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Muttitt v. Department of State

United States District Court, District of Columbia

March 4, 2013

Greg MUTTITT, Plaintiff,
v.
DEPARTMENT OF STATE, et al., Defendants.

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[Copyrighted Material Omitted]

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Kelly Brian McClanahan, National Security Counselors, Arlington, VA, for Plaintiff.

Kenneth Elliot Sealls, Jessica Beth Leinwand, U.S. Department of Justice, Washington, DC, for Defendants.

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MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

The plaintiff, Greg Muttitt, brings this action against the U.S. Department of State (the " State Department" ) pursuant to the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552. The plaintiff is an author who sought records from the State Department regarding the development of Iraq's energy policy and national hydrocarbon law, for the purpose of writing a book on those subjects.[1] He now challenges several aspects of the State Department's response to his five FOIA requests, including the propriety of the State Department's denial of the plaintiff's requests for a fee waiver and expedited processing, the adequacy of the State Department's search efforts, and the validity of the State Department's determinations to withhold certain responsive records in whole or in part. The State Department has moved for summary judgment on all of the plaintiff's remaining claims.

I. BACKGROUND

A. The FOIA Requests at Issue

This action arises out of five separate FOIA requests submitted by the plaintiff between April and November 2009 to the defendant, seeking various records from specific time periods between 2006 and 2009. The Court will discuss each of these requests seriatim.

1. Request # 1

The first such request (" Request # 1" ), submitted by letter on April 13, 2009, sought " [d]ocuments relating to advice by U.S. officials to the Iraq Ministry of Oil, on the subject of contracts with international oil companies, between September 1, 2007, and December 31, 2008." See Decl. of Margaret P. Grafeld (" Grafeld Decl." ) Ex. 1, at 1, ECF No. 34-3.[2] Request # 1 also sought a fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii).[3] See id. at 2. The plaintiff also requested, via a separate letter dated June 12, 2009, for Request # 1 to be processed on an expedited basis because he " need[ed] the information urgently for disseminating information, in order to inform the public concerning Federal Government activity." Grafeld Decl. Ex. 2, at 2. The defendant wrote to the plaintiff on July 7, 2009, acknowledging Request # 1 and notifying the plaintiff that his requests for a fee waiver and expedited processing were denied. See Grafeld Decl. Ex. 3, at 1, 3-4. On November 20, 2009, the plaintiff filed an administrative appeal of the State Department's " constructive denial of [his] FOIA request and its constructive denial of [his] request for expedited processing," Grafeld Decl. Ex. 5, at 2, though the State Department never responded to this appeal. Between October 15, 2010, and February 22, 2011, the State Department sent the plaintiff four letters, each of which notified him when searches of various agency components had been completed, how many responsive records were located in the search of each component, and which responsive records were being disclosed, in whole or in part. See Grafeld Decl. Exs. 8-11. In sum, the State Department

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located forty-two records responsive to Request # 1. See id.; see also Grafeld Decl. ¶¶ 11-14. Twelve of these responsive records were released in full, fifteen of them were released in part with certain portions redacted, and fifteen of them were withheld in full. See Grafeld Decl. Exs. 8-11.

2. Request # 2

The plaintiff's second request (" Request # 2" ) to the State Department, submitted by letter on June 19, 2009, sought the release of " [a]ll cable traffic to and from the U.S. Embassy in Baghdad, dated between 20 May 2006 and 15 June 2006, on the subject of the Iraq oil law." [4] Grafeld Decl. Ex. 12, at 1. Request # 2 also sought a fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) and expedited processing because the plaintiff " need[ed] the information urgently for dissemination, in order to inform the public concerning Federal Government activity." Id. at 1-3. On July 1, 2009, the State Department acknowledged the plaintiff's request via e-mail and sought further information about the nature of the book the plaintiff was planning to write with the information he obtained through his request.[5] See Grafeld Decl. Ex. 13, at 1. After receiving more information from the plaintiff, see Grafeld Decl. Ex. 14, the State Department notified the plaintiff via letter on July 7, 2009 that it was denying his requests for a fee waiver and expedited processing. See Grafeld Decl. Ex. 15, at 3-4. On August 15, 2009, the plaintiff filed a lengthy administrative appeal of the State Department's denial of his requests for a fee waiver and expedited processing, see Grafeld Decl. Ex. 16, but on October 28, 2009 the State Department notified the plaintiff via letter that it was affirming the denial of both requests, see Grafeld Decl. Exs. 18-19. On July 16, 2010, the State Department notified the plaintiff that it had located one document responsive to Request # 2, which it released in part. See Grafeld Decl. Ex. 23.

3. Request # 3

On July 23, 2009 the plaintiff submitted, via letter, his third FOIA request to the State Department (" Request # 3" ), which sought " [a]ll cable traffic to and from the U.S. Embassy in Baghdad, dated between February 6 and February 28, 2007, on the subject of the Iraq oil law." Grafeld Decl. Ex. 24, at 1. [6] Request # 3 likewise sought a fee waiver and expedited processing on the same grounds as those cited in Requests # 1 and # 2. See id. at 1-4. On October 28, 2009, the State Department acknowledged Request # 3 and notified the plaintiff that his requests for a fee waiver and expedited processing were denied. See Grafeld Decl. Ex. 25, at 1, 3-4. On November 20, 2009, the plaintiff submitted via e-mail an administrative appeal of " the State Department's constructive denial of [his] FOIA request and its constructive denial of [his] request for expedited processing," see Grafeld Decl. Ex. 28, at 2, though the State Department never responded to this appeal. By letter dated September 8, 2010, the State Department

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notified the plaintiff that it located nineteen records responsive to Request # 3. See Grafeld Decl. Ex. 30, at 1. One of those records was released in full, six of the records were released in part with redactions, and twelve of the records were withheld in full. See id.

4. Request # 4

On October 4, 2009, the plaintiff submitted his fourth request (" Request # 4" ) to the State Department, which sought " [a]ll releasable documents relating to the work of Meghan O'Sullivan in Iraq, between June 1, 2007 and October 1,2007." Grafeld Decl. Ex. 31, at 1. As the request explained, during this period of time Dr. O'Sullivan " was Presidential Envoy to Iraq" and " the primary purpose of her work was to press Iraqi politicians to achieve a set of ‘ benchmarks,’ which had been set out by the President and by Congress," including passage of the Iraqi hydrocarbon law. See id. at 1. The request specified that it was seeking, inter alia, " [e]mails to and from Dr. O'Sullivan." Id. at 1. Request # 4, like its predecessors, also sought a fee waiver and expedited processing. See id. at 1-6. On October 9, 2009, the State Department sent a letter to the plaintiff acknowledging Request # 4 and denying his requests for a fee waiver and expedited processing. See Grafeld Decl. Ex. 32, at 1, 3-4. Much like the previous requests, the plaintiff sent a letter to the State Department on November 20, 2009, appealing " the State Department's constructive denial of [his] FOIA request and its constructive denial of [his] request for expedited processing." See Grafeld Decl. Ex. 35, at 2. On December 2, 2009, the State Department informed the plaintiff via letter that it was affirming its decision to deny his request for expedited processing. See Grafeld Decl. Ex. 37, at 1. Between October 15, 2010 and February 17, 2011, the State Department sent the plaintiff three letters notifying him when searches of various agency components were completed and releasing any non-exempt, responsive material. See Grafeld Decl. Exs. 38-40. In sum, the State Department located twenty-eight records responsive to Request # 4. See id. One of these records was released in full, ten were released in part with redactions, and the remaining seventeen records were withheld in full. See id.; see also Def.'s Statement of Material Facts Not in Dispute (" Def.'s Facts" ) ¶ 38, ECF No. 34-2.

5. Request # 5

On November 11, 2009, the plaintiff submitted his fifth and final FOIA request to the State Department (" Request # 5" ), which sought " [d]ocuments on the subject of the Iraqi oil and gas (hydrocarbon) sector, relating to Vice President Biden's visits to Iraq on July 2-4 and September 15-16, 2009." Grafeld Decl. Ex. 41, at 1. This last request also sought a fee waiver and expedited processing. See id. at 1-5. On November 17, 2009, the State Department sent the plaintiff a letter acknowledging receipt of Request # 5 and denying his requests for a fee waiver and expedited processing. See Grafeld Decl. Ex. 42, at 1, 3-4. On December 21, 2009, the plaintiff sent an e-mail to the State Department, appealing the " constructive denial of [his] FOIA request" and the " constructive denial of [his] request for expedited processing." Grafeld Decl. Ex. 43, at 2. In a letter dated December 23, 2009, the State Department notified the plaintiff that it was affirming its decision to deny the plaintiff's request for expedited processing. See Grafeld Decl. Ex. 45. Between December 14, 2010 and February 17, 2011, the State Department sent the plaintiff three letters notifying him when the searches of various agency components had been searched and releasing any non-exempt, responsive records. See Grafeld

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Decl. Exs. 46-48. In sum, the State Department located four records responsive to Request # 5. See id. One of the documents was released in part with redactions and the other three were withheld in full. See id.; see also Def.'s Facts ¶ 40.

In total, the State Department located ninety-four unique documents responsive to the plaintiff's five FOIA requests. Fourteen of those documents were released to the plaintiff in full, thirty-three were released in part with redactions, and forty-seven were withheld in full. See Grafeld Decl. ¶ 206. [7]

B. District Court Proceedings

The plaintiff filed his Complaint in the instant action on February 5, 2010, while the State Department was still processing his five FOIA requests. See Compl., ECF No. 1. The plaintiff then filed an amended complaint on March 3, 2010. See First Am. Compl. (" FAC" ), ECF No. 10. The First Amended Complaint originally stated twenty-six separate causes of action against four federal agencies, including the State Department, but the scope of this action has narrowed significantly since then. On December 15, 2010 the plaintiff stipulated to the dismissal of all claims against the Department of Defense and the U.S. Central Command. See Stipulation of Dismissal with Prejudice, ECF No. 29. On January 24, 2011, the plaintiff likewise stipulated to the dismissal of all claims against the Department of the Treasury. See Stipulation of Dismissal, ECF No. 30.[8] On September 28, 2011, this Court dismissed Count 26 of the First Amended Complaint in response to a partial motion to dismiss filed by all four of the original defendants. See Muttitt v. U.S. Cent. Command, 813 F.Supp.2d 221, 231 (D.D.C.2011). On December 1, 2011, the plaintiff voluntarily dismissed Count 25 of the First Amended Complaint, which was pleaded against the State Department. See Stipulation of Dismissal with Prejudice, ECF No. 48. Finally, the plaintiff voluntarily agreed to dismiss Count 14 of the First Amended Complaint. See Def.'s Ex. 3, ECF No. 34-6. After all of these dismissals, there are nine claims remaining against the defendant State Department, all of which relate to the five specific FOIA requests discussed above. Currently pending before the Court is the State Department's motion for summary judgment on these nine remaining claims and a motion by the plaintiff to file additional evidence in opposition to the defendant's summary judgment motion. For the reasons discussed below, the Court grants in part and denies in part the defendant's motion for summary judgment and denies the plaintiff's motion for leave to file additional evidence.

II. LEGAL STANDARD

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."

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Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-72, 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). As a result, the FOIA requires federal agencies to release all records 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 Def., 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.

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 Def., 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 619. " Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘ logical’ or ‘ plausible.’ " Id. (internal quotation marks omitted) (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009)).

When a requester challenges an agency's response based on the adequacy of the search performed, " [t]o prevail on summary judgment ... the defending ‘ agency must show beyond material doubt ... that

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it has conducted a search reasonably calculated to uncover all relevant documents.’ " Morley v. CIA, 508 F.3d 1108, 1114 (D.C.Cir.2007) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983)). " In order to obtain summary judgment the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990). " Summary judgment may be based on affidavit, if the declaration sets forth sufficiently detailed information ‘ for a court to determine if the search was ...


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