Davidson v. United States State Department

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LAWRENCE U. DAVIDSON, III, :
:
Plaintiff, :
: Civil Action No.: 14-1358 (RC)
v. :
: Re Document No.: 25
UNITED STATES DEPARTMENT OF :
STATE, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Lawrence U. Davidson, III, pro se, is the sole proprietor of Export Strategic
Alliance, a company that seeks to collect on an allegedly unpaid invoice for services it rendered
to Libya’s former government. Mr. Davidson claims that he asked Defendant the United States
Department of State to help him collect on that invoice, to no avail. He then submitted Freedom
of Information Act (FOIA) requests to the Department and sought information about how the
Department had handled Mr. Davidson’s previous communications with the Department.
Dissatisfied with the Department’s processing of his FOIA requests, Mr. Davidson filed this suit.
The Department now moves for summary judgment on Mr. Davidson’s FOIA claims.
Mr. Davidson has, however, raised a genuine issue of material fact with respect to the adequacy
of the Department’s search. And the Department’s Vaughn Index does not allow the Court to
assess the propriety of all of its withholdings. Accordingly, the Court will deny the Department’s
motion in part. But because no genuine issue of material fact exists to indicate that, for the
documents listed in the Department’s Vaughn Index, the Department’s FOIA withholdings were
improper, the Court will grant the Department’s motion with respect to those withholdings.
II. BACKGROUND1
A. Non-FOIA Communications
Plaintiff Lawrence U. Davidson, III, is a United States citizen and the sole proprietor of
Export Strategic Alliance, a company that allegedly contracted with the Great Socialist Peoples
Libya Arab Jamahiriya, Libya’s former government. Compl. ¶ 7, ECF No. 1; Def.’s Statement of
Undisputed Material Facts ¶¶ 1–2, ECF No. 25-1 [hereinafter Defs.’ Statement].2 Mr. Davidson
1
Mr. Davidson’s complaint alleges both FOIA and non-FOIA claims, see Compl. 11–15,
ECF No. 1, but the Court has already dismissed Mr. Davidson’s non-FOIA claims. See Davidson
v. U.S. Dep’t of State, 113 F. Supp. 3d 183, 197 (D.D.C. 2015); Order, ECF No. 19. Here,
therefore, the Court recounts only facts relating to Mr. Davidson’s FOIA claims.
Unless otherwise indicated, the Court includes only undisputed facts: facts from
Mr. Davidson’s complaint that the Department did not dispute, and facts from the Department’s
statement of undisputed material facts that Mr. Davidson did not dispute. See Answer 4–5, ECF
No. 8 (admitting many of Mr. Davidson’s allegations relating to his FOIA claims); Mem. Opp’n
Mot. Summ. J. 1–2, ECF No. 28 [hereinafter Pl.’s Opp’n] (failing to directly dispute the
Department’s statement of undisputed material facts).
The Court agrees with the Department that, under a strict interpretation of this Court’s
local civil rules, Mr. Davidson has conceded the facts alleged in the Department’s statement
because he neither responds to the Department’s statement of facts nor buttresses his own
statement of facts with record citations. See D.D.C. Civ. R. 7(h)(1) (“In determining a motion for
summary judgment, the Court may assume that facts identified by the moving party in its
statement of material facts are admitted, unless such a fact is controverted in the statement of
genuine issues filed in opposition to the motion.”); Defs.’ Reply Supp. Mot. Summ. J. 2–3, ECF
No. 29 [hereinafter Defs.’ Reply]. But because “[a] document filed pro se is to be liberally
construed,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation mark omitted)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), and because the Court “must always
determine for itself whether the record and any undisputed material facts justify granting
summary judgment,” Grimes v. District of Columbia, 794 F.3d 83, 95 (D.C. Cir. 2015) (quoting
id. at 97 (Griffith, J., concurring)), the Court will still conduct an independent analysis of the
record to determine whether the Department’s statement of facts is accurate.
2
See generally Great Socialist People’s Libyan Arab Jamahiriya v. Miski, 683 F. Supp.
2d 1, 3 (D.D.C. 2010) (discussing a suit that the former Libyan government, suing under the
name “the Great Socialist People’s Libyan Arab Jamahiriya,” brought in this Court); CIA, The
2
claims that, under a contract between his company and the Jamahiriya, his company would have
delivered the Jamahiriya medicine valued at seventy million dollars, as well as twelve million
metric tons of foodstuffs valued at four and a half billion dollars. Compl. ¶ 7; Defs.’ Statement
¶ 2. He further claims that, after he provided twenty-eight million dollars in services, the
Jamahiriya never paid his company for the outstanding invoice. Compl. ¶ 7; Defs.’ Statement
¶ 2.
According to Mr. Davidson’s complaint, on or around November 8, 2011, Mr. Davidson
began collection efforts on his company’s invoice by submitting copies of the invoice to various
Libyan governmental entities, including the Libyan embassy in Washington, D.C. Compl. ¶ 23.
Those efforts, however, proved unsuccessful: according to Mr. Davidson, “[o]ther than
electronic acknowledgment of receipt of the invoice, no . . . communications were received”
from the government officials that Mr. Davidson contacted. Id.
On or around September 1, 2012, Mr. Davidson sought assistance from officials at
Defendant the United States Department of State. Compl. ¶ 24; Defs.’ Statement ¶ 2. According
to Mr. Davidson’s complaint, he contacted many individual Department officials and asked them
for “‘commercial diplomacy’ or in the alternative a ‘Letter d’Marche,’” a formal diplomatic
communication. Compl. ¶ 26.3 Like his efforts to obtain payment from Libya, Mr. Davidson
claims that his efforts to obtain assistance from the Department were also unsuccessful. See
World Factbook: Libya, https://www.cia.gov/library/publications/the-world-factbook/
geos/ly.html (open “Introduction” tab) (last visited Sept. 2, 2016) (explaining that, after a civil
war erupted, the former Libyan government “was toppled in mid-2011”); Compl. ¶ 23 (alleging
that Mr. Davidson provided services to “the defunct/predecessor government of the Republic of
Libya”).
3
See generally Foreign Serv. Inst., U.S. Dep’t of State, Protocol for the Modern
Diplomat 30 (2013), http://www.state.gov/documents/organization/176174.pdf (defining
“demarche” as “a request or intercession with a foreign official, e.g., a request for support of a
policy, or a protest about the host government’s policy or actions”).
3
Compl. ¶¶ 24–35 (alleging that “[t]he vast majority of [Mr. Davidson’s] telephone calls went
unacknowledged or returned”).
B. FOIA Requests
In 2013, Mr. Davidson tried a third strategy: FOIA requests. Mr. Davidson submitted his
first FOIA request to the Department in October 2013. Compl. 14, ¶ 52; Defs.’ Statement ¶ 3; see
also Answer Ex. 1, ECF No. 8-1, at 1–2 (reproducing Mr. Davidson’s first FOIA request).4 In his
request, which he titled “Privacy Act/Freedom of Information Request,” Mr. Davidson sought
all documents or communications of all such character whether e-mail,
memorandums, meeting agendas, transcripts, investigations, notes either received
or submitted wherein the issue either specifically or by implication is Lawrence
U. Davidson, III d/b/a Export Strategic Alliance held in the United States State
Department for the period beginning June 30, 2009.
Answer Ex. 1, ECF No. 8-1, at 1. Mr. Davidson also noted that his request placed “particular
emphasis” on certain records: (1) “[i]nvestigations conducted by the Bureau of Diplomatic
Security,” (2) “[c]onsular [a]ssistance given to U.S. [c]itizens in Libya,” and (3) communications
with or from certain entities that mentioned Mr. Davidson or his company in their text. Id. For
the third category, Mr. Davidson named the entities whose communications he sought: the
American embassy in Libya, as well as numerous named individuals. See id., ECF No. 8-1, at
1–2.5 The Department responded soon after, but with simply a form letter informing
Mr. Davidson that the Department could not process his request because he had not “provided
identifying information,” such as names, dates of birth, and “citizenship status for all parties
4
Because the Department filed the exhibits attached to its answer in one continuous
document, the Court cites to the page numbers automatically generated by ECF.
