American Center for Law and Justice v. United States Department of State ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN CENTER FOR LAW AND
JUSTICE,
Plaintiff,
v. Civil Action No. 18-944 (JEB)
UNITED STATES DEPARTMENT OF
STATE,
Defendant.
MEMORANDUM OPINION
The Israeli-Palestinian conflict casts a long shadow, one that extends even to this
Freedom of Information Act suit. Plaintiff here, the American Center for Law and Justice,
challenges the State Department’s withholding of portions of a report containing information
about the work of the United Nations Relief and Works Agency for Palestine Refugees in the
Near East (UNRWA). State withheld the information under FOIA Exemption 1, contending that
its release would be a threat to national security. In this suit, ACLJ challenges the withholding,
and State now moves for summary judgment. Because the Court finds that the invocation of
Exemption 1 is sound, it will grant the Motion.
I. Background
ACLJ is a non-profit organization “dedicated to the defense of constitutional liberties
secured by law.” ECF No. 1 (Compl.), ¶ 5. In line with its mission, Plaintiff regularly makes
records requests to federal, state, and local governments and then publishes its findings. Id. This
case stems from one such request. In recounting the procedural history, the Court, for the
purposes of this Motion, accepts as true ACLJ’s factual retelling of all that has transpired.
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On February 15, 2018, Plaintiff submitted a FOIA request to State’s Office of
Information Programs and Services (IPS) seeking various documents related to the work of the
UNRWA. Id., ¶ 7. The request specifically asked for a State Department report concerning
UNRWA aid to Palestinian refugees. Id. When Defendant failed to make a determination within
the requisite twenty-day period, Plaintiff filed the instant Complaint. Id., ¶¶ 31–33; see 5 U.S.C.
§ 552(a)(6)(A)(i).
ACLJ later amended its request, limiting it to the specific UNRWA Report to Congress
on Protracted Refugee Situations. See ECF No. 15-4 (Defendant’s Statement of Undisputed
Material Facts), ¶ 3; see also ECF No. 16-2 (Redacted Report). Congress directed the State
Department to write such a report on UNRWA activities. See S. Rep. No. 113-81, at 70 (2013).
The Report included information concerning the number of people receiving UNRWA services
and the extent to which such services further the security interests of the United States and
Middle Eastern allies. See Redacted Report at 1, 3, 4; see also ECF No. 15-1 (Declaration of
Eric F. Stein), ¶ 14.
On July 13, 2018, State released most of the five-page Report but withheld certain
portions pursuant to FOIA Exemption 1. See Reply at 5; Stein Decl., ¶¶ 16–30. As a classified
document, the Report contained a classification rationale and related markings by Anne C.
Richard, the Assistant Secretary for the Bureau of Population, Refugees, and Migration (PRM).
Richard had original classification authority to review the Report. See Stein Decl., ¶ 16. Further
explaining the document’s classification, State submitted the Declaration of Eric F. Stein,
Director of IPS, who also had original classification authority. Id., ¶ 1. The Declaration explains
that the release of the full Report would create a risk to national security. Id., ¶¶ 13–30. On
August 20, Defendant filed the current Motion for Summary Judgment. Plaintiff thereafter
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requested that the Court review the Report in camera, which invitation this Court accepted. See
Opp. at 14; Minute Orders of October 4 & 5, 2018. The Court has now reviewed the Report.
II. Legal Standard
Summary judgment may be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P
56(a). “A genuine issue of material fact is one that would change the outcome of the litigation.”
Laverpool v. Dep’t of Hous. & Urban Dev., 315 F. Supp. 3d 388, 390 (D.D.C. 2018); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”). Where conflicting evidence exists as to a material issue, the Court is to
construe such evidence in the light most favorable to the non-moving party. See Sample v.
Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual assertions in the moving
party’s affidavits or declarations may be accepted as true unless the opposing party submits his
own affidavits, declarations, or documentary evidence to the contrary. See Neil v. Kelly, 963
F.2d 453, 456 (D.C. Cir. 1992).
