Competitive Enterprise Institute v. United States Department of the Treasury ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
COMPETITIVE ENTERPRISE INSTITUTE, :
:
Plaintiff, : Civil Action No.: 17-1600 (RC)
:
v. : Re Document No.: 12
:
DEPARTMENT OF TREASURY, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Competitive Enterprise Institute (“Competitive Enterprise”) brings this action against the
Department of Treasury pursuant to the Freedom of Information Act (“FOIA”) concerning its
request for a two-page letter (the “Letter”) exchanged between the Governor of the Bank of
England and former Treasury Secretary Jack Lew. Neither party contests that the Letter contains
potentially sensitive information regarding the economic policies of the United States
government. They do dispute, however, whether FOIA requires the disclosure of that
information.
The Department of Treasury declined to disclose the Letter under FOIA Exemption 1,
which exempts from disclosure information classified in the interest of national defense or
foreign policy. Competitive Enterprise argues that the Letter does not fall within the scope of
Exemption 1 because it was improperly classified. It also requests that the Court conduct an in
camera review of the Letter, asserting that the declaration provided by the Department of
Treasury is not specific enough for the Court to reach a determination on the Letter’s status, and
that the Department’s handling of the classification process and FOIA requests indicate agency
bad faith or sloppiness.
For the reasons explained below, the Court finds that the Letter was properly classified
and that the Department of Treasury’s Exemption 1 withholding is justified. Accordingly, the
Court grants the Department of Treasury’s motion for summary judgment.
II. FACTUAL BACKGROUND
In September 2014, the Governor of the Bank of England, Mark Carney, sent the Letter
to then-Secretary of the Treasury Jack Lew. Def.’s Statement of Material Facts (“Def.’s
Statement”) ¶ 1, ECF No. 12. To date, the contents of the Letter have not been made public or
disclosed by the Department of Treasury, but Competitive Enterprise contends that the Letter
inquired why the reinsurance subsidiary of a large and influential American company, Berkshire
Hathaway, was not included in the United States Financial Stability Board’s list of “systemically
important financial institutions.” Id. ¶ 4; see Compl. ¶ 1, ECF No. 1. After the Letter was sent,
the Bank of England requested that the Letter be given confidential treatment. Def.’s Statement
¶ 2.
In April 2015, a series of online reports were published regarding Berkshire Hathaway’s
alleged absence from the Financial Stability Board’s list. See Pl.’s Mem. Opp’n Def.’s Mot.
Summ. J. (“Pl.’s Opp’n”) at 7, ECF No. 14; Pl.’s Opp’n. Attach. A. ECF No. 14-4. Later that
month, Elizabeth Festa, who is not a party to this action, submitted a FOIA request for the Letter.
See id. Attach. B., ECF No. 14-5. The Department of Treasury denied Ms. Festa’s request,
claiming that the Letter was a “foreign record” not releasable by the agency. Id. Attach. C., ECF
No. 14-6. Two years later, in April 2017, the Department of Treasury decided to classify the
Letter pursuant to § 1.4(b), (d), and (e) of Executive Order 13,526, on the grounds that the Letter
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contained “foreign government information,” information damaging to the “foreign relations or
foreign activities of the United States,” and information concerning “scientific, technological, or
economic matters relating to the national security.” Def.’s Statement ¶¶ 5–8; Decl. Michael
Mason (“Mason Decl.”) ¶ 8, ECF No. 12-1.
That month, Competitive Enterprise submitted its own FOIA request for the Letter. Pl.’s
Opp’n at 1. The Department of Treasury informed Competitive Enterprise that the requested
Letter had been properly classified “in accordance with Executive Order 13,526,” and it
accordingly denied the request under FOIA Exemption 1, which protects against the disclosure
of classified information. Id. Attach. F., ECF No. 14-9; Def.’s Statement ¶ 5; see 5 U.S.C. §
552(b)(1). In June 2017, the Department of Treasury similarly informed Ms. Festa of the
Letter’s classification, noting that though the Letter was not a “foreign record,” as it had
previously been characterized, it nonetheless remained protected from disclosure. Pl.’s Opp’n.
Attach. E. ECF No. 14-8.
