA deleted these pivotal fields.

The Department recognized that the June 1999 Vaughn would require it to release this previously withheld data. On June 18, 1999, the Director of the Executive Office for the United States Attorneys, Donna Bucella, signed a letter to TRAC pledging that the EOUSA would make good faith efforts to release case management data to TRAC in "a timely and cooperative manner." EXHIBIT 2. "In response to future requests for case management system records," the Director's letter states, "we intend to continue to release the fields agreed upon in the subject lawsuit [Long v. Department of Justice, N.D.N.Y., C.A. No. 98-cv-370] as the appropriate ones under FOIA,absent unforeseen complications, errors or changes." Id. at 2. The EOUSA subsequently applied the June 1999 Vaughn index determinations to the EOUSA's central database records for fiscal year 1998 (October 1997-September 1998), and released this data -- including the pivotal data fields the Department deleted from the 1974-1997 data -- to TRAC in October 1999. Tab A,Long Decl. ¶ 10.

B.    Plaintiffs' FOIA Requests for EOUSA Data

    Since October 1999, however, the EOUSA has not released any data from the case management databases -- despite repeated requests from TRAC. The Amended Complaint challenges the Department's failure to promptly release three categories of records: (1) the EOUSA data for the end of fiscal years 1999 and 1974-97 that EOUSA committed to release in1999, but continues to withhold; (2) the EOUSA data from before the end of the fiscal year,which the EOUSA has claimed is entirely exempt from disclosure as "intra- or inter-agency memoranda," 5 U.S.C. § 552(b)(5), until the end-of-the-year verification is completed; and (3)records describing how the Department alters data from the local United States Attorneys Offices to compile the EOUSA Central System databases.

1.    EOUSA Fiscal-Year-End Data.

As we describe in detail below, for nine months following the release of the June 1999 Vaughnindex the Department assured TRAC that it would release the fiscal year-end data for 1974 to the present in accordance with the determinations made in that index. These assurances were memorialized in (1) the June 18, 1999 letter from the Director of the EOUSA described above,EXHIBIT 2; (2) an October 29, 1999 letter from the FOIA Unit affirming that the year-end data would be processed in this manner, EXHIBIT 3 at 2; and (3) a January 7, 2000 letter in which the EOUSA stated that it had begun processing the data and that the 1992-1997 records would be delivered in early March 2000, EXHIBIT 8. When the March 2000 delivery date arrived, the EOUSA did not deliver the data. Instead, in late March the EOUSA bluntly told TRAC that the agency would not honor the commitments it had made during the prior nine months and would adopt a new guidelines concerning what data may be released. In the meantime, the EOUSA has continued to withhold the portions of the data that even the Department concedes are not exempt and, moreover, has refused to commit to a schedule for release of this data.

Shortly after receiving the letter from the Director of the EOUSA on June 18, 1999, TRAC began pressing for release of the 1974-1997 data and the data for the current fiscal year (1999) inaccordance with the Department's June 1999 Vaughn index. On October 29, 1999, the EOUSA sent a letter to TRAC stating that it would release: "(1) the centrally maintained databases for the years 1974 to the present for all criminal, civil and collections case file systems; and (2) centrally maintained databases for all other systems, including administrative files, from 1998 to the present." Tab A, Long Decl. ¶ 11; EXHIBIT 3, at 1-2. The EOUSA's letter acknowledged that the data would be processed accordance with the procedures agreed to in Long v. Department of Justice, C.A. No. 98-CV-370, the case in which the Department produced the June 1999 Vaughnindex. Id.

During November 1999, TRAC repeatedly pressed for EOUSA to begin copying the data for release, and even provided the EOUSA with computer tapes after government officials asserted that copying was being delayed because they were uncertain whether the Justice Department budget had enough funds to purchase computer tapes. Id. ¶¶ 12, 13. EOUSA officials also asserted that copying was being delayed because they lacked storage space, but then had to acknowledge that this was inaccurate. Id.

By early December 1999, TRAC still had not received the promised data. On December 3, 1999,plaintiff Susan Long contacted the EOUSA's Assistant Director for FOIA matters to reiterate TRAC's request for the release of the central data for years 1974 through 1997, and requested that the EOUSA provide a firm schedule for releasing the data to TRAC. Id. ¶ 14. EOUSA had previously indicated that verification of the fiscal year 1999 data would be completed by December 1999. Accordingly, on December 9, Susan Long sent a letter requesting release of this year-end fiscal year 1999 data from the EOUSA central databases. Id. ¶ 18.