FOIA cases typically and appropriately are decided on motions for summary judgment.
See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). In
FOIA cases, the agency bears the ultimate burden of proof. See Dep’t of Justice v. Tax Analysts,
492 U.S. 136, 142 n.3 (1989). The Court may grant summary judgment based solely on
information provided in an agency’s affidavits or declarations when they “describe 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 contrary
evidence in the record nor by evidence of agency bad faith.” Larson v. Dep’t of State, 565 F.3d
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857, 862 (D.C. Cir. 2009) (citation omitted). “Uncontradicted, plausible affidavits showing
reasonable specificity and a logical relation to the exemption are likely to prevail.” Ancient Coin
Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 509 (D.C. Cir. 2011). This standard
applies most saliently in national-security cases. See ACLU v. U.S. Dep’t of Def., 628 F.3d 612,
624 (D.C. Cir. 2011).
III. Analysis
Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976) (internal quotation marks and citation omitted). The statute provides that “each agency,
upon any request for records which (i) reasonably describes such records and (ii) is made in
accordance with published rules . . . shall make the records promptly available to any person.” 5
U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to
order the production of records that an agency improperly withholds. Id. § 552(a)(4)(B). “Unlike
the review of other agency action that must be upheld if supported by substantial evidence and
not arbitrary and capricious, the FOIA expressly places the burden ‘on the agency to sustain its
action’ and directs the district courts to ‘determine the matter de novo.’” Dep’t of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. §
552(a)(4)(B)). “At all times courts must bear in mind that FOIA mandates a ‘strong presumption
in favor of disclosure.’” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir.
2002) (quoting U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)).
On the other hand, “Congress was also aware that ‘legitimate governmental and private
interests could be harmed by release of certain types of information.’” AquAlliance v. U.S.
Bureau of Reclamation, 856 F.3d 101, 102 (D.C. Cir. 2017) (quoting Dep’t of Justice v. Julian,
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486 U.S. 1, 8 (1988)). FOIA, accordingly, “balance[s] the public’s need for access to official
information with the Government’s need for confidentiality.” Weinberger v. Catholic Action of
Haw., 454 U.S. 139, 144 (1981). In pursuit of this interest in confidentiality, “[n]ine categories
of information are exempt from FOIA’s broad rules of disclosure.” Elec. Privacy Info. Ctr. v.
Office of the Dir. of Nat’l Intelligence, 982 F. Supp. 2d 21, 27 (D.D.C. 2013) (citing 5 U.S.C.
§ 552(b)(1)–(9)). “These exemptions are to be narrowly construed . . . and th[e] Court can
compel the release of any records that do not satisfy the requirements of at least one
exemption.” Id. at 27–28 (citing Reporters Comm. for Freedom of the Press, 489 U.S. at 755).
In the spotlight here is Exemption 1, which covers matters that are “specifically
authorized under criteria established by an Executive order to be kept secret in the interest of
national defense or foreign policy and . . . are in fact properly classified pursuant to such
Executive order.” 5 U.S.C. § 552(b)(1). The propriety of an agency’s withholding is considered
de novo by a reviewing court. Id. § 552(a)(4)(B). Given the Executive’s “unique insights into
what adverse [e]ffects might occur as a result of public disclosure of a particular classified
record,” Ray v. Turner, 587 F.2d 1187, 1194 (D.C. Cir. 1978) (internal quotation marks omitted),
however, courts have “consistently deferred to executive affidavits predicting harm to the
national security, and have found it unwise to undertake searching judicial review.” Larson, 565
F.3d at 865; see also id. (“Today we reaffirm our deferential posture in FOIA cases regarding the
‘uniquely executive purview’ of national security.”) (citation omitted). “[I]n the national
security context,” therefore, “the reviewing court must give ‘substantial weight’” to agency
declarations. ACLU v. U.S. Dep’t of Justice, 265 F. Supp. 2d 20, 27 (D.D.C. 2003) (quoting
King v. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)); see Frugone v. CIA, 169 F.3d 772,
775 (D.C. Cir. 1999) (stating that, “mindful that courts have little expertise in either international
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diplomacy or counterintelligence operations, we are in no position to dismiss the CIA’s facially
reasonable concerns” regarding harm that disclosure could cause to national security). In
according such deference, “a reviewing court must take into account . . . that any affidavit or
other agency statement of threatened harm to national security will always be speculative to
some extent, in the sense that it describes a potential future harm.” Wolf v. CIA, 473 F.3d 370,
374 (D.C. Cir. 2007) (citation and internal quotation marks omitted). “[T]he text of Exemption 1
itself suggests that little proof or explanation is required beyond a plausible assertion that
information is properly classified.” Morley v. CIA, 508 F.3d 1108, 1124 (D.C. Cir. 2007)
(emphasis added).