In August 2017, Competitive Enterprise filed this action seeking to compel the Letter’s
disclosure. It argues primarily that the Letter was improperly classified, and thus cannot be
withheld under FOIA Exemption 1. See generally Compl. The Department of Treasury’s
motion for summary judgment is now ripe and pending before the Court.
III. LEGAL STANDARDS
A. Freedom of Information Act
FOIA “sets forth a policy of broad disclosure of Government documents in order ‘to
ensure an informed citizenry, vital to the functioning of a democratic society.’” FBI v.
Abramson, 456 U.S. 615, 621 (1982) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 242 (1978)). “[D]isclosure, not secrecy, is the dominant objective of [FOIA].” U.S. Dep’t
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of Air Force v. Rose, 425 U.S. 352, 361 (1976). FOIA mandates the release of properly
requested federal agency records, unless the materials fall squarely within one of nine statutory
exemptions. Milner v. U.S. Dep’t of Navy, 562 U.S. 562, 565 (2011); Students Against Genocide
v. U.S. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (citing 5 U.S.C. § 552(a)(3)(A), (b)).
B. Summary Judgment
“FOIA cases typically and appropriately are decided on motions for summary
judgment.” Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)
(citing Bigwood v. U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). The
agency is entitled to summary judgment if no material facts are genuinely in dispute and the
agency demonstrates “that its search for responsive records was adequate, that any exemptions
claimed actually apply, and that any reasonably segregable non-exempt parts of records have
been disclosed after redaction of exempt information.” Competitive Enter. Inst. v. EPA, 232 F.
Supp. 3d 172, 181 (D.D.C. 2017). The Court may grant summary judgment based solely on an
agency’s declarations when the declarations “demonstrate that the information withheld logically
falls within the claimed exemption and are not controverted by other evidence in the record or by
evidence of agency bad faith.” Larson v. U.S. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir.
2009). Such declarations are afforded a presumption of good faith. SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).
To carry its burden, the agency must provide “a relatively detailed justification,
specifically identifying the reasons why a particular exemption is relevant and correlating those
claims with the particular part of a withheld document to which they apply.” Elec. Privacy Info.
Ctr. v. DEA, 192 F. Supp. 3d 92, 103 (D.D.C. 2016) (quoting Mead Data Cent., Inc. v. U.S.
Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). This Court reviews the agency’s
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explanations de novo, and will endorse an agency’s decision to withhold information if the
justification for invoking a FOIA exemption “appears ‘logical’ or plausible.’” Pinson v. DOJ,
245 F. Supp. 3d 225, 239 (D.D.C. 2017) (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir.
2007)). Nonetheless, “exemptions from disclosure must be narrowly construed . . . and
conclusory and generalized allegations of exemptions are unacceptable.” Morley v. CIA, 508
F.3d 1108, 1114–15 (D.C. Cir. 2007) (citation and internal quotation marks omitted). Finally, in
conducting its review, a court may rely on its own in camera examination of disputed documents
to determine whether they were properly withheld under the claimed statutory exemptions. See 5
U.S.C. § 552(a); see also Citizens for Responsibility & Ethics in Wash. v. Nat’l Archives &
Records Admin., 715 F. Supp. 2d 134, 140–42 (D.D.C. 2010) (relying on the Court’s in
camera review to resolve whether documents had been properly withheld).
IV. ANALYSIS
The Department of Treasury maintains that the Letter may be withheld under Exemption
1 because the information in the Letter was properly classified in accordance with the procedural
and substantive requirements of Executive Order No. 13,526, and the information in the letter
pertains to (1) foreign government information; (2) foreign relations or foreign activities of the
United States; and (3) scientific, technological, or economic matters relating to the national
security. See Exec. Order No. 13,526, 75 Fed. Reg. 707 (“EO 13,526”) §§ 1.1, 1.4(b), (d), (e)
(Dec. 29, 2009); Def.’s Mot. Summ. J. (“Def.’s Mot.”) at 6, ECF No. 12.
Competitive Enterprise attacks the Letter’s classification on several grounds. First,
Competitive Enterprise asserts that the Department of Treasury improperly classified the Letter
to avoid the embarrassment of public disclosure. Pl.’s Opp’n at 5–6. Second, Competitive
Enterprise argues that the Letter does not fall within the categories of information that may be
5
classified under EO 13,526 § 1.4. Pl.’s Opp’n at 2–3. Third, Competitive Enterprise argues that
even if the Letter’s content warranted classification, the Department of Treasury failed to follow
the classification procedure established by the Department of State’s Foreign Affairs Manual.
