                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA


                                )
CITIZENS FOR RESPONSIBILITY     )
AND ETHICS IN WASHINGTON,       )
                                )
               Plaintiff,       )
                                ) Civil Action No. 07-2003 (EGS)
          v.                    )
                                )
U.S. DEPARTMENT OF DEFENSE,     )
DEFENSE INFORMATION SYSTEMS     )
AGENCY,                         )
                                )
               Defendant.       )
                                )


                       MEMORANDUM OPINION

     Plaintiff, Citizens for Responsibility and Ethics in

Washington (“CREW”), brings this action against the Defense

Information Systems Agency (“DISA”) of the United States

Department of Defense (“DOD”) pursuant to the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552.   Plaintiff seeks all

email communications from certain email addresses associated with

the Republican National Committee (“RNC”) that came into or went

out of any email systems maintained or controlled by the White

House Communications Agency (“WHCA”).   Pending before the Court

is Defendant’s Motion for Summary Judgment.   Upon consideration

of the motion, the response and reply thereto, the applicable

law, and the entire record, Defendant’s Motion for Summary

Judgment is GRANTED IN PART and DENIED IN PART, without

prejudice.
I.     BACKGROUND

       CREW is a non-profit corporation “committed to protecting

the right of citizens to be informed about the activities of

government officials and to ensuring the integrity of government

officials.”    Compl. ¶ 4.   In order to disseminate information

about public officials and their actions, CREW relies on

government records made available to it under FOIA.     Compl. ¶ 4.

       DISA is a combat support agency that is responsible for all

aspects of “global net-centric solutions” to serve the needs of

the President, Vice-President, Secretary of Defense, and others.

Decl. of Laurie Ann Kwiedorowicz (“Kwiedorowicz Decl.”) ¶ 2.

Among other things, DISA provides advanced information technology

support to the White House Military Office (“WHMO”) and WHCA.

Kwiedorowicz Decl. ¶ 2.      WHMO is a component of DOD and “provides

all advice and services to the President and the White House

regarding military support.”     Kwiedorowicz Decl. ¶ 3.

       WHCA, in turn, is a component of WHMO.   Kwiedorowicz Decl.

¶ 4.    WHCA provides “worldwide communications capabilities to the

President and his staff,” which includes maintaining the

“whmo.mil” internet domain and providing usernames and email

accounts ending in “whmo.mil” to DOD personnel who work in WHMO.

Kwiedorowicz Decl. ¶¶ 4-5.     While WHCA and DISA are separate

components of DOD, WHCA’s funding is provided through DISA’s




                                    2
appropriation budget and DISA manages all personnel actions of

WHCA’s military and civilian employees.      Kwiedorowicz Decl. ¶ 6.

     In a letter dated May 3, 2007, CREW submitted a FOIA request

to DISA for certain records maintained by WHCA and sought

expedited processing of that request.       See Compl. Ex. 1, Pl.’s

FOIA Request at 1, 3.   Specifically, CREW requested “[a]ny and

all emails that came into or went out of any email system

maintained or controlled by WHCA between January 1, 2001 and the

present that were from or to the following email addresses: (1)

gwb43.com; (2) rnchq.org and (3) georgebush.com.”1      Def.’s

Statement of Material Facts (“SMF”) ¶ 1; Pl.’s FOIA Request at 1.

DISA acknowledged receipt of the request on May 8, 2007, but

advised CREW that, due to a backlog of FOIA requests and limited

resources, DISA would be unable to comply with the statutory time

requirement for processing CREW’s request.      Compl. Ex. 2, Letter

from DISA to CREW (May 8, 2007).       DISA estimated, however, that

CREW’s request would be processed and completed within 90 days.

After more than six months elapsed without a response from DISA,

CREW filed the instant action on November 6, 2007, seeking to

compel DISA to comply with CREW’s FOIA request.      Compl. ¶¶ 2, 23.



1
     CREW also sought Karl Rove’s telephone logs, but those phone
logs are no longer at issue in this case. See Def.’s SMF ¶ 2
(“As agreed by the parties, DISA’s search for telephone logs is
not at issue in this case.”); Pl.’s Opp’n Br. at 1 n.1
(“[P]laintiff is not pursuing the telephone log portion of the
request.”).