ACLJ mounts two types of challenges here, which may be defined as procedural and
substantive. As to the former, it argues that, because State has not complied with the technical
requirements of Executive Order 13526 — the E.O. governing classification — its invocation of
Exemption 1 was improper. As to the latter, it maintains that Defendant has not produced a
sufficient substantive basis for its withholdings. The Court looks at each separately.
A. Procedural Requirements
E.O. 13526 enumerates a number of procedural requirements that the Government must
satisfy in classifying information. See 75 Fed. Reg. 707 (Dec. 29, 2009). ACLJ argues that
State did not follow those requirements in two ways: (1) the original Report contained
insufficient markings and assurances that Richard complied with the classification procedures
originally; and (2) Richard did not provide an adequate rationale for classification on the Report,
a mistake that cannot be cured by Stein’s subsequent Declaration. See Opp. at 5–7.
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1. Markings and Assurances
Section 1.6 of the Executive Order requires documents at the time they are classified to
contain five sets of markings: (1) that the information was within one of the three classification
levels; (2) the identity, by name and position, of the original classification authority; (3) the
agency and office of origin; (4) instructions for declassification; and (5) a concise reason for
classification that, at a minimum, cites the applicable classification categories. The Report
contains each of these markings: (1) it was labeled “Confidential”; (2) Anne C. Richard’s name
and position were given; (3) PRM, the office of origin, was cited; (4) it set the declassification
date to occur on January 14, 2025; and (5) Reason 1.4(d) was provided as an applicable
classification category. See Redacted Report.
ACLJ nonetheless argues that Richard failed to “ma[k]e certain” that the Report was
properly classified under these requirements. See Opp. at 6 (quoting Canning v. U.S. Dep’t of
State, 134 F. Supp. 3d 490, 501 (D.D.C. 2015)). This position is a stretch. To begin, the Order
says nothing about a classifier’s need to “make certain” that procedural requirements were met.
As State correctly asserts, moreover, there are no magic words required to meet this standard.
See Reply at 7. Rather, in the absence of bad faith, general statements of procedural compliance
may suffice. See Judicial Watch v. U.S. Dep’t of Defense, 857 F. Supp. 2d 44, 57 (D.D.C.
2012). There is no allegation of evidence of such bad faith here. In addition, Stein, who has
“original classification authority and [is] authorized to classify and declassify national security
information,” repeatedly provides assurances throughout his Declaration that the Report is
properly classified. See Stein Decl., ¶¶ 1, 16–18, 21, 23.