Pl.’s Opp’n at 5–7.
For the reasons explained below, the Court holds that because it is plausible that the
Letter contains information, the disclosure of which could harm “foreign relations,” it was
properly classified pursuant to EO 13,526 § 1.4(d). The Court additionally concludes that given
the deference afforded to agencies in matters of national security, see Campbell v. DOJ, 164 F.3d
20, 30 (D.C. Cir. 1998), the specificity of the Mason Declaration, and the lack of evidence of bad
faith on the part of the Department of Treasury, the Letter has properly been withheld under
FOIA Exemption 1 and in camera review is not warranted.
A. The Bank of England Letter Was Properly Classified
The Court first considers whether the Department of Treasury acted in accordance with
the classification guidelines of EO 13,526 and whether, therefore, the Letter was properly
withheld under Exemption 1. Competitive Enterprise makes several arguments for why the
Letter’s classification does not comply with EO 13,526, none of which persuade the Court. The
Department of Treasury’s declaration adequately indicates that the Letter “pertains to . . . foreign
relations or foreign activities of the United States,” and therefore was properly classified. See
EO 13,526 § 1.4(d).
As noted above, FOIA requires agencies to disclose records upon request unless one of
nine exemptions applies. See Milner, 562 U.S. at 565. Exemption 1, which the Department of
Treasury invokes in this case, permits agencies to withhold records that are “(A) specifically
authorized under criteria established by an Executive order to be kept secret in the interest of
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national defense or foreign policy and (B) are in fact properly classified pursuant to such
Executive order.” 5 U.S.C. § 552(b)(1). Given the “unique insights” agencies have into what
adverse effects the disclosure of sensitive material may have, McGehee v. Casey, 718 F.2d 1137,
1148 (D.C. Cir. 1983), agency declarations asserting Exemption 1 classification are accorded
substantial weight. Krikorian v. U.S. Dep’t of State, 984 F.2d 461, 464 (D.C. Cir. 1993). When
determining whether information was properly withheld under Exemption 1, the “only question
[for the Court] is whether the disputed document is properly classified under the applicable
Executive Order”—in this case Executive Order 13,526. Ctr. for Int’l Envtl. Law v. Office of
Trade Representative, 718 F.3d 899, 902–04 (D.C. Cir. 2013).
Executive Order No. 13,526 sets forth both procedural and substantive criteria for
classification, stating in relevant part that information may be classified under the Order only if:
(1) an original classification authority classifies the information; (2) the information is under the
control of the United States Government; (3) the information falls under one or more of the
categories of information listed in § 1.4 of the order; and (4) the classification authority
determines that the unauthorized disclosure of the information reasonably could be expected to
result in damage to the national security, 1 and the authority is able to identify or describe the
damage. EO 13,526 § 1.1. Competitive Enterprise does not dispute that the Department of
Treasury satisfied § 1.1(a)(1) and (2), so in analyzing whether the Letter was properly classified,
the Court will focus only on whether it is “plausible” that the Letter falls within one of the
categories enumerated in § 1.4. See Pl.’s Opp’n at 9; see also ACLU v. U.S. Dep’t of Def., 628
F.3d 612, 619 (D.C. Cir. 2011).
1
“Damage to the national security” includes any harm to the foreign relations of the
United States. EO 13,526 § 6.1(1).
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Pursuant to § 1.4, information shall not be considered for classification unless “its
unauthorized disclosure could reasonably be expected to cause . . . damage to the national
security” and it pertains to one of eight particular categories:
(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities, sources, or methods;
(d) foreign relations or foreign activities of the United States;
(e) scientific, technological, or economic matters relating to the national security;
(f) government programs for safeguarding nuclear materials;
(g) vulnerabilities or capabilities of systems . . . relating to the national security; or
(h) the development, production, or use of weapons of mass destruction.
EO 13,526 § 1.4(a)–(h). Furthermore, information falling within these guidelines is not properly
classified if the classification process was undertaken to prevent embarrassment to a person,
organization, or agency. Id. § 1.7.
