Schoenman v. Federal Bureau of Investigation , 841 F. Supp. 2d 69 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RALPH SCHOENMAN,
Plaintiff,
v.
Civil Action No. 04-02202 (CKK)
FEDERAL BUREAU OF
INVESTIGATION, et al.,
Defendants.
MEMORANDUM OPINION
(January 23, 2012)
Over seven years ago, Plaintiff Ralph Schoenman (“Schoenman”), a self-described
political activist and author, commenced this action against the Central Intelligence Agency (the
“CIA”) and a handful of other federal agencies, citing the Freedom of Information Act (“FOIA”)
and the Privacy Act of 1974 (“PA”) as a basis for the disclosure of a broad array of records
relating to him, Lord Bertrand Russell, and several organizations. Over the years, Schoenman’s
claims for disclosure have been successively winnowed down by the decisions of this Court such
that, today, there is only one “live” substantive issue remaining—namely, the disposition of 120
records that were referred to the CIA by the Federal Bureau of Investigation (the “FBI”) for
processing and a direct response to Schoenman. There are now two motions before the Court
that speak to this issue: the CIA’s [164] Motion for Summary Judgment and Schoenman’s [166]
Cross-Motion for Summary Judgment as to the FBI Records Referred to the CIA (“Cross-Motion
for Summary Judgment”). Upon careful consideration of the parties’ submissions, the relevant
authorities, and the record as a whole, the Court shall GRANT the CIA’s [164] Motion for
Summary Judgment and DENY Schoenman’s [166] Cross-Motion for Summary Judgment. In
addition, because no other viable claims for disclosure remain extant in this case, the Court shall
enter a final judgment, marking the final chapter in this protracted litigation.
I. PRELIMINARY MATTERS
Preliminarily, the Court must address two matters that, once resolved, will define the
scope of the record for the pending cross-motions for summary judgment.
A. Schoenman’s First Motion to Late File
The first preliminary matter to be addressed is Schoenman’s self-styled [171] Unopposed
Motion for Leave to File Reply to Defendants’ Opposition to Plaintiff’s Cross-Motion for
Summary Judmgment [sic] With Respect to CIA Referrals Out-of-Time (“First Motion to Late
File”). Through this motion, Schoenman seeks the Court’s leave to late file two documents in
support of his Cross-Motion for Summary Judgment—specifically, a reply memorandum of
points and authorities and a declaration prepared by his wife. Although the motion is unopposed,
the Court declines to exercise its discretion to allow Schoenman to late file.
In this case, Schoenman did not file his First Motion to Late File until August 8, 2011,
four days after his deadline to act had already expired. See Scheduling & Procedures Order
(“Scheduling Order”), ECF No. [162], at 4; Min. Order (June 20, 2011). As a result, he must do
more than establish that there is “good cause” for the requested extension; he must also show that
his failure to act within the time specified was the product of “excusable neglect.” FED . R. CIV .
P. 6(b)(1); see also FED . R. CIV . P. 16(b)(4) (“A schedule may be modified only for good cause
and with the judge’s consent.”). Schoenman has satisfied neither standard. See generally
Yesudian ex rel. U.S. v. Howard Univ., 270 F.3d 969, 971 (D.C. Cir. 2001) (identifying the
factors that should generally be considered under the “excusable neglect” inquiry).
2
Honoring the parties’ joint request, this Court originally set an exceedingly generous
schedule for the briefing of the pending cross-motions for summary judgment. Under the default
framework supplied by the Local Rules, any motion should be fully briefed somewhere between
twenty-one and twenty-seven days, depending on the method(s) of service employed. See LCV R
7(b), (d); FED . R. CIV . P. 6(d). In this case, the Court afforded the parties, who were already
intimately familiar with the contours of this case, a total of fifty-six days to brief their cross-
motions for summary judgment. See Scheduling Order at 4. According to the schedule set by the
Court, Schoenman’s reply would be the last filing in the series and was due to be filed no later
than July 21, 2011. See id.Despite the generosity of the schedule, Schoenman, citing “developments in other cases
handled by [his] counsel,” previously moved this Court for a further two-week enlargement.
Pl.’s Unopposed Mot. to Revise Briefing Schedule, ECF No. [165], at 1. “Very reluctantly,” the
Court exercised its discretion to grant Schoenman’s motion, extending the briefing schedule an
additional two weeks and giving him until and including August 4, 2011, at close-of-business, to
file his reply papers with the Court. See Min. Order (June 20, 2011). But in so doing, the Court
“underscore[d] that [it was] an extension of an already exceedingly generous briefing schedule”
and warned Schoenman, in no uncertain terms, that “NO FURTHER EXTENSIONS [would] be
granted to either party absent extraordinary circumstances.” Id. (capitalization in original).1
The Court’s generosity proved to be misplaced. Schoenman did not file his reply papers,
1
The Court acknowledges that the CIA was subject to the same warning but nonetheless received a four-
hour extension of one of its filing deadlines. See Min. Order (July 22, 2011). However, unlike here, the length of
the CIA’s delay was modest and its full duration was justified by unforeseen administrative difficulties.