                                   3
     Following the commencement of CREW’s lawsuit, the parties

agreed on a schedule for processing CREW’s request.      See Docket

No. 8, Third Meet and Confer Statement ¶ 2 (Apr. 2, 2008).

Pursuant to this agreement, DISA identified and produced

thousands of pages of potentially responsive emails, although

some communications were redacted or withheld pursuant to FOIA

Exemptions 2, 5, and 6.     See Docket No. 10, Def.’s Status Report

at 1 (May 5, 2008); Docket No. 11, Def.’s Status Report at 1

(June 2, 2008).   The parties conferred further and determined

that the only remaining issues were CREW’s challenges to “(1)

defendant’s search for responsive documents; (2) defendant’s use

of FOIA Exemption 5; and (3) defendant’s redactions of some

individuals’ names and email addresses.”     Docket No. 14, Parties’

Joint Status Report and Request for Briefing Schedule at 1 (Aug.

8, 2008).   On November 14, 2008, defendant filed its motion for

summary judgment on these issues.      Based on information provided

in defendant’s motion for summary judgment, CREW conceded the

propriety of DISA’s redactions under FOIA Exemptions 2 and 6.

See Pl.’s Opp’n Br. at 1.    Accordingly, the only issues remaining

before the Court are (i) the reasonableness of DISA’s search, and

(ii) the application of the deliberative process privilege - FOIA

Exemption 5.2   See Def.’s Reply Br. at 1.

2
     Defendant had also asserted the presidential communications
privilege with respect to a communication identified in Group 10.
See Def.’s Vaughn Index. In its reply brief, however, defendant
indicates that it made a discretionary release of that

                                   4
II.   STANDARD OF REVIEW

      A.     Rule 56

      Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted only if the moving party has shown

that there are no genuine issues of material fact and that the

moving party is entitled to judgment as a matter of law.     Fed. R.

Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986);

Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir.

2002).     In determining whether a genuine issue of material fact

exists, the Court must view all facts in the light most favorable

to the non-moving party.     See Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).     When reviewing a

motion for summary judgment in a FOIA matter, the Court reviews

the agency’s decision de novo.     Assassination Archives and

Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003).

      B.     FOIA

      FOIA provides a “statutory right of public access to

documents and records” held by federal government agencies.

Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982).     “The

central purpose of FOIA is to ‘open[] up the workings of

government to public scrutiny’ through the disclosure of

government records.” Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir.

communication. Def.’s Reply Br. at 1 n.1. Accordingly, “the
only withholdings still in dispute are those made pursuant to the
deliberative process privilege.” Def.’s Reply Br. at 1 n.1.

                                   5
1984) (quoting McGehee v. CIA, 697 F.2d 1095, 1108 (D.C. Cir.

1983)).   Accordingly, FOIA requires agencies of the federal

government to release requested records to the public unless the

documents fall within one or more of nine specific statutory

exemptions.   5 U.S.C. § 552; see Burka v. U.S. Dep’t of Health

and Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996) (“Because

FOIA establishes a strong presumption in favor of disclosure,

requested material must be disclosed unless it falls squarely

within one of the nine exemptions carved out in the Act.”

(internal citation omitted)).   These statutory exemptions must be

narrowly construed in favor of disclosure.     Dep't of the Air

Force v. Rose, 425 U.S. 352, 361 (1976).     The government bears

the burden of justifying the withholding of any requested

documents through agency affidavits, an index of withheld

documents, or both.   U.S. Dep't of State v. Ray, 502 U.S. 164,

173 (1991); Coastal States Gas Corp. v. DOE, 617 F.2d 854, 861

(D.C. Cir. 1980).

     “In a FOIA case, the Court may award summary judgment solely

on the basis of information provided in affidavits or

declarations when the affidavits or declarations are relatively

detailed and non-conclusory, and describe the documents and the

justifications for nondisclosure with reasonably specific detail,

demonstrate that the information withheld logically falls within

the claimed exemption, and are not controverted by either


                                 6
contrary evidence in the record nor by evidence of agency bad

faith.”    Defenders of Wildlife v. U.S. Border Patrol, 623 F.

Supp. 2d 83, 87 (D.C. Cir. 2009) (internal citations and

quotations omitted).

