UNROW HUMAN RIGHTS IMPACT LITIGATION CLINIC, Plaintiff, v. U.S. DEPARTMENT OF STATE, Et Al., Defendants , 134 F. Supp. 3d 263 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNROW HUMAN RIGHTS IMPACT )
LITIGATION CLINIC, )
)
)
Plaintiff, )
)
v. ) Civil Action No. 13-cv-1573 (KBJ)
)
U.S. DEPARTMENT OF STATE, et al., )
)
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff UNROW Human Rights Impact Litigation Clinic (“UNROW”) is a
“litigation program at American University Washington College of Law” that “provides
pro bono legal representation to clients seeking redress for violations of their human
rights.” (Compl., ECF No. 2, ¶ 11.) Among UNROW’s clients are the Chagossians, a
group of displaced indigenous people from the Chagos Archipelago in the British Indian
Ocean Territory. (See id. ¶ 3.) In 2013, UNROW filed several document requests
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking a particular
diplomatic cable that the United Kingdom allegedly sent to the United States
concerning the British Indian Ocean Territory; UNROW had become interested in the
cable after an international news outlet published a purported copy of the document in
2010. (See Compl. ¶¶ 14–18.) In response to these requests, the State Department
(“State”) and the Defense Intelligence Agency (“DIA” and, collectively, “Defendants”)
informed UNROW that Defendants had located one responsive document and that the
document was being withheld in its entirety on national security and/or foreign relations
grounds. (See id. ¶ 28.) UNROW filed the instant lawsuit on October 15, 2013,
claiming wrongful withholding of agency records in violation of the FOIA, and seeking
an injunction to compel production of the document. (See id. at 8–9.)
Before this Court at present are the parties’ cross-motions for summary
judgment. (See Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. 27, 1–2; Pl.’s
Cross-Mot. for Summ. J. & Opp’n to Defs.’ Mot. (“Pl.’s Cross-Mot.”), ECF No. 29, 1–
2.) 1 Defendants maintain that they have lawfully withheld the responsive document at
issue on the basis of FOIA Exemption 1 because the document is a confidential foreign
relations communication that was properly classified under Executive Order 13526.
(See Defs.’ Mem. in Supp. of Defs.’ Mot. (“Defs.’ Br.”), ECF No. 27, 11–30, at 20–28.)
Meanwhile, UNROW argues that Defendants have waived the ability to invoke
Exemption 1 with respect to the disputed document since, according to UNROW, the
information contained in that document is already available in the public domain and
has been officially acknowledged. (See Pl.’s Mem. in Supp. of Pl.’s Cross-Mot. for
Summ. J. & Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s Br.”), ECF No. 29, 3–45, at 26–
36; see also Pl.’s Reply Mem. in Supp. of Pl.’s Mot. (“Pl.’s Reply”), ECF No. 42, at 8–
11.) UNROW also challenges DIA’s decision to let State make a disclosure
determination on behalf of both Defendants in response to UNROW’s requests (see
Pl.’s Br. at 39–45; Pl.’s Reply at 11–12), and further asks this Court to conduct an in
camera review of the withheld document (see Pl.’s Br. at 36–37; Pl.’s Reply at 15–18).
1
Citations to the documents the parties have filed refer to the page numbers that the Court’s electronic
filing system assigns.
2
Upon consideration of the parties’ submissions, the relevant authorities, and the
record as a whole, this Court concludes that Defendants properly invoked Exemption 1
to withhold the document at issue; that there was nothing improper about how DIA
handled the responsive document once the agency located it; and that there is no need
for this Court to review the document in camera. Consequently, Defendants’ motion
for summary judgment will be GRANTED, and Plaintiff’s cross-motion for summary
judgment will be DENIED. A separate order consistent with this memorandum opinion
will follow.
I. BACKGROUND
UNROW is a self-described advocate for the Chagossian people. UNROW
asserts that the Chagossians “were unlawfully expelled” from the Chagos Archipelago
“in the late 1960s and early 1970s” and that their continued displacement is due to an
“international effort to permanently prevent [their] return and [the] resettlement of”
those islands. (Compl. ¶ 3.) As part of its advocacy, UNROW previously filed FOIA
requests with DIA in 2001, and also with State in 2010, seeking “information
concerning the Islands of the Chagos Archipelago” (Pl.’s Response to Def.’s Statement
of Material Facts & Pl.’s Statement of Material Facts (“Pl.’s SOF”), ECF No. 37-1,
¶ II.1), and “documents concerning the possible resettlement of the Chagos Archipelago
by the Chagossian people” (id. ¶ II.2), respectively. In response to those requests,
Defendants produced a total of forty-two documents, certain portions of which had been
redacted. (See id. ¶¶ II.1–2; see also Letter from Alesia Y. Williams, Chief, DIA FOIA
Staff, to Michael E. Tigar, American University Washington College of Law (Dec. 22,
2009), Ex. G to Pl.’s SOF, ECF No. 37-2, at 2; Letter from Charlene Wright Thomas,
Acting Co-Dir., State Dep’t Office of Info. Programs & Servs. (“IPS”), to Ali Beydoun,
3
UNROW Human Rights Impact Litigation Clinic (Mar. 29, 2011), Ex. H to Pl.’s SOF,
ECF No. 37-3, at 2–3; Exs. I–T to Pl.’s Cross-Mot., ECF Nos. 29-11–29-22.) 2
On December 2, 2010—while State was still processing one of UNROW’s prior
document requests (see Pl.’s SOF ¶ II.2)—The Guardian published a document on its
website that appeared to be a leaked copy of a U.S. diplomatic cable dated May 15,
2009, with the subject line: “HMG FLOATS PROPOSAL FOR MARINE RESERVE
COVERING THE CHAGOS ARCHIPELAGO (BRITISH INDIAN OCEAN
TERRITORY)[.]” (US embassy cables: Foreign Office does not regret evicting Chagos
islanders, The Guardian, Dec. 2, 2010, Ex. U to Pl.’s SOF, ECF No. 37-4, at 2; see also
Pl.’s SOF ¶ II.3.) 3 Three years later, in April of 2013, UNROW submitted the five
FOIA requests at issue in the instant case—one to DIA and four to various offices at
State—attaching the document published in The Guardian and seeking
access to and a copy of the cable from the Embassy of the
United States in London bearing the Reference ID
“09LONDON1156,” sent on May 15, 2009, with the subject
“HMG FLOATS PROPOSAL FOR MARINE RESERVE
COVERING THE CHAGOS ARCHIPELAGO (BRITISH
INDIAN OCEAN TERRITORY).”
