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Judicial Watch, Inc. v. United States Dep't of Commerce

September 30, 2004

JUDICIAL WATCH, INC., PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF COMMERCE, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge

MEMORANDUM OPINION

Before the Court are the defendant's Motions for Summary Judgment in Civil Action Nos. 95-133 [doc. 617], 97-289 [doc. 32], 97-2416 [docs. 42 and 47], and 96-2747 [doc. 36]. Upon consideration of the motion papers, the applicable law and the records in these cases, the Court will grant each of the defendant's motions for summary judgment.

BACKGROUND

The plaintiff, Judicial Watch, Inc. ("Judicial Watch"), filed these actions pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the defendant, the Department of Commerce ("DOC"). The DOC conducted a search pursuant to Judicial Watch's FOIA requests, a search which the Court found to be "inadequate, unreasonable and unlawful." Judicial Watch, Inc. v. Dep't of Commerce, 34 F. Supp. 2d 28, 45 (D.D.C. 1998). Having found this first search grossly inadequate, the Court ordered the DOC to conduct a "rigorous" second search in satisfaction of its FOIA duties and in compliance with a separate order issued that date. Judicial Watch, 34 F. Supp. 2d at 46.

Subsequent to the Court's 1998 Order, Judicial Watch made five separate FOIA requests, each lodged in a separate civil action as discussed herein. In Civil Action No. 95-133, Judicial Watch sought access to: all correspondence, memoranda, lists of names, applications, diskettes, letters, expense logs and receipts, diary logs, facsimile logs, telephone records, notes and other documents and things that refer or relate in any way to" certain trade missions involving former Secretary Brown from January 1993 through October 1995.

In Civil Action No. 97-289, Judicial Watch sought access to: all correspondence, memoranda, lists of names, applications, diskettes, letters, expense logs and receipts, diary logs, facsimile logs, telephone records, notes and other documents and things that refer or relate in any way to" certain trade missions involving former Secretary Brown from January 1993 through October 1996; information on certain identified individuals and organizations, as well as certain documents of former Secretary Ron Brown.

In Civil Action No. 96-2747, Judicial Watch sought access to: all correspondence, memoranda, lists of names, applications, diskettes, letters, expense logs and receipts, diary logs, facsimile logs, telephone records, notes and other documents and things that refer or relate in any way to" certain trade missions taken by the Department in 1995, work performed or responsibilities held by former Deputy Assistance Secretary John Huang, records concerning certain specified individuals, and other categories of records that would update certain of the Judicial Watch's prior FOIA requests to the Department.

In the request underlying the first motion for summary judgment in Civil Action No. 97-2416, Judicial Watch sought access to:

all documents produced by the DOC within the last twelve (12) months in response to any request, demand, or subpoena by any investigatory agency or body, including the United States Department of Justice (including any of its divisions, the Federal Bureau of Investigation, and its United States Attorneys for the District of Columbia or any other district), the United States Congress (and any of its committees), or any grand jury impaneled pursuant to federal law in any judicial district of the United States.

In the request underlying the second motion for summary judgment in Civil Action No. 97- 2416, Judicial Watch sought access to: all documents produced by the DOC within the last twelve (12) months in response to any request, demand, or subpoena by any investigatory agency or body, including the United States Department of Justice (including any of its divisions, the Federal Bureau of Investigation, and its United States Attorneys for the District of Columbia or any other district), the United States Congress (and any of its committees), or any grand jury impaneled pursuant to federal law in any judicial district of the United States..After its second document search, responsive to each of Judicial Watch's FOIA requests, the DOC produced some responsive documents and withheld others pursuant to various FOIA exemptions. The DOC moved for summary judgment in each case relative to Judicial Watch's specific FOIA requests and its specific FOIA withholdings. In each case, the DOC seeks an order approving the second search and its invocations of the FOIA exemptions.

Judicial Watch urges the Court to find the second search inadequate, including the DOC's use of FOIA exemptions to withhold certain classes of information and documents. It seeks a new round of discovery to further examine the DOC's search procedures and to locate other responsive documents that Judicial Watch claims the DOC did not produce.

