Smith v. U.S. National Archives and Records Administration ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
GRANT F. SMITH, )
)
Plaintiff, )
)
v. ) Civil Action No. 1:18-cv-2048 (TSC)
)
)
UNITED STATES NATIONAL ARCHIVES )
AND RECORDS ADMINISTRATION )
(NARA), )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Grant F. Smith, proceeding pro se, has sued Defendant U.S. National Archives
and Records Administration (“NARA”) seeking to compel responses to his two Freedom of
Information Act (“FOIA”) requests. Pending before the court are NARA’s motion for summary
judgment under Federal Rule of Civil Procedure 56, (ECF No. 10), and Smith’s cross-motion for
summary judgment, (ECF No. 13).
For the reasons set forth below, the court will GRANT Defendant’s Motion for Summary
Judgment and will DENY Plaintiff’s Cross-Motion for Summary Judgment.
I. BACKGROUND
Smith is a public interest researcher and founder of the Institute for Research: Middle
Eastern Policy, Inc. (ECF No. 1. (“Compl.”) ¶ 3.) On June 29, 2018, he filed a FOIA request
with the George W. Bush Presidential Library (“Bush Library”) and a request with the William J.
Clinton Presidential Library (“Clinton Library”). (Id. ¶ 5.) Both presidential libraries are
operated by NARA. (Id.) The requests seek letters from Presidents Bush and Clinton to Israel
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regarding the Nuclear Non-Proliferation Treaty. (Id. Ex. A, Ex. B.) NARA denied both FOIA
requests by issuing a Glomar response, neither confirming nor denying the existence of the
letters. (Id. Ex. C, Ex. D.) Smith appealed the denials on July 16, 2018. (Id. Ex. F, Ex G.)
Before those appeals were processed, Smith filed this suit to compel disclosure of the requested
documents. (Id.)
NARA moved for summary judgment on December 20, 2018, on the basis that the Bush
Library response is unreviewable and the Clinton Library’s Glomar response was proper. (ECF
No. 10-1 (“Def. Br.”) at 2, 6.) Smith cross-moved for summary judgment. (ECF No. 13.)
II. LEGAL STANDARD
A. Summary Judgment
Summary judgment is proper where the record shows there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Waterhouse v. District of Columbia, 298
F.3d 989, 991 (D.C. Cir. 2002). Courts must view “the evidence in the light most favorable to
the non-movant[ ] and draw[ ] all reasonable inferences accordingly,” and determine whether a
“reasonable jury could reach a verdict” in the non-movant’s favor. Lopez v. Council on Am.–
Islamic Relations Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016). “Where the non-
moving party is proceeding pro se, courts in this jurisdiction will construe the non-moving
party’s filings liberally.” Cunningham v. U.S. Dep’t of Justice, 40 F. Supp. 3d 71, 82 (D.D.C.
2014), aff’d, No. 14-5112, 2014 WL 5838164 (D.C. Cir. Oct. 21, 2014). “However, a pro se
litigant still has the burden of establishing more than ‘[t]he mere existence of a scintilla of
evidence’ in support of his position.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986).
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B. Presidential Records Act
Congress passed the Presidential Records Act of 1978 (“PRA”) in order to: (1) guarantee
“public ownership of presidential records and ensure the preservation of presidential records for
public access after the termination of a President’s term in office” and (2) “minimize outside
interference with day-to-day-operations of the President and his closest advisors and ensure
executive branch control over presidential records during the President’s term in office.”
Judicial Watch, Inc. v. Nat’l Archives and Records Admin., 845 F. Supp. 2d 288, 296 (D.D.C.
2012) (quoting Armstrong v. Bush, 924 F.2d 282, 290 (D.C. Cir. 1991)). The PRA delegates to
the Archivist of the United States “responsibility for the custody, control, and preservation of,
and access to, the Presidential records of that President.” 44 U.S.C. § 2203(f)(1). The Act also
has several provisions governing restrictions on access to presidential records.
