Muttitt v. United States Central Command , 926 F. Supp. 2d 284 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GREG MUTTITT,
Plaintiff,
Civil Action No. 10-202 (BAH)
v.
Judge Beryl A. Howell
DEPARTMENT OF STATE, et al.,
Defendants.
MEMORANDUM OPINION
The plaintiff, Greg Muttitt, brings this action against the U.S. Department of State (the
“State Department”) pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. The
plaintiff is an author who sought records from the State Department regarding the development
of Iraq’s energy policy and national hydrocarbon law, for the purpose of writing a book on those
subjects. 1 He now challenges several aspects of the State Department’s response to his five
FOIA requests, including the propriety of the State Department’s denial of the plaintiff’s requests
for a fee waiver and expedited processing, the adequacy of the State Department’s search efforts,
and the validity of the State Department’s determinations to withhold certain responsive records
in whole or in part. The State Department has moved for summary judgment on all of the
plaintiff’s remaining claims.
1
Apparently, this book was ultimately published in April 2011. See Mem. of P. & A. in Supp. of Def.’s Mot. for
Partial Summ. J. (“Def.’s Mem.”) at 2, ECF No. 34-1.
1
I. BACKGROUND
A. The FOIA Requests at Issue
This action arises out of five separate FOIA requests submitted by the plaintiff between
April and November 2009 to the defendant, seeking various records from specific time periods
between 2006 and 2009. The Court will discuss each of these requests seriatim.
1. Request #1
The first such request (“Request #1”), submitted by letter on April 13, 2009, sought
“[d]ocuments relating to advice by U.S. officials to the Iraq Ministry of Oil, on the subject of
contracts with international oil companies, between September 1, 2007, and December 31,
2008.” See Decl. of Margaret P. Grafeld (“Grafeld Decl.”) Ex. 1, at 1, ECF No. 34-3. 2 Request
#1 also sought a fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii). 3 See id. at 2. The plaintiff
also requested, via a separate letter dated June 12, 2009, for Request #1 to be processed on an
expedited basis because he “need[ed] the information urgently for disseminating information, in
order to inform the public concerning Federal Government activity.” Grafeld Decl. Ex. 2, at 2.
The defendant wrote to the plaintiff on July 7, 2009, acknowledging Request #1 and notifying
the plaintiff that his requests for a fee waiver and expedited processing were denied. See Grafeld
Decl. Ex. 3, at 1, 3–4. On November 20, 2009, the plaintiff filed an administrative appeal of the
State Department’s “constructive denial of [his] FOIA request and its constructive denial of [his]
request for expedited processing,” Grafeld Decl. Ex. 5, at 2, though the State Department never
responded to this appeal. Between October 15, 2010, and February 22, 2011, the State
2
The Grafeld Declaration and all exhibits attached thereto are located at ECF No. 34-3.
3
5 U.S.C. § 552(a)(4)(A)(iii) provides:
Documents shall be furnished without any charge or at a charge reduced below the fees
established under clause (ii) if disclosure of the information is in the public interest because it is
likely to contribute significantly to public understanding of the operations or activities of the
government and is not primarily in the commercial interest of the requester.
2
Department sent the plaintiff four letters, each of which notified him when searches of various
agency components had been completed, how many responsive records were located in the
search of each component, and which responsive records were being disclosed, in whole or in
part. See Grafeld Decl. Exs. 8–11. In sum, the State Department located forty-two records
responsive to Request #1. See id.; see also Grafeld Decl. ¶¶ 11–14. Twelve of these responsive
records were released in full, fifteen of them were released in part with certain portions redacted,
and fifteen of them were withheld in full. See Grafeld Decl. Exs. 8–11.
2. Request #2
The plaintiff’s second request (“Request #2”) to the State Department, submitted by letter
on June 19, 2009, sought the release of “[a]ll cable traffic to and from the US Embassy in
Baghdad, dated between 20 May 2006 and 15 June 2006, on the subject of the Iraq oil law.” 4
Grafeld Decl. Ex. 12, at 1. Request #2 also sought a fee waiver pursuant to 5 U.S.C.
§ 552(a)(4)(A)(iii) and expedited processing because the plaintiff “need[ed] the information
urgently for dissemination, in order to inform the public concerning Federal Government
activity.” Id. at 1–3. On July 1, 2009, the State Department acknowledged the plaintiff’s request
via e-mail and sought further information about the nature of the book the plaintiff was planning
to write with the information he obtained through his request. 5 See Grafeld Decl. Ex. 13, at 1.
After receiving more information from the plaintiff, see Grafeld Decl. Ex. 14, the State
Department notified the plaintiff via letter on July 7, 2009 that it was denying his requests for a
fee waiver and expedited processing. See Grafeld Decl. Ex. 15, at 3–4. On August 15, 2009, the
plaintiff filed a lengthy administrative appeal of the State Department’s denial of his requests for
4
The plaintiff later agreed to narrow the scope of Request #2 to “cable traffic between Baghdad and Washington.”
See Grafeld Decl. Ex. 22, at 1.
5
The plaintiff noted in Request #2 that “[w]herever possible, I would prefer that written communications in relation
to this request are sent by email rather than posted letter.” Grafeld Decl. Ex. 12, at 3.
3
a fee waiver and expedited processing, see Grafeld Decl. Ex. 16, but on October 28, 2009 the
State Department notified the plaintiff via letter that it was affirming the denial of both requests,
see Grafeld Decl. Exs. 18–19. On July 16, 2010, the State Department notified the plaintiff that
it had located one document responsive to Request #2, which it released in part. See Grafeld
Decl. Ex. 23.
3. Request #3
On July 23, 2009 the plaintiff submitted, via letter, his third FOIA request to the State
Department (“Request #3”), which sought “[a]ll cable traffic to and from the U.S. Embassy in
Baghdad, dated between February 6 and February 28, 2007, on the subject of the Iraq oil law.”
Grafeld Decl. Ex. 24, at 1. 6 Request #3 likewise sought a fee waiver and expedited processing
on the same grounds as those cited in Requests #1 and #2. See id. at 1–4. On October 28, 2009,
the State Department acknowledged Request #3 and notified the plaintiff that his requests for a
fee waiver and expedited processing were denied. See Grafeld Decl. Ex. 25, at 1, 3–4. On
November 20, 2009, the plaintiff submitted via e-mail an administrative appeal of “the State
Department’s constructive denial of [his] FOIA request and its constructive denial of [his]
request for expedited processing,” see Grafeld Decl. Ex. 28, at 2, though the State Department
never responded to this appeal. By letter dated September 8, 2010, the State Department notified
the plaintiff that it located nineteen records responsive to Request #3. See Grafeld Decl. Ex. 30,
at 1. One of those records was released in full, six of the records were released in part with
redactions, and twelve of the records were withheld in full. See id.6
The plaintiff later clarified that, in relation to Request #3, he wanted the State Department “to search for any cables
between Baghdad and regional offices in Irbil or Sulimaniya [sic] (both in Iraqi Kurdistan), as well between
Baghdad and Washington.” See Grafeld Decl. Ex. 22, at 1.
4
4. Request #4
On October 4, 2009, the plaintiff submitted his fourth request (“Request #4”) to the State
Department, which sought “[a]ll releasable documents relating to the work of Meghan
O’Sullivan in Iraq, between June 1, 2007 and October 1,2007.” Grafeld Decl. Ex. 31, at 1. As
the request explained, during this period of time Dr. O’Sullivan “was Presidential Envoy to Iraq”
and “the primary purpose of her work was to press Iraqi politicians to achieve a set of
‘benchmarks,’ which had been set out by the President and by Congress,” including passage of
the Iraqi hydrocarbon law. See id. at 1. The request specified that it was seeking, inter alia,
“[e]mails to and from Dr. O’Sullivan.” Id. at 1. Request #4, like its predecessors, also sought a
fee waiver and expedited processing. See id. at 1–6. On October 9, 2009, the State Department
sent a letter to the plaintiff acknowledging Request #4 and denying his requests for a fee waiver
and expedited processing. See Grafeld Decl. Ex. 32, at 1, 3–4. Much like the previous requests,
the plaintiff sent a letter to the State Department on November 20, 2009, appealing “the State
Department’s constructive denial of [his] FOIA request and its constructive denial of [his]
request for expedited processing.” See Grafeld Decl. Ex. 35, at 2. On December 2, 2009, the
State Department informed the plaintiff via letter that it was affirming its decision to deny his
request for expedited processing. See Grafeld Decl. Ex. 37, at 1. Between October 15, 2010 and
February 17, 2011, the State Department sent the plaintiff three letters notifying him when
searches of various agency components were completed and releasing any non-exempt,
responsive material. See Grafeld Decl. Exs. 38–40. In sum, the State Department located
twenty-eight records responsive to Request #4. See id. One of these records was released in full,
ten were released in part with redactions, and the remaining seventeen records were withheld in
5
full. See id.; see also Def.’s Statement of Material Facts Not in Dispute (“Def.’s Facts”) ¶ 38,
ECF No. 34-2.
5. Request #5
On November 11, 2009, the plaintiff submitted his fifth and final FOIA request to the
State Department (“Request #5”), which sought “[d]ocuments on the subject of the Iraqi oil and
gas (hydrocarbon) sector, relating to Vice President Biden’s visits to Iraq on July 2–4 and
September 15–16, 2009.” Grafeld Decl. Ex. 41, at 1. This last request also sought a fee waiver
and expedited processing. See id. at 1–5. On November 17, 2009, the State Department sent the
plaintiff a letter acknowledging receipt of Request #5 and denying his requests for a fee waiver
and expedited processing. See Grafeld Decl. Ex. 42, at 1, 3–4. On December 21, 2009, the
plaintiff sent an e-mail to the State Department, appealing the “constructive denial of [his] FOIA
request” and the “constructive denial of [his] request for expedited processing.” Grafeld Decl.
