Case 1:05-cv-00806-RMC Document 9 Filed 11/07/2005 Page 1 of 20

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON, )
)
Plaintiff, ) No. 1:05cv00806 RMC
)
v. )
)
NATIONAL INDIAN GAMING COMMISSION, )
)
Defendant. )
)

DEFENDANT’S REPLY IN SUPPORT OF SUMMARY JUDGMENT

Plaintiff’s opposition brief (“Pl. Br.”) is built on the faulty premise that because the

National Indian Gaming Commission (“NIGC”) regulates Indian gaming it must have more

documents than its already adequate search revealed. As discussed below, Plaintiff

misapprehends the NIGC’s role, which leads Plaintiff to expect more documents than there are.

Given the nationwide search of numerous offices using Plaintiff’s own request as the framework

for the search, and given the presumption of good faith afforded to the declarations, there is no

genuine issue of material fact with respect to the adequacy of NIGC’s search. A supplemental

search, conducted in an abundance of caution, and the attached supplemental declaration confirm

the adequacy of NIGC’s search. Furthermore, the substance of NIGC’s declarations and Vaughn

index are more than sufficient under existing case law to establish that the NIGC properly

invoked FOIA Exemptions 5, 6, 7(A), 7(C), and 7(D) and withheld documents under those

exemptions. The Court should therefore grant NIGC’s motion for summary judgment in full.

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I. NIGC Conducted an Adequate Search for Responsive Documents While Plaintiff’s

Conjecture that More Documents Must Exist Is Founded on Mistaken Premises

Plaintiff contends that NIGC’s FOIA response is “noteworthy” because of the “scant”

amount of responsive documents located. Pl. Br. at 1. Indeed, despite NIGC’s discovery of 280

pages of responsive documents following a nation-wide search for documents from numerous

NIGC offices, plaintiff alleges the search was inadequate. Pl. Br. at 6-10. The contrary is true.

First, NIGC submitted declarations, to be afforded a presumption of good faith, establishing that

the search was adequate under the settled law in this circuit.1 Second, Plaintiff’s surmise that

more documents must exist is built on a faulty foundation – a misapprehension of NIGC’s role in

Indian gaming.

A. NIGC’s Search Was Clearly Adequate Under the Case Law

“To conduct an adequate search, the agency must search for documents in good faith,

using methods that are reasonably expected to produce the information requested.” Campaign

for Responsible Transplantation v. FDA, 219 F. Supp. 2d 106, 110 (D.D.C. 2002) (citation

omitted). Because Plaintiff questions the adequacy of NIGC’s search, the factual question before

the Court is “whether the search was reasonably calculated to discover the requested documents,

not whether it actually uncovered every document extant.” Safecard Servs., Inc. v. SEC, 926

F.2d 1197, 1201 (D.C. Cir. 1991). NIGC satisfied its burden to demonstrate an adequate search.

The original and supplemental McCoy declarations, which describe the search, are relatively

1
Although the initial search was adequate, in an abundance of caution, NIGC conducted
a limited supplemental search that uncovered only two additional documents (both emails). See
Supplemental Declaration of Regina Ann McCoy (“Supp. McCoy Decl.”) at ¶ 10 (dated Nov. 4,
2005), attached hereto as Exhibit 1. However, the mere discovery of additional documents in a
second search does not render the original search inadequate. Grand Central Partnership, Inc. v.
Cuomo, 166 F.3d 473, 489 (2d Cir. 1999) (citing SafeCard, 926 F.2d at 1201).

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detailed and non-conclusory, and are submitted in good faith. Id. at 1200 (citing Ground Saucer

Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). The supplemental McCoy declaration,

which further describes the original search and the supplemental search, confirms that NIGC’s

original search was clearly adequate. See Supp. McCoy Decl. ¶¶ 6-11. The McCoy declarations

provide sufficient basic information to the Court to determine the manner and means of the

search and evaluate its reasonableness. See Gallace v. Dep’t of Agriculture, 273 F. Supp. 2d 53,

60 (D.D.C. 2003) (Collyer, J.) (“The affidavit[] need not ‘set forth with meticulous

documentation the details of an epic search for the requested records.’”) (quoting Perry v. Block,

684 F.2d 121, 127 (D.C. Cir. 1982)); Schrecker v. DOJ, 217 F. Supp. 2d 29, 33 (D.D.C. 2002)

(“An agency’s affidavit[] need not be precise but [it] must provide basic information on what

records were searched, by whom, and in what manner”).