Furthermore, when compared to Schoenman, the CIA has not exhibited the same inability to meet the deadlines set
by the Court nor demonstrated a disregard of Court-ordered deadlines.
3
seek an extension of time, or take any other proactive steps before the August 4, 2011 deadline
expired. Instead, he elected to allow the Court-ordered deadline to come and go without so much
as a peep. Indeed, it was not until four days later, on August 8, 2011, that Schoenman filed his
First Motion to Late File. Plainly, Schoenman did not heed this Court’s prior warnings.
In his First Motion to Late File, Schoenman tenders a litany of excuses for his failure to
abide by the schedule ordered by the Court. While some of those excuses might provide a
legitimate explanation why Schoenman’s counsel was unable to work on this matter for a few
days, or perhaps even a week, they do not satisfy the Court that a reasonably diligent attorney
would be unable to prepare and file the requisite submissions in a timely manner. Under the
specified schedule, Schoenman had twenty-one days after being served with the CIA’s papers to
prepare and file his response—multiples more than the norm. See LCV R 7(d). Even accepting
that Schoenman’s counsel encountered the cited difficulties during this extended period, there
was still more than ample time for a reasonably diligent attorney to prepare and file a cogent,
thoughtful, and well-researched reply. Yet the record is barren of any indication that
Schoenman’s counsel sought to do so. Indeed, Schoenman’s “actions in this case do not bespeak
diligence or any sense of urgency at all.” Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc.,
630 F.3d 217, 226 (D.C. Cir. 2011). Upon consideration of the totality of the circumstances, the
Court finds that Schoenman has failed to discharge his burden of showing that there is “good
cause” for a further extension of his deadline. FED . R. CIV . P. 6(b)(1)(A); FED . R. CIV . P.
16(b)(4).
Moreover, in his First Motion to Late File, Schoenman alleges that he “continued to
believe that he could met [sic] the August 4 deadline until late on August 3rd,” at which point it
4
“became clear that there was still much work to do.” First Mot. to Late File at 3. In other words,
by his own account, Schoenman subjectively believed as early as the day before the expiration of
the Court-ordered deadline that he would be unable to meet that deadline. Despite this
admission, Schoenman offers no satisfactory explanation as to why he still waited another five
days, until his time to act had already expired, to petition the Court for a further extension.2 Far
from “excusable neglect,” FED . R. CIV . P. 6(b)(1)(B), these circumstances evince something
closer to “willful disregard” of the Court’s process, BLACK’S LAW DICTIONARY 1133 (9th ed.
2009), a conclusion that is only bolstered by the fact that Schoenman had long since been on
actual notice that the Court expected him to adhere to the specified schedule and was strongly
disinclined to grant further extensions absent extraordinary circumstances, see Tibbetts v.
Sweetland, No. 02-7151, 2004 WL 287123, at *1 (D.C. Cir. Feb. 3, 2004) (per curiam) (denying
leave to file out of time where party was given a “final warning” that “[n]o further extensions”
would be allowed); Rones v. Nat’l Ass’n for the Advancement of Colored People, 170 F.R.D. 80,
81-82 (D.D.C. 1997) (same). Under these unique circumstances, the Court finds that Schoenman
has failed to establish “excusable neglect” for his failure to act within the time specified. FED . R.
CIV . P. 6(b)(1)(B).
2
Schoenman’s representation that his counsel had a prior commitment to meet with a board member of a
non-profit organization does not constitute a satisfactory explanation. First, Schoenman admits that the multi-day
meeting began no earlier than the afternoon of August 4, 2011, meaning that there is no reason why he could not
have acted in this matter on the evening of August 3, 2011 or the morning of August 4, 2011. Second, Schoenman
states only that his counsel had to spend “much of the next three days” meeting with the board member, suggesting
that his counsel had windows of opportunity to act during the meeting. Third, Schoenman concedes that the meeting
was scheduled “weeks” earlier, meaning that his counsel’s purported unavailability during this period was reasonably
foreseeable and should have been taken into account when determining how to go about meeting the Court-ordered
deadline. Fourth, and perhaps most importantly, Schoenman seems to be laboring under the misapprehension that
his counsel’s other commitments override his responsibilities in this litigation and as an officer of this Court. The
mere existence of a prior commitment does not provide a legitimate excuse for non-compliance with the directives of
this Court.
