PLEASE TAKEE NOTICE that upon the annexed affidavit of Christopher-Earl : Strunk in esse, 1
by Special-Appeaxirimce, aflkms March 20,201 1 he will move this Court for reconsideration of I
I
the order of Mardch 10,2011 by leave to file a motion for a Vaughn Index by the Honorable I
i
Richard J. Lean,15 U.S.D.J, at a time afforded by the Court if necessary at the United States
§1746 as follows:
of the notice of motion for reconsideration of the order of March 10, 2011 (see attached) by
2. The Court’s order held that Defendant U.S. Department of State had withheld the
requested documents in good faith despite clear and convincing evidence to the contrary that
3. That from the start of Declarant’s FOIA requests for documents the Defendant has
acted in bad faith: first by not responding to the request(s); second by showing a proven
pattern of withholding and or delaying any FOIA request by subjecting the requestor to a
political test; third when Declarant did file this adverse action herein Defendant denied due
process in the imposition of change of counsel by bringing the Defendants’ national cleaner
1
in against other adverse requestors deemed due a second class of treatment; fourth when
cornered to respond DOS denied that the documents exist without presenting proof of the
chronological paper and or electronic index of all records related to the subject with the bold
face lie that the GSA and or National Archives had ordered the documents destroyed and
compounding such fraud without submitting any proof of such destruction; and Fifth and not
least when cornered, the counsel for the Defendant(s) deconstructed the sworn statement of
Philip Jacobsen to fit the consistency of the fraud upon the court; so where is the good faith
that the court seems to find compelling to be able to allege good faith?
4. Now as for the Court from the beginning it is clear, and Declarant is no Pollyanna
to the process that chooses Judges, that Declarant challenged the bias of the Court with a 28
USC §144 and 28 USC §455 demand for recusal: with allegations that the Judge has a
conflict of interest since he teachers and is paid by the Jesuits at Georgetown University as a
clear conflict in that the Defendant is directed by the Knights of Malta in service of the
Vatican who have foist this jackanapes usurper into the executive against the U.S.
Constitutional interest of the people of the United States as a coup d’ tat; and to which when
requested the Court refused to return the original page of the motion alleging the court took
an extreme oath to serve the Vatican as a member of the Knights of Columbus and or CFR
was ignored, so where is unbiased justice without the appearance of impropriety to be found?
5. As for the bad faith exhibited by the United States Department of State (DOS) ,
FDR referred to as the DOS permanent bureaucracy by right of birth, that as an oligarchy
within Declarant’s lifetime has agents and leadership there who have committed horrendous
treasonable acts subject to the ultimate punishment act with impunity including; but not least
according to the documents released to John Loftus Esq. used in his book “America’s Nazi
2
Secrets” prove that the DOS and the Dulles family added and abetted by Papal Knight
William Donavan and others were responsible for transferring by “Operation Paperclip” and
other operations the entire Nazi Intelligence structure into the United States after 1945 and
elsewhere as agents of US foreign policy well beyond the known example of General
Gehlen, and done by using the Vatican “Ratlines” and der spinne resources acquired by
Martin Bohrman from 1933 forward that were enacted in 1933 when Nazi Germany entered
into a concordant with the Vatican to act as one entity thereafter to be served by all the
Knights of the Pontifex Maximus – this must not be overlooked by this Court.
6. According to open sources John Foster Dulles and the Dulles family including no
less than Allen Dulles and Fr. Avery Dulles S.J. service to Rome started when John Foster a
envoy to Switzerland cooperated with the Vatican State by facilitating transport of IV Lenin
by train into Russia to extirpate the Czar, overthrow the Kerensky government and in
accordance with the Jesuit’s Fatima Prophesy destroy the competing true Christian Eastern
Orthodox faith; and then in furtherance of the scheme, Fr. Pietre Tacchi Venturi S.J.
fashioned the Latern Treaty of February 1929 to recreate the sovereignty of the Vatican
State and temporal financial power through reparations equivalent to say $99 million. And
that by facilitating the Vatican Bank with liquidity, then in October 1929 proceeded to
collapse the New York securities Market(s) and Chicago Board of Trade through efforts of
Knight of Malta Joseph Kennedy and other Knights who used the intentional shortage of one-
third of available paper dollar liquidity by the Federal Reserve to deprive cash needed to
meet margin calls, and with the collapse the agents of the Vatican Bank quickly bought up
U.S. Industry a penny on the dollar and imposed a corporate fascism thereafter with the
3
Freemasonic tdtool FDR then under the watchfid eye of Jesuit Fathers Charles Coughlin, John
Ryan and Edrfmnnd Walsh themdter at the State Department - as a matter of public record.