The PRA allows the President, before leaving office, to restrict access to certain
categories of presidential records for up to twelve years. 44 U.S.C. § 2204(a). The President
may restrict access to materials “specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or foreign policy and . . . in
fact properly classified pursuant to such Executive order.” 44 U.S.C. § 2204(a)(1). 1 During the
period of restricted access, the Archivist’s determinations regarding access to presidential
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The other categories of materials are: “(2) relating to appointments to Federal office;
(3) specifically exempted from disclosure by statute (other than sections 552 and 552b of title 5,
United States Code, provided that such statute (A) requires that the material be withheld from the
public in such a manner as to leave no discretion on the issue, or (B) establishes particular
criteria for withholding or refers to particular types of material to be withheld); (4) trade secrets
and commercial or financial information obtained from a person and privileged or confidential;
(5) confidential communications requesting or submitting advice, between the President and the
President's advisers, or between such advisers; or (6) personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted invasion of personal
privacy.” 44 U.S.C. § 2204(a)(2)–(6).
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records are immune from judicial review. 44 U.S.C. § 2204(b)(3). But “courts are accorded the
power to review guidelines outlining what is, and what is not, a ‘presidential record’ under the
terms of the PRA.” Armstrong v. Exec. Office of the President (Armstrong II), 1 F.3d 1274,
1290 (D.C. Cir. 1993).
C. FOIA
“FOIA provides a ‘statutory right of public access to documents and records’ held by
federal government agencies.” Citizens for Resp. and Ethics in Wash. v. U.S. Dep’t of Justice,
602 F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir.
1982)). FOIA requires that federal agencies comply with requests to make their records
available to the public, unless such “information is exempted under [one of nine] clearly
delineated statutory [exemptions].” Id. (quoting Pratt, 673 F.2d at 413) (internal quotation
marks omitted); see also 5 U.S.C. §§ 552(a)–(b).
The district court conducts a de novo review of the government’s decision to withhold
requested documents under any of FOIA’s specific statutory exemptions. See 5 U.S.C.
§ 552(a)(4)(B). The government agency bears the burden of showing that nondisclosed,
requested material falls within a stated exemption. See Petroleum Info. Corp. v. U.S. Dep’t of
Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)). “FOIA cases
typically and appropriately are decided on motions for summary judgment.” Georgacarakos v.
FBI, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quoting Defs. of Wildlife v. U.S. Border Patrol,
623 F. Supp. 2d 83, 87 (D.D.C. 2009)).
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In FOIA cases, including those where an agency issues a Glomar 2 response, summary
judgment may be based solely on information provided in the agency’s supporting declarations.
See Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007) (“Proper invocation of, and affidavit
support for, either Exemption, standing alone, may justify the CIA’s Glomar response.”); Am.
Civ. Liberties Union (ACLU) v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011) (“An
agency withholding responsive documents from a FOIA release bears the burden of proving the
applicability of claimed exemptions. Typically it does so by affidavit.”). “If an agency’s
affidavit describes the justifications for withholding the information with specific detail,
demonstrates that the information withheld logically falls within the claimed exemption, and is
not contradicted by contrary evidence in the record or by evidence of the agency’s bad faith, then
summary judgment is warranted on the basis of the affidavit alone.” ACLU, 628 F.3d at 619(citations omitted). “Ultimately, an agency’s justification for invoking a FOIA exemption is
sufficient if it appears ‘logical’ or ‘plausible.’” Id. (quoting Larson v. U.S. Dep’t of State, 565
F.3d 857, 862 (D.C. Cir. 2009)). In order to overcome an agency’s “showing that it complied
with the FOIA, the plaintiff must come forward with ‘specific facts’ demonstrating that there is a
genuine issue with respect to whether the agency has improperly withheld extant agency
records.” Span v. U.S. Dep’t of Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (citing U.S.
Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).
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A Glomar response is a “response to a FOIA request, in which an agency states that it can
‘neither confirm nor deny’ the existence of responsive records, [named] after a case concerning a
FOIA request for records relating to an underwater sea craft called the ‘Glomar Explorer.’”
Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 896 n.2 (D.C. Cir. 1995)
(citing Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976)).
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An agency issuing a Glomar response is entitled to summary judgment if it shows
through affidavits or declarations that “acknowledging the mere existence of the responsive
records would disclose exempt information.” Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931
(D.C. Cir. 2012). “In Glomar cases courts may grant summary judgment on the basis of agency
affidavits that contain ‘reasonable specificity of detail rather than mere conclusory statements,
and if they are not called into question by contradictory evidence in the record or by evidence of
agency bad faith.’” Id. at 332 (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C.Cir.1982)).
“The supporting affidavit must justify the Glomar response based on ‘general exemption review
standards established in non-Glomar cases.’” Id. (quoting Wolf, 473 F.3d at 374–75).
III. ANALYSIS
A. FOIA Request to Bush Library
NARA moves for summary judgment on Smith’s FOIA request to the Bush Library for
an alleged letter from President Bush to Israel regarding the Nuclear Non-Proliferation Treaty.
NARA argues that its Glomar response is unreviewable because President Bush’s presidential
records are still subject to the twelve-year restricted period under the PRA. (Def. Br. at 6–7.)
Smith contends first that the requested Bush letter is not properly classified, and second, that
John Laster, Director of the Presidential Materials Division at NARA, is not a proper
classification authority. (ECF No. 11-1 (“Pl. Br.”) at 48–52.)
Pursuant to the PRA, President George W. Bush invoked the twelve-year restriction
period for his presidential records falling under § 2204(a), including for properly classified
documents in the interest of national defense or foreign policy. (ECF No. 10-2 (“Laster Decl.”)
¶ 13; ECF No. 16-1.) That period does not expire until January 2021. (Laster Decl. ¶ 13.)
During the twelve-year restricted period, the Archivist’s determination to restrict access to
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presidential records under § 2204(a) is not subject to judicial review, except where the President
himself challenges a determination that violates his rights or privileges. 44 U.S.C. § 2204(b)(3),
(e); see also Armstrong II, 1 F.3d at 1293 (“[D]ecisions that involve materials that are truly
presidential records are immune from judicial review[.]”).
While it cannot review the Archivist’s determination regarding access to a restricted
presidential record, the court must determine whether the material sought is a presidential record
in the first instance. The PRA defines “Presidential records” as “documentary materials, or any
reasonably segregable portion thereof, created or received by the President . . . in the course of
conducting activities which relate to or have an effect upon the carrying out of the constitutional
statutory, or other official or ceremonial duties of the President.” 44 U.S.C. § 2201(2). The
document sought, a letter sent from President Bush during his presidency to a foreign state
regarding foreign policy, satisfies the definition of presidential records under the PRA. Because
the requested material is a presidential record and the twelve-year restriction period is still in
place, the PRA precludes judicial review of the Archivist’s determination restricting access to the
document sought.
Smith further argues that the Director of Presidential Materials Division, John Laster,
does not have proper authority to restrict access to presidential records under the PRA. (Pl. Br.
at 51.) Though the basis for Smith’s assertion is unclear, the court assumes that it rests on the
language in the PRA repeatedly referring to “the Archivist.” Section 2104(b), which governs the
role of the Archivist, permits delegation of “any of the functions of the Archivist to such officers
and employees of the Administration as the Archivist may designate.” 44 U.S.C. § 2104(b).
Pursuant to this section, NARA issued a policy directive delegating authority to administer
restrictions on presidential records to the Director of the Presidential Materials Division. (ECF
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No. 16-2 (“NARA Policy Directive”) § 13(c).) Given the policy directive’s delegation, Laster is
properly authorized to impose presidential restrictions under the PRA.
Smith also argues that the court has jurisdiction to review the Bush Library’s restriction
on the documents withheld because he has alleged a criminal conspiracy to violate the Arms
Export Control Act (“AECA”), the substance of which is discussed in detail below. (ECF No. 18
(“Pl. Opp’n”) at 15–18.) The PRA does allow for special access to presidential records
“pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for
the purposes of any civil or criminal investigation or proceeding.” 44 U.S.C. § 2205(2)(A). But
Smith has not proffered any issued subpoenas or investigations related to the information sought,
and the court is unaware of any. Thus, § 2205(A)(2) is inapplicable.