On January 7, 2000, the EOUSA FOIA Unit finally responded with a letter assuring TRAC that"processing of the request has begun in earnest." EXHIBIT 8. The letter stated that EOUSA had begun processing the 1997 data and expected to deliver the data for years 1992 through 1997within 60 days. Id. The letter also stated that the EOUSA would complete processing of the data from 1991 and earlier years 200 days later. Id. On January 24, 2000, TRAC was informed that the fiscal year 1999 data had also been processed by the EOUSA and should be delivered shortly. Id. ¶ 20.

In March 2000, when the date set by the EOUSA for the release of the 1992-97 data finally arrived, plaintiff Long sent letters to the EOUSA FOIA office asking when the 1992-1997 and1999 database records would be released. EXHIBIT 9. The EOUSA did not immediately respond, and declined to talk with plaintiff Long when she telephoned the EOUSA for an explanation. Tab A, Long Decl. ¶ 22. Instead, on March 24, 2000, the Assistant Director of the FOIA/PA Division telecopied a letter to TRAC stating that none of the 1974-1997 data would be released that month, and the fiscal year 1999 data also would not be released. Although the EOUSA had assured TRAC since October 1999 that the agency was processing the 1974-1997data for release in the same manner as the fiscal year 1998 data that had been released, the letter states "that will no longer be the case." EXHIBIT 11. According to the letter, "[n]ew redaction guidelines are in the process of being finalized and will be provided to you when completed." Id. No date is given for when these unspecified guidelines will be "completed," but the letter goes on or when to state that, even when they are completed, the data would not be released for several months because the EOUSA plans to write and test new programs. Id. No other justification for the department's continued withholding of the data is provided. Nor does the letter reveal why or when "new guidelines" arose -- particularly given the EOUSA's representation on June 18, 1999that the 1999 Vaughn index would be used for this data (EXHIBIT 2), and its representation on January 7, 2000, that the data was already being processed for release (EXHIBIT 8). 6

On May 3, 2000, representatives of the EOUSA orally outlined the agency's new guidelines for redacting information from the Central System files, which are materially different from the position taken in the June 1999 Vaughn index and the procedures applied to the October 1999data. The EOUSA representatives stated that they intended to release fiscal year 1999 data redacted in accordance with this new position by the end of May 2000, but were not prepared to discuss release of the pre-1998 data. Tab B, Burnham Decl. ¶¶ 15, 16.

2.    Plaintiffs' Request for Data Prior to Year-End Verification.

Even before submitting the request for year-end 1999 data described above, TRAC sought disclosure of data compiled during fiscal year 1999. The EOUSA updates the data in its central databases with new information from the 94 United States Attorneys Offices each month. Tab C, Declaration of Verlyn L. Bryant, Jr. ¶ 3. On April 15, 1999, TRAC sought access to the most current data in the EOUSA database by submitting a FOIA request for copies of the EOUSA central data for the first six months of fiscal year 1999, which ended on March 31, 1999. EXHIBIT 1. On April 3, 2000, TRAC submitted an analogous request for the data through March 31, 2000. Tab A, Long Dec. ¶ 25, EXHIBIT 12.

The EOUSA, however, has declared that "[w]e will provide central data only when it is verified and finalized" at the end of the fiscal year. EXHIBIT 3 at 2. EOUSA contends that all of the data in its database is exempt from disclosure until the end of the fiscal year under 5 U.S.C. §552(b)(5), which allows agencies to withhold "inter-agency or intra-agency memoranda or letters" when these materials would be protected by the deliberative process privilege. Id.

TRAC submitted an administrative appeal challenging this claim on November 12, 1999. The appeal letter argues that the EOUSA's claim is inconsistent with Petroleum Information Corp. v.United States Department of the Interior, 976 F.2d 1429 (D.C. Cir. 1992), in which the Circuit Court rejected the government's contention that 5 U.S.C. § 552(b)(5) exempted a Bureau of Land Management database from disclosure until final verification of all of the data in the database. EXHIBIT 4. The Department of Justice did not act on TRAC's administrative appeal within the20 days provided by statute and, on March 30, 2000, the Department announced that it would not act on the appeal because TRAC had sought judicial review. Answer ¶ 33. The EOUSA's time for responding to TRAC's request for the Central System data through March 31, 2000, has also expired. See 5 U.S.C. § 552(a)(6)(A) (agency shall provide requester with determination within20 working days of receiving the request).