5
The named individuals were Nat Mason, Christopher Wilkens, Alyce N. Abdalla, Lydia
Sizer, Evyenia Sideras, Kimberly Bell, Anne Slack, A.C. Wilson, S.T. Grigola, Donald
Yamamoto, Linda Thomas-Greenfield, William Roebuck, Gene Cretz, F.A. Hamidan, and
Hannah A. Draper. See Answer Ex. 1, ECF No. 8-1, at 1–2.
4
associated with [his] request.” See Compl. ¶ 53; Defs.’ Statement ¶ 4; see also Answer Ex. 2,
ECF No. 8-1, at 3 (reproducing the Department’s response).
Mr. Davidson submitted a second, nearly identical FOIA request in November 2013. See
Compl. ¶ 54; Defs.’ Statement ¶ 5; see also Answer Ex. 3, ECF No. 8-1, at 4–5 (reproducing
Mr. Davidson’s second FOIA request). This time, though, Mr. Davidson specified that he was
“an American Citizen” and indicated that the named individuals whose communications he
sought were also “upon information [and] belief . . . American Citizens.” See Answer Ex. 3, ECF
No. 8-1, at 4. But the Department issued Mr. Davidson an identical response: it told him that it
could not process his request for lack of “identifying information.” See Compl. ¶ 55; Defs.’
Statement ¶ 6; see also Answer Ex. 4, ECF No. 8-1, at 6 (reproducing the Department’s second
response).
Mr. Davidson alleges that, when he sent the Department his two FOIA requests, he also
sent copies of his requests to the Department’s Office of Inspector General (OIG). See Compl.
14–15, ¶¶ 52, 56; see also Answer Ex. 6, ECF No. 8-1, at 10 (responding, in a letter from OIG to
Mr. Davidson, to Mr. Davidson’s “FOIA . . . request dated October 15, 2013”). Unlike the
Department itself, OIG did not respond to Mr. Davidson’s FOIA request by refusing to process
Mr. Davidson’s request for lack of identifying information. Instead, the record shows that, on
November 15, 2013, OIG issued Mr. Davidson a letter, which stated that OIG had “conducted a
thorough and reasonable search” and had “found no records responsive to the portion of [his]
request for documents pertaining to [him] or [his] business for the period beginning June 30,
2009.” Answer Ex. 6, ECF No. 8-1, at 11. With a letter dated January 7, 2014, Mr. Davidson
appealed OIG’s decision to the Chairman of the Appeals Panel of the Department of State. See
Compl. 15, ¶ 49; Answer 5, ¶ 49; see Answer Ex. 7, ECF No. 8-1, at 9 (reproducing
Mr. Davidson’s appeal letter). In his appeal letter, “to establish an error” and to establish that
5
responsive documents “did in fact exist,” Mr. Davidson alleges that he included an example of a
communication between himself and the Department. Compl. 15–16, ¶ 49; see Answer Ex. 7,
ECF No. 8-1, at 9 (stating that Mr. Davidson attached an “Example of Transmission submitted to
State Department persons” with his appeal letter).
At some point afterward, the Department opened a new FOIA request for Mr. Davidson.
See Compl. 15–16, ¶ 49; Answer 4–5, ¶¶ 49, 56. Mr. Davidson implies that the Department’s
decision to open another request resulted from his appeal of OIG’s decision. See Compl. 15–16,
¶ 49 (explaining that “a new case was opened” after Mr. Davidson submitted his sample
communication as “evidence that documents did in fact exist”). But the Department contends
that “it re-opened [Mr. Davidson’s] FOIA case” because Mr. Davidson submitted a third FOIA
request, and that the Department’s subsequent processing of any potentially responsive
documents applied only to non-OIG records. Answer 4–5, ¶ 56; id. at 5, ¶ 49. And the
Department has produced a copy of a “resubmission” of Mr. Davidson’s FOIA request, which is
dated February 20, 2014. See Answer Ex. 5, ECF No. 8-1, at 7–8. That request is nearly identical
to Mr. Davidson’s November 2013 FOIA request: it includes the same text as the November
2013 request, but adds two individuals’ names to the list of named individuals whose
communications Mr. Davidson sought. Compare id. (including Wendy Sherman and Carlos
Dejuana in the list of named individuals), with Answer Ex. 3, ECF No. 8-1, at 4–5 (reproducing
the November 2013 request). The Department asserts that it acknowledged receipt of
Mr. Davidson’s third request by letter, that it initiated searches in response to his request, and
that in May 2014 it provided an estimated completion date of December 2015. Defs.’ Statement
¶¶ 10–11; see also Compl. 15–16, ¶ 49 (agreeing that Mr. Davidson received a December 2015
estimated completion date).
6
C. Procedural History
Mr. Davidson filed suit in this Court in August 2014. See Compl. After recounting the
history of his FOIA-related communications with the Department, Mr. Davidson’s complaint
asked the Court to “[i]ssue a declaratory judgment directing the State Department to comply with
[his FOIA] request in a timely manner.” See Compl. 14–16. After the Department asserted in
October 2015 that it had completed its production of responsive documents, it filed a motion for
summary judgment, which is now before the Court. See Joint Status Report 1, ECR No. 23;
Def.’s Mot. Summ. J., ECF No. 25.
The Department states that, of the 157 responsive records that it retrieved in response to
Mr. Davidson’s FOIA request, “34 were released in full, 100 were released in part, and 23 were
withheld in full.” Defs.’ Statement ¶ 45. To justify its withholdings, the Department invokes
FOIA Exemptions 5 and 6, see 5 U.S.C. § 552(b)(5), (6), as well as Exemption (d)(5) under the
Privacy Act of 1974, see id. § 552a(d)(5) (denying individuals access to “information compiled
in reasonable anticipation of a civil action or proceeding”). See generally Def.’s Mem. P. & A.
Supp. Mot. Summ. J. 13–24, ECF No. 25 [hereinafter Defs.’ Mem.] (invoking the three
exemptions).
During the course of briefing on the Department’s motion for summary judgment, the
Department asserts that it discovered two additional responsive documents and released both
documents in part to Mr. Davidson. See Defs.’ Reply Supp. Mot. Summ. J. 5–7, ECF No. 29
[hereinafter Defs.’ Reply]; Stein Decl. ¶ 27, ECF No. 29-1. As with the original 157 responsive
records, the Department invokes FOIA Exemption 5, FOIA Exemption 6, and Privacy Act
Exemption (d)(5) to justify its withholdings with respect to the two additional documents, and
makes the same arguments in doing so. Compare Defs.’ Mem. 13–24 (alleging withholdings of
information “compiled in the reasonable expectation of civil litigation,” information subject to
7
“civil discovery privileges,” information subject to the deliberative process privilege, and
employee names and contact information), with Defs.’ Reply 5–7 (same).6
In response, Mr. Davidson (1) contends that the Department’s search for responsive
documents “fail[ed] to account” for certain potential sources of responsive records, see Mem.
Opp’n Mot. Summ. J. 2, ECF No. 28 [hereinafter Pl.’s Opp’n]; (2) challenges the Department’s
withholdings under FOIA Exemptions 5 and 6, see id. at 2–8; and (3) accuses the Department of
harboring an “intent not to be compliant with FOIA,” id. at 8. The Court reviews the applicable
legal standard before analyzing the merits of the parties’ positions.