Accordingly, the court finds that NARA is entitled to summary judgment on whether the
PRA precludes judicial review of Smith’s FOIA request for the letter President Bush.
B. FOIA Request to Clinton Library
NARA moves for summary judgment on Smith’s FOIA request to the Clinton Library
seeking an alleged letter from President Clinton to Israel regarding the Nuclear Non-Proliferation
Treaty. NARA issued a Glomar response and argues that the response was proper under FOIA
exemption 1. (Def. Br. at 7–14.) Smith argues that: (1) NARA has not met its burden to justify
its Glomar response under exemption 1 (Pl. Br. at 19–23, 29–39), (2) the Glomar response was
improper because a letter signed by Clinton recognizing a policy of ambiguity towards Israel’s
nuclear weapons program has been officially acknowledged (id. at 23–39), (3) in camera review
is necessary to determine whether the requested letter is properly classified (id. at 56–57), and
(4) the requested letter reveals violations of the AECA, (id. at 39–48).
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1. NARA has met its burden to justify its Glomar response.
An agency may respond to a FOIA request by issuing a Glomar response—refusing to
confirm or deny the existence of records. A Glomar response is “an exception to the general rule
that agencies must acknowledge the existence of information responsive to a FOIA request and
provide specific, non-conclusory justifications for withholding that information . . . .” Roth v.
U.S. Dep’t of Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011). A Glomar response is permitted
only when confirming or denying the existence of agency records “would itself ‘cause harm
cognizable under a[] FOIA exception.’” Id. (quoting Wolf, 473 F.3d at 374). Summary
judgment may be based solely on information provided in an agency’s supporting declaration if
that declaration sufficiently justifies that the existence or not of the sought records falls within a
FOIA exemption. See Wolf, 473 F.3d at 375; ACLU, 628 F.3d at 619.
Here, NARA asserts that its Glomar response is proper because exemption 1 applies to
the sought records. Exemption 1 permits withholding information that is “specifically authorized
under the criteria established by an Executive order to be kept secret in the interest of national
defense or foreign policy” and is “properly classified.” 5 U.S.C. § 552(b)(1)(A). NARA argues
that the information requested by Smith is properly classified under sections 1.4(b) and (d) of
Executive Order 13,526. (Def. Br. at 8–10 (citing Exec. Order No. 13,526, 75 Fed. Reg. 707(Jan. 5, 2010)).) In support of its Glomar response, NARA submitted a declaration from John P.
Fitzpatrick, Senior Director, Records Access and Information Security Management Directorate
of the National Security Council. (ECF No. 10-3 (“Fitzpatrick Decl.”) ¶ 1.) Smith argues that
the Fitzpatrick Declaration is inadequate to establish that exemption 1 applies. (Pl. Opp’n at 13.)
Smith’s arguments are unpersuasive.
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a. NARA’s Declaration sufficiently establishes that exemption 1 applies.
To determine whether NARA’s Glomar response is justified, the court must consider
whether the fact of the existence or non-existence of the requested records falls within exemption
1. See Roth, 642 F.3d at 1178. When evaluating whether an agency has properly withheld
information under exemption 1 “the only question is whether the disputed document is properly
classified under the applicable Executive Order.” Ctr. for Int’l Envtl. Law v. Office of U.S. Trade
Representative, 718 F.3d 899, 904 (D.C. Cir. 2013). Executive Order 13,526 governs proper
classification under § 552(b)(1). Exec. Order No. 13,526, 75 Fed. Reg. 707 (Jan. 5, 2010). It
requires the following elements for proper classification: 1) an “original classification authority”
must classify the information; 2) the information must be “owned by, produced by or for, or [be]
under the control of the United States Government”; 3) the information falls under one or more
of the eight categories enumerated in § 1.4 of Executive Order 13,526; and 4) an “original
classification authority determine[] that the unauthorized disclosure of the information
reasonably could be expected to result in damage to the national security” that the authority can
identify or describe. Id. § 1.1.