(See Letter from UNROW, to Williams (Apr. 22,, 2013), Ex. A to Williams Decl., ECF
No. 27-15, at 1; Letter from UNROW, to IPS (Apr. 22, 2013), Ex. 1 to Hackett Decl.,
ECF No. 27-2, at 2; Letter from UNROW, to Zipora Bullard, FOIA Office, Dep’t of State,
Office of Inspector Gen., Office of Gen. Counsel (Apr. 22, 2014), Ex. 2 to Hackett Decl.,
2
The current record does not specify whether or not UNROW appealed, litigated, or otherwise
contested State and DIA’s redactions with respect to these documents.
3
According to The Guardian’s website, the published document was one of “250,000 cables leaked to
the Guardian by whistleblowers’ website WikiLeaks[.]” US Embassy Cables: The Documents, The
Guardian, http://www.theguardian.com/us-news/series/us-embassy-cables-the-documents (last visited
September 29, 2015).
4
ECF No. 27-3, at 1; Letter from UNROW, to Sheryl L. Walter, Director, IPS (Apr. 23,
2013), Ex. 3 to Hackett Decl., ECF No. 27-4, at 2; Letter from UNROW, to Bullard (Apr.
23, 2013), Ex. 4 to Hackett Decl., ECF No. 27-5, at 1.)
On April 24, 2013, DIA sent UNROW a letter acknowledging receipt of one of
its FOIA requests and explaining that, because State would likely be “the originator” of
such a document, State (and not DIA) would have “final release authority with respect
to [the] request.” (Defs.’ Statement of Material Facts (“Defs.’ SOF”), ECF No. 27, 3–
10, ¶ 15; see also Pl.’s SOF ¶ I.15; Decl. of Alesia Y. Williams, DIA FOIA Services
Section Chief (“Williams Decl.”), ECF No. 27-14, ¶ 5; Letter from Williams to
Beydoun (Apr. 24, 2013), Ex. B to Williams Decl., ECF No. 27-16, at 1.) DIA then
“searched one of the Agency’s primary databases, Web Intelligence Search Engine
(‘WISE’) and located one document that was deemed to be responsive to [UNROW]’s
request based upon the description in the original request letter.” (Defs.’ SOF ¶ 16
(citing Williams Decl. ¶ 6); cf. Pl.’s SOF ¶ I.16.) On May 6, 2013, DIA forwarded that
document to State, along with UNROW’s request, to facilitate State’s “review and
direct reply to [UNROW].” (Decl. of John F. Hackett, Acting Dir., IPS (“Hackett
Decl.”), ECF No. 27-1, ¶ 8; see also Letter from Williams, to IPS (Mar. 6, 2013), Ex. 6
to Hackett Decl., ECF No. 27-7, at 1.) On the same day, DIA sent a second letter to
UNROW stating that DIA had “located one 7-page document that was potentially
responsive to” UNROW’s request and that DIA had referred “the potentially responsive
document . . . [to] State for its review[.]” (Defs.’ SOF ¶ 17 (citing Williams Decl. ¶ 7;
Ex. D to Williams Decl., ECF No. 27-18, at 1).) 4
4
UNROW filed an administrative appeal of DIA’s decision to refer the responsive document to State on
June 11, 2013. (See Defs.’ SOF ¶ 18; Pl.’s SOF ¶ I.18; see also Letter from Williams to Beydoun (Jul.
5
Meanwhile, State had acknowledged receipt of UNROW’s four other FOIA
requests on April 30, 2013. (See Defs.’ SOF ¶ 5 (citing Letter from Mary Therese
Castor, Chief, Requester Commc’ns Branch, IPS, to UNROW (Apr. 30, 2013), Ex. 5 to
Hackett Decl., ECF No. 27-6 at 1–3); see also Pl.’s SOF ¶ I.5.) After reviewing those
requests, State “determined that the only records system reasonably likely to contain the
record sought by [UNROW] was the Central Foreign Policy Records” database. (Defs.’
SOF ¶ 11 (citing Hackett Decl. ¶ 17); cf. Pl.’s SOF ¶ I.11.) State searched the Central
Foreign Policy Records database using the “[m]essage [r]eference [n]umber” in
UNROW’s requests (Defs.’ SOF ¶¶ 13–14) and, according to State, the search returned
“a single responsive record” (id. ¶ 14). (Cf. Pl.’s SOF ¶¶ I.13–14.) State also received
from DIA a copy of UNROW’s request to DIA and the document that DIA had
identified as responsive. (See Defs.’ SOF ¶ 17; see also Pl.’s SOF ¶ I.8.)
On July 5, 2013, State wrote a letter to UNROW in response to UNROW’s FOIA
requests stating that “[r]ecord searches by the Department of State and by the Defense
Intelligence Agency each resulted in the retrieval of one identical document responsive
to [UNROW’s] requests[,]” and explaining that “[a]fter reviewing this document,” State
had “determined that it must be withheld in full” pursuant to FOIA Exemption 1
because “[t]he material [in the document] is currently and properly classified under
Executive Order 13526 in the interest of national defense or foreign relations.” (Letter
9, 2013), Ex. F to Williams Decl., ECF No. 27-20, at 1.) DIA denied UNROW’s appeal on August 20,
2013, informing UNROW “that DIA had no legal authority to make a release determination” with
respect to the document in question. (Defs.’ SOF ¶ 19 (citing Letter from Don Washington, Deputy
Dir., DIA Office of Facilities & Servs., to Beydoun (“Washington Letter”), Ex. G to Williams Decl.,
ECF No. 27-21 at 1).)
