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BILLINGTON v. DEPARTMENT OF JUSTICE
September 30, 1999
GAIL G. BILLINGTON, PLAINTIFF,
DEPARTMENT OF JUSTICE, DEFENDANT.
The opinion of the court was delivered by: Lamberth, District Judge.
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.
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
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
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
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).
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
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 ...