The McCoy supplemental declaration, for instance, provides the Court with what

information her “search taskers” identified and what search terms were sent out. See Supp.

McCoy Decl. ¶ 6. Indeed, “[e]ach search request had the Sloan request letter appended to it.” Id.

This confirms the original McCoy declaration, which notes that the “search taskers for the

information sought” were prepared specifically using Plaintiff’s FOIA request. McCoy Decl. ¶

13, 16-17. Further, the original McCoy declaration clearly explains that NIGC conducted a wide

ranging search of multiple offices at its Headquarters. See McCoy Decl. ¶ 17 (stating that search

taskers described above were sent to “the Office of General Counsel, the [NIGC’s]

Commissioners, the Office of Congressional and Public Affairs, the Enforcement Division, [and]

the Contracts Division”). In addition, NIGC conducted a nationwide search for documents by

sending the search taskers to “the regional and satellite offices.” Id. Thus, the combined McCoy

declarations provide the Court with the search terms used, the locations searched, and the person

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in charge of that search – McCoy. Finally, the Supplemental declaration confirms that the search

“included all offices and files reasonably calculated to uncover all relevant documents” and that

“all files likely to contain responsive materials were searched.” Supp. McCoy Decl. ¶ 6; see also

¶ 14.

Plaintiff also questions whether NIGC made electronic searches and suggests that the

declaration is deficient because it lacks particular language about electronic searches. Pl. Br. at

10. NIGC’s search, however, included electronic media, as requested in Plaintiff’s search

request; documents 8 and 9 on the Vaughn Index are electronic correspondence. Moreover, the

supplemental search uncovered two additional documents that consist of emails. Supp. McCoy

Decl. ¶¶ 11-12. Furthermore, the Supplemental McCoy declaration clarifies that electronic

media were sought in both the original and supplemental searches. Id. ¶¶ 6, 7, 10 (“While

conducting your records search, please be certain to include a review of any electronic reocrds

(e.g., ‘email’) that may be responsive to this request.”).

Plaintiff asserts that the “paucity of documents” found proves that the search was

inadequate. Pl. Br. at 10-11. This is incorrect as a matter of law. Even assuming other

documents existed, the absence of documents does not prove the search was unreasonable.

Perry, 684 F.2d at 128 (“The issue is not whether any further documents might conceivably exist

but rather whether the government’s search for responsive documents was adequate”). Indeed,

the rule in this Circuit is the opposite of Plaintiff’s assertion. It is well established that “[m]ere

speculation that as yet uncovered documents may exist does not undermine the finding that the

agency conducted a reasonable search for them.” Safecard Servs., Inc., 926 F.2d at 1201.

Finally, Plaintiff fails to provide any indication of: (i) where NIGC should have looked

for documents; (ii) how the documents produced demonstrate that other unsearched areas need to

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be searched; or (iii) how the search taskers, which used Plaintiff’s own request as its basis, were

unreasonably drafted. Instead, Plaintiff’s opposition, in conclusory fashion, argues NIGC’s

search was lacking. There is no indication, however, other than Plaintiff’s speculation, that any

overlooked materials exist. Similarly, there is no dispute as to the nature of the search taskers,

the offices searched, or who led the search because the McCoy declaration sets this out. See

McCoy Decl. ¶¶ 13, 16, 17 (as clarified by McCoy Supp. Decl. ¶ 6). Further, it is established that

electronic media were included. See also Supp. McCoy Decl. ¶¶ 6, 7, 10. Finally, there is no

indication from Plaintiff or the documents themselves that there are further places that NIGC

should have searched.2 In fact, NIGC’s supplemental search resulted in only two additional

documents, both electronic. Id. ¶¶ 11-12.

The supplemental McCoy declaration also confirms that all leads have been pursued, no

reasonable likelihood exists that further documents would be uncovered with additional searches

or that the documents discovered indicate that other searches would lead to any further

documents. See id. ¶¶ 10, 14. In sum, Plaintiff has not demonstrated any material facts are in

dispute or that NIGC is not acting in good faith. Summary judgment should be granted to NIGC

on the adequacy of its search, particularly in light of NIGC’s supplemental search effort, taken in

an abundance of caution, and supplemental McCoy declaration.