Ex. 43, at 2. In a letter dated December 23, 2009, the State Department notified the plaintiff that
it was affirming its decision to deny the plaintiff’s request for expedited processing. See Grafeld
Decl. Ex. 45. Between December 14, 2010 and February 17, 2011, the State Department sent the
plaintiff three letters notifying him when the searches of various agency components had been
searched and releasing any non-exempt, responsive records. See Grafeld Decl. Exs. 46–48. In
sum, the State Department located four records responsive to Request #5. See id. One of the
documents was released in part with redactions and the other three were withheld in full. See id.;
see also Def.’s Facts ¶ 40.
In total, the State Department located ninety-four unique documents responsive to the
plaintiff’s five FOIA requests. Fourteen of those documents were released to the plaintiff in full,
6
thirty-three were released in part with redactions, and forty-seven were withheld in full. See
Grafeld Decl. ¶ 206. 7
B. District Court Proceedings
The plaintiff filed his Complaint in the instant action on February 5, 2010, while the State
Department was still processing his five FOIA requests. See Compl., ECF No. 1. The plaintiff
then filed an amended complaint on March 3, 2010. See First Am. Compl. (“FAC”), ECF No.
10. The First Amended Complaint originally stated twenty-six separate causes of action against
four federal agencies, including the State Department, but the scope of this action has narrowed
significantly since then. On December 15, 2010 the plaintiff stipulated to the dismissal of all
claims against the Department of Defense and the U.S. Central Command. See Stipulation of
Dismissal with Prejudice, ECF No. 29. On January 24, 2011, the plaintiff likewise stipulated to
the dismissal of all claims against the Department of the Treasury. See Stipulation of Dismissal,
ECF No. 30. 8 On September 28, 2011, this Court dismissed Count 26 of the First Amended
Complaint in response to a partial motion to dismiss filed by all four of the original defendants.
See Muttitt v. U.S. Cent. Command, 813 F. Supp. 2d 221, 231 (D.D.C. 2011). On December 1,
2011, the plaintiff voluntarily dismissed Count 25 of the First Amended Complaint, which was
pleaded against the State Department. See Stipulation of Dismissal with Prejudice, ECF No. 48.
Finally, the plaintiff voluntarily agreed to dismiss Count 14 of the First Amended Complaint.
See Def.’s Ex. 3, ECF No. 34-6. After all of these dismissals, there are nine claims remaining
against the defendant State Department, all of which relate to the five specific FOIA requests
discussed above. Currently pending before the Court is the State Department’s motion for
7
As the State Department indicates, six documents responsive to the plaintiffs’ FOIA requests “were duplicates,
accounted for in one of Plaintiff’s prior FOIA requests.” Grafeld Decl. ¶ 206.
8
The parties specified in the dismissal of the Treasury Department that “[t]he only issue remaining with respect to
Counts 22, 23, and 24 is plaintiff’s alleged entitlement to attorney’s fees on the claims detailed therein.” Stipulation
of Dismissal at 2, ECF No. 30.
7
summary judgment on these nine remaining claims and a motion by the plaintiff to file additional
evidence in opposition to the defendant’s summary judgment motion. For the reasons discussed
below, the Court grants in part and denies in part the defendant’s motion for summary judgment
and denies the plaintiff’s motion for leave to file additional evidence.
II. LEGAL STANDARD
Congress enacted the FOIA to promote transparency across the government. See 5
U.S.C. § 552; Quick v. U.S. Dep’t of Commerce, Nat’l Inst. of Standards & Tech., 775 F. Supp.
2d 174, 179 (D.D.C. 2011). The Supreme Court has explained that the FOIA is “a means for
citizens to know ‘what their Government is up to.’ This phrase should not be dismissed as a
convenient formalism. It defines a structural necessity in a real democracy.” Nat’l Archives &
Records Admin. v. Favish, 541 U.S. 157, 171–72 (2004) (citation and internal quotation marks
omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning
of a democratic society, needed to check against corruption and to hold the governors
accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
As a result, the FOIA requires federal agencies to release all records responsive to a request for
production. See 5 U.S.C. § 552(a)(3)(A). Federal courts are authorized under the FOIA “to
enjoin the agency from withholding agency records and to order the production of any agency
records improperly withheld from the complainant.” Id. § 552(a)(4)(B).
This strong interest in transparency must be tempered, however, by the “legitimate
governmental and private interests [that] could be harmed by release of certain types of
information.” United Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557, 559 (D.C. Cir. 2010)
(internal quotation marks omitted); see also Critical Mass Energy Project v. Nuclear Regulatory
Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc). Accordingly, Congress included nine
8
exemptions permitting agencies to withhold information from FOIA disclosure. See 5 U.S.C.
§ 552(b). “These exemptions are explicitly made exclusive, and must be narrowly construed.”
Milner v. Dep’t of the Navy, 131 S. Ct. 1259, 1262 (2011) (citations and internal quotation marks
omitted); see also Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir.
2010) (“FOIA allows agencies to withhold only those documents that fall under one of nine
specific exemptions, which are construed narrowly in keeping with FOIA’s presumption in favor
of disclosure.” (citations omitted)). When a FOIA requester properly exhausts its administrative
remedies, it may file a civil action challenging an agency’s response to its request. See 5 U.S.C.
§ 552(a)(4)(B); Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). Once such an action is filed,
the agency generally has the burden of demonstrating that its response to the plaintiff’s FOIA
request was appropriate.
When an agency’s response to a FOIA request is to withhold responsive records, either in
whole or in part, the agency “bears the burden of proving the applicability of claimed
exemptions.” Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir.
2011). “The government may satisfy its burden of establishing its right to withhold information
from the public by submitting appropriate declarations and, where necessary, an index of the
information withheld.” Am. Immigration Lawyers Ass’n v. U.S. Dep’t of Homeland Sec., 852 F.
Supp. 2d 66, 72 (D.D.C. 2012) (citing Vaughn v. Rosen, 484 F.2d 820, 827–28 (D.C. Cir. 1973)).
“If an agency’s affidavit describes the justifications for withholding the information with specific
detail, demonstrates that the information withheld logically falls within the claimed exemption,”
and “is not contradicted by contrary evidence in the record or by evidence of the agency’s bad
faith, then summary judgment is warranted on the basis of the affidavit alone.” ACLU, 628 F.3d
at 619. “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it
9
appears ‘logical or ‘plausible.’” Id. (internal quotation marks omitted) (quoting Larson v. Dep’t
of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).
When a requester challenges an agency’s response based on the adequacy of the search
performed, “[t]o prevail on summary judgment . . . the defending ‘agency must show beyond
material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant
documents.’” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v. U.S.
Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). “In order to obtain summary judgment
the agency must show that it made a good faith effort to conduct a search for the requested
records, using methods which can be reasonably expected to produce the information requested.”
Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “Summary judgment may be
based on affidavit, if the declaration sets forth sufficiently detailed information ‘for a court to
determine if the search was adequate.’” Students Against Genocide v. Dep’t of State, 257 F.3d
828, 838 (D.C. Cir. 2001) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890
(D.C. Cir. 1995)).
III. DISCUSSION
The plaintiff challenges three aspects of the State Department’s handling of his FOIA
requests: (1) the denial of his requests for fee waivers and expedited processing, (2) the agency’s
search efforts, and (3) the agency’s withholding determinations. 9 The Court will begin by
discussing the denial of the plaintiff’s requests for fee waivers and expedited processing before
discussing the adequacy of the State Department’s search efforts and the validity of the agency’s
withholding determinations.
9
With reference to the First Amended Complaint, the plaintiff challenges the “constructive denial” of his five
specific FOIA requests in Counts Thirteen, Fifteen, Seventeen, Twenty, and Twenty-One. See FAC ¶¶ 52–55, 61–
64, 69–72, 80–88. The plaintiff challenges the denials of his requests for expedited processing of Requests #5, #4,
and #2 in Counts Twelve, Sixteen, and Nineteen, respectively. See id. ¶¶ 48–51, 65–68, 77–79. Finally, the plaintiff
challenges the denial of his request for a fee waiver regarding Request #2 in Count Eighteen. See id. ¶¶ 73–76.
10
A. Fee Waiver and Expedited Processing Determinations
Four of the plaintiff’s remaining causes of action in his First Amended Complaint
challenge the State Department’s refusal to process Requests #2, #4, and #5 on an expedited
basis and its refusal to grant a fee waiver for Request #2. See FAC ¶¶ 48–51, 65–68, 73–76, 77–
79. The defendant contends that these claims are now moot because (1) the plaintiff was never
charged fees for any of his FOIA requests; and (2) “State has completed processing and releasing
non-exempt documents responsive to” Request #2, Request #4, and Request #5. Mem. of P. &
A. in Supp. of Def.’s Mot. for Partial Summ. J. (“Def.’s Mem.”) at 12–13, ECF No. 34-1. For
these reasons, the defendant argues that “there is no further relief for the Court to provide with
respect to [the plaintiff’s] expedited processing claims” and “[a] declaration by this Court as to
the propriety of State’s [fee waiver] denial would constitute an advisory opinion.” Id.At the outset, the plaintiff “concedes that his challenge to the actual denial of his request
for a public interest fee waiver for [Request #2] has been rendered moot.” Pl.’s Opp’n to Def.’s
Mot. for Summ. J. (“Pl.’s Opp’n”) at 7, ECF No. 39. Aside from this concession, the plaintiff’s
opposition to the defendant’s mootness arguments is two-fold. First, the plaintiff argues that he
has impliedly pleaded that the State Department has a policy or practice of improperly denying
requests for expedited processing and fee waivers. See id. at 7–13. Despite conceding that he
“did not [plead] a specific count challenging the propriety of State’s pattern[s] or practice[s],”
the plaintiff argues that his “Prayer for Relief clearly envisioned relief that would extend beyond
the three requests at issue and require review of the underlying pattern[s] or practice[s] that led to
the determinations.” See id. at 7, 10. Second, the plaintiff argues that his claims related to the
specific denials of expedited processing are not moot because the State Department has not
provided a “complete response” to the plaintiff’s FOIA requests. See id. at 13–15. This
11
argument stems from a provision of the FOIA, which states that “[a] district court of the United
States shall not have jurisdiction to review an agency denial of expedited processing of a request
for records after the agency has provided a complete response to the request.” 5 U.S.C.
