United States District Court, D. Columbia
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
UNROW HUMAN RIGHTS IMPACT LITIGATION CLINIC AT AMERICAN
UNIVERSITY, WASHINGTON COLLEGE OF LAW, Plaintiff: Alexandra
Arango, Diana Damschroder, Jacob Brody, LEAD ATTORNEYS, UNROW
HUMAN RIGHTS IMPACT LITIGATION CLINIC, Washington, DC; Ali A.
U.S. DEPARTMENT OF STATE, DEFENSE INTELLIGENCE AGENCY,
DEPARTMENT OF DEFENSE, Defendants: John G. Interrante, LEAD
ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF
COLUMBIA, Washington, DC.
BROWN JACKSON, United States District Judge.
UNROW Human Rights Impact Litigation Clinic ("
UNROW" ) is a " litigation program at American
University Washington College of Law" that "
provides pro bono legal representation to clients seeking
redress for violations of their human rights." (Compl.,
ECF No. 2, ¶ 11.) Among UNROW's clients are the
Chagossians, a group of displaced indigenous people from the
Chagos Archipelago in the British Indian Ocean Territory. (
See id. ¶ 3.) In 2013, UNROW filed several
document requests under the Freedom of Information Act
(" FOIA" ), 5 U.S.C. § 552, seeking a
particular diplomatic cable that the United Kingdom allegedly
sent to the United States concerning the British Indian Ocean
Territory; UNROW had become interested in the cable after an
international news outlet published a purported copy of the
document in 2010. ( See Compl. ¶ ¶ 14-18.)
In response to these requests, the State Department ("
State" ) and the Defense Intelligence Agency ("
DIA" and, collectively, " Defendants" )
informed UNROW that Defendants had located one responsive
document and that the document was being
withheld in its entirety on national security and/or foreign
relations grounds. ( See id. ¶ 28.) UNROW filed
the instant lawsuit on October 15, 2013, claiming wrongful
withholding of agency records in violation of the FOIA, and
seeking an injunction to compel production of the document. (
See id. at 8-9.)
this Court at present are the parties' cross-motions for
summary judgment. ( See Defs.' Mot. for Summ. J.
(" Defs.' Mot." ), ECF No. 27, 1-2; Pl.'s
Cross-Mot. for Summ. J. & Opp'n to Defs.' Mot.
(" Pl.'s Cross-Mot." ), ECF No. 29,
1-2.) Defendants maintain that they have
lawfully withheld the responsive document at issue on the
basis of FOIA Exemption 1 because the document is a
confidential foreign relations communication that was
properly classified under Executive Order 13526. (
See Defs.' Mem. in Supp. of Defs.' Mot.
(" Defs.' Br." ), ECF No. 27, 11-30, at 20-28.)
Meanwhile, UNROW argues that Defendants have waived the
ability to invoke Exemption 1 with respect to the disputed
document since, according to UNROW, the information contained
in that document is already available in the public domain
and has been officially acknowledged. ( See
Pl.'s Mem. in Supp. of Pl.'s Cross-Mot. for Summ. J.
& Opp'n to Defs.' Mot. for Summ. J. (" Pl.'s
Br." ), ECF No. 29, 3-45, at 26-36; see also
Pl.'s Reply Mem. in Supp. of Pl.'s Mot. ("
Pl.'s Reply" ), ECF No. 42, at 8-11.) UNROW also
challenges DIA's decision to let State make a disclosure
determination on behalf of both Defendants in response to
UNROW's requests ( see Pl.'s Br. at 39-45;
Pl.'s Reply at 11-12), and further asks this Court to
conduct an in camera review of the withheld document
( see Pl.'s Br. at 36-37; Pl.'s Reply at
consideration of the parties' submissions, the relevant
authorities, and the record as a whole, this Court concludes
that Defendants properly invoked Exemption 1 to withhold the
document at issue; that there was nothing improper about how
DIA handled the responsive document once the agency located
it; and that there is no need for this Court to review the
document in camera. Consequently, Defendants'
motion for summary judgment will be GRANTED, and
Plaintiff's cross-motion for summary judgment will be
DENIED. A separate order consistent with this memorandum
opinion will follow.
is a self-described advocate for the Chagossian people. UNROW
asserts that the Chagossians " were unlawfully
expelled" from the Chagos Archipelago " in the late
1960s and early 1970s" and that their continued
displacement is due to an " international effort to
permanently prevent [their] return and [the] resettlement
of" those islands. (Compl. ¶ 3.) As part of its
advocacy, UNROW previously filed FOIA requests with DIA in
2001, and also with State in 2010, seeking " information
concerning the Islands of the Chagos Archipelago"
(Pl.'s Response to Def.'s Statement of Material Facts
& Pl.'s Statement of Material Facts (" Pl.'s
SOF" ), ECF No. 37-1, ¶ II.1), and " documents
concerning the possible resettlement of the Chagos
Archipelago by the Chagossian people" ( id.