2
Generally, in the cases where the courts have found an inadequate search (several of
which Plaintiff relies upon), there was an additional database or location at the agency that
should have been searched, but did not. See, e.g., Valencia-Lucena v. USCG, 180 F.3d 321, 327
(D.C. Cir. 1999) (failure to search agency records stored at federal record center indicated that
search was inadequate); Campbell v. DOJ, 164 F.3d 20, 27 (D.C. Cir. 1998) (failure to search
alternate index when documents located alluded to potentially responsive documents being
contained in alternate index indicated that search was inadequate); Oglesby v. United States
Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (unclear from agency's affidavit that system
searched was the only reasonable place that responsive records could be located); see also
Gallace, 273 F. Supp. 2d at 60.

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B. Given NIGC’s Role In Indian Gaming, Few Documents On The Topics In

Question Should Be Expected

Aside from being incorrect under the law, see supra Part I.A, Plaintiff’s contention that

the “scant” amount of documents indicates the inadequacy of the search illustrates that Plaintiff

misconceives NIGC’s role in Indian gaming. The Indian Gaming Regulatory Act (IGRA), 25

U.S.C. § 2701 et seq., created NIGC and provided it with regulatory oversight over gaming on

Indian lands. NIGC’s duties include, inter alia, approving tribal gaming ordinances (a

prerequisite to gaming) and management contracts as well as implementing the IGRA through

NIGC’s monitoring, investigatory, and enforcement powers once an operation is up and running.

See 25 U.S.C. §§ 2710(b)(2), 2701(d)(1)(iii), 2710(d)(9), 2711(b), 2705, 2716; 25 C.F.R. Parts

571, 573 and 575.

However, NIGC’s role largely ends when the money leaves a casino. NIGC's only

interest in such matters occurs if tribes misuse any net gaming revenues. To that end, IGRA

restricts the use of net gaming revenues to: “(i) fund tribal government operations or programs;

(ii) provide for the general welfare of the Indian tribe and its members; (iii) promote tribal

economic development; (iv) donate to charitable organizations; or (v) help fund operations of

local government agencies.” 25 U.S.C. § 2710(b)(2)(B). If tribes do not use net gaming

revenues in conformity with these purposes, NIGC may take enforcement action. Id.; 25 C.F.R.

§ 290.10.

Because of this limited interest in the revenues from gaming, NIGC’s role in the federal

investigation relating to Jack Abramoff is small. Despite Plaintiff’s characterization of the

lobbying scandal as an “Indian gaming scandal,” Pl. Br. at 11, Plaintiff alleges no activity

impacting the integrity of the actual gaming, which is the core focus of NIGC’s jurisdiction.

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Indeed, Indian tribes are sovereign governments whose sovereign status limits federal

interference in the absence of congressional authorization. NIGC’s limited role is consistent with

NIGC’s identification of its investigatory files as “related to ‘misuse of tribal revenues by certain

tribes.’” Id. at 15 (quoting Fedman Decl. ¶5). It is also unsurprising that NIGC has only a limited

amount of documents responsive to Plaintiff’s search request. Plaintiff itself alleges that

Abramoff "promise[d] to use his close connections with Republican congressional leaders and

power brokers in the conservative movement to secure legislative results favorable to the tribes'

gaming interests." Pl. Br. at 4 (emphasis added). This does not shed light on the integrity of the

actual gaming. NIGC is an executive agency, not an arm of Congress, and has no ability to enact

legislation.

In sum, many of the persons in the search request have no logical connection to matters

within NIGC’s jurisdiction. Indeed, other agencies are handling the bulk of the ongoing multi-

agency law enforcement investigation. The NIGC conducts its own investigations into matters

relevant to its role in Indian gaming, and in this case is playing a supporting role in other federal

agencies’ investigations into the alleged misuse of net gaming revenues. The quantity of

documents the NIGC’s search revealed is consistent with the NIGC’s limited role.

II. NIGC Released All Segregable Material And Plaintiff’s Contention to the Contrary
Is Wholly Without Merit

Plaintiff claims that summary judgment should be denied because NIGC did not aver that

all segregable material has been released. Pl. Br. at 11-12. However, the documents that the

NIGC has already released, and the McCoy and Fedman declarations show that NIGC released

all segregable information.

NIGC released documents that were subject to Exemptions 6 and 7(C) with only

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“[n]ames and contact information of agency employees and sources” redacted. McCoy Decl. ¶

36. Because NIGC redacted only the material that created the privacy concerns underlying

Exemptions 6 and 7(C), it, by definition, released all segregable information.

