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American Civil Liberties Union, and American Civil Liberties Union Foundation v. Department of State

July 23, 2012

AMERICAN CIVIL LIBERTIES UNION, AND AMERICAN CIVIL LIBERTIES UNION FOUNDATION PLAINTIFFS,
v.
DEPARTMENT OF STATE, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiffs, the American Civil Liberties Union and American Civil Liberties Union Foundation (together, the "ACLU"), bring this Freedom of Information Act ("FOIA") action against Defendant, the United States Department of State (the "State Department"), seeking the disclosure of twenty-three embassy cables concerning this nation's foreign affairs. There are now two motions before the Court: the State Department's [17] Motion for Summary Judgment and the ACLU's [18] Cross-Motion for Summary Judgment. In a nutshell, the State Department claims that it has properly withheld information under FOIA Exemption 1, a tool available to agencies to shield national security and other sensitive information from public disclosure. The ACLU counters that the State Department cannot rely on Exemption 1 in this case because the embassy cables are purportedly already in the public domain after being published by third-party WikiLeaks and because the State Department has allegedly acknowledged the cables' authenticity. Upon careful consideration of the parties' submissions, the relevant authorities, and the record as a whole, the Court concludes that the State Department's withholdings are justified.

Accordingly, the State Department's [17] Motion for Summary Judgment shall be GRANTED and the ACLU's [18] Cross-Motion for Summary Judgment shall be DENIED.

I. BACKGROUND

The ACLU submitted a FOIA request to the State Department on April 12, 2011, requesting the disclosure of twenty-three embassy cables specifically identified by date, subject, originating embassy, and unique message reference number. See Def.'s Stmt. of Material Facts Not in Dispute, ECF No. [17-1] ("Def.'s Stmt."), ¶¶ 1-2.*fn1 The ACLU brought this action on June 9, 2011 after the State Department did not promptly produce the records. See Compl. for Injunctive Relief, ECF No. [1]. Once the State Department entered an appearance, the parties agreed to postpone further proceedings while the agency completed its search and production. See Joint Status Report, ECF No. [11]; Def.'s Unopposed Mot. to Extend Production Deadline, ECF No. [12]. The State Department ultimately located all twenty-three embassy cables requested by the ACLU.*fn2 See Def.'s Stmt. ¶¶ 4-5. On October 21, 2011, it produced eleven of the embassy cables with partial withholdings and withheld the remaining twelve cables in full, citing FOIA Exemptions 1, 6, and 7 as the bases for non-disclosure. See Decl. of Sheryl L. Walter, ECF No. [17-2] ("Walter Decl."), Ex. 5 (Ltr. from A. Galovich to B. Wizner dated Oct. 21, 2011) at 1. The twenty-three embassy cables cover a range of sensitive subjects, including investigations of individuals suspected of acts of terrorism, bilateral relations with foreign nations, and military operations. See Def.'s Stmt. ¶ 9.

Following the State Department's production, the parties briefed the pending cross-motions for summary judgment. See Mem. in Supp. of Def.'s Mot. for Summ. J., ECF No. [17] ("Def.'s [17] Mem."); Mem. in Supp. of Pls.' Opp'n to Def.'s Mot. for Summ. J. and Cross-Mot. for Summ. J., ECF No. [18] ("Pls.' [18] Mem."); Def.'s Reply Mem. in Supp. of Mot. for Summ. J. and in Opp'n to Pls.' Cross-Mot. for Summ. J., ECF No. [20]; Pls.' Reply Mem. in Supp. of Pls.' Cross-Mot. for Summ. J., ECF No. [22]. The motions are fully briefed and ripe for adjudication. In an exercise of its discretion, the Court finds that holding oral argument would not be of assistance in rendering a decision. See LCvR 7(f).

II. LEGAL STANDARD

Congress enacted FOIA to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (quotation marks omitted). However, Congress remained sensitive to the need to achieve balance between these objectives and the potential that "legitimate governmental and private interests could be harmed by release of certain types of information." Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc) (quotation marks omitted), cert. denied, 507 U.S. 984 (1993). To this end, FOIA "requires federal agencies to make Government records available to the public, subject to nine exemptions for categories of material." Milner v. Dep't of Navy, __ U.S. __, 131 S. Ct. 1259, 1261-62 (2011). Despite the availability of such exemptions, "disclosure, not secrecy, is the dominant objective of the act." Rose, 425 U.S. at 361. For this reason, the "exemptions are explicitly made exclusive, and must be narrowly construed." Milner, 131 S. Ct. at 1262 (quotation marks and citation omitted).

Summary judgment is proper when the pleadings, the discovery materials on file, and any affidavits or declarations "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). When presented with a motion for summary judgment in this context, the district court must conduct a "de novo" review of the record, 5 U.S.C. § 552(a)(4)(B), which "requires the court to ascertain whether the agency has sustained its burden of demonstrating that the documents requested . . . are exempt from disclosure," Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (quotation marks omitted). "Consistent with the purpose of the Act, the burden is on the agency to justify withholding requested documents," Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993), and only after an agency has proven that "it has fully discharged its disclosure obligations" is summary judgment appropriate, Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983). In ascertaining whether the agency has met its burden, the district court may rely upon agency affidavits or declarations. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). "If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." Am. Civil Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). In other words, "[u]ncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail." Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 509 (D.C. Cir. 2011).

III. DISCUSSION

The parties' cross-motions speak to the same overarching question: has the State Department properly withheld information from the twenty-three embassy cables? The Court answers this question in the affirmative. Here, the Court shall begin by explaining why it is satisfied that the State Department has properly invoked Exemption 1 as a justification for the non-disclosure of national security or other sensitive information contained in the embassy cables.*fn3 See infra Part III.A. Thereafter, the Court shall explain why it is unpersuaded by the ACLU's argument that public disclosure is warranted because the cables are purportedly already in the public domain and because the State Department has allegedly acknowledged their authenticity. See infra Part III.B. Before concluding, the Court shall explain why it is satisfied that the State Department has disclosed all reasonably segregable information, see infra Part III.C, and why the Court declines the ACLU's invitation to review the embassy cables in camera, see infra Part III.D.

A.The State Department Has Discharged Its Burden of Establishing That It Has Properly Invoked Exemption 1

Exemption 1 applies to materials 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 . . . are in fact properly classified pursuant to such Executive Order." 5 U.S.C. § 552(b)(1). In this case, the State Department relies upon Executive Order 13526, 75 Fed. Reg. 707 (Dec. 29, 2009) ("E.O. 13526"), which prescribes a uniform system for classifying and safeguarding national security information. To show that it has properly withheld information on this basis, the State Department must demonstrate that the information was classified pursuant to proper procedures and that the withheld information falls within the substantive scope of E.O. 13526. See Salisbury v. United States, 690 F.2d 966, 971-72 (D.C. Cir. 1982) (analyzing a predecessor to E.O. 13526). Stated somewhat differently:

Information can be properly classified under Executive Order 13526 if four requirements are met: (1) an original classification authority classifies the information; (2) the United States Government owns, produces, or controls the information; (3) the information falls within one or more of eight protected categories listed in section 1.4 of the Executive Order; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in a ...


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