1

The Honorable Ralph R. Erickson, United States District Judge for the

District of North Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-2218

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Missouri Coalition for the Environment *

Foundation, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri. 

United States Army Corps of Engineers, *

*

Appellee. * 

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Submitted: January 14, 2008

Filed: September 16, 2008

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Before COLLOTON and SHEPHERD, Circuit Judges, and ERICKSON,1

 District

Judge.

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ERICKSON, District Judge.

In this action, the Missouri Coalition for the Environment Foundation (the

“Coalition”) seeks disclosure of a number of documents from the United States

Army Corps of Engineers (the “Corps”) pursuant to the Freedom of Information

Act (“FOIA”), 5 U.S.C. § 552. The district court granted summary judgment in 
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favor of the Corps on the basis that the deliberative process privilege, 5 U.S.C. §

552(b)(5), exempts all 83 documents responsive to the request. The Coalition

appeals from the judgment and we remand for further proceedings. 

I.

The Corps conducted a study of flood risk and recurrence on the Mississippi,

Missouri, and Illinois Rivers known as the Upper Mississippi River System Flow

Frequency Study (“UMRSFFS”). This study’s purpose was to identify the 100-

and 500-year flood plains. The UMRSFFS commenced in 1997 and its results

were released in 2004.

In conducting the UMRSFFS, the Corps instituted a task force to oversee

and review the study. The task force was divided into two groups – the Technical

Advisory Group (“TAG”) and the Inter-Agency Advisory Group (“IAG”). The

TAG was comprised of subject matter experts from each of the seven states

relevant to the study. The IAG similarly included subject matter experts from each

of the seven relevant states but also incorporated experts from other federal

agencies, including the Federal Emergency Management Agency, the Bureau of

Reclamation, the Tennessee Valley Authority, the National Resource Conservation

Service, the United States Geological Survey, and the National Weather Service.

On behalf of the Corps, Dr. David Goldman coordinated the IAG and TAG

consultants. During the course of the study, the TAG and IAG advised the Corps

on the methodology to use for the UMRSFFS and reviewed the Corps’ preliminary

results. These discussions and other communication took place through meetings,

written memoranda, and informally through e-mails. 
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The Coalition previously submitted a similar request in 2003, before the

UMRSFFS was fully completed, and subsequently withdrew the FOIA request in

anticipation of the later release of the information.

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 On April 25, 2005, the Coalition submitted a FOIA request to the Corps.2

The FOIA request solicited three broad categories of documents:

1. Each and every document that evidences a communication to or

from a member of the Flow Frequency Study Technical

Advisory Group, regardless of the other party to the

communication, relating to the Flow Frequency Study.

2. All agendas and minutes of meetings of the Flow Frequency

Study Technical Advisory Group.

3. Each and every document that evidences disagreement, dispute

or concern about the assumption adopted in the Flow Frequency

Study that flood flows have been “independently and

identically distributed” (aka the assumption of “stationarity”).

The Corps did not provide a written response to the FOIA request; however,

representatives from each party communicated by phone. No documents were

released pursuant to the request. Subsequently, the Coalition filed the instant case

in district court. In its answer to the Coalition’s complaint, the Corps asserted the

requested documents were subject to a FOIA exemption. 

The Corps moved for summary judgment and attached to its motion

declarations from Corps employees Thomas Minear and Dr. David Goldman and a

Vaughn index identifying 83 documents responsive to the Coalition’s FOIA

request. The Vaughn index identified each document with general distinguishing

information such as the date it was generated, the author, the addressees, and

whether the document was a memorandum, e-mail, letter, agenda, or meeting
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notes. A short description was provided for each document (e.g., “E-mail

discussing potential methodologies to be used in FFS” or “Letter discussing the

FFS analysis methods”). Finally, each and every document was identified as

privileged under FOIA Exemption 5, the Deliberative Process Privilege. The

Coalition cross-moved for summary judgment, arguing the Corps had failed to

prove that the documents were exempt from disclosure. Summary judgment was

granted in favor of the Corps.

II.

The Freedom of Information Act is intended “to provide wide-ranging

public access to government documents.” Miller v. U.S. Dep’t of Agric., 13 F.3d

260, 262 (8th Cir. 1993). The Act, which permits access “to official information

long shielded unnecessarily from public view” is therefore “broadly conceived.”