3.    Request for Records Describing the Procedures For Processing Data

As described above, individual United States Attorneys have occasionally asserted that the information in the databases held by TRAC is inaccurate. See, supra, at 6. Each United States Attorneys Office maintains its own database of case management information and, each month,the 94 offices provide information from these databases to the EOUSA, which creates the centralized databases at issue here. The EOUSA central databases, however, are substantially different in structure and content from the databases of the local United States Attorneys.7   the EOUSA central databases are not simply the sum of 94 parts, but are built from data that has been modified, collapsed and even partially deleted in order to create the database that the EOUSA uses for national statistics. Id.

In order to allow TRAC to understand the effect of these procedures, on November 23, 1999,TRAC submitted a FOIA request for all records pertaining to EOUSA processing procedures and standards used in compiling, updating, verifying, and validating the centrally maintained EOUSA computerized case management database files. Tab A, Long Decl. ¶ 23 & EXHIBIT 5. the EOUSA did not respond to this request within any of the time limitations provided by the FOIA,and never provided TRAC with any basis for withholding the records covered by this request. Id. ¶ 24.

ARGUMENT

"An agency must disclose agency records to any person under § 552(a), 'unless they maybe withheld pursuant to one of the nine enumerated exemptions listed in § 552(b).'" United States Department of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989) (quoting Department of Justice v. Julian, 486 U.S. 1, 8 (1988)). Moreover, if part of the records fall within one of the nine exemptions, the segregable portions of the records that are not exempt must be released to the requester. 5 U.S.C. § 552(a)(3) and (b); Krikorian v. Dep't of State, 984 F.2d 461, 466 (D.C.Cir. 1993).

An agency violates FOIA when it unreasonably delays access to records that are not covered by one of these exemptions. An agency's action constitutes "withholding" under the statute if "its net effect is significantly to impair the requester's ability to obtain the records or significantly to increase the amount of time he must wait to obtain them." McGehee v. CIA, 697 F.2d 1095,1110 (D.C. Cir. 1983), aff'd in pertinent part and vacated in part, 711 F.2d 1076 (D.C. Cir. 1983) The burden of proving that withholding the records is not improper, but is authorized by the statute, falls on the agency. United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989); Summers v. Department of Justice, 140 F.3d 1077, 1080 (D.C.Cir. 1998).

In the argument below, we first address whether FOIA provides any basis for withholding the three categories of records requested by TRAC. Summary judgment is appropriate with respect to all three categories because there are no facts in dispute and, with respect to each category,there is no exemption that justifies withholding the records in their entirety, or continually delaying their release, as the Department has done here. In part II, we show that the department's failure to release the records promptly, as required by the FOIA, has injured TRAC by denying access to information that is relevant to current public debate. Accordingly, equitable relief is appropriate to require prompt release and to preclude further delays.

I.    PARTIAL SUMMARY JUDGMENT SHOULD BE ENTERED FOR PLAINTIFFSBECAUSE THE DEPARTMENT HAS NO LEGAL BASIS UNDER THE FOIAFOR CONTINUING TO WITHHOLD THE RECORDS AT ISSUE.

 A.    TRAC Is Entitled To Release Of The Fiscal Year-end Data Without Further Delay.

With respect to the fiscal year 1974-1997 and 1999 data, plaintiffs seek partial summary judgment to enforce the Department's obligation under 5 U.S.C. § 552(a) to release the records requested promptly. The Department claims that certain portions of the data are exempt under 5U.S.C. § 552(b) (although it has not set forth these claims in its Answer). Adjudication of these§ 552(b) exemption claims (or at least the new claims that the Department has just recently embraced) must await the Department's production of a Vaughn index to explain its new position. In the meantime, the undisputed facts show that plaintiffs are entitled to disclosure of the non-exempt portion of this data without further delay.