Judicial Watch filed an opposition in each case, disputing the adequacy of the second search and the DOC's use of the various FOIA exemptions. In support of its oppositions, Judicial Watch submitted and principally relied upon the declaration of Sonya Stewart ("Stewart Declaration"), the DOC's FOIA Director at the time of both searches. Relying on the Stewart Declaration, Judicial Watch argues that the second search was inadequate because: (1) the same persons involved in the first search were active participants in the second; (2) rules and procedures used during the first search were re-utilized in the second search; and (3) the DOC is misusing various FOIA exemptions to unlawfully withhold responsive documents. For reasons stated in a separately issued memorandum opinion and order, the critical majority of the Stewart Declaration was stricken pursuant to Rules 12(f) and 56(e) of the Federal Rules of Civil Procedure. As such, the only portions of Judicial Watch's oppositions remaining before the Court are the legal arguments and factual assertions contained in the memoranda of law attached to its oppositions.

LEGAL STANDARD

Summary judgment is appropriate when the motion papers, affidavits, and other submitted evidence demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Whether a fact is "material" is determined in light of the applicable substantive law invoked by the action. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In light of the applicable substantive law, a "genuine issue of material fact" is a fact that is determinative of a claim or defense, and therefore, affects the outcome of the case. See Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248. The moving party bears the initial burden of demonstrating that no genuine issues of material fact are in dispute. Upon such a showing, the burden then shifts to the non-moving party to demonstrate that genuine issues of material fact are in dispute. The Court is precluded from weighing evidence or finding disputed facts and must draw all inferences and resolve all doubts in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).

DISCUSSION

For the DOC to prevail on its summary judgment motions, it must demonstrate that it, first, conducted an adequate search, one "reasonably calculated to uncover all relevant documents" and that, second, any withheld materials fall within a statutory exemption. Weisberg v. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983); Judicial Watch v. Dep't of Justice, 306 F. Supp. 2d 58, 64 (D.D.C. 2004). Judicial Watch contests both the search's adequacy and the propriety of withholdings under FOIA's seven exemptions.

I. Adequacy of the Second Search

When responding to a FOIA document request, an agency is obliged to conduct a good faith search that is reasonably calculated to uncover all documents responsive to that request. See United States v. Coast Guard, 180 F.3d 321, 325-26 (D.C. Cir. 1999); Campbell v. Dep't of Justice, 164 F.2d 20, 27 (D.C. Cir. 1998); Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The adequacy of a FOIA search, and the corresponding search burden, are casedependent. See Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990). Normally, an agency need only conduct a "reasonable" search, but in this case the DOC's burden was heightened as a result of its prior misconduct. See Judicial Watch, 34 F. Supp. 2d at 46. In its 1998 Memorandum Opinion, this Court found that [T]he DOC's search was inadequate, unreasonable and unlawful under the FOIA. The DOC failed to search entire offices that were likely, if not certain, to hold responsive documents. Documents were destroyed, discarded and given away, sometimes without being searched to determine if they were responsive, other times with full knowledge that they were responsive.

Judicial Watch, 34 F. Supp. 2d at 46. The Court ordered the DOC to conduct a second search "more restrictive and rigorous... than those ordinarily ordered as relief in a FOIA case" because the "egregious facts of this case make such requirements entirely necessary to ensure agency compliance with the law and this Court's orders." Id. The Court also found that Judicial Watch could conduct discovery "related to the destruction or removal of documents after its first FOIA request was filed, [which] may include, out of necessity, some inquiry into the creation and handling of documents." Id.

In a separate order issued that date, the Court also prescribed the following search rules:

(1) that the search be monitored by the Chief of Staff for the Secretary of the Department and the Department's OIG;

(2) that the new search include all bureaus and offices of the Department in which responsive documents were located in prior searches for records responsive to the requests in this case;

(3) that in bureaus or offices where no records were previously located a search would either be performed or the head of the office or bureau would sign a declaration as to why responsive records could not reasonably be expected to be located in a search;

(4) that detailed search instructions be given to each bureau and office as set forth in DOC's March 20, 1998 filing; and

(5) that each office searched submit one or more declarations from an individual with personal knowledge describing how the search was designed and performed and attesting to the fact that all responsive documents located were forwarded to a central location to then be processed for release.

