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November 29, 1999


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


This matter returns to the Court on plaintiff Ellen W. Schrecker's and defendant United States Department of Justice's third set of cross-motions for summary judgment. Based upon the parties' motions 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 Ellen Schrecker, a history professor and author, commenced this action under the Freedom of Information Act, 5 U.S.C. § 552, ("FOIA"), seeking documents relating to Gerhart Eisler and Clinton `Jencks, who were subjects of Justice Department investigations during the McCarthy era. Eisler was a German communist who lived in the United States from the late 1930s or early 1940s until 1949. Jencks was an official of the Mine, Mill and Smelter Workers International Union in New Mexico who was indicted by the Justice Department for violations of the Taft-Hartley Act.

A detailed history of this litigation appears in this Court's prior opinion. See Schrecker v. United States Dep't of Justice, 14 F. Supp.2d 111, 113 (D.D.C. 1998) (denying defendant's motion for summary judgment; granting and denying in part plaintiff's motion for summary judgment). After two rounds of briefing on dispositive motions, this Court ordered the defendant to reprocess all information withheld in response to plaintiff's FOIA request. Subsequently, on August 28, 1998, pursuant to a Stipulation and Scheduling Order, the parties agreed that after reprocessing was completed, and due to the volume of documents involved in this case, plaintiff would select 100 sample pages for which defendant would prepare Vaughn indices. Accordingly, the present chapter in this protracted litigation concerns whether the defendant's withholdings from these 100 sample pages are properly justified.

II. The Freedom of Information Act & Standard of Review

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 Manu. Ass'n v. Weinberger, 411 F. Supp. 576, 578 (D.D.C. 1978), 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.

When an agency declines to produce requested documents, it must demonstrate that the claimed exemption applies. 5 U.S.C. § 552(a)(4)(B). To that end, agencies must submit Vaughn indices that adequately describe the withheld information and explain how the particular exemption is relevant. Founding Church of Scientology v. Bell, 603 F.2d 945 (D.C.Cir. 1979); Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973). Any reasonably segregable portions of requested records must be disclosed once the exempt portions have been redacted, Oglesby v. United States Dep't of the Army, 79 F.3d 1172, 1176 (D.C.Cir. 1996). In addition, district courts are required to consider segregability issues even when the parties have not specifically raised such claims. Trans-Pacific Policing Agreement v. United States Customs Serv., 177 F.3d 1022, 1027 (D.C.Cir. 1999).

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).

Plaintiff presents a host of challenges to the defendant's Exemption 1 withholdings of classified documents that are more than 25 years old. First, plaintiff claims that Executive Order 12958 mandates that the FBI must release such older documents because they do not meet the prerequisites for exemption from declassification. Specifically, plaintiff takes issue with the memorandum to the President submitted by Attorney General Janet Reno that seeks exemption for FBI administrative and investigatory records. She claims that the memorandum fails to describe the "specific file series of records for which a review or assessment has determined that the information within those files series almost invariably falls within one or more of the exemption categories . . . and which the agency proposes to exempt from automatic declassification." Id. at ยง 3.4(c). In addition, plaintiff asserts that no review or assessment ever took place and that the proffered explanations inadequately describe a nexus with national security concerns. Moreover, plaintiff claims that the memorandum is procedurally flawed, as various markings, such as the date for declassification, do ...

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