Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

PUBLIC CITIZEN INC. v. DEPARTMENT OF STATE

May 18, 2000

PUBLIC CITIZEN INC., PLAINTIFF,
V.
DEPARTMENT OF STATE, ET AL., DEFENDANTS.



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

  MEMORANDUM OPINION

FACTS

Department of State Request

By letter dated April 17, 1998, Public Citizen requested State Department records, "issued or in use since October 22, 1997" that described the State Department's "current system" for managing "(i) word processing files containing documents such as letters, memoranda, reports, handbooks, directives, and manuals recorded on electronic media such as hard disks or floppy diskettes, (ii) and electronic mail messages that meet the definition of Federal records, and any attachments to the record messages." Letter from M. Tankersley to P. Shields, Grafeld Decl., Exh. 1. Public Citizen also requested "any disposition schedule submitted to [NARA] concerning the transfer or disposal of the electronic mail communications or word processing files described above" and any correspondence or other communications with NARA concerning the disposal of such records. Id. The State Department acknowledged receipt of the request by letter dated April 28, 1998, and indicated that the request would be processed on a first-in, first-out basis. Letter from J. Livornese to M. Tankersley, Grafeld Decl., Exh. 2. On May 7, 1998, the State Department sent a second letter notifying Public Citizen of the agency's date-of-request cut-off policy, i.e., it does not retrieve documents originating after the date of the requester's letter. Letter from J. Livornese to M. Tankersley, Grafeld Decl., Exh. 3.

On July 23, 1998, the State Department released eight documents in response to the April 17, 1998 FOIA request, but withheld thirty pages of one document which contained entries from the State Department's Records Disposition Schedule computer database, because those entries were classified "confidential" under Executive Order 12,958 and were exempt from disclosure under FOIA Exemption 1. 5 U.S.C. § 552 (b)(1). On September 4, 1998, the State Department notified Public Citizen that it had reviewed the withheld material and determined that 104 of the entries could be released, but 17 entries remained withheld under Exemption 1. Id. These 17 entries contained a description of records approved for disposition by NARA in schedules N1-59-91-18, N1-59-93-42, and N1-49-92-9 and the disposition period for the records. The 17 entries were not classified "confidential" when the State Department received Public Citizen's April 17, 1998 FOIA request.

On June 22, 1998, Public Citizen made a second (unrelated) FOIA request for records created between April 1, 1998 and November 1998 concerning the travel and appointment schedules of three State Department officials who negotiated the Multilateral Agreement on Investment, and concerning the schedules, minutes, and agendas from any meetings related to international investment issues. By letter dated July 1, 1998, the State Department notified Public Citizen that its second FOIA request was also subject to a date-of-request cut-off on retrieved documents. The State Department apparently released documents to Public Citizen in response to this request on August 3, 1999. See Defendants' Status Report, filed 12/15/99. The Court is not aware if any documents were withheld in response to the June 22, 1998 request. Nor has Public Citizen challenged any FOIA exemption that may have been claimed in connection with the June 22, 1998 request.

NARA Request

On October 6, 1998, Public Citizen sent a FOIA request to NARA seeking Department of State Records Schedules N1-59-95-4, N1-59-91-33, N1-59-93-42, and N1-59-92-9, and the appraisal memoranda for these schedules. On November 13, 1998, NARA released schedules N1-59-95-4 and N1-59-91-33 and their accompanying appraisal memoranda. NARA did not release the remaining schedules and appraisal memoranda because the agency had to consult with the State Department on the classification status of those records. NARA subsequently released portions of N1-59-93-42 and N1-59-92-9 and their respective appraisal memoranda, but upon advice of the State Department determined that the documents contained classified information and could not be released in their entirety. NARA is claiming exemption from disclosure under FOIA Exemption 1. 5 U.S.C. § 552 (b)(1)

USTR Request

By letter dated April 17, 1998, Public Citizen requested from USTR the same information that it sought in the April FOIA request to the State Department — records "issued or in use since October 22, 1997," describing USTR's current system for managing word processing files and e-mail messages, and any communication with NARA concerning the disposal of such, records. Letter from M. Tankersley to S. Harrison, Overton Decl., Exh. 1. On July 23, 1998, USTR informed plaintiff that it had located three documents. Letter from S. Harrison to M. Tankersley, Overton Decl., Exh. 2. It released two of the documents and withheld one in its entirety, claiming exemption from disclosure on the basis of the attorney work-product privilege under FOIA Exemption 5. See 5 U.S.C. § 552 (b)(5).

Public Citizen's original complaint challenged only (1) the State Department's use of a date-of-request cut-off in responding to FOIA requests, (2) the State Department's failure to release documents responsive to plaintiff's April 17, 1998 FOIA request to the State Department, and (3) the USTR's failure to release documents responsive to plaintiff's April 17, 1998 FOIA request to the USTR. Plaintiff amended its complaint in February 1999 to add claims regarding its June 22, 1998 FOIA request to the State Department and its October 6, 1998 FOIA request to NARA. The amended complaint added allegations that (1) the application of the State Department's date-of-request cut-off to the June 22, 1998 request was unlawful and (2) NARA's assertion of Exemption 1 to withhold two records disposition schedules and two appraisal memoranda was improper.