§ 552(a)(6)(E)(iv). The plaintiff contends that, because the adequacy of the defendant’s search
efforts and the propriety of its withholding determinations remain contested, the State
Department’s response is not yet “complete” within the meaning of the FOIA. See Pl.’s Opp’n at
14–15.
The Court will address the plaintiff’s “policy or practice” argument first. There is no
question that the D.C. Circuit has recognized that, separate from claims seeking relief for
specific FOIA requests, requesting parties may also assert a “claim that an agency policy or
practice will impair the party’s lawful access to information in the future.” Payne Enters., Inc. v.
United States, 837 F.2d 486, 491 (D.C. Cir. 1988) (emphasis omitted); accord Newport
Aeronautical Sales v. Dep’t of Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012). To state a claim
for relief under the “policy or practice” doctrine articulated in Payne, however, a plaintiff must
allege, inter alia, facts establishing that the agency has adopted, endorsed, or implemented some
policy or practice that constitutes an ongoing “failure to abide by the terms of the FOIA.”
Payne, 837 F.2d at 491.
In the instant action, the plaintiff concedes that he did not state a separate cause of action
for any policy or practice related to the denial of requests for expedited processing or fee
waivers. See Pl.’s Opp’n at 7, 10. To cure this admitted deficiency in his pleading, the plaintiff
attempts to rely on the language of his Prayer for Relief, which asked the Court to, inter alia,
(1) “Declare and find that [the defendants] improperly denied [the plaintiff] expedited processing
of his requests,” (2) “Order [the defendants] to process [the plaintiff’s] requests in an expedited
12
fashion,” (3) “Declare and find that [the defendants] improperly denied [the plaintiff] public
interest fee waivers,” (4) “Order [the defendants] to grant [the plaintiff] public interest fee
waivers where appropriate,” and (5) “Grant such other relief as the Court may deem just and
proper.” See FAC at 15–16; Pl.’s Opp’n at 7, 10–11. As to the language in the Prayer for Relief,
the plaintiff contends that “the ‘where appropriate’ language . . . was clearly intended to provoke
an order that would be applicable to more than just the specific requests in the case, which would
necessarily entail opining on the validity of State’s pattern or practice.” Pl.’s Opp’n at 7. The
plaintiff also argues that “the request that the Court ‘[g]rant such other relief as the Court may
deem just and proper’ leaves the door open for just the type of declaratory and injunctive relief
established by Payne.” Id.Although creatively styled, the plaintiff’s reliance on his Prayer for Relief in this regard
is wholly unavailing. To demonstrate why, the Court begins with reference to the fundamental
purpose of the pleading standard set forth in Federal Rule of Civil Procedure 8. That Rule
“requires only ‘a short and plain statement of the claim showing that the pleader is entitled to
relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Permitting the plaintiff
to raise a policy-or-practice claim for the first time at summary judgment based solely on vague
language in his Prayer for Relief would run contrary to Rule 8’s purpose because the language
cited by the plaintiff in his First Amended Complaint, by itself, does not put the defendant on
notice of policy-or-practice claims related to the denial of requests for expedited processing or
public-interest fee waivers. Even assuming that a prayer for relief could sufficiently raise
otherwise unpleaded claims, the plaintiff’s exegesis of his Prayer for Relief in the instant action
is unpersuasive. Nothing in the language of the plaintiff’s Prayer for Relief conveys the slightest
13
desire, let alone a “clear[] inten[t],” see Pl.’s Opp’n at 7, to raise a policy-or-practice claim
related to expedited processing or fee waivers. On the contrary, the language of the plaintiff’s
Prayer for Relief focuses on specific denials of requests for expedited processing and fee
waivers. See FAC at 15 (seeking declaration regarding improper denial of “expedited processing
of his requests” (emphasis added)); id. at 16 (asking the Court to order the defendants “to process
Muttitt’s requests in an expedited fashion” (emphasis added)); id. (seeking declaration that
defendants “improperly denied Muttitt’s public interest fee waivers” (emphasis added)).
Although the plaintiff contends otherwise, his Prayer’s reference to granting relief “where
appropriate” and “[g]rant[ing] such other relief as the Court may deem just and proper,” id. at
16—boilerplate language commonly invoked in prayers for relief—does not magically enlarge
the plaintiff’s otherwise specific FOIA claims into broad, policy-or-practice claims.
In fact, the language cited by the plaintiff stands in stark contrast to the other portions of
his Prayer for Relief associated with the policy-or-practice claims that the plaintiff did plead in
separate causes of action. See id. (asking the Court to “[d]eclare and find that any [agency]
regulations, guidelines, or policy statements that authorize the refusal to provide a requester with
an estimated date of completion of a FOIA request constitutes an unreasonable interpretation of
the statutory obligations imposed by the FOIA” (emphasis added)). 10 Indeed, the simple fact that
the plaintiff pleaded separate causes of action for policy-or-practice claims regarding other
matters confirms that the plaintiff’s failure to include a policy-or-practice cause of action about
these matters (i.e., expedited processing and fee waivers) was a conscious choice that the
plaintiff simply now regrets. Yet, the plaintiff cannot cure the problem by attempting, at the
10
As discussed above, both of the policy-or-practice claims specifically pleaded by the plaintiff (Counts Twenty-
Five and Twenty-Six of the First Amended Complaint, see FAC ¶¶ 100–111) were dismissed, either on motion, see
Muttitt, 813 F. Supp. 2d at 231, or voluntarily by the plaintiff, see Stipulation of Dismissal with Prejudice, ECF No.
48. See supra Part I.B.
14
summary judgment stage, to reverse-engineer causes of action that were never pled. 11 A plaintiff
cannot ensconce claims between the lines of an otherwise garden-variety Prayer for Relief, only
to embellish those obscurities into new causes of action for the first time at summary judgment.
Therefore, the plaintiff may not now raise claims regarding the State Department’s supposed
agency-wide policies or practices regarding the denial of requests for public-interest fee waivers
or expedited processing. 12
As to the denial of specific requests for expedited processing, there is no clear authority
in this Circuit as to when challenges to such denials become moot. Some cases have suggested
in dicta that once an agency has fully processed a FOIA request or moved a FOIA request to the
front of the line, the agency’s prior refusal to process that request expeditiously is moot. See,
e.g., Landmark Legal Found. v. EPA, No. 12-1726, 2012 WL 6644362, at *2 (D.D.C. Dec. 21,
2012) (stating that “the Court believes that [plaintiff’s] request for expedited processing may be
moot” because “EPA has already stated that [plaintiff’s] request is ‘at the top of the FOIA
processing queue’” and therefore “the Court questions whether an order compelling expedited
processing would afford any additional relief to [plaintiff]”); Citizens for Responsibility & Ethics
in Wash. v. Dep’t of Justice, 535 F. Supp. 2d 157, 160 n.1 (D.D.C. 2008) (“Because DOJ has
11
To the extent that the plaintiff is seeking to amend his complaint constructively through his summary judgment
briefing, such constructive amendments are not generally permitted. See, e.g., Citizens for Responsibility & Ethics
in Wash. v. Cheney, 593 F. Supp. 2d 194, 217 (D.D.C. 2009) (“It is well-established that a plaintiff cannot add or
amend claims through an opposition to a motion for summary judgment.”). The only possible exception to this rule
is when “the parties ha[ve] fully briefed an issue that was not necessarily raised in the complaint,” because in such
instances the issue has been “tried by the express or implied consent of the parties.” See Turner v. Shinseki, 824 F.
Supp. 2d 99, 122 n.23 (D.D.C. 2011) (quoting FED. R. CIV. P. 15(b)(2)). The exception articulated in Turner,
however, does not apply in the instant action because the defendant has consistently maintained throughout its
summary judgment briefing that the plaintiff “should not be permitted to amend his Complaint nearly 14 months
later through opposition to Defendant’s motion for summary judgment.” See Reply in Supp. of Def.’s Partial Mot.
for Summ. J. (“Def.’s Reply”) at 5, ECF No. 40.
12
For these same reasons, the Court denies the plaintiff’s motion for leave to file additional exhibits because the
proffered additional exhibits are solely intended to support the plaintiff’s purported policy-or-practice claims
regarding fee waiver and expedited processing. See Pl.’s Mot. for Leave to File Additional Exhibits at 2, ECF No.
50 (stating that additional exhibits “constitute material evidence of a pervasive misinterpretation of FOIA’s
provisions for public interest fee waivers and expedited processing”).
