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Liberation Newspaper v. U.S. Department of State

United States District Court, D. Columbia.

February 19, 2015

LIBERATION NEWSPAPER, Plaintiff,
v.
U.S. DEPARTMENT OF STATE, Defendant

For LIBERATION NEWSPAPER, Plaintiff: Carl L. Messineo, PARTNERSHIP FOR CIVIL JUSTICE FUND, Washington, DC; Mara E. Verheyden-Hilliard, PARTNERSHIP FOR CIVIL JUSTICE, INC., Washington, DC.

For DEPARTMENT OF STATE, Defendant: Jodi T. George, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge.

The plaintiff, Liberation Newspaper, filed a request for documents with the defendant, the Department of State, under the Freedom of Information Act (" FOIA" ), 5 U.S.C. 552 et seq. seeking records pertaining to possible payments made to journalists by the United States government during the course of the criminal prosecution of five individuals convicted of being Cuban intelligence agents.[1] See Compl., ECF No. 1. Pending before the Court is the defendant's motion to dismiss or, in the alternative, for summary judgment, ECF No. 21. For the reasons stated below, the defendant's motion is granted.[2]

I. BACKGROUND

The plaintiff brought this FOIA action to obtain documents from the defendant dating from January 1998 through December 2002 and relating to alleged contracts between the United States government and ninety Miami journalists who covered the trial of five individuals convicted of acting and conspiring to act as unregistered Cuban intelligence agents and for conspiring to commit murder.[3] See Compl. ¶ ¶ 1-3, 33; United States v. Campa, 459 F.3d 1121 (11th Cir. 2006). According to the plaintiff, these contracts could provide evidence that the United States paid journalists to spread propaganda domestically and influence public opinion regarding the accused's trial. Compl. ¶ ¶ 4-5, 7. Specifically, the plaintiff alleges that the United States Information Agency (" USIA" ), the Broadcasting Board of Governors, and the Office of Cuba Broadcasting engaged in " covert payments" to certain nominally independent Miami journalists in order to influence public opinion regarding the trial. Id. ¶ 4.

To obtain information regarding these alleged payments, the plaintiff submitted FOIA requests to the defendant, the Department of State, and to the Broadcasting Board of Governors.[4] Although the USIA was originally a separate entity from the defendant, the USIA was abolished in 1999 and portions of the agency were subsumed by the defendant. See 22 U.S.C. § 6531. The plaintiff requested " any and all contracts in the possession or control of the Department of State regarding all grants, payments, purchase orders and/or obligations of funds to be transferred" to ninety journalists during the period of January 1998 through December 2002. Compl. ¶ 32. The plaintiff also requested expedited processing of the request, which was denied. Id. ¶ 60. Nearly three years after the original request, and after receiving no documents from the defendant, the plaintiff brought this action in order to obtain the requested materials. Id. ¶ ¶ 90-91

The Court issued a scheduling order requiring the defendant to " complete a search reasonably likely to yield all responsive records in its possession, custody or control" and set a schedule for the production of discovered documents. See Minute Order (August 27, 2013). Consistent with the Court's Order, and as outlined in the three detailed declarations submitted by the defendant during the course of this litigation, the defendant searched for responsive documents. See Decl. of Sheryl L. Walter (" Walter Decl." ), ECF No. 17-1; Second Decl. of Sheryl L. Walter (" Second Walter Decl." ), ECF No. 21-4; Decl. of John F. Hackett (" Hackett Decl." ), ECF No. 25-1.

First, the defendant identified the sources of potentially relevant electronic and physical records. The defendant identified records systems for the entire Department of State as well as records systems pertaining to specific individual divisions within the Department of State.[5] Once identified, the defendant spoke with the relevant authorities within the Department of State on how best to search their record systems. In consultation with these authorities, the defendant searched the relevant records repositories, including some records maintained previously by the USIA but now in the custody of the defendant. These searches and the criteria employed are laid out in the following table:

Office

Records System

Search Criteria

USIA

Retired Records

Manual Search[6]

Department of State

Retired Record Inventory

Names of 90 Journalists,[7]

Management System

" Miami Five," " Cuban Five,"

" Journalist," " Payments,"

" Contracts," " Cuba"

Department of State

Central Foreign Policy

Names of 90 Journalists[8]

Records (" Central File" )

Office of the Legal

Legal Adviser Content

" Contract," " Broadcasting

Adviser

Server and Paper Records

Board," " BBG," " Cuba

Broadcasting," " OCB,"

" Cuban Five"

" independent journalism,"

Bureau of Western

Network Drive; individual

" ESF," " Economic Support

Hemisphere Affairs

email accounts; and paper

Funds," " EAID," " Foreign

records

Assistance," " Miami Five,"

" Cuban Five"

After conducting these searches, the defendant determined that it had completed its search efforts and that it maintained no documents responsive to the plaintiff's request. See Second Status Report by Def. Pursuant to Court's Minute Order of October 30, 2013, ECF No. 18. Accordingly, the defendant moved for summary judgment regarding the plaintiff's FOIA request. Following challenges to the adequacy of the defendant's search for records, the defendant conducted a renewed search of the records contained in the State Department's Central File and submitted an updated declaration describing the revised search. See Hackett Decl. Altogether, the defendant has submitted three declarations detailing its searches in this matter: an initial declaration submitted as a status report regarding the defendant's progress in searching its records, see Walter Decl.; an updated declaration filed with its motion for summary judgment detailing the defendant's efforts to search its records, see Second Walter Decl.; and a further updated declaration filed with its reply briefing providing details of supplemental searches conducted in response to criticism by the plaintiff of the initial search methodology, see Hackett Decl.

II. LEGAL STANDARD

" In FOIA cases, '[s]ummary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.'" Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215, 406 U.S.App.D.C. 440 (D.C. Cir. 2013) (quoting Consumer Fed'n of Am. v. U.S. Dep't of Agric., 455 F.3d 283, 287, 372 U.S.App.D.C. 198 (D.C. Cir. 2006)). With respect to the applicability of exemptions and the adequacy of an agency's search efforts, summary judgment may be based solely on information provided in the agency's supporting declarations. See, e.g., Elec. Frontier Found. v. U.S. Dep't of Justice, 739 F.3d 1, 7, 408 U.S.App.D.C. 1 (D.C. Cir. 2014); Am. Civil Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 619, 393 U.S.App.D.C. 384 (D.C. Cir. 2011); Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 838, 347 U.S.App.D.C. 235 (D.C. Cir. 2001). Summary judgment is properly granted against a party who, " after adequate time for discovery and upon motion, . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden is on the moving party to demonstrate that there is an " absence of a genuine issue of material fact" in dispute. Id. at 323.

In ruling on a motion for summary judgment, the court must draw all justifiable inferences in favor of the nonmoving party and shall accept the nonmoving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court is only required to consider the materials explicitly cited by the parties, but may on its own accord consider " other materials in the record." Fed.R.Civ.P. 56(c)(3). For a factual dispute to be " genuine," the nonmoving party must establish more than " [t]he mere existence of a scintilla of evidence in support of [its] position," Liberty Lobby, 477 U.S. at 252, and cannot rely on " mere allegations" or conclusory statements, Veitch v. England, 471 F.3d 124, 134, 374 U.S.App.D.C. 1 (D.C. Cir. 2006); see Greene v. Dalton, 164 F.3d 671, 675, 334 U.S.App.D.C. 92 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993); accord Fed.R.Civ.P. 56(e). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in ...


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