Plaintiff next argues that because Richard invoked § 1.4(d) as her classification rationale
while Stein cited both § 1.4(b) and § 1.4(d), this somehow renders the entire classification
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improper. The Court is not persuaded. Section 1.6 of the Order requires that the relevant
document contain “a concise reason for classification that, at a minimum, cites the applicable
classification categories.” E.O. 13526, § 1.6.(a)(5). This reason must be “immediately apparent”
at the time of the original classification. Id., § 1.6(a). ACLJ takes this to mean that the only
markings relevant to the Court’s analysis are those contained in the initial Report, and that
Stein’s subsequent addition of § 1.4(b) classification renders the Report’s initial classification
under § 1.4(d) invalid. That makes little sense. The fact that the original Report held one fewer
classification rationale has no bearing on whether the information was properly classified
originally. Whether Richard made reference to only § 1.4(d) in her initial classification is
irrelevant, as “the information is within one of eight protected categories listed in section 1.4 of
the Order.” Id; see also Competitive Enter. Inst. v. Dep’t of Treasury, 319 F. Supp. 3d 410, 418
(D.D.C. 2018) (holding that document need only satisfy one category to meet 1.4’s classification
requirement).
2. Adequate Explanations
E.O. 13526 gives a number of requirements for classifying government documents. One
of these states that the original classification authority must “determine[] that the unauthorized
disclosure of the information reasonably could be expected to result in damage to the national
security.” E.O. 13526, § 1.1(a)(4). Plaintiff argues both that Richard failed to identify such
relevant threats and that Stein was incapable of curing her omission, as that duty is reserved
solely to the classification authority who reviews the Report “in the first instance.” Opp. at 7
(quoting E.O. 13526 § 6.1(gg)). In other words, because Richard did not fully explain the threat
in classifying the original Report, Stein cannot bolster her effort with a subsequent affidavit.
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This position holds no water. Plaintiff misinterprets the Order to mean that Richard must
have articulated possible threats initially. ACLJ cites no caselaw to support this proposition, and
with good reason — it does not exist. State properly asserts that the determining factor is
whether a present-day original classification authority (in this case, Stein) is able to certify, based
on his own independent review of the information, that it presently meets the standards for
classification. See, e.g., Larson, 565 F.3d at 863, 866 (accepting affidavits by CIA and NSA
stating that records were “currently properly classified” as sufficient to establish that they were
appropriately withheld under Exemption 1); cf Judicial Watch, Inc. v. U.S. Dep’t of Def., 715
F.3d 937, 944 (D.C. Cir. 2013) (“[B]ecause the Bennett declaration [of a subsequent classifier]
removes any doubt that a person with original classification authority has approved the
classification decision, any failure relating to application of the classification guide would not
‘reflect adversely on the agency’s overall classification decision.’”) (quoting Lesar v. U.S. Dep’t
of Justice, 636 F.2d 472, 484–85 (D.C. Cir. 1980)). That rule makes practical sense as well. For
example, where a new threat arose between the time of original classification and subsequent
classification, Plaintiff’s theory would bar the Government’s ability to protect the information.
The Court should not endorse such a position.
This does not mean, however, that Richard — who first marked the document classified
— has no duties in this respect. Rather, the Order is clear that “[a]t the time of original
classification,” the classification authority must provide “a concise reason for classification that,
at a minimum, cites the applicable classification categories in section 1.4.” E.O. 13526,
§ 1.6(a)(5). This Richard has done. On her initial markings, she wrote, “Classified by: PRM
Assistant Secretary Anne C. Richard E.O. 13526, Reason 1.4(d).” No more is needed.
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Having determined that all procedural requirements were satisfied, the Court now turns to
Plaintiff’s arguments as to substance.
B. Substantive Requirements
ACLJ next contends that Defendant has not complied with Exemption 1’s substantive
requirements because: (1) the material is not properly classified under either § 1.4(b) or § 1.4(d);
(2) previous public discussion of the issues means that classification is inappropriate; and (3) the
rationale provided is pretext for Defendant to cover its “embarrassment.” Opp. at 7–13.
1. Appropriately Classified
To show that the material was properly classified under § 1.4(b) and § 1.4(d) — and thus
properly withheld — the Government offers Stein’s Declaration, which “need only be plausible
and logical to justify the invocation of a FOIA exemption in the national security context.”