15
now completed processing CREW’s request, CREW recognizes that this [expedited processing]
claim is moot.”). In Edmonds v. FBI, 417 F.3d 1319 (D.C. Cir. 2005), the D.C. Circuit could be
read to have suggested otherwise, but upon closer examination Edmonds does not preclude a
finding of mootness in the instant case. In Edmonds, the Circuit held that a FOIA plaintiff was a
“prevailing party” where the district court granted her “partial summary judgment on the
question of expedited review” and ordered the agency to produce all nonexempt documents by a
date certain. 417 F.3d at 1322–24. The Circuit observed that “expedited processing of a FOIA
request is a statutory right, not just a matter of court procedure,” and thus when the district court
ordered production of non-exempt documents by a date certain, “it provided the plaintiff with
full relief ‘on the merits’ of her claim to expedited treatment.” Id. at 1323–24. In this regard,
Edmonds distinguished the district court’s order with the order entered by the district court in
Oil, Chemical & Atomic Workers International Union, AFL-CIO v. Department of Energy
(“OCAW”), 288 F.3d 452, 458 (D.C. Cir. 2002), which “require[d] that the Energy Department
complete its record review in 60 days.” The Edmonds Court held that this “‘scheduling order[]’”
in OCAW was “quite different from the one issued by the district court in this case,” since the
latter obligated the agency to produce documents by a date certain and thus “vindicated a
statutory right that [the plaintiff’s] complaint expressly claimed, and granted her relief that she
specifically sought.” Edmonds, 417 F.3d at 1323–24 (citations omitted).
Based on Edmonds, it appears that an important question to ask in determining whether a
requester’s claim regarding the denial of a request for expedited processing is moot is what relief
the requester still has available if the denial is deemed incorrect. The text of the FOIA only
requires that an agency “process as soon as practicable any request for records to which the
agency has granted expedited processing.” 5 U.S.C. § 552(a)(6)(E)(iii). Thus, the only relief
16
required by the FOIA with regard to expedited processing is moving an individual’s request “to
the front of the agency’s processing queue.” See Leadership Conference on Civil Rights v.
Gonzales, 404 F. Supp. 2d 246, 259 (D.D.C. 2005); see also Long v. Dep’t of Homeland Sec.,
436 F. Supp. 2d 38, 44 (D.D.C. 2006) (“To compel the agency to provide expedited processing
would merely place plaintiffs’ request ahead of others that are awaiting responses to their
requests.”). In this sense, the district court in Edmonds went above and beyond the relief
required by the FOIA when it ordered the responding to agency to “provide plaintiff with all
documents as to which no exemption is being claimed’ by [a date certain].” Edmonds, 417 F.3d
at 1321. This appears to be largely because, at the time the plaintiff was seeking summary
judgment on the expedited processing issue, the agency still had not yet provided any substantive
response to the plaintiff’s FOIA request and had instead moved for a stay of proceedings under
Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976). See
Edmonds v. FBI, No. 02-1294, 2002 WL 32539613, at *1–4 (D.D.C. Dec. 3, 2002). In the
instant action, by contrast, the State Department has already fully processed the plaintiff’s
request at the administrative level and has already “provide[d] plaintiff with all documents as to
which no exemption is being claimed.’” Edmonds, 417 F.3d at 1321.
Based on the text of the FOIA, prior precedent, and the procedural posture of the instant
action, the Court concludes that the plaintiff’s causes of action regarding the denial of his
specific requests for expedited processing are now moot. The Court reads the Circuit’s opinion
in Edmonds to mean that the only scenario in which a court can properly grant relief to a FOIA
requester “on the merits” of an expedited processing claim is when an agency has not yet
provided a final substantive response to the individual’s request for records. After that point, the
timing of any further processing of an individual’s request (either expeditiously or otherwise)
17
necessarily occurs at the direction of the court—pursuant to a scheduling order, not the expedited
processing provision of the FOIA. For this reason, the Court construes the phrase “complete
response” in 5 U.S.C. § 552(a)(6)(E)(iv) to mean a final determination under § 552(a)(6)(A), i.e.,
a final administrative determination whether to release any records that are responsive to the
individual’s request. In order for its response to be “complete,” an agency need not, as the
plaintiff argues, obtain a judicial declaration that its search efforts were adequate or that its
withholding determinations were warranted. See Pl.’s Opp’n at 14–15. Once an agency has
made its final determination under § 552(a)(6)(A), the timeliness of that determination is no
longer a live controversy fit for judicial review. See Atkins v. Dep’t of Justice, No. 90-5095,
1991 WL 185084, at *1 (D.C. Cir. Sept. 18, 1991) (“The question whether [the agency]
complied with the [FOIA’s] time limitations in responding to [the plaintiff’s] request is moot
because [the agency] has now responded to this request.”); Citizens for Responsibility & Ethics
in Wash. v. FEC, 839 F. Supp. 2d 17, 24 (D.D.C. 2011) (“[T]o the extent that Plaintiff’s
Complaint challenged the timeliness of [the agency’s] production, it is now moot.”); Landmark
Legal Found. v. EPA, 272 F. Supp. 2d 59, 68 (D.D.C. 2003) (“[A] lack of timeliness or
compliance with FOIA deadlines does not preclude summary judgment for an agency, nor
mandate summary judgment for the requester.”).
B. Adequacy of the State Department’s Search Efforts
Next, the plaintiff mounts a narrow challenge to the adequacy of the State Department’s
search efforts. In particular, the plaintiff contends that the State Department’s search efforts
were inadequate because, in response to Request #4, the agency failed to search a “recordkeeping
system,” which the plaintiff believes is reasonably likely to contain e-mails authored by Dr.
O’Sullivan that are responsive to the plaintiff’s request. See Pl.’s Opp’n at 15–20. As discussed
18
above, Request #4 sought “[a]ll releasable documents relating to the work of Meghan O’Sullivan
in Iraq, between June 1, 2007 and October 1, 2007,” including “[e]mails to and from Dr.
O’Sullivan.” Grafeld Decl. Ex. 31, at 1. In response to this request, the State Department first
“scoured the Embassy’s servers for any current or former email account assigned to the last
name ‘O’Sullivan’ or ‘OSullivan,’” but came up empty. See Grafeld Decl. ¶ 59. Next, the
defendant “took additional steps to search for any paper copies of e-mails authored by
O’Sullivan that might have been printed and filed,” and determined that “any paper copies of e-
mails that originated at Embassy Baghdad during the time period of Plaintiff’s FOIA request
would most likely have been retired.” Id. ¶ 60. Knowing this, the defendant then searched all
relevant retired files, starting with the retired file manifests, and then proceeding to a document-
by-document review of all of the retired paper records. See id. ¶ 61. After all of this searching,
“[n]o e-mails authored by O’Sullivan were located.” Id.
The plaintiff contends that these search efforts were insufficient by pointing to the State
Department’s “Records Schedule,” which describes “Electronic Mail Records” as “[s]enders’
and recipients’ versions of electronic mail messages that meet the definition of Federal records,
and any attachments to the record messages after they have been copied to an electronic
recordkeeping system, paper, or microform for recordkeeping purposes.” See Pl.’s Ex. D at 1,
ECF No. 39-5. From this document, the plaintiff argues that any e-mails received or authored by
Dr. O’Sullivan “of substantive importance” were required to be copied “to another
recordkeeping system before deleting them.” Pl.’s Opp’n at 17. Thus, the plaintiff’s specific
objection is that “State did not search the backup system to which such emails are required to be
copied.” Id. at 18.
19
The problem with the plaintiff’s argument, however, is that it presumes the existence of
an electronic, as opposed to a paper, recordkeeping system where important e-mails are
transferred once an individual’s e-mail account is deactivated. The document cited by the
plaintiff clearly does not require that e-mail records be kept in an electronic recordkeeping
system. It merely requires that such e-mail records be “copied to an electronic recordkeeping
system, paper, or microform.” Pl.’s Ex. D at 1 (emphasis added). More importantly, the State
Department maintains that “Plaintiff’s assumption that Dr. O’Sullivan’s e-mails must have been
copied to an electronic recordkeeping system is incorrect.” Def.’s Reply at 10. In fact, the
agency’s sworn declaration states clearly that “[t]here are no other [State] Department
components or active or retired records systems that are reasonably likely to contain electronic or
paper versions of e-mails authored by Meghan O’Sullivan between June 1, 2007 and October 1,
2007.” Grafeld Decl. ¶ 62. From the agency’s sworn statements, there is no reason to believe
that an electronic backup recordkeeping system of the kind described by the plaintiff actually
exists. The agency’s own regulations give it the option of keeping such records in electronic,
paper, or microform format, see Pl.’s Ex. D, and the defendant’s declaration establishes that the
State Department has thus far elected to archive any retained e-mail records in paper format.
The agency’s sworn statements “are accorded a presumption of good faith,” which cannot be
rebutted by the plaintiff’s speculative claim that an electronic recordkeeping system exists. See
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Therefore, the plaintiff’s
request for the State Department to conduct further searching of the purported electronic
recordkeeping system is unwarranted.
The D.C. Circuit’s decision in Ancient Coin Collectors Guild v. U.S. Department of State,
641 F.3d 504 (D.C. Cir. 2011), relied upon by the plaintiff, is not to the contrary. In that case,
20
the D.C. Circuit dealt with a challenge to the adequacy of the State Department’s search in
response to a FOIA request in which the plaintiff contended that “State failed to show the
adequacy of its search, because it didn’t address its employees’ archived emails and backup
tapes.” See Ancient Coin Collectors, 641 F.3d at 514. The State Department had submitted a
sworn declaration, which stated that staff members had “‘searched their emails as well as the
archived emails of a former staff member.” Id. (emphasis added). Picking up on this
unexplained reference to “archived emails,” the D.C. Circuit stated that “[n]owhere does State
explain whether it possesses email archives for Bureau [of Educational and Cultural Affairs]
employees other than the former staff member, whether there are backup tapes containing staff
member emails and, if so, whether such backup tapes might contain emails no longer preserved
on staff members’ computers.” Id. Ancient Coin Collectors is distinguishable from the instant
case, however, because in this case the State Department’s declaration explains how the e-mails
of former employees are archived and stored, and most importantly the State Department’s
declaration in the instant action also explains how the agency went about searching any e-mail
archives reasonably likely to contain records responsive to the plaintiff’s request.
