The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiffs are Robert G. Wright, Jr., a FBI Special Agent based in Chicago, and John Vincent, a retired FBI Special Agent, who were both members of the FBI's Counter-Terrorism Task Force. Plaintiffs were denied permission, pursuant to the FBI's prepublication review policy, to publish certain writings critical of the FBI's counter-terrorism efforts. They bring these separate lawsuits against the Defendant, Federal Bureau of Investigation ("FBI"). Vincent has also named the Department of Justice as a Defendant.*fn1 Both Plaintiffs allege the same causes of action: that Defendants violated the First Amendment (Count I), 28 C.F.R. § 17.18 (the FBI's prepublication review regulation) (Count II), and the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A), (B), and (D) (Count III). Plaintiffs both seek: 1) a declaratory judgment that Defendants' refusal to grant them permission to publish their writings was unlawful; 2) an injunction prohibiting Defendants from continuing to refuse them permission to publish their writings; and 3) attorneys' fees and costs.
This matter is before the Court on Defendants' Motions for Summary Judgment and Plaintiffs' Cross Motions for Summary Judgment in both cases.*fn2 Upon consideration of the Motions, Oppositions, Replies, and the entire record herein, and for the reasons stated below, Plaintiffs' Motions are denied, and Defendants' Motions are denied with respect to Plaintiffs' First Amendment Claims, and granted with respect to Plaintiffs' claims under 28 C.F.R. § 17.18 and the APA.
Upon joining the FBI, Plaintiffs signed an agreement requiring them to seek prepublication review from the Office of Public and Congressional Affairs ("OPCA") of certain information before disclosing it publicly. The agreement states: as consideration for employment, I agree that I will never divulge, publish, or reveal . . . to any unauthorized recipient without official written authorization by the Director of the FBI or his delegate, any information from the investigatory files of the FBI or any information relating to material contained in the files, or disclose any information or produce any material acquired as a part of the performance of my official duties or because of my official status . . . I agree to request approval of the Director of the FBI in each such instance by presenting the full text of my proposed disclosure in writing . . . at least thirty (30) days prior to disclosure. I understand that this agreement is not intended to apply to information which has been placed in the public domain . . . . Defs.' Vincent Mot. Summ. J., Ex. 3.
In furtherance of this employment agreement, the FBI developed its prepublication review policy, which is mandatory for all current and former FBI employees. Its purpose is to "identify information obtained during the course of an individual employee's employment/work with the FBI, the disclosure of which could harm national security, violate federal law, or interfere with the law enforcement functions of the FBI." Defs.' Vincent Mot., Ex. 1, Bolthouse Decl. ¶ 8.
The FBI's prepublication review policy and procedures are set forth in the FBI's Manual of Administrative Operations and Procedures ("MAOP") Part I, Sections 1-24. See id., Ex. 18. Pursuant to the policy, an employee or former employee who wishes to disclose information obtained during the course of his or her employment with the FBI, must first obtain the Bureau's permission. To do so, the individual must submit to the FBI the information he or she wishes to disclose in written format prior to disclosing it.
The FBI "endeavors to complete the prepublication review process within 30 business days from the date of receipt although additional time may be required depending upon the complexity of the submission." Id., Ex. 1, Bolthouse Decl. ¶ 9; see also id., Ex. 18, MAOP Part 1, Section 1-24(4)(a)(1) ("The Bureau will endeavor to review the material in a timely manner but disclosure is not authorized until the review is complete."); id. at 4(a)(2)(b) (OPCA will "prepare the FBI response to each request for prepublication review not later than 30 workdays after the request and all related materials are received by the FBI").
At the time Plaintiffs submitted their writings, the prepublication review process utilized a panel comprised of one member from each of the FBI's five divisions. Each panel member would read the submissions and, through either group meetings or individual reports, identify matters which he or she thought could not be published. The MAOP requires that the panel "either authorize disclosure in full or provide written objections to specific portions (by page and paragraph number) specifying why the FBI should withhold permission to disclose," id. at 4(a)(3)(d), and that "[i]f a panel objects to disclosure of any portion of a work, OPCA shall notify the requester that the FBI withholds permission to disclose or publish the portions to which the board has objected and request such modifications as may be necessary," id. at 4(a)(4).
The prepublication review policy provides that the FBI may request the assistance of "personnel from other agencies or entities if the work contains or relates to matters under the cognizance of or involves the expertise of such agencies or entities." Id. at 4(a)(3)(c).
Pursuant to the prepublication review policy, Wright sought permission to publish: 1) his answers from an interview with New York Times reporter Judith Miller; 2) his five-hundred page manuscript ("Fatal Betrayals manuscript") about an investigation ("Vulgar Betrayal investigation") into known terrorist threats against United States national security and the FBI's efforts to thwart that investigation; 3) a 38 page complaint filed with the DOJ, Office of Inspector General ("OIG"), titled "Dereliction of Duty by the Federal Bureau of Investigation in Failing to Investigate and Prosecute Terrorism and Obstruction of Justice in Retaliating Against Special Agent Robert G. Wright, Jr."; and 4) a 113 page complaint to be filed with the DOJ, OIG, titled "Whistleblowing Retaliation by the Federal Bureau of Investigation against Special Agent Robert G. Wright, Jr." (referred to together herein as OIG complaints). Vincent sought permission to publish only his answers from his interview with Judith Miller.