First, Competitive Enterprise makes the conclusory assertion that the Department of
Treasury classified the Letter to avoid embarrassment, but mere speculation that an agency
withheld or classified information to avoid embarrassment is not sufficient to pull that
information outside the scope of EO 13,526. Dibacco v. U.S. Dep’t of Army, 234 F. Supp. 3d
255, 276 (D.D.C. 2017); accord Assoc. Press v. FBI, 265 F. Supp. 3d 82, 96 (D.D.C. 2017).
Competitive Enterprise cites nothing in the record indicating that the Department of Treasury
considered the information in the Letter an embarrassment, or that it was aware of any news
reports regarding the Letter’s existence prior to classification. See Pl.’s Opp’n at 7–8; Def.’s
Reply Pl.’s Mem. Opp’n Def.’s Mot. Summ. J. (“Def.’s Reply”) at 9, ECF No. 15. Moreover, as
the Department of Treasury notes in its reply brief, the Department did not classify the Letter
until two years after the allegedly embarrassing news reports were released. Def.’s Reply at 8
n.1. Either the Department’s capacity for delayed embarrassment is unrivaled, or the
classification decision was only remotely related to those stories.
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Second, Competitive Enterprise claims that the Letter does not fall within one of the § 1.4
categories—and therefore that its classification was improper—because (1) the Bank of England
is not a “foreign government,” and (2) the agency’s declaration fails to establish that the
information in the Letter is “scientific, technological, or economic matters relating to the
national security,” as required by § 1.4(e). However, Competitive Enterprise offers little
meaningful challenge to the Department of Treasury’s assertion that the information contained in
the Letter also falls squarely within § 1.4(d), pertaining to “foreign relations” or activities of the
United States. Because this assertion has merit, the Court need not consider whether the Letter
was also properly classified under §§ 1.4(b) or (e). See Leopold v. CIA, 106 F. Supp. 3d 51, 62
(D.D.C. 2015) (holding that a document need only satisfy “one category” to meet § 1.4’s
classification requirement).
EO 13,526 does not specifically define “foreign relations,” as it is used in § 1.4(d), and
courts have applied this category to a range of situations in which it is reasonable to believe that
the disclosure of information may harm relations between the United States and a foreign
country—whether or not that information is from or pertains to the foreign government itself.
See Ctr. for Int’l Envtl. Law, 718 F.3d at 902–04 (holding that the release of past NAFTA
negotiation documents may affect foreign relations by harming United States relations with
foreign investors); Judicial Watch, Inc. v. DOJ, 306 F. Supp. 2d 58, 65–66 (D.D.C. 2004)
(concluding that disclosure of corporate officials’ confidential comments on the World Bank’s
role in a financial dispute could harm foreign relations); Am. Jewish Cong. v. U.S. Dep’t of
Treasury, 549 F. Supp. 1270, 1277 (D.D.C. 1982) (implying that information relating to
investments involving “foreigners” bears on foreign relations); see also Intellectual Prop. Watch
v. U.S. Trade Representative, 205 F. Supp. 3d 334, 353–57 (S.D.N.Y. 2016) (characterizing
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future trade negotiations between the United States and foreign countries as relating to foreign
relations).
Competitive Enterprise’s conclusion, therefore, that the exempted information need
originate from, or be communicated to, a foreign government to fall under the “foreign relations”
category, see Pl.’s Opp’n at 14–15, is not supported by case law. See Am. Jewish Cong., 549 F.
Supp. at 1277 (rejecting plaintiff’s “contention that the government may solely classify
documents under ‘foreign relations’ category if such documents are in fact furnished by a foreign
government”), aff’d, 713 F.2d 864 (D.C. Cir. 1983). The ultimate question before the Court is
“not whether the court agrees in full with the [agency’s] evaluation of the expected harm to
foreign relations,” but rather “whether the agency’s judgment objectively survives the test of
reasonableness, good faith, specificity, and plausibility.” Ctr. for Int’l Envtl. Law, 718 F.3d at
903 (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). The Court concludes that
the Department of Treasury has met this standard here.