ACLU, 628 F.3d at 624 (internal quotation marks omitted). Section 1.4(b) classification applies
to foreign-government information, which is defined as information provided to the United
States Government by a foreign government “with the expectation that the information, the
source of the information, or both, are to be held in confidence.” E.O. 13526, § 6.1(s). Section
1.4(d), conversely, covers “foreign relations or foreign activities of the United States, including
confidential sources.” Plaintiff alleges that: (1) Stein’s Declaration is insufficient because he did
not demonstrate the requisite personal knowledge of the basis for classification; and (2) even if
he did, Stein did not adequately describe his rationale for why the documents should be
classified.
a. Personal Knowledge to Classify
Even though ACLJ does not challenge Stein’s classification authority, it contends that he
did not establish his personal knowledge when he based his classification on “information [that
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had] been furnished” to him. See Opp. at 10; Stein Decl., ¶ 1. Declarations in the FOIA context
are held to be sufficient where the declarant “attests to the personal knowledge of the procedures
used in handling a FOIA request and his familiarity with the documents in question.” Hall v.
CIA, 881 F. Supp. 2d 38, 64 (D.D.C. 2012) (alterations adopted) (citation omitted); see also
Niskanen Ctr., Inc. v. U.S. Dep’t of Energy, 328 F. Supp. 3d 1, 10 (D.D.C. 2018) (holding that
Rule 56’s requirements are satisfied in FOIA case where declarant’s “conclusions rest on
information provided to him by other agency employees and his own review of the records”).
Stein explicitly states that the statements are “based upon [his] personal knowledge, which in
turn is based upon information furnished to [Stein] in the course of [his] official duties.” Stein
Decl., ¶ 1. In applying Exemption 1, at least one court in this district has found an almost
identical statement sufficient to satisfy the personal-knowledge requirement. See Hall, 881 F.
Supp. 2d at 64. This Court reaches the same conclusion.
Unsatisfied with this standard, Plaintiff then attempts to tack on requirements that Stein
specify the precise means by which he learned of this information, such as whether it came
through a “review of documents, testimony, or written statements.” Opp. at 10. ACLJ cites no
basis for such intensive inquiry, and this Court does not impose one today. Cf. Carney v. U.S.
Dep’t of Justice, 19 F.3d 807, 814 (2d Cir. 1994) (“An affidavit from an agency employee
responsible for supervising a FOIA search is all that is needed to satisfy Rule 56(e); there is no
need for the agency to supply affidavits from each individual who participated in the actual
search.”).
b. Rationales
ACLJ also takes issue with each of Stein’s classification rationales. Recall that under
§ 1.6(a)(5) of the Order, an original classification authority must provide a “concise reason for
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classification that, at a minimum, cites the applicable classification categories in section 1.4 of
[the Order].” Two rationales are offered in the Declaration: § 1.4(b) and § 1.4(d). ACLJ
suggests that Stein, somehow knowing Richard’s § 1.4(d) classification to be insufficient
standing alone, attempted to pull the wool over its eyes by later asserting § 1.4(b) without
requisite explanation. See Opp. at 10.
Yet Stein gave a plethora of reasons as to why both § 1.4(b) and (d) were accurate
rationales to support classification. With respect to § 1.4(b), he stated that: (a) “A portion of the
classified information is ‘foreign government information’ provided to the Department by a
foreign government or international organization with the expectation that it would be kept
confidential,” id., ¶ 16; (b) “A representative of the source of this foreign government
information recently reaffirmed to a State Department official that it continues to have the same
expectation of confidentiality with respect to the information provided to the State Department,
which was utilized in the report,” id.; and (c) “Additional classified information in the report
was derived from other State Department sources discussing the region, which were themselves
classified at the [c]onfidential level.” Id.
