UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

RYAN NOAH SHAPIRO, 

 Plaintiff, 

 v. 

UNITED STATES DEPARTMENT OF 

JUSTICE, 

Defendant.

 No. 16-cv-1959 (DLF) 

MEMORANDUM OPINION AND ORDER 

Ryan Noah Shapiro is a Ph.D. candidate in the Department of Science, Technology, and 

Society at the Massachusetts Institute of Technology. Compl. ¶ 1, Dkt. 1. He seeks access to 

various Department of Justice documents under the Freedom of Information Act (FOIA), 5 

U.S.C. § 552. Id. ¶¶ 9–32. His request includes the “Lewis List” and related materials. See id. 

The Department relies on the Lewis List to determine whether allegations of misconduct must be 

disclosed in connection with court proceedings. Declaration of Vinay J. Jolly (“Jolly Decl.”) 

¶ 25, Dkt. 14-1. Shapiro filed this lawsuit alleging that the Department violated FOIA by 

unlawfully withholding responsive records. Compl. ¶ 34. 

Before the Court are the Department of Justice’s Motion to Dismiss or, in the Alternative, 

Motion for Summary Judgment, Dkt. 38, and Shapiro’s Cross-Motion for Summary Judgment, 

Dkt. 41. At issue on summary judgment is the Department’s basis for invoking FOIA 

Exemptions 5, 6, 7(C), and 7(F) to withhold responsive records. See Pl.’s Opp’n at 9 n.4, Dkt. 

40. Because the Department’s supporting materials lack sufficient detail to determine whether 
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the Department properly invoked these exemptions, the Court will deny both motions without 

prejudice. 

A FOIA dispute is unusual in our adversarial system. The plaintiff “faces an 

‘asymmetrical distribution of knowledge’ where the agency alone possesses, reviews, discloses, 

and withholds the subject matter of the request.” Judicial Watch, Inc. v. Food & Drug Admin., 

449 F.3d 141, 146 (D.C. Cir. 2006) (quoting King v. U.S. Dep’t of Justice, 830 F.2d 210, 218 

(D.C. Cir. 1987)). The agency meanwhile “has the difficult obligation to justify its actions 

without compromising its original withholdings by disclosing too much information.” Id.

With this balancing act in mind, the D.C. Circuit has settled on requiring the agency to 

submit the following information: The agency must “describe each document or portion thereof 

withheld.” King, 830 F.2d at 223. It must “specifically identify[] the reasons why a particular 

exemption is relevant.” Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 

(D.C. Cir. 1977). It must “correlat[e] those” claimed exemptions “with the particular part of a 

withheld document to which they apply.” Id. And “for each withholding it must discuss the 

consequences of disclosing the sought-after information.” King, 830 F.2d at 223–24. 

This set of requirements “serves three important functions that help restore a healthy 

adversarial process.” Judicial Watch, 449 F.3d at 146. First, “it forces the government to 

analyze carefully any material withheld.” Id. Second, “it enables the trial court to fulfill its duty 

of ruling on the applicability of the exemption.” Id. And third, “it enables the adversary system 

to operate by giving the requester as much information as possible” for challenging the 

withholdings in court. Id.

Form follows function, and so agencies “frequently rely on Vaughn indices” to satisfy 

these requirements. DiBacco v. U.S. Army, 795 F.3d 178, 186 n.2 (D.C. Cir. 2015). A Vaughn
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index is “a system of itemizing and indexing” that correlates the agency’s “refusal justification 

with the actual portions of the document” withheld. See Vaughn v. Rosen, 484 F.2d 820, 827 

(D.C. Cir. 1973). That said, an agency’s supporting materials can take any form so long as they 

meet all the requirements mentioned above. See Judicial Watch, 449 F.3d at 146. Here, the 

Department of Justice has opted not to submit a Vaughn index. It relies instead on seven 

supporting affidavits.1 It also has offered to provide documents for in camera review if 

necessary. See Def.’s Opp’n at 2 n.1, Dkt. 44. 

The Department’s supporting affidavits do not satisfy these requirements. To start, in 

most instances, the affidavits do not describe “each document or portion thereof withheld” in 

enough detail for the Court to evaluate the claimed exemption. King, 830 F.2d at 223. Take the 

Lewis List itself. The Tischner Declaration suggests that the list has two columns of 

information—the officer’s name and a designation such as “no record found” or “see 

supervisor.” Tischner Decl. ¶ 14–16. But the Nails Declaration suggests that the list also 

includes other “identifying information” and “AUSA notations providing the reason for the 

officer being flagged.” Nails Decl. ¶ 28. The Court cannot evaluate the justifications for 

withholding the Lewis List without more clarity about what it contains. 

