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United States District Court, Northern District of Illinois, E.D

May 18, 1983


The opinion of the court was delivered by: Shadur, District Judge.


Juozas Kacilauskas ("Kacilauskas") sues the Immigration and Naturalization Service of the Department of Justice ("DOJ") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 ("Section 552")*fn1 and the Privacy Act, Section 552a. Kacilauskas seeks compelled production of any INS records concerning him.

Kacilauskas now moves for an order requiring DOJ to prepare what has been known as a Vaughn index*fn2 — a comprehensive itemization of each document (or "manageable" subdivisions thereof), cross-referenced to the government's detailed justification for invoking one (or more) of FOIA's nine exemptions to disclosure. For the reasons stated in this memorandum opinion and order, Kacilauskas' motion is denied.


DOJ's Office of Special Investigations ("OSI") has been investigating whether Kacilauskas, a permanent United States resident, participated in the Nazi persecutions during World War II. If that inquiry substantiates his undisclosed complicity in such Nazi activities, DOJ could take legal action to deport Kacilauskas.

After learning of the pending investigation some time in 1981, Kacilauskas asked DOJ for access to all agency records pertaining to him. On January 10, 1982 DOJ informed him:

    1. All materials sought were compiled in the course
  of the OSI investigation, and their disclosure would
  impede that ongoing investigation as well as any
  future deportation proceedings.

    2. Accordingly the materials were exempted from
  release under Section 552(b)(7)(A) ("Exemption
  7(A)"), which protects "investigatory records
  compiled for law enforcement purposes, but only to
  the extent that the production of such records would
  (A) interfere with enforcement proceedings. . . ."

On May 7 Kacilauskas' counsel wrote formally reiterating the document request. On May 27 DOJ advised the request had been forwarded to its New York office. No other response was given within the time limit presented by Section 552(a)(6)(A)(i). Kacilauskas has therefore exhausted his administrative remedies pursuant to Section 552(a)(6)(C).

Motion for Vaughn Index

To justify nondisclosure of records under Exemption 7(A) the government must show:

    1. Those records were compiled for law enforcement

    2. Their revelation would jeopardize law
  enforcement proceedings.

Kacilauskas concedes satisfaction of the first criterion but vigorously denies disclosure would hamper either the OSI investigation or any resulting deportation proceedings. Instead Kacilauskas urges he would be unduly handicapped in rebutting DOJ's claim of interference without access to a Vaughn index that (1) describes the factual nature of each document and (2) explains why disclosure (in each instance) would impair any law enforcement proceeding.

DOJ retorts that divulging the sort of detailed information specified by Vaughn would compromise its investigation of Kacilauskas. In addition it contends claims under Exemption 7(A), in contrast to other FOIA exemptions, do not require analysis of individual documents but can be resolved instead by a generic assessment of the type of proceeding involved and the type of records sought.

In lieu of a Vaughn index, DOJ has furnished a category index of the withheld documents:

(a) memoranda of interviews with third parties;

    (b) requests for investigation and responses

    (c) records and information received from third
  parties relative to the plaintiff and the allegations
  against him;

(d) sworn statements of third parties;

    (e) correspondence from or on behalf of the
  Department of Justice to third parties concerning
  requests for records, documents and information
  relative to

  the plaintiff and the allegations against him;

    (f) internal correspondence among components of the
  Department of Justice concerning the scope, direction
  and progress of the investigation of allegations
  against the plaintiff, including recommended courses
  of action;

    (g) memoranda and other internal writings
  transmitting documents, reports, memoranda of
  interviews and other investigative materials within
  the Department of Justice;

    (h) historical and other research relative to the
  allegations against the plaintiff;

(i) work product consisting of:

    (1) notes and other documents analyzing evidence
    and other information developed and received during
    the investigation;

    (2) reports of investigation and other internal
    memoranda which relate to the scope and direction
    of the investigation and reveal the strengths and
    weaknesses of the government's case;

    (j) Application for Immigrant Visa and Alien
  Registration, including related documents incident to
  and incorporated in plaintiff's visa

DOJ insists such generic information suffices to uphold its invocation of Exemption 7(A).*fn4

Kacilauskas' motion effectively asks this Court to determine how particularized DOJ's factual showing must be to discharge its burden of proving "interference." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 241, 98 S.Ct. 2311, 2326, 57 L.Ed.2d 159 (1978) is definitive on that score:

  [D]isclosure . . . would constitute an "interference"
  with . . . enforcement proceedings [if] a party
  litigant [receives] earlier and greater access to the
  [government's] case than he would otherwise have.

Robbins also declared the Exemption 7(A) inquiry could be undertaken on a generic basis, obviating any need to examine individual documents or to predict the actual impact of disclosure on the specific proceeding at hand (437 U.S. at 236, 98 S.Ct. at 2323-24, emphasis added):

  Congress did not intend to prevent the federal courts
  from determining that, with respect to particular
  kinds of enforcement proceedings, disclosure of
  particular kinds of investigatory records while a
  case is pending would generally "interfere with
  enforcement proceedings."

Except for Stephenson v. IRS, 629 F.2d 1140 (5th Cir. 1980), all post-Robbins district and appellate court decisions have heeded the Supreme Court's teachings. They have upheld Exemption 7(A) claims on a showing that disclosure of the type of materials at issue would generally disrupt the type of proceeding involved. Thus their Exemption 7(A) determinations have focused on the type of records involved rather than their individual content. See, e.g., Campbell v. Department of Health & Human Services, 682 F.2d 256, 262-64 (D.C.Cir. 1982); Barney v. IRS, 618 F.2d 1268, 1273 (8th Cir. 1980); OKC Corp. v. Williams, 489 F. Supp. 576, 584 (N.D.Tex. 1980); Grabinski v. IRS, 478 F. Supp. 486, 487-88 (E.D.Mo. 1979); Parker/Hunter, Inc. v. SEC, [1981 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 98,279, at 91,777-78 (D.D.C. 1981) (noting its earlier denial of a Vaughn motion on the strength of Robbins and Barney); Steinberg v. IRS, 463 F. Supp. 1272, 1273 (S.D.Fla. 1979).

Because Robbins is so unequivocal, this Court will flow with the judicial tide rather than the Stephenson undertow.*fn5 It will eschew any document-by-document evaluation of DOJ's Exemption 7(A) claim.

Having thus subscribed to the generic approach to Exemption 7(A) analysis, this Court sees no value — and potential harm — in compelling DOJ preparation of a Vaughn index. Its document-specific information would create the very risks Exemption 7(A) was intended to guard against.


Kacilauskas' motion for a Vaughn index is denied. Because counsel for both parties have stated in open court (when this opinion was announced orally) that this ruling was dispositive of the entire matter, this action is dismissed with prejudice.

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