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CANNING v. U.S. DOJ

March 31, 1994

GEORGE CANNING, Plaintiff
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 Before the Court in the above-captioned Freedom of Information Act ("FOIA") case are Defendant's Motion for Summary Judgment ("Defendant's Motion"); Defendant's Motion for Leave to Submit a Classified In Camera Declaration; a Motion for an Order Reinstating Count II of the Complaint and Mary Jane Freeman as Co-Plaintiff; the Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment and in Support of Motions (1) To Reinstate Mary Jane Freeman as Co-Plaintiff, and (2) To Reinstate Count II of the Complaint ("Plaintiff's Opposition"); the Defendant's Reply on its Motion for Summary Judgment and for Leave to Submit a Classified Declaration, and Opposition to Mary Jane Freeman's Motion to Reinstate Count II of the Complaint ("Defendant's Reply"); and Plaintiff's Opposition to Defendant's Motion for Leave to Submit a Classified In Camera Declaration.

 Based upon consideration of all of the foregoing submissions, the applicable law, and the entire record herein, the Court shall grant the Defendant's Motion for Summary Judgment. The Motion for Leave to Submit a Classified In Camera Declaration and the Motion for an Order Reinstating Count II of the Complaint and Mary Jane Freeman as Co-Plaintiff shall both be denied.

 BACKGROUND

 According to the Plaintiff, Cheminade is a French citizen and long-time associate of U.S. politician Lyndon H. LaRouche ("LaRouche"). Plaintiff Canning further asserts that Cheminade was employed as the French Commercial Counselor to the United States from 1972 to 1977 and that it was during this assignment that he met and began collaborating with Mr. LaRouche on "subjects of political and strategic interest to them both." See Plaintiff's Opposition at 4.

 Thereafter, in 1977, Cheminade apparently returned to France where he became the Secretary General of the French political party known as the Parti Ouvrir European ("POE"). See Plaintiff's Opposition at 4. According to Cheminade, his return to France was motivated by a desire to devote himself "full time to political activities and the advocacy of Mr. LaRouche's ideas and policies." See Plaintiff's Opposition at 4, Cheminade Declaration at P 10.

 During the period of time from 1982 to 1984, Cheminade asserts that he was involved in arranging a number of meetings between "French government, military and political leaders, and Mr. LaRouche . . . primarily on the subject of the SDI [the Strategic Defense Initiative ("SDI")] and its European compliment, the Tactical Defense Initiative ("TDI")." See Plaintiff's Opposition at 4-5. Cheminade alleges that "while the President of the United States [Ronald Reagan] had adopted and announced the new strategic policy," there were at least two forces adamantly opposed to the new initiatives: "a group identified with 'Project Democracy' within the U.S. government . . . and the Soviets." Id. at 5.

 Based upon information contained within the records released from the FBI, Cheminade claims that as a result of these political activities he thus became the subject of a national security investigation conducted by the Paris Legal Attache Office of the FBI ("Paris Legat"). Cheminade questions the propriety of this investigation and alleges that the offices of the Paris FBI were being used to "poison" his efforts and those of his colleagues in France. More specifically, Cheminade claims that the recently released FBI documents reveal that:

 
there was either some French government connected source and/or a hostile (most likely) Israeli or Soviet source which was utilizing the offices of the Paris FBI office to poison our efforts because the majority of the documents (numbers 1-23) are from this 1983-84 period and show that the FBI opened a "national security" investigation of me at the behest of some redacted "foreign government" inquiring source. This is quite incredible not only because I do not believe the FBI has jurisdiction to investigate French citizens on French soil, but my activities were quite well-known, public and clearly not a threat to national security of any nation.

 See Plaintiff's Opposition at 6.

 Cheminade, like LaRouche, was subsequently prosecuted and convicted on financial fraud charges. Cheminade maintained his innocence, and subsequently appealed his conviction. See Plaintiff's Opposition at 6-7. The FOIA requests which form the basis for this lawsuit relate to requests for records concerning Mr. Cheminade kept by the FBI and the U.S. Department of State.

 Procedurally, this case effectively began on September 10, 1991 when Plaintiff George Canning filed a FOIA request with the FBI, seeking access to all records which mentioned or pertained to Jacques Cheminade, dating back to 1980. Enclosed with Canning's request was a privacy waiver from Cheminade. See Plaintiff's Opposition at 2. On September 26, 1991, Canning received an acknowledgment letter from the FBI indicating that a search was underway in response to his request.

 As of February 28, 1992, neither Canning nor Freeman had received any further communications from the FBI or the State Department, thus prompting them to file this lawsuit. In March of 1992, Ms. Freeman was informed that one document had been located in response to a search of its Central Files and would be released in its entirety. Mr. Canning was informed that the FBI had not yet completed its search for records responsive to his request. See Plaintiff's Opposition at 3.

 Thereafter, in the spring of 1992, the State Department filed a Motion to Dismiss and a subsequent Motion for Summary Judgment as to Count II of the Complaint which related to Ms. Freeman's FOIA request to the Department of State. On July 15, 1992, Judge Gerhard A. Gesell granted the State Department's Motion for Summary Judgment, rendering the Motion to Dismiss moot. See Order of July 15, 1992. This decision thus dismissed Count II of the Complaint brought by Mary Jane Freeman against the State Department.