5
In short, Schoenman has failed to establish to this Court’s satisfaction that there is “good
cause” for the requested extension and that his failure to act within the time specified was the
product of “excusable neglect.” FED . R. CIV . P. 6(b)(1). Accordingly, in an exercise of its
discretion, the Court shall DENY Schoenman’s [171] First Motion to Late File.3
B. Schoenman’s Second Motion to Late File
The second preliminary matter to be addressed is Schoenman’s [172] Motion for Leave to
File Local Rule 7(h) Statement Out-of-Time (“Second Motion to Late File”), which the CIA has
opposed. Filed on August 10, 2011, Schoenman’s motion asks the Court’s blessing to late file a
statement of undisputed material facts, as required by Local Civil Rule 7(h). As Schoenman
concedes, his statement was due by no later than June 30, 2011, meaning that he is asking this
Court permission to file one month and eleven days late. But because Schoenman has failed to
establish that there is “good cause” for the extension and that his failure to act within the time
specified was the product of “excusable neglect,” FED . R. CIV . P. 6(b)(1), the Court shall exercise
its discretion to DENY Schoenman’s [172] Second Motion to Late File.4
3
In any event, the Court has carefully considered Schoenman’s proposed submissions and finds that, even
if they were timely filed, they would not warrant a different result on the pending cross-motions for summary
judgment. As a threshold matter, many of the arguments in Schoenman’s proposed memorandum would be raised
for the first time in reply and would be disregarded on that basis. See Baloch v. Norton, 517 F. Supp. 2d 345, 348
(D.D.C. 2007) (“If the movant raises arguments for the first time in his reply to the non-movant’s opposition, the
court [may] either ignore those arguments . . . or provide the non-movant an opportunity to respond.”), aff’d, 550
F.3d 1191 (D.C. Cir. 2008). Regardless, Schoenman’s arguments would fail on the merits: they are speculative,
unsupported, and contradicted by all the competent evidence in the record.
4
There are two additional, independent grounds for denying the motion. First, although Schoenman
suggests in his Second Motion to Late File that a copy of his proposed statement is attached, no such document
appears on the public docket, rendering it impossible for this Court to determine whether it is even worthwhile to
permit leave to late file. See LC V R 5.4(c)(2) (“A person filing a document by electronic means is responsible for
insuring the accuracy of the official docket entry generated by the CM-ECF software.”). Second, the CIA contends,
without contradiction, that Schoenman failed to comply with the meet-and-confer requirements of Local Civil Rule
7(m) before filing his motion. See Ellipso, Inc. v. Mann, 460 F. Supp. 2d 99, 120 (D.D.C. 2006) (“[W here] a party
files a nondispositive motion without certifying its compliance with Rule 7(m), the motion will be denied.”).
6
As an initial matter, Schoenman had an exceedingly generous one month and four days to
prepare and file his Cross-Motion for Summary Judgment, including his statement of undisputed
material facts. See Scheduling Order at 4; Min. Order (June 20, 2011). Further, he was on notice
that this Court “strictly adheres” to the dictates of Local Civil Rule 7(h) and that he was expected
to submit a statement of undisputed material facts. Scheduling Order at 2-3. Nonetheless,
Schoenman offers a single reason for his failure to file a timely statement—namely, that he
purportedly encountered “multiple [technical] problems, primarily with a malfunctioning
scanner” when attempting to file on the eve of the expiration of the deadline. Second Mot. to
Late File at 1. On its face, the excuse is patently insufficient. When a party is afforded a
generous briefing schedule of this kind, he waits until the cusp of the deadline to begin filing at
his peril. Schoenman had more than a month to prepare and submit a timely filing in connection
with a relatively straightforward motion. His cursory explanation for his inability to timely file,
viewed within the context of the schedule as a whole, fails to satisfy this Court that there is
“good cause” for the requested extension. FED . R. CIV . P. 6(b)(1)(A). Again, this conclusion is
bolstered by the fact that Schoenman was on notice that the Court expected him to adhere to the
specified schedule, which had already been “very reluctantly” extended once, and that the Court
was disinclined to grant further extensions “absent extraordinary circumstances.” Min. Order
(June 20, 2011). Far from “extraordinary,” the circumstances cited by Schoenman were entirely
foreseeable.
Furthermore, Schoenman has failed to establish “excusable neglect.” FED . R. CIV . P.
6(b)(1)(B). After his deadline to file a statement of undisputed material facts elapsed, he waited
another one month and eleven days before taking any steps to remedy his non-compliance.
7
Schoenman does not offer a satisfactory explanation for this extraordinary and unacceptable
delay. Indeed, he concedes that the CIA effectively put him on notice of his non-compliance
when it filed its opposition papers on July 21, 2011, three weeks before he filed his Second
Motion to Late File. Regardless, Schoenman’s ability to file a timely statement was a matter
entirely within his control; he simply failed to act with reasonable diligence. And to allow
Schoenman leave to late file at this advanced date would unduly prejudice the CIA. Due entirely
to Schoenman’s failings, the CIA crafted its opposition to Schoenman’s Cross-Motion for
Summary Judgment without preparing a responsive statement of material facts, for the simple
reason that Schoenman had not submitted a timely statement requiring a response. As a result,
granting Schoenman the requested leave would unfairly require the CIA to draft its opposition
anew and would delay the resolution of this action further. See Pl.’s Resp. to CIA’s Opp’n to
Pl.’s Mot. for Leave to File Local Rule 7(h0 [sic] Stmt. Out-of-Time, ECF No. [174], at 2
(conceding that “[o]bviously there is some disadvantage to defendant’s counsel in having to . . .
revisit the issues raised by earlier pleadings.”). On this record, viewing the totality of the
circumstances, the Court finds that Schoenman has failed to establish “excusable neglect.” FED .
