                    UNITED STATES COURT OF APPEALS

                           FOR THE TENTH CIRCUIT



 BRENT G. POLL,

              Plaintiff-Appellant,

 v.                                                      No. 99-4021

 U.S. OFFICE OF SPECIAL
 COUNSEL,

              Defendant-Appellee.


                                       ORDER
                                Filed January 10, 2000


Before BRORBY , EBEL , and HENRY , Circuit Judges.



      This matter comes before the court on Plaintiff-appellant Brent G. Poll’s

“Motion for Clarification.” Upon consideration, the motion is denied. However,

on its own motion the panel amends the order and judgment entered on

October 14, 1999, as follows:

      1. By deleting the following sentence in the first full paragraph of section I

of the order and judgment: “Poll complained that he had been detailed to a

position for which he was not actually qualified, resulting in his reassignment to

an undesirable geographical location.”
      2. By adding the following sentence to the first paragraph of Section III of

the order and judgment (new language in bold; entire new paragraph reproduced

below as follows):

             “The FOIA allows the district court flexibility in utilizing in
      camera review of the disputed documents, indexing, oral testimony,
      detailed affidavits, or alternative procedures to determine whether
      a sufficient factual basis exists for evaluating the correctness of the
      agency determination in each case.”     Anderson , 907 F.2d at 942
      (quotation omitted). It does not appear that the district court
      conducted an in camera review of the disputed documents in this
      case. The disputed documents do not appear in the record, and
      we are therefore also unable to review them in camera.          Instead,
      the OSC submitted an affidavit from its associate special counsel,
      Erin McDonnell, identifying the two memoranda which OSC had
      withheld from Poll, and setting forth facts in support of withholding
      them.

A copy of the amended order and judgment is attached.

      The mandate shall issue forthwith.

                                               Entered for the Court
                                               PATRICK FISHER, Clerk of Court


                                               By:
                                                     Keith Nelson
                                                     Deputy Clerk




                                         -2-
                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                       UNITED STATES COURT OF APPEALS                    OCT 14 1999

                              FOR THE TENTH CIRCUIT                  PATRICK FISHER
                                                                              Clerk


    BRENT G. POLL,

                  Plaintiff-Appellant,

    v.                                                    No. 99-4021
                                                      (D.C. No. 96-CV-17)
    U.S. OFFICE OF SPECIAL                                  (D. Utah)
    COUNSEL,

                  Defendant-Appellee.




                              ORDER AND JUDGMENT          *




Before BRORBY, EBEL , and HENRY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Brent G. Poll appeals from the district court’s order granting

summary judgment in favor of the United States Office of Special Counsel (OSC)

on Poll’s complaint pursuant to the Freedom of Information Act, 5 U.S.C. § 552

(FOIA). We affirm in part, reverse in part, and remand for further proceedings.


                                          I.

      Poll is a former Management Analyst for the Department of Defense. In

August 1994 he filed a complaint with the OSC charging that he had been granted

an authorized preference or advantage in violation of 5 U.S.C. § 2302. Penney M.

Moy, a personnel management specialist with OSC, reviewed the allegations and

supporting documentation, spoke with Poll personally, and prepared a brief

written summary of the allegations and facts. Leonard M. Dribinsky, an OSC

prosecutor, later determined that the matter did not warrant further field

investigation and in July 1995, the matter was closed.

      On June 20, 1995, Poll submitted a FOIA/Privacy Act request to OSC. He

requested a copy of all OSC file numbers for 1994 and 1995 and the status of

those files. Additionally, he requested copies of all materials or records




associated with OSC file number MA-94-1974, the investigative file concerning

his complaint.

                                         -2-
      The OSC responded on November 21, 1995, by granting his request in part.

It supplied him with all of the OSC file numbers for 1994 and 1995 and the status

of those files. It also granted him access to materials contained in file number

MA-94-1974, with the exception of OSC internal memoranda and correspondence

control documents.

      On November 29, 1995, Poll undertook an administrative appeal of the

denial of the internal memoranda.   1
                                        The OSC received the appeal on December 7,

1995. By letter dated January 31, 1995, it notified Poll that there was a backlog

in processing FOIA matters and that it hoped to resolve his appeal within the next

month. On March 5, 1996, Poll filed this complaint in district court, complaining

that the OSC had failed to meet statutory time requirements for responding to his

FOIA appeal, and that it had wrongfully withheld the internal memoranda. The

complaint sought disclosure of the memoranda and payment of Poll’s costs of

bringing the action. The OSC later denied his administrative appeal on March 15,

1996. The district court ultimately agreed with the OSC that the documents were

protected from disclosure by the deliberative process, attorney work product and

law enforcement privileges of FOIA.