7. TL'his constitutional republic exists with a social compact between the tyrannical
oligarchy andd the safeguard of liberty of an individual. The compact may only last as long as
the rights andd liberty of that individual against exigencies of power and tyranny that must be
secured with order and fair and reasonable justice. We are now left with only the Jesuit's
fascist order inn service of the corporate Council on Foreign relations instead.
8. Th'he Court does not get many Plaintiffs like me to be able to guarantee a
9. wnpt does Dekndant lose! by providing the Court with the Vaughn Index proof
that what it aldlleges to the Plaintiff and Court as to the missing documents is true and with the
paper index rmecord beyond the hyped up electronic index is the proof the court must seek to
remain unbiarsed in what until now has been a politically spotless record of service to Rome;
must grant leceave for the Plaintiffs motion in demand of a Vaughn index submission to be
1
CHRISTOPHER EARL STRUNK, 1
)
Plaintiff, 1
1
v. ) Civil Action No. 08-2234 (RJL)
1
UNITED STATES DEPARTMENT 1
OF STATE, et al., 1
)
Defendants. )
ORDER
March /2=2011
ORDERED that defendants' motion for summary judgment Pkt. #37] is GRANTED IN
rbp- .-- - ? - .* -- - ad-- ---- '- ,
PART and DENIED IN PART WlTHOUT PFUXJDICE., it is
FURTHER ORDERED that plaintiffs Notice of Motion for an Order of the Department
of State to Release the FOLA Requested Information of Stanley-Ann Dunham [Dkt. #35] is
DENIED; and it is
FURTHER ORDERED that defendants shall file a renewed motion for summary
later than April ,29,2011; plaintiff shall file his opposition or other response to the motion not
later than M a y 27,2011; defendants shall file a reply, if any, not later than June 17,2011.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MEMORANDUM OPINION
March 1- 1
Plaintiff brings this action under the Freedom of Information Act ("FOIA), see 5 U.S.C.
= - --.,.-- - 7 - - % -
552, seeking information h m the United States Departments of State ("DOS") and Homeland
-
Security ("DHS")about Stanley Ann Dunham, President Obarna's deceased mother. This matter
I
is before the Court on defendants' motion for summary judgment, and for the reasons discussed
below, the motion will be granted in part and denied in part without prejudice.'
I. BACKGROUND
Plaintiff submitted a FOIA request to the DOS, Am. Compl. 7 12, seeking the following:
I
1
The Court will grant defendants' motion for summary judgment with respect to
the DOS's response to plaintiffs FOIA request, and plaintiffs "Notice of Motion for an Order of
the Department of State to Release the FOIA Requested Information of Stanley-Ann Dunham"
will be denied.
I 1
[I]nformation or records related to Stanley Ann Dunham born
November 29,1942 at Fort Leavenworth KS. U.S., a.k.a. StanleyAnn
Dunham Obama . . . who died on November 7,1995 under the name
Stanley Ann Dunham Soetoro (a.k.a. Sutoro) for any and or all exit
and entry records for travel outside of the USA for the period between
1960 through 1963.
Id., Ex. A (Letter to the DOS fiom plaintiff dated October 16,2008). The DOS assigned the
I
request a control number, Request No. 200806553, and notified plaintiff that this information
likely would be maintained by the Bureau of Customs and Border Protection ("CBP"), a
component of the DHS. Mem. of Law in Supp. of Defs.' Mot. for Surnrn. J. ("Defs.' Mem."),
Decl. of Alex Galovich ("Galovich Decl.") 7 5. The DOS provided plaintiff the address to which
he could submit a FOIA request directly to the CBP, and closed the matter. I . ,Ex. 2 (Letter to
plaintiff fiom Patrick Scholl, Chief, Requester Communications Branch, DOS, dated January 12,
2009).
Plaintiff submitted a separate request "electronic[ally] via the [State] Department's FOIA
Am. Compl., Ex.E (FOIA request dated November 22,2008, Ref. No. B8475).2 Specifically,
I
I
2
The Court already has resolved the portion of plainWs FOIA request for records
pertaining to then-President-Elect Barack O b See Sh.tark v. US.Dep 't of State, 693 F. Supp.