Regarding the other exemptions, Mr. Fedman’s declaration clearly states why other

information could not be segregated and released; doing so could compromise the government’s

investigations. For instance, with regard to the law enforcement exemption, Mr. Fedman’s

declaration states that the “[r]elease of even part of the withheld documents would jeopardize the

anonymity of NIGC informants and federal employees participating in the investigation because

access to the resources, fax machines, and other documents and information contained in the

investigative file is limited.” Fedman Decl. ¶ 8. Purely factual information within deliberative

documents can sometimes be released provided that they are not intertwined in the decisional

process. See, e.g., Sierra Club v. Dep’t of Interior, 384 F. Supp. 2d 1, 28 (D.D.C. 2004). But in

this case, the “release of inter-agency communications would expose which federal agencies are

involved in the investigations of the possible misuse of tribal gaming revenues” that “could be

used to ascertain the direction of these investigations.” Fedman Decl. ¶ 9. Thus, even releasing

factual information, such as the names of another agency involved, could reveal the direction of

the investigation because of the public’s awareness of that agency’s jurisdiction.

Because the Fedman Declaration demonstrates why no segregable information could be

released for Exemption 5, 7(A), or 7(D), and the NIGC’s release shows that for Exemptions 6

and 7(C) only the privacy protected information was redacted, NIGC has met its burden of

demonstrating that all segregable information has been released.

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III. NIGC, Though Its Declarations, Properly Invoked the Exemptions to FOIA in
Withholding the Documents In Question

Notwithstanding Plaintiff’s arguments to the contrary, the declarations submitted in

support of the motion for summary judgment are more than sufficient to withhold documents

pursuant to: (i) the Law Enforcement Privilege of Exemption 7(A); (ii) Privacy Concerns under

Exemption 6 and 7(C); (iii) the Confidential Informant Privilege Exemption 7(D); and (iv) the

Deliberative Process Privilege under Exemption 5. The declarations substantiated each and

every withholding in a non-conclusory fashion.

A. NIGC Properly Applied Exemption 7(A) To Law Enforcement Documents

“FOIA makes no distinction between agencies whose principal function is criminal law

enforcement and agencies with both law enforcement and administrative functions. Therefore,

agencies . . . that combine administrative and law enforcement functions, as well as agencies . . .

whose principal function is criminal law enforcement, may seek to avoid disclosure of records or

information pursuant to Exemption 7.” Tax Analysts v. IRS, 294 F.3d 71, 77 (D.C. Cir. 2002)

(citation omitted). Where an agency that combines administrative and law enforcement

functions, such as NIGC, claims a law enforcement exemption, courts consider information to

have been compiled for law enforcement purposes so long as “the investigatory activity that gave

rise to the documents is related to the enforcement of federal laws, and there is a rational nexus

between the investigation at issue and the agency’s law enforcement duties.” Id. at 78.

NIGC’s declarations are more than sufficient to justify reliance on Exemption 7(A).

NIGC clearly compiled the withheld records for law enforcement purposes: “The withheld

records were compiled as part of an ongoing multi-agency law enforcement investigation

regarding the alleged misuse of tribal revenues by certain tribes.” McCoy Decl. ¶ 33; Supp.

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McCoy Decl. ¶ 12. An investigation into alleged misuse of tribal revenue is rationally related to

NIGC’s law enforcement duties. See supra Part I.B; see also Tax Analysts, 294 F.3d at

77(“[C]ourts can usually assume that government agencies act within the scope of their

legislative authority.”) (internal quotation omitted). Once this has been established, Exemption

7(A) applies if: (i) a law enforcement proceeding is pending or prospective; and (ii) release of

the information could reasonably be expected to cause some articulable harm. See Butler v.

Dep’t of Air Force, 888 F. Supp. 174, 183 (D.D.C. 1995), aff’d, 116 F.3d 941 (D.C. Cir. 1997).

Both prongs are easily met here.

First, the declarations demonstrate that these documents relate to ongoing law

enforcement investigations. The Fedman declaration similarly states that “[t]here are open and

pending internal investigations by NIGC into the alleged misuse of tribal revenues by certain

tribes as well as related federal law enforcement investigations.” Fedman Decl. ¶ 5 (emphasis

added). See also McCoy Decl. ¶ 33 (release of documents “might derail the current investigation

as the public would be informed of NIGC and federal law enforcement investigative methods . . .

as well as the state and nature of the current investigation.”) (emphases added). Moreover, “[t]he

documents that are being withheld consist of material that NIGC personnel have received from

several sources regarding alleged misuse of tribal gaming revenues and two inter/intra agency

memoranda regarding these investigations.” Fedman Decl. ¶ 5. NIGC’s Director of

Enforcement “shared [NIGC’s] information in these investigations with the IGWG and

forwarded the documents to the cooperating federal law enforcement authorities within the

IGWG.” Id. ¶ 6. These declarations clearly demonstrate the nature of the investigation into the

misuse of tribal gaming revenue and that it is ongoing in nature as set forth in Butler.