                                            II.




1
      Poll did not pursue the denial of the control documents in his appeal.

                                            -3-
       On appeal in a FOIA case, our initial inquiry is “whether the district court

had an adequate factual basis on which to base its decision.”      See Anderson v.

Department of Health & Human Servs.       , 907 F.2d 936, 942 (10th Cir. 1990).

Assuming this prerequisite is met, in a summary judgment case such as this one,

we next “review de novo the district court’s legal conclusions that the requested

materials are covered by the relevant FOIA exemptions.”         See Hale v. United

States Dep’t of Justice , 99 F.3d 1025, 1029 (10th Cir. 1996) (citation omitted).

As in all summary judgment cases, we examine the record and reasonable

inferences therefrom in the light most favorable to the nonmoving party.          See id.


                                           III.

       “The FOIA allows the district court flexibility in utilizing in camera review

of the disputed documents, indexing, oral testimony, detailed affidavits, or

alternative procedures to determine whether a sufficient factual basis exists for

evaluating the correctness of the agency determination in each case.”       Anderson ,

907 F.2d at 942 (quotation omitted). It does not appear that the district court

conducted an in camera review of the disputed documents in this case. The

disputed documents do not appear in the record, and we are therefore also unable

to review them in camera. Instead, the OSC submitted an affidavit from its

associate special counsel, Erin McDonnell, identifying the two memoranda which



                                            -4-
OSC had withheld from Poll, and setting forth facts in support of withholding

them.

        Where an agency relies on an affidavit to justify withholding of documents

in a FOIA case, the affidavit must be “sufficiently detailed to permit meaningful

assessment of the exemption claims.”       PHE, Inc. v. Department of Justice   , 983

F.2d 248, 252 (D.C. Cir. 1993);     see also Hale , 99 F.3d at 1030-31. The affidavit

must contain “reasonably detailed descriptions of the documents and allege facts

sufficient to establish an exemption.”     Maricopa Audubon Soc. v. United States

Forest Serv. , 108 F.3d 1089, 1092 (9th Cir. 1997). The agency must also explain

how release of the documents will frustrate the purpose of the exemption; this

explanation must be sufficiently detailed “to afford the requester an opportunity

to intelligently advocate release of the withheld documents and to afford the court

an opportunity to intelligently judge the contest.”      Weatherhead v. United States ,

157 F.3d 735, 740 (9th Cir. 1998) (quotation omitted),       cert. granted , 67 U.S.L.W.

3749 (U.S. Sept. 10, 1999) (No. 98-1904). An affidavit which merely parrots the

language of the statute and is drawn in conclusory terms is not sufficient to permit

proper review of the agency decision.      See Anderson , 907 F.2d at 942. The

affidavit need not be so detailed, however, that it effectively discloses the

information shielded by the claim of exemption.       See Hale , 99 F.3d at 1031 n.6.

        Dribinsky memorandum


                                             -5-
      The affidavit describes the first document withheld as a two-page

memorandum from Penney Moy to Leonard Dribinsky. This memorandum

“contains the author’s rendition of factors considered in a review of the merits

of Mr. Poll’s case, with a recommendation for appropriate action.” Appellee’s

App. at 65.

      OSC claims that this memorandum was properly withheld under FOIA’s

“deliberative process” privilege. FOIA exempts from disclosure documents which

a private litigant could not obtain against the agency through normal discovery

rules. See 5 U.S.C. § 552(b)(5); Grand Cent. Partnership, Inc. v. Cuomo       , 166

F.3d 473, 481 (2d Cir. 1999). This exemption encompasses the traditional

attorney-client and work-product privileges,     see id. , and also provides an

“executive ‘deliberative process’ privilege” designed to protect predecisional

internal memoranda from public disclosure,       see Maricopa Audubon Soc’y , 108

F.3d at 1092; see also NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 150 (1975).

      McDonnell advanced the following facts to support withholding the

memorandum under the deliberative process privilege.        She stated that the

memorandum contained a recommendation which was subject to two levels of

review and therefore did not reflect the OSC’s final agency decision. It was

prepared to assist the special counsel in deciding what further action to take on

the complaint. It was based on a distillation of documents and facts prepared by


                                           -6-
the complaints examiner assigned to the case. McDonnell opined that disclosure

of the memorandum “would reveal those facts the examiner thought would be

most significant for the decision-maker to have and thus would reveal the

deliberative process itself” and “would impair the expression of candid opinions

among OSC personnel and adversely affect the quality of the deliberative and pre-

decisional process within OSC.” Appellee’s App. at 67.