The Department of Treasury’s description of the Letter is sufficient to conclude that the
Letter’s disclosure could damage the United States’ foreign relations. The Mason Declaration
asserts that the Letter contains “sensitive” information regarding international regulatory
standards, policy positions of the United States and the United Kingdom, potential next steps
both countries may take regarding application of those standards, and other regulatory topics “at
issue.” Mason Decl. ¶ 4. Courts have held that the disclosure of information that may impact
future negotiations between the United States and foreign nations, or that may damage the
United States’ ability to speak candidly with or about foreign nations, poses sufficient potential
harm to “foreign relations” to justify classification under EO 13,526 and nondisclosure under
Exemption 1. See, e.g., Judicial Watch, 306 F. Supp. 2d at 65–66. Furthermore, the potential
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harm to foreign relations posed by the disclosure of United States policy positions contained in
the Letter is akin to the potential harm of releasing past bargaining positions in NAFTA
negotiations, see Ctr. for Int’l Envtl. Law, 718 F.3d at 902–03, or releasing the United States
Trade Representative’s “candid assessments” of other countries’ proposals during negotiations
surrounding the Trans-Pacific Partnership agreement. See Intellectual Prop. Watch, 205 F.
Supp. 3d at 353–57. The Court concludes that the letter was properly classified. 2
As noted, proper classification is the only factor courts need consider when evaluating
whether information has been properly withheld under Exemption 1. See Ctr. for Int’l Envtl.
Law, 718 F.3d at 902–04. Therefore, given the deference accorded to agency declarations in
FOIA cases, see Krikorian, 984 F.2d at 464, and the plausibility of the Department of Treasury’s
contention that the Letter’s release “reasonably could be expected” to harm United States foreign
relations, the Court finds that the Letter was properly classified under EO 13,526 § 1.4(d) and
thus properly withheld under Exemption 1. Mason Decl. ¶ 8.
B. In Camera Review of the Bank of England Letter Is Not Warranted
In addition to contesting the Department of Treasury’s classification decision,
Competitive Enterprise argues that the lack of specificity in the Department of Treasury’s
declaration and the alleged bad faith in the Department’s classification and FOIA response
2
Competitive Enterprise also argues that the Letter was not properly classified because
the Department of Treasury failed to adhere to the Department of State’s Foreign Affairs
Manual, which requires the Department of State’s input on the classification of “information
received from a foreign government.” Pl.’s Opp’n 5–6; see 12 FAM 534.1(d)(1)–(4). That
argument lacks merit for two reasons. First, because the Letter falls within § 1.4(d) of EO
13,526, pertaining to “foreign relations,” it does not and need not necessarily contain
“information received from a foreign government,” and therefore the Manual need not apply.
Second, even if the Letter does contain “foreign government information,” the Foreign Affairs
Manual applies solely to the classification procedures of “foreign affairs agencies,” which the
Department of Treasury is not. See 12 FAM 511.1(a)(1)–(5) (listing “foreign affairs agencies”).
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processes necessitate in camera review by this Court. While the Court may further examine the
agency’s records at its discretion under 5 U.S.C § 552(a)(4)(B), in camera review is a last resort
in national security situations, Larson, 565 F.3d at 870, and is only warranted if the agency’s
declarations are insufficient to place the requested document within the exemption claimed, and
if there is evidence of bad faith. ACLU, 628 F.2d at 626. For the reasons below, the Court holds
that the language of the Department of Treasury’s declaration is specific enough to place the
Letter within the exemption claimed, and that Competitive Enterprise’s allegations of bad faith
are unfounded. Accordingly, the request for in camera review is denied.
As noted, the Court may rely on agency declarations when the declarations “demonstrate
that the information withheld logically falls within the claimed exemption and [is] not
controverted by evidence of agency bad faith.” Larson, 565 F.3d at 862. Courts are generally
reluctant to intrude on agency authority regarding military or national security affairs. Dep’t of
Navy v. Egan, 484 U.S. 518, 530 (1988). Therefore, in the context of national security
exemptions such as Exemption 1, agency declarations are afforded “substantial weight,” see
Krikorian, 984 F.2d at 464, so long as they are sufficiently detailed to permit meaningful de novo
review. Voinche v. FBI, 412 F. Supp. 2d 60, 65 (D.D.C. 2006); see Campbell, 164 F.3d at 32
(noting that declarations must establish a “nexus” between the protected material and the
exemption claimed). Accordingly, “conclusory affidavits that merely recite statutory standards,
or are overly vague or sweeping” will not satisfy this burden. Larson, 565 F.3d at 862 (citing
Hayden v. NSA, 608 F.2d 1381, 1387 (D.C. Cir. 1979)).