Additionally, the supplemental McCoy declaration makes clear that Supplemental Vaughn Index

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Item 16, one interagency email discovered in the supplemental search, consists of

communications regarding an ongoing IGWG investigation into possible misuse of net gaming

revenues. Supp. McCoy Decl. ¶ 12.

Second, NIGC has articulated specific harms that can reasonably be expected to occur if

the protected information were released: impeding pending law enforcement proceedings. For

instance, the Fedman Declaration states that “[d]isclosure of the submissions from [NIGC’s]

informants would interfere with and possibly destroy [NIGC’s] access to pertinent information

and materials because [the] informants would be subject to harassment, retaliation, potential loss

of employment, and loss of access to documents.” Id. ¶ 7. Moreover, “[i]f current informants are

exposed, future potential informants might be deterred from providing the NIGC with critical

investigative information.” Id. “Additionally, release of inter-agency communications would

expose which federal agencies are involved in the investigations of the possible . . . misuse of

tribal gaming revenues.” Id. ¶ 9. “This information could be used to ascertain the direction of

these investigations and to identify the potential charges to be brought.” Id. “Knowledge of the

focus and extent of these investigations could seriously interfere with and seriously undermine

the federal investigations.” Id. Law enforcement investigations would also “be jeopardized as

the public would be informed of NIGC and IGWG investigative methods and pre-enforcement

deliberations.” Id. ¶ 10; see also Robbins Tire, 437 U.S. at 236 (“[D]isclosure of particular kinds

of investigatory records while a case is pending would generally ‘interfere with enforcement

proceedings.’”). The same is true for the document uncovered in the supplemental search. See

Supp. McCoy Decl. ¶ 12.

NIGC’s declarations thus clearly and specifically demonstrate that: (i) the withheld

documents were compiled for law enforcement purposes; (ii) the documents relate to ongoing

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law enforcement investigations; and (iii) release of those documents could reasonably be

expected to cause some articulable harm, including interference with access to pertinent

information and the serious undermining of the investigation. Exemption 7(A) plainly protects

these documents, including the document from the supplemental search, from release.

Despite these clear and specific declarations (and the lack of any evidence to the

contrary), Plaintiff contends that NIGC has not met its burden because it has not identified

specific details of the pending law enforcement investigations, such as the targets, the conduct

they may be accused of, statutes that may be used to prosecute them, and the agencies

participating in the investigation. But the specifics of law enforcement investigations are

precisely what Exemption 7(A) protects, because it is the release of these specifics that risks

harm to the law enforcement proceedings. See, e.g., Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir.

1996) (finding documents exempt pursuant to 7(A) where disclosure “could reveal much about

the focus and scope of the Commission’s investigation”); Solar Sources, Inc. v. United States,

142 F.3d 1033, 1039 (7th Cir. 1998) (records related to criminal price-fixing investigation were

properly exempt under 7(A) because disclosure could have resulted in “revelation of the scope

and nature of the Government’s investigation”); Kay v. Federal Communications Comm’n, 976

F. Supp. 23, 39 (D.D.C. 1997) (records exempt under 7(A) because disclosure could reveal

evidence and focus of investigation and discourage witness cooperation), aff’d, 172 F.3d 919

(D.C. Cir. 1998); Moorefield v. Secret Service, 611 F.2d 1021, 1026 (5th Cir. 1980) (Exemption

7(A) proper when release of Secret Service file to target of investigation could not only allow

target to elude scrutiny of Secret Service but also could “generally . . . inform targets of Service

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investigations of the means the Service employs to keep abreast of them”).3 The fact that there

are “federal law enforcement investigations” into “the alleged misuse of tribal revenues by

certain tribes,” Fedman Decl. ¶ 5, and that the “withheld records were compiled as part of an

ongoing multi-agency law enforcement investigation regarding the alleged misuse of tribal

revenues by certain tribes,” McCoy Decl. ¶ 33, is sufficient to meet the statutory requirements.

