The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
This action was filed pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. Plaintiff Sibel Edmonds seeks documents from the Federal Bureau of Investigation ("FBI") relating to her FBI employment, including her personnel file, her allegations of wrongdoing at the FBI, investigations related to her whistleblower allegations, her security clearance, and the investigation and/or adjudication of her security clearance. Defendant released 343 of 1,486 pages of responsive material and has filed a motion for summary judgment arguing that it has released all nonexempt information after a thorough search. Plaintiff challenges all withholdings and opposes the granting of summary judgment. Upon review of the pleadings, the entire record, and the relevant law, the Court grants defendant's motion except as to defendant's invocation of Exemption 5 and its claim of Exemption 2 as to a limited number of documents. With respect to these two issues, defendant must provide additional information to support its withholdings.
Plaintiff is a whistleblower who worked as a contract linguist for the FBI after the September 11, 2001 terrorist attacks. Between December 2001 and March 2002, plaintiff made numerous reports to FBI management about "serious problems, misconduct, security lapses, a breakdown in quality, and gross incompetence in the translation unit" where she worked. (Plaintiff's Opposition to Defendant's Motion for Summary Judgment ["Pl.'s Opp."] at 3.) In early March 2002, plaintiff reported her concerns to the FBI Office of Professional Responsibility ("OPR") and the Office of Inspector General ("OIG") at the Department of Justice ("DOJ"). ( Id. at 3-4.) Later that month her employment contract was terminated. ( Id. at 4.) In addition to this FOIA action, plaintiff filed a separate complaint contesting her termination and alleging violations of the Privacy Act, the Administrative Procedures Act, and the First and Fifth Amendments of the United States Constitution.*fn1 Her allegations have received substantial media and congressional attention. ( See Pl.'s Exs. 4, 5, 7-15, 18.)
By letter dated April 19, 2002, plaintiff requested documents relating to herself, her allegations of wrongdoing at the FBI, and investigations of persons related to her. Plaintiff made a second FOIA request on April 29, 2002, seeking information pertaining to her security clearance and the purported investigation and/or adjudication thereof. Her requests were denied the following month. (Am. Compl. ¶ 9.) Plaintiff's administrative appeals were also denied. (Id. ¶¶ 10-14.) In June 2002, after exhausting her administrative remedies, plaintiff filed this action alleging that she has been denied access to agency records responsive to her FOIA requests and demanding production of such documents. ( Id. ¶¶ 16-18.) This Court granted her claim for expedited processing of the requests, see Edmonds v. FBI, Civ. No. 02-1294, Order (Dec. 3, 2002), and following a December 13, 2002 status hearing, ordered defendant to produce all non-exempt documents, provide a Vaughn index describing the withheld documents, and file its motion for summary judgment. Edmonds v. FBI, Civ. No. 02-1294, Order (Dec. 13, 2002). At that time, the Court also ordered plaintiff to provide defendant with a list of uncontested withheld documents. Id.
By letter dated February 10, 2003, defendant released 343 pages of the 1,486 pages of responsive material. Withholdings were made pursuant to FOIA Exemptions 1, 2, 5, 6, 7(A), 7(C), 7(D), and 7(E) and Privacy Act Exemptions (j)(2), (k)(1), and (k)(2). To support its withholdings, defendant submitted the Declaration of David M. Hardy, Section Chief of the Record/Information Dissemination Section, Records Management Division at FBI Headquarters (the "Hardy Declaration"). In addition, along with the 343 pages released to plaintiff, defendant inserted Deleted Page Information Sheets ("DPIS's") to show where deleted or duplicated pages were withheld in their entirety and the basis for the various withholdings.
The responsive documents and DPIS's are numbered consecutively beginning with Edmonds-1 and ending with Edmonds-1486. Whenever an exemption is invoked to redact information in a document, that exemption is noted in the margin of the page. The only exception to this practice is that in each case where Exemption 1 is claimed, Exemption 5 is also claimed but may not be marked on the document. (Hardy Dec. ¶ 11.) Some of the withholdings are further segregated into coded subcategories. ( Id. ¶ 12.) Defendant has also presented for ex parte and in camera review an eighteen-page supplement to the Hardy Declaration and a detailed Vaughn index of 225 pages to further explain its withholdings pursuant to Exemptions 1 and 7(D). ( Id. ¶ 4.)