2d 112-(D.D.C. 2010).
2
plaintiff sought:
I
See id. at 1. "[Aln automated response acknowledging and summarizing Plaintiffs request was
E-mailed to [him]." Galovich Decl. 7 7; see id., Ex. 3 (E-mail message to plaintiff dated
!@& .-- - .-.- a%
-- - AT .--vr - 5 -=.&
Acknowledging that Ms. Dunham "is widely known as a matter of public record to be
deceased," Galovich Decl. 7 9, the DOS "process[ed] the request for records in category (a) of
[plaintiffs FOIA] request under . . . control number 200807238." Id; see id, Ex. 5 (Letter to
plaintiff from P. Scholl dated January 12,2009) at 1-2. A search of records maintained by the
I
08Lice of Passport !krvices located six documents, all of which were released to plaintiff in full.
Id 7 12 The "other aspeds of his FOIA request assigned case control numiii
200807272." Id 7 10. Records responsiveto categories (b), (c), and (ti)of plaintiffs request
"would be with the [DHS7s]Bureau of Customs and Border Protection or with the National.
Archives," and the DOS provided plaintiff with addresses of those agencies. Id
B. FOL4 Request to the Department of Homeland Security
In a separate FOIA request to CBP, see Am. Compl. f 22, plaintiff sought the same
information as that listed in his request to the DOS, id., Ex. I (Letter to Mark Hanson, Director,
FOIA Division, CBP, fiom plaintiff dated December 23,2008) at 1-2. A search of the TECS
electronic database yielded "[olne page of responsive records forstanley Ann Dunham." Defs.'
Mem., Decl. of Dorothy Pullo ("Pullo Decl.") 7 6. After redacting certain information under
FOIA Exemptions 2 and 7(E), the CBP released the document to plaintiff. Id, T[ 7; see id., Ex. A
11. DISCUSSION
"[Tlhe court may . . :grant summary judgment if the motion and supporting materials -
including the facts considered undisputed - show that the movant is entitled to it." FED.R. CIV.
- -- -
P. 56(e). The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986). "[A] material fact is 'genuine'
.. .if the evidence is such that a reasonable jury could return.a verdict for the nonmoving party"
on an element of the claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). Factual
assertions in the moving party's affidavits or declarations may be accepted as true unless the
opposing party submits his own affidavits, declarations or documentary evidence to the contrary.
In a FOIA case, the Court may grant summary judgment based solely on information
provided in an agency's affidavits or declarations if they are relatively detailed and when they
describe "the documents and the justiIic@ions for nondisclosure with reasonably specific detail,
P
demonstrate that the information withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor by evidence of agency bad faith."
Military Audit Project v. Casey, 656 F.2d 724,73 8 @.C. Cir.1981). Such affidavits or
declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely
speculative claims about the existence and discoverability of other documents."' Safecard
Sews., Inc. v. Sec. & Ejcch. Comm'n, 926 F.2d 1197,1200 @.C. Cir. 1991) (quoting Ground
Saucer Watch, Inc. v. Cent. Intelligence Agency, 692 F.2d 770,771 (D.C.
Cir. 1981)).