R. CIV . P. 6(b)(1)(B).
In sum, Schoenman has failed to establish to this Court’s satisfaction that there is “good
cause” for the requested extension and that his failure to act within the time specified was the
product of “excusable neglect.” FED . R. CIV . P. 6(b)(1). Accordingly, in an exercise of its
discretion, the Court shall DENY Schoenman’s [172] Second Motion to Late File.
8
II. BACKGROUND
This action is no spring chicken; it has been pending for over seven years and has seen
more than its fair share of motion practice in that time. Setting forth the full breadth of the
factual and procedural background of the case is neither necessary nor desirable here. Instead,
the Court assumes familiarity with, and incorporates herein, its many prior opinions in this
matter.5 In this section, the Court shall briefly outline the background that is most germane to the
pending motions.
In July 2001, Schoenman, acting through counsel, submitted various FOIA/PA requests to
several federal agencies, including the CIA and the FBI, seeking the disclosure of an array of
records relating to him, Lord Bertrand Russell, and six named organizations.6 Subsequently, the
CIA and FBI acknowledged receipt of the requests and conducted searches of their records,
ultimately producing some records and withholding others in full or in part. Unsatisfied with the
agencies’ response, Schoenman commenced this action in December 2004, naming the CIA, the
FBI, and several other identified and unidentified federal agencies as defendants.
In the years that have followed, the issues in this action have been successively winnowed
down or refined by the decisions of this Court. Most notably for present purposes, in an opinion
5
See Schoenman v. Fed. Bureau of Investigation (“Schoenman 2/9/11”), 763 F. Supp. 2d 173 (D.D.C. Feb. 9,
2011); Schoenman v. Fed. Bureau of Investigation, 764 F. Supp. 2d 40 (D.D.C. Jan. 21, 2011); Schoenman v. Fed.
Bureau of Investigation, 263 F.R.D. 23 (D.D.C. Nov. 9, 2009); Schoenman v. Fed. Bureau of Investigation
(“Schoenman 3/31/09”), 604 F. Supp. 2d 174 (D.D.C. Mar. 31, 2009); Schoenman v. Fed. Bureau of Investigation
(“Schoenman 3/19/09”), Civil Action No. 04-2202, 2009 W L 763065 (D.D.C. Mar. 19, 2009); Schoenman v. Fed.
Bureau of Investigation, 575 F. Supp. 2d 166 (D.D.C. Sept. 22, 2008); Schoenman v. Fed. Bureau of Investigation,
576 F. Supp. 2d 166 (D.D.C. Sept. 15, 2008); Schoenman v. Fed. Bureau of Investigation, 573 F. Supp. 2d 119(D.D.C. Sept. 1, 2008); Schoenman v. Fed. Bureau of Investigation, 575 F. Supp. 2d 136 (D.D.C. Aug. 25, 2008);
Schoenman v. Fed. Bureau of Investigation, Civil Action No. 04-2202, 2006 W L 1582253 (D.D.C. June 5, 2006);
Schoenman v. Fed. Bureau of Investigation, Civil Action No. 04-2202, 2006 W L 1126813 (D.D.C. Mar. 31, 2006).
6
The six organizations were the Bertrand Russell Peace Foundation; the Bertrand Russell Peace
Foundation, New York; the International W ar Crimes Tribunal; the W ho Killed Kennedy Committee; the Bertrand
Russell Research Center; and the Citizens Committee of Inquiry.
9
dated March 31, 2009, the Court concluded that the FBI had failed to justify some of the
withholding decisions it made when responding to Schoenman’s requests because the Vaughn
index7 that it proffered in this litigation was inadequate. Schoenman3/31/09, 604 F. Supp. 2d at
194-204. Finding that the infirmities in the index were sufficiently pronounced so as to prevent
the Court from testing the propriety of the FBI’s withholding decisions, the Court directed the
FBI to prepare and submit a revised Vaughn index. Id. at 204. Thereafter, the parties agreed that
the best course of action was for the FBI to reprocess the full universe of responsive documents
in its possession, re-release the disclosable portions to Schoenman, and then prepare a final
Vaughn index. See Joint Status Report & Proposed Briefing Schedule, ECF No. [113].
In the course of reprocessing the 3,987 pages of responsive records in its possession, the
FBI encountered a number of CIA-originating documents. Def.’s Stmt. of Material Facts as to
Which There Is No Genuine Dispute, ECF No. [164], ¶ 3.8 Rather than handling the records
itself, the FBI elected to refer a total of 120 documents to the CIA for processing and a direct
response to Schoenman. Id. The CIA subsequently reviewed those documents and, on January
21, 2010, provided Schoenman the disclosable portions thereof, ultimately releasing 101
documents in part (a total of 288 pages) and withholding 19 documents in full (a total of 52
pages). Id. ¶ 4. As grounds for its decision to withhold certain information, the CIA relied upon
FOIA Exemptions 1, 3, and 6, and PA Exemptions (j)(1) and (k)(1). Id. ¶ 5.