The plaintiff also raises a second challenge to the defendant’s search efforts for the first
time in his sur-reply brief. This argument is premised on another portion of the State
Department “Records Schedule,” which, according to the defendant’s brief “directs Department
personnel to retire records to the Records Services Center (‘RSC’) at the end of the calendar year
during which the employee leaves the agency,” and “[t]he records are subsequently transferred to
the Washington National Records Center (‘WNRC’).” See Def.’s Reply at 10 n.5 (citing Def.’s
Reply Ex. 1, ECF No. 40-1). From this statement, the plaintiff contends that the State
Department must specify whether it searched “at the Embassy, at the RSC, or at the WNRC,”
21
since “without some indication of what retired paper records were searched, the Grafeld
Declaration is insufficient to support a finding for State on the adequacy of its search.” Pl.’s Sur-
Reply to Def.’s Mot. for Summ. J. (“Pl.’s Surreply”) at 3, ECF No. 45. Ultimately, the plaintiff
argues that “[o]nly by searching the retired paper records at all three locations would the
researcher be certain of locating any responsive emails.” Id. at 4.
Since this argument was raised for the first time in the plaintiff’s sur-reply brief, the
defendant has not had an opportunity to respond to it. No response from the State Department is
necessary, however, because the plaintiff’s argument is insufficient to defeat summary judgment
for the defendant agency. The plaintiff’s argument once again assumes certain facts without a
sufficient basis for doing so. Specifically, the plaintiff finely parses the phrase “reviewing the
retired file manifests from Embassy Baghdad,” see Grafeld Decl. ¶ 61, and argues that this
phrase necessarily means that the State Department did not search retired records that might have
been physically located in the RSC or the WNRC. See Pl.’s Surreply at 3. Such an assumption
is unwarranted, however, particularly in light of the agency’s statement that “[t]here are no other
Department components or active or retired records systems that are reasonably likely to
contain” responsive records. Grafeld Decl. ¶ 62 (emphasis added). The phrase “retired
manifests from Embassy Baghdad” in the defendant’s declaration, see id. ¶ 61 (emphasis added),
is arguably ambiguous regarding whether the searched manifests were merely physically located
in the Embassy or whether they encompassed all manifests that originated from the Embassy
during the relevant time period. The clear context of the agency’s declaration, however,
confirms that the agency’s search encompassed all retired files likely to contain responsive
records. First, the agency declarant discusses how the researcher assigned to the plaintiff’s case
searched for “any paper copies of e-mails that originated at Embassy Baghdad during the time
22
period of Plaintiff’s FOIA request.” Id. ¶ 60. Additionally, by the time the plaintiff had
submitted his FOIA request (2009), any retired files from 2007 would have already been
transferred to the RSC anyway, according to the very Records Schedule cited by the plaintiff.
See Def.’s Reply at 10 n.5 (noting that retired records are sent to the RSC “at the end of the
calendar year during which the employee leaves the agency”). Finally, the agency’s declaration
clearly states that the researcher “reviewed all of the retired paper records . . . by hand” before
concluding that no responsive records could be located. See Grafeld Decl. ¶ 61 (emphasis
added). These facts and sworn statements are sufficient to conclude that the State Department’s
search efforts were not only reasonable but thorough. As a result, the plaintiff’s argument on this
point—based entirely on a semantic ambiguity in the agency’s declaration—is unavailing, and
the defendant is entitled to summary judgment on the adequacy of its search efforts.
C. Withholding Determinations
The final category of issues raised by the plaintiff in opposition to the defendant’s motion
for summary judgment have to do with the propriety of certain withholding determinations made
by the agency. The State Department withheld certain documents, in whole or in part, under
FOIA Exemptions 1 and 5, and so the Court will address the plaintiff’s arguments with respect to
each exemption in turn.
1. Material Withheld Under FOIA Exemption 1
First, the plaintiff challenges a number of withholding determinations made pursuant to
FOIA Exemption 1. That exemption provides that material is exempt from the FOIA if it is
“specifically authorized under criteria established by an Executive order to be kept secret in the
interest of national defense or foreign policy,” and “[is] in fact properly classified pursuant to an
Executive order.” 5 U.S.C. § 552(b)(1). The plaintiff challenges the defendant’s Exemption 1
23
withholding determinations as to thirty-seven total documents. See Pl.’s Opp’n at 31–35.
Thirty-six of those thirty-seven documents were withheld under two independent provisions of
Executive Order 13,526. 13 The first provision, § 1.4(d), permits the classification of information
pertaining to “foreign relations or foreign activities of the United States, including confidential
sources.” See Exec. Order 13,526 § 1.4(d). The second provision, § 1.4(b), permits the
classification of “foreign government information,” which is defined as, inter alia, “information
provided to the United States Government by a foreign government or governments . . . with the
expectation that the information, the source of the information, or both, are to be held in
confidence.” See id. §§ 1.4(b), 6.1(s). Both of these provisions also require that the disclosure
of the information “could reasonably be expected to cause identifiable or describable damage to
the national security.” Id. § 1.4.
a) Withholdings Pursuant to § 1.4(d) of E.O. 13,526
The Court will begin by discussing the plaintiff’s objections to the material withheld as
classified pursuant to § 1.4(d) of the Executive Order. As to this material, the plaintiff states on
the one hand that “[b]ecause of the vague and sweeping statements that purport to justify the
invocation of § 1.4(d) . . . Plaintiff cannot effectively contest the vast majority of these
withholdings.” Pl.’s Opp’n at 35. Yet, on the other hand, the plaintiff states that he “is fully
challenging State’s withholdings under § 1.4(d)” in thirty-four documents, thirty-three of which
were also withheld under § 1.4(b). See id. (emphasis added). The Court concludes that the
plaintiff has failed to articulate a cognizable challenge to the defendant’s determination to
withhold from these thirty-four documents information which was classified pursuant to § 1.4(d).
At summary judgment, although the moving agency retains the “burden of proving the
13
One of the thirty-seven documents (N1) contains information classified only pursuant to § 1.4(d). See Grafeld
Decl. ¶ 172.
24
applicability of claimed exemptions,” ACLU, 628 F.3d at 619, it is insufficient for the non-
moving party to state in conclusory fashion, as the plaintiff does here, that “State has not met
[its] burden, and summary judgment should not be awarded until it does.” Pl.’s Opp’n at 35.
Rather, it is well established that “[t]o defeat summary judgment, the non-moving party must
‘designate specific facts showing there is a genuine issue for trial.’” Mingo Logan Coal Co. v.
EPA, 850 F. Supp. 2d 133, 138 (D.D.C. 2012) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986)). Although the plaintiff nebulously accuses the State Department of submitting
“vague and sweeping statements that purport to justify the invocation of § 1.4(d),” Pl.’s Opp’n at
35, the plaintiff does not contest the State Department’s statement that the information withheld
pursuant to § 1.4(d) “concerns the United States’ role in formulating Iraq’s proposed
hydrocarbons law and developing Iraq’s oil and gas sector, as well as the political and economic
state of Iraq during a time of relative instability,” Def.’s Mem. at 19. More importantly, the
plaintiff also does not contest the State Department’s assertion that disclosure of this information
“would undermine U.S. efforts in an important area of international relations.” See id. The
Court will treat the plaintiff’s failure to contest these statements in any non-conclusory fashion as
a decision to concede them. See, e.g., Shankar v. ACS-GSI, 258 F. App’x 344, 345 (D.C. Cir.
2007) (holding that plaintiff conceded the merits of an issue when he “did not respond in any
way to defendant’s argument” on that issue in his opposition before the district court (citing
LCvR 7(b))); Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (“It is understood in this
Circuit 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.”). As a result of the plaintiff’s concession, the defendant is entitled to
summary judgment as to the withholding of information, pursuant to FOIA Exemption 1, from
25
thirty-four documents: L2, L3, N4A, N4B, N13, A32, S3C, S3E, S3F, S3G, S3K, NE2, NE4,
NE9, NE10, E5, E6, E10, E13, E14, E15, E16, E17, E18, A3, N1, N2, E3*, E5*, E7, E11*,
E12*, E15*, and E16*. 14
Before moving on to address the plaintiff’s arguments regarding information classified
pursuant to § 1.4(b) of Executive Order 13,526, the Court will address the plaintiff’s contention
that, although documents E4* and E13* were properly classified under § 1.4(d) as containing
information pertaining to foreign relations, “by describing the records as she did in her
declaration, Ms. Grafeld has officially released part of the information currently being withheld,
which begs a segregability analysis.” See Pl.’s Opp’n at 36. By way of background, the State
Department describes document E4* as a telegram that “discusses a trip by the U.S. Ambassador
to consult with the Kurdistan Regional Government on the text of the cover letter to the
hydrocarbon framework law and his subsequent discussion of the issue with the two Iraqi
Presidents.” Grafeld Decl. ¶ 179. Document E13* is a telegram that “describes a meeting
between the U.S. Ambassador and a former Deputy Iraqi Prime Minister.” Id. ¶ 193. In this
meeting, the State Department also says that “[t]he Ambassador discussed several recent internal
political developments, and asked for the Prime Minister’s assistance on ‘de-Ba’athification’ and
passage of a hydrocarbon law.” Id. The plaintiff contends that, through its declaration, the State
Department has officially disclosed five pieces of information regarding document E4*:
(1) “The U.S. Ambassador took a trip on or shortly before February 27, 2007, to meet with the
Kurdistan Regional Government,” (2) “They discussed the text of the cover letter to the
hydrocarbon framework law,” (3) the U.S. Ambassador “subsequently (but still on or before
14
The parties have referred to each document by a Bates number, but as the plaintiff points out, twelve of the Bates
numbers referenced in the State Department’s declaration are used twice. Therefore, in keeping with the plaintiff’s
denomination, and solely for the purpose of analytical clarity, the Court refers to the twelve duplicate Bates numbers
contained in Request #3 with an asterisk, while their counterparts pertaining to Request #4 will remain unaltered.