III. LEGAL STANDARD
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). Summary
judgment is appropriate when “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
“material” fact is one capable of affecting the substantive outcome of the litigation. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is
enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott v. Harris,
550 U.S. 372, 380 (2007).
The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
6
Although the Department explicitly stated that it “has no objection” to Mr. Davidson
filing a sur-reply with respect to the two documents produced after the Department filed its
motion for summary judgment, see Defs.’ Reply 5 n.1, Mr. Davidson has not done so. For this
reason, and because the Department asserts the same arguments for both its original production
and for the two additional documents, the Court will analyze the Department’s FOIA compliance
for both productions under the same overall analysis.
8
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial
burden of identifying portions of the record that demonstrate the absence of any genuine issue of
material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-movant
must point to specific facts in the record that reveal a genuine issue that is suitable for trial. See
Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must “eschew
making credibility determinations or weighing the evidence,” Czekalski v. Peters, 475 F.3d 360,
363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most
favorable to the non-movant, see Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions
offered without any evidentiary support do not establish a genuine issue for trial. See Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
When assessing a summary judgment motion in a FOIA case, a court makes a de novo
assessment of whether the agency has properly withheld the requested documents. See 5 U.S.C.
§ 552(a)(4)(B); Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 598 F. Supp. 2d 93, 95
(D.D.C. 2009). To prevail on a motion for summary judgment, “the defending agency must
prove that each document that falls within the class requested either has been produced, is
unidentifiable or is wholly exempt from the Act’s inspection requirements.” Weisberg v. U.S.
Dep’t of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980) (internal quotation marks omitted) (quoting
Nat’l Cable Television Ass’n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)). To meet its burden, a
defendant may rely on declarations that are reasonably detailed and non-conclusory. See Citizens
for Responsibility & Ethics in Wash. v. U.S. Dep’t of Labor, 478 F. Supp. 2d 77, 80 (D.D.C.
2007) (“[T]he Court may award summary judgment solely on the basis of information provided
by the department or agency in declarations when the declarations describe ‘the documents and
the justifications for nondisclosure with reasonably specific detail, demonstrate that the
information withheld logically falls within the claimed exemption, and are not controverted by
9
either contrary evidence in the record nor by evidence of agency bad faith.’” (quoting Military
Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981))). “Ultimately, an agency’s
justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’”
Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100,
1105 (D.C. Cir. 1982)). Generally, a reviewing court should “respect the expertise of an agency”
and not “overstep the proper limits of the judicial role in FOIA review.” Hayden v. Nat’l Sec.
Agency/Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C. Cir. 1979).
IV. ANALYSIS
A. Adequacy of the Search
The Department contends, as an initial matter, that it conducted an adequate search for
responsive records. See Defs.’ Mem. 8–9. And indeed, the Department’s submissions show that
it searched multiple offices and records systems within the Department: the Central Foreign
Policy Records, the Bureau of Near Eastern Affairs, the Bureau of Diplomatic Security, the
Bureau of Economic and Business Affairs, the Office of Overseas Citizen Services, the Office of
Information Programs and Services, the Office of the Legal Adviser, and the Office of the Under
Secretary of Political Affairs. See Hackett Decl. ¶¶ 15–49. For almost all of these offices and
records systems, the Department has described the files that it searched and (for electronic
searches) the search terms that it used. See id. But see id. ¶ 23 (lacking a description of search
terms that a former embassy official used to search a “thumb drive” of records carried over from
the former U.S. Embassy in Tripoli, Libya).
Although the Department argues that Mr. Davidson “fails to directly address the
adequacy of the search” and that the Court should therefore decide this issue in the Department’s
favor, see Defs.’ Reply 3, Mr. Davidson’s opposition brief indicates his belief that the
10
Department conducted an inadequate search. For instance, Mr. Davidson contends that the
Department’s search did not account (1) “for records held at the American Embassy in Libya
under . . . then[-]Ambassador[] Gene Cretz such as [a] daily diary”; (2) for “communications
with embassy staff”; (3) “for records instituting and responsive to an investigation by the F.B.I.
Special Agent R. Godfrey”; and (4) for “passport activity.” Pl.’s Opp’n 2. And when
Mr. Davidson recounts reasons why he believes that the Department had an “intent not to be
compliant with FOIA,” he asserts that the Department conducted a search using “[l]imited
parameters.” Id. at 8, ¶ 8. To be sure, Mr. Davidson did not preface his statements with headings
that would alert the Department to his position on the adequacy of its search for responsive
documents. See id. at 2, 8. But in light of Mr. Davidson’s affirmative opposition to the
Department’s position, the Court will not deem this issue conceded. Accordingly, the Court
summarizes the governing legal principles before engaging with the parties’ arguments.
Under FOIA, an adequate search is one that is “reasonably calculated to uncover all
relevant documents.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (internal quotation
mark omitted) (quoting Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir.
1983)). The agency does not have to search “every record system” for the requested documents,
but it “must conduct a good faith, reasonable search of those systems of records likely to possess
the requested records.” Marino v. Dep’t of Justice, 993 F. Supp. 2d 1, 9 (D.D.C. 2013) (citing
Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). When an agency seeks
summary judgment on the basis that it conducted an adequate search, it must provide a
“reasonably detailed” affidavit describing the scope of that search. Iturralde v. Comptroller of
the Currency, 315 F.3d 311, 313–14 (D.C. Cir. 2003) (quoting Valencia–Lucena v. U.S. Coast
Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)). It is not enough, however, for the affidavit to state
in conclusory fashion that the agency “conducted a review of [the files] which would contain
11
information that [the plaintiff] requested” and did not find anything responsive to the request.
Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 370 (D.C. Cir. 1980). On the other hand, once
the agency has provided a “relatively detailed” affidavit describing its search, the burden shifts to
the FOIA requester to produce “countervailing evidence” suggesting that a genuine dispute of
material fact exists as to the adequacy of the search. Morley, 508 F.3d at 1116 (internal quotation
marks omitted) (first quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978); then quoting
Founding Church of Scientology of Washington, D.C., Inc. v. NSA, 610 F.2d 824, 836 (D.C. Cir.
1979)).
Here, the Department has provided a declaration that shows an organized and thorough
search of several of its offices and records systems. See Hackett Decl. ¶¶ 13–49. For each office
or record system, the Department’s declaration explains who conducted the search and the
specific databases searched. See id. And for almost all of the electronic searches, the declaration
identifies the search terms used. See id. (noting search terms such as “Davidson” and “Export
Strategic Alliance”). For almost all of the searches that the Department did conduct, therefore,
the Department’s declaration suffices to provide a “relatively detailed” account of the scope of
its search.
But Mr. Davidson’s dissatisfaction rests not with the searches that the Department
conducted, but with the searches that the Department did not conduct. See Pl.’s Opp’n 2 (taking
issue with the Department’s search, because it “failed to account” for certain embassy records,
for records corresponding to an FBI investigation, and for passport activity). His concern is
legally cognizable, for “two issues” concern the Court when assessing the reasonableness of an
agency’s search: first, whether the agency adequately searched the files that it did search; and
second, whether the agency presented an adequate justification for not searching other files.
Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 891 (D.C. Cir. 1995). To that end, an
12
agency must construe FOIA requests liberally and “cannot limit its search to only [some] record
system[s] if there are others that are likely to turn up the information requested.” Id. at 890
(internal quotation marks omitted) (quoting Oglesby, 920 F.2d at 68). When a plaintiff raises the
issue of files that the agency does not search, the agency must “fill” the “gap” to “carry its
burden as to the adequacy of its search”: it should inform the court and the plaintiff of
“[1] whether [other records systems] of any potential relevance exist; [2] if so whether their
responsive material is reasonably likely to add to that already delivered, and [3] if these
questions are answered affirmatively, whether there is any practical obstacle to searching them.”
Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514–15 (D.C. Cir. 2011). “At
the very least,” the agency should “explain in its affidavit that no other record system was likely
to produce responsive documents.” Oglesby, 920 F.2d at 68. Without such an explanation, and
even if the Court can make “reasonable guesses about the answers to these questions,” the Court
cannot award the agency summary judgment on the adequacy of its search. Negley v. FBI, 169 F.
App’x 591, 595 (D.C. Cir. 2006).
In its reply, the Department bypasses Mr. Davidson’s concerns and argues simply that its
search was adequate even if Mr. Davidson “did not receive a legal opinion” from the
Department. Defs.’ Reply 4. But that response does not address (1) whether other records
systems of potential relevance exist, (2) whether any such records systems would be “reasonably
likely to add to that already delivered,” or (3) whether “there is any practical obstacle to
searching them.” Coin Collectors, 641 F.3d at 515. And though the Department’s declarations do
state that “no other offices or records systems were reasonably likely to maintain documents
responsive to [Mr. Davidson’s] request,” the Department’s bald statements do not explain why
no other record system was likely to produce responsive documents. See Hackett Decl. ¶ 15;
Stein Decl. ¶ 2, ECF No. 29-1; cf. Oglesby, 920 F.2d at 68 (explaining that the agency is
13
“required to explain in its affidavit that no other record system was likely to produce responsive
documents” (emphasis added)). Although the Department need not demonstrate “that no other
relevant documents could possibly exist,” Oglesby, 920 F.2d at 68 (citing Perry v. Block, 684
F.2d 121, 128 (D.C. Cir. 1982)), it must “revise its assessment of what is [a] ‘reasonable’
[search] in a particular case to account for leads that emerge during its inquiry,” Campbell v. U.S.
Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998). Thus here, because Mr. Davidson identified
other potential sources of responsive records, see Pl.’s Opp’n 2, the Department must explain
why those sources would not produce additional responsive records (or report that a “practical
obstacle” impedes a search of those sources), see Coin Collectors, 641 F.3d at 515. Because the
Department has not done so, see Defs.’ Reply 1–7; Hackett Decl. ¶ 15; Stein Decl. ¶ 2, the Court
must deny the Department’s motion for summary judgment on the issue of the adequacy of the
Department’s search for responsive records.
To prevail on any renewed motion for summary judgment, the Department must address
how its search accounts for the possibility of responsive documents relating (1) to former United
States Ambassador to Libya Gene Cretz,7 (2) to communications with staff at the United States
7
To the Department’s credit, its declaration does note that “the Department requested
that Ambassador [William V.] Roebuck conduct a search of his files for any documents
responsive to the subject FOIA request.” Hackett Decl. ¶ 20. But Mr. Davidson contends that the
declaration “misstates the then serving Ambassador as William Roebuck, when Gene Cretz was
the ambassador.” Pl.’s Opp’n 2.
Upon review of the public record, the Court generally agrees with Mr. Davidson:
Mr. Cretz was the United States Ambassador to Libya during much of the time period subject to
Mr. Davidson’s FOIA request. See Answer Ex. 5, ECF No. 8-1, at 7–8 (reproducing
Mr. Davidson’s February 20, 2014 FOIA request, which seeks documents “held in the United
States State Department for the period beginning June 30, 2009”); U.S. Dep’t of State, Gene
Allan Cretz, https://history.state.gov/departmenthistory/people/cretz-gene-allan (last visited Sept.
2, 2016) (showing that Mr. Cretz served as Ambassador to Libya from November 25, 2008 until
May 15, 2012); cf. William V. Roebuck, U.S. Dep’t of State, http://www.state.gov/r/pa/ei/biog/
237201.htm (last visited Sept. 2, 2016) (showing that Mr. Roebuck served as Chargé d’Affaires
in Tripoli, Libya “for six months from January to June 2013”). Given this background, the
Department must address in any renewed motion for summary judgment whether a search for
14
Embassy in Libya,8 (3) to an investigation conducted by “F.B.I. Special Agent R. Godfrey,” and
(4) to passport records. See Pl.’s Opp’n 2 (noting that the Department failed to account for these
sources of potential records in its motion for summary judgment).9 Because Mr. Davidson’s
allusion to these sources of potential records are equivalent to “leads that emerge during the
records relating to Mr. Cretz’s time as ambassador was conducted (and, if it was not, why it was
not). See Coin Collectors, 641 F.3d at 514–15. The Court is puzzled why the Department’s reply
brief did not respond to such a specific argument by Mr. Davidson.
8
The Department’s declaration did note that it conducted a search of all electronic files
“carried over from the [then-closed] Embassy [in Libya],” which “were contained on one thumb
drive.” Hackett Decl. ¶ 23. But the declaration merely notes that “[a] former Embassy official
searched the thumb drive for any records pertaining to [Mr. Davidson] and to Export Strategic
Alliance and located no responsive documents.” Id. Because of the declaration’s terse
explanation of its search and the record in this case, see supra note 7, the explanation suffers
from two flaws, which the Court briefly discusses here.
First, because Mr. Davidson has identified an error in the Department’s understanding of
the ambassadors relevant to his FOIA request, see id., the Department’s error might extend also
to the Department’s understanding of the embassy files relevant to his FOIA request. The
Department might have conceivably searched only embassy files relating to Mr. Roebuck’s time
as Chargé d’Affaires in Tripoli, instead of all embassy files dating back to June 30, 2009, when
Mr. Gretz was the Ambassador to Libya. See Hackett Decl. ¶ 23 (lacking a description of which
embassy files remained on the thumb drive retained from the then-closed Embassy in Libya).
Any renewed motion for summary judgment should “fill” the “gap” raised by the error that
Mr. Davidson identified. See Coin Collectors, 641 F.3d at 514–15.
Second, because the Department’s description of its search of the thumb drive lacks a
description of the search terms employed to locate responsive documents, the Department in this
instance has not provided a “reasonably detailed affidavit” that “sets forth the search terms and
the type of search performed.” Ogelsby, 920 F.2d at 68. This omission raises “substantial doubt
as to the reasonableness of [the] search” and renders summary judgment inappropriate. Marino
v. Dep’t of Justice, 993 F. Supp. 2d 1, 9 (D.D.C. 2013). Any renewed motion for summary
judgment should provide a more detailed explanation of search procedures used to locate
responsive documents (if any) in embassy files. See Ogelsby, 920 F.2d at 68.
9
Although Mr. Davidson does not explicitly assert that the Department failed to search
documents stored with the Department’s OIG, he does take issue with the fact that he received
“[n]o documents responsive to [his] request directed to [the Department’s] Inspector General
Office.” Pl.’s Opp’n 8. Any renewed motion for summary judgment should accordingly also
address how the Department’s search accounts for—or why it need not account for—the
possibility of responsive documents in that office. See generally Answer 5, ¶ 49 (alleging that the
Department’s FOIA processing applied only to “potentially responsive records located outside
of” its OIG).
15
inquiry,” the Department must revise its search—or, at least, its justifications for the scope of its
search—to address them. Campbell, 164 F.3d at 28.
B. Adequacy of the Vaughn Index
Even though the Court will deny the Department’s motion for summary judgment to the
extent that it seeks judgment on the adequacy of its search, the Court will still proceed to analyze
the parties’ remaining arguments with respect to the searches that the Department did conduct.
Of course, if the Department were to locate additional responsive records as a result of any
additional searches, the Department would have to reassert any applicable exemptions; it may
not rest on the Court’s conclusions here.
Before turning to the Department’s asserted exemptions, however, the Court addresses
the Department’s argument that it has submitted a sufficient Vaughn Index to “provide the Court
with the requisite basis to grant Defendants’ motion for summary judgment.” Defs.’ Mem.