 In March of 1993, this case was transferred to the undersigned Judge. In August of 1993, after the FBI had completed its search for responsive records, the Defendant filed a Motion for Summary Judgment. The Defendant contends that its search yielded one main file and seven cross-references, of which only five pages were withheld in their entirety and the rest were released to the Plaintiff in redacted form. The Defendant further indicates that the withheld material falls within five categories of exemptions under FOIA, 5 U.S.C. § 552(b). See Defendant's Motion at 1. The Plaintiff's Opposition, however, only challenges those withholding decisions made pursuant to Exemption (b)(1). *fn1"

 In support of its Motion for Summary Judgment, the Defendant has submitted two Declarations: the Declaration of Michael D. Turner ("Turner Declaration") and the Declaration of Richard D. Davidson ("Davidson Declaration"). Mr. Turner is a Special Agent of the FBI, assigned in a supervisory capacity to the Freedom of Information-Privacy Acts Section ("FOIPA"), Information Management Division, at FBI Headquarters ("FBIHQ") in Washington, D.C. Mr. Davidson is a Special Agent of the FBI assigned in a supervisory capacity to the Document Classification Unit at FBIHQ. Mr. Davidson has been designated by the Attorney General of the United States as an Original Top Secret classification authority and declassification authority pursuant to Executive Order 12356, Sections 1.2 and 3.1.

 The Court also notes that, in connection with the Motion for Summary Judgment, the Defendant has filed a Motion requesting Leave to File a Classified In Camera Declaration. Also before the Court is a Motion for an Order Reinstating Count II of the Complaint and Mary Jane Freeman as Co-Plaintiff. For the reasons enumerated below, the Court shall grant the Defendant's Motion for Summary Judgment and deny both of the other pending motions.

 DISCUSSION

 I. THE DEFENDANT HAS SUSTAINED ITS BURDEN OF PROOF AS TO THE EXEMPTION (b)(1) CLAIMS BECAUSE THE AGENCY'S AFFIDAVITS SHOW WITH REASONABLE SPECIFICITY THAT THE FBI HAS FOLLOWED THE APPROPRIATE CLASSIFICATION PROCEDURES AND THAT THESE CLASSIFICATION DECISIONS MEET THE CRITERIA OF 5 U.S.C. § 552 (b)(1) AND EXECUTIVE ORDER 12356.

 As both parties recognize, Exemption 1 of the Freedom of Information Act, 5 U.S.C. § 552(b)(1), provides that the mandatory disclosure provisions of the Act shall not apply to those materials which are:

 
(A) specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive Order.

 5 U.S.C. § 552(b)(1).

 The relevant Executive Order in this instance is Executive Order 12356 ("E.O. 12356"), which governs the classification and protection of information affecting national security. E.O. 12356 provides that such "classification is appropriate when an original classification authority . . . determines that its unauthorized disclosure, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security." See Davidson Declaration at P 4.

 In moving for summary judgment, the FBI has argued that Exemption 1 was properly invoked in withholding certain material from disclosure pursuant to the criteria established by 5 U.S.C. § 552(b)(1) and E.O. 12356. More specifically, the Defendant argues that the classification in question meets these criteria because "the information at issue is sufficiently described and the FBI has followed the proper procedures in classifying it." See Motion for Summary Judgment at 3.

 STANDARD OF REVIEW

 In reviewing the FBI's determination that this material has been properly withheld, the Court is guided by the general principle that "as in all FOIA cases, the district courts are to review de novo all exemption claims advanced, and that the agency bears the burden of justifying its decision to withhold requested information." See King v. United States Department of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210, 217 (D.C. Cir. 1987). As such, agencies are typically permitted to meet this heavy burden by "filing affidavits describing the material withheld and the manner in which it falls within the exemption claimed." Id. at 217.

 In the national security context, Congress has clearly instructed the courts to give "substantial weight" to agency affidavits in assessing whether the agency can sustain its burden during the required de novo review. As the legislative history of the act makes clear, there are valid reasons for courts to afford such agency affidavits this degree of deference:

 
Courts must "recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosure of a particular classified record."

 See Salisbury v. United States, 223 U.S. App. D.C. 243, 690 F.2d 966, 970 (D.C. Cir. 1982) (quoting S.Rep.No. 1200, 93rd Cong., 2d Sess. 12 (1974) (conference report)).

 In practice, courts have sought to respect this directive to credit agency expertise in evaluating matters of national security by focusing attention primarily on whether affidavits are sufficiently specific and by ensuring that they are not controverted by contradictory evidence or evidence of bad faith. As the D.C. Circuit stated in Halperin v. CIA, 203 U.S. App. D.C. 110, 629 F.2d 144 (D.C. Cir. 1980):

 
summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.
 
If the agency's statements meet this standard, the court is not to conduct a detailed inquiry into whether it agrees with the agency's opinions; to do so would violate the principle of affording substantial weight to the expert opinions of the agency. Judges, moreover, lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case.

 Halperin at 148 (footnotes omitted).

 Under the circumstances of this case, the Court finds that the Defendant has met its burden of proof by showing with reasonable specificity why the documents or portions thereof properly fall within the claimed exemption. See Hayden v. National Security Agency/Central Security Service et al., 197 U.S. App. D.C. 224, 608 F.2d 1381, 1387 (D.C. Cir. 1979), cert. denied, 446 U.S. 937, 64 L. Ed. 2d 790, 100 S. Ct. 2156 (1980). The affidavits submitted by the FBI are neither conclusory nor overly vague, and the Court is satisfied that they provide sufficiently specific information to justify the agency's withholding decisions. Id. Since this information is not contradicted in the record and the Court finds no evidence of agency bad faith, the Defendant is entitled to summary judgment, without an in camera review of the documents. Id.

 In challenging the Defendant's entitlement to summary judgment, the Plaintiff argues that the agency has failed to meet its burden of proof under the standards set forth for Exemption (b)(1) claims. Relying upon King v. United States Department of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210 (D.C. Cir. 1987), the Plaintiff asserts that the declaration filed by Richard D. Davidson improperly relies upon the use of a coding system and fails to sufficiently describe the content of the material withheld. According to the Plaintiff, the declaration does not adequately explain how disclosure of the material in question would harm national security, relying ...


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