III. ANALYSIS

     A.     Adequacy of Defendant’s Search

     To prevail on a motion for summary judgment in a FOIA case,

an agency must show “beyond material doubt . . . that it has

conducted a search reasonably calculated to uncover all relevant

documents.”     Weisberg v. Dep’t of Justice, 705 F.2d 1344, 1351

(D.C. Cir. 1983); see also Defenders of Wildlife, 623 F. Supp. 2d

at 91 (“The agency bears the burden of showing that its search

was calculated to uncover all relevant documents.”).    Because the

agency is the possessor of the records and is responsible for

conducting the search, the Court may rely on “[a] reasonably

detailed affidavit, setting forth the search terms and the type

of search performed, and averring that all files likely to

contain responsive materials (if such records exist) were

searched.”    Valencia-Lucena v. U.S. Coast Guard, FOIA/PA Records

Mgmt., 180 F.3d 321, 326 (D.C. Cir. 1999) (citing Oglesby v. U.S.

Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)).     The

adequacy of an agency’s search is measured by a “standard of

reasonableness” and is “dependent upon the circumstances of the

case.”    Weisberg, 705 F.2d at 1351.   If the record leaves


                                   7
“‘substantial doubt as to the sufficiency of the search, summary

judgment for the agency is not proper.’”     Kowalczyk v. Dep't of

Justice, 73 F.3d 386, 388 (D.C. Cir. 1996) (quoting Truitt v.

Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)).

     Plaintiff’s FOIA request sought all emails that came into or

went out of any email systems maintained or controlled by the

WHCA between January 1, 2001 and the present that contained the

following email addresses: gwb43.com, rnchq.org, and

georgebush.com.   Compl. ¶ 19.   After receiving the request,

personnel at WHCA searched “(1) all ‘active’ emails of current

users of the ‘whmo.mil’ email domain (e.g., emails in the user’s

Inbox, Sent Items, and Deleted Items), and (2) all ‘archived’

emails3 of former account users.”     Kwiedorowicz Decl. ¶ 12.

Using an electronic keyword search, any active or archived emails

containing the terms “gwb43.com,” “rnchq.org,” or

“georgebush.com” in the “to,” “from,” “cc,” “bcc,” “subject,” or

message field were identified for further review along with any

attachments to the emails.   Kwiedorowicz Decl. ¶ 13.

Approximately 3776 pages of potentially responsive materials were

identified, of which 2301 were produced to plaintiff.

Kwiedorowicz Decl. ¶ 14.   WHCA dedicated approximately 365 man-

hours to complete this search.    Kwiedorowicz Decl. ¶ 14.



3
     WHCA started archiving emails of former account users in
October 2005. Kwiedorowicz Decl. ¶ 12.

                                  8
     CREW argues that defendant has failed to establish that it

conducted a reasonable search because defendant (i) searched only

the unclassified “whmo.mil” email domain, Pl.’s Opp’n Br. at 4,

and (ii) failed to search or otherwise account for emails pre-

dating October 2005.   Pl.’s Opp’n Br. at 5.     The Court will

address both arguments in turn.

     First, with regard to the classified emails, defendant

explains that it limited its search to the “whmo.mil” domain

because it is “the only unclassified email domain maintained or

controlled by WHCA.”   Kwiedorowicz Decl. ¶ 12 (emphasis added).

The emphasis on “unclassified” is important because “WHCA’s

classified email system does not permit a user of that system to

send emails to or receive emails from an unclassified email

system.”   Decl. of Benjamin Pauwels (“Pauwels Decl.”) ¶ 2.       It

therefore would have been impossible for any of the RNC-related

communications requested by plaintiff to be transmitted through

WHCA’s classified email system.       See Pauwels Decl. ¶ 2 (“[I]t is

impossible for emails to be sent from a WHCA classified email

system to an unclassified email system, such as georgebush.com;

rnchq.org; and gwb43.com.   Likewise, it is impossible for emails

to be received by a WHCA classified email system from an

unclassified email system, such as georgebush.com; rnchq.org; and

gwb43.com.”).   In other words, as the only unclassified email

domain maintained or controlled by WHCA, “whmo.mil” is the only


                                  9
email system “capable of sending an email to or receiving an

email from unclassified email addresses, such as georgebush.com;

rnchq.org; and gwb43.com.”   Pauwels Decl. ¶ 2.   Because no other

email domains maintained or controlled by WHCA could contain

potentially responsive emails, the Court concludes that WHCA’s

decision to limit its search to the unclassified “whmo.mil” email

domain was reasonable.

