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Trea Senior Citizens League v. U.S. Dept. of State

United States District Court, District of Columbia

February 7, 2013


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John Stewart Miles, William Jeffrey Olson, William J. Olson, PC, Vienna, VA, for Plaintiff.

Fred Elmore Haynes, U.S. Attorney's Office, Washington, DC, for Defendant.


BERYL A. HOWELL, District Judge.

The plaintiff, TREA Senior Citizens League, brings this action under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, to challenge the response of the defendant, the U.S. Department of State (the " State Department" ), to the plaintiff's FOIA request for records pertaining to the Social Security Totalization Agreement between the United States and Mexico (the " Totalization Agreement" ). The State Department withheld certain records responsive to the plaintiff's request under exemptions to the FOIA, and the plaintiff contends that the exemptions claimed are insufficient and urges the Court to order the release of all withheld records. Pending before the Court is the defendant's renewed motion for summary judgment and the plaintiff's motion for in camera review.


The plaintiff is " a nonprofit, tax-exempt organization, and one of the largest nonpartisan seniors organizations in the nation." Pl.'s Mem. of P. & A. in Opp'n to Def.'s Mot. for Summ. J. (" Pl.'s Opp'n" ) at 1, ECF No. 32. On July 7, 2008, the plaintiff submitted a FOIA request to the defendant, seeking nineteen specific categories of State Department records " created between January 1, 2001 and [July 7, 2008] concerning or relating to the agreement between the United States and Mexico which would provide, in some manner, for the payment of U.S. Social Security benefits to Mexican nationals." Compl. Ex. A, ECF No. 1-1. This request also sought a fee waiver and expedited processing. See id. at 5-6. The Totalization Agreement in question was signed by the United States and Mexico in June 2004,

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but it has not yet taken effect because it has not been ratified by the United States Senate. See Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. (" Def.'s Mem." ) at 1, ECF No. 30; see also Decl. of William J. Olson (" Olson Decl." ) Ex. 1, ECF No. 32-3 (copy of the Totalization Agreement).[1] The defendant previously released the text of the Totalization Agreement, as well as a Diplomatic Note interpreting the agreement, in 2006 in conjunction with previous FOIA litigation. See Olson Decl. ¶ 8, ECF No. 32-2.

On April 17, 2009, the defendant acknowledged receipt of the plaintiff's request and notified the plaintiff that the defendant would begin processing the request and would notify the plaintiff " as soon as responsive material has been retrieved and reviewed." Decl. of Sheryl L. Walter, Dir. of the Office of Info. Programs & Servs. (" IPS" ) (" First IPS Decl." ) Ex. 5, at 1, ECF No. 30-1 (Apr. 5, 2012). This April 17, 2009 letter also notified the plaintiff that its fee waiver request was granted, but its request for expedited processing was denied. See id. at 3-4. On September 28, 2009, over fourteen months after the plaintiff originally submitted its FOIA request, the defendant notified the plaintiff that the agency had initiated searches of several State Department offices and that the plaintiff would be notified once " all of the search and review processes have been completed." First IPS Decl. Ex. 7, at 1, ECF No. 30-1. On February 17, 2010, the plaintiff, having not received any final determination from the defendant, attempted to file an administrative appeal, seeking administrative review of the defendant's failure to respond to the plaintiff's request. See First IPS Decl. Ex. 8, ECF No. 30-1. The defendant responded to this " appeal" on February 24, 2010, notifying the plaintiff that " [y]our FOIA request is not subject to administrative appeal at this time, since no specific material has been denied in response to the request." First IPS Decl. Ex. 9, at 1, ECF No. 30-1. The defendant's February 24, 2010 letter also notified the plaintiff that, under the FOIA, the plaintiff had constructively exhausted its administrative remedies and could file suit in federal court if it chose to do so. See id. Having constructively exhausted its administrative remedies, due to the defendant's failure to provide a final determination on the plaintiff's FOIA request within twenty working days, see 5 U.S.C. § 552(a)(6)(C), the plaintiff filed its Complaint in the instant action on August 24, 2010.