7
The reference is to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974),
in which the United States Court of Appeals for the District of Columbia Circuit held that agencies should generally
prepare an itemized index correlating withheld information with a specific exemption and the justification for non-
disclosure.
8
Even though he was warned that this Court “strictly adheres” to Local Civil Rule 7(h), Scheduling Order
at 2, Schoenman nonetheless failed to file a timely counter-statement of material facts responding to the CIA’s
statement. The Court exercises its discretion to treat the uncontroverted facts identified by the CIA in its statement
as admitted. See LC V R 7(h)(1); Scheduling Order at 2-3.
10
While this action was focused on requests directed to agencies other than the CIA,
Schoenman’s counsel lost track of the records produced by the CIA. See Joint Status Report,
ECF No. [157], at 2 n.1. Accordingly, on February 25, 2011, the CIA re-released the disclosable
portions of the records to Schoenman. Decl. of Elizabeth Anne Culver, Information Review
Officer, National Clandestine Service, Central Intelligence Agency (“Culver Decl.”), ECF No.
[164-1], ¶ 5. Thereafter, Schoenman selected a sample of 31 documents (a total of 86 pages)
that, by mutual agreement, would be the subject of the CIA’s Vaughn index and the parties’
anticipated briefing. See Joint Status Report, ECF No. [163], at 1. The parties then proceeded to
brief the pending cross-motions for summary judgment. See Def.’s Mem. of P. & A. in Supp. of
Def.’s Mot. for Summ. J. (“Def.’s [164] Mem.”), ECF No. [164]; Pl.’s Mem. of P. & A. in Supp.
of Pl.’s Cross-Mot. for Summ. J. With Respect to FBI Docs. Referred to the CIA and in Opp’n to
Def.’s Mot. for Summ. J., ECF No. [166]; Def.’s Opp’n to Pl.’s Cross-Mot. for Summ. J. and
Reply to Pl.’s Opp’n to Def.’s Mot. for Summ. J., ECF No. [169]. As set forth above,
Schoenman failed to file a timely reply in support of his Cross-Motion for Summary Judgment.
The pending motions are now fully briefed and ripe for a decision. In an exercise of its
discretion, the Court finds that holding oral argument on the motions would not assist the Court
in rendering its decision. See LCV R 7(f).
III. LEGAL STANDARD
Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)
(quotation marks and citation omitted). However, Congress remained sensitive to the need to
achieve balance between these objectives and the potential that “legitimate governmental and
11
private interests could be harmed by release of certain types of information.” Critical Mass
Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc)
(quotation marks and citation omitted), cert. denied, 507 U.S. 984 (1993). To this end, FOIA
“requires federal agencies to make Government records available to the public, subject to nine
exemptions for categories of material.” Milner v. Dep’t of Navy, __ U.S. __, 131 S. Ct. 1259,
1261-62 (2011). Despite such exemptions, “disclosure, not secrecy, is the dominant objective of
the act.” Rose, 425 U.S. at 361. For this reason, the “exemptions are explicitly made exclusive,
and must be narrowly construed.” Milner, 131 S. Ct. at 1262 (quotation marks and citations
omitted).
When presented with a motion for summary judgment in this context, the district court
must conduct a “de novo” review of the record, 5 U.S.C. § 552(a)(4)(B), which “requires the
court to ascertain whether the agency has sustained its burden of demonstrating that the
documents requested . . . are exempt from disclosure,” Assassination Archives & Research Ctr. v.
Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (quotation marks and citation
omitted). “Consistent with the purpose of the Act, the burden is on the agency to justify
withholding requested documents,” Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir.
1993), and only after an agency has proven that “it has fully discharged its disclosure
obligations” is summary judgment appropriate, Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344,
1350 (D.C. Cir. 1983). In ascertaining whether the agency has met its burden, the district court
may rely upon agency affidavits or declarations. Military Audit Project v. Casey, 656 F.2d 724,
738 (D.C. Cir. 1981). “If an agency’s affidavit describes the justifications for withholding the
information with specific detail, demonstrates that the information withheld logically falls within
12
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.” Am. Civil Liberties Union v. U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011)
(citations omitted). In other words, “[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) (citation omitted). Summary
judgment is proper when the pleadings, the discovery materials on file, and any affidavits or
declarations “show[] 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). With these principles in mind,
the Court turns to the merits of the parties’ cross-motions for summary judgment.
IV. DISCUSSION
The CIA’s [164] Motion for Summary Judgment and Schoenman’s [166] Cross-Motion
for Summary Judgment both speak to the same issue—namely, the propriety of the CIA’s
withholding decisions with respect to the 120 documents that were referred to the CIA by the FBI
for processing and a direct response to Schoenman. Of these 120 documents, the CIA ultimately
released 101 documents to Schoenman in part (a total of 288 pages) and withheld 19 documents
in full (a total of 52 pages). To justify its withholding decisions under FOIA,9 the CIA now relies
9
Consistent with the approach he has taken throughout this case, see, e.g., Schoenman 3/19/09, 2009 W L
763065, at *19, Schoenman does not dispute the CIA’s reliance on PA Exemptions (j)(1) and (k)(1) as a basis for
non-disclosure under that statute, see Def.’s [164] Mem. at 7. In this Circuit, “it is well understood . . . that when a
plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a
court may treat those arguments that the plaintiff failed to address as conceded.” Hopkins v. Women’s Div., Gen. Bd.