See Pl.’s Opp’n at 2.
26
February 27, 2007) discussed the issue with the two Iraqi Presidents,” (4) “The U.S. Ambassador
was involved in the drafting of this cover letter,” and (5) “There was an agreed upon cover
letter.” Pl.’s Opp’n at 36. Based on these purportedly disclosed pieces of information, the
plaintiff argues that “State must segregate the information which only relays the information
already publicly released . . . as well as the final agreed upon cover letter, which would not show
the exact degree to which [the U.S. Ambassador] influenced the text.” Id. Similarly, the
plaintiff argues that “information should be segregated and released from Document E13* which
solely relays the fact of the discussion, the fact that the Ambassador asked for the Prime
Minister’s assistance on ‘de-Ba’athification’ and passage of a hydrocarbon law, and matters of
similarly acknowledged scope.” Id. at 37.
In response to this argument, the State Department contends that the pieces of
information cited by the plaintiff are “‘inextricably intertwined with exempt portions’” of the
documents. See Def.’s Reply at 18 n.13 (quoting Trans-Pac. Policing Agreement v. U.S.
Customs Serv., 177 F.3d 1022, 1027 (D.C. Cir. 1999)). The State Department also notes that the
plaintiff’s argument incorrectly “presumes that [the cited] information . . . exists in a format that
may be distilled and produced to him.” Id. Along these same lines, the State Department
concludes that “Plaintiff’s arguments overlook Ms. Grafeld’s testimony that ‘there is no non-
exempt information’ in either of these documents ‘that may be segregated and released.’” Id.(quoting Grafeld Decl. ¶¶ 139, 153).
The Court concludes that the State Department has satisfied its burden of demonstrating
that it disclosed all “reasonably segregable portion[s]” of documents E4* and E13*. See 5
U.S.C. § 552(b). Under the most recent guidance set forth by the D.C. Circuit on this subject, an
agency may satisfy its segregability obligations by (1) providing a Vaughn index that adequately
27
describes each withheld document and the exemption under which it was withheld; and
(2) submitting a declaration attesting that the agency released all segregable material. See, e.g.,
Loving v. Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008) (stating that “the description of the
document set forth in the Vaughn index and the agency’s declaration that it released all
segregable material” is “sufficient for [the segregability] determination”); Johnson v. Exec.
Office for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002) (upholding agency’s segregation
efforts based on “comprehensive Vaughn index” and “the affidavits of [agency officials]”). With
respect to documents E4* and E13*, the State Department has satisfied both of these
requirements. Indeed, as noted above, the plaintiff concedes that the State Department’s Vaughn
index adequately establishes that “the [withheld] material pertains to foreign relations.” Pl.’s
Opp’n at 36. Furthermore, the Court finds the agency’s explanation of non-segregability logical
and reasonable because the “pieces of information” denominated by the plaintiff appear unlikely
to exist within the withheld document such that they could be discretely separated from the
classified portions of the document. For example, the plaintiff has presented no reason to believe
that the “fact of the discussion” in document E13* is a piece of information that was specifically
noted in the document, such that it could be segregated and released without releasing any
classified information. On the contrary, the Court concludes that such general facts regarding the
overall context of the documents are unlikely to be reasonably segregable. See, e.g., Mead Data
Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 261 n.55 (D.C. Cir. 1977) (“[A] court may
decline to order an agency to 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.”). Therefore, the defendant is entitled to summary judgment as to its
Exemption 1 withholdings in documents E4* and E13*.
28
b) Withholdings Pursuant to § 1.4(b) of E.O. 13,526
In light of the plaintiff’s failure to contest all of the State Department’s withholdings
pursuant to § 1.4(d) of Executive Order 13,526, and the Court’s conclusion that documents E4*
and E13* were properly withheld, the only remaining Exemption 1 withholding challenged by
the plaintiff is the information withheld from document A1 as “foreign government information”
under § 1.4(b) of Executive Order 13,526. The information withheld from document A1,
however, was withheld under both § 1.4(b) and § 1.4(d) of Executive Order 13,526. See Grafeld
Decl. ¶¶ 166–67. The plaintiff concedes that he “is not challenging the invocation of § 1.4(d) in
Document A1,” see Pl.’s Opp’n at 35–36, and therefore the Court need not decide whether the
State Department also properly classified the withheld information pursuant to § 1.4(b).
c) Compliance with § 1.7(d) of E.O. 13,526 in Classification of Five
Responsive Records
Although the foregoing discussion establishes that none of the plaintiff’s substantive
challenges to the State Department’s Exemption 1 withholdings is sufficient to defeat summary
judgment, the plaintiff also advances a second, procedural argument in favor of disclosing
certain documents withheld under Exemption 1. The plaintiff contends that five of the thirty-
seven challenged documents withheld under Exemption 1 “were all originally unclassified or
‘Sensitive’ records and were later classified.” Pl.’s Opp’n at 23. Since this raises the possibility
that these documents were classified after the plaintiff submitted his FOIA requests, it also raises
the issue of whether the State Department complied with § 1.7(d) of Executive Order 13,526,
which provides that information sought through a FOIA request may be classified after the
request is submitted, but “only if such classification . . . is accomplished on a document-by-
document basis with the personal participation or under the direction of the agency head, the
deputy agency head, or the senior agency official.” Exec. Order 13,526 § 1.7(d); see also Pl.’s
29
Opp’n at 24. Accordingly, the plaintiff argues that, in order to satisfy this procedural
requirement, the State Department must establish either that the five documents in question were
classified prior to receipt of the plaintiff’s FOIA requests or that they were classified in
accordance with § 1.7(d). See Pl.’s Opp’n at 24.
The State Department responds by citing to one of its own regulations, which authorizes
the Deputy Assistant Secretary for Records and Publishing Services (now referred to as Global
Information Services, see Def.’s Reply at 13 n.8) “to be the official to classify information on a
document-by-document basis consistent with the circumstances and procedures described in”
what is now § 1.7(d) of Executive Order 13,526. See Bureau of Administration; Classification
Authority Acting Under the Direction of the Senior Agency Official, 64 Fed. Reg. 7227 (Feb. 12,
1999). In light of this authorization, the State Department argues that “Ms. Grafeld, as Deputy
Assistant Secretary for Global Information Services, had the authority to classify as
‘Confidential’ Documents N13, NE2, NE4, NE10, and N1.” Def.’s Reply at 13. The plaintiff
nevertheless contends that “State cannot be allowed to reduce a specific provision designed to
provide a higher level of accountability for classification decisions made after a FOIA request to
mootness by simply publishing a single Notice in the Federal Register and then forgetting about
it.” Pl.’s Surreply at 5. Rather, the plaintiff argues that § 1.7(d) requires that one of the officials
listed in that section “make such a determination or direct another to do so each time such
classification is desired and for each document.” Id. In other words, the plaintiff contends that a
general grant of delegated authority to conduct the document-by-document review required by
§ 1.7(d) is invalid. The Court entertained and rejected this exact same argument, however, in a
case decided just last month. See Mobley v. CIA, Nos. 11-2072, 11-2073, 2013 WL 452932, at
*27–28 (D.D.C. Feb. 7, 2013). In fact, plaintiff’s counsel in the instant action represented the
30
plaintiff in Mobley as well and advanced this § 1.7(d) argument verbatim in his brief to the Court
in that case. As it did in Mobley, the Court “disagrees with the plaintiff[’s] cramped reading of
Executive Order 13,526” because “[n]othing in the text of the Order evinces any intent to require
the senior agency official to direct others to make document-by-document classification
determinations ‘each time such classification is desired and for each document.’” Id. at *28.
Although the Court rejects the plaintiff’s policy argument regarding § 1.7(d), the Court
nevertheless concludes that the State Department must submit further information to establish
that it complied with § 1.7(d). In particular, although Ms. Grafeld clearly “had the authority to
classify as ‘Confidential’ Documents N13, NE2, NE4, NE10, and N1,” Def.’s Reply at 13, the
State Department has not established that Ms. Grafeld was in fact the individual who classified
these five documents. Unlike in Mobley, the State Department has not established in the instant
action that Ms. Grafeld “‘personally considered’ the withheld portions of the . . . documents
contested by the plaintiffs and determined that their classification needed to be upgraded after
[the plaintiff] had already filed his FOIA[] request.” See Mobley, 2013 WL 452932, at *28.
Therefore, in order to establish its compliance with § 1.7(d), the State Department must put forth
evidence that an individual authorized to classify information under § 1.7(d) in fact classified the
information withheld from documents N13, NE2, NE4, NE10, and N1. 15
2. Material Withheld Under FOIA Exemption 5
The plaintiff’s final substantive challenge to the State Department’s responses to his
FOIA requests contends that the State Department improperly withheld certain information
under FOIA Exemption 5. That provision of the FOIA exempts materials that are “inter-agency
or intra-agency memorandums or letters which would not be available by law to a party other
15
Alternatively, the State Department may also put forth evidence that documents N13, NE2, NE4, NE10, and N1
were classified prior to April 13, 2009, when the plaintiff’s first FOIA request was submitted to the State
Department.
31
than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). To be properly withheld
under Exemption 5, “a document must . . . satisfy two conditions: its source must be a
Government agency, and it must fall within the ambit of a privilege against discovery under
judicial standards that would govern litigation against the agency that holds it.” Dep’t of Interior
v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).
In the instant action, the State Department withheld records, in whole or in part, under
both the deliberative process privilege and the attorney-client privilege. See Def.’s Mem. at 23.