10–11; see Hackett Decl. ¶¶ 63–103 (including the Department’s Vaughn Index within
Mr. Hackett’s declaration); Stein Decl. ¶¶ 23–26 (same, within Mr. Stein’s declaration). In FOIA
cases, the justification for withholding information is typically contained in a declaration or
affidavit, referred to as a “Vaughn Index” after the case of Vaughn v. Rosen, 484 F.2d 820 (D.C.
Cir. 1973). No set formula exists for a Vaughn Index, because “the critical elements of the
Vaughn index lie in its function, and not its form.” Kay v. FCC, 976 F. Supp. 23, 35 (D.D.C.
1997). The purpose of a Vaughn Index is “to permit adequate adversary testing of the agency’s
claimed right to an exemption,” and so the index must contain “an adequate description of the
records” and “a plain statement of the exemptions relied upon to withhold each record.” Nat’l
Treasury Emps. Union v. U.S. Customs Serv., 802 F.2d 525, 527 & n.9 (D.C. Cir. 1986).
Although Mr. Davidson has not opposed the Department’s claim that its Vaughn Index is
adequate, see Pl.’s Opp’n 1–8, the Court finds that the Department’s Vaughn Index is deficient in
16
a critical way: the index does not provide the Court with a description of each of the responsive
records that the Department contends that it found through its searches. See Defs.’ Mem. 3
(“After conducting multiple searches, the State Department located 157 documents responsive to
[Mr. Davidson’s] request.”). The Department claims that it initially “released 34 records . . . in
full, [released] 100 records in part[,] and withheld the remaining 23 records in full.” Id.; accord
Hackett Decl. ¶ 104. But, after inspecting the Department’s Vaughn Index corresponding to
those records, the Court counts only 72 documents that the Department states that it released in
part, see Hackett Decl. ¶¶ 63–95, 99–103; and only 13 documents that the Department states that
it withheld in full, see id. ¶¶ 96–98. Nor do the numbers add up if the Court considers the
number of pages that the Department processed, as compared to the number of documents. See,
e.g., id. ¶ 63–95, 99–103 (discussing 184 pages that the Department released in part).
Because of its failure to describe or address many of the records that the Department
states were released in part or withheld in full, the Department’s Vaughn Index does not provide
the Court with descriptions that would “permit adversary testing of the [Department’s] claimed
right to an exemption.” Nat’l Treasury Emps. Union, 802 F.2d at 527. The Court accordingly
must deny the Department’s motion for summary judgment so far as it relates to withholdings
not described in its Vaughn Index. In any renewed motion for summary judgment, the
Department must produce a Vaughn Index that accounts for all of the documents withheld in part
or in full and that describes the exemptions claimed for those withholdings.
C. Privacy Act Withholdings
To move the remaining issues in this case forward, the Court will address the
Department’s Privacy Act and FOIA withholdings in the context of the (perhaps inadequate)
searches that it conducted, and in the context of the documents that its (incomplete) Vaughn
Index describes. See supra Parts IV.A–B (discussing issues on which the Court must deny the
17
Department’s motion for summary judgment). The Court first addresses the Department’s
withholdings under Privacy Act Exemption (d)(5), the only Privacy Act exemption that the
Department invokes to justify any of its withholdings. See, e.g., Hackett Decl. ¶¶ 64–65, ECF
No. 27-1 (noting withholdings that the Department made under Privacy Act Exemption (d)(5)).
Privacy Act Exemption (d)(5) states that an agency may withhold “information compiled
in reasonable anticipation of a civil action or proceeding.” 5 U.S.C. § 552a(d)(5). That
exemption “unquestionably” protects from disclosure “documents prepared for actions in the
district courts.” Martin v. Office of Special Counsel, MSPB, 819 F.2d 1181, 1188 (D.C. Cir.
1987). The exemption also covers documents prepared for quasi-judicial administrative
proceedings, id., as well as documents prepared in connection with litigation to which the agency
is not a party and is only a potential party or a potential material participant, see Mobley v. CIA,
924 F. Supp. 2d 24, 61–62 (D.D.C. 2013). And it extends even to “the mental impressions of an
attorney concerning potential testimony in an anticipated proceeding” to which the agency is not
a party. Id. at 61.
Here, several of the Department’s Exemption (d)(5) withholdings fall squarely within the
exempt category of “documents prepared for actions in the district courts.” Martin, 819 F.2d at
1188. On that ground, the Department is entitled to invoke Exemption (d)(5) to withhold
(1) messages exchanged in response to “Mr. Davidson’s notice of his intent to file suit against
the Department,” Hackett Decl. ¶ 82; (2) “discussions between a Department attorney and her
clients in which she provides instructions for the preservation of documents in response to
Mr. Davidson’s notification of his intention to sue the Department and named Department
officials in their personal and professional capacities,” id. ¶ 97; and (3) “exchanges among
Department of State employees regarding legal developments in the lawsuit filed by
Mr. Davidson,” id. ¶¶ 99–100. Likewise, the Department justifiably withheld a portion of
18
another document, because it contained the “mental impressions of an attorney” about
anticipated litigation. Mobley, 924 F. Supp. 2d at 61; see Hackett Decl. ¶ 64 (discussing withheld
information “that reveals the two-way confidential communications between an attorney and his
clients that seeks legal advice regarding possible litigation”).
The Department describes its other Exemption (d)(5) withholdings more generally. In
some cases, the Department provides little detail about the material withheld, except to say that it
is “information . . . prepared in anticipation of civil litigation.” See, e.g., Hackett Decl. ¶ 96. But,
given the Department’s descriptions of the documents at issue, the communications all had to do
either with Mr. Davidson’s request for commercial advocacy or with his subsequent
communications with the Department about that issue. See id. ¶¶ 65, 68, 73–74, 77, 79–81, 84,
86–92, 94–96, 98; Stein Decl. ¶¶ 23, 25. And given what the Department has previously told the
Court about the context of these communications, the Department’s internal discussions resulted
in the Department informing Mr. Davidson by letter that he should first exhaust his legal
remedies in Libya before seeking the Department’s assistance. Davidson v. U.S. Dep’t of State,
113 F. Supp. 3d 183, 186 (D.D.C. 2015). The Department did so in part because giving
Mr. Davidson additional advice might “make the Department . . . vulnerable to legal actions.” Id.
at 192. The record thus indicates that, where the Department’s Exemption (d)(5) withholdings
relate to Mr. Davidson’s request for commercial advocacy and his subsequent communications
with the Department about that issue, the withheld material involves discussion of litigation to
which the Department reasonably anticipated it might become a party. The withheld material was
accordingly prepared “in reasonable anticipation of a civil action or proceeding” and so the
Department’s Privacy Act withholdings were properly asserted under Privacy Act Exemption
(d)(5). See 5 U.S.C. § 552a(d)(5), Mosley, 924 F. Supp. 2d at 61–62.
19
Mr. Davidson has not opposed the Department’s Privacy Act withholdings. See Pl.’s
Opp’n 1–8. Given his non-opposition, the Court determines that no genuine dispute of fact
precludes summary judgment in the Department’s favor on its Privacy Act withholdings. The
Court will accordingly grant the Department’s motion for summary judgment to the extent that it
rests on the appropriateness of its currently asserted Privacy Act withholdings. The Court now
turns to the Department’s FOIA withholdings.
D. FOIA Withholdings
Apart from the Privacy Act withholdings discussed above, see supra Part IV.C, the
Department invokes FOIA Exemptions 5 and 6 to justify many of its withholdings, see Defs.’
Mem. 14–24. Mr. Davidson opposes the Department’s use of those exemptions to justify its
withholdings. See Pl.’s Opp’n 2–8. The Court articulates basic principles governing FOIA
withholdings before analyzing the Department’s withholdings under each exemption in turn.