Plaintiff has not provided a list of uncontested withholdings, arguing that she cannot do so without a list or index of documents. (Pl.'s Opp. at 3.) Rather, on March 5, 2003, plaintiff's counsel advised defendant that plaintiff wished to challenge all of the withholdings. ( See Defendant Federal Bureau of Investigation's Motion for Summary Judgment ["Def.'s Mot."] Ex. 4). Thereafter, defendant filed the instant motion arguing that the declarations, coded material and classified index demonstrate that its withholdings are proper and that plaintiff's FOIA complaint should be dismissed.
I. FOIA: General Principles and Standard of Review
Under FOIA, an agency must disclose all records requested by "any person," 5 U.S.C. § 552(a)(3), unless the agency can establish that information falls within one of the nine exemptions set forth in the statute. See 5 U.S.C. § 552(b). These exemptions are exclusive, and should be narrowly construed. Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976). However, the Supreme Court has noted that the exemptions must be construed "to have a meaningful reach and application." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). An agency that withholds information pursuant to one of these exemptions bears the burden of justifying its decision. King v. United States Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987).
In reviewing an agency's invocation of an exemption, the Court must consider that in enacting FOIA, Congress aimed to strike a balance "between the right of the public to know what their government is up to and the often compelling interest that the government maintains in keeping certain information private, whether to protect particular individuals or the national interest as a whole." ACLU v. United States Dep't of Justice, Civ. No. 02-2077, 2003 WL 21152857, at *5 (D.D.C. May 19, 2003) (citing John Doe Agency, 493 U.S. at 152-53). Challenges to an agency's decision to withhold information are reviewed de novo. King, 830 F.2d at 217. See also 5 U.S.C. § 552 (a)(4)(B).
Summary judgment can be granted to the government in a FOIA case if "the agency proves that it has fully discharged its obligation under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester." Greenberg v. Dep't of Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998). The government must prove that "each document that falls within the class [of documents] requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted). The Court may award summary judgment solely on the information provided in affidavits or declarations when they describe "the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973); King, 830 F.2d at 217; ACLU, 2003 WL 21152857, at *5 ("Summary judgment may be granted based on an agency's affidavits if they contain 'reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.'") (citation omitted). Thus, summary judgment may be granted based on an agency's affidavit if it "enables the court to make a reasoned independent assessment of the claim[s] of exemption." Jones v. FBI, 41 F.3d 238, 242 (6th Cir. 1994) (citation omitted).
II. Adequacy of the Affidavit
Plaintiff argues that defendant has failed to meet its burden on summary judgment because of its failure to produce "an itemized public index that describes each record or withheld portion and gives a detailed explanation of the agency's grounds for withholding, correlating each exemption claimed with the particular record or portion to which it supposedly applies." (Pl.'s Opp. at 6.) However, "it is the function, not the form, of the index that is important" and the same end can be achieved through the submission of an affidavit and annotated documents. Keys v. United States Dep't of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987) (holding that declarations in conjunction with coded withholdings accomplish the purpose of a Vaughn index).
Affidavits submitted by a government agency to justify FOIA exemption claims must "strive to correct... the asymmetrical distribution of knowledge that characterizes FOIA litigation" to enable the district court "'to make a rational decision whether the withheld material must be produced without actually viewing the documents themselves.'" King, 830 F.2d at 218 (quoting Dellums v. Powell, 642 F.2d 1351, 1360 (D.C. Cir. 1980)). Affidavits achieve this purpose when they provide "reasonably specific detail" to demonstrate that the withheld information falls within the claimed exemption. Military Audit Project, 656 F.2d at 738.
As discussed below with respect to most of the claimed exemptions, the Court can make an informed decision as to whether the withheld material must be produced based on the public and classified affidavits, the coded documents, and the classified index. Specifically, the classified declaration and index enable the Court to fulfill its duty of ruling on the Exemptions 1 and 7(D) withholdings. Moreover, the public affidavit and the coded documents provide sufficient detail with respect to most of the remaining material withheld under other exemptions. In particular, the public affidavit and the coded documents provide an "adequate foundation" for the Court to affirm the soundness of withholdings under Exemptions 6, 7(C), and 7(A). King, 830 F.2d at 218. These documents also support defendant's claims pursuant to Exemption 2 on the pages marked Edmonds-823 and 1359 and pursuant to Exemption 7(E) on the pages marked Edmonds-1329, 1330-1346, 1361-1368. Thus, with limited exception,*fn2 the Court has been provided with an adequate basis to rule on virtually all of defendant's withholdings.