The plaintiff challenges the State Department’s invocation of the deliberative process privilege in
ten documents (L2, L10, N3, N4, N5, N13, S3E, NE9, NE11A, NE11B) as well as the State
Department’s invocation of the attorney-client privilege in one document (L10). See Pl.’s Opp’n
at 37. The Court will first discuss the plaintiff’s objections regarding the deliberative process
privilege before addressing his objections regarding the attorney-client privilege.
a) Deliberative Process Privilege
“The deliberative process privilege protects ‘documents reflecting advisory opinions,
recommendations and deliberations comprising part of the process by which governmental
decisions and policies are formulated.’” Loving, 550 F.3d at 38 (quoting Klamath Water, 532
U.S. at 8). “To qualify for Exemption 5 protection under the deliberative process privilege, ‘an
agency’s materials must be both predecisional and a part of the deliberative process.’” Nat’l
Inst. of Military Justice v. U.S. Dep’t of Def., 512 F.3d 677, 680 n.4 (D.C. Cir. 2008) (quoting
Formaldehyde Inst. v. Dep’t of Health & Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989)).
The Supreme Court has acknowledged that “[t]he deliberative process privilege rests on the
obvious realization that officials will not communicate candidly among themselves if each
remark is a potential item of discovery and front page news,” and the privilege’s “object is to
enhance ‘the quality of agency decisions,’ by protecting open and frank discussion among those
32
who make them within the Government.” Klamath Water, 532 U.S. at 8–9 (citations omitted);
see also Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir. 1997) (“[T]he deliberative process
privilege . . . reflect[s] the legislative judgment that ‘the quality of administrative decision-
making would be seriously undermined if agencies were forced to operate in a fishbowl because
the full and frank exchange of ideas on legal or policy matters would be impossible.’” (quoting
Mead Data, 566 F.2d at 256) (internal quotation marks omitted)).
“The need to describe each withheld document when Exemption 5 is at issue is
particularly acute because ‘the deliberative process privilege is so dependent upon the individual
document and the role it plays in the administrative process.’” Animal Legal Def. Fund, Inc. v.
Dep’t of Air Force, 44 F. Supp. 2d 295, 299 (D.D.C. 1999) (quoting Coastal States Gas Corp. v.
Dep’t of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980)). “The agency must establish ‘what
deliberative process is involved, and the role played by the documents in issue in the course of
that process.’” Senate of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 585–86 (D.C. Cir. 1987)
(quoting Coastal States, 617 F.2d at 868). “In addition to explaining the ‘function and
significance of the document[s] in the agency’s decisionmaking process,’” the agency “must
describe ‘the nature of the decisionmaking authority vested in the office or person issuing the
disputed document[s], and the positions in the chain of command of the parties to the
documents.’” Elec. Frontier Found. v. U.S. Dep’t of Justice (“EFF”), 826 F. Supp. 2d 157, 168
(D.D.C. 2011) (quoting Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C. Cir. 1982)).
As to the ten challenged documents withheld under the deliberative process privilege, the
plaintiff argues that the State Department’s description of the documents in the Vaughn index fail
to provide the information necessary to determine whether the privilege applies. See Pl.’s Opp’n
at 39–41. In particular, the plaintiff contends that the State Department’s explanations fail, inter
33
alia, to provide one or more of the following: (1) the deliberative process in question,
(2) whether the documents contain opinions on legal or policy matters, or (3) whether the
information was shared with third parties or adopted as agency policy. See id. The State
Department, however, argues that its withholdings under the deliberative process privilege were
proper because the withheld information falls into one of three categories: (1) “pre-decisional
revisions to draft policy documents,” (2) “recommendations and judgments regarding then-
current foreign policy issues,” or (3) “debates as to how to structure the Technical Service
Contracts (‘TSCs’) governing the development of Iraq’s oil fields.” See Def.’s Mem. at 24–25.
The State Department also contends that its sworn declaration contains “paragraphs of factual
context that explain the nature of the deliberations at issue and legal and policy matter to which
they pertained.” See Def.’s Reply at 18.
The Court agrees with the plaintiff, however, that the State Department has failed to
provide sufficient information regarding these ten documents for the Court to conclude that they
were properly withheld under the deliberative process privilege. The State Department’s defense
of its withholdings in its briefing consists mostly of conclusory quotations from case law that
describes the kind of material normally exempt from disclosure under the privilege. See, e.g.,
Def.’s Reply at 18–22. These perfunctory citations, however, do not fill the gaps in the factual
context necessary to invoke the deliberative process privilege. In particular, three pieces of
factual context normally crucial to determining whether the privilege applies—the nature of the
deliberative process involved, the role the document played in that process, and the nature of the
decisionmaking authority vested in the document’s author—are noticeably absent from the State
Department’s descriptions of these ten documents in its Vaughn index. To illustrate these
deficiencies, the Court will discuss a number of examples from the ten documents at issue.
34
One particularly illustrative example of the deficiencies in the State Department’s
declaration is the agency’s description of document N5, which lacks all three of the
aforementioned pieces of factual context. All that the State Department’s declaration states
about this document is that it is an e-mail exchange “between two U.S. government agencies”
that “contains deliberative and pre-decisional comments between two U.S. government agencies
on a specific and contentious aspect of the technical service agreements negotiations.” Grafeld
Decl. ¶¶ 89–90. In attempting to defend this description as adequate, the State Department
argues that the description establishes “the fact that agency personnel were sharing
recommendations and judgments about the technical services contracts.” See Def.’s Reply at 20.
First, merely stating that the commentary in the e-mail exchange was about “a specific and
contentious aspect of the technical service agreements negotiations,” see Grafeld Decl. ¶ 90, does
not adequately convey “a specific deliberative process to which the withheld [e-mail exchange]
contributed,” see EFF, 826 F. Supp. 2d at 168 (emphasis added). It is unclear from the State
Department’s declaration, for example, whether the two unnamed personnel were merely
reacting to a contentious aspect of the negotiations or whether they were, as the State
Department claims in its brief, “sharing recommendations and judgments about the technical
services contracts.” See Def.’s Reply at 20. It is also completely unclear what role, if any, this
commentary may have played in the unspecified deliberative process, since the positions of the
personnel involved in the e-mail exchange and the relevance of those positions to the
negotiations is not addressed. All that the Court can glean from the State Department’s
description is that two unidentified personnel in two unidentified government agencies
exchanged some sort of “comments” about some unspecified “aspect” of a negotiation over
TSCs. This description does not even specify when this exchange took place vis-à-vis a final
35
policy decision on this unspecified “aspect” of the negotiations, which is fundamental in
determining whether the exchange was pre-decisional. It is insufficient for the State Department
to substitute a string of buzz-word adjectives like “deliberative,” “pre-decisional,” and
“contentious,” in the place of a meaningful description of the factual context surrounding a
document.
Indeed, many of the aforementioned deficiencies in the description of document N5 carry
over into the other nine challenged documents as well. For example, the State Department
describes document L10 as an “e-mail chain within the Department of State” that “contain[s]
discussion of various aspects, including legal aspects, of U.S.-Iraq negotiations of [TSCs].” See
Grafeld Decl. ¶¶ 82–83. This vague description begs numerous important questions, such as:
Which “various aspects” were discussed and why would such aspects be pre-decisional? What
decisionmaking authority was vested in the individuals “within the Department of State” who
participated in this discussion? What role did this discussion play in arriving at some final
decision about the unnamed “various aspects” of the negotiations? Indeed, the State Department
describes the relevant decision at issue in three of these documents as some unspecified “aspect”
or “detail[]” of the TSC negotiations, without any elaboration about what sort of aspect or detail
is being discussed and how or why that aspect or detail was the subject of an internal
decisionmaking process. See, e.g., Grafeld Decl. ¶ 75 (describing document L2, an e-mail
exchange that contains “informal exchange of information . . . on details of negotiations
regarding [TSCs] between the U.S. and Iraqi governments”); id. ¶ 83 (document discussing
“various aspects” of the TSC negotiations); id. ¶ 90 (document containing discussion of “a
specific and contentious aspect” of the TSC negotiations). Furthermore, the State Department
does not specify what role any of the ten challenged documents played in the often-unspecified
36
deliberative process at issue. Without that basic information, the Court cannot conclude that any
of the challenged documents were predecisional or deliberative. See, e.g., Senate of P.R., 823
F.2d at 585–86; Arthur Andersen, 679 F.2d at 258.
Another notable deficiency in the State Department’s declaration is that three of the
documents withheld do not even appear to relate to deliberative processes within the U.S
government. For example, document NE9 is an “e-mail exchange . . . between Embassy
Baghdad and [State] Department officials” that contains “a report of information received from a
senior Iraqi official on the deliberations of the Iraqi government.” See Grafeld Decl. ¶¶ 126–27
(emphasis added). The only lip service paid to a deliberative process of the United States is the
passing statement in the State Department’s declaration that “[a] commentary on the report from
various department officials has also been withheld.” Id. ¶ 127. Likewise, documents NE11A
and NE11B are “information paper[s]” that “summarize[] changes made to the text of the
proposed hydrocarbon law.” See id. ¶¶ 130–33. Although unclear from the State Department’s
declaration, it is reasonable to assume that, since the hydrocarbon law is a piece of Iraqi
legislation, the document identifies changes made by the Iraqi government, not changes made by
the U.S. State Department. Even if these were edits made by the State Department, however, the
defendant’s declaration does not indicate what ultimate decision these edits were relevant to
making. The only logical decision resulting from such edits would be the final text of the Iraqi
legislation, but of course that final text would presumably be a decision made by the Iraqi
government, not by State Department officials. All that the State Department says in its brief on
this issue is that edits would “likely inform subsequent steps in State’s decisionmaking process.”
Def.’s Reply at 22. Once again, however, the Court and the plaintiff remain completely in the
37
dark about what decisionmaking process the State Department is referring to, let alone why
proposed revisions to Iraqi legislation would influence that process.
