ELR Citation: ELR 20241
No(s). 07-2218 (8th Cir. Sep 16, 2008)

The Eighth Circuit remanded a lower court decision dismissing an environmental group's Freedom of Information Act request for certain documents prepared in connection with the U.S. Army Corps of Engineers' (the Corps') Upper Mississippi River System Flow Frequency Study. The lower court ruled in favor of the Corps on the basis that the deliberative process privilege exempts the requested documents. The government's use of a "Vaughn index"—general descriptions of the documents and why they are exempt from disclosure—was not inadequate on its face. The index was sufficient to establish that some of the information requested is, in fact, exempted by the deliberative-process privilege. But the agency has the burden to show that the exempt portions of the documents are not segregable from the non-exempt material. Because the lower court failed to analyze the segregability of the documents, it is not possible to conclude that the privilege applied to all 83 responsive documents in their entirety and the case must be remanded.