6
from Walter, to Beydoun (Jul. 5, 2013), Ex. 10 to Hackett Decl., ECF No. 27-11, at 1;
see also Defs.’ SOF ¶¶ 20–21; cf. Pl.’s SOF ¶¶ I.20–21.) 5
UNROW filed the instant action in federal court on October 15, 2013. (See
Compl.) UNROW’s complaint maintains that Defendants improperly withheld the
document in question (see id. ¶¶ 5–6) and asks this Court to issue an injunction
requiring Defendants to release the document (see id. ¶ 7). Defendants filed their
motion for summary judgment on September 23, 2014 (see Defs.’ Mot.), arguing that
they are entitled to judgment as a matter of law because they “conducted reasonable and
adequate searches for records responsive to [UNROW]’s FOIA requests” (id. at 19) and
provided sufficiently detailed affidavits justifying their invocation of Exemption 1 to
withhold the responsive document in its entirety (see id. at 19–29). UNROW filed its
cross-motion for summary judgment and opposition to Defendants’ motion on October
23, 2014. (See Pl.’s Cross-Mot.) UNROW insists that Defendants may not invoke
Exemption 1 to withhold the document at issue because the document is available in the
public domain and, according to UNROW, Defendants have officially acknowledged its
contents. (See Pl.’s Br. at 28–36.) Moreover, UNROW argues that even if Exemption 1
was properly invoked, Defendants have failed to provide the requisite level of detail
necessary to justify their withholding of the requested document in its entirety. (See id.
at 14–22, 37–39.) Finally, UNROW contends that DIA’s referral of the responsive
5
UNROW filed an administrative appeal challenging State’s withholding of the responsive document
on July 15, 2013. (See Defs.’ SOF ¶ 23 (citing Letter from UNROW, to Chairman, Dep’t of State
Appeals Review Panel (Jul. 15, 2013), Ex. 11 to Hackett Decl., ECF No. 27-12, at 1); see also Pl.’s
SOF ¶ I.23.) State acknowledged receipt of UNROW’s appeal on August 27, 2013, but before State
could grant or deny the appeal, UNROW filed the instant lawsuit in federal court and State
subsequently closed UNROW’s appeal in light of this litigation. (See Defs.’ SOF ¶ 24 (citing Letter
from Lori Hartmann, Appeals Officer, IPS, to UNROW (Aug. 27, 2013), Ex. 12 to Hackett Decl., ECF
No. 27-13, at 1; Hackett Decl. ¶ 14); see also Pl.’s SOF ¶ I.24 (citing Letter from Hartmann, to
UNROW (Mar. 28, 2014), Ex. F to Pl.’s Br., ECF No. 29-8, at 2).)
7
document in its possession to State was improper (see id. at 39–45), and that this
Court’s in camera review of the document in question is necessary to resolve the
parties’ cross-motions for summary judgment (see id. at 36–37).
The parties’ cross-motions for summary judgment are now fully briefed and ripe
for this Court’s review.
II. APPLICABLE LEGAL STANDARDS
“FOIA cases typically and appropriately are decided on motions for summary
judgment.” Sciacca v. FBI, 23 F. Supp. 3d 17, 26 (D.D.C. 2014) (quoting Defenders of
Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (internal quotation
marks omitted)); see Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980)
(explaining that “the development of a factual record would, as a practical matter, be
impossible” without revealing the very information that the government seeks to
protect), aff’d sub nom. Rushford v. Smith, 656 F.2d 900 (D.C. Cir. 1981). Under Rule
56 of the Federal Rules of Civil Procedure, a court must grant summary judgment when
the pleadings, disclosure materials on file, and affidavits “show that there is no genuine
issue as to any material fact and that the movant is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Sciacca, 23 F. Supp. 3d at 26.
The FOIA “expressly places the burden on the agency to sustain its action,” and
the court must review the agency’s action de novo. DOJ v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 755 (1989) (internal quotations omitted); see also
5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey, 656 F.3d 724, 738 (D.C. Cir.
1981). In reviewing the agency action, the Court must analyze the facts and inferences
in the light most favorable to the FOIA requester. See Weisberg v. U.S. Dep’t of
Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). Accordingly, summary judgment for the
8
agency is appropriate if the agency proves that it has “fully discharged its FOIA
obligation[]” to conduct an adequate search for responsive information, Weisberg v.
U.S. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983), and has provided
sufficiently detailed explanations justifying nondisclosure, see Vaughn v. Rosen, 484
F.2d 820, 826–28 (D.C. Cir. 1973).
In the FOIA context, a court may grant summary judgment solely on the basis of
agency affidavits “if the affidavits describe the documents and 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.” Military Audit Project,
656 F.3d at 738. Thus, “[u]ncontradicted, 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). Agency
affidavits “are accorded a presumption of good faith,” SafeCard Servs., Inc. v. SEC, 926
F.2d 1197, 1200 (D.C. Cir. 1991), and “in national security cases . . . Congress has
instructed the courts to accord ‘substantial weight’” to such affidavits, Students Against
Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (internal quotation
marks and citation omitted). Indeed, the D.C. Circuit has adopted a “deferential posture
in FOIA cases regarding the ‘uniquely executive purview’ of national security[,]”
Larson v. Dep’t of State, 565 F.3d 857, 865 (2009); accordingly, the government’s
“arguments needs only be both ‘plausible’ and ‘logical’ to justify the invocation of a
FOIA exemption in the national security context.” ACLU v. U.S. Dep’t of Def., 628
F.3d 612, 624 (D.C. Cir. 2011).