A final overarching deficiency in the State Department’s declaration is that it does not
specify the identity or decisionmaking authority of any of the authors of any of the challenged
documents. The D.C. Circuit has acknowledged that “[t]he identity of the parties to the
memorandum is important” because “a document from a subordinate to a superior official is
more likely to be predecisional, while a document moving in the opposite direction is more likely
to contain instructions to staff explaining the reasons for a decision already made.” Coastal
States, 617 F.2d at 868. Yet, the most detail that the defendant’s declaration gives in this regard
is that the author of a document or a participant in an e-mail chain was an “official” or “officer[]”
of a particular agency. See Grafeld Decl. ¶¶ 74, 84, 126. Often times, even less detail is
provided, such as merely saying that a document was from “within the Department of State,” see,
e.g., id. ¶ 82, was “between two U.S. government agencies,” see id. ¶ 89, or was “between the
Department of State and Embassy Baghdad,” see id. ¶ 97. These opaque descriptions do not
shed any light on whether the contents of these documents “reflect the give and take of the
deliberative process” or whether they are merely explanations or summaries of existing policy.
See Public Citizen, 598 F.3d at 876.
Based on the deficiencies in the State Department’s declaration discussed above, the
Court concludes “‘not that the documents are not exempt as a matter of law, but that the agency
has failed to supply’ in its Vaughn submissions ‘the minimal information necessary to make a
determination’ concerning applicability of the deliberative process privilege.” EFF, 826 F.
Supp. 2d at 173 (quoting Coastal States, 617 F.2d at 861). Therefore, the Court will deny
summary judgment to the State Department regarding its Exemption 5 withholding
38
determinations that invoke the deliberative process privilege in the ten challenged documents.
The defendant may either supplement its declaration demonstrating the applicability of the
deliberative process privilege to the information contained in these ten documents or disclose
that information to the plaintiff.
b) Attorney-Client Privilege
The plaintiff also challenges the State Department’s invocation of the attorney-client
privilege to withhold certain information from document L10. “The attorney-client privilege is
the oldest of the privileges for confidential communications known to the common law.”
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). “Its purpose is to encourage full and
frank communications between attorneys and their clients and thereby promote broader public
interests in the observance of law and administration of justice.” Id. To be privileged, a
communication must be “for the purpose of securing primarily either (i) an opinion on law or
(ii) legal services or (iii) assistance in some legal proceeding.” In re Grand Jury, 475 F.3d 1299,
1304 (D.C. Cir. 2007) (emphasis added) (internal quotation marks omitted). The Supreme Court
has also clearly recognized that “the privilege exists to protect not only the giving of professional
advice to those who can act on it but also the giving of information to the lawyer to enable him to
give sound and informed advice.” Upjohn, 449 U.S. at 390.
As briefly discussed above, the State Department’s declaration describes document L10
as “an e-mail chain within the Department of State” that contains “discussion of various aspects,
including legal aspects, of U.S.-Iraq negotiations of [TSCs].” Grafeld Decl. ¶¶ 82–83.
Additionally, the declaration avers that “[t]wo of the three e-mails in the exchange . . . contain
attorney client privileged information.” Id. ¶ 83. This sparse information is insufficient to
permit the Court to conclude that the two e-mails withheld under the attorney-client privilege
were sent “for the purpose of securing primarily either (i) an opinion on law or (ii) legal services
39
or (iii) assistance in some legal proceeding.” In re Grand Jury, 475 F.3d at 1304 (internal
quotation marks omitted). The State Department must provide more than the talismanic
adjective “legal” and the conclusory phrase “attorney client privileged” to establish that a
document was sent for the purpose of conveying legal advice. See Grafeld Decl. ¶ 83. At the
very least, the State Department must describe with some reasonable level of detail the nature of
the legal issue or issues for which advice was being sought and whether the withheld e-mails
seek legal advice, convey legal advice, or both. 16 The State Department must also provide some
evidence from which the Court could conclude that the purportedly privileged communications
were confidential.
As a result of the gaps in the State Department’s declaration, the Court does not have
enough information to determine, one way or the other, whether the attorney-client privilege
applies to document L10. Therefore, the Court will deny summary judgment to the State
Department regarding its withholding of information from document L10 under the auspices of
the attorney-client privilege. The defendant may either supplement its declaration demonstrating
the applicability of the attorney-client privilege to this document or disclose the document to the
plaintiff.
D. Segregability
The FOIA requires that “[a]ny reasonably segregable portion of a record shall be
provided to any person requesting such record after deletion of the portions which are exempt.”
5 U.S.C. § 552(b). Even when a plaintiff does not challenge the segregability efforts of an
agency, the Court has “an affirmative duty to consider the segregability issue sua sponte.”
16
Although the State Department’s brief states that document L10 “contained legal advice from State’s attorneys,”
see Def.’s Reply at 23, the State Department’s sworn declaration does not mention whether any of the participants in
the e-mail chain in document L10 were attorneys acting in their capacity as legal advisors, see Grafeld Decl. ¶¶ 82–
83.
40
Trans-Pacific, 177 F.3d at 1028. The D.C. Circuit has acknowledged that establishing the non-
segregability of non-exempt material “presents problems for the agency since . . . segregability
depends entirely on what information is in a document and how it is presented.” Mead Data,
566 F.2d at 261. Therefore, although “agencies should not be forced to provide such a detailed
justification that would itself compromise the secret nature of potentially exempt information,”
agencies “must be required to provide the reasons behind their conclusions in order that they
may be challenged by FOIA plaintiffs and reviewed by the courts.” Id. To this end, the Circuit
has said that “[i]n addition to a statement of its reasons, an agency should also describe what
proportion of the information in a document is non-exempt and how that material is dispersed
throughout the document.” Id. Under Mead Data, if a small proportion of the information is
non-exempt, the agency’s explanatory burden is less, and if a larger proportion of the
information is non-exempt, “the courts should require a high standard of proof for an agency
claim that the burden of separation justifies nondisclosure or that disclosure of the non-exempt
material would indirectly reveal the exempt information.” Id.On the other hand, however, the Circuit has more recently held that “[a]gencies are
entitled to a presumption that they complied with the obligation to disclose reasonably
segregable material,” which must be overcome by some “quantum of evidence” by the requester.
Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). Indeed, certain, more
recent decisions from the D.C. Circuit have indicated that the standard first articulated in Mead
Data has been relaxed. As discussed above, those decisions have held that an agency may
satisfy its segregability obligations by (1) providing a Vaughn index that adequately describes
each withheld document and the exemption under which it was withheld; and (2) submitting a
declaration attesting that the agency released all segregable material. See, e.g., Loving, 550 F.3d
41at 41 (stating that “the description of the document set forth in the Vaughn index and the
agency’s declaration that it released all segregable material” are “sufficient for [the segregability]
determination”); Johnson, 310 F.3d at 776 (upholding agency’s segregation efforts based on
“comprehensive Vaughn index” and “the affidavits of [agency officials]”).
In light of the deficiencies in the defendant’s Vaughn index discussed above, the Court
concludes that the defendant’s segregability efforts—at least with respect to the documents for
which the Court has denied summary judgment to the defendant—do not meet even the more
lenient standard articulated in Loving and Johnson. Those cases require, at a minimum, that an
agency submit a “comprehensive Vaughn index,” Johnson, 310 F.3d at 776, which sufficiently
describes each document withheld and the reasons for the withholding, see Loving, 550 F.3d at
41. Although the Court does not doubt the agency’s statement that “[t]he Department reviewed
each and every document on a line-by-line basis, and only withheld exempt information,”
Grafeld Decl. ¶ 206, absent a sufficient Vaughn index as to the fourteen documents for which the
Court denies summary judgment, the State Department must provide other facts, beyond its
good-faith assurances, that would establish that it released all reasonably segregable, non-exempt
information from these fourteen documents. Such information could include, for example, a
description of “what proportion of the information in a document is non-exempt and how that
material is dispersed throughout the document.” Mead Data, 566 F.2d at 261.
IV. CONCLUSION
As the foregoing discussion makes clear, the Court grants summary judgment to the
defendant regarding its fee waiver and expedited processing determinations because the
plaintiff’s challenges to those determinations are now moot. Relatedly, the Court also denies the
plaintiff’s motion for leave to file additional exhibits to support a purported policy-or-practice
42
claim regarding the agency’s fee waiver and expedited processing determinations. The Court
further grants summary judgment to the defendant with respect to (1) the adequacy of its search
efforts in response to the plaintiff’s FOIA requests; and (2) its withholding determinations under
FOIA Exemption 1 that are contested by the plaintiff, with the exception that the State
Department must provide further evidence that it properly complied with § 1.7(d) of Executive
Order 13,526 in classifying information in documents N13, NE2, NE4, NE10, and N1. The
Court denies summary judgment to the State Department with respect to its withholding
determinations under FOIA Exemption 5 that are contested by the plaintiff. These
determinations include the information withheld from documents L2, L10, N3, N4, N5, N13,
S3E, NE9, NE11A, and NE11B under both the deliberative process privilege and the attorney-
client privilege. The Court also denies summary judgment to the State Department regarding its
efforts to release any reasonably segregable, non-exempt information from documents L2, L10,
N3, N4, N5, N13, S3E, NE9, NE11A, NE11B, NE2, NE4, NE10, and N1. Accordingly, if the
defendant elects to continue to withhold the fourteen documents listed above, in whole or in part,
it shall file jointly with the plaintiff, within twenty days, a proposed scheduling order to govern
the timing of further proceedings in this action, including the filing of any further dispositive
motions.
An appropriate Order accompanies this Memorandum Opinion.
Date: March 4, 2013
/s/ Beryl A. Howell
BERYL A. HOWELL
United States District Judge
43