As to the searches performed in Civil Action Nos. 95-133, 97-289 and 96-2747, the motion papers and supporting declarations demonstrate that the DOC engaged in an exhaustive second search that conformed with both its normal obligations under the FOIA and its obligations as heightened by this Court's 1998 orders. In fact, above and beyond what the Court ordered, the DOC issued the following search instructions:

(1) Bureaus and Offices required to engage in a new search had to have their search plans approved by the OIG as well as by Ms. Swiatek, the Search Coordinator for the Chief of Staff;

(2) a search checklist was provided to each office and bureau setting forth in detail the areas to be searched and the types of records to be examined and a signature on the completed checklist was required by each office and bureau;

(3) all Bureau heads were required to sign a search certification which included a commitment to retain all original responsive documents and not to destroy any documents pending termination of the lawsuit;

(4) all potentially responsive documents located were Bates-stamped and logged;

(5) copies of Judicial Watch's FOIA requests were again disseminated with the search instructions.

See Swiatek Search Decl., Exh. A. Senior officials from each Bureau were designated to supervise each Bureau's search, and Ms. Swiatek micro-managed the entire search operation. See id. at ¶ 5. Moreover, OIG conducted a quality control review as ordered by the Court, which included a review of the search procedures and random sample spot checks. See OIG Memorandum, Exh. 7. Where OIG found search discrepancies, those were investigated and, where necessary, new searches were conducted. See id. at ¶ 5-6; OIG Memorandum, Exh. 7 at ¶¶ 4-6. The second search resulted in the production of several thousand documents, which were processed and located in a central depository. Of the thousands of documents searched, processed and produced, the DOC was unable to locate one document thought to be responsive and cataloged its efforts and lack of success. See Swiatek Supp Decl. Outside contractors logged each processed document into a database for tracking purposes. See id. at ¶¶ 10-11. Offices where no responsive documents would reasonably be expected to be located did not conduct searches, and provided certifications and/or declarations verifying such. See id. at ¶¶ 7- 9; White Decl. ¶¶ 3-9; Bunton Decl. ¶¶ 3-7; Tillman Decl. ¶ 6. The DOC submitted twelve Vaughn declarations in explanation of the documents/information withheld from production pursuant to various FOIA exemptions. See Swiatek Search Decl., at ¶¶ 10-11. With an overabundance of caution and a palpable awareness of its prior failings, the DOC's search in these cases satisfy both the FOIA and this Court.

As to the searches conducted in Civil Action No. 97-2416, the Court finds no factual basis to support Judicial Watch's assertion that the DOC's search, or descriptions thereof, is conclusory, inadequate or otherwise raises doubts as to completeness or good faith. Rather, the DOC's recount, declarations and exhibits in support thereof, demonstrate a thoughtful, comprehensive search that satisfies both the legal requirements of the FOIA and the additional strictures imposed by this Court.

In support of the search in Civil Action No. 97-2416, the DOC submitted the declaration of Daniel Rooney, the Management Analyst of the Special Matters Unit at the DOC and Project Coordinator of these searches. The Rooney declaration details the manner in which the second search was conducted, the location of responsive documents, and, as discussed later, the statutory bases for withholding several classes of documents pursuant to various FOIA exemptions. As explained in the Rooney declaration the DOC kept documents responsive to Judicial Watch's requests in two locked rooms. See Rooney Decl. ¶ 2. In addition, Rooney issued a memorandum "requiring the production of all information related to the handling and processing of documents in response to these information requests from investigatory bodies." Rooney Decl. ¶ 2. His office then processed the responsive documents located in the two locked rooms as well as any documents produced in response to his department-wide memorandum. See id. This search is more than adequate. The DOC respond to the Court's 1998 orders with an exhaustive search of the two locked rooms where the responsive documents were maintained. Moreover, the DOC, knowing that the Court had authorized Judicial Watch to request discovery related to document handling, conducted at its own behest a further department-wide search for any other responsive documents related to the handling and processing of these documents.

In an attempt to controvert the DOC's contentions and submissions, Judicial Watch offers the declaration of Sonya Stewart to "establish" its claims. However, the Stewart Declaration, Judicial Watch's sole factual basis in support of the assertions in its briefs, does nothing to advance Judicial Watch's argument regarding the inadequacy of the search for absent the critical portions, which, by separate order issued this date, have been stricken as not conforming with the materiality, pertinence, and propriety requirements of Federal Rule of Civil Procedure 12(f), as well as the personal knowledge, admissibility and competency requirements of Federal Rule of Civil Procedure 56(e). Judicial Watch's opposition briefs alone are factually insufficient to overcome the DOC's demonstrations.