     Plaintiff next argues that defendant’s search was inadequate

because “defendant failed to search or otherwise account for

email predating October 2005.”   Pl.’s Opp’n Br. at 5.   This

argument is based on the fact that WHCA did not begin archiving

emails of former account users until October 2005.    See

Kwiedorowicz Decl. ¶ 12.   Defendant contends that its search was

reasonable because all active and archived emails were searched

regardless of the email’s date of creation, see Pauwels Decl. ¶ 3

(“No date restrictions were employed in WHCA’s search for

responsive documents.”), and that, as a result, numerous emails

were produced to plaintiff that were sent or received before

October 2005.   Pl.’s Opp’n Br. at 3; see also Def.’s Ex. N

(sampling emails predating October 2005 that were produced to

plaintiff); Kwiedorowicz Decl. ¶ 12 (“While the archived .PST

folders were created as early as October 2005, the actual emails

that were archived would in some instances date back prior to

October 2005.”).


                                 10
     While the Court concludes that this evidence is sufficient

to establish the reasonableness of defendant’s electronic search

for documents predating October 2005, defendant has failed to

adequately respond to plaintiff’s contention that “to the extent

[emails pre-dating October 2005] are no longer maintained

electronically, defendant [is] required to search for paper

copies of the emails.”   Pl.’s Opp’n Br. at 5.   Rather than

address plaintiff’s underlying concerns regarding the adequacy of

the department’s search for these documents, defendant vaguely

protests that it is “mere speculation” that additional emails

predating October 2005 were preserved in paper form.    See Def.’s

Reply Br. at 4 (“The mere speculation that some additional

responsive emails may not have been preserved electronically, and

the further speculation that these emails would have been

preserved in paper form, cannot support requiring the agency to

engage in a burdensome and fruitless search through its hard copy

files.”).   The Court finds defendant’s response unpersuasive in

light of its failure to aver “that all files likely to contain

responsive materials . . . were searched.”    Valencia-Lucena, 180

F.3d at 326; see also Oglesby, 920 F.2d at 68 (“It is not clear

from State’s affidavit that the Central Records system is the

only possible place that responsive records are likely to be

located.    At the very least, State was required to explain in its

affidavit that no other record system was likely to produce


                                 11
responsive documents.”).   Accordingly, the Court concludes that

defendant has failed to demonstrate “beyond material doubt” that

its search with regard to emails predating October 2005 was

“reasonably calculated to uncover all relevant documents.”

Weisberg, 705 F.2d at 1351.

     For these reasons, the Court GRANTS defendant’s motion for

summary judgment as to the adequacy of its search for emails from

October 2005 to the present, and DENIES without prejudice

defendant’s motion for summary judgment as to emails pre-dating

October 2005, recognizing that defendant’s searches may have been

adequate and may only suffer from a lack of documentation.

     B.   Defendant’s Withholdings Pursuant to the Deliberative
          Process Privilege

     Exemption 5 of FOIA permits an agency to withhold “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).   This provision applies

to all documents which are normally privileged from discovery.

See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975).

While Exemption 5 should be construed as narrowly as possible,

see Coastal States, 617 F.2d at 868, the “deliberative process”

privilege falls squarely within this exemption.    See Senate of

Puerto Rico v. Dep’t of Justice, 823 F.2d 574, 584-85 (D.C. Cir.

1987).


                                12
     The deliberative process privilege may be invoked by an

agency upon the showing that the communication in question is

both predecisional and deliberative.     Mapother v. Dep’t of

Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993) (citing Petroleum

Info. Corp. v. Dep’t of the Interior, 976 F.2d 1429, 1434 (D.C.

Cir. 1992)).   A decision will be considered predecisional if “it

was generated before the adoption of an agency policy.”     Coastal

States, 617 F.2d at 866.    Deliberative communications are those

“reflecting advisory opinions, recommendations and deliberations

comprising part of a process by which governmental decisions and

policies are formulated.”    Sears, Roebuck & Co., 421 U.S. at 150.

Documents protected by the deliberative process privilege are

those which would prematurely reveal the personal opinions of the

author or the views of the agency on a decision not yet finalized

at the time the document was created.     See Coastal States, 617

F.2d at 866.