       “To qualify for the deliberative process privilege, a document must be both

predecisional and deliberative.”    Grand Cent. Partnership , 166 F.3d at 482. “A

document is predecisional when it is prepared in order to assist an agency

decisionmaker in arriving at his decision.”         Id. (quotation omitted). It is

deliberative when it is “actually related to the process by which policies are

formulated” and decisions are made.      See id.

       McDonnell’s affidavit supplies an adequate factual basis to support the

district court’s determination that the deliberative process privilege applied to the

Dribinsky memorandum. Moreover, we affirm the district court’s legal

conclusion that the memorandum falls within the deliberative process privilege.

That being the case, we need not consider the other two bases for withholding

disclosure advanced by OSC.




                                              -7-
       Telephone memorandum

       The affidavit identifies the second document withheld as a memorandum of

a telephone conversation between Poll and an OSC examiner, prepared by the

examiner for attorney review. This memorandum “records the author’s mental

impressions of selected relevant portions of what was stated during the telephone

conversation pertaining to Mr. Poll’s complaint.” Appellee’s App. at 70.

McDonnell opined that the document was neither a verbatim transcript nor

a comprehensive summary of the telephone conversation and that it was therefore

protected under 5 U.S.C. § 552(b)(5).

       The affidavit does not disclose which § 552(b)(5) privilege is asserted.

It does not discuss what harms could be expected to result from releasing the

document. While it is true that from the information given, the district court

could have concluded that the memorandum reflected the predecisional opinions

or impressions of its author,   see Grand Central , 166 F.3d at 482, the affidavit

presents no specific facts from which the court could further conclude that the

memorandum related to the decision-making process,       see id. Moreover, there is

no discussion of how this document fits within the work-product privilege.

       The OSC also relies on the § 552(b)(7)(C) privacy exception as to this

document. McDonnell stated that portions of the memorandum referred to

persons other than Poll, and opined that “[r]elease of the Memorandum would


                                           -8-
subject . . . individuals identified in the telephone memorandum to speculation

as well as possible harassment.” Appellee’s App. at 70. These conclusory

statements do not provide a sufficient factual basis to support withholding of the

memorandum under the privacy exception.

       “The federal agency resisting disclosure bears the burden of justifying

nondisclosure.” Audubon Soc’y v. United States Forest Serv.       , 104 F.3d 1201,

1203 (10th Cir. 1997). That burden has not been met in this instance as to the

telephone memorandum. Accordingly, we must remand for further factual

development on this issue. We note that since the OSC affidavit proved

insufficient, the district court may choose to inspect the telephone memorandum

in camera to determine whether it satisfies the relevant criteria for withholding.


                                            IV.

       Poll also appeals from the district court’s decision denying his request to

recover court costs from OSC. A district court may, in its discretion, award

reasonable attorney fees and litigation costs if the plaintiff has “substantially

prevailed” in FOIA litigation.     See 5 U.S.C. § 552(a)(4)(E). A “plaintiff has

‘substantially prevailed’ in a FOIA case if the lawsuit was reasonably necessary

and substantially caused the requested records to be released.”      See Gowan v.

United States Dep’t of Air Force    , 148 F.3d 1182, 1195 (10th Cir.),   cert. denied ,

119 S. Ct. 593 (1998). Poll has not substantially prevailed to date because he has

                                            -9-
not obtained release of the requested records. If, on remand, the district court

orders release of records or OSC discloses them as a result of this suit, the district

court may need to reconsider this issue.

      The judgment of the United States District Court for the District of Utah is

AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings in accordance with this order and judgment.    2




                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




2
       Poll also argues that the FOIA obligates OSC to respond to certain
questions he presented to it concerning the federal merit system. The district
court did not address this claim. Even if Poll adequately articulated this claim
before the district court, it lacks merit. “Under FOIA, an individual may only
obtain access to records written or transcribed to perpetuate knowledge or events.
Therefore, FOIA neither requires an agency to answer questions disguised as a
FOIA request, [nor] to create documents or opinions in response to an
individual’s request for information.”    Hudgins v. IRS , 620 F. Supp. 19, 21
(D.D.C. 1985) (quotation and citations omitted),    aff’d , 808 F.2d 137 (D.C. Cir.
1987); see also DiViaio v. Kelley , 571 F.2d 538, 542 (10th Cir. 1978) (holding
petitioner’s request to be told whether the CIA ever had photographed him or had
disseminated photographs outside of the agency was outside the scope of FOIA).

                                           -10-