First, the Fitzpatrick Declaration establishes—and Smith does not dispute—that
Fitzpatrick has proper classification authority pursuant to Executive Order 13,526. (See
Fitzpatrick Decl. ¶ 2.) Second, information regarding the existence of a presidential letter is
“owned” and “produced” by the United States government. Third, the information at issue—an
alleged letter from President Clinton communicating to Israel the United States’ diplomatic
posture on Israel’s nuclear development—pertains to sections 1.4(b) and (d) of Executive Order
13,526, as it “could confirm or refute the substance of information exchanged between the
United States and one or more foreign governments.” (Id. ¶ 9.) Thus, the Declaration
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establishes that the information withheld satisfies the first three criteria for proper classification
under Executive Order 13,526.
Fourth, the Fitzpatrick Declaration also points out that acknowledging the existence of a
presidential letter addressed to members of Israel’s government regarding the Nuclear Non-
Proliferation Treaty would, among other things,
undermin[e] the foreign relations objectives of the United States by sowing doubt
about the U.S. commitment to the Non-Proliferation Treaty . . . eliminating strategic
ambiguity (i.e., whether or not an allied foreign state maintains certain capabilities)
. . . undermin[e] relations with an important ally by revealing information shared
with an expectation of confidentiality; undermin[e] U.S. government policy
limiting the potential for an arms race in a particular region; serv[e] as confirmation
for adversaries that there is no such information; undermin[e] relations with other
nations by suggesting differential treatment; and reveal[] the relationship (or
absence of such a relationship) with foreign intelligence agencies.
(Id. ¶ 10.) Fitzpatrick further states that acknowledging whether such a letter exists “could
reveal the United States’ regional interests, and relationships” and allow the country’s
adversaries to “exploit this information to gain a more accurate picture of the U.S. Government’s
activities and interests, which would impair the effectiveness of the President’s foreign policy.”
(Id.)
Fitzpatrick’s lengthy summary of the harmful national security consequences of
acknowledging the letter satisfies the final requirement for classification under Executive Order
13,526. See Competitive Enter. Inst. v. U.S. Dep’t of Treasury, 319 F. Supp. 3d 410, 419
(D.D.C. 2019) (“[T]he disclosure of information that may impact future negotiations between the
United States and foreign nations, or that may damage the United States’ ability to speak
candidly with or about foreign nations[] poses sufficient potential harm to ‘foreign relations’ to
justify classification under EO 13,526 and nondisclosure under Exemption 1.” (citing Judicial
Watch, Inc. v. U.S. Dep’t of Justice, 306 F. Supp. 2d 58, 65–66 (D.D.C. 2004)).
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The detail in the Fitzpatrick Declaration is enough to support a Glomar response. See,
e.g., Baez v. U.S. Dep’t of Justice, 647 F.2d 1328, 1336–37 (D.C. Cir. 1980) (affidavit stating
that producing documents would reveal cooperation with foreign intelligence service was
sufficient to affirm summary judgement for the agency); Frugone v. CIA, 169 F.3d 772, 774–75
(D.C. Cir. 1999) (CIA affidavit stating disclosure would increase tensions between the United
States and a foreign sovereign sufficiently supported Glomar response); Judicial Watch, Inc. v.
U.S. Dep’t of Commerce, 337 F. Supp. 2d 146, 164 (D.D.C. 2004) (citing Pub. Citizen v. U.S.
Dep’t of State, 276 F.3d 634 (D.C. Cir. 2002) (agency’s explanation that disclosing information
could enable foreign adversaries to identify U.S. intelligence activities, sources, or methods was
enough to support summary judgment). “[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), and the Fitzpatrick Declaration
provides such an assertion.