“Disclosure, not secrecy, is FOIA’s dominant objective.” Elliott v. USDA, 596 F.3d 842,
845 (D.C. Cir. 2010) (brackets and internal quotation marks omitted) (quoting Dep’t of the Air
Force v. Rose, 425 U.S. 352, 361 (1976)). “Consistent with this purpose, agencies may withhold
only those documents or portions thereof that fall under one of nine delineated statutory
exemptions.” Id. (citing 5 U.S.C. § 552(b)). “[T]he exemptions are ‘explicitly exclusive.’” U.S.
Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989) (quoting Adm’r, FAA v. Robertson,
422 U.S. 255, 262 (1975)). And it is the agency’s burden to show that withheld material falls
within one of these exemptions. See 5 U.S.C. § 552(a)(4)(B); Elliott, 596 F.3d at 845.
1. Exemption 5
Where the Department’s Vaughn Index describes withholdings under Exemption 5, it
invokes various privileges: attorney–client privilege, attorney work-product privilege, and
deliberative process privilege. See Hackett Decl. ¶¶ 64–65, 68, 73–74, 77, 79–82, 84, 86–92,
20
94–100; Stein Decl. ¶¶ 23–26. Although the Department frequently invokes multiple privileges
for its Exemption 5 withholdings, the Department invokes the deliberative process privilege
every time that it asserts a withholding under Exemption 5. See, e.g., Hackett Decl. ¶¶ 64–65, 68.
The Court therefore begins its Exemption 5 analysis by addressing the parties’ arguments about
the deliberative process privilege.10
Exemption 5 permits the withholding of “inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. § 552(b)(5). This exemption protects documents “normally privileged in the
civil discovery context.” Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1113 (D.C. Cir.
2004). Thus, protected materials under Exemption 5 include materials shielded by the attorney
work-product privilege and “what is sometimes called the ‘deliberative process’ privilege.”
Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). The
deliberative process privilege covers “advisory opinions, recommendations, and deliberations
comprising part of a process by which governmental decisions and policies are formulated.” Id.
at 8 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)).
For the deliberative process privilege to apply, a court must first determine whether the
withheld materials are both “predecisional” and “deliberative.” Access Reports v. Dep’t of
10
Congress recently amended FOIA. See FOIA Improvement Act of 2016, Pub. L.
No. 114-185, 130 Stat. 538 (enacted June 30, 2016). The recent FOIA amendments remove the
deliberative process privilege’s applicability to records “created 25 years or more before the date
on which the records were requested.” FOIA Improvement Act of 2016, Pub. L. No. 114-185,
§ 2(2), 130 Stat. 538, 540. But because Mr. Davidson’s FOIA requests seek only documents “for
the period beginning June 30, 2009,” that FOIA amendment does not apply here. See Answer
Ex. 1, ECF No. 8-1, at 1 (showing language from Mr. Davidson’s first FOIA request); id. Ex. 3,
ECF No. 8-1, at 4–5 (showing language from Mr. Davidson’s second FOIA request); id. Ex. 5,
ECF No. 8-1, at 7–8 (showing language from a third FOIA request that the Department received
from Mr. Davidson). And because Congress did not otherwise amend FOIA in a way that might
affect the disposition of this case, the Court does not address whether any of the FOIA
amendments apply retroactively.
21
Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991) (internal quotation marks omitted). Materials are
“predecisional” if they are “generated before the adoption of an agency policy.” McKinley v.
FDIC, 744 F. Supp. 2d 128, 138 (D.D.C. 2010) (quoting Coastal States Gas Corp. v. Dep’t of
Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). Materials are “deliberative” if they reflect “the
give-and-take of the consultative process,” id. (quoting Coastal States, 617 F.2d at 866), “by
which the decision itself is made,” Jowett, Inc. v. Dep’t of the Navy, 729 F. Supp. 871, 875
(D.D.C. 1989) (quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)).
Here, the materials that the Department withheld under Exemption 5 fall into three
categories. First, the Department withheld portions of communications between Department
employees about how to handle Mr. Davidson’s “request for official U.S. government
intervention and advocacy in resolving his commercial dispute with the Government of Libya,”
as well as drafts of a letter responding to that request. Hackett Decl. ¶ 64; see ¶¶ 65, 68, 77, 79,
81, 84, 86–92, 94–96, 98; Stein Decl. ¶¶ 23, 25. Second, the Department withheld portions of
communications that address “how to respond to Mr. Davidson’s request for a letter delineating
issues discussed during a May 14, 2014 telephone conversation” and issues relating to that
request. Hackett Decl. ¶ 73; see id. ¶¶ 74, 80. Third, the Department withheld communications
that discuss “Mr. Davidson’s notice of his intent to file suit against the Department and
Department officials” and further developments related to that suit. Id. ¶ 82; see id. ¶¶ 97,
99–100. For each instance in which it invokes the deliberative process privilege, the Department
states either that disclosure “would reveal the details of internal deliberations when Department
employees are developing a strategy for official action,” id. ¶ 64; see id. ¶¶ 65, 68 (making
similar statements); or that the withholdings are necessary “to protect the free flow of comments
and ideas that occur when Department officials are formulating a strategy for official action,” id.
22
¶ 73; see id. ¶¶ 74, 77, 79–82, 84, 86–92, 94–100 (making similar statements); Stein Decl.
¶¶ 23–26 (same).
On this record, the Court determines that the Department’s Exemption 5 withholdings
involve predecisional and deliberative materials for which the Department justifiably invoked the
deliberative process privilege. The withheld materials, as described, are all Department
communications that came before and that deliberate Department action on Mr. Davidson’s
request for commercial advocacy, on his request for a letter about a telephone conversation, and
on his lawsuit. Indeed, where the Department discusses a document that constituted the
Department’s ultimate action on one of Mr. Davidson’s requests, the Department does not appear
to use Exemption 5 to justify any withholdings. See Hackett Decl. ¶ 88 (discussing “the e-mail
message that conveyed a letter from Under Secretary Wendy Sherman to Mr. Davidson,” and
appearing to use only Exemption 6 to justify withholdings in that letter). The Department’s
Exemption 5 withholdings therefore fall squarely into the category of “recommendations, draft
documents, proposals, suggestions, and other subjective documents which reflect the personal
opinions of the writer rather than the policy of the agency.” Coastal States, 617 F.2d at 866.
Because the deliberative process privilege protects those materials from disclosure, the Court
will award the Department summary judgment on the Exemption 5 withholdings that it currently
asserts in its Vaughn Index.
Mr. Davidson’s arguments to the contrary do not change the Court’s conclusion.
Although Mr. Davidson notes correctly that “truly factual material . . . is not protected” under the
deliberative process privilege, Pl.’s Opp’n 4 (citing EPA v. Mink, 410 U.S. 73 (1973)), the
Department has already addressed that potential problem by releasing in part most of the
documents for which it claims Exemption 5 withholdings. See United Am. Fin., Inc. v. Potter,
531 F. Supp. 2d 29, 45 (D.D.C. 2008) (citing Mapother v. Dep’t of Justice, 3 F.3d 1533,
23
1539–40 (D.C. Cir. 1993)) (holding that, in the context of the deliberative process privilege,
“purely factual information should be released unless its disclosure would expose the
deliberative process,” but explaining that the agency could still withhold deliberative portions of
a document if it released segregable factual portions); Hackett Decl. ¶¶ 64–65, 68, 73–74, 77,
79–82, 84, 86–92, 94–95, 99–100 (describing documents for which the Department claims
Exemption 5 withholdings but nonetheless released in part); Stein Decl. ¶¶ 23–26 (same). As for
the documents withheld in full, none contains segregable “purely factual” material. Potter, 531
F. Supp. 2d at 45. Most of those withheld documents are “preliminary drafts” of letters in
response to Mr. Davidson’s request for commercial advocacy. See Hackett Decl. ¶¶ 96, 98. Any
factual material in those drafts either (1) has already been released to Mr. Davidson in the final
letter responding to his request for commercial advocacy, see id. ¶ 88 (describing “the e-mail
message that conveyed a letter from Under Secretary Wendy Sherman to Mr. Davidson”); or
(2) “would expose the [Department’s] deliberative process” because it was not part of the final
letter, Potter, 531 F. Supp. 2d at 45. And the only other document withheld in full—an e-mail
exchange in which a Department attorney “provides instructions for the preservation of
documents in response to Mr. Davidson’s notification of his intention to sue the Department”—
appears to contain strictly legal or deliberative material and no factual material. See Hackett
Decl. ¶ 97. The record thus provides no indication that the Department failed to disclose any
segregable factual material.11
11
FOIA requires that when a document contains some information that is exempt from
disclosure, any reasonably segregable information not exempt from disclosure must be released
after deleting the exempt portions—unless the non-exempt portions are inextricably intertwined
with the exempt portions. See 5 U.S.C. § 552(b); Johnson v. Exec. Office for U.S. Attorneys, 310
F.3d 771, 776 (D.C. Cir. 2002). The Court “must make specific findings of segregability
regarding the documents to be withheld [in full].” Sussman v. U.S. Marshals Serv., 494 F.3d
1106, 1116 (D.C. Cir. 2007). As discussed above, the Court finds that, for the few documents
that the Department withheld in full, no reasonably segregable portions exist.