9
III. ANALYSIS
The FOIA mandates broad disclosure of government records to the public, CIA v.
Sims, 471 U.S. 159, 166 (1985), subject to nine enumerated exemptions, see 5 U.S.C.
§ 552(b). For the reasons explained below, this Court concludes (a) that Defendants
properly invoked Exemption 1 and did not waive their right to invoke that Exemption
via public disclosure, (b) that DIA did not err by referring the document to State, and
(c) that in camera review is unnecessary. Consequently, the Court will grant
Defendants’ cross-motion for summary judgment and will order that judgment be
entered in Defendants’ favor.
A. Defendants Properly Invoked FOIA Exemption 1 To Withhold The
Document At Issue Because The Document Is Properly Classified
Pursuant To Executive Order 13526
Exemption 1 excludes from disclosure “matters that are . . . (A) specifically
authorized under criteria established by an Executive order to be kept secret in the
interest of national defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order[.]” Id. § 552(b)(1). State invokes Exemption 1 in the
context of the instant case on the basis of Executive Order 13526. (See Defs.’ Br. at
21.) Information may be classified under that Order if it meets the following
conditions:
(1) [A]n original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control
of the United States Government;
(3) the information falls within one or more of the categories of information
listed in section 1.4 of this order; and
(4) the original classification authority determines that the unauthorized
disclosure of the information reasonably could be expected to result in
damage to the national security, which includes defense against
10
transnational terrorism, and the original classification authority is able
to identify or describe the damage.
Exec. Order. No. 13,526, § 1.1(a). This Court finds that the document at issue
here satisfies each of these criteria.
First of all, both State and DIA establish, by way of respective declarations,
that State is the proper classification authority for the document. (See Hackett
Decl., ¶¶ 23–24, 31; Williams Decl. ¶ 9.) UNROW does not refute these
statements or present evidence to the contrary, and in any event, courts must
“accord substantial weight to an agency’s affidavit concerning the details of the
classified status of the disputed record.” Ray v. Turner, 587 F.2d 1187, 1193 (D.C.
Cir. 1978); see also Fitzgibbon v. CIA, 911 F.2d 755, 762 (D.C. Cir. 1990).
Second, Hackett’s declaration asserts that the withheld document is a
“[State] Department telegram (also known as a ‘cable’)” and that “[t]he
information contained in [the] cable is owned by and under the control of the U.S.
Government.” (Hackett Decl. ¶ 23; see also Williams Decl. ¶ 9.) UNROW does
not dispute these statements—indeed, a diplomatic cable between the United States
and a foreign government is exactly what UNROW seeks from Defendants’
possession. (See Compl. ¶¶ 3–4.)
Third, Defendants establish that the document in question meets the
requirements of Section 1.4 of executive order. This section “details seven
categories of information that may be considered for classification,” Darui v. U.S.
Dep’t of State, 798 F. Supp. 2d 32, 40 (D.D.C. 2011), and the document in this
case falls into two of those categories. First, Section 1.4(b) permits information
to be classified if it “pertains to . . . foreign government information[,]” Exec.
11
Order No. 13,526, § 1.4(b), which is defined as “information provided to the
United States Government by a foreign government or governments, an
international organization of governments, or any element thereof, with the
expectation that the information, the source of the information, or both, are to be
held in confidence,” id. § 6.1(s). Hackett stated in his affidavit that “[t]he
document contains a report of a conversation with senior officials of the British
Government regarding that government’s plans . . . cover[ing] a variety of
sensitive political and strategic considerations,” and that “the entirety of the cable
contains information provided to the United States with the clear expectation of
confidentiality.” (Hackett Decl. ¶ 32.) UNROW not only presents no evidence to
the contrary, but its own allegations about the nature of the document are in accord
with the description that Defendants provide. (See Compl. ¶¶ 3–4; Pl.’s Br. at 15–
17.) Furthermore, information may also be classified pursuant to Section 1.4 of
the executive order if it pertains to “foreign relations or foreign activities of the
United States, including confidential sources.” Exec. Order 13.526, § 1.4(d).
Hackett declared that the document at issue “concerns sensitive aspects of U.S.
foreign relations, including, in particular, issues relating to the plans and
intentions of a foreign government.” (Hackett Decl. ¶ 30.) Again, UNROW does
not contest this description. Thus, the withheld document satisfies Section 1.1(a)
of E.O. 13526 because it falls within the categories listed in Sections 1.4(b) and
1.4(d). See Darui, 798 F. Supp. 2d at 40–41 (finding that requested documents
met the same criteria on the basis of similar averments in an affidavit from a State
Department official).
12
UNROW’s challenge focuses on Section 1.1(a)’s fourth and final
requirement: the classifying authority must “determine[] that the unauthorized
disclosure of the information reasonably could be expected to result in damage to
the national security” and “[be] able to identify or describe the damage.” Exec.
Order 13,526, § 1.4(d). For purposes of Executive Order 13256, “damage to the
national security” means “harm to the national defense or foreign relations of the
United States from the unauthorized disclosure of information, taking into
consideration such aspects of the information as the sensitivity, value, utility, and
provenance of that information.” Id. § 6.1(e)(l). 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,
ACLU, 628 F.3d at 624 (internal quotation marks and citation omitted), because
“judges . . . lack the expertise necessary to second-guess such agency opinions in
the typical national security FOIA case,” Halperin v. CIA, 629 F.2d 144, 148 (D.C.
Cir. 1980).
Hackett explained in his sworn declaration that “[t]he 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 to the U.S. Government,”
such as the document at issue, “would cause . . . [f]oreign governments . . . to be
less willing in the future to furnish information important to the conduct of U.S.
foreign relations, and . . . less disposed to cooperate with the United States in the
achievement of foreign policy objectives[.]” (Hackett Decl. ¶ 28.) Thus, Hackett
13
declared that the document’s disclosure would not only “damag[e] our relations
with the British Government” (id. ¶ 32), but would also impair “future access not
only to the sources of the [document in this case], but also to others who might
provide sensitive information to U.S. officials that is important to U.S. foreign
policy interests” (id. ¶ 30).