Exemption 1 protects from mandatory disclosure under FOIA matters that are "(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) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552 (b)(1). Information must be classified in accordance with the procedural and substantive requirements of the governing executive order in order to be withheld under Exemption 1. Lesar v. United States Dep't of Justice, 636 F.2d 472, 483 (D.C. Cir. 1980). Here, classification is governed by Executive Order 12958.
According to defendant, the material withheld pursuant to Exemption 1 meets the substantive requirements of the Executive Order because it consists of "intelligence sources or methods," E.O. 12958 § 1.5(c), and "reasonably could be expected to result in damage to the national security." E.O. 12958 § 1.2. (Def.'s Mem. at 9.) "Substantive review of classification decisions is quite deferential." Washington Post v. United States Dep't of Defense, 766 F. Supp. 1, 6 (D.D.C. 1991). The Court is to "accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." Military Audit Project, 656 F.2d at 738 (citation omitted). See also Salisbury v. United States of America, 690 F.2d 966, 970 (D.C. Cir. 1982). This is especially true "in a national security case, in which the agency possesses necessary expertise to assess the risks of disclosure," Schlesinger v. CIA, 591 F. Supp. 60, 67 (D.D.C. 1984), and judges "lack the necessary expertise to second guess... agency opinion." Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980). For, as recently recognized by this Circuit:
[T]he Supreme Court and this Court have expressly recognized the propriety of deference to the executive in the context of FOIA claims which implicate national security.... Moreover,... we have consistently deferred to executive affidavits predicting harm to the national security and have found it unwise to undertake searching judicial review.... Gardels v. CIA, 689 F.2d 1100, 1104 (D.C. Cir. 1982) ("Once satisfied that proper procedures have been followed and that the information logically falls into the exemption claimed, the courts need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith.")
Ctr. for Nat'l Security Studies v. United States Dep't of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003). Thus, in the absence of contradictory evidence, this Circuit has required "little more than a showing that the agency's rational is logical" to uphold an agency's classification decision. Washington Post, 766 F. Supp. at 7.
Despite the deference owed to the executive in the FOIA context when national security concerns are implicated, plaintiff argues that the Hardy Declaration is not sufficiently specific to justify granting summary judgment because it does not contain adequate descriptions of the withheld information or adequate justifications for the claimed exemptions. (Pl.'s Opp. at 3.) As explained by the Hardy Declaration, however, "public disclosure of the information contained in the classified and withheld portions of the[ ] documents [responsive to plaintiff's request] would reveal information about an intelligence activity, source or method and would have a negative impact on the FBI's ability to effectively collect intelligence information and would seriously damage the national security interests of the United States." (Hardy Decl. ¶ 18.) Moreover, though defendant "is unable in its public declaration to provide complete descriptions of the documents, or detailed explanations justifying withholdings, without revealing the very information it seeks to protect," (Memorandum of Law in Support of Defendant's Motion for Summary Judgment ["Def.'s Mem."] at 3-4), it has provided to the Court ex parte and in camera extensive classified documents to support its Exemption 1 claims, including the eighteen-page Supplemental Classified Declaration of David M. Hardy (the "classified declaration") and a 225-page document-by-document Vaughn index identifying the specific information withheld pursuant to Exemption 1.*fn3 The classified declaration also provides additional details regarding confidential source information withheld under Exemption 7(D). (Def.'s Mem. at 3-4.) *fn4
After reviewing the extensive confidential material submitted by defendant, the Court agrees that this is one of those "occasion[s] when extensive public justification would threaten to reveal the very information for which a FOIA exemption is claimed." Lykins, 725 F.2d at 1463. The confidential index "describe[s] the withheld information and the justification for withholding [pursuant to Exemption 1] with reasonable specificity." Fitzgibbon v. United States Secret Serv., 747 F. Supp. 51, 55 (D.D.C. 1990). As required by this Circuit, it
(1) identif[ies] the document, by type and location in the body of documents requested; (2) note[s] that Exemption 1 is claimed; (3) describe[s] the document withheld or any redacted portion thereof, disclosing as much information as possible without thwarting the exemption's purpose; (4) explain[s] how this material falls within one or more of the categories of classified information authorized by the governing executive order; and (5) ...