24
Next, Mr. Davidson contends that “[t]he deliberative process privilege is a qualified
privilege and can be overcome by a sufficient showing of need.” Pl.’s Opp’n 4 (internal
quotation marks omitted) (quoting In re Sealed Case, 116 F.3d 550, 558 (D.C. Cir. 1997)) (citing
In re Subpoena Served upon the Comptroller of the Currency & the Sec’y of the Bd. of
Governors of the Fed. Reserve Sys., 967 F.2d 630, 634 (D.C. Cir. 1992)). But the D.C. Circuit
has expressly explained that the deliberative process privilege’s characteristic of being “a
qualified privilege” is “not an issue in FOIA cases.” In re Sealed Case, 121 F.3d 729, 737 & n.5
(D.C. Cir. 1997). This is because “the particular purpose for which a FOIA plaintiff seeks
information is not relevant in determining whether FOIA requires disclosure.” Id. at 737 n.5.
Thus, the Court need not consider Mr. Davidson’s argument about the deliberative process
privilege being a “qualified privilege.” Pl.’s Opp’n 4 (quoting In re Sealed Case, 116 F.3d at
558).
Mr. Davidson also attempts to bolster his position by reference to the principle that
“Exemption 5 does not apply to final . . . statements of policy or final opinions that have the
force of law.” Ball v. Bd. of Governors of Fed. Reserve Sys., 87 F. Supp. 3d 33, 49 (D.D.C.
2015) (internal quotation mark omitted) (quoting Taxation with Representation Fund v. IRS, 646
F.2d 666, 677 (D.C. Cir. 1981)); see Pl.’s Opp’n 6 (“[E]ven privileged or opinion material must
be released if failure to disclose the information would result in ‘secret law.’”). But here, “there
is no indication that any material was expressly adopted or incorporated by reference in a final
opinion of the Department.” Brinton v Dep’t of State, 636 F.2d 600, 605 (D.C. Cir. 1980)
(emphasis added); see, e.g., Hackett Decl. ¶ 96 (describing “preliminary drafts” of letters to
Mr. Davidson, but including no indication that the Department expressly incorporated these
drafts into any later final opinion). Accordingly, because the Department never “expressly
adopt[ed] or incorporate[d] [withheld materials] as working law,” its Exemption 5 withholdings
25
are not “final opinions” with the force of law and are exempt from disclosure. Brinton, 636 F.2d
at 605. Indeed, when documents are “in the nature of legal advi[c]e” to Department of State
officials, “[t]here can be no doubt that such legal advice, given in the form of intra-agency
memoranda prior to any agency decision on the issues involved, fits exactly within the
deliberative process rationale for Exemption 5.” Id. at 604.
The Court need not here consider Mr. Davidson’s other arguments against the
Department’s Exemption 5 withholdings. Even though Mr. Davidson alludes to claims of
wrongdoing on the part of Department officials, see Pl.’s Opp’n 5, 7 (alleging, for instance, that
Department officials took “arbitrary and capricious” actions), the Court has already rejected
Mr. Davidson’s non-FOIA claims in a previous opinion, see Davidson v. U.S. Dep’t of State, 113
F. Supp. 3d 183, 197 (D.D.C. 2015). To the extent that they apply in the FOIA context, the Court
addresses Mr. Davidson’s allusions to bad faith on the part of Department officials later. See
Pl.’s Opp’n 5, 8 (alleging “wrongdoing” and an “intent not to be compliant with FOIA”); infra
Part IV.E (discussing Mr. Davidson’s allegations). And because the Department invoked the
deliberative process privilege to justify any withholding for which it also invoked the attorney
work-product privilege or attorney–client privilege, the Court need not address the parties’
arguments on those other privileges. See Defs.’ Mem. 15–19; Pl.’s Opp’n 3–5, 7–8. Having
determined that the Department merits summary judgment on the Exemption 5 withholdings that
it describes in its Vaughn index, the Court now turns to the Department’s Exemption 6
withholdings.
2. Exemption 6
For almost all of the documents for which the Department asserts withholdings, the
Department has withheld the names and personal contact information of Department employees.
See Hackett Decl. ¶¶ 63–94, 97–103; Stein Decl. ¶¶ 23, 25. Under Exemption 6, an agency may
26
withhold “personnel and medical files and similar files” when the disclosure of that information
“would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The
Supreme Court has interpreted the term “similar files” broadly so as “to cover detailed
Government records on an individual which can be identified as applying to that individual.”
U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982) (internal quotation mark
omitted) (quoting H.R. Rep. No. 1497, at 11 (1966)). Therefore, not only does the exemption
protect files, “but also bits of personal information, such as names and addresses, the release of
which would ‘create a palpable threat to privacy.’” Prison Legal News v. Samuels, 787 F.3d
1142, 1147 (D.C. Cir. 2015) (brackets and internal quotation mark omitted) (quoting Judicial
Watch, Inc. v. FDA, 449 F.3d 141, 152 (D.C. Cir. 2006)). “The information in the file ‘need not
be intimate’ for the file to satisfy the standard, and the threshold for determining whether
information applies to a particular individual is minimal.” Milton v. U.S. Dep’t of Justice, 783 F.
Supp. 2d 55, 58 (D.D.C. 2011) (quoting N.Y. Times Co. v. NASA, 920 F.2d 1002, 1006 (D.C. Cir.
1990)).
Once the agency meets this threshold determination, a court must next ask whether
disclosure would compromise a “substantial” privacy interest, because FOIA requires the release
of information “if no significant privacy interest is implicated.” Multi Ag Media LLC v. Dep’t of
Agric., 515 F.3d 1224, 1229 (D.C. Cir. 2008) (brackets and internal quotation marks omitted)
(quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989)). This
standard, however, “means less than it might seem,” for a substantial privacy interest is
“anything greater than a de minimis privacy interest.” Id. at 1229–30.
If a substantial privacy interest exists, a court next tests whether release of such
information would be a “clearly unwarranted invasion of personal privacy,” Wash. Post Co. v.
U.S. Dep’t of Health & Human Servs., 690 F.2d 252, 260 (D.C. Cir. 1982) (internal quotation
27
marks omitted) (quoting 5 U.S.C. § 552(b)(6)), by balancing “the privacy interest that would be
compromised by disclosure against any public interest in the requested information,” Multi Ag
Media, 515 F.3d at 1228. “The only relevant public interest in the FOIA balancing analysis is the
extent to which disclosure of the information sought would ‘shed light on an agency’s
performance of its statutory duties’ or otherwise let citizens know ‘what their government is up
to.’” Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999) (brackets and internal quotation
marks omitted) (quoting U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 497
(1994)). “Information that ‘reveals little or nothing about an agency’s own conduct’ does not
further the statutory purpose.” Beck v. Dep’t of Justice, 997 F.2d 1489, 1493 (D.C. Cir. 1993)
(quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773
(1989)).
