The opinion of the court was delivered by: Facciola, United States Magistrate Judge.
REPORT AND RECOMMENDATION
This Freedom of Information Act, 5 U.S.C. § 552, ("FOIA")
action is before me for a report and recommendation on
Defendants' Motion for Summary Judgment ("Defs.Mot."),
Plaintiffs' Opposition to Defendants' Motion for Partial [sic]
Summary Judgement ("Plains.Opp."), and Reply in Support of
Defendants' Motion for Summary Judgment ("Defs.Reply"). For the
reasons stated below, I recommend that defendants' motion for
summary judgment be granted.
Plaintiffs are several citizens' organizations, members of
Congress, and individuals who describe themselves as "concerned
with U.S. policy on genocide in Bosnia." Complaint ("Compl.")
at 3. They are seeking information regarding "massive human
rights violations by Bosnian Serb forces in the Srebrenica area
of Bosnia and other places." Id. Defendants are the U.S.
Department of State ("DOS"), the U.S. Department of Defense
("DOD"), and the U.S. Central Intelligence Agency ("CIA").
Defendants conducted searches for the requested information and
released, in whole or in part, materials which they assert are
responsive to the requests. Defendants also simultaneously
claimed the right to withhold other potentially responsive
documents based on exemptions to FOIA.
In two letters, dated October 12, 1995 and October 18, 1995,
plaintiffs submitted FOIA requests to DOS, DOD, and CIA regarding
four categories of information. After this action was filed on
April 4, 1996, the parties agreed to divide the initial FOIA
request into two separate requests deemed the "First FOIA
Request" and the "Second FOIA Request". The parties also agreed
that they would proceed with the litigation based on the First
FOIA Request and that plaintiffs would amend their complaint to
delete any claims based on the Second FOIA Request.
On September 29, 1998, the court granted defendants' motion for
partial summary judgment as to the First FOIA Request. The court
also ordered plaintiffs to file inter alia a praecipe of
dismissal without prejudice as to the Second FOIA Request or an
explanation as to why dismissal without prejudice was not
appropriate. Plaintiffs complied with the court's order and filed
a praecipe of dismissal.
Plaintiffs then filed a motion to reconsider the order granting
partial summary judgment, proffering additional evidence in
support of their motion to reconsider. The court issued an order
requiring defendants to respond to the proffer of supplemental
evidence and also to state whether or not there were any
outstanding FOIA requests pending before DOS, DOD, or CIA.
Defendants responded by stating that there were no outstanding
requests pending before any governmental agencies but that one
document which was originally referred to other agencies for
review in connection with the Second FOIA Request actually
contained information which might
be responsive to the First FOIA Request. By letter dated December
18, 1998, the Defense Intelligence Agency ("DIA"), an agency
within DOD, informed plaintiffs that it was withholding the
document under FOIA Exemption 1, 5 U.S.C. § 552(b)(1). On January
29, 1999, the court denied plaintiffs' motion for
reconsideration, thus leaving only one remaining issue before
this court: whether DIA's withholding of this document under FOIA
Exemption 1 was proper and therefore requires that the court
grant its motion for summary judgment.
In a FOIA action, "the agency bears the burden of showing that
there is no genuine issue of material fact, even when the
underlying facts are viewed in the light most favorable to the
requester." Weisberg v. U.S. Department of Justice,
705 F.2d 1344, 1350 (D.C.Cir. 1983). In order to meet that burden, the
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." National Cable Television Assn.
v. Federal Communications Commission, 479 F.2d 183, 186
(D.C.Cir. 1973). In addition, even in the national security
context, the agency must show that reasonably segregable portions
of non-exempt information have been produced. Ray v. Turner
587 F.2d 1187, 1197 (D.C.Cir. 1978); 5 U.S.C. § 552(b). The court
reviews the claimed exemptions de novo.
5 U.S.C. § 552(a)(4)(B).
In order to meet its burden of proof, it is sufficient for the
agency to submit affidavits by individuals with personal
knowledge of the processing of the request. Weisberg v.
Department of Justice, 705 F.2d at 1351; Fed.R.Civ.P. 56(e).
This circuit has held that "if the affidavits provide specific
information sufficient to place the documents within the
exemption category, if this information is not contradicted in
the record, and if there is no evidence in the record of agency
bad faith, then summary judgment is appropriate without in
camera review of the documents." Hayden v. National Security
Agency, 608 F.2d 1381, 1387 (D.C.Cir. 1979); see Goland v.
Central Intelligence Agency, 607 F.2d 339, 352 (D.C.Cir. 1978).
In national security cases dealing with classified information,
"Congress has instructed the courts to accord `substantial
weight' to agency affidavits." Id. at 352, quoting S.Rep. No.
93-1200, 93rd Cong., 2d Sess. 12, 1974 U.S.Code Cong. & Ad. News,
FOIA Exemption 1 states that the provisions of FOIA do not
apply to matters that are "(A) specifically authorized to be kept
secret in the interest of national defense or foreign policy and
(B) are in fact properly classified pursuant to Executive order."
5 U.S.C. § 552(b)(1). Executive Order 12958 sets out a system of
procedures and bases for classifying national security
information. "Information may not be considered for
classification unless it concerns . . . (c) ...