Plaintiff also objects that NIGC withheld documents are described by using “generic

categories.” Pl. Br. at 17. Even if this were true, it would be appropriate. As discussed in

NIGC’s Opening Brief, Exemption 7(A) may be applied to a set of documents based on the

categorical types of records involved rather than through a document-by-document

determination. As the Supreme Court has held, Exemption 7(A) “appears to contemplate that

certain generic determinations might be made.” NLRB v. Robbins Tire & Rubber Co., 437 U.S.

3
Moreover, Congress significantly relaxed the Government’s burden in demonstrating
interference with law enforcement proceedings under Exemption 7(A). Section 552(b)(7)(A)
originally provided for the withholding of information that “would interfere with enforcement
proceedings,” but the Freedom of Information Reform Act of 1986 amended that language and
replaced it with the phrase “could reasonably be expected to interfere with” enforcement
proceedings. See Pub. L. No. 99-570 § 1802, 100 Stat. 3207, 3207-48 (emphases added). Courts
have repeatedly recognized that this change in the statutory language substantially broadens the
scope of the exemption. See, e.g., Manna v. DOJ, 51 F.3d 1158, 1164 n.5 (3d Cir. 1995)
(purpose of 1986 amendment was “to relax significantly the standard for demonstrating
interference with enforcement proceedings”); Gould, Inc. v. GSA, 688 F. Supp. 689, 703 n.33
(D.D.C. 1988) (“The 1986 amendments relaxed the standard . . . by requiring the government to
show merely that production of the requested records ‘could reasonably be expected’ to interfere
with enforcement proceedings.”) (emphasis added); see also Spannaus v. DOJ, 813 F.2d 1285,
1288 (4th Cir. 1987) (explaining that relaxed standard “is to be measured by a standard of
reasonableness, which takes into account the ‘lack of certainty in attempting to predict harm.’”).

Finally, whether the documents were compiled prior to or during the pendency of an
enforcement action is irrelevant to the applicability of Exemption 7(A). See Ctr. for Nat’l
Security Studies v. DOJ, 331 F.3d 918, 926 (D.C. Cir. 2003) (“Exemption 7(A) does not require
a presently pending ‘enforcement proceeding.’ Rather, as the district court correctly noted, it is
sufficient that the government’s ongoing . . . investigation is likely to lead to such proceedings.”).

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214, 224 (1978) (emphasis supplied). “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.’” Id. at 236. Indeed, courts have held that there is no need to “produce

a fact-specific, document-specific Vaughn index” when documents are withheld on a categorical

basis. In re Dep’t of Justice, 999 F.2d 1302, 1309 (8th Cir. 1993) (en banc); Lardner v. United

States Dep’t of Justice, 2005 WL 758267, at *20 (D.D.C. Mar. 31, 2005) (citing In re Dep’t of

Justice).

Moreover, the “generic categories” used here are (i) “material that NIGC personnel have

received from several sources regarding alleged misuse of tribal gaming revenues” and (ii)

inter/intra agency memoranda regarding these investigations. Fedman Decl. ¶ 5; Supp. McCoy

Decl. ¶ 12. It is specifically averred that disclosure of the former category “would interfere with

and possibly destroy [NIGC’s] access to pertinent information and materials because [the]

informants would be subject to harassment, retaliation, potential loss of employment, and loss of

access to documents.” Fedman Decl. ¶ 7. The latter category specifically describes “internal

communications between NIGC personnel and external communications between NIGC

personnel and members of federal agencies,” which “indicate the extent of the investigation,

government officials’ deliberative process, and pre-decisional cogitations.” McCoy Decl. ¶¶ 26-

27; see also id.; Fedman Decl. ¶¶ 9-10 (detailing harm that could occur from disclosure). NIGC

therefore properly invoked the law enforcement privilege in this case.

B. NIGC Properly Invoked Exemptions 6 and 7(C) To Protect Personal

Information

NIGC has invoked Exemptions 6 and 7(C) in a limited fashion to protect the “identities

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and contact information of agency employees and informants.” McCoy Decl. ¶ 29; accord id. ¶

37. For this reason, the McCoy Declaration clearly refers only to “names” and/or “contact

information” of individuals such as law enforcement or agency employees or third parties who

provided information to NIGC. See id. ¶¶ 29-31 (Exemption 6) & 36-38 (Exemption 7(C)).

Indeed, with regard to Exemption 6 and 7(C), the McCoy declaration refers to no classes of

information other than “names” and/or “contact information;” information that Plaintiff expressly

disclaims any interest in obtaining. See Pl. Br. at 21 (“Nor is CREW interested in learning the

“[n]ames and contact information of agency employees and sources.”). Even though that is the

only information withheld (and Plaintiff disclaims any interest), Plaintiff reflexively, and with no

apparent reason or legal basis, states that Plaintiff cannot “be assured that Exemptions 6 and 7(C)

have been properly invoked.” Id.