Here, the Department invokes Exemption 6 to withhold the names and contact
information of its employees. Comprised of “bits of personal information,” this information
receives protection under Exemption 6. See Prison Legal News, 787 F.3d at 1147 (quoting
Judicial Watch, Inc., 449 F.3d at 152). The Court accordingly balances the employees’ privacy
interests with the public interest in any withheld information that would shed light on the
Department’s workings. See Lepelletier, 164 F.3d at 46. Because that knowledge would reveal
“little or nothing” more about the Department’s conduct than the other information released to
Mr. Davidson, see Beck, 997 F.2d at 1493 (quoting Reporters Comm., 489 U.S. at 773), and
because Mr. Davidson has made no argument asserting a public interest in knowing the
employees’ names and contact information, see Pl.’s Opp’n 2, the Court determines that no
public interest exists to justify disclosure of the employees’ names and contact information. On
that basis, the Court determines that the employees’ interest in keeping that information private
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outweighs any public interest in disclosure, and the Court will grant the Department’s motion for
summary judgment on the Exemption 6 withholdings that it asserted in its Vaughn Index.
Again, Mr. Davidson’s arguments to the contrary do not change the Court’s conclusion.
Even if, in the context of Exemption 5 withholdings, an agency chooses to release the names of
its attorneys, the agency’s choice does not mean that the agency must release its attorneys’
names; the agency can still invoke Exemption 6 to withhold the attorneys’ names if the
attorneys’ privacy interests outweighs any countervailing public interests. See Multi Ag Media,
515 F.3d at 1228, 1230–31; cf. Pl.’s Opp’n 2 (“Of note, in issues involving Exemption 5, the
name, and professional title [attorney] are specifically relevant for the exemption to apply.”
(brackets in original)). And though typically under the deliberative process privilege “factual
material must be disclosed,” the “fact/opinion” distinction does not apply in the Exemption 6
context. Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993) (quoting Wolfe v.
Dep’t of Health and Human Servs., 839 F.2d 768, 774 (D.C. Cir. 1988)); cf. Pl.’s Opp’n 2
(arguing that the Department’s redacted names and contact information “are facts [that] are not
subject to being withheld”).
Finally, though Mr. Davidson claims that the Department redacted so many portions of
some documents that they are now “incomprehensible,” Pl.’s Opp’n 2, the Court observes that
the redacted documents still allow Mr. Davidson to discern “what [his] government is up to,”
Lepelletier, 164 F.3d at 46 (internal quotation marks omitted) (quoting Fed. Labor Relations
Auth., 510 U.S. at 497). See Pl.’s Opp’n Ex., ECF No. 28, at 12 (reproducing, as an example of
an “incomprehensible” document, a redacted Department document that shows correspondence
between Department employees about “Export Strategic Alliance”). For instance, even with
exempted information withheld, the Department’s released documents allow Mr. Davidson to
identify the frequency and extent of discussions held at the Department with respect to his
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request for commercial diplomacy. In any event, FOIA does not require the Department to
release information that is exempt from disclosure, even if the Department’s asserted exemptions
would render a released document “incomprehensible.” See generally 5 U.S.C. § 552(b)
(containing no language that safeguards the requester’s ability to interpret to his satisfaction
documents that the government produces). To the contrary, if what remains after appropriate
redactions is incomprehensible, the document need not be produced at all. See STS Energy
Partners LP v. FERC, 82 F. Supp. 3d 323, 331 (D.D.C. 2015) (explaining that agencies may
withhold documents in full when “segregable information . . . amounts to an essentially
meaningless set of words and phrases” (internal quotation mark omitted) (quoting Mead Data
Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977))).
For all these reasons, the Court finds that the Department’s Exemption 6 withholdings
withstand Mr. Davidson’s challenge. The Court will grant the Department’s motion for summary
judgment on the Exemption 6 withholdings that it asserted in its Vaughn Index.
E. The Department’s Intent
The Court must now tie up one final loose end: Mr. Davidson’s accusation that the
Department’s actions show an “intent not to be compliant with FOIA.” Pl.’s Opp’n 8; see also id.
at 5 (alleging that the Department’s employees committed “wrongdoing”). In support of his
accusation, Mr. Davidson cites (1) the Department’s search for documents using “[l]imited
parameters”; (2) the Department’s nonproduction of documents from its OIG, from former
Libyan Ambassador Gene Cretz, relating to an FBI investigation conducted by “R. Godfrey,”
and from government officials in the United States Embassy in Libya; (3) the Department’s
repeated form responses to Mr. Davidson’s initial FOIA requests; and (4) the Department’s
redactions on the documents that Mr. Davidson did receive. Id. at 8. Although the Court has
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addressed some of these assertions earlier, see supra Parts IV.A, C–D, the Court now briefly
addresses them in the context of an argument that the Department has acted in bad faith.
In the FOIA context, allegations of bad faith can call the trustworthiness of an agency’s
affidavits into doubt, see Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Labor,
478 F. Supp. 2d 77, 80 (D.D.C. 2007), or may be reason to allow a plaintiff to take discovery,
when supported by evidence of agency wrongdoing, see Landmark Legal Found. v. EPA, 959 F.
Supp. 2d 175, 184 (D.D.C. 2013). But because Mr. Davidson has not asserted any request for
discovery, see Pl.’s Opp’n 1–8, the Court will not assess whether circumstances warranting
discovery exist here (discovery likely would not be justified under these circumstances). And, to
the extent that Mr. Davidson seeks to undermine the trustworthiness of the Department’s
declarations and Vaughn Index, he has not cited any authority to justify that position. See Pl.’s
Opp’n 5, 8. He has accordingly waived that argument. See Johnson v. Panetta, 953 F. Supp. 2d
244, 250 (D.D.C. 2013) (explaining that the Court need not construct the parties’ legal
arguments, for “perfunctory and undeveloped arguments, and arguments that are unsupported by
pertinent authority, are deemed waived”); see also Davis v. Kelly, 160 F.3d 917, 922 (2d Cir.
1998) (“[A] court need not act as an advocate for pro se litigants . . . .”); Sun v. D.C. Gov’t, 133
F. Supp. 3d 155, 168 n.6 (D.D.C. 2015) (“[I]t is not the Court’s job to canvass the record for
documents supporting a pro se party’s position.”). Finally, as mentioned before, the Court will
not consider Mr. Davidson’s allegations in the context of his mandamus and civil rights claims
against the Department, see Compl. ¶¶ 34–50; the Court has already dismissed those claims, see
Davidson v. U.S. Dep’t of State, 113 F. Supp. 3d 183, 197 (D.D.C. 2015). Thus, because
Mr. Davidson has not otherwise tied his allegations to a request for legal relief, the Court will
address his allegations of bad faith and wrongdoing no further.
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V. CONCLUSION
The Court determines that no genuine issue of material fact precludes summary judgment
on the Department’s withholdings described in its Vaughn index, and that the Department is
entitled to judgment as a matter of law on those withholdings. See supra Parts IV.C–D. But the
Department has not shown that no genuine issue of material fact exists with respect to the
adequacy of its search for documents and with respect to the adequacy of its Vaughn Index. See
supra Parts IV.A–B. For the foregoing reasons, the Department’s motion for summary judgment
(ECF No. 25) is GRANTED IN PART and DENIED IN PART. An order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: September 2, 2016 RUDOLPH CONTRERAS
United States District Judge
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