This Court finds that Defendants’ affidavits are sufficient to satisfy the
requirements of Section 1.1(a)(4). Defendants do more than “merely recite
statutory standards,” Larson, 565 F.3d at 864; they specifically identify the origin
of the information and articulate the damage its disclosure would do to relations
with the United Kingdom and the chilling effect it would have on U.S. relations
with other countries and other sources of sensitive information. This argument is
perfectly plausible; indeed, courts in this circuit have long recognized the
legitimacy of this species of national security harm in the FOIA context. See, e.g.,
Krikorian v. Dep’t of State, 984 F.2d 461, 464 (D.C. Cir. 1993) (upholding the
withholding of a document under Exemption 1 where “[r]elease of the document
would, in the Department’s judgment, jeopardize ‘reciprocal confidentiality’ and
damage national security”); Darui, 798 F. Supp. 2d at 41 (finding that a document
satisfied Section 1.1(a)(4) of Executive Order 13526 where a State Department
official’s affidavit stated that its disclosure would undermine foreign confidence
in the confidentiality of diplomatic exchanges with the U.S., thereby “chill[ing]
relations with other countries” and “diminishing . . . access to vital sources of
information”); Judicial Watch, Inc. v. U.S. Dep’t of Justice, 306 F. Supp. 2d 58,
66 (D.D.C. 2004) (upholding the withholding of telegrams between a U.S.
14
Embassy and the State Department under Exemption 1 where disclosure “could
adversely affect the persons involved, inhibit the willingness of . . . foreign
government officials to discuss frankly with U.S. government officials matters
affecting our national interests, and damage relations with the Dominican
Republic”). Moreover, the disclosure of a document containing foreign
government information “is presumed to cause damage to national security.”
Exec. Order No. 13,526, § 1.1(d); see Darui, 798 F. Supp. 2d at 41.
UNROW argues that Defendant’s description of the information itself and
the potential harm to national security is insufficiently specific. (Pl.’s Br. at 17–
20.) But any greater specificity would “force [State] to breach its promises of
confidentiality,” Krikorian, 984 F.2d at 464, thereby incurring the very damage
the government seeks to avoid. What is more, “any affidavit or statement of
threatened harm will always be speculative to some extent in the sense that it
describes a potential future harm,” and therefore, the only question for the court
is “whether the predicted danger is a reasonable expectation.” Halperin, 629 F.2d
at 149. This Court finds that Defendants’ detailed affidavits set forth reasons for
invoking Exemption 1 that are both plausible and logical, see ACLU, 628 F.3d at
624, and given the substantial deference owed to government affidavits in this
context, the Court concludes that Defendants have carried their burden.
B. Plaintiff Has Failed To Establish That Defendants Waived The Right
To Invoke Exemption 1
“[W]hen information has been ‘officially acknowledged,’ its disclosure may be
compelled even over an agency’s otherwise valid exemption claim.” Fitzgibbon, 911
F.2d at 765. The logic behind this exception to the invocation of FOIA Exemption 1 is
15
that, in some circumstances, the release of information that is already publicly known
“cannot be expected to cause damage to national security or disclose intelligence
sources[.]” Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983). But courts
have recognized the limits of this argument, because even if a piece of information “is
the subject of widespread media and public speculation, its official acknowledgement
by an authoritative source might well be new information that could cause damage to
the national security.” Id. Consequently, the D.C. Circuit has established three criteria
that must be satisfied in order for a plaintiff to be able to rely on the official
acknowledgement exception:
First, the information requested must be as specific as the
information previously released. Second, the information requested
must match the information previously disclosed . . . . Third, . . . the
information requested must already have been made public through
an official and documented disclosure.
Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007) (quoting Fitzgibbon, 911 F.2d at 765)
(alterations in original).
Although the government bears the burden of proving that its withholding of
information is justified under one of the FOIA exemptions, “a plaintiff asserting a claim
of prior disclosure must bear the initial burden of pointing to specific information in the
public domain that appears to duplicate that being withheld.” Afshar, 702 F.2d at 1130;
accord Wolf, 473 F.3d at 378. The first two criteria “insist[] on exactitude”: “[p]rior
disclosure of similar information does not suffice; instead, the specific information
sought by plaintiff must already be in the public domain by official disclosure.” Wolf,
473 F.3d at 378 (emphasis added). To be sure, this is a “high hurdle for a FOIA
plaintiff to clear, but the Government’s vital interest in information relating to national
16
security and foreign affairs dictates that it must be.” Pub. Citizen v. Dep’t of State, 11
F.3d 198, 203 (D.C. Cir. 1993); see also Stephens v. Dep’t of Justice, 26 F. Supp. 3d
59, 71 (D.D.C. 2014) (“[T]o defeat summary judgment, [the] plaintiff must cite to
particular parts of the record to show that the requested information is identical to that
in the public domain.”). As to the third criteria, “public disclosure alone is
insufficient,” because “the information must also be officially acknowledged.” ACLU
v. Dep’t of State, 878 F. Supp. 2d 215, 223 (D.D.C. 2012) (internal quotations marks
and citation omitted). This is because “there can be a critical difference between
unofficial and official disclosures,” Fitzgibbon, 911 F.2d at 765—“the fact that
information exists in some form in the public domain does not necessarily mean that
official disclosure will not cause [cognizable] harm,” ACLU, 878 F. Supp. 2d at 223
(quoting Wolf, 473 F.3d at 378) (internal quotation marks omitted).
Plaintiff has not carried its burden with regard to any of the three criteria.