Defendants' motion to dismiss in part and for summary judgment, filed September 15, 1998, and plaintiff's motion for partial summary judgment, filed February 8, 1999, are directed at the original complaint only. Defendants' motion to dismiss and plaintiff's motion for partial summary judgment address Public Citizen's generic claim that the date-of-request cut-off is substantively and procedurally invalid. Defendants' motion for summary judgment addresses the State Department's decision to withhold 17 record entries under Exemption 1 in response to the April 17, 1998 request, and the USTR's decision to withhold a memorandum under Exemption 5 in response to the April 17, 1998 request. Plaintiff's motion for judgment on the pleadings, filed March 31, 1999, seeks to compel defendants to produce documents responsive to the June 22, 1998 request to the State Department and the October 6, 1998 request to NARA because, at the time the motion was filed, no documents had been produced in response to those requests. Defendants' motion for partial summary judgment, filed June 4, 1999, covers only the decision by NARA to withhold documents under Exemption 1 in response to the October 6, 1998 FOIA request. Plaintiff has also filed motions to strike the affidavits of Frank Machak and Geraldine Phillips, which were submitted by the State Department and NARA in support of the decision to withhold the NARA documents. Defendants have filed for a protective order to bar Public Citizen from taking discovery on whether the NARA documents were publicly released prior to classification.

ANALYSIS

I. DEPARTMENT OF STATE'S DATE-OF-REQUEST CUT-OFF

Public Citizen challenges the Department of State's policy of imposing a date-of-request cut-off on searches conducted pursuant to FOIA requests. The Department of State places the following conditions on FOIA searches:

The cut-off date for retrieving documents is the date of the requester's letter. Accordingly, no documents which originated after the date [the requester's] letter will be retrieved.
Only existing documents are subject to the Freedom of Information Act. The Act does not provide for the creation of documents, compilation of data, preparation of lists, analyses of events, etc. See Letter from J. Livornese to M. Tankersley, Grafeld Declaration, Exh. 3.

Plaintiff challenges the date-of-request cut-off generically and as applied to its April 17, 1998 and June 22, 1998 FOIA requests to the Department of State.

Public Citizen asserts that the date-of-request cut-off condition for processing FOIA requests is substantively invalid under FOIA, because it is not the least restrictive feasible condition and it imposes an unreasonable burden on FOIA requesters, who have a statutory right to release of all reasonably current records. Plaintiff argues in favor of a date-of-search cut-off as a more reasonable, less restrictive alternative. Plaintiff further contends that the cut-off condition is procedurally unlawful, because it is a substantive rule that was not published for notice and comment, as required by the APA, 5 U.S.C. § 553 (b).

The State Department argues in its motion to dismiss that Public Citizen's challenge to the cut-off policy must fail because (1) the claim is not ripe under the two-pronged test announced in Abbott Labs. v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); (2) the plaintiff lacks standing to challenge the cut-off condition as applied to the April 17, 1998 request, because it was not denied any documents and, therefore, suffered no injury as a result of the cut-off; and (3) even if the issue is ripe and Public Citizen has standing to raise it, the cut-off condition is valid under FOIA. The State Department further contends that (4) the FOIA statute specifically addresses the type of notice that is required, making general APA notice and comment rules inapplicable; or (5) alternatively, the cut-off is exempted from the public notice and comment requirements of the APA, because it is an internal agency procedure; (6) plaintiff received sufficient notice of the cut-off condition; and (7) the search conducted by the agency was reasonable.

Public Citizen responds in its summary judgment motion that the cut-off policy is justiciable because it has a pending FOIA request for State Department travel records, filed June 22, 1998, to which the cut-off has been applied. In addition, as a frequent FOIA filer, Public Citizen will continue to be "harmed" in the future if the cut-off is not struck down. Public Citizen argues that the cut-off is a substantive rule that affects its primary rights under FOIA and cannot be exempted from the APA notice and comment requirements.

A. Substantive Validity of the Date-of-Request Cut-off under FOIA

Both the adequacy of a search conducted in response to an individual FOIA request and the adequacy of an agency's general search methods are determined by a test of "reasonableness." McGehee v. Central Intelligence Agency, 697 F.2d 1095, 1101 (D.C.Cir. 1983) ("The same standard of reasonableness that has been applied to test the thoroughness and comprehensiveness of agency search procedures is equally applicable to test the legality of an agency rule establishing a temporal limit to its search effort."); Weisberg v. United States Dep't. of Justice, 705 F.2d 1344, 1351 (D.C.Cir. 1983) ("The adequacy of an agency's search is measured by a `standard of reasonableness,' and is dependent upon the circumstances of the case.") (citation omitted.) A "time-of-request cut-off" policy is only valid if "the limitation is consistent with the agency's duty to take reasonable steps to ferret out the requested documents." McGehee, 697 F.2d at 1101. The agency bears the burden of showing that "the time limitation placed on the search it undertakes in a particular case comports with its obligation to conduct a reasonably thorough investigation." Id.

In the summary judgment context, the moving party in a FOIA case must prove that no substantial material facts are in dispute and that judgment as a matter of law is warranted. Here the Department of State bears the burden of demonstrating that "no material fact relevant to the reasonableness of its use of a time-of-request cut-off date is in dispute and that the evidence established that the procedure employed was reasonable as a matter of law." Id. at 1102. In making its decision, this Court is entitled to rely on the affidavits of the agency, as long as the affidavits are "relatively detailed, non-conclusory, and not impugned by evidence . . . of bad faith on the part of the agency." Id. However, before the Court can make any ruling on the validity of the date-of-request cut-off under FOIA, plaintiff must have standing to challenge the cut-off and the issue must be ripe for adjudication.

B. Standing and Ripeness of Plaintiff's Challenge to Date-of-Request Cut-Off

A plaintiff has standing to bring suit when three elements are satisfied: (1) plaintiff has suffered "an injury-in-fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical"; (2) there is a causal connection between the alleged injury and conduct that is fairly traceable to the defendant; and (3) it is "likely, as opposed to merely speculative," that the injury will be redressed by a favorable decision. Lujan v. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.