of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (citation omitted), aff’d, 98 F. App’x 8 (D.C. Cir. 2004);
accord Lewis v. District of Columbia, No. 10-5275, 2011 W L 321711, at *1 (D.C. Cir. Feb. 2, 2011). Schoenman
was alerted to this principle long before he filed his opposition to the CIA’s Motion for Summary Judgment. See
Scheduling Order ¶ 3(c). Based on Schoenman’s failure to respond, the Court exercises its discretion to treat the
CIA’s argument as conceded.
13
upon FOIA Exemptions 1 and 310—two of the tools that the United States Supreme Court has
recognized are available to agencies to “shield national security information and other sensitive
materials” from public disclosure. Milner, 131 S. Ct. at 1271. The Court finds the CIA has met
its burden of demonstrating to the Court’s satisfaction that the claimed exemptions apply to the
information withheld.
A. The CIA Has Properly Invoked Exemption 1
Exemption 1 applies to materials 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). In this case, the CIA relies upon Executive Order 13,526, 75 Fed. Reg. 707 (Dec. 29,
2009), which prescribes a uniform system for classifying and safeguarding national security
information. To show that it has properly withheld information on this basis, the CIA must show
both that the information was classified pursuant to the proper procedures and that the withheld
information substantively falls within the scope of Executive Order 13,526. See Salisbury v.
United States, 690 F.2d 966, 971-72 (D.C. Cir. 1982) (analyzing a predecessor to Executive
Order 13,526). Stated somewhat differently:
Information can be properly classified under Executive Order 13526
if four requirements are met: (1) an original classification authority
classifies the information; (2) the United States Government owns,
produces, or controls the information; (3) the information falls within
one or more of eight protected categories listed in section 1.4 of the
Executive Order; and (4) the original classification authority
determines that the unauthorized disclosure of the information
reasonably could be expected to result in a specified level of damage
10
Originally, the CIA also relied upon FOIA Exemption 6 as a basis for non-disclosure, but “[t]he CIA is
no longer asserting Exemption 6 to protect any withheld information because Exemptions 1 and/or 3 also
[purportedly] fully protect all such information.” Def.’s [164] Mem. at 6 n.4.
14
to the national security, and the original classification authority is able
to identify or describe the damage.
Am. Civil Liberties Union v. Dep’t of Justice, __ F. Supp. 2d __, 2011 WL 4005324, at *14
(D.D.C. Sept. 9, 2011) (citing Executive Order 13,526 § 1.1(a)).
Elizabeth Anne Culver (“Culver”), the Information Review Officer for the CIA’s
National Clandestine Service, holds original classification and declassification authority. Culver
Decl. ¶¶ 12-13. She reviewed the documents at issue with respect to the pending cross-motions
for summary judgment and determined that they are owned, produced by, and under the control
of the United States Government. Id. ¶ 14. She explains in considerable detail that the
information withheld by the CIA includes, among other things, (a) information that would reveal
the identities of human and foreign intelligence service sources; (b) information pertaining to
source relationships that the CIA has forged with foreign intelligence services and liaisons; and
(c) information pertaining to the CIA’s foreign intelligence activities and methods. See id. ¶¶ 24-
51; Second Decl. of Elizabeth Anne Culver, Information Review Officer, National Clandestine
Service, Central Intelligence Agency (“Suppl. Culver Decl.”), ECF No. [169-1], ¶¶ 2-5. Further,
she explains, again in considerable detail, that the disclosure of such information would cause
damage or serious damage to national security because, among other things, (a) foreign
intelligence services and others who have interests at odds with the United States could use the
information to thwart national policies and programs and to detect, penetrate, counter, and
evaluate the CIA’s activities; (b) the revelation of the CIA’s intelligence activities in a particular
country or with a foreign liaison service could, even after the passage of time, harm the United
States’ relationship with that country or result in countermeasures; and (c) the disclosure of the
identities of intelligence sources could hamper the CIA’s ability to maintain current intelligence
15
sources and develop other intelligence sources in the future. See Culver Decl. ¶¶ 24-51; Suppl.
Culver Decl. ¶ 4. In short, Culver explains why the information withheld in this case is properly
classified as “confidential” or “secret” under Executive Order 13,526, which protects, among
other things, “foreign government information,” “intelligence activities (including covert action),
intelligence sources or methods, or cryptology,” and “foreign relations or foreign activities of the
United States, including confidential sources.” Executive Order 13,526 § 1.4(b)-(d).