Plaintiff asserts that these are conclusory, again requesting information as to the source
and method of communication with this representative, as well as raising other specific questions
as to the nature of Stein’s knowledge of these discussions with foreign officials. See Opp. at 8,
10. State has no obligation to answer Plaintiff’s multitude of questions — in fact, E.O. 13526
does not “require that a classifying authority indicate the person who classified the information
in question or when [that] information [was] originally classified.” Canning, 134 F. Supp. 3d at
502 (internal quotation marks and citations omitted). On the contrary, “the text of Exemption 1
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itself suggests that little proof or explanation is required beyond a plausible assertion that
information is properly classified.” Morley, 508 F.3d at 1124. Stein has done just that.
His Declaration also explains specific harms that would likely occur as a result of the
information’s release. He notes that the “ability to obtain information from foreign governments
is essential to the formulation and successful implementation of U.S. foreign policy,” and that
the “[r]elease of foreign government information provided in confidence . . . would cause foreign
officials to believe that U.S. officials are not able or willing to observe the confidentiality
expected in such interchanges.” Stein Decl., ¶ 26. He then describes the potentially damaging
impact release would have on a “number of our bilateral relationships with countries whose
cooperation is important to U.S. national security.” Id.; see also id., ¶¶ 27–29 (describing further
potential harm to foreign relations from disclosure). It is against precisely such harm to the
Government’s “foreign relations” that § 1.4(d) seeks to protect. These statements are thus
sufficient because they demonstrate that “the withheld information logically falls within the
claimed exemption[s]” — namely, the ones identified in both § 1.4(b) and § 1.4(d). See Larson,
565 F.3d at 865. The only conclusory assertions the Court sees are those of Plaintiff.
ACLJ last argues that the “proper justification for withholding the information under
Section 1.4(d) relies upon a proper showing under Section 1.4(b).” Opp. at 11. Put simply,
Plaintiff seems to believe that a § 1.4(d) classification cannot stand on its own. See Opp. at 10–
11. This contention founders on two shoals. First, the Court has just determined that State has
made a sufficient showing under § 1.4(b). Second, Stein has also satisfactorily explained why
the § 1.4(d) classification was appropriate, an explanation this Court accepts. See Stein Decl., ¶¶
17–18; 27–29; see also Larson, 565 F.3d at 865 (instructing “defere[nce] to executive affidavits
predicting harm to the national security”) (citation omitted).
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With both § 1.4(b) and (d) properly invoked, ACLJ’s argument falls apart. The
Executive Order requires only that “the information is within one or more of the [protected]
categories . . . listed in section 1.4” of the Order. See E.O. 13526, § 1.1(a) (emphasis added).
The Court sees no reason why the existence of a second legitimate basis for withholding in
addition to the one rightly claimed by Richard should invalidate the document’s protection from
disclosure.
2. “Public” Disclosure and Congressional Requests to Declassify
As with many frustrated folk, Plaintiff then takes to the Internet. ACLJ posits that the
discussion there of topics similar to those classified here and a letter by members of Congress
requesting declassification of the Report undermine the Government’s contention that disclosure
could actually pose a threat to national security. See Opp. at 12. In other words, any
classification would be inappropriate.
The Court is not convinced. ACLJ bases its first claim on the fact that some topics
similar to information referred to in three of the classified paragraphs are “routinely provided
and/or discussed on UNRWA’s website.” Opp. at 11. Plaintiff asserts that, because of the
“broad public discussion” of these topics, it is “inconceivable” that the information withheld
would pose a legitimate threat to national security if released. Id. at 12.