Because the Fitzpatrick Declaration logically and plausibly supports NARA’s conclusion
“that acknowledging the mere existence of the responsive records would disclose exempt
information,” Elec. Privacy Info. Ctr. v. NSA, 678 F.3d at 931, NARA has met its burden of
showing that exemption 1 protects the information sought from disclosure.
b. Smith fails to show that NARA acted in bad faith.
Smith also argues that the Fitzpatrick Declaration is tainted by bad faith. (Pl. Br. at 29–
39.) This claim, too, is unavailing.
An affidavit that is otherwise adequate may be “controverted . . . by evidence of agency
bad faith.” Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984) (quoting Military Audit Project
v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1982). But the presumption of good faith accorded to
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agency affidavits “cannot be rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs. Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (quoting Ground Saucer Watch Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
Smith can show bad faith by demonstrating that “the record raises substantial doubts regarding
the agency’s efforts.” Elec. Privacy Info. Co. v. U.S. Dep’t of Homeland Sec., 384 F. Supp. 2d
100, 107 (D.D.C. 2005).
Most of Smith’s bad faith argument consists of speculative and unsubstantiated
allegations that the information contained in the Fitzpatrick Declaration is inaccurate and
misleading. For instance, Smith suggests that the letters are “probably not classified,” (Pl. Br. at
31), and that parts of the Declaration are suspicious because they are “boilerplate from another
FOIA request,” (id. at 37). He also argues that revealing the existence of the letter he seeks
would not disclose classified information because the government has previously released facts
involving the United States’ policy of ambiguity towards Israel’s nuclear weapons program. (Id.
at 31.) But, as discussed below, Smith points to no facts indicating that the document he seeks—
a letter from President Clinton embracing such a policy—has been officially acknowledged, such
that NARA would be acting in bad faith by declining to confirm or deny its existence. Because
Smith has “presented no actual evidence refuting any statements” in the Declaration, Voinche v.
FBI, 412 F. Supp. 2d 60, 72 (D.D.C. 2006), he has failed to raise “substantial doubts” that
NARA acted in good faith. Elec. Privacy Info. Co. v. U.S. Dep’t of Homeland Sec., 384 F. Supp.
2d at 107.
Smith also argues that Fitzpatrick lacks credibility as a declarant because he did not
disclose that he is a former NARA employee. (Pl. Br. at 29.) But that nondisclosure is not
material to the credibility of his statements. As with his other bad faith claims, Smith’s
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allegation that Fitzpatrick is inherently biased because of his prior employment is entirely
speculative and not substantiated by any “actual evidence.” Voinche, 412 F. Supp. 2d at 72.
In sum, Smith has failed to rebut the presumption of good faith that the court accords to
the otherwise satisfactory Fitzpatrick Declaration. Accordingly, this court finds that NARA is
entitled to summary judgment on whether it properly issued a Glomar response under
exemption 1.
2. Smith fails to show that the alleged Clinton letter has been officially acknowledged.
A plaintiff may overcome an otherwise valid Glomar response by showing that the
agency has publicly and officially acknowledged the sought records. See Am. Civ. Liberties
Union v. CIA, 710 F.3d 422, 426–27 (D.C. Cir. 2013). In Glomar cases, “if prior disclosure
establishes the existence (or not) of records responsive to the FOIA request, the prior disclosure
necessarily matches both the information at issue—the existence of records—and the specific
request for that information.” Wolf, 473 F.3d at 379. The court must analyze only whether the
prior disclosure acknowledges the existence of the records sought, not whether the content of the
records has been disclosed. See Marino v. Drug Enf’t Admin., 685 F.3d 1076, 1081 (D.C. Cir.
2012).
Smith argues that NARA’s Glomar response was improper because there has been
official acknowledgment of the “longstanding, coerced U.S. policy of ‘ambiguity’ towards
Israel’s nuclear weapons program.” (Pl. Br. at 20.) To support this argument, he points to a
1969 memorandum from Henry Kissinger to President Nixon, remarks by President Obama in
2010, and an article in The New Yorker on United States-Israel nuclear policy, each of which, he
contends, constitutes an official acknowledgment that President Clinton signed a letter
recognizing the U.S. policy of ambiguity. (Id. at 22–27.)
