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BILLINGTON v. DEPARTMENT OF JUSTICE

September 30, 1999

GAIL G. BILLINGTON, PLAINTIFF,
v.
DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: Lamberth, District Judge.

      MEMORANDUM OPINION

This matter comes before the Court on Plaintiff Gail G. Billington's and Defendant United States Department of Justice's cross-motions for summary judgment. After consideration of the memoranda in support of and in opposition to these motions, the entire record thereto, and the applicable law, plaintiff's motion will be denied and defendant's motion will be granted.

I. Background

Plaintiff Gail G. Billington commenced this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. In search of information about individuals associated with the National Caucus of Labor Committees ("NCLC"), she submitted 90 FOIA requests to 30 FBI field offices throughout the United States. Billington, 11 F. Supp.2d at 52.

Plaintiff Billington filed this lawsuit on February 21, 1992, contesting the FBI's compliance with her FOIA requests to 15 of the FBI offices. Judge George H. Revercomb granted the FBI's motion to stay proceedings on July 22, 1992, thus postponing deliberation in this matter until May 8, 1995. This matter was subsequently reassigned to this Court in July of 1993. From December 1994 to the present, the FBI and other agencies have released a vast quantity of documents pursuant to Billington's numerous requests and repeated challenges.

In October 1996, the parties consented to bifurcate this litigation into two stages. Specifically, the parties agreed that the first stage of the litigation would concern all documents, except for documents from four "Internal Security Files." As such, the first stage covered "referral agency" documents. Two years later, on August 12, 1998, this Court granted partial summary judgment to the defendant and to the plaintiff as to certain of these documents. Billington, 11 F. Supp.2d at 52. The second stage of the litigation concerns the documents from the four "Internal Security Files." Today, the Court disposes of plaintiff's claims concerning both the "referral agency" documents and the Internal Security Files documents, thus bringing to a close this protracted, seven-year litigation concerning over 40,000 documents.

II. The Freedom of Information Act & Standard of Review

The Freedom of Information Act, 5 U.S.C. § 552, as amended by the Freedom of Information Reform Act of 1986, §§ 1801-04 of Pub.L. No. 99-570, 100 Stat. 3207, 3207-48 (1986), provides citizens a statutory right of access to government information. As its basic premise, the Act establishes that government agency records should be accessible to the public. Accordingly, the FOIA instructs government agencies to disclose agency records, unless the requested records fall within one of the Act's nine enumerated exemptions. In this case, the defendant has justified nondisclosure under six of the nine exemptions. The Court will address plaintiff's challenges to defendant's withholdings by exemption group.

In a FOIA action, summary judgment is appropriate when the pleadings, together with the declarations, demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 313 (D.C.Cir. 1988) (mere conflict in affidavits insufficient to preclude summary judgment); Weisberg v. Department of Justice, 627 F.2d 365, 368 (D.C.Cir. 1980). FOIA matters are reviewed de novo, and the agency bears the burden of justifying nondisclosure. See 5 U.S.C. § 552(a)(4)(B); Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).

To sustain their burden of proof, agencies may rely on the declarations of their officials. Oglesby v. Department of the Army, 920 F.2d 57, 68 (D.C.Cir. 1990). Indeed, courts accord agency declarations a presumption of expertise, Pharmaceutical Manufacturers Ass'n v. Weinberger, 411 F. Supp. 576, 578 (D.D.C. 1976), provided the affidavits are clear, specific and adequately detailed, and set forth the reasons for nondisclosure in a non-conclusory manner. These declarations must be submitted in good faith. See Hayden v. NSA, 608 F.2d 1381, 1387 (D.C.Cir. 1979). Once a court determines that an agency's affidavits are sufficient, the court need not conduct any further inquiry into their veracity. Id. Accordingly, to preclude summary judgment, a plaintiff must demonstrate that a claimed exemption has been improperly asserted.

A. Exemption 1

Under Exemption 1, agencies may withhold information that is "(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) [is] in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). Classification of such materials is currently controlled by Executive Order 12958. Summary judgment is proper under Exemption 1 "only if (1) the agency affidavits describe the documents withheld and the justifications for nondisclosure in enough detail and with sufficient specificity to demonstrate that material withheld is logically within the domain of the exemption claimed, and (2) the affidavits are neither controverted by contrary record evidence nor impugned by bad faith on the part of the agency." Canning v. United States Dep't of Justice, 848 F. Supp. 1037, 1049 (citing King v. United States Dep't of Justice, 830 F.2d 210, 217 (D.C.Cir. 1987)).

Agencies satisfy this burden by submitting affidavits that describe the withheld materials and explain how such materials fall within the claimed exemption. King, 830 F.2d at 217. Courts attribute substantial weight to agency affidavits concerning the classified status of contested records. Salisbury v. United States, 690 F.2d 966, 970 (D.C.Cir. 1982) ("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."). Thus, if an agency's declarations are reasonably specific and appear to have been submitted in good faith, courts should not "conduct a detailed inquiry into whether it agrees with the agency's opinions." Halperin v. CIA, 629 F.2d 144, 148 (D.C.Cir. 1980).

1. Age of Documents

Plaintiff Billington asserts that the Department of Justice ("Department") improperly invoked Exemption 1 with respect to Internal Security Files documents that are more than 25 years old. She asserts that Executive Order 12958 requires declassification of such documents, unless the agency head specifically invokes an exemption. However, the provision that plaintiff relies on, which provides for such presumptive declassification, only becomes effective after April 17, 2000. See Exec.Order No. 12958, 60 Fed.Reg. 19825, § 3.4(a) (April 17, 1995). Accordingly, plaintiff's challenge in that respect must fail.

Plaintiff also argues that the agency's proffered justifications set forth in Special Agent Davis' March 1998 declaration are insufficient under the applicable standards noted above. Moreover, plaintiff asserts that the Department should be required to make a heightened showing of need to maintain classification because some of the documents at issue are more than 22 years old. Nevertheless, plaintiff fails to point to any specific documents for which she believes the Department's declarations are insufficient. The Court has ...


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