When it comes to an agency’s articulation of national security threats, courts recognize
that agency declarations will always be somewhat speculative and need not show actual harm.
Halperin v. CIA, 629 F.2d 144, 149 (D.C. Cir. 1980). While wholly conclusory declarations do
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not allow courts to properly review the information withheld under an exemption, “the text of
Exemption 1 itself suggests that little proof or explanation is required beyond a plausible
assertion that information is properly classified.” Morley, 508 F.2d at 1124; see, e.g., Judicial
Watch, Inc. v. U.S. Dep’t of Def. (noting that “pertains,” as used in EO 13,526 § 1.4, “is not a
very demanding verb”) (quoting Judicial Watch, Inc. v. U.S. Dep’t of Def., 857 F. Supp. 2d 44,
60 (D.D.C. 2012)). Furthermore, agencies are not faulted for “using the language of the order”
to explain their reasoning, Leopold, 106 F. Supp. 3d at 62, as long as the language links to the
rationale for withholding the documents at issue. Judicial Watch, Inc. v. FDA, 449 F.3d 141,
147 (D.C. Cir. 2006); Landmark Legal Fund v. IRS, 267 F.3d 1132, 1138 (D.C. Cir. 2001)
(determining that an agency’s “parrot[ing]” of statutory language in an affidavit was non-
dispositive in the court’s specificity determination).
Again, the Court’s task is not to evaluate the objective validity of the Department of
Treasury’s assertions, but rather to evaluate whether the Mason Declaration is specific enough to
determine whether the agency plausibly asserted that the Letter’s disclosure could “reasonably
could be expected” to harm the foreign relations of the United States. Ctr. for Int’l Envtl. Law,
718 F.3d at 903 (citing Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). In light of these
principles, Competitive Enterprise’s contention that the Mason Declaration does not specifically
or adequately connect the Letter’s disclosure to national security harm is unfounded.
The Mason Declaration identifies several discrete topics that this Court has already
determined reasonably fall under the category of information that may damage “foreign
relations”— which the language of EO 13,526 equates with damage to national security. EO
13,526 § 6.1(1); see EO 13,526 § 1.4(d); Mason Decl. ¶ 4 (characterizing Letter as discussing
“international regulatory standards and the application of those standards . . . regulatory topics at
13
issue. . . [,] policy positions, and . . . possible next steps for the two countries”). It is, therefore,
plausible that the Department of Treasury also concluded that disclosure of that information
would result in damage to the relations between the United States and the United Kingdom.
Mason Decl. ¶ 4. Moreover, the Bank of England specifically requested that the Letter be kept
confidential, a request that both indicates the sensitivity of the information contained in the
Letter and supports the Department of Treasury’s contention that its disclosure could reasonably
be expected to damage foreign relations. Def.’s Statement ¶ 2. Any more specificity from the
Department of Treasury, particularly with a document of this length, would seemingly “thwart”
Exemption 1’s original purpose, which this Court is loath to do. See King v. DOJ, 830 F.2d 210,
224 (D.C. Cir. 1987). 3
Finally, the Court does not agree that Competitive Enterprise’s primary allegations of bad
faith on the Department of Treasury’s part—that the agency unnecessarily delayed its response
to the FOIA requests and classified the Letter to avoid embarrassment—warrant in camera
review. Evidence of bad faith must be “tangible” in order to justify in camera review. Carter v.