     The rationale behind the deliberative process privilege is

that public disclosure would prevent “the full and frank exchange

of ideas” from “flow[ing] freely.”     Mead Data Cent. v. Dep’t of

the Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977).    The privilege

serves to assure agency employees that they can provide a

decisionmaker with their uninhibited opinion without fear of

public scrutiny, to prevent premature disclosure of proposed

policies, and to protect against public confusion through the


                                 13
disclosure of a document advocating or discussing reasons for

policy decisions that were ultimately not adopted.     See Am.

Petroleum Inst. v. EPA, 846 F. Supp. 83, 88 (D.D.C. 1994).

     In this case, defendant has withheld information in Groups

1-17 of its Vaughn index under the deliberative process

privilege.     See generally Def.’s Ex. M, Def.’s Vaughn Index.

Plaintiff argues that defendant’s Vaughn index reveals that many

of these alleged deliberative processes are not the type of pre-

decisional discussions that merit protection under the privilege.

CREW identifies “three broad categories of information” that were

improperly withheld by defendant pursuant to Exemption Five: (i)

discussions about decisions already made; (ii) discussions not

concerning any policy matter; and (iii) non-deliberative

discussions.     See Pl.’s Opp’n Br. at 6-7.

          i.      Documents Discussing Decisions Already Made

     First, plaintiff challenges defendant’s withholding of

documents in Groups 3 and 5 of defendant’s Vaughn index.        Pl.’s

Opp’n Br. at 6.4    Group 3 consists of an “[e]mail chain among

White House and DoD personnel discussing response to a request

for a replacement medal for soldier, including who has the

authority to issue the replacement medal.”     Def.’s Vaughn Index.

Group 5 consists of a “[d]iscussion among White House personnel

4
     Although plaintiff identifies Groups 3 and 5 as “examples,”
the Court is unable to find any other group of documents in
defendant’s Vaughn index that would fall under this category.

                                  14
regarding procedures that must be followed prior to allowing

governor’s plane to land at Andrews Air Force Base.”     Def.’s

Vaughn Index.    Plaintiff argues that both withholdings “discuss a

decision that already has been made” and are therefore not

predecisional.    Pl.’s Opp’n Br. at 6.   Plaintiff notes that the

policy for replacing military medals is “well known and easily

available on the internet, and was not going to be changed by the

discussion of the withheld material.”     Pl.’s Opp’n Br. at 6.

Similarly, plaintiff remarks that the procedures needed to land

the plane were already set, and “discussion of how to meet the

procedures to land the plane at Andrews Air Force Base is

factual” and therefore unprotected.    Pl.’s Opp’n Br. at 6 (citing

Coastal States, 617 F.2d at 867).

     In response to these assertions, defendant filed the

Supplemental Declaration of Laurie Kwiedorowicz (“Kwiedorowicz

Suppl. Decl.”).    Kwiedorowicz clarifies that, in Group 5, White

House officials were discussing how to respond to a “request by a

governor to land his plane at Andrews Air Force Base, including

whether to accede to the governor’s request.”     Kwiedorowicz

Suppl. Decl. ¶ 5.    Kwiedorowicz also explains that the

communication in Group 3 discusses “how to respond to a request

for replacing a Presidential coin,” noting that “[n]o policy for

replacing the Presidential coin appears to have been

established.”    Kwiedorowicz Suppl. Decl. ¶ 6; see also Def.’s


                                 15
Reply Br. at 11 (explaining that “the decision in question was

whether a replacement coin would be made available to the

soldier, not what procedures would be established for future

requests”).

     The Court is persuaded by defendant’s supplemental

submission.   Both of the discussions in Groups 3 and 5 relate to

future decisions and involve deliberation about the outcome of

those decisions.   Accordingly, the Court finds that defendant’s

invocation of the deliberative process privilege with respect to

the withheld materials was proper, and GRANTS summary judgment

for defendant as to Groups 3 and 5.

          ii.   Documents Not Concerning Agency Policy Matter

     Next, plaintiff challenges defendant’s withholding of

documents in Groups 2, 8-10, and 13-17, arguing that those groups

“concern discussions about things that may be predecisional, but

do not concern any agency policy matter.”   Pl.’s Opp’n Br. at 7.

Citing Jordan v. Department of Justice, 591 F.2d 753, 774 (D.C.