There are other examples. The Department of Justice described one set of documents as 

“three emails and their attachments” contained “[o]n the U: drive [in] a folder named ‘Lewis.’” 

Nails Decl. ¶ 20. It described another set as “documents contained on the I: drive related to the

Lewis [sic] List and Lewis [sic] Committee.” Id. ¶ 21. It described one document merely as “an 

 

1 See Jolly Decl.; Declaration of Gary A. Nails (“Nails Decl.”), Dkt. 14-2; Declaration of Richard 

Tischner, Dkt. 14-3; Declaration of Assistant Chief Robert Contee, Dkt. 30-1; Second 

Declaration of Gary A. Nails, Dkt. 31-1; Second Declaration of Vinay J. Jolly (“Second Jolly 

Decl.”), Dkt. 31-2; Declaration of David M. Hardy, Dkt. 38-1. 
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Excel spreadsheet named ‘MPD Members’” that “contained the names and other identifying 

information of MPD officers.” Id. ¶ 29. And when it withheld each of former Assistant U.S. 

Attorney (AUSA) Roy McLeese’s emails that related to the Lewis List—3,199 emails in all—it 

described those emails as falling mainly into two categories. Second Jolly Decl. ¶¶ 5–6. Not 

only did the Department fail to describe the emails that fell beyond those two categories, but also 

the descriptions of the two categories themselves are “too vague and non-specific to evidence 

that [the agency] carefully analyzed all information withheld.” Budik v. Dep’t of Army, 742 F. 

Supp. 2d 20, 36 (D.D.C. 2010). The Department’s descriptions of other documents are similarly 

vague. See, e.g., Nails Decl. ¶¶ 17–30. 

The Department of Justice also has not “correlat[ed]” its claimed exemptions “with the 

particular part of a withheld document to which they apply.” Mead Data Cent., 566 F.2d at 251. 

For example, the Department “asserted Exemption 5 to protect [an] AUSA’s internal comments 

and memoranda and emails between AUSAs.” Jolly Decl. ¶ 28. It used Exemption 6 “to protect 

information pertaining to third-party individuals.” Id. ¶ 40. It invoked Exemption 7(C) to 

withhold “[a]ll of the information at issue in this matter.” Id. ¶ 32. And it applied Exemption 

7(F) “to the documents in this case in conjunction with other exemptions.” Id. ¶ 42. With 

descriptions this general, the Court cannot discern whether the Department has “claim[ed] 

exemptions too broadly, thereby sweeping unprotected information within the statute’s reach.” 

Judicial Watch, 449 F.3d at 147. 

Of course, the Department of Justice need not “treat each document individually,” and 

“codes and categories may be sufficiently particularized to carry the agency’s burden of proof.” 

Id. But the Department’s submissions do not resemble the specificity of other submissions that 

the D.C. Circuit has blessed. See id. (affirming a categorical approach when the agency coupled 
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a detailed Vaughn index with affidavits justifying the withheld categories). They resemble 

instead the “broad, sweeping, generalized claims under several exemptions covering voluminous 

information running many hundreds of pages” that “sparked the remand in Vaughn” itself. Mead 

Data Cent., 566 F.2d at 251. 

None of this is to say that the Department of Justice cannot ultimately show that its 

withholdings were proper under one or more exemptions. Nor does this opinion prevent the 

Department from explaining why in camera review might be appropriate for particular 

documents. But for now, the Court lacks “the minimal information necessary to make a 

determination” in this FOIA dispute. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 

854, 861 (D.C. Cir. 1980). The Department must therefore “identify with reasonable specificity 

the information withheld from each document,” provide “a reasonably detailed justification for 

invoking the exemption,” connect “the claimed justification with the specific information 

withheld,” Budik, 742 F. Supp. 2d at 39, and “for each withholding . . . discuss the consequences 

of disclosing the sought-after information,” King, 830 F.2d at 223–24. 

For these reasons, it is 

ORDERED that the Department of Justice’s Motion to Dismiss or, in the Alternative, 

Motion for Summary Judgment, Dkt. 38, is DENIED without prejudice. It is further 

ORDERED that Shapiro’s Cross-Motion for Summary Judgment, Dkt. 41, is DENIED 

without prejudice. It is further 

ORDERED that the Department of Justice supplement the record with a Vaughn index, 

additional affidavits, or other materials that address the deficiencies identified in this 

memorandum opinion. It is further 
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ORDERED that the parties shall confer and propose a schedule for further proceedings, 

including renewed motions for summary judgment, if necessary, on or before June 25, 2020. 

 ________________________ 

 DABNEY L. FRIEDRICH 

June 11, 2020 United States District Judge