As an initial matter, the Court notes that ACLJ’s conclusion does not necessarily follow
from its premise. For instance, it is entirely possible that the government did not rely on
“information provided . . . by a foreign government,” E.O. 13526, §§ 1.4(b), 6.1(s)(1), in
compiling information within a certain topic at one time, but did at a later time. But more
significantly, Plaintiff’s assertions run headlong into State’s assessment of the impact of
disclosure. Stein has provided a long list of potential harms to foreign relations or activities of
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the United States in the event of release, including “damage to [] a number of our bilateral
relationships with countries whose cooperation is important to U.S. national security, including
some in which public opinion might not currently favor close cooperation with the United
States” and the possibility that the withheld information would “impair the U.S.[’s] ability to
continue [as] an intermediary” in related negotiations. Id., ¶ 27. He further states that the
“ability to obtain information from foreign governments is essential to the formulation and
successful implementation of U.S. foreign policy.” Id., ¶ 26. “Courts in this circuit have
consistently deferred to executive affidavits predicting harm to national security, and have found
it unwise to undertake searching judicial review of such claims.” Unrow Human Rights Impact
Litig. Clinic v. U.S. Dep’t of State, 134 F. Supp. 3d 263, 274 (D.D.C. 2015) (internal quotation
marks and citation omitted). This case is no exception. The Court will take Stein — not the
Internet — at his word.
Nor is there any basis to a possible claim that State has waived its classification authority
through an official acknowledgment. It is true that, where “the government has officially
acknowledged information, a FOIA plaintiff may compel disclosure of that information even
over an agency’s otherwise valid exemption claim.” ACLU v. U.S. Dep’t of Defense, 628 F.3d
at 620 (citing Wolf, 473 F.3d at 378). Yet, the Stein Declaration explicitly states that “the
Department has not previously authorized or officially acknowledged public release of” the
specific information withheld. See Stein Decl., ¶ 21 (emphasis added). ACLJ points to no
evidence to the contrary. Although courts typically assess official acknowledgments through a
multi-factor test, see ACLU, 628 F.3d at 620–21, given the express and plausible assertions by
State on this question, the Court sees no reason to go that far. See Stein Decl., ¶ 21. If
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Exemption 1 were considered waived every time a controversial issue was discussed on the
Internet, then even the most sensitive information would be subject to disclosure.
Plaintiff then points to a letter written by certain members of Congress to President
Trump that requested that the information be declassified. See Opp. at 12; Letter to Donald J.
Trump, President of the United States, from Members of the United States House of
Representatives (Apr. 18, 2018). It is a dangerous proposition indeed that executive-branch
determinations should be overruled by a simple missive from a few members of the legislature.
Such a theory would overturn years of deference to executive affidavits in matters of national
security and potentially implicate separation of powers. See, e.g., Larson, 565 F.3d at 865; cf.
Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) (holding that district court erred by
“perform[ing] its own calculus as to whether or not harm to the national security or to
intelligence sources and methods would result from disclosure”). It is the Executive, not
Congress and not the Court, who has the expertise to make such determinations.
3. Embarrassment
Plaintiff takes a final swing, positing that State is merely trying to save face by
classifying this hot-button information. See Opp. at 13. It is true that E.O. 13526 § 1.7(a)
provides that classification shall not be used to “prevent embarrassment to a person,
organization, or agency.” ACLJ’s argument, however, is mere unsupported speculation, and the
Court will not entertain it. See, e.g., Competitive Enter. Inst., 319 F. Supp. 3d at 418 (rejecting
conclusory assertion that agency classified document to avoid embarrassment); Billington v.
Dep’t of Justice, 11 F. Supp. 2d 45, 58 (D.D.C. 1998), aff’d in part, vacated in part, 233 F.3d 581
(D.C. Cir. 2000) (rejecting “speculative evidence” that document was redacted to prevent
embarrassment where FBI had stated that it withheld information because it was provided based
16
on promise of confidentiality). Even if certain portions could be considered embarrassing to
State, “it would nonetheless be covered by Exemption 1 if, independent of any desire to avoid
embarrassment, the information withheld [was] properly classified.” Wilson v. Dep’t of Justice,
No. 87-2415, 1991 WL 111457, at *2 (D.D.C. June 13, 1991) (citing Lesar, 636 F.2d at 483). In
light of the Court’s finding that State properly classified the information, it finds no reason why
potential embarrassment should outweigh protection of national security.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendant’s Motion for Summary
Judgment. A separate Order so stating will issue with this Opinion.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: December 4, 2018
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