If you are working on a government project as a clearance holder, you should know about the Vaughn Index. As Pogo the cartoon possum might exclaim,”What on earth is that?” Consider this story, and you’ll see why.
A Soviet spy was captured after years of stealing U.S. military and government secrets. Sitting in prison, we imagine he somehow (jailhouse lawyers are prolific) came to the conclusion, “Hey, the Cold War is over. So the stuff I stole can’t possibly be classified anymore, right? I’ll file a Freedom of Information Act (FOIA) request, show on appeal that what I stole is no longer classified, and walk out of here free as a bouncing squirrel.” And so he made his FOIA request..
The request through the Department of Justice came to a major military command, whose number of personnel devoted full time to FOIA research was exactly zero. The command received the request because it was from them that our spy stole all those documents many years ago.
How do agencies respond to FOIA requests?
What to do? The FOIA is clear that agencies must react with reasonable speed to any request. This is good, because after all, the purpose of the FOIA is to keep an informed citizenry. And such an informed citizenry is what makes a democracy like ours work.
Galling as the request might seem, the command went about responding as would any element of the government, with due diligence. This might entail gathering those who knew about the documents, who’d worked with, or even written, them. If no such people were around then those who at least had familiarity with them was secured. Security officials were also engaged. They could offer great insights about the documents’ current status, and possible impact on modern programs.
In time, a necessarily and properly long time, decisions were reached.
Now, my mind flashes to Terry Anderson, the news reporter kidnapped in Lebanon. Upon release, he asked the government for information on how they tried to secure his release. What he received was 900 pages of…blank paper. All had been redacted.
Something similar happened here in this example. “All these documents are still classified,” said the chairman of the FOIA project response group. That was the end of it.
Time passed quite slowly for the spy sitting watching himself grow older in prison. He re-filed, demanding specificity. And with that, FOIA concurred and sent a judge’s requirement for a Vaughn Index.
The Vaughn Index was created for just such a case. A legal site points out:
A plaintiff’s challenge of the government’s use of an exemption in a FOIA case triggers the need for the government to produce a Vaughn. A number of factors determine exactly how the finished Vaughn will look. The Vaughn Index can take many forms such as a straight affidavit, a narrative document, an affidavit with a chart or index detailing the withholdings attached, or a hybrid of any of these examples. All Vaughns serve the same purpose; give a meaningful justification for any withheld materials.
And that’s what happened. It took some time, but each document withheld was substantiated, such that the claimant got nothing further but an adequate description of what the document was, and under what authority of the nine exemptions of the FOIA it was withheld. The judge found this adequate, and the matter rested from that day forth.
Clearance holders must know that the classifications which guard their documents are not ironclad. They can be challenged. So be right, and know where your classification authority originates from when you affix a classification. Never apply classifications without clear authority. Know that a FOIA could come at any time. Understand the nine exemptions, and their proper use. I emphasize proper use. A judge will know if there is simply a short hand, lazy, or arrogant response behind your answer. Stay professional, know your authority to act, and do so with confidence.
