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STUDENTS AGAINST GENOCIDE v. DEPARTMENT OF STATE

May 25, 1999

STUDENTS AGAINST GENOCIDE (SAGE), ET AL., PLAINTIFFS,
v.
DEPARTMENT OF STATE, ET AL., DEFENDANTS.



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.

I. BACKGROUND

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.

II. DISCUSSION

A. Legal Standard

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, 6285 (1974).

B. Analysis

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. ยง 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) ...


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