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Judicial Watch, Inc. v. Federal Bureau of Investigation

November 15, 2006

JUDICIAL WATCH, INC., PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION, DEFENDANT.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION AND ORDER

Judicial Watch, Inc. sued the Federal Bureau of Investigation under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), seeking disclosure of documents pertaining to the FBI's alleged role in flying members of the Saudi Royal family out of the United States in the days immediately after September 11, 2001. In response, the FBI produced to Judicial Watch an explanatory declaration and 220 pages of agency documents and records ---- many of which were partially or completely redacted and annotated with references to statutory exemptions ---- and then moved for summary judgment. Judicial Watch opposed the motion, contesting the validity of certain exemptions, asking for an immediate order directing the release of certain records, and arguing that the FBI disclosures did not fairly meet the requirements of the law. Because the FBI's disclosures in this case do not provide (1) an adequate description of each discrete redaction, (2) a specific citation to and explanation of the authority to refuse to disclose that is correlated with each discrete redaction, and (3) sufficient information to determine whether all reasonably segregable information has been segregated and disclosed, the FBI's motion for summary judgment will be denied and the FBI will be directed to file disclosures that fairly meet the requirements of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), Mead Data Central, Inc. v. Department of the Air Force, 566 F.2d 242 (D.C. Cir. 1977), and their progeny.

BACKGROUND

The October 2003 issue of Vanity Fair magazine contained an article entitled "Saving the Saudis" that raised questions about the role of the FBI, the State Department and the President in evacuating members of the extended Bin Laden and Saudi royal families in the days immediately following the attacks on the World Trade Center towers and the Pentagon on September 11, 2001. Shortly after the article appeared, Judicial Watch sent a FOIA request to the FBI, seeking access to records relating to the following subjects:

a. The decision to allow subjects of the Kingdom of Saudi Arabia, including but not limited to members of the House of Saud and/or members of the Bin Laden family, to leave the United States within 10 days of the terrorist attacks of September 11, 200[1].

b. Flights containing subjects of the Kingdom of Saudi Arabia, including but not limited to members of the House of Saud and/or members of the Bin Laden family, allowed to leave the United States between September 11, 2001 and September 15, 200[1].

c. A September 13, 2001 flight between Raytheon Airport Services, Tampa International Airport and Blue Grass Airport in Lexington Kentucky.

d. The decision to allow subjects of the United Kingdom of Saudi Arabia, including but not limited to members of the House of Saud and/or members of the Bin Laden family, to leave the United States by airplane after September 11, 2001 without being interviewed by the FBI.

e. All communication between the CIA, and/or FBI, and or FAA and/or the State Department and the Executive Office of the President (EOP) and/or the Office of the Vice President and/or any agent or representative of President George W. Bush concerning the decision to allow subjects of the Kingdom of Saudi Arabia, including but not limited to the members of the House of Saud and/or members of the Bin Laden family, to leave the United States by airplane after September 11, 2001.

f. A list of all subjects of [the] Kingdom of Saudi Arabia, including but not limited to members of the House of Saud and/or members of the Bin Laden family permitted to leave the United States between September 11th, 2001 and October 1, 2001.

(Compl., Ex. 1, FOIA Request, Oct. 8, 2003; see also Compl., Ex 2.) The Vanity Fair article was attached to the FOIA request and Judicial Watch told the FBI that it intended to disseminate any information it obtained from the request to members of the media. (Compl., Ex. 1.)

The FBI initially denied Judicial Watch's request in its entirety, asserting that the requested documents were entirely exempt from production as "records or information compiled for law-enforcement purposes" that, if produced, "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). Judicial Watch's appeal to the Department of Justice ("DOJ") was denied. Judicial Watch filed this suit seeking a declaratory judgment and an injunction prohibiting the FBI from continuing to withhold records responsive to its FOIA request.

In the course of this litigation, the FBI identified more than 200 pages containing material responsive to Judicial Watch's FOIA request and prepared an annotated production, withholding a substantial amount of information as to which it asserted various statutory exemptions. (See Def.'s Mot. for Summ. J., Decl. of Nancy L. Steward, Apr. 8, 2005 ("Steward Decl."), Ex. A.) With the annotated production, the FBI submitted a declaration providing general explanations for the types of information withheld. (See Steward Decl.)

The parties remain in dispute as to whether the FBI's annotated production and the accompanying Steward declarations together meet the requirements of specificity and segregability set forth in Vaughn and Mead Data, and whether the FBI has justified its exemptions under 5 U.S.C. ยงยง 552(b)(1) (relating to information that is classified by Executive Order to protect national interests in defense or foreign policy), (b)(5) (relating to inter-agency or intra-agency memoranda or letters that would not be available by law to a party other than an agency in litigation with the agency), (b)(6) (relating to personnel, medical or similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy), and ...


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