"An agency fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was 'reasonably calculated to uncover all relevant documents."' Valencia-
Lucena v. U.S. Coast Guard, 180 F.3d 32 1,325 @.C. Cir. 1999) (quoting Truitt v: Dep 't of
897 F2d 540,542 @.C.-- Cir. 1990)); Campbell v. US. Dep 't of Justice, 164 F.3d 20,27
35%-4%&- + - .- -r
-*-.,.a;
%r -;- .---^ - -
\3.C. Cir. 1998) @urnrequires agency to conduct search using methods reasonably expected to
produce requested information). The agency bears the burden of showing that its search was
calculated to uncover all relevant documents. Steinberg v. US. Dep 't of Justice, 23 F.3d 548,
551 @.C. Cir. 1994). To meet its burden, the agency may submit affidavits or declarations that
I
explain in reasonable detail the scope and method of the agency's search. Peny v. Block, 684
F.2d 121,126 @.C. Cir. 1982). In the absence of contrary evidence,such fidiivits or
declarations are sufficient to demonstrate an agency's compliance with the FOIA. Id at 127. If
the record "leaves substantial doubt as to the sufficiencyof ule search, summaryjudgment lor the
1. State De~artrnent
requests. Galovich Decl. 77 1-2. Upon receipt of a FOIA request, IPS staff "evaluate[] the
request and determine0 which offices, overseas posts, or other records systems . . . may
Il reasonably be expected to contain" responsive records. Id. 7 13. The "description of the records
requested . . . [and] the nature, scope, and complexity of the request" are considered in
With respect to plaintiffs Request No. 200807238 for Ms. Dunham's passport
applications, IPS staff "determined that the Office of Passport Services would be the only office
that would reasonably be expected to maintain the records requested" because "Passport Services
I is charged with issuing passports to U.S. citizens." Id. 7 14. Its Passport Information Electronic
Records System ("PIERS") is an electronic database containing "the records of some 144 million
- -..- - 4
.- - - - --,-- x - -
passports that have been issued fiom 1978 to the present." Id. The DOS "also maintains paper
records of some passport applications." Id. Using variations of Ms. Dunham's name, including
those variations plaintiff supplied in his FOIA request, IPS staff searched both PIERS and paper
records. Id. 7 15. The search yielded six responsive passport records, id., all of which were
Office of Legal Afhirs and Law Enforcement Liaison, Bureau of Consular Affairs, Passport
Services, dated July 29,2010). The records themselves were not submi#ed with the agency's
declaratioa3 However, the DOS's response to plaintiffs FOIA request iildicated that "a 1965
3
It appears that the DOS released 12 pages of records, copies of which plaintiff
submits in his opposition as attachments to the Jambsen AlEdavit. Srr PI.% Decl. in 0pd'n to
(continued...)
6
passport application referenced in an application for amendment of passport that is included in
the released documents" was not located, likely because "[mlany passport applications . . . from
that period were destroyed during the 1980s in accordance with guidance from the General
typically consist of applications for United States passports and supporting evidence of United
States citizenship," and therefore they "do not include evidence of travel such as entrancelexit
stamps, visas, residence permits, etc., since this information is entered into the passport book
Plaintiff responds with the affidavit of Philip Hans Jacobsen, whose FOIA request for
passport records about his deceased mother "dated fiom May 26,1953 through October 28,1985
. . . generally coincide[s] with the same time frame of Plaintim'ls request0 of Stanley Ann
Dunham." Pl.'s Decl. in Opp'n to Def.'s Mot. for Surnrn. J. to Dismiss [Dkt. #39] (" Strunk
.-- - -- .-- - -
Decl.") 7 4; see id., Ex. 1 (Jacobsen.AK) 8-10, The DOS apparently searched records ''from
, 1945 to presenty'and located five documents pertaining to Mr. Jacobsen's mother, including
passport applications from 1953,1956,1957 and 1985, and applications for amendment of a
passport from 1957. Id, Jacobsen Aff., Ex. B (Letter fiom Marionette Pleasant, Team Leader,
Law Enforcement Liaison Division, Office of Legal AfT",Passport Services, dated January 25,
2010). From Mr. Jacobsen's review of the DOS and the National Archives and Records
Administratonwebsites and the Federal Register,see Jambsen Aff. 16-19, he concludes that
"the U.S. Government either at the DOS, or the . . . Washington National Records Center,
3(. ..continued)
Def.'s Mot. for Summ. J. to Dismiss Ipkt. #39], Ex. 1 ( J a c o b M.and Letter to plaintiff from
J.M. Rolbin dated July 29,2010 with attachments).
7
Suitland, Maryland[,] must maintain passport applications and related records for 100 years," id.
7 21. Mr. Jacobsen further concludes that the government maintains paper records of passport
issuances from 1909 to 1978, and "an electronic index of all application records created
since 1978 and some passport application records fiom 1962 to 1978." Id.
Relying on this affidavit, plaintiff contends that Mr. Jacobsen's success in obtaining
records about his mother, which had been generated during the same time period as Ms.
Dunham's records, "conflicts with the [DOS's] allegations and partial provision of records."
Strunk Decl. 7 9. According to plaintiff, defendants' agents "have not made a good faith effort to
search for and disclose records" responsive to his request and "have spoliated records associated
with the commission of high crimes and misdemeanors" committed by Barack Hussein Obama
and others, resulting in Obama's "having taken the oath of office to uphold the U.S. Constitution
and protect the IU]nited States of America and the People against all enemies foreign or
I- - "---- -
domestic . . .who at b i i has multiple allegiances simultaneouslyto &eat Britain arid Kenya . . .