The Court is mindful of its responsibility to conduct a “de novo” review of the record. 5
U.S.C. § 552(a)(4)(B). Nonetheless, in recognition that courts are generally ill-equipped to
second-guess an agency’s opinion in the national security context, “the government’s burden is a
light one.” Am. Civil Liberties Union, 628 F.3d at 624. In this context, the district court “must
accord substantial weight to an agency’s affidavit concerning the details of the classified status of
the disputed record,” keeping in mind “that any affidavit or agency statement will always be
speculative to some extent, in the sense that it describes potential future harm.” Id. at 619(quotation marks, notations, and citations omitted). In the end, “an agency’s justification for
invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Larson v. Dep’t of
State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Wolf v. Cent. Intelligence Agency, 473 F.3d
370, 374-75 (D.C. Cir. 2007)). In this case, according substantial weight and deference to
Culver’s declarations, the Court finds that it is both plausible and logical that the disclosure of
the information withheld by the CIA “reasonably could be expected to result in damage to the
national security.” Executive Order 13,526 § 1.1(a)(4).11 “[F]inding no evidence in the record to
11
Courts in this Circuit have routinely found similar information to be protected from disclosure under
Exemption 1. See, e.g., Larson, 565 F.3d at 863-64; Krikorian v. Dep’t of State, 984 F.2d 461, 464-65 (D.C. Cir.
1993); Am. Civil Liberties Union, 2011 W L 4005324, at *14-17; Int’l Counsel Bureau v. U.S. Cent. Intelligence
Agency, 774 F. Supp. 2d 262, 267-73 (D.D.C. 2011); Morley v. U.S. Cent. Intelligence Agency, 699 F. Supp. 2d
16support the opposition conclusion, no further investigation is required,” Am. Civil Liberties
Union, 628 F.3d at 625, and the Court’s inquiry is at an end.
Schoenman’s arguments to the contrary are disjointed and often difficult to follow. More
importantly, they are wholly unpersuasive. Many of them are mere restatements of arguments
already raised and rejected at earlier points in this litigation. Regardless, the arguments are so
lacking in merit that they command little or no extended attention here. Five examples will
illustrate the point.
First, Schoenman raises a series of complaints with the CIA’s proffered Vaughn index,
but despite the numerosity of his complaints, they are unavailing. Considering the CIA’s
submissions collectively, including Culver’s declarations, the Vaughn index, and the partial
production to Schoenman, the CIA has proffered more than enough information to “identify the
records referenced and understand the basic reasoning behind the claimed exemptions.” Morley
v. Cent. Intelligence Agency, 508 F.3d 1108, 1123 (D.C. Cir. 2007). In this case, the CIA’s
submissions provide sufficient information to test the applicability of the exemptions relied upon
without going so far as disclosing protected information. For this reason, the Court declines
Schoenman’s invitation to review the records at issue in camera.
Second, Schoenman launches a broadside attack on Culver’s description of the harm that
could be expected to flow from the disclosure of the information withheld, but in so doing he
fails to give sufficient credence to the axiom that, in this particular context, “any affidavit or
agency statement will always be speculative to some extent, in the sense that it describes
244, 252-53 (D.D.C. 2010); Am. Civil Liberties Union v. Dep’t of Def., 664 F. Supp. 2d 72, 76-78 (D.D.C. 2009),
aff’d, 628 F.3d 612 (D.C. Cir. 2011); see also Schoenman 3/19/09, 2009 W L 763065, at *20-23 (finding, earlier in this
action, that the CIA established the applicability of Exemption 1 to national security information).
17
potential future harm.” Am. Civil Liberties Union, 628 F.3d at 619 (quotation marks and
citations omitted). Suffice it to say that the Court has conducted a searching review of Culver’s
declarations, the CIA’s Vaughn index, and the partial production to Schoenman, and is satisfied
that it is both plausible and logical that the disclosure of the information withheld “reasonably
could be expected to result in damage to the national security.” Executive Order 13,526 §
1.1(a)(4).
Third, the Court appreciates that Schoenman has his own opinion as to the magnitude of
the national security interests implicated by the information captured by his FOIA requests, but
he once again fails to recognize that “[t]he applicable legal standard . . . is clear and ‘allocates to
the [g]overnment the responsibility for evaluating the harms associated with public disclosure,
and neither the proponent of disclosure nor the district court is free to substitute its own policy
judgments for those of the Executive.’” Schoenman2/9/11, 763 F. Supp. 2d at 195 (quoting
Alsawam v. Obama, 764 F. Supp. 2d 11, 19 (D.D.C. 2011)). In this context, “little proof or
explanation is required beyond a plausible assertion that information is properly classified,”
Morley, 508 F.3d at 1126, and the CIA has discharged that burden, even when one accounts for
the passage of time and political changes intervening since the underlying materials first came
into existence.
Fourth, Schoenman contends that continued non-disclosure of the information withheld
by the CIA is inappropriate because an unspecified universe of information relating in some way
to his FOIA requests has purportedly made its way into the public domain. However, to prevail
on this prior disclosure theory, Schoenman bears the burden of establishing that “the specific
information sought . . . [entered] in the public domain by official disclosure,” Am. Civil Liberties
18
Union, 628 F.3d at 21 (citation and emphasis omitted), and his generalized argument falls
considerably short of meeting that burden.
Fifth, Schoenman intimates that the CIA’s insistence upon maintaining the classification
of the information at issue is calculated to hide past or present government improprieties.