Even if the Court were to consider the stricken portions of the Stewart Declaration, they provide no factual basis capable of controverting the factual support mounted by the DOC. For example, the declaration of Pamela Swiatek, a search project coordinator capable of giving firsthand accounts of the search and production process via her personal knowledge of the circumstances, asserts that material that Stewart claims the DOC did not produce was eventually produced to the extent that it could be located, and, as to material that could not be located, the DOC properly detailed this material in the Vaughn Index. As another example, Stewart bases, her assertions of procedural inadequacy and mal-intent on the notes of another employee and alleged conversations between other employees to which she was not privy. Overlooking the hearsay problem, for which the Court struck these statement, the statements, taken in a light most favorable to Judicial Watch, are simply insufficient to overcome the personal knowledge-based and properly presented declarations submitted by the DOC. The other stricken portions of Stewart's declaration regarding purported substantive and procedural inadequacies are based on statements similarly lacking the personal knowledge and the requisite indicia of reliability necessary to combat the DOC's submissions.

Given the DOC's actions in these cases and Judicial Watch's failure to present submissions capable of controverting the volumes of factual support submitted by the DOC, Judicial Watch's request for further discovery into the adequacy of the DOC's search is denied. Judicial Watch has not shown the existence of a "substantial question" concerning the "substantive content of the affidavits relied upon by the agency." Military Audit Project v. Casey, 656 F.2d 727, 751 (D.C. Cir. 1981).

The Court finds that the DOC's actions adequately address the concerns of the court and the rights of Judicial Watch. The Court also finds that the DOC's submissions fully advise the Court of the scope and manner in which the second search was conducted, and evince completeness and good faith. The Court further finds that the commonalities in personnel and procedure in the first and second searches do not violate the Court's 1998 orders as neither the Court's orders nor its memorandum opinion impose rules regarding personnel or general procedural structure for the second search. Finally, having no reasonable basis in the instant cases upon which to import the failings of the first search into the second, the Court finds, on the instant record, the second search sufficient under the law.

II. FOIA Exemptions

When withholding documents pursuant to a FOIA exemption, an agency must show that the withheld documents fall within one of the statutory exemptions to FOIA. Weisberg, 705 F.2d at 1351. To satisfy its burden, an agency may submit affidavits and declarations describing the documents withheld and the statutory basis for the withholdings. See Judicial Watch, Inc. v. United States Postal Service, 297 F. Supp. 2d 252, 256 (D.D.C. 2004); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). For the sake of efficiency, the burden may be satisfied by submission of a "Vaughn Index" and supporting declarations, which are intended to provide a court with an adequate description of documents that are being withheld from production pursuant to a specified FOIA exemption and justification for the applicability of the exemption invoked. See Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979); Vaughn, 484 F.2d passim. Efficiency to the side, exemptions are not proper if based merely on "conclusory and generalized allegations." Vaughn, 484 F.2d at 826. 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 Custom Serv., 177 F.3d 1022, 1027 (D.C. Cir.1999).

A. Exemption 1

Pursuant to Exemption 1, an executive agency may prevent disclosure of documents that are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy" and "properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1); see Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980). Intelligence sources, both the individual human sources and their intelligence gathering methods, must be insulated from unnecessary revelation as such may lead to, at the least, embarrassment, and at the most, retribution. Blanketing this type of information, source and method, in a cloak of near absolute secrecy is critical to the United States' ability to deal with confidential agents in furtherance of national security. See Afshar v. Dep't of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983).

In light of courts' presumed lack of expertise in the area of national security and related disclosure interests, a reviewing court is prohibited from conducting a detailed analysis of the agency's invocation of Exemption 1. Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980). Review is de novo, but significant deference to an agency's decision is due. Washington Post. v. Dep't of Defense, 766 F. Supp. 1, 6-7 (D.D.C. 1991). Summary judgment may be granted on this issue "on the basis of agency affidavits [alone] if they contain reasonable specificity of detail rather than merely conclusory statements, and... they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Halperin, 629 F.2d at 148.