1. There Is No Reasonable Argument That State’s July 5th Letter To
UNROW Was An Official Acknowledgment Of The Document That
Exists In The Public Domain
UNROW contends that State’s letter of July 5, 2013, constituted an official
acknowledgement that The Guardian has already published the entirety of the requested
document. (Pl.’s Br. at 30–32.) As mentioned, the letter stated: “Record searches by
the Department of State and by the Defense Intelligence Agency each resulted in the
retrieval of one identical document responsive to your requests.” (Ex. 10 to Hackett
Decl. (“State’s July 5 Letter”), ECF No. 27-11.) And UNROW claims that this sentence
is an admission that the responsive document was “identical” to the copy of the cable
that UNROW had attached to its FOIA request. (See Pl.’s Br. at 35–37.)
17
UNROW’s interpretation is flatly contradicted by Hackett’s affidavit, State
Department policy, and common sense. According to Hackett’s sworn testimony, this
statement was included in State’s letter “to inform Plaintiff that the documents located
separately by the [State] Department and DIA were identical to each other,” and that
“[State] did not make any statement to the effect that the document identified separately
by [State] and DIA . . . is identical to a purported [State] cable allegedly published
online by the Guardian.” (Hackett Decl. ¶ 12 (emphasis in original). Hackett went on
to explain that “[i]t is [State]’s policy to neither confirm nor deny the authenticity of
purported [State] documents that have allegedly been disclosed to the public in an
unauthorized manner.” (Id. ¶ 12 n.2.) And Williams, too, testified that, in its
correspondence with UNROW, DIA expressly “maintained that the correspondence
itself was not an acknowledgment that the responsive record precisely matched the
information plaintiff retrieved from a public website.” (Williams Decl. ¶ 9 (citing
Washington Letter at 1).)
Defendants’ proposed interpretation of the statement made in the July 5th letter
gives the sentence its common sense meaning. The plain and unambiguous role of the
adjective “identical” in the sentence is to make clear that State and DIA each turned up
the same document; without that crucial modifier, the sentence would suggest that the
Departments turned up two different documents, each of which was responsive to
UNROW’s requests. Surely, if State had intended to convey that the responsive
document was identical to UNROW’s attached copy of The Guardian document, it
could have done so more clearly. Moreover, it further undermines UNROW’s stretched
interpretation to realize that it would make no sense for State to withhold the
18
information due to national security concerns while simultaneously admitting the
authenticity of The Guardian document. Thus, this Court does not accept UNROW’s
insistence that the July 5th letter constituted an official acknowledgment.
2. UNROW Has Not Proven That Information In Previously Released
Cables Matches Exactly The Information In The Withheld
Document
Furthermore, to the extent that UNROW maintains that it has met its burden
because Defendants had officially acknowledged “much of the information” through
their previous disclosure of certain cables (Pl.’s Br. at 32; see id. at 32–36), UNROW
misunderstands the governing law. In 2001 and 2010, UNROW submitted FOIA
requests for “information concerning the Islands of the Chagos Archipelago” and “for
copies of documents concerning the possible resettlement of the Chagos Archipelago by
the Chagossian people,” respectively, which resulted in the release of 36 documents
from State. (Id. at 32–33.) UNROW claims that these documents “contain substantially
similar factual information as the information withheld” (id. at 33), and, therefore, that
Defendants have officially acknowledged the information UNROW now seeks and have
waived the right to claim a FOIA exemption (id. at 35). But it is clear beyond cavil
that, for the purpose of demonstrating waiver, “[p]rior disclosure of similar information
does not suffice.” Wolf, 463 F.3d at 378 (emphasis added). Plaintiffs must show the
“the specific information sought . . . [is] already . . . in the public domain by official
disclosure,” id., and UNROW has not done so—it has not pointed to a single iota of
information in the responsive document that Defendants have publically and officially
acknowledged via its prior disclosures. Indeed, all of the public information to which
UNROW points is either only generally related to the responsive document (see Pl.’s
Reply. at 8–9) or, while potentially similar, predates the requested document by at least
19
three years (see Pl.’s Br. at 39–43; Exs. I–T to Pl.’s Mot., ECF Nos. 29-11–22), when
the D.C. Circuit has made clear that a prior disclosure cannot operate as a waiver of
protection for information relating to a time period later than the date of the publicly
documented information. See Fitzgibbon, 911 F.2d at 766; Ashfar, 702 F.2d at 1133.
In the final analysis, then, UNROW finds itself in an unfortunate Catch-22:
everything it asserts about the content of the withheld document is based on The
Guardian document (see Pl.’s Br. at 33, 34), but The Guardian document has never
been officially acknowledged and thus cannot form the basis of a valid waiver claim.
See ACLU, 878 F. Supp. 2d at 224 (“No matter how extensive, the WikiLeaks disclosure
is no substitute for an official acknowledgement and the [plaintiff] has not shown that
the Executive has officially acknowledged that the specific information at issue was a
part of the WikiLeaks disclosure.”). Thus, and also because a plaintiff cannot satisfy its
burden of demonstrating waiver by pointing to general, similar, or categorical
information under this Circuit’s clear precedent, see Wolf, 473 F.3d at 378; Afshar, 702
F.2d at 1130–31, this Court concludes that Plaintiff has failed to establish that
Defendants waived the right to invoke Exemption 1.
C. There Is No Factual Or Legal Basis For This Court To Review The
Document At Issue In Camera Or To Require DIA To Make An
Independent Disclosure Determination
UNROW requests that this Court conduct an in camera review of the withheld
document both to determine whether it contains officially acknowledged information
that was properly withheld and to determine whether Defendants failed to conduct a
segregability analysis. (See Pl.’s Br. at 36–37.) In the exercise of its “broad
discretion,” Center for Auto Safety v. EPA, 731 F.2d 16, 20 (D.C. Cir. 1984), this Court
declines the invitation.