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a. The Kissinger Memorandum
Smith first contends that a July 1969 memorandum from Henry Kissinger to President
Nixon is sufficiently similar to the requested information to satisfy the official acknowledgment
requirement. (Pl. Br. at 24–26.) The memorandum, titled “Critical Technology Assessment in
Israel and NATO Nations,” outlines the parameters of the United States’ ambiguity towards
Israel’s nuclear capabilities, but does not refer to any presidential letters on the topic. (See ECF
No. 11-5.)
While the Kissinger memorandum sheds light on the United States’ foreign policy
concerns related to Israel’s nuclear capacity in 1969, the memorandum does not—and could
not—show that President Clinton wrote a letter more than two decades later. Because the
information in the Kissinger memorandum does not “necessarily match” the information at
issue—the existence of the Clinton letter—the memorandum does not establish the existence of
records responsive to Smith’s FOIA request. See Wolf, 473 F.3d at 379.
b. President Obama’s statement
Next, Smith points to a July 2010 speech by President Obama, during which he stated
that he and Israeli Prime Minister Benjamin Netanyahu had “discussed issues that arose out of
the [July 2010] nuclear nonproliferation conference” and remarked that he had “reiterated to the
Prime Minister that there is no change in U.S. policy when it comes to these issues.” (Pl. Br. at
26–27.) With these statements, Smith argues, President Obama “publicly verified” the contents
of a letter reflecting the policy of ambiguity towards Israel’s nuclear weapons program. (Id.)
Smith then argues that because President Obama’s alleged letter renewed the policy and he
publicly recognized the policy, President Clinton’s letter regarding the same policy has been
officially acknowledged. (Id.)
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Publicly recognizing a certain foreign policy approach is not the same as acknowledging
a specific letter officially committing the United States to that policy. Cf. Competitive Enter.
Inst. v. NSA, 78 F. Supp. 3d 45, 57 (D.D.C. 2015) (finding that general statements that “the
intelligence community . . . is looking at phone numbers and durations of calls” cannot be
extrapolated to be an official acknowledgment that the intelligence community had data records
for specific persons’ phone accounts). President Obama’s statement regarding United States
policy on nuclear non-proliferation issues does not confirm that President Clinton had previously
signed a letter recognizing the same policy, as Smith alleges. Thus, President Obama’s 2010
remarks do not “necessarily match” Smith’s requested letter and fail to qualify as an official
acknowledgement that the document sought exists. See Wolf, 473 F.3d at 379.
c. The New Yorker article
Finally, Smith suggests that an article from The New Yorker on U.S.-Israeli nuclear
policy counts as an official acknowledgement that the letter he seeks from the Clinton Library
exists, because the article, relying on information from unnamed government sources, reported
that President Clinton signed a secret letter reaffirming the U.S. policy of ambiguity towards
Israel’s nuclear arsenal. (Pl. Br. at 22. (citing Adam Entous, How Trump and Three Other US
Presidents Protected Israel’s Worst-Kept Secret, The New Yorker, June 18, 2018).)
The New Yorker article does not amount to an official acknowledgment. A disclosure is
not “official” when it is “made by someone other than the agency from which the information is
being sought.” Frugone, 169 F.3d at 774. “[S]peculation by the press—no matter how
widespread—and disclosures in the press from unnamed sources are not sufficient to waive an
agency’s right to withhold information under FOIA.” Competitive Enter. Inst. v. NSA, 78 F.
Supp. 3d at 59; see also Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990) (“It is one thing
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for a reporter or author to speculate or guess that a thing may be so or even, quoting undisclosed
sources, to say that it is so; it is quite another thing for one in a position to know of it officially to
say that it is so.” (quoting Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir. 1975)).
Thus, The New Yorker article, which relies on information from unnamed sources, does not
establish that the alleged letters “already have been made public through an official and
documented disclosure.” Wolf, 473 F.3d at 378 (quoting Fitzgibbon, 911 F.2d at 765).