Here, in these cases, the DOC successfully maintains that documents withheld pursuant to Exemption 1 are proper and in accord with Executive Order 12958, 3 C.F.R. § 333 (1995). The DOC specifically maintains the following: The DOC, the Department of State, the CIA, the USTR, the DSCA and the DIA have determined that the information withheld is properly classified pursuant to Executive Order 12958, §1.5 (a), (b), (c), (d) and (e) because its disclosure would reveal military plans, weapons systems or operations, information regarding foreign governments, intelligence activities, sources or methods and foreign relations or activities of the United States, including confidential source information, and scientific, technological or economic matters related to national security. For Civil Action 97-2416, see Rooney Decl. ¶¶8- 18 & Exhibit B (DOC); Grafeld Decl. ¶¶ 61-14 (DOS); McNair Decl. ¶¶ 8(a), 10-12, 16-28 & Tab A (CIA); Harrison Decl. ¶¶ 6-10 (USTR); for Civil Action 97-289, see Swiatek Supp. Decl. ¶¶ 5-7 & Exh. A (DOC); Grafeld 2 Decl. ¶¶ 16-22 (DOS); Grafeld 3d Decl. ¶¶ 8-10 DOS); Briick Decl. ¶¶ 8-9 (CIA); Richardson Decl. ¶¶ 6-10 (DIA); for the second motion in Civil Action 97- 2416, see Grafeld 4th Decl. ¶¶ 31-35; for Civil Action 96-2747, see Swiatek 2d Supp. Decl. ¶¶ 5- 17 & Exhibit A (DOS); Grafeld 2d Decl. ¶¶ 16-22 (DOS); Grafeld 3d Decl. ¶¶ 8-10 (DOS); Briick 1st Decl. ¶¶ 8-9 (CIA); Briick 2d Decl. ¶¶ 9-11, 15-34 (CIA); Richardson Decl. ¶¶ 6-10 (DIA); Keltz 1st Decl. ¶¶ 8-17 & Exh. A (DSCA); Keltz 2 Decl. ¶¶ 11-21 (DSCA). Consistent with their classification authority, these departments have determined that public disclosure of this information, by itself or in the context of other information, would threaten national security, and that there is no reasonably segreable information to be released. See Executive Order 12958, § 1.2(a); §1.3; see also Rooney Decl. ¶¶ 8-18 & Exh. B. (DOC); Grafeld Decl. ¶¶ 6-14 (DOS); McNair Decl. ¶¶ 8(a), 10-12, 16-28 & Tab A (CIA); Harrison Decl. ¶¶ 6-10 (USTR); Swiatek Supp. Decl. ¶¶ 5-7 & Exh. A (DOC); Grafeld 2 Decl. ¶¶ 11-12, 18, 20, 22, 25 (DOS); Grafeld 3d Decl. ¶¶ 8-10 DOS); Briick Decl. ¶¶ 4, 6-9 (CIA); Richardson Decl. ¶¶ 3-5, 10 (DIA); Grafeld 4th Decl. ¶¶ 26, 36-38; Swiatek 2d Supp. Decl. ¶¶ 5-17, 36 & Exh. A.; Grafeld 2 Decl. ¶¶ 11-12, 18, 20, 22, 25; Grafeld 3 Decl. ¶¶ 8-10; Briick 1 Decl. ¶¶ 4, 6-9; Briick 2 Decl. ¶¶ 9-11, 15-34; Richardson Decl. ¶¶ 3-5, 10; Keltz 1 Decl. ¶¶ 8-17 & Exh. A.; Keltz 2 Decl. ¶¶ 11-21.

The DOC, DOS, the DSCA and the CIA have withheld classified information regarding foreign governments pursuant to Executive Order 12958, § 1.5(b) because disclosure would reveal information obtained in confidence from foreign governments necessary for the formulation of U.S. foreign policy and action, the disclosure of which would chill the willingness of foreign governments to disclose this type of information. See Rooney Decl. ¶11 & Ehx A; Grafeld Decl. ¶¶ 10-12, 14; McNair Decl., Tab A; Grafeld 2 Decl. ¶¶ 16-18 & Exh. A.; Briick Decl. ¶¶ 9, 25-27; Grafeld 4 Decl. ¶¶31-33; ...


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