Next, plaintiff attacks the DOS's suggestion that respdnsive records may have been
'
destroyed pursuant to a GSA directive. Plaintiff notes that the DOS provided no authority for the
alleged destruction of responsive records, an index or chain of custody for such documents, or
co-on that such documents were indeed destroyed. Strunk Decl. fl10,30; see generally
PI.% Second Supp. Decl. in Opp'n to DeK's Mot. for Summ. J. to Dismiss [Dkt. #40]; see id, Ex.
11 (Richardson A@.) fl15,18. in support of his argument, plaintiff submits the declaration of
William A. Richardson, who describes himself as "a business system quality manager." Id.,
Richardson AfT.7 3. According to Mr. Richadson, "the GSA has Never, Ever, issued a directive
to the [DOS] on record retentions to US citizens." Id. 7 15.4 Based on Mr. Richardson's
I
findings, plaintiff contends that individuals conspired to "break[] . .. into the [DOS's] passport
database to effect spoliation of documents in criminal violation of law," Strunk Decl. fi 14, such
that government officials are "withhold[ing] facts essential .. .for proving that [Obama] is not a
natural-born citizen [of the United States]," id. 7 18.5 Further, plaintiff accuses the DOS of
"being disingenuous with the Court in bad faith," id. 7 29, and he "will not believe the records
were somehow eaten by the dog without the DOS provision of proof that the GSA backed up a
responsive records are not relevant considerations in this FOIA action. "The adequacy of an
circumstances of the case." Weisberg v. U.S. Dep 't of Justice, 705 F.2d 1344, 1351 @.C. Cir.
- .- .
- , - - .
I 1983) (internal citations and quotation marki omitted). It is "determined not by the Gts of the
search, but by the appropriateness of the methods used to carry out the search." Iturralde v.
Comptroller of Currency, 3 15 F.3d 311,315 @.C. Cir. 2003) (citing Steinberg, 23 F.3d at 55 1).
4
It appears that one page of Mr. Richardson's affidavit, which presumably sets
forth jmagmphs 8 through 13, is missing.
5
Plaintiff also rec0~11tsthe efforts of another FOIA requester who sought Ms.
Dunham's passport records for the period fiom January 1,1959 through December 31,1962, and
the denial of her request for expeditious handling of the request. Pl.'s Supp. Decl. in Opp'n to
Def.'s Mot. for Surnm. J. to Dismiss [Dkt. #41] fi 3. Apparently plaintiff believes that
expeditious handling of that individual's request is essential because Obaina's presidency is itself
a "grave matter of national security." Id. 7 2. Indeed, he claims that Ms. Dunham's
"whereabouts . . . is crucial a s a matter of law," because it determines whether President Obama
is a United Statescitizen. Id fi 26.
"The [mere] fact that a particular document was not found does not demonstrate the inadequacy
of a search." Boyd v. Criminal Div. of US. Dep't of Justice, 475 F.3d 381,391 @.C. Cir.)
I (citations omitted), cert. denied, 552 U.S. 1007 (2007). Plaintiffs "assertion that an adequate
I
search would have yielded more documents is mere speculation." Baker & Hostetler LLP v. US.
I '
The DOS establishes that it looked for responsive records in the systems of records most
likely to contain Ms. Dunham's passport applications, using several variations of the subject's
name as search terms, for the time period set forth in plaintiffs request. Its failure to locate a
document to which another responsive record referred does not render its search inadequate. No
agency is required to produce records that it does not possess. See Rothschild v. Dep 't of Energy,
6 F. Supp. 2d 38,40 (D.D.C. 1998) (concluding that plaintiff who identified two responsive
documents which may be in the agency's possession but were not released merely "demonstrates
that the &h was not perfec&"howeve; ''k]erfection .. .is not the standard");
Jones v. Fed. Bureau of Investigation, 41 F.3d 238,249 (6th Cir. 1994) (finding that the court
cannot order an agency "to make amends for any documents destroyed prior to the request").
The Court concludes that the DOS has conducted a reasonable and adequate search for
responsive records, notwithstanding the agency's lack of success in locating the particular
documents plaintiff sought. Accordingly, defendants' motion will be granted in part with respect
The CBP uses the TECS electronic database to "conduct enforcement checks on
individuals seeking to enter or depart the United States." Defs.' Mem., Pullo Decl. 7 6. "TECS
includes combined databases of over 20 federal agencies," and since January 1982, TECS has
captured "traveler arrivals and departures into and out of the United States." Id Paper records
predating TECS "no longer exist and are no longer archived." Id.