Section 552(a) mandates that, upon receiving a FOIA request, the agency "shall make the records promptly available," 5 U.S.C. § 552(a)(3)(A), and sets strict guidelines for notifying the requester of any adverse determination. Id. § 552(a)(6)(A). The statutory language mandating prompt disclosure and notification of the agency's determination is deliberate. In 1974,Congress specifically added this language to the statute to preclude agencies from frustrating the purpose of the statute by delaying disclosure. "As the subcommittee's hearings clearly demonstrated," the House Committee Report on the 1974 Amendments observes, "information is often only useful if it is timely. Thus, excessive delay by the agency in its response is often tantamount to denial." H.R. Rep. No. 876, 93rd Cong., 2d Sess. 6 (1974), reprinted in 1974U.S.C.C.A.N. 6267, 6271. Congress was concerned that agencies could, and sometimes did,delay disclosure of records until the public's interest in an issue had subsided. "Too often agencies realize that a delay in responding to a press request for records can often moot the story being investigated and will ultimately blunt the reporter's desire to utilize the provisions of the Act," the Senate Committee Report on the 1974 Amendments observes.8   The statutory language was amended because Congress believed that "an agency with records in hand should not be able to use interminable delay to avoid embarrassment, to delay the impact of disclosure, or to wear down and discourage the requester." Id. at 178.

The Department has failed to comply with Section 552(a)'s mandate that records be made available promptly. Since June 1999, the Department continually procrastinated in setting a schedule for release of this data until it eventually assured TRAC that the agency was copying the data and would begin releasing it in March 2000. In March, however, the Department refused to even abide by the schedule that it chose. The sole basis offered by the agency for continuing to withhold the records is that the agency decided to change its position at the last minute and would no longer abide by its own October 29, 1999 letter or the June 1999 Vaughn index. Moreover, the agency still has not released the records or committed to a schedule for release.

FOIA does not permit agencies to use such vacillation to delay the release of records. Indeed,the courts have recognized that agencies cannot be permitted to use bureaucratic delays to postpone disclosure of records, particularly where the information in the records is time sensitive. In Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988), the agency repeatedly delayed access to contract bids that the plaintiff requested by initially invoking FOIA exemptions to deny the request, but abandoning the exemption claims during administrative appeals. The government argued that no judicial intervention was warranted because the plaintiff eventually received the records, albeit months later, and the agency had promised that, in the future, it would release the type of records that plaintiff requested. The district court accepted the government's argument, but the Court of Appeals reversed and held that the delay caused by the agency's conduct was sufficient to entitle the plaintiff to equitable relief.

The Circuit Court's opinion in Payne makes clear that FOIA not only mandates disclosure, butprompt disclosure, and courts should not tolerate unjustified delay. "The fact that Payne eventually obtained the information it sought," the Court observed, "provides scant comfort when stale information is of little value yet more costly than fresh information ought to be." 837F.2d at 494; see also McGehee v. CIA, 697 F.2d at 1101 (FOIA "is plainly written so as to disfavor any effort by agency officials to shirk their responsibilities to respond promptly and fully to requests for records. Furthermore, the Act clearly contemplates that courts will scrutinize closely any withholding of documents.") (citations omitted).

The Ninth Circuit made the same point in Long v. United States Internal Revenue Service, 693F.2d 907 (9th Cir. 1982).9   As in Payne, the district court denied injunctive relief to the plaintiff after the agency conceded that records that it had withheld for months were not exempt from disclosure under the FOIA, and released them. Id. at 908. On appeal, the Ninth Circuit reversed because the district court's decision failed to consider the harm caused by the agency's unjustified delay in releasing the records. "Congress did not intend for the IRS, or any other agency, to use the FOIA offensively to hinder the release of non-exempt documents." Id. at910. The agency's "unreasonable delays in disclosing non-exempt documents violate the intent and purpose of the FOIA, and the courts have a duty to prevent these abuses." Id.

Unlike the agencies in Payne and Long, the Department cannot even rely on a claim of exemption to justify the delay in this case. The Department's own Vaughn index acknowledges that the database fields are segregable so, even if the Department asserts that the information in particular fields is covered by one of § 552(b)'s exemptions, the Department is still obligated to information from the remaining fields.10   The Department's announcement in March 2000 that it had decided to not to abide by the determination that it announced to TRAC on October 29, 1999is not a lawful basis for withholding records under the FOIA. To the contrary, the Department's shift of position suggests that it is engaged in the same type of delays that were condemned inPayne and Long.11