20
1. It Is Unnecessary And Inappropriate For The Court To Conduct An
In Camera Review Of The Withheld Document
Stated simply, Defendants have established that the responsive document
logically and plausibly falls within Exemption 1 (see Section III.A, supra), and it would
not be proper for this Court to conduct further review in order to second guess
Defendants’ determinations. Although the FOIA certainly permits the Court to review
withheld documents at the discretion of the court, 5 U.S.C. § 552(a)(4)(B), it is “neither
necessary [n]or appropriate” to conduct such a review in situations where “the agency
meets its burden by means of affidavit[,]” Hayden v. NSA, 608 F.2d 1381, 1387 (D.C.
Cir. 1979). “If the agency’s affidavits ‘provide specific information sufficient to place
the documents within the exemption category, if this information is not contradicted in
the record, and if there is no evidence in the record of agency bad faith, then summary
judgment is appropriate without in camera review of the documents.’” Larson, 565
F.3d at 870 (quoting Hayden, 608 F.2d at 1387). Put another way, if the government’s
affidavits themselves demonstrate that the document at issue qualifies for a FOIA
Exemption, then this Court should not proceed further. See ACLU, 628 F.3d at 625;
Halperin, 629 F.2d at 148. As already explained, such is the case here.
UNROW’s arguments to the contrary are entirely unpersuasive. First, UNROW
suggests that in camera review is necessary to determine whether the responsive
document is identical to The Guardian document, on the theory that, if this is so, it
confirms UNROW’s interpretation of State’s use of the word “identical” in the July 5th
letter. (See Pl.’s Br at 37.) But this Court has already rejected UNROW’s
interpretation based on the plain language of the letter, supported by affidavit and by
State Department policy. (See Section III.B.1, supra.) UNROW also appears to
21
confuse what is necessary with what is sufficient—while it is necessary that the
withheld document and The Guardian document be identical for UNROW’s
interpretation of the July 5th letter to prevail, that fact alone would hardly be sufficient
to establish the letter’s meaning; that is, even if the documents are identical, State
could nevertheless have intended to use the adjective to refer to the DIA and State
documents in the manner Hackett indicated. Thus, the proper inquiry is not whether or
not the withheld document and The Guardian document are actually identical, but
whether or not State intended to convey as much in its letter to UNROW. In camera
review cannot resolve that question, and this Court declines to conduct such a review
for this purpose.
Next, UNROW insists that in camera review is required to ensure that State
properly conducted its “segregability analysis”—i.e., its determination that no portion
of the responsive document can be segregated and disclosed. It is true that, “[e]ven
when an agency may properly withhold a responsive record under one of FOIA’s
enumerated exemptions, it nevertheless must disclose any non-exempt information that
is ‘reasonably segregable.’” ACLU, 878 F. Supp. 2d at 224 (quoting 5 U.S.C. § 552(b)).
To satisfy this obligation, “the agency ‘must provide a reasonably detailed justification
rather than conclusory statements to support its claim that the non-exempt material in a
document is not reasonably segregable.’” Id. (quoting Mead Data Cent., Inc. v. U.S.
Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977)). While agencies are “entitled
to a presumption that they complied with the obligation to disclose reasonable
segregable material[,]” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C.
Cir. 2007) (citing Boyd v. Criminal Div. of U.S. Dep’t of Justice, 475 F.3d 381, 391
22
(D.C. Cir. 2007)), a FOIA requester can overcome that presumption with its own
evidence, although “the quantum of evidence” required to do so is “not clear[,]” id.
In this case, State asserts (by way of Hackett’s affidavit) that “[t]here is no
meaningful, non-exempt material that may be segregated, declassified, and released,
because the entirety of the cable contains information provided to the United States
with the clear expectation of confidentiality.” (Hackett Decl. ¶ 32.) The affidavit
clearly states that, because the document at issue “contains a report of a conversation
with senior officials in the British Government . . . cover[ing] a wide variety of
sensitive political and strategic considerations[,]” the “[r]elease of any portion of this
material would amount to a serious breach of confidentiality, thereby damaging [U.S.]
relations with the British Government and inhibiting [the U.S.’s] ability to engage in
candid exchanges in the future.” (Id.)
UNROW presumably would like this Court to compare the withheld document to
the previously released cables that UNROW has attached to its cross-motion for
summary judgment (see Exs. I–T to Pl.’s Mot., ECF Nos. 29-11–22), as well as any
other officially acknowledged information in the public domain (see, e.g., Pl.’s Reply at
8–9), to determine whether any portion of the document falls outside of State’s
expressed confidentiality concern such that it may be released. But the agency has
explained that the entire document contains sensitive content, such that even a partial
disclosure would break a promise of confidentiality and chill relations with a foreign
government, and UNROW has not provided any evidence to rebut the presumption that
the agency has complied with its obligations or to show that in camera review is
warranted, even under the pro-disclosure standard articulated by the Supreme Court in
23
National Archives and Records Administration v. Favish, 541 U.S. 157 (2004). See id.
at 174 (holding that a plaintiff can overcome the government’s presumption of
legitimacy by “produc[ing] evidence that would warrant a belief by a reasonable person
that the alleged Government impropriety might have occurred”); see also Sussman, 494
F.3d at 1117 (finding that a challenge to an agency’s segregability analysis failed where
the plaintiff could not meet “[e]ven . . . the less demanding Favish standard”).
UNROW presents no evidence that Defendants’ segregability analysis was
inaccurate or improper, and “it is not the Court’s role to search through a party’s
exhibits . . . with the hope of finding the alleged matching pieces.” Stephens, 26 F.
Supp. 3d at 71. Accordingly, this Court concludes that in camera review would be
inappropriate.
