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ARMSTRONG v. EXECUTIVE OFFICE OF THE PRESIDENT

August 28, 1995

SCOTT ARMSTRONG, NATIONAL SECURITY ARCHIVE, AMERICAN HISTORICAL ASSOCIATION, AMERICAN LIBRARY ASSOCIATION, CENTER FOR NATIONAL SECURITY STUDIES, EDDIE BECKER, and GARY M. STERN, Plaintiffs,
v.
EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION, THE NATIONAL SECURITY COUNCIL, WHITE HOUSE COMMUNICATIONS AGENCY, and DON WILSON, ARCHIVIST OF THE UNITED STATES, Defendants.



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

 I. INTRODUCTION

 The Plaintiffs now move this Court to reconsider its decision not to conduct an in camera review of several documents. That Motion shall be denied. In addition, the Defendants have submitted a Supplemental Memorandum setting forth their effort to comply with this Court's Order that they reprocess eighty-eight White House Intelligence Summaries. On the basis of that Memorandum and the Defendants' supplemental filings, the Court will grant Summary Judgment in favor of the Defendants as to those Summaries.

 II. THE DEFENDANTS ARE NOT ENTITLED TO RECONSIDERATION OF THIS COURT'S DECISION NOT TO REVIEW FOURTEEN DOCUMENTS IN CAMERA

 Initially before the Court is the Plaintiffs' Motion for Partial Reconsideration (dated Aug. 7, 1995) of this Court's Memorandum Opinion of July 28, 1995. Among other things, the Opinion ordered the Government to produce for in camera review four of seventeen documents identified by the Plaintiffs. *fn2" Mem. Op. at 9-12, 36. By their Motion, the Plaintiffs now request that the Court reconsider its decision not to conduct an in camera review of the remaining thirteen documents, focusing on four documents in particular (Plaintiffs' Exhibits B-1, B-2, B-3, and B-5). See Plaintiffs' Motion for Partial Reconsideration at 6. For the reasons set out below, as well as those originally articulated in the Memorandum Opinion, the Plaintiffs' Motion shall be denied.

 A. BACKGROUND

 Pursuant to the FOIA, Count I of the Plaintiffs' Complaint requested production of various electronic records created by the staff of the Executive Office of the President ("EOP") and stored on the Professional Office Systems ("PROFS") of the National Security Council and the EOP. See Plaintiffs' Third Amended Complaint PP 37-39. In response, the Defendants prepared Vaughn indices setting forth various exemption claims for those records. After the Plaintiffs' submission of their Cross-Motion and Opposition for Summary Judgment, however, the Defendants again reviewed many of the contested documents and, concluding that in some instances the Plaintiffs were correct, proceeded to release additional information. See Third Declaration of David S. Van Tassel (appended to Defendants' Reply Memorandum [May 3, 1995] as exh. 4) passim.

 The Defendants declined, however, either to release or to reveal further the contents of the seventeen records now relevant. The Plaintiffs then moved the Court to review those documents in camera based on their concern over whether "the government has corrected all its errors and it [sic] claims are, at last, legitimate." Plaintiffs' Reply Memorandum (May 16, 1995) at 5. The "Plaintiffs maintain that the numerous errors in the Vaughn index show 'carelessness,' 'sloppy review,' and a general lack of due diligence." Plaintiffs' Motion for Partial Reconsideration at 2; see also id. at 5. Given this alleged carelessness, the Plaintiffs maintain that absent in camera review the Court cannot be certain that the Government has correctly characterized the disputed documents as exempt from further disclosure.

 In opposition, the Defendants assert that the Court in its July 28, 1995 Memorandum Opinion considered each disputed record and conducted a "careful evaluation under this Circuit's standard for review, on a document by document basis, of whether defendants' public Vaughn index and supporting papers were plausible, were reasonably specific within the scope of the claimed exemptions, and were not otherwise contradicted by other evidence of record." Defendants Memorandum in Opposition at 4. Upon careful consideration of the pleadings extant and the entire record herein, the Court must agree with the Defendants.

 B. DISCUSSION

 As a preliminary matter, the Court notes that the Plaintiffs have failed to set forth either a Rule of Civil Procedure or a standard of review through which they wish to have their Motion reviewed. Given the Motion's timing and the requested relief, it will be deemed submitted as a Rule 59(e) Motion to Alter or Amend a Judgment. See Nichols v. Board of Trustees, 266 U.S. App. D.C. 304, 835 F.2d 881, 887 (D.C. Cir. 1987) ("Regardless of the way a caption characterizes a motion, a post-judgment filing challenging the correctness of the judgment falls within Rule 59(e)'s perimeter.").

 "A motion for reconsideration is discretionary"; "the primary reasons for reconsideration of judgment are 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" National Trust v. Department of State, 834 F. Supp. 453, 455 (D.D.C. 1993) (Order) (quoting Virgin Atlantic Airways v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.), cert. denied, 121 L. Ed. 2d 34, 113 S. Ct. 67 (1992)), aff'd in part and rev'd in part on other grounds sub nom. Sheridan Kalorama Historical Ass'n v. Christopher, 49 F.3d 750 (D.C. Cir. 1995). Given that the Plaintiffs have identified no intervening change of controlling law, no new evidence, and no manifest injustice, the Court is left to presume that the Plaintiffs view the July 28, 1995 Memorandum Opinion as infected by clear error.

 In that vein, they assert that the Opinion "mischaracterized plaintiffs' argument as being based on allegations of 'bad faith'" on behalf of the Government. Plaintiffs' Motion for Partial Reconsideration at 1. They argue that their position, properly understood, is that the Defendants exhibited a "general lack of due diligence" (as opposed to any evil motive), suggesting that the Court should not have deferred to the Government's exemption determination. Id. at 2. Upon review of the pleadings and the record in this matter, the Court finds the Plaintiffs' position just as unavailing today as it was on July 28.

 As the Memorandum Opinion discussed, this Circuit will not lose faith in a FOIA exemption determination based on the Government's concession that it had earlier misclassified related materials. That Opinion quoted from Military Audit Project v. Casey, 211 U.S. App. D.C. 135, 656 F.2d 724 (D.C. Cir. 1981), wherein the Court of Appeals stated:

 
By releasing information to us, argue the appellants, the agency admitted that it was initially in error, from which it follows that the agency is fallible, and its affidavits, suspect. . . .
 
We emphatically reject this line of argument. If accepted, it would work mischief in the future by creating a disincentive for an agency to reappraise its position, and when appropriate, release documents previously withheld. It would be unwise for us to ...

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