U.S. Dep’t of Commerce, 830 F.2d 388, 393 (D.C. Cir. 1987). Absent tangible evidence of bad
faith, “court[s] should not question the veracity of agency submissions.” Id. Competitive
Enterprise’s allegations regarding the Department of Treasury’s “suspicious” handling of the
Letter simply detail a delayed (albeit heavily) response, which courts in this jurisdiction have
3
Competitive Enterprise additionally argues that Mr. Mason’s use of statutory language
in his declaration necessitates in camera review. See Pl.’s Opp’n at 16 (citing Campbell, 164
F.3d at 30). However, as noted, the agency is “permitted to use the language of the order to
explain its reasoning.” Leopold, 106 F. Supp. 3d at 62. Given the Court’s determination that the
language of the declaration is sufficiently specific, Mr. Mason’s use of certain “verbatim”
passages from EO 13,526 is not, as Competitive Enterprise contends, dispositive. Pl.’s Opp’n at
16 n.5 (citing Mason Decl. ¶ 7–9).
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repeatedly found to be insufficient evidence of agency bad faith. 4 Ellis v. DOJ, 110 F. Supp. 3d
99, 107 (D.D.C. 2015); see Bartko v. DOJ, 102 F. Supp. 3d 342, 351–52 (D.D.C. 2015)
(collecting cases). And, as discussed above, Competitive Enterprise has offered little evidence
other than its own speculation that the information in the Letter was, or would have been, an
embarrassment to the Department of Treasury. See Pl.’s Opp’n at 7–8; Def.’s Reply at 9.
Absent tangible evidence of agency wrongdoing, the Court finds that the Department of
Treasury’s actions do not demonstrate the bad faith or egregious “sloppiness” that Competitive
Enterprise claims. Pl.’s Opp’n at 18–19 (citing Afshar v. U.S. Dep’t of State, 702 F.2d 1125,
1131 (D.C. Cir. 1983)).
Having determined that the Mason Declaration is sufficiently detailed and that the record
contains no evidence of bad faith, “in camera review is neither necessary nor appropriate”—
particularly given the national security implications of Exemption 1. ACLU, 628 F.3d at 626
(citing Hayden, 608 F.2d at 1387); see Larson, 565 F.3d at 870. Accordingly, Competitive
5
Enterprise’s request for in camera review of the Letter is denied.
4
Competitive Enterprise rests this bad faith argument on the Department of Treasury’s
response to Ms. Festa, who is not a party to this case. See Pl.’s Opp’n at 4–5. While the Court
takes notice of the timeline surrounding Ms. Festa’s request, the fact that the agency later
determined that the information in the Letter was classifiable, and not a “foreign record,” is not
tangible evidence of bad faith, nor does it display the extreme sloppiness Competitive Enterprise
claims—particularly given the Court’s determination that the information in the Letter was
indeed classifiable. See Attach. E. While the classification of material after a FOIA request may
be problematic in certain cases, the Department of Treasury complied fully with EO 13,526
procedures. See EO 13,526 § 1.7(d) (describing the procedure for post-FOIA request
classification); Mason Decl. ¶ 6–10.
5
Though Competitive Enterprise does little to raise the issue of segregability, the Court
has “an affirmative duty to consider the segregability issue sua sponte.” Morley, 508 F.3d at
1123 (citing Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028
(D.C.Cir.1999)). The Department of Treasury determined that there was “no non-classified
portion of the document to segregate,” and it therefore classified the Letter in its entirety. Def.’s
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V. CONCLUSION
For the foregoing reasons, the Department of Treasury’s motion for summary judgment
(ECF No. 12) is GRANTED. An order consistent with this Memorandum Opinion is separately
and contemporaneously issued.
Dated: August 9, 2018 RUDOLPH CONTRERAS
United States District Judge
Mot. at 6; see Mason Decl. ¶ 8–9. Courts generally respect an agency’s determination that
withheld records are exempt in their entireties, particularly when the information “implicates
national security concerns,” and the Court will do so here as well. Makky v. Chertoff, 489 F.
Supp. 2d 421, 441 n.23 (D.N.J. 2007). Moreover, considering that the Letter is only two pages
long, even if it were not classified in its entirety, any segregable information that may have
remained after the redaction of the exempted portions would likely be so “inextricably
intertwined” with classified information as to render any segregability futile. James Madison
Project v. CIA, 607 F. Supp. 2d 109, 131 (D.D.C. 2009); see ACLU v. CIA, 892 F. Supp. 2d 234,
250 (D.D.C. 2012) (applying the presumption of good faith to an agency’s segregability
determinations). Therefore, the Department of Treasury has satisfied its segregability burden.
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