2. DIA Properly Forwarded The Document In Its Possession To State
Finally, this Court also rejects UNROW’s separate contention that DIA acted
improperly when it forwarded its own responsive document to State rather than
releasing it. There is no question that “[i]f an agency receives a FOIA request for
documents within its possession, the agency is responsible for processing the request
and ‘cannot simply refuse to act on the ground that the documents originated
elsewhere.’” Keys v. Dep’t of Homeland Sec., 570 F. Supp. 2d 59, 66 (D.D.C. 2008)
(quoting McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983)). However, it is
equally clear that the law permits an agency to “adopt procedures by which documents
in the agency’s possession, but which did not originate with the agency, may be referred
to the originating agency for processing.” Id.; see McGehee, 697 F.2d at 1110. The
D.C. Circuit has not adopted a “bright line” rule for when referral of responsive records
to another agency constitutes an improper withholding; rather, it has stated that “[t]he
24
legal status of [referral] procedures [is] best determined on the basis of their
consequences.” McGehee, 697 F.2d at 1110–11. Thus, a referral is an improper
withholding of documents “if its net effect is significantly to impair the requester’s
ability to obtain the records or significantly to increase the amount of time [the
requestor] must wait to obtain them[.]” Id. And such a procedure is deemed improper
when the agency cannot “offer a reasonable explanation for its procedure.” Id. at 1110;
see also id. (noting that it would be “highly difficult to justify” “a procedure that, in
practice, imposed very large burdens on requestors (e.g., by compelling [requestors] to
pay huge processing costs or to submit separate requests to a number of independent
bodies) or that resulted in very long delays”).
To assist courts in evaluating the legality of an agency’s referral procedures, the
D.C. Circuit in McGehee suggested a non-binding sample procedure, see McGehee, 697
F.2d at 1111, that focuses on the consequences of an agency referral procedure, and in
particular (1) “whether the originating agency demonstrated an intent to control the
records at issue[;]” (2) “whether the referral was ‘prompt and public’[;]” and (3)
considering “the burden that the referral procedure places on the requestor, including
whether he would be required to file a separate FOIA request to the originating
agency.” Keys, 570 F. Supp. 2d at 67 (citing McGehee, 670 F.2d at 1111). In the
instant case, DIA processed Plaintiff’s FOIA request, determined that the responsive
document originated with State, referred the document to State for its disclosure
determination, and communicated each of these facts to UNROW. (See Williams Decl.
¶ 7; Ex. D to Williams Decl., ECF No. 27-18, at 1.) UNROW asserts that because DIA
possessed a responsive document, DIA itself was obligated to make an independent
25
disclosure determination, and that referring the document to State does not absolve DIA
of this responsibility. (See Pl.’s Cross-Mot. at 44–45.) And while UNROW concedes
that “under typical circumstances,” the procedures DIA followed in this case would be
sufficient (see Pl.’s Reply at 12), it nevertheless insists that DIA must make an
independent disclosure determination because DIA’s “correspondence and declaration
contradict those of [State], creating significant confusion surrounding the record that . .
. DIA retrieved,” (id.).
The confusion that UNROW points to is one of its own invention. UNROW
maintains that State’s response and DIA’s response are in tension because State
indicated that its document was “identical” to The Guardian document, while DIA
expressly refused to acknowledge whether its record “matches the information
[Plaintiff] received from a public website,” and called its document only “potentially
responsive.” (See id.) Once again, Plaintiff’s argument rests on an unreasonable
interpretation of the word “identical” in State’s July 5th letter. Without that
misreading, there is no confusion surrounding the DIA record nor is there any
ambiguity about the possible existence of another responsive document. In other
words, the record is unambiguous that DIA possessed a copy of a seemingly responsive
document that originated with State, and DIA believed State to be the proper authority
to make the determination about responsiveness and disclosure. (See Williams Decl. ¶
9; (Defs.’ Reply in Supp. of Mot. for Summ. J. and Opp’n To Pl.’s Cross Mot. for
Summ. J., (“Defs.’ Reply”), ECF No. 35, at 14.)
Furthermore, UNROW provides no legal authority establishing that DIA failed to
fulfill its statutory obligations. DIA did not “simply refuse to act,” Keys, 570 F. Supp.
26
2d at 66; quite to the contrary, it conducted a record search pursuant to UNROW’s
search parameters (see Williams Decl. ¶ 6), identified a responsive document (see id. ¶¶
6–7), and referred the responsive document to State after it determined that State, not
DIA, had the legal authority to make the disclosure determination (see id. ¶¶ 5, 7; Ex. B
to Williams Decl., ECF No. 27-16, at 1; Ex. D to Williams Decl., ECF No. 27-18, at 1).
Moreover, DIA fully satisfied the non-binding McGehee sample procedure when it
promptly informed UNROW in a public letter that the responsive document originated
with State and that State retained authority over the document, and then promptly
referred the document to State for disclosure determination. See id. at 1111–12.
(Defs.’ Mot. ¶¶ 17, 20.) UNROW also failed to establish that DIA’s procedure
referring the responsive record to State burdened its exercise of rights under the FOIA
in any way—indeed, at the time DIA referred the responsive document to State,
UNROW had already submitted independent and identical FOIA requests to State (see
Defs.’ Mot. ¶¶ 1–4; Ex.B to Williams Decl.)—and there is no factual basis for any
assertion that DIA’s communication to UNROW and referral to State resulted in undue
delay of the disclosure determination for DIA’s responsive document. (See Defs.’ Mot.
¶¶ 1–4.) Thus, this Court rejects UNROW’s contention that DIA acted inappropriately
when it referred to State the responsive document discovered pursuant to UNROW’s
FOIA request. See Keys, 570 F. Supp. 2d at 66.
IV. CONCLUSION
It is clear on the instant record that Defendants have “fully discharged [their]
FOIA obligations[.]” Weisberg, 705 F.2d at 1350. In light of their affidavits, and the
substantial weight they are owed, it is both logical and plausible that the withheld
document is properly classified under Executive Order 13526 and would fall under
27
FOIA Exemption 1. UNROW’s other arguments are unavailing for the reasons
explained above, and it has failed to demonstrate the existence of any dispute of
material fact. Therefore, as set forth in the accompanying order, Defendants’ motion
for summary judgment will be GRANTED, and Plaintiff’s cross-motion for summary
judgment must be DENIED.
DATE: September 29, 2015 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
28