Plaintiffs both worked on the Vulgar Betrayal investigation, which uncovered a money laundering scheme in which United States-based members of the HAMAS terrorist organization were using nonprofit organizations to recruit and train terrorists and fund terrorist activities in the United States and abroad. Wright Decl. ¶ 3. The Vulgar Betrayal investigation ultimately resulted in the FBI's seizure of $1.4 million in funds which were targeted for terrorist activities.*fn4 The seized funds were linked directly to Saudi businessman Yassin Kadi, who was later designated by the Government as a financial supporter of Osama Bin Laden. Plaintiffs' submissions were highly critical of the FBI's handling of the Vulgar Betrayal investigation and other FBI operations prior to September 11, 2001.*fn5
Wright submitted his Fatal Betrayals manuscript for prepublication review in the beginning of October 2001.*fn6 In the beginning of January 2002, the FBI informed him that about 18% of the manuscript would require modifications because it contained "classified information; information containing sensitive investigative material and information protected by the Privacy Act." Defs.' Wright Mot., Ex. 1, Bolthouse Decl. at ¶ 5(d). In accordance with the FBI's suggestions, Wright edited and re-submitted his materials, with the 18% either deleted or modified to address the Government's concerns. In support of his revisions, Wright submitted three binders full of endnotes, which he alleges provided a public source of information for each of the passages to which Defendants had objected.*fn7
On November 13, 2001, Wright submitted his OIG complaints to the OPCA for prepublication review. On January 7, 2002, the OPCA responded, taking issue with only 4% of the first document and 6% of the second. Again, on January 18, 2002, Wright re-submitted the documents with deletions and edits.
In March 2002, New York Times reporter Judith Miller submitted to Wright a series of written questions concerning his allegations about the FBI's mishandling of the Vulgar Betrayal investigation. She gave Vincent a similar series of questions. Miller also interviewed FBI officials, including Wright's supervisor, about Wright's charges against the agency in March of 2002. On March 31, 2002, both Wright and Vincent submitted to the OPCA their proposed answers to Miller's questions for prepublication review.
On May 10, 2002, the day after Wright filed suit in this Court, the FBI responded separately to Wright and Vincent regarding all of their submissions. The FBI indicated to both of them that, as a result of its review and guidance from the U.S. Attorney's Office for the Northern District of Illinois,*fn8 their submissions all contained information regarding open investigations, matters occurring before a grand jury, and information relating to law enforcement techniques and other sensitive information. According to the FBI, the protected information was so intertwined with other material in the submissions, that they could not be amended or segregated so as to be suitable for publication.*fn9 The FBI therefore reversed its prior position and denied Wright permission to publish any of the materials he submitted, and issued a blanket denial as to Vincent's interview answers submission.
In early June 2002, both Wright and Vincent appealed these decisions to the FBI Director, Robert Mueller, and their appeals were denied.
On November 7, 2002, and January 6, 2003, respectively, Plaintiffs Wright and Vincent appealed to the Office of the Deputy Attorney General pursuant to 28 C.F.R. § 17.18(i). On December 19, 2002, and January 17, 2003, respectively, Deputy Attorney General David Margolis responded, indicating that an appeal to his office, which handled appeals of FBI decisions prohibiting disclosure of classified information, was inappropriate because "no classified information" was contained in Plaintiffs' submissions.
Approximately 15 months later, the FBI changed its position yet again. On October 31, 2003, more than two years after Wright first submitted the Fatal Betrayals manuscript for prepublication review, the FBI sent him a letter explaining that "following a request from a Congressional committee for the [manuscript] another review had been conducted . . . and that it had been determined that Chapters 1-4 (inclusive)" and parts of Chapter 7 could be published. Def.'s Wright Mot. at 8. The FBI still prohibited publication of Chapters 5-6 and 8 through 27.
On December 22, 2003, approximately one year and seven months after its blanket denial of Vincent's request, the FBI sent him a letter stating that the answers to many of the interview questions previously submitted (2-6; 8-9; 11-14; 16; 18-19; and 21) could be disclosed in their entirety, and that the answers to questions 15 and 17 could be disclosed in part. On May 4, 2004, the FBI granted Vincent permission to publish the response to interview question 15 in full. The FBI continued to prohibit publication of 5 of Vincent's interview answers.
On February 5, 2004, the FBI sent Wright a letter advising him that it had conducted a re-review of his answers to Judith Miller's interview questions and had determined that answers 2-6, 8, 11-13, 15-16, 18-19, 21, 25-26 and parts of 1, 9, and 14 could be published. Id. at 9.
Finally, on March 25, 2004, the FBI sent Wright a letter stating that his OIG complaints could be submitted to the DOJ, OIG without the need for prepublication review, but that ...