Indeed, the Department has already required TRAC to wait for months while EOUSA was supposedly taking the steps necessary to release the records. After being ordered by the New York Court to justify its withholding of case management data on July 7, 1998, the EOUSA took eleven months to determine its position on withholding and produce the June 1999 Vaughnindex. Long v. United States Department of Justice, 10 F. Supp. 2d at 209. The EOUSA then spent the next nine months assuring TRAC that EOUSA was committed to copying the Central System databases in accordance with these determinations, but time was needed to complete the copying process. See Tab A, Long Decl. ¶ 11-14, 19-20. EOUSA's announcement that -- at the end of this lengthy period of examining exemptions and purporting to copy data -- the EOUSA has set the clock back to zero to revise its "guidelines" is irresponsible and imposes unjustified delay on requesters. Plaintiffs are entitled to release of the year-end case management data without further delay.

B.    The Department's Claim That, Until Year-End Verification Is Complete, The Case Management Records Are Privileged, Predecisional Records That Reveal Agency Deliberations, Is Erroneous As A Matter of Law.

The EOUSA has declared that it will only release year-end data from the case management databases on the basis that, until year-end processing is completed, all of the data is exempt from disclosure under 5 U.S.C. § 552(b)(5). The EOUSA asserts that the pre-verification data "is unreliable and clearly falls within the definition of pre-decisional/work product which is exempt from disclosure pursuant to 5 U.S.C. 552(b)(5)." EXHIBIT 3 at 2.12

This claim presents a question of law on which plaintiffs are entitled to summary judgment because the verification of factual data is not a deliberative or predecisional process protected by5 U.S.C. § 552(b)(5). Moreover, the EOUSA has used this untenable claim to delay the release of records. For the past year the EOUSA has used this claim to justify not releasing the data for the first six months of fiscal year 1999, and now plaintiffs' request for the data for the first six months of fiscal year 2000 presents the same issue. Accordingly, summary judgment to foreclose the Department from raising this claim in response to both past and future FOIA requests is appropriate.13

In order to justify withholding records under the deliberative process privilege, an agency must establish that disclosing the information would expose a "deliberative" process for making policy, and that the information is predecisional. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). Neither requirement is satisfied here.

First, release of the case management data would not disclose any "deliberative" process of the agency. Exemption 5 protects "deliberative or policy-making processes" and not factual matters. EPA v. Mink, 410 U.S. 73, 87-91 (1973); Wolfe v. HHS, 839 F.2d 768, 774 (D.C. Cir. 1988) (en banc) ("factual material must be disclosed but advice and recommendations may be withheld"). The data at issue here record facts, not policy-deliberations. The case management databases track civil, criminal and other matters handled by the United States Attorneys Offices. EXHIBIT13, United States Attorneys Manual, § 3-16.000 INFORMATION MANAGEMENT (September1998); EXHIBIT 14, Introduction to LIONS (Sept. 1, 1997). Release of factual data about these cases before the EOUSA has deemed the information to be its year-end "final" version does not threaten any policy-making process (let alone a significant one). Nor is it conceivable how disclosure could diminish the candor of agency deliberations.

Indeed, the Circuit Court rejected a virtually identical Exemption 5 claim in Petroleum Information Corp. v. United States Department of the Interior, 976 F.2d 1429 (D.C. Cir. 1992). In that case, the government asserted that Exemption 5 protected a Bureau of Land Management("BLM") database of property data that was not yet in final form because disclosure of the non-final data "would reveal corrections and estimates made upon transfer of source document information to" the master file, and such disclosure would "compromise agency deliberations about data elements, codes, and format BLM should use in the final version." Id. at 1432. The Court of Appeals rejected these arguments because neither the correction of errors in the data,nor decisions about how the data should be structured, "impact on the development of policy judgments of the kind sheltered by the deliberative process privilege." Id. at 1439.

As for the agency's concern that the data might contain errors, the Circuit Court concluded that this fear could be addressed by the agency informing FOIA requesters that the data is "as yet unofficial and that the Bureau disclaims responsibility for any errors or gaps." Id. at 1437. In addition, although the decisions involved in selecting the final format of the data "demand special care and technical skill," these decisions are not the type of "'candid or personal' decisions that, if revealed prematurely, would be likely to 'stifle honest and frank communication within the agency.'" Id. at 1439 (quoting Coastal States Gas Corp v. Department of Energy, 617 F.2d854, 866 (D.C. Cir. 1975)); accord Pacific Molasses Co. v. NLRB, 577 F.2d 1172, 1183 & n.8(5th Cir. 1978) (form is not covered by Exemption 5 where it is mechanically-compiled statistical report that contains no subjective conclusions and no information "the disclosure of which might arguably hamper the full and frank exchange of information within the agency").