Because TECS maintains arrival and departure records, it was considered "the system . . .
mostly likely to have entry and exit data pertaining to Ms. Dunham." Id "Working with the
CBP Office of Chief Counsel, the FOIA Division conducted a search in the TECS database," and
that search yielded "[olne page of responsive records for Stanley Ann Dunham." Id. This
cursory description of the CBP's search provides no basis from which the Court can determine
whether the search was adequate under the circumstances. See Schoenman v. Fed Bureau of
agency's search was inadequate where the declarant "fails to include sufficient reasonable detail
as to the specific search conducted in response to Plaintiffs FOIA[] Request"); Prison Legal
*
Nms v. Lappin, 603-F.Supp. 2d 124, 126-27 (D.D.C. 2009) (noting supporting affidavit's
failure to "outline the search methods undertaken . . .,who would have conducted the searches,
and . . . how [the &ant] is personally aware of the search procedures or that he knows they were
followed by each of the [Federal Bureau of Prisonst]sentities tasked with responding to this
request"). Accordingly, the defendants' motion will be denied in part without prejudice, and the
Court will set a schedule for the filing of a renewed motion. See McKinley v. Fed. Deposit Ins.
Corp., No. 10-420,2010 WL 5209337 (D.D.C. Dec. 23,2010) (inviting the agency to "either (1)
conduct a new search (or searches) for the records sought by the plaintiff to ensure the search is
adequate consistent with governing caselaw; or (2) provide the Court with declarations from
which the Court c& find that the declare@have personal knowledge that the search
1 methodology, procedures, and searches actually conducted were reasonably designed to locate
tb
The State Department has demonstrated its full compliance with the FOIA. Its declarant
describes a search for records responsive to plaintiffs FOIA request that was reasonable under
the circumstances, and that the records it located have been released to plaintiff in full.
Plaintiffs speculation as to the existence of additional records and collusion or bad faith among
rebut the presumption of good faith accorded to DOS's supporting declaration. For these
reasons, the defendants' motion for summary judgment is GRANTED IN PART. However,
because the CBP has not demonstrated that its search for responsive records was adequate,
I
defendants' motion will be DENIED IN PART without prejudice. The Court defers
1
m
consideration of th'6CBP's decision to withhold records under Exemptions 2 and 7 0 and
FUCHARDJ . ~ N
United States District Judge
DATE:
U.S. District Court for the District of Columbia
CERTIFICATE OF SERVICE
VAUGHN INDBEX signed March 20,201 1with the order of the court annexed !*
thereto.
That a cmplmte set was placed in a sealed folder properly addressed with I
1
Brigham J. Bowen
Trial Attorney
United States Department of Justice
Civil Division, FFederal Programs Branch
P.O. Box 883, PO Massachusetts Ave., N.W.
Washington, D3.C. 20044
motion for a Vaqughn Index to be provides by DOS to the Honorable Richard J. Leon, U.S.D.J, at
a time afforded b by the Court if necessary at the United States Courthouse, at 333 Constitution
Avenue, NW.,Washington, DC 20001, in 201 1 ,at a time and courtroom designated by the
I
Dated: March 20,2011
Brooklyn New York
§1746 as follows:
1. Declarant as Plaintiff in esse without an attorney makes this appearance in support of the
notice of motion for a Vaughn Index Demand in anticipation of leave of the Court to file.
2. That from the start of Declarant’s FOIA requests for documents the Defendant has acted
in bad faith: first by not responding to the request(s); second by showing a proven pattern of
withholding and or delaying any FOIA request by subjecting the requestor to a political test;
third when Declarant did file this adverse action herein Defendant denied due process in the
imposition of change of counsel by bringing the Defendants’ national cleaner in against other
adverse requestors deemed due a second class of treatment; fourth when cornered to respond
DOS denied that the documents exist without presenting proof of the chronological paper and or
electronic index of all records related to the subject with the bold face lie that the GSA and or
National Archives had ordered the documents destroyed and compounding such fraud without
1
submitting any proof of such destruction; and Fifth and not least when cornered, the counsel for
the Defendant(s) deconstructed the sworn statement of Philip Jacobsen to fit the consistency of
the fraud upon the court; so where is the good faith that the court seems to find compelling to be
3. When the FOIA was created, there was no mechanism in the Act for the government to
justify its withholdings or for plaintiffs to have a description of what the information being
withheld from them was. The Court of Appeals for the District of Columbia Circuit came up
with an answer in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The DC Circuit required
agencies to prepare an itemized index, correlating each withholding with a specific FOIA
exemption and a justification for that justification. Vaughn at 827. The required justification
4. The only alternative to a Vaughn Index is for agencies to submit their withheld material
to the court in camera, and then let the court decide if the agencies processing was proper. This
alternative, however, has many drawbacks. Plaintiffs receive no opportunity to challenge the
redactions because they do not know the agencies rationale for withholding them. Defendant
agencies lose control over their documents, and in the case of an overzealous judge, may lose
appellate rights. The subject matter herein is of high national importance as both a security and
of documents without proof of such claim, in a FOIA case triggers the need for the government
to produce a Vaughn. A number of factors determine exactly how the finished Vaughn will look.