EPA v. Mink, 410 U.S. 73, 80 (1973). 

The Act itself provides nine specific statutory exemptions. 5 U.S.C. §

552(b). These are to be narrowly construed to ensure that disclosure, rather than

secrecy, remains the primary objective of the Act. Miller v. U.S. Dep’t of Agric.,

13 F.3d at 262 (citing Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)).

The Deliberative Process Privilege, FOIA Exemption 5, exempts “inter-agency or

intra-agency memorandums or letters which would not be available by law to a

party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5).

The purpose of the exemption is designed “to ensure that ‘open, frank discussions

between subordinate and chief’ will not be made impossible by the agencies having

to ‘operate in a fishbowl.’” Schwartz v. IRS, 511 F.2d 1303, 1305 (D.C. Cir. 1975)

(quoting S. Rep. 813, 89th Cong., 1st Sess. (1965)). The goal of the privilege is

clear and straightforward: to allow full and frank discussion while preserving the

goal of an open government. 
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This Court reviews a district court’s grant of summary judgment in a FOIA

case de novo. Missouri, ex rel. Garstang v. U.S. Dep’t of Interior, 297 F.3d 745,

749 (8th Cir. 2002). Our review is the same as it was for the district court: The

record is evaluated in the light most favorable to the nonmoving party to determine

whether there is no genuine issue of any material fact and the moving party is

entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Garstang, 297 F.3d at

749 (citing Miller v. U.S. Dep’t of Agric., 13 F.3d at 262). In a FOIA case,

summary judgment is available to a defendant agency where “the agency proves

that it has fully discharged its obligations under FOIA, after the underlying facts

and the inferences to be drawn from them are construed in the light most favorable

to the FOIA requester.” Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1382 (8th

Cir. 1985) (citing Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C.

Cir. 1983). 

The Coalition argues that, viewed in the light most favorable to the

Coalition, the Corps’ Vaughn index is insufficient to show whether the Corps’

obligations under FOIA were discharged. As a result, the Coalition posits, some of

the documents should have been released. Alternatively, the Coalition proposes

that even if the Vaughn index is adequate, some of the documents – in whole or in

part – are not subject to the exemption. The Corps contends that it satisfied its

FOIA obligations with an adequate Vaughn index that properly demonstrated the

documents were subject to the deliberative process privilege. 

Vaughn Indices

To help determine whether a governmental agency has discharged its burden

under FOIA, Vaughn indices may be used. Crancer v. Dep’t of Justice, 999 F.2d

1302, 1305 (8th Cir. 1993). The Vaughn court recognized the problems associated

with FOIA requests for claimed-exempt documentation, including the requesting

party’s inability to advocate its position in light of its lack of knowledge and the

court’s difficulty reviewing massive documentation. Vaughn v. Rosen, 484 F.2d
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820, 826 (D.C. Cir. 1973). Thus, Vaughn indices serve two purposes: First, to

ensure an “effectively helpless” party’s right to information “is not submerged

beneath governmental obfuscation and mischaracterization” and second, to “permit

the court system effectively and efficiently to evaluate the factual nature of

disputed information.” Id. 

This Court has held that a proper Vaughn index

provides a specific factual description of each document sought by the

FOIA requester. Specifically, such an index includes a general

description of each document’s contents, including information about

the document’s creation, such as date, time, and place. For each

document, the exemption claimed by the government is identified, and

an explanation as to why the exemption applies to the document in

question is provided.

Crancer, 999 F.2d at 1306 (internal citations and quotations omitted). Such an

index allows both the district court and the requesting party to evaluate the

decision to withhold records and ensure compliance with FOIA. Barney v. IRS,

618 F.2d 1268, 1272 (8th Cir. 1980). Here, the Vaughn index contained all

necessary identifying information and stated the applicable exemption. Although

the index itself failed to explain why the exemption applied to each document, the

affidavits provided in conjunction with the index indicated that the documents

were deliberative – involving “give-and-take,” critiques, comments, and

recommendations by members of the two groups. 