As the basis for its argument, Plaintiff asserts that it is not “evident how revealing the

names of the individuals who supplied public source newspaper articles would invade their

privacy in any way.” Id. With regard to agency personnel, this flies in the face of existing case

law that NIGC cited in its opening brief, while Plaintiff’s opposition is devoid of any case law

for its assertion that revealing a person’s name or identifying contact information in an agency

file would not impact his or her privacy.

In contrast, both Voinche v. FBI, 940 F. Supp. 323 (D.D.C. 1996), and Massey v. FBI, 3

F.3d 620 (2d Cir. 1993), amply support the principle that names and identifying information can,

and should, be properly withheld just as NIGC did in this case. The names of law enforcement

personnel are generally exempt from disclosure under Exemption 7(C) because disclosure "could

subject them to embarrassment and harassment in the conduct of their official duties and personal

affairs." Massey, 3 F.3d at 624. Similarly, in Voinche, 940 F. Supp. 323, the FBI relied on

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Exemption 6 to withhold certain information that would have identified certain special agents of

the FBI and other federal employees. Finding "no reason to believe that the public [would]

obtain a better understanding of the workings of various agencies" by learning the identities of

the individuals to whom the information pertained, the court held that the release of the

information "would serve no articulable public interest." Id. at 330. Accordingly, the court

upheld "the defendant's assertion of Exemption 6 in order to protect the privacy interests of the

individuals at issue." Id.

NIGC has only withheld the names of NIGC investigative and enforcement personnel

who are working on pending investigations and the names of citizens who have stepped forward

to provide NIGC with information. McCoy Decl. ¶¶ 30-31; Supp. McCoy Decl. ¶12

(withholding “names and emails of persons involved in the investigations” under Exemptions 6

and 7(C) for one of the newly discovered documents from the supplemental search). The safety

of agency personnel or third parties could be endangered if their identities were disclosed. See

McCoy Decl. ¶ 30. On the other side, Plaintiff identifies no benefit to itself or the public in

obtaining this information. Thus, just as in Voinche, there is no basis to believe that the public

would obtain a better understanding of the working of any government agency by knowing the

names of the individuals involved. NIGC therefore properly invoked Exemptions 6 and 7 (C)

and should be granted summary judgment on these issues, see Voinche, 940 F. Supp. at 330; a

conclusion reinforced by the lack of any legal authority to support Plaintiff’s challenge to these

exemptions.

C. NIGC Properly Invoked Exemption 7(D) To Protect A Confidential

Informant

Plaintiff argues that NIGC has not provided sufficient “context” to justify the assertion of

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Exemption 7(D). Pl. Br. at 22. In so doing, however, Plaintiff asks the Court to apply the law

applying to implied promises of confidentiality, which is not applicable here. A confidential

source is one who “provided information under an express assurance of confidentiality or in

circumstances from which such an assurance could be reasonably inferred.” U.S. Dep't of Justice

v. Landano, 508 U.S. 165, 172 (1993). The Supreme Court has stressed that the proper inquiry to

determine whether this exemption may be invoked is "whether the particular source spoke with

an understanding that the communication would remain confidential." Id. While context may be

relevant where an informant provides information to law enforcement with an implied

understanding the his identity would remain confidential, see id. at 172-73, the McCoy

declaration clearly states that “the person has been given an express guarantee that personal and

contact information will not be disclosed to the public.” McCoy Decl. ¶ 40 (emphasis added).

There is no ambiguity that the source was given an express promise of confidentiality. In the

absence of any reason to doubt the good faith statements of the McCoy declaration, such an

express promise demonstrates that summary judgment should be granted on NIGC’s Exemption

7(D) withholding.

D. Exemption 5 Protects NIGC’s Document Touching The Deliberative Process

In the original search, NIGC properly withheld four documents in full based in part on

Exemption 5 to protect NIGC’s deliberative process.4 The supplemental search produced two

additional documents, a three-page email, that is being withheld in part under Exemption 5, and a

one-page email being withheld under Exemptions 5, 6, 7A, and 7(C). See Supplemental Vaughn

4
Given that these documents are also being withheld pursuant to Exemption 7(A), see
Vaughn Index items 1, 8, 9, & 13, the Court need not even reach the applicability of Exemption 5
because the documents are independently exempt from release under the law enforcement
privilege, as discussed above.