The Vaughn Index can take many forms such as a straight affidavit, a narrative document, an
affidavit with a chart or index detailing the withholdings attached, or a hybrid of any of these
2
examples. All Vaughns serve the same purpose; give a meaningful justification for any withheld
materials.
6. The bottom line for any Vaughn Declaration is that it must allow a court to decide if the
agency’s FOIA withholdings were proper, however to date no paper index has been produced.
The types and size of the withholdings will often dictate the format the declaration takes. For
instance, if only a few pieces of information are withheld, a simple affidavit justifying them will
most likely be more than adequate. However, a case involving hundreds, or even thousands of
documents, and probably thousands of redactions will require more than a small affidavit. As the
amount of work involved in a large Vaughn is a huge strain on an agency’s legal and FOIA
resources, the agency will seek to provide a justification for only a sample of the withheld
material. Additionally, the agency may seek to provide a coded Vaughn. A coded Vaughn
involves giving each redaction a specific code and then providing a justification for each code,
rather than specifically pointing out where each redaction is on a certain page. The coded
documents are then attached to a declaration, which is a general affidavit describing and
justifying the redaction categories. A coded Vaughn can be done with a sample of the withheld
material to provide a manageable size to the Vaughn. The bottom line is that agencies do not like
preparing Vaughns and will do whatever it takes to make the final product as small and simple as
possible.
7. Regardless of the format of the overall declaration, the most important thing in preparing
a Vaughn is to adequately and meaningfully describe and justify the withheld documents.
Without a paper index of all records presented to the court the person who will be the declarant
must ensure that the redactions or destruction of documents are properly described has yet to be
done. If the declarant can make no sense of something in a declaration, then the agency will
3
know that there is a problem and a target for attack by the plaintiff. After review of the index, the
8. A Vaughn Index is a factual document. Legal arguments and case sites should rarely, if
ever, be used. The Assistant United States Attorney (AUSA) will cite the applicable law in a
dispositive motion used to support the Vaughn. Whenever an AUSA filed one of my Vaughns
without a supporting brief, trouble was never usually far behind. The Court had nothing in front
of it to rule on, and the bare declaration, no matter how well prepared it was, was usually just
9. The use of computers has aided the Vaughn process by allowing agencies to use previous
indices as templates. However, this can cause problems in that agencies that fail to carefully
proofread their Vaughn products may add arguments and justifications not applicable to the case
at hand. Furthermore, the use of previous indices may not provide justifications with enough
10. Another important step in the preparation of the Vaughn Index is that someone with both
knowledge of FOIA case law and release authority should examine the underlying documents
including the paper index record as well as the electronic index. In many cases, FOIA processors
accidentally withhold information that either is intended for release or is clearly releasable. This
material should be released before the filing of the Vaughn. Additionally, information that may
be protectable by the agency, but for some reason the agency does not want to litigate over or
push the envelope on should also be released before the Vaughn is prepared and filed.
11. What does Defendant lose by providing the Court with the Vaughn Index proof that what
it alleges to the Plaintiff and Court as to the missing documents is true and with the paper index
record beyond the hyped up electronic index is the proof the court must seek to remain unbiased
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in what until n o w has been a politically spotless record of service to Rome; so order Dekndants
CERTIFICATE OF SFBYJJrS-
Brigham J. B o w n
Trial Attorney
United States COepartment of Justice
Civil Division, FFederal Programs Branch
P.O. Box 883, ;20 MassachusettsAve., N.W.
Washington, D3.C. 20044