Because neither the Kissinger memorandum nor President Obama’s 2010 remarks
“necessarily match” the information that Smith requests, and The New Yorker article is not an
official disclosure, Smith fails to show any official acknowledgement of an Israel nuclear letter
signed by President Clinton. Accordingly, this court finds that NARA is entitled to summary
judgment on whether it is precluded from invoking exemption 1 because of an official
acknowledgment.
3. In camera review is not warranted.
In challenging the classification of the information he seeks, Smith argues that NARA
improperly failed to search for the letters requested and asks the court to examine the alleged
letters to determine whether they bear original classification markings. (Pl. Br. at 53–57.) But
“to issue a Glomar response, an agency need not create or maintain any tangible records.”
Mobley v. CIA, 924 F. Supp. 2d 24, 49 (D.D.C. 2013). A Glomar response relates to the
existence or non-existence of records, therefore ordering an agency to search for responsive
records or to produce original classification markings in support of its response would undermine
the purpose of Glomar. See People for the Ethical Treatment of Animals v. NIH, 745 F.3d 535,
540 (D.C. Cir. 2014). Because the Fitzpatrick Declaration is sufficient to support NARA’s
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Glomar response, the agency need not conduct a search for any responsive records nor submit
them for in camera review.
4. Smith has not adequately shown concealment of violations of the law.
Section 1.7 of Executive Order 13,526 bars classifying information in order to conceal
violations of the law. Exec. Order 13,526 § 1.7(1), 75 Fed. Reg. 707 (Jan. 5, 2010). A plaintiff
alleging that an agency has classified information to conceal a violation of law “must provide
something more than conjecture to show that the agency’s withholding decision violates
Executive Order 13,526.” Associated Press v. FBI, 265 F. Supp. 3d 82, 96–97 (D.D.C. 2017).
Credible evidence is required. See Canning v. U.S. Dep’t of Just., 848 F. Supp. 1037, 1047–48
(D.D.C. 1994) (rejecting plaintiff’s challenge where plaintiff presented claims “based primarily
on speculation” and failed to present “credible evidence that the agency’s motives for its
withholding decisions were improper or otherwise in violation of E.O. 12356”). 3
Under the AECA, 22 U.S.C. § 2799aa, “no funds made available to carry out the Foreign
Assistance Act of 1961” or other provisions of the AECA “may be used for the purpose of
providing” economic or military assistance to “any country which the President determines” to
be engaged in nuclear weaponry. 22 U.S.C. § 2799aa-1(a)(1).
Smith argues that United States aid to Israel violates the AECA because it is public
knowledge that Israel has a nuclear weapons program. (Pl. Br. at 44–46.) Smith further argues
that the alleged letter sought in his FOIA request is evidence of these violations of the AECA.
But the AECA only bars foreign aid to countries that the President has determined to be
delivering or amassing nuclear reprocessing equipment, materials, or technology. 22 U.S.C.
3
Executive Order 13,526, signed by President Obama on December 29, 2009, was previously
Executive Order 12,356, signed by President Reagan on April 2, 1982. Exec. Order No. 12,356,
47 Fed. Reg. 14874 (1982).
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§ 2799aa-1(a)(1). Smith has not shown that the President has found Israel to be engaging in such
activity, and he lacks standing to compel such a determination. See Smith v. United States, 715
F. App’x 10, 10 (D.C. Cir. 2018) (“The district court correctly concluded that appellant lacked
standing to seek a writ of mandamus directing the President to determine, pursuant to the Arms
Export Control Act of 1961, 22 U.S.C. § 2799aa-1, whether Israel has engaged in certain conduct
related to the development of nuclear weapons.”).
The court therefore cannot find that NARA withheld the alleged letter in order to conceal
violations of law.
IV. CONCLUSION
For the foregoing reasons, NARA’s motion for summary judgment is GRANTED and
Smith’s cross-motion for summary judgment is DENIED.
A corresponding Order will issue separately.
Date: November 27, 2019
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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