These conclusions are equally applicable to the EOUSA data at issue here. Exemption 5 does not permit the EOUSA to withhold data from these databases on the theory that the data is not yet in final form because the process of verifying the data is not a "deliberative" process protected by Exemption 5. See also Assembly of Cal. v. United States Dep't of Commerce, 968 F.2d 916,920-23 (9th Cir. 1992) (rejecting claim that census data may be withheld under Exemption 5where release "would not enable public to reconstruct the protected deliberative process"); Ethyl Corp. v. EPA, 25 F.3d 1241, 1248-49 (4th Cir. 1994) ("privilege does not protect a document which is merely peripheral to actual policy formulation").

Second, the EOUSA centrally managed databases are not "predecisional" records. Although these databases are used to inform Department of Justice decisions, the fact that the data in the EOUSA database may be used in an ongoing process of compiling statistics does not make the records "predecisional." For example, in Assembly of Cal. v. United States Dep't of Commerce,968 F.2d 916 (9th Cir. 1992), the Department of Commerce asserted that census data was predecisional because the information may be used in the future for calculating population estimates. The Ninth Circuit rejected the claim, observing:

    This argument proves far too much. Any memorandum always will be "predecisional" if referenced to a decision that possibly may be made at some undisclosed time in the future. . . . "Characterizing these documents as 'predecisional' simply because they play into an ongoing audit process would be a serious warping of the meaning of the word." Coastal States, 617 F.2d at 868.

Moreover, the database at issue here is compiled from district data that, the Department acknowledges, is not predecisional. As noted above, the centrally managed database is built from data provided by the 94 United States Attorneys Offices. See, supra note 7. The EOUSA has released data from the databases of the local offices under the FOIA. The government cannot credibly claim that the data of each of the United States Attorneys Offices is subject to disclosure, but that the central database built from this same information is "predecisional" until the verification procedures are final. Cf. Petroleum Information Corp., 976 F.2d at 1436-37(agency's Exemption 5 claim is untenable where data is compiled from publicly available sources); see also Army Times Publ'g Co. v. Department of the Air Force, 998 F.2d 1067, 1070(D.C. Cir. 1993) (partial release of withheld data undermines agency's claim that data must be withheld to protect candor of government communications).

Accordingly, the Department's claim that data in the EOUSA's central databases is entirely protected by the deliberative process privilege until verification is completed at the end of the year is erroneous as a matter of law. The Department may not use this claim to withhold current database information from the public.

C.    TRAC Is Entitled To Release of The Department's Records Describing The Updating and Revision of the Database Records.

Finally, plaintiffs are entitled to release of the Department's records describing the standards used in compiling, updating, verifying, and validating the EOUSA's data. Plaintiffs submitted their request for these records nearly six months ago. The Department has never made any claim that the records are exempt, nor has it offered any other grounds for showing that withholding the records is proper. Accordingly, plaintiffs are entitled summary judgment with respect to these records as well.

II.    TRAC IS ENTITLED TO INJUNCTIVE RELIEF TO SECURE PROMPT RELEASE OF THE RECORDS.

Plaintiffs are not only entitled to a declaratory judgment in their favor, but are also entitled to injunctive relief to ensure timely release of the type of records at issue. The caseload databases are not simply historically important records, but records with information that is important to current public policy debates about the Department of Justice and federal law enforcement policy. As the Court of Appeals observed in Payne, "stale information is of little value" when, as here, the records are relevant to current events and decisions. 837 F.2d at 494.

In considering the availability of injunctive relief, Federal Rule of Civil Procedure 65(a)(2),allows the Court to consolidate any hearing on preliminary relief with a hearing on the merits. Because plaintiffs' claims for prompt release of the database records present summary judgment issues, plaintiffs urge the Court to exercise this option and enter a permanent injunction. Plaintiffs' motion satisfies the relevant standards for preliminary or permanent relief, as the standard for a "preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success." Amoco Production Co. v. Gambell, 480 U.S. 531, 546 n.12 (1987). The merits arguments above show that plaintiffs have shown not only a likelihood of success, but basis for summary judgment on the merits. As we show below, the equitable considerations favor injunctive relief.