Generally, a more substantial Vaughn index – one that provides for each

document requested a specific explanation as to why an exemption applies – is

preferable to a bare bones index. Even so, in camera review of the documentation

in this case was not necessary. Barney, 618 F.2d at 1272. In Barney, we held that

“in camera inspection should be limited as it is ‘contrary to the traditional judicial

role of deciding issues in an adversarial context upon evidence openly produced in

court.’” Id. (quoting Cox v. U.S. Dep’t of Justice, 576 F.2d 1302, 1311 (8th Cir.
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1978)). If the material is fairly described and the reason for nondisclosure is

adequately stated and supported by the law, the agency’s position should be upheld

without in camera inspection. Id.

The sworn declarations from Mr. Minear and Dr. Goldman provide adequate

additional information to explain why the documents should be exempt. See

Miller v. U.S. Dep’t of State, 779 F.2d at 1387 (holding that an agency carries its

burden of proof by providing affidavits to explain why documents are subject to an

exemption). Boilerplate or conclusory affidavits, standing alone, are insufficient to

show that no genuine issue of fact exists as to the applicability of a FOIA

exemption. Miller v. U.S. Dep’t of Agric., 13 F.3d at 263. Even so, a

governmental agency can properly “conclude that open and frank intra-agency

discussion would be ‘chilled’ by public disclosure of [a document] generated as

part of the agency’s deliberative process.” Missouri, ex rel. Shorr v. U.S. Army

Corps of Engineers, 147 F.3d 708, 711 (8th Cir. 1998). 

The affidavits supplied in this case discuss the UMRSFFS process and the

nature of the communications between parties. Mr. Minear’s affidavit describes

the basis for the exemption:

These communications are exempt from disclosure under Exemption

5 because they are predecisional and part of the deliberative process.

They involve the give-and-take that is inherent in such a study

process. The documents consist of the TAG members freely

critiquing the work of the Corps and other TAG members as the TAG

worked over the years to advise the Government regarding the best

study process. Release of these documents could deter not only such

group members from speaking freely in the future, but also deter

Government agencies from empanelling such groups of experts. . . . 

(Minnear Aff. p. 3). Considering the identifying information supplied in the

Vaughn index and the additional information provided in the affidavits, we cannot

conclude that the Vaughn index was, on its face, inadequate under Crancer. 999

F.2d at 1306. 
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Deliberative Process Privilege

Whether the Vaughn index and affidavits were themselves adequate, the

Coalition argues that the Corps failed to prove it had discharged its obligations

under FOIA. The Coalition argues certain categories of documents, such as

meeting agendas and documents discussing UMRSFFS methodology or the goals

of the committees, could not reasonably be exempt under the deliberative process

privilege and should have been disclosed. 

The FOIA deliberative process privilege exempts from disclosure “interagency or intra-agency memorandums or letters which would not be available by

law to a party other than an agency in litigation with the agency.” 5 U.S.C. §

552(b)(5); Shorr, 147 F.3d at 710. The deliberative process exemption permits

nondisclosure if the document is both predecisional and deliberative. Shorr, 147

F.3d at 710 (citing Assembly of Cal. v. U.S. Dep’t of Commerce, 968 F.2d 916,

920 (9th Cir. 1992)). A predecisional document may be virtually any document

that contains personal opinions and is designed to assist agency decision-makers in

making their decisions. Assembly of Cal., 968 F.2d at 920. A document is

deliberative if its disclosure would expose the decision-making process in such a

way that candid discussion within the agency would be discouraged, undermining

the agency’s ability to perform its functions. Id. Documents need not contain only

subjective information to be exempt under the deliberative process privilege. See

Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 256 (D.C. Cir.

1977). Purely factual material may be exempted if that material would expose the

deliberative process of an agency. Id.

The Coalition raises the unlikelihood that every responsive document is

exempt under the deliberative process privilege. Initially, this argument appears

quite seductive; however, the Coalition’s FOIA request is obviously tailored to

ferret out disagreement or contradiction that arose in the process of creating the

UMRSFFS. See Barney v. IRS, 618 F.2d 1268, 1273 (8th Cir. 1980) (finding it

“apparent by the very nature of plaintiffs’ request” that documents would be
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exempt). The Coalition asked for three categories of documents: Those evidencing

communication to or from the TAG, those evidencing disagreement or dispute

about certain conclusions, and agendas and meeting minutes of the TAG. No

purely factual, objective categories of documents were requested. That these

documents could reveal the deliberative process of the TAG and IAG can be fairly

concluded from the Vaughn index and its supporting affidavits. 