Though his submissions “recount[] a litany of allegedly suspicious circumstances,” they “lack[]
any substantiation.” Blackwell v. Fed. Bureau of Investigation, 646 F.3d 37, 41 (D.C. Cir. 2011).
Like similar allegations that he has tendered in this litigation, Schoenman’s suggestion that the
CIA’s “determinations . . . are designed to conceal illicit conduct are speculative, unsupported,
and contradicted by all the evidence in the record.” Schoenman2/9/11, 763 F. Supp. 2d at 195-96.
The Court has carefully considered Schoenman’s remaining arguments and finds them to
be without merit. The Court concludes that the CIA has discharged its burden of establishing
that it has properly invoked Exemption 1 in this case.
B. The CIA Has Properly Invoked Exemption 3
Exemption 3 applies to materials that are “specifically exempted from disclosure by
statute.” 5 U.S.C. § 552(b)(3). In other words, Exemption 3 incorporates the protections
afforded by other statutes shielding records from public disclosure. In this case, the CIA invokes
two statutes: (1) a provision of the National Security Act of 1947 requiring the Director of
National Intelligence to “protect intelligence sources and methods from unauthorized disclosure,”
50 U.S.C. § 403-1(i)(1); and (2) a provision of the Central Intelligence Agency Act of 1949
requiring the protection of “intelligence sources and methods from unauthorized disclosure” and
exempting the CIA from any law that requires “the publication or disclosure of the organization,
functions, names, official titles, salaries, or numbers of personnel employed by the [CIA],” id. §
19
403g. Pursuant to the National Security Act, the CIA withheld information about classified
intelligence sources and methods, including information pertaining to human and foreign
intelligence service sources, covert installations, dissemination-control markings, and technical
intelligence collection. Culver Decl. ¶¶ 55-56. Pursuant to the Central Intelligence Agency Act,
the CIA withheld information about its foreign intelligence collection activities, the names of its
employees, personal identifiers, official titles, file numbers, and internal organizational data. Id.
¶¶ 57-58.
When it comes to Exemption 3, “the sole issue for decision is the existence of a relevant
statute and the inclusion of withheld material within the statute’s coverage.” Morley, 508 F.3d at
1126 (quotation marks and citation omitted). It is well-established that both of the provisions
relied upon by the CIA in this case fall within the ambit of Exemption 3. See, e.g., Goland v.
Cent. Intelligence Agency, 607 F.2d 339, 349 (D.C. Cir. 1978), cert. denied, 445 U.S. 927(1980); Subh v. Cent. Intelligence Agency, 760 F. Supp. 2d 66, 70 (D.D.C. 2011);
Schoenman3/19/09, 2009 WL 763065, at *24. Upon a searching review, the Court finds that
Culver’s declarations, the CIA’s Vaughn index, and the CIA’s partial production provide a
sufficiently detailed explanation as to why the information withheld from Schoenman falls within
the universe of information protected from public disclosure by the National Security Act and the
Central Intelligence Agency Act. Taking into account the “special deference owed to agency
affidavits on national security matters,” the Court is satisfied that the CIA has met its burden of
establishing the applicability of Exemption 3 to the withheld information. Schoenman’s
arguments to the contrary, which are either discussed above or are otherwise devoid of merit,
simply do not counsel in favor of a different result.
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C. The CIA Has Discharged its Burden of Establishing that It Has Disclosed All
Reasonably Segregable Portions of the Responsive Records
Even 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.” 5 U.S.C. § 552(b). The question of segregability is by necessity
subjective and context-specific, turning upon the nature of the document in question and the
information contained therein. Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242,
261 (D.C. Cir. 1977). An agency need not, for instance, “commit significant time and resources
to the separation of disjointed words, phrases, or even sentences which taken separately or
together have minimal or no information content.” Id. at 269 n.54. Ultimately, to discharge its
burden before the district court, 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.In this case, Culver’s declarations describe how the CIA carefully reviewed and released
all reasonably segregable information, which included conducting a line-by-line review of each
document in an attempt to identify and release non-exempt portions of each document. Culver
Decl. ¶¶ 59-60; Suppl. Culver Decl. ¶¶ 2-5. Based upon this description and a searching review
of the documents that the CIA has withheld only in part, the Court finds that the CIA has
adequately demonstrated, in reasonable and non-conclusory terms, that all non-exempt material
has either been disclosed to Schoenman or is not reasonably segregable.
V. CONCLUSION
The Court has considered the remaining arguments tendered by Schoenman and
21
concludes that they are without merit. Therefore, and for the reasons set forth above, the Court
shall DENY Schoenman’s [171] First Motion to Late File, DENY Schoenman’s [172] Second
Motion to Late File, GRANT the CIA’s [164] Motion for Summary Judgment, and DENY
Schoenman’s [166] Cross-Motion for Summary Judgment. In addition, because no other claims
for disclosure remain extant, the Court shall enter a final judgment marking the end of this case.
An appropriate Order accompanies this Memorandum Opinion.
Date: January 23, 2012
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
22