A.    TRAC Is Harmed By Continued Delay In Releasing The Records.

The Department's failure to release the records promptly has unfairly injured TRAC in three ways.

First, TRAC is unable to obtain information relevant to current, ongoing public debates,including information that the agency is using in a manner that precludes public scrutiny of its claims. For example, statistics compiled by TRAC have generated substantial interest in Congress and in the media because they show that firearms prosecutions have declined precipitously since 1992. Tab B, Burnham Decl. ¶ 10. In response, the Department has discounted TRAC's reports by distributing tables that compare TRAC's figures side-by-side with numbers that the Department claims comes from records in its database for fiscal year 1999. Id. & EXHIBIT 18. However, TRAC and others cannot assess the accuracy of the Department's side-by-side comparisons because the Department is withholding from TRAC the very 1999 data on which the Department relies to dismiss TRAC's reports. Id. ¶ 11. Thus, the Department has managed to skew the debate by maintaining exclusive control over data that, under the FOIA,the Department is required to release promptly in response to TRAC's requests.

Similarly, the Department's failure to release the fields that link tables in the EOUSA databases precludes the public from examining its claims. The Department of Justice has criticized TRAC on the grounds that its reports only examine the lead charge against a defendant, and do not consider the additional charges that may be brought in a multiple-count prosecution. Tab B,Burnham Decl. ¶ 12. However, the Department itself has imposed this restraint by withholding data from TRAC so that only the Department can generate statistics that consider these additional charges. The EOUSA's Central System databases for criminal cases list the "LEAD CHARGE"against a defendant in the "Master Record" table. Additional charges against a given defendant,however, are listed in a separate "Charge File" table. The data in this Charge File table,however, table cannot be identified with the Master Record entries without the linking fields that the Department has withheld from TRAC. Consequently, except for the fiscal year 1998 data,TRAC can only generate statics based on the LEAD CHARGE because EOUSA has withheld the critical linking fields for all other years. Id. Thus, by continuing to withhold this information for fiscal year 1999 and other years, the Department precludes TRAC from evaluating the EOUSA's claims, limits TRAC's ability to analyze the data, and has even created a mechanism for unfairly disparaging TRAC's statistics.

FOIA is designed "to 'open[] up the workings of government to public scrutiny' through the disclosure of government records." Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984) (quoting McGehee, 697 F.2d at 1108). "The basic purpose of FOIA is to ensure an informed citizenry,vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S.214, 242 (1978). These goals are obviously thwarted, however, if agencies are permitted to limit scrutiny of their activities by selectively releasing statistics about their activities, while delaying outside scrutiny of the underlying data. By withholding the records at issue here, the Department has irreparably injured the ability of TRAC to defend its own reports and participate in the public debate over the Department's assertions. Tab B, Burnham Decl. ¶ 9.

Second, the Department has thwarted TRAC's ability to fulfill its mission to make data on the operation of law enforcement agencies available to journalists, scholars, public interest organizations and others. In order to encourage research and to inform public discussion of federal policy in this area, private foundations have awarded TRAC grants based on TRAC's commitment to process and disseminate information on federal prosecutors' activities --including dissemination of the fiscal year 1999 data and the linking fields that the EOUSA committed to release last year. Tab B, Burnham Decl. ¶ 13. TRAC has not been able to fulfill its commitment to these funders because the Department has not released any caseload database information since October 1999. The Department's withholding of the caseload information irreparably injures TRAC's activities because, even if the data is eventually released, the opportunity to utilize this information in the current public policy discussions will be lost forever. Cf. Payne, 837 F.2d at 486 (the delay in releasing agency records under the FOIA"injured Payne's business by frustrating its clients desire for the prompt delivery of information on contract bids.")

Finally, TRAC needs access to the caseload records to be able to fairly participate in the administrative process in which the Archivist of the United States is weighing whether these records have sufficient research value to warrant their preservation. The Department of Justice has submitted a proposal to the Archivist requesting that he approve the regular destruction of most of the records in the current EOUSA databases and in the United States Attorneys Offices databases for case management information. See 65 Fed. Reg. 11807-11808 (March 6, 2000). The statute governing destruction of government records requires that, in considering this proposal, the Archivist must weigh public comment on whether the records have sufficient administrative, legal, research, or other value to warrant their preservation. 44 U.S.C. § 3303a;See American Friends Serv. Comm. v. Webster, 720 F.2d 29 (D.C. Cir. 1983) (overturning Archivist's approval of destruction of records as arbitrary and capricious).