After the plaintiff initiated the instant action, the defendant sent nine more letters to the plaintiff between December 7, 2010 and March 15, 2012, which (1) notified the plaintiff each time the defendant had completed more searches in response to the plaintiff's request and (2) released non-exempt, responsive records identified during each search. See First IPS Decl. Exs. 10-18, ECF No. 30-1. After conducting searches of several State Department components,[2] the defendant located 124 unique

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documents that were responsive to the plaintiff's FOIA request. First IPS Decl. ¶ 181, ECF No. 30-1. Of these, forty-four records were released in full, forty-three were released in part with certain portions redacted, and twenty-one were withheld in full under FOIA Exemptions 1, 5, and 6. Id. ¶¶ 37-51, 181. The remaining sixteen documents were " referred to other government agencies for their review and direct reply to Plaintiff." Id. ¶ 181. In particular, the defendant referred one document to the Treasury Department, one document to the Department of Homeland Security (" DHS" ), two documents to the Government Accountability Office (" GAO" ), and twelve documents to the U.S. Social Security Administration (" SSA" ). See Def.'s. Ex. D at 1, ECF No. 30-4. Of these sixteen referred records, three were released in full, five were withheld in full, and eight were determined to be duplicates of previously released records. Id.; see also Notice Concerning Referred Documents at 1-2, ECF No. 21.[3]

The defendant initially filed a motion for summary judgment on April 6, 2012, see ECF No. 20, but later withdrew that motion, see ECF No. 29,[4] and subsequently filed a renewed motion for summary judgment, see Def.'s Renewed Mot. for Summ. J., ECF No. 30. After the defendant filed its renewed motion for summary judgment, the plaintiff filed a motion for in camera review of the nineteen documents withheld in whole or in part that remain contested. See Pl.'s Mot. for In Camera Review, ECF No. 33. The defendant's renewed motion for summary judgment and the plaintiff's motion for in camera review are currently pending before the Court. For the reasons discussed below, the Court denies the plaintiff's motion for in camera review and grants in part and denies in part the defendant's renewed motion for summary judgment.


Congress enacted the FOIA to promote transparency across the government. See 5 U.S.C. § 552; Quick v. U.S. Dep't of Commerce, Nat'l Inst. of Standards & Tech., 775 F.Supp.2d 174, 179 (D.D.C.2011). The Supreme Court has explained that the FOIA is " a means for citizens to know ‘ what their Government is up to.’ This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) (citation and internal quotation marks omitted). " The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978); see also SEC v. Am. Int'l Grp., 712 F.3d 1, 3 (D.C.Cir.2013) (" The public has a fundamental interest in ‘ keeping a watchful eye on the workings of public agencies.’ " (quoting Wash. Legal Found. v. U.S. Sentencing Comm'n, 89 F.3d 897, 905 (D.C.Cir.1996))). As a result, the FOIA requires federal agencies to release all records

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responsive to a request for production. See 5 U.S.C. § 552(a)(3)(A). Federal courts are authorized under the FOIA " to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Id. § 552(a)(4)(B).

This strong interest in transparency must be tempered, however, by the " legitimate governmental and private interests [that] could be harmed by release of certain types of information." United Techs. Corp. v. U.S. Dep't of Defense, 601 F.3d 557, 559 (D.C.Cir.2010) (internal quotation marks omitted); see also Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C.Cir.1992) (en banc). Accordingly, Congress included nine exemptions permitting agencies to withhold information from FOIA disclosure. See 5 U.S.C. § 552(b). " These exemptions are explicitly made exclusive, and must be narrowly construed." Milner v. Dep't of the Navy, __ U.S. __, 131 S.Ct. 1259, 1262, 179 L.Ed.2d 268 (2011) (citations and internal quotation marks omitted); see also Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C.Cir.2010) ( " FOIA allows agencies to withhold only those documents that fall under one of nine specific exemptions, which are construed narrowly in keeping with FOIA's presumption in favor of disclosure." (citations omitted)). When a FOIA requester properly exhausts its administrative remedies, it may file a civil action challenging an agency's response to its request. See 5 U.S.C. § 552(a)(4)(B); Wilbur v. CIA, 355 F.3d 675, 677 (D.C.Cir.2004). Once such an action is filed, the agency generally has the burden of demonstrating that its response to the plaintiff's FOIA request was appropriate. See, e.g., U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (citing 5 U.S.C. § 552(a)(4)(B)).

When an agency's response to a FOIA request is to withhold responsive records, either in whole or in part, the agency " bears the burden of proving the applicability of claimed exemptions." Am. Civil Liberties Union v. U.S. Dep't of Defense (" ACLU " ), 628 F.3d 612, 619 (D.C.Cir.2011). " The government may satisfy its burden of establishing its right to withhold information from the public by submitting appropriate declarations and, where necessary, an index of the information withheld." Am. Immigration Lawyers Ass'n v. U.S. Dep't of Homeland Sec., 852 F.Supp.2d 66, 72 (D.D.C.2012) (citing Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C.Cir.1973)). " 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." ACLU, 628 F.3d at ...

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