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BONNER v. UNITED STATES DEPT. OF STATE

November 1, 1989

RAYMOND T. BONNER, Plaintiff,
v.
UNITED STATES DEPARTMENT OF STATE, Defendant


John H. Pratt, United States District Judge.


The opinion of the court was delivered by: PRATT

JOHN H. PRATT, UNITED STATES DISTRICT JUDGE

 I. Introduction

 Plaintiff Raymond T. Bonner brings this action under the Freedom of Information Act, 5 U.S.C. § 552 (1988) ("FOIA" or the "Act"), seeking the release from defendant United States Department of State ("State Department") of documents related to United States foreign policy in the Philippines. *fn1" Before the Court are the parties' cross-motions for partial summary judgment.

 The motions concern sixty-three items selected by Bonner as forming a representative sample for a Vaughn index. *fn2" The State Department served Bonner with the Vaughn index on February 1, 1988. At the same time, however, it released documents covered by nineteen of the sixty-three items. Therefore, the Vaughn index described only forty-four items. *fn3"

 Plaintiff seeks a declaration that the State Department's release, rather than description, of documents covered by these nineteen items was improper. He also challenges the State Department's rationales for withholding documents falling under thirty-one items described in the Vaughn index, and asks the Court to order their release.

 The State Department has moved for summary judgment as to all sixty-three items. Plaintiff opposes the State Department's motion only insofar as it concerns documents that are covered by plaintiff's motion. The matter has been extensively briefed. At the outset, then, we conclude that the State Department is entitled to summary judgment with respect to all documents not addressed by plaintiff's motion.

 II. The Nineteen Released Items

 Plaintiff offers no evidence that the sample's representativeness has been destroyed. He relies on his own ipse dixit conclusion. Moreover, the State Department correctly points out that the newly released information, "like virtually all of the information excised from the remaining 44 items, . . . related to the military bases question and other sensitive issues in U.S.- Philippine affairs and was originally withheld under Exemption 1" of FOIA. Defendant's Reply Memorandum at 4. In light of these factors, we cannot conclude that the release of these documents destroyed the representativeness of the sample.

 Nor does release of the nineteen items evidence agency arbitrariness or bad faith. It appears that upon re-review, the State Department made a reasoned determination that these documents could safely be released. *fn5" Since the State Department carefully re-reviewed all sixty-three items selected by plaintiff, there is no reason to assume that it reached its decision as to nineteen of them arbitrarily. Nor does the mere release of information that was once classified indicate that other information that remains classified also should be released. In light of the Eaves Declaration, discussed more fully below, the Court is unable to concur with plaintiff's "suspicions" concerning the effect the passage of time may have had on other documents the State Department continues to withhold. Accordingly, with respect to these nineteen items, plaintiff's motion is denied and the State Department's motion is granted. We now turn to the items described in the Vaughn index.

 III. The Vaughn Index Items6

 Exemption 1 of FOIA protects from disclosure matters that are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy" and "are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552 (b)(1). All of the withheld information challenged by plaintiff has been classified pursuant to Executive Order No. 12,356, 47 Fed. Reg. 14,874 (1982). *fn7" That Order authorizes the classification of information that, if disclosed, "reasonably could be expected to cause damage to the national security." Exec. Order No. 12,356 § 1.3(b), 47 Fed. Reg. 14,876. "National security" is defined as "the national defense or foreign relations of the United States." Id. § 6.1(e), 47 Fed. Reg. 14,883.

 This Court must determine de novo whether the State Department properly withheld the information pursuant to Exemption 1. 5 U.S.C. § 552(a)(4)(B). While the State Department bears the burden of sustaining its claim, *fn8" we must accord "substantial weight" to its determinations. *fn9" See Goldberg v. United States Department of State, 260 U.S. App. D.C. 205, 818 F.2d 71, 78 (D.C.Cir. 1987); Abbotts v. Nuclear Regulatory Commission, 247 U.S. App. D.C. 114, 766 F.2d 604, 606 (D.C.Cir. 1985); Gardels v. CIA, 223 U.S. App. D.C. 88, 689 F.2d 1100, 1104 (D.C.Cir. 1982); Lesar v. United States Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 481 (D.C.Cir. 1980); Halperin v. CIA, 203 U.S. App. D.C. 110, 629 F.2d 144, 147-48 (D.C.Cir. 1980). Specifically, we must grant summary judgment to the State Department "if its affidavits 'describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection between the information and the claimed exemption,' and 'are not controverted by . . ...


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