TRAC opposes the Department's proposal to destroy the records, but TRAC's ability to comment on the proposal and challenge the Department's assertions is hindered because the Department continues to withhold the records at issue here. Tab B, Burnham Decl. ¶ 14. For example, disclosure of the records describing the EOUSA's procedures for updating, revising and verifying the caseload information is important to allow TRAC to address the reliability and research value of the various data sets that the Department of Justice is now proposing to destroy. Without these records, TRAC's ability to submit information for the administrative record and participate in the administrative process is prejudiced.

The harm created by this delay is irreparable. FOIA does not provide any compensatory remedy for the injury imposed when an agency wrongfully withholds records that are relevant to current issues. Moreover, there is no means to recapture lost time or recover lost opportunities if the agency withholds records relevant to current public debates or proceedings until the information is "stale" or irrelevant. Courts have traditionally recognized that such harms warrant equitable relief.14   Plaintiffs are entitled to such relief here to secure their legal rights.15  

B.    The Effect of Injunctive Relief On Defendant and Third Parties, and the Public Interest Also Favor Equitable Relief for Plaintiff.

Finally, the additional equitable factors that courts consider in evaluating the propriety of equitable relief, see Virginia Petroleum Jobbers Association v. Federal Power Commission, 259F.2d 921 (D.C. Cir. 1958), favor plaintiffs' request for injunctive relief here.

Injunctive relief for plaintiffs will not substantially harm other parties. No third parties would be injured by such relief, and the only impact on Defendant is to compel it to promptly release data that it promised to release months ago. Moreover, the Department has had more than adequate time to consider its exemption claims and the relief that plaintiffs seek here does not foreclose the Department from withholding those portions of the data that it considers to be exempt.

Finally, injunctive relief is in the public interest. FOIA not only recognizes that the public interest is served by disclosure of government records, but that there is a public interest in prompt disclosure. Where, as here, agency records shed light on the current operations of the government, delay in releasing the records can have frustrate the public interests served by the statute just as much as an outright denial. H.R. Rep. No. 876, 93rd Cong., 2d Sess. 6 (1974),reprinted in 1974 U.S.C.C.A.N. 6267, 6271.

CONCLUSION

Summary judgment should be entered for plaintiffs, and the Department should be directed to release the records at issue, in accordance with the FOIA, without further delay.

Footnote: 1     See Answer ¶¶ 5, 6; EXHIBIT 13, United States Attorneys Manual, § 3-16.000INFORMATION MANAGEMENT (September 1998); EXHIBIT 14, Introduction to LIONS(Sept. 1, 1997).

Footnote: 2     Steep decline here in drug prosecutions: Daley Fears Figures indicate feds' lack of commitment, Chicago Sun-Times (March 9, 1998) (attached in EXHIBIT 16).

Footnote: 3    Neighbors Differ in Pollution Inquiries: Va. Lags Behind Md. in Prosecution Referrals,Washington Post, B1 (June 16, 1998) (attached in EXHIBIT 16).

Footnote: 4     William Greider, Mandatory Minimums: National Disgrace, Rolling Stone 42, 50(April 16, 1998) (attached in EXHIBIT 16).

Footnote: 5     The American Lawyer, March 2000, Prosecutor Report Cards, 62; Borderline Crackdown, 65; A New Lease on Law, 67; Justice Delayed, 69 (attached in EXHIBIT 16).

Footnote: 6     On March 21, 2000, three days before informing TRAC that it would not be releasing of the caseload data from 1974-1997 as previously represented, the EOUSA sent TRAC a letter questioning whether it was qualified for reduced fees or a fee waiver under the FOIA, and requesting that TRAC provide "any and all records for the previous five years regarding all fee schedules utilized by TRAC, and any and all records of any fees proposed, charged and/or received by TRAC in the previous five years," as well as "any and all records regarding the sources of funding for TRAC, including but not limited to any grants, stipends, and private or commercial funding sources." EXHIBIT 10.

The timing and unprecedented nature of this burdensome request make it difficult for TRAC to regard this March 21, 2000 letter as anything other an effort by