The Coalition also argues that the prior release of some of the documents, in

whole or part, destroys the credibility of the index and affidavits. We are not

persuaded that the fact the UMRSFFS report was ultimately released and that some

of the information in the final report was contained in the requested documentation

affects the deliberative or predecisional nature of the requested documents. 

We therefore conclude the Vaughn index is sufficient to establish that some

of the information requested is, in fact, exempted by the deliberative process

privilege. However, because the district court failed to analyze the segregability of

the documents, we cannot conclude at this time that the privilege applied, as the

district court concluded, to all 83 responsive documents in their entirety.

Segregability

In a FOIA action, the focus is on the information sought, not the documents

themselves. Schiller v. N.L.R.B., 964 F.2d 1205, 1209 (D.C. Cir. 1992) (citing

Mead Data Cent., Inc., 566 F.2d at 260). “Any reasonably segregable portion of a

record shall be provided to any person requesting such record after deletion of the

portions which are exempt under this subsection.” 5 U.S.C. § 552(b). The

withholding of an entire document by an agency is not justifiable simply because

some of the material therein is subject to an exemption. Rugiero v. U.S. Dep’t of

Justice, 257 F.3d 534, 553 (6th Cir. 2001). Rather, non-exempt portions of

documents must be disclosed unless they are “inextricably intertwined” with

exempt portions. Mead Data Cent., Inc., 566 F.2d at 260. Effectively, each

document consists of “discrete units of information,” all of which must fall within
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a statutory exemption in order for the entire document to be withheld. Billington

v. U.S. Dep’t of Justice, 233 F.3d 581, 586 (D.C. Cir. 2000).

In every case, the district court must make an express finding on the issue of

segregability. Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007); Rugiero, 257

F.3d at 553; Church of Scientology of Cal. v. U.S. Dep’t of the Army, 611 F.2d

738, 744 (9th Cir. 1979). But cf. Becker v. IRS, 34 F.3d 398, 406 (7th Cir. 1994)

(suggesting that segregability may be presumed considered if the district court

reviews the documents in camera). The agency has the burden to show that the

exempt portions of the documents are not segregable from the non-exempt

material. Davin v. U.S. Dep’t of Justice, 60 F.3d 1043, 1052 (3d Cir. 1995). If the

agency’s justification is inadequate, the district court may require an agency to

submit a more specific affidavit. See PHE, Inc. v. U.S. Dep’t of Justice, 983 F.2d

248, 253 (D.C. Cir. 1993). The agency’s justification must be relatively detailed,

correlating specific parts of the requested documents with the basis for the

applicable exemption. Schiller, 964 F.2d at 1209-10 (citing Schwartz v. IRS, 511

F.2d 1303, 1306 (D.C. Cir. 1975) and King v. U.S. Dep’t of Justice, 830 F.2d 210,

224 (D.C. Cir. 1987)). The requisite specificity of an affidavit and the

reasonableness of segregation are dependent upon the proportion and distribution

of non-exempt information in a given document:

For example, if only ten percent of the material is non-exempt and it is

interspersed line-by-line throughout the document, an agency claim

that it is not reasonably segregable because the cost of line-by-line

analysis would be high and the result would be an essentially

meaningless set of words and phrases might be accepted. On the other

extreme, if a large proportion of the information in a document is

non-exempt, and it is distributed in logically related groupings, the

courts should require a high standard of proof for an agency claim that

the burden of separation justifies nondisclosure or that disclosure of

the non-exempt material would indirectly reveal the exempt

information.
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We offer no opinion whether the index and affidavits are sufficient to complete

the segregability analysis contemplated by this opinion. On remand, the district court

is free to conduct the analysis as it deems appropriate, be that on the record as it exists,

by requesting a more detailed index or affidavit, or, as a last resort, by conducting an

in camera review.

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Mead Data Cent., Inc., 566 F.2d at 261. Such detailed explanation and justification

should enable a district court to conduct its review in open court, preserving the

adversarial nature of the process and avoiding undesirable, in camera line-by-line

analyses. Id. at 261.

Here, the district court made no findings on the issue of segregability.

Although the issue was properly raised and preserved for appeal, we are unable to

determine from the record whether the issue was considered and rejected or not

considered at all.3

 Therefore, we must remand the case for a segregability analysis

consistent with this opinion.

III.

We remand for further proceedings. 

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