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Index at Items 15-16.

Plaintiff makes two principle challenges to NIGC’s reliance on Exemption 5. First,

Plaintiff claims that it cannot determine that the documents “are both pre-decisional and

deliberative” because NIGC did not identify the deliberative process involved and the

documents’ role in that process. Pl. Br. at 24. Second, Plaintiff claims that NIGC did not

adequately establish it released all segregable information. Id. at 25. With respect to

segregability, the Fedman Declaration clearly states that no portions of these documents can be

released without compromising the ongoing investigation and that a partial release “could be

used to ascertain the direction of these investigations.” Fedman Decl. ¶ 9; see also ¶ 8. See

supra at Part II.

With regard to the former issue, NIGC’s declarations demonstrate that the information

meets the requirements of Exemption 5. Exemption 5 of the FOIA protects from disclosure

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

party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5). Clearly, the Vaughn Index

demonstrates that these documents meet the threshold standard of being “[i]ntra-agency

communication,” see Vaughn index at item 1, 13, or “[i]nter-agency communication,” see id. at

8, 9; see also McCoy Decl. ¶ 26. The original McCoy declaration also identifies, contrary to

Plaintiff’s assertion, the deliberative process involved and the documents’ role, although the

declaration does so in summary fashion so as not to reveal information that could jeopardize the

investigation or reveal its direction. Specifically, paragraph 27 of the McCoy Declaration

identifies the extent of the ongoing investigation as the locus of the deliberative process at issue

in that it states the “withheld communications indicate the extent of the investigation [and]

government officials’ deliberative processes” with respect to that investigation. McCoy Decl. ¶

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27. Given that NIGC’s investigation is an ongoing enterprise, such communications must, by

definition, be predecisional as to the ultimate path of the investigation. See Vaughn Index Items

1, 13 at Justification. Similarly, documents shared between NIGC and other agencies could

reveal the ultimate path of the investigation depending on the agency contacted. Further, the

McCoy declaration indicates that the documents all reflect recommendations or express opinions

on legal or policy matters related to the investigation. See id. ¶ 27. For these reasons, NIGC was

justified in invoking Exemption 5 as well as Exemption 7(A) in withholding these documents.

NIGC’s application of Exemption 5 to both additional documents discovered in the

supplemental search is also fully justified. Supplemental Vaughn Index Item 15 consists of “a

three-page intra-agency email.” The email consists of a newspaper clipping regarding Abramoff

and the Coushatta tribe and internal discussions regarding the newspaper clipping. Supp. McCoy

Decl. ¶ 11. Further, this document was partially released, by release of the newspaper article

itself, so that all segregable material can be produced without providing NIGC’s deliberations in

question. See id. Additionally, Supplemental Vaughn Index Item 16 is being withheld under

Exemption 5 due to the inter- and intra-agency communications in the email regarding the

investigation into the misuse of net gaming revenues. Id. ¶ 12. These are the sorts of documents

that Exemption 5 was intended to protect from release. Because these are “intra and inter-agency

emails” regarding whether NIGC should take a particular course of action, the documents clearly

qualify for withholding under Exemption 5. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132,

151 (1975) (stating that the deliberative process privilege protects “predecisional

communications”). See also Mead Data Cent., Inc. v. United States Dep’t of the Air Force, 566

F.2d 242, 252 (D.C. Cir. 1977) (privilege applies to “‘recommendations, draft documents,

proposals, suggestions, and other subjective documents which reflect the personal opinions of the

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writer rather than the policy of the agency.’”) (citation omitted). NIGC is justified in withholding

in part these additional documents under Exemption 5.

CONCLUSION

For all these reasons, and the reasons stated in NIGC’s motion for summary judgment, the

Court should grant summary judgment to NIGC.

Dated: November 7, 2005 Respectfully submitted,

PETER D. KEISLER
Assistant Attorney General

KENNETH L. WAINSTEIN
United States Attorney

/s/ Alexander K. Haas

ELIZABETH J. SHAPIRO
Assistant Branch Director
ALEXANDER K HAAS (CA Bar 220932)
Of Counsel: Trial Attorney, Federal Programs Branch
Andrea Lord U.S. Department of Justice, Civil Division
Staff Attorney 20 Massachusetts Ave., N.W., Room 7328
National Indian Gaming Commission Washington, D.C. 20001
Tel: (202) 307-3937 Fax: (202) 616-8470
Counsel for Defendant

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