¶ II.2), respectively. In response to those requests,
Defendants produced a total of forty-two documents, certain
portions of which had been redacted. ( See id.
¶ ¶ II.1-2; see also Letter from Alesia Y.
Williams, Chief, DIA FOIA Staff, to Michael E. Tigar,
American University Washington College
of Law (Dec. 22, 2009), Ex. G to Pl.'s SOF, ECF No. 37-2,
at 2; Letter from Charlene Wright Thomas, Acting Co-Dir.,
State Dep't Office of Info. Programs & Servs. ("
IPS" ), to Ali Beydoun, UNROW Human Rights Impact
Litigation Clinic (Mar. 29, 2011), Ex. H to Pl.'s SOF,
ECF No. 37-3, at 2-3; Exs. I-T to Pl.'s Cross-Mot., ECF
December 2, 2010--while State was still processing one of
UNROW's prior document requests ( see Pl.'s
SOF ¶ II.2)-- The Guardian published a document
on its website that appeared to be a leaked copy of a U.S.
diplomatic cable dated May 15, 2009, with the subject line:
" HMG FLOATS PROPOSAL FOR MARINE RESERVE COVERING THE
CHAGOS ARCHIPELAGO (BRITISH INDIAN OCEAN TERRITORY)[.]"
( US embassy cables: Foreign Office does not regret
evicting Chagos islanders, The Guardian, Dec.
2, 2010, Ex. U to Pl.'s SOF, ECF No. 37-4, at 2; see
also Pl.'s SOF ¶ II.3.) Three years later,
in April of 2013, UNROW submitted the five FOIA requests at
issue in the instant case--one to DIA and four to various
offices at State--attaching the document published in The
Guardian and seeking
access to and a copy of the cable from the Embassy of the
United States in London bearing the Reference ID "
09LONDON1156," sent on May 15, 2009, with the subject
" HMG FLOATS PROPOSAL FOR MARINE RESERVE COVERING THE
CHAGOS ARCHIPELAGO (BRITISH INDIAN OCEAN TERRITORY)."
( See Letter from UNROW, to Williams (Apr. 22,,
2013), Ex. A to Williams Decl., ECF No. 27-15, at 1; Letter
from UNROW, to IPS (Apr. 22, 2013), Ex. 1 to Hackett Decl.,
ECF No. 27-2, at 2; Letter from UNROW, to Zipora Bullard,
FOIA Office, Dep't of State, Office of Inspector Gen.,
Office of Gen. Counsel (Apr. 22, 2014), Ex. 2 to Hackett
Decl., ECF No. 27-3, at 1; Letter from UNROW, to Sheryl L.
Walter, Director, IPS (Apr. 23, 2013), Ex. 3 to Hackett
Decl., ECF No. 27-4, at 2; Letter from UNROW, to Bullard
(Apr. 23, 2013), Ex. 4 to Hackett Decl., ECF No. 27-5, at 1.)
April 24, 2013, DIA sent UNROW a letter acknowledging receipt
of one of its FOIA requests and explaining that, because
State would likely be " the originator" of such a
document, State (and not DIA) would have " final release
authority with respect to [the] request." (Defs.'
Statement of Material Facts (" Defs.' SOF" ),
ECF No. 27, 3-10, ¶ 15; see also Pl.'s SOF
¶ I.15; Decl. of Alesia Y. Williams, DIA FOIA Services
Section Chief (" Williams Decl." ), ECF No. 27-14,
¶ 5; Letter from Williams to Beydoun (Apr. 24, 2013),
Ex. B to Williams Decl., ECF No. 27-16, at 1.) DIA then
" searched one of the Agency's primary databases,
Web Intelligence Search Engine ('WISE') and located
one document that was deemed to be responsive to
[UNROW]'s request based upon the description in the
original request letter." (Defs.' SOF ¶ 16
(citing Williams Decl. ¶ 6); cf. Pl.'s SOF
¶ I.16.) On May 6, 2013, DIA forwarded that document to
State, along with UNROW's request, to facilitate
State's " review and direct reply to [UNROW]."
(Decl. of John F. Hackett, Acting Dir., IPS
(" Hackett Decl." ), ECF No. 27-1, ¶ 8;
see also Letter from Williams, to IPS (Mar. 6,
2013), Ex. 6 to Hackett Decl., ECF No. 27-7, at 1.) On the
same day, DIA sent a second letter to UNROW stating that DIA
had " located one 7-page document that was potentially
responsive to" UNROW's request and that DIA had
referred " the potentially responsive document . . .
[to] State for its review[.]" (Defs.' SOF ¶ 17
(citing Williams Decl. ¶ 7; Ex. D to Williams Decl., ECF
No. 27-18, at 1).