DISTRICT OF______________________



            PLAINTIFF                                                                          CIVIL NO:___________

                  V.                                               }

                                                                                                                                        SUMMARY OF AUTHORITIES IN                                                                                                        SUPPORT OF MOTION TO REQUIRE

                                                                                                         INTERNAL REVENUE SERVICE
                                                                                                     AND DETAILED  
                                                                                                            ITEMIZATION AND INDEXING UNDER

                                                                                                                         VAUGHN V. ROSEN   




     In this action under the Freedom of Information Act (FOIA), S USC 552, as amended, and the Privacy Act, 5 USC 552a Plaintiff seeks access to all records compiled and in the possession of the Internal Revenue Service pertaining to him or as requested in the complaint filed in this action. The purpose of the instant motion is to compel defendants to provide to the Court and plaintiff a detailed and specific justification, itemization, and indexing, as required by law, for their refusal to disclose the requested records and documents. Vaughn v. Rosen, 484 F. 2d 820 (DC Cir. 1973), Ash Grove Cement Co. v. FTC, 511 F. 2d 815 (DC Cir 1975), Pacific Architects and Engineers. Inc. v. Renegotiation Board, 505 F 2d 383 (DC Cir 1974); Cuneo v. Schlesinger, 484 F 2d 1086 (DC Cir. 1973).
     While this type of case seems especially suited for resolution by summary judgment, and although the Federal Rules of Civil Procedure allow such a motion to be made against the government 20 days after filing of the Complaint, Plaintiff is prevented from making such an affirmative motion by his total lack of knowledge of the contents of the records and documents defendants have withheld, as well as of the purported justification for withholding them. Defendant, in his letter attached to complaint, denied plaintiff's request in whole or part, without detailing or justifying, or only provided conclusory claims of exemption. This is an arbitrary and capricious act on the part of Director and is being used against plaintiff to deny him his lawful rights.
     Defendant's answer is not likely to provide any further information, for it need only consist of a similar general denial of plaintiff's material allegations. In the event of such an answer, plaintiff's motion for summary judgment would have to (1) argue in a factual and adversarial vacuum that plaintiff is entitled as a matter of law to the requested documents and records, or (2) imagine various conceivable arguments in relation to the exemptions claimed and attempt to refute each of then. But in either case, the motion might fail to extract from the defendants the detailed response necessary for this Court to dispose of such a motion. Thus, the Government's failure to adequately describe the records withheld and its defenses to disclosure forces the plaintiff to proceed virtually in the dark. Although the plaintiff knows that the requested records and documents exist, everything else about them is a mystery. The Internal Revenue Service's refusal to make any substantive reply turns this lawsuit on its head; the citizen is, as a practical matter, required to bear the burden of proof which the statute expressly imposes on the agency, 5 USC 552 (a) (4) (B).
     The Court of Appeals for the 9th Circuit (California), sought to remedy just such problems in Vaughn v. Rosen. In that case, the plaintiff sought disclosure of various government documents concerning certain agencies' personnel management programs. The defendant Civil Service Commission refused to produce the documents at the plaintiff's request and the plaintiff filed suit. The defendant submitted an affidavit containing conclusory statements that three named exemptions applied, and the trial court granted the defendant's motion for summary judgment. The Court of Appeals reversed and remanded the case to the trial court for further proceedings. Upon so doing, the Court vigorously insisted that the FOIA's requirements of de novo review with the burden of proof on the government means that the agency is obligated to "undertake to justify in much less conclusory terms its assertion of exemption and to index the information in a manner consistent with guide-lines set forth by the Court. 484 F. 2d at 828. The Court of Appeals has recently reiterated that it requires a thorough and specific justification for the withholding of requested information and records.
     ......The Vaughn and Cuneo decisions mandate more than mere indexing of allegedly exempt documents. They contemplate a procedure whereby the agency resisting disclosure must present a "detailed justification . . for application of the exemption to the specific documents in dispute.

Pacific Architects and engineers. Inc. v. Renegotiation Board, supra, 505 F 2d at 385.. 1m0"
     The Court in Vaughn recognized that "it is anomalous but obviously inevitable that the party with the greatest interest in obtaining disclosure is at a loss to argue with desirable legal precision for the revelation of the concealed information The best (plaintiff) can do is to argue that the exception is very narrow and plead that the general nature of the documents and records sought make it unlikely that they contain such (exempt) information. 484 F 2d at 823-24. In order to avoid shifting the burden of proof from the agency to the citizen (or to the court on in camera inspection), the Vaughn court mandated a procedure to allow the lawsuit to proceed efficiently in the traditional adversary manner, with the burden of proof borne by the Government as the Act requires. It is that procedure, outlined in Vaughn, 484 F 2d at 826-28, which plaintiff wishes this Court to incorporate at this stage of the instant proceedings by granting this motion.
     The order sought by plaintiff would compel defendants to provide the type of information, required by Vaughn, to proceed with this lawsuit. For example, if defendants are relying on exemption (b) (7), they must bear the burden of proof on a number of points with respect to records which are claimed to fall within the exemption: (1) that each record and document is both "investigatory and complied for authorized law enforcement purposes. (2) That the records and documents were originally compiled for law enforcement. (3) That there was an actual lawful criminal investigation, progress and (4) That the information in the records and documents is in fact confidential, (5) only from a confidential source, and (6) the disclosure itself would reveal the confidential source.
     Similarly, to the extent that defendants rely upon exemption 5 they must provide a thorough explanation of how and why the records claimed to fall within the exemption are part of a pro- decisional, deliberative process. "Crucial to the decision of this (exemption 5) case is an understanding of the function of the documents in issue in the context of the administrative process which generated them. NLRB v. Sears. Roebuck & ~ 421 US 132 95 S Ct 1804, 1518. Defendants must further demonstrate that the records contain no factual matters which can be separated from deliberative materials. Environmental Protection Agency v. Mink, 410 U.S. 73, 91 (1973).
     As to those records pertaining to Plaintiff himself, Defendants should be required to state that no documents or parts thereof describes how any individual exercises rights guaranteed by the First Amendment. Or, unable to do so, Defendants should be required to state whether such information is (1) authorized by statute, (2) authorized by the Plaintiff, or (3) pertinent to and within the scope of an authorized law enforcement activity.
     In addition to such detailed justification of claimed exemptions, the Court of Appeals in Vaughn also required defendants to itemize and index the disputed records and documents so as to correlate statements in the justification with actual portions of the documents. This requirements is particularly important in a case such as the instant action where the disputed documents are substantial in number and diverse in nature. The proposed order will require defendants to correlate the statements in their justification to actual portions of the requested records. As the Court of Appeals suggested in Vaughn:
     It seems probable that some portions may fit under one exemption, while other segments tall under another, while still other segments are not exempt at all and should be disclosed. The itemization and indexing that we herein require should reflect this. Vaughn V. Rosen. supra. Upon receipt of the information mandated by Vaughn, plaintiff may be able to prepare a motion for summary judgment which would subject defendants' rationale to the "adequate adversary testing (484 F 2d at 828) which the Vaughn decision sought to encourage in Freedom of Information Act-Privacy Act cases. Moreover, this information will allow the Court "to meet the requirements of Vaughn v. Rosen that judicial determination under the FOIA be based upon a detailed record . Ash Grove Cement Co. v.FTC supra, 511 F. 2d at 817.
     The proposed order, which will enable the parties to join issue at the earliest possible date, is further warranted by the requirement that FOIA cases be "expedited in every way , 5 USC 552 (a) (4) (D). Indeed, in executing the Vaughn mandate, several judges of this Court have explicitly ordered defendants to supply plaintiffs with a detailed itemization, justification and index, and the instant motion is consistent with this procedure, E.g., Cutler V. CAB, 375 F Supp. 722, 724-25 (1974) (Gesell, J.); Robertson v. Department of Defense, Civ. NO. 74-644 (Order of Aug. 23, 1974) (Parker, J.); Owens v. Bureau of Prisons, Civ. No. 74-78 (Order of Feb. 13, 1974 and Apr 8, 1974) (Waddy, J.); Consumers Union v. ICC, Civ. No. 1859-73 (order of Dec. 18, 1973) (Corcoran, J.). The fact that defendants may not have yet answered plaintiff s complaint is irrelevant. 5 USC 552 (a) (4) (c) allows the Government thirty (30) days in which to answer an FOIA complaint, but this rule does not free the Government from responding to summary judgment motions as early as twenty (20) days after the filing of a complaint. See 6 Moore's Federal Practice, 56.07, P2092. Indeed, in Owens v. Bureau of Prisons, supra, the Court issued an order requiring the Government to submit a Vaughn showing concurrently with its response to the complaint.
     In Clarkson vs. IRS and John Henderson. District Director-GA in USD0 ND-GA #79-1650, District Judge Richard C. Freeman ruled:
"Under the FOIA, the agency must show that each document requested has been produced, is unidentifiable, or is exempt. Marx vs. US 578 F 2nd 261. The justification for the non-disclosure of information may not consist of conclusory allegations of exemption; and requires a relatively detailed analysis; correlating the documents or portions of the documents claimed to be exempt with the reason for their exemption. Cuneo vs. Schlessinger 484 F 2nd 1086. The government has not provided plaintiff with an adequate accounting of why his request is exempt from disclosure . . . Defendants are ORDERED TO RESPOND TO PLAINTIFF'S [Vaughn-Rosen] Motion within 30 days of the date of this order .
     In conclusion, Plaintiff seeks an order of this Court compelling the defendants to provide the information mandated by the law, as stated in Vaughn v. Rosen, so that plaintiff can adequately perform his adversary role as proponent of disclosure of the requested documents and records, and so that the Court can base its decision on the type of detailed records which our Court of Appeals require in FOIA cases. The order sought, on the other hand, would not significantly burden the defendants, but only require them to provide the Court and the plaintiff with information which defendants should have prepared in the court of the administrative determination of the problem at issue. Furthermore, such an order will contribute to the expedition to which FOIA cases are entitled by statute.

DATE: __________________                 _________________________
                                                                Attorney Pro Se



This is to certify that I have on this date delivered or mailed to opposing parties copies of the pleading.

DATE AND ADDRESS ABOVE             _____________________________

                                                                                     Attorney pro se



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