Cir. 1978), plaintiff argues that “[t]he deliberative process

privilege only protects predecisional matters made before the

adoption of agency policy.”   Pl.’s Opp’n Br. at 7.   Plaintiff

also relies on New York Times v. Department of Defense, 499 F.

Supp. 2d 501 (S.D.N.Y. 2007), which held that “talking points and

the formulation of responses to possible questions” used by the

Attorney General to respond to press inquiries were “routine


                                16
operating decision[s] rather than . . . policy oriented

judgment[s] to which the privilege would apply.”     Id. at 514.   To

the extent plaintiff correctly characterizes the law, the facts

in this case support summary judgment in favor of defendant.

     For example, defendant describes the withheld material in

Group 2 as a “[d]iscussion among White House and WHMO personnel

regarding which family members of wounded soldiers should be

included for an upcoming Presidential visit.”   Def.’s Vaughn

Index.    The Court concludes that this discussion is predecisional

because it concerns a decision on how to allocate limited

Executive Branch resources, which is certainly a matter of agency

policy.   The Court also agrees with defendant that requiring

disclosure of sensitive issues, such as deciding which family

members of wounded soldiers will be able to meet with the

President, may chill candid discussion among the President’s

advisors.    See Dep’t of the Interior v. Klamath Water Users Prot.

Ass’n, 532 U.S. 1, 8-9 (2001) (“The deliberative process

privilege rests on the obvious realization that officials will

not communicate candidly among themselves if each remark is a

potential item of discovery and front page news . . . .”).    A

similar analysis supports defendant’s withholdings in Groups 8-10

and 13-17.   Thus, defendant’s motion for summary judgment is

GRANTED with respect to Groups 2, 8-10, and 13-17.




                                 17
          iii. Documents of a Non-Deliberative Nature

     Finally, plaintiff challenges the withholding of

communications in Groups 6 and 11, arguing that they “fail to

even describe a pre-decisional deliberation of any kind.”    Pl.’s

Opp’n Br. at 7-8.   Defendant’s Vaughn index describes the

withheld information in Group 6 as a “[d]iscussion among White

House and DOD personnel discussing various aspects of upcoming

meetings,” and Group 11 is described as a “[d]iscussion among

White House personnel relating to upcoming meeting with the

President.”   The Supplemental Declaration of Laurie Kwiedorowicz

clarifies, however, that the communication identified in Group 6

“contains a discussion of a decision that must be made before the

meeting takes place regarding which briefing materials will be

used in the meeting.”   Kwiedorowicz Suppl. Decl. ¶ 7.   Persuaded

that the supplemental declaration adequately describes a

predecisional deliberation, the Court concludes that the

information in Group 6 was properly withheld under the

deliberative process privilege.

     Defendant has failed, however, to provide a similar

clarification for the communication in Group 11.   Given the

similar descriptions of Groups 6 and 11, and in light of the

government’s subsequent clarification of Group 6, the Court notes

the possibility that defendant may have simply overlooked the

need to clarify Group 11’s predecisional deliberation.


                                  18
Accordingly, the Court will deny summary judgment on Group 11,

without prejudice, to provide defendant the opportunity to submit

a supplemental declaration.

      Accordingly, defendant’s motion for summary judgment is

GRANTED with respect to Group 6 and DENIED, without prejudice,

with respect to Group 11.

           iv.     Residual Groups

      Plaintiff did not raise any objections to Groups 1, 4, 7,

and 12.   Defendant’s description of the redacted material

indicates that all of the groups involve communication that is

both predecisional and deliberative.      Therefore, summary judgment

for defendant is GRANTED with respect to Groups 1, 4, 7, and 12.

IV.   CONCLUSION

      Defendant’s Motion for Summary Judgment as to the adequacy

of its search is GRANTED as to communications from October 2005

to the present and is DENIED, without prejudice, as to

communications preceding October 2005.     Defendant’s Motion for

Summary judgment is GRANTED with respect to Groups 1-10 and 12-17

of defendant’s Vaughn index.     Defendant’s motion is DENIED,

without prejudice, with respect to Group 11.     An appropriate

Order accompanies this Memorandum Opinion.

Signed:    EMMET G. SULLIVAN
           UNITES STATES DISTRICT JUDGE
           September 29, 2009



                                     19
