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Trea Senior Citizens League v. United States Department of State

United States District Court, District Circuit

October 30, 2013

TREA SENIOR CITIZENS LEAGUE, Plaintiff,
v.
UNITED STATES DEPARTMENT OF STATE, Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

This Freedom of Information Act ("FOIA") case, 5 U.S.C. § 552, involves a request for documents related to a totalization agreement[1] signed by representatives of the United States and Mexican governments in June 2004. See Pl.'s Mem. Supp. Mot. Partial Summ. J. and Opp'n to Def.'s 2d Renewed Mot. Summ. J. ("Pl.'s 2d Mem.") at 4 n.1, ECF No. 48-1. Pending before the Court are three motions: the defendant's Second Renewed Motion for Summary Judgment, ECF No. 45; the plaintiff's Cross Motion for Partial Summary Judgment, ECF No. 48; and the plaintiff's Second Motion for In Camera Review, ECF No. 49. For the reasons described below, each motion for summary judgment is granted in part and denied in part and the motion for in camera review is denied without prejudice.

I. BACKGROUND

The factual and procedural background of this matter is discussed in greater detail in this Court's previous memorandum opinion and therefore only summarized here. See Trea Senior Citizens League v. U.S. Dep't of State (" Trea I "), 923 F.Supp.2d 55, 58-60 (D.D.C. 2013).

A. The Plaintiff's FOIA Request and Trea I

In July, 2008, the plaintiff, Trea Senior Citizens League, filed a FOIA request with the defendant, the United States Department of State, seeking records "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." See Compl. Ex. A at 1-2, ECF No. 1-1. The defendant eventually located "124 unique responsive documents" to the plaintiff's request. Def.'s 1st Mot. Summ. J. Ex. A, Declaration of Sheryl L. Walter, Director, Office of Information Programs and Services, United States Department of State ("1st Walter Decl.") ¶ 181, ECF No. 30-1. Of those records, "44 were released in full, 43 were withheld in part, and 21 documents were withheld in full. The remaining 16 documents were referred to other government agencies for their review and direct reply to the plaintiff." Id. [2]

In its opposition to the defendant's initial motion for summary judgment, the plaintiff challenged the withholding, in whole or in part, of nineteen documents. Pl.'s Mem. Opp'n Def.'s 1st Mot. Summ. J. at 6 ("Pl.'s 1st Mem."), ECF No. 32. This Court granted summary judgment to the defendant as to three of documents for which "the defendant ha[d] adequately justified its withholding" and denied summary judgment as to the remaining sixteen documents. Trea I, 923 F.Supp.2d at 71. The Court granted the defendant an opportunity to "submit supplementary declarations that address the deficiencies discussed" in Trea I, id., which the defendant did by filing Supplemental Declarations from the State Department and the Social Security Administration with its renewed motion for summary judgment, see Def.'s 2d Renewed Mot. Summ. J. and Supp. Mem. ("Def's 2d Mem.") Ex. A, Second Supplemental Declaration of Sheryl L. Walter ("2d Walter Decl.") ¶ 3, ECF No. 45-1; Def.'s 2d Renewed Mot. Summ. J. Ex. B, Declaration of Dawn S. Wiggins, Dep. Exec. Director, Office of Privacy and Disclosure, Social Security Administration ("Wiggins Decl.") ¶ 2, ECF No. 45-2.

B. The Instant Motions and Disputed Documents

In its Partial Cross Motion for Summary Judgment, the plaintiff now challenges only six withheld responsive records, three from the Department of State and three from the Social Security Administration. See Pl.'s 2d Mem. at 8. All six records were withheld under the deliberative process privilege of Exemption 5 to the FOIA, 5 U.S.C. § 552(b)(5). All but one of the records, State Department Document O-28, were withheld in their entirety. Since the plaintiff does not challenge the withholding of the other ten documents which were disputed in the initial round of summary judgment motions, the defendant's Second Renewed Motion for Summary Judgment as to these ten documents is granted.[3] The only issue before the Court is the propriety of the withholding of the six challenged documents under Exemption 5. Each record is described below.

1. State Department Document H-16A

This undated, "sensitive but unclassified" document "is a status report on the negotiations for a bilateral totalization agreement with another country (not Mexico) and refers to the earlier negotiations with Mexico." 2d Walter Decl. ¶ 29. Based upon this description, the Court presumes that despite the fact that the document is undated, the contents indicate that it was created sometime after the conclusion of the negotiations with Mexico regarding the United States-Mexico Totalization Agreement ("the Agreement"). The document "was prepared by two [Western Hemisphere Affairs ("WHA")] desk officers for a senior Department official." Id. It compares the negotiations with one country to the negotiations "undertaken with Mexico for a similar agreement." Id. ¶ 30.

The defendant's declarant asserts the document was properly withheld under Exemption 5 because the document "is pre-decisional and deliberative as it contains comments, opinions, and predictions related to the two pending agreements and offers an analysis of the two negotiations processes." Id. The defendant's declarant notes that "[n]either agreement discussed in this document has been finalized, " and that the "purpose of the document appears to be to brief a senior Department official on the status of the negotiations, and to make recommendations as to how to proceed." Id.

As discussed in more detail in Part III.A.2, infra, underlying the defendant's characterization of this document is its view that although the Agreement has been signed and may be submitted to Congress at any time for its review, the Agreement is still not "final" because it is not in effect. See Def.'s Opp'n to Pl.'s Partial Mot. Summ. J. & Reply to Pl.'s Opp'n to Def.'s Mot. Summ. J. ("Def.'s Reply") at 8-9, ECF No. 53 ("The Totalization Agreement with Mexico has been signed, but it has not been ratified.... [I]t remains a matter of interest in the relationship of the United States and Mexico and in connection with the negotiation of totalization agreements with other nations.").

The defendant's declarant asserts that withholding under Exemption 5 is proper because the document's "release would chill the open and candid deliberations that involve evolving matters of national and international significance, including the pursuit of totalization agreements with certain countries." 2d Walter Decl. ¶ 30. The defendant's declarant claims that "in the course of [the defendant's] line-by-line review of this document, [the defendant] identified no meaningful non-exempt information that can be reasonably segregated and released." Id. ¶ 31.

2. State Department Document H-16B

This document is "unclassified" and dated February 15, 2011. Id. ¶ 32. It is a "draft" of "talking points concerning the pending totalization agreement with Mexico that a WHA official prepared for a more senior official." Id. ¶¶ 32-33. The defendant's declarant asserts that the document "contains pre-decisional and deliberative recommendations that are part of the internal deliberations concerning developing a strategy for negotiating with two countries." Id. ¶ 32. According to the defendant's declarant, "the talking points were never used" and pertain to Mexico and one other country for which "totalization agreement[s] [are] under discussion... and the issues associated with both agreements remain current and pre-decisional." Id. ¶ 33.

The defendant's declarant invokes Exemption 5 to withhold this document because "its release would reveal the opinions and recommendations shared during the internal deliberative process." Id. The defendant's declarant claims that "in the course of [the defendant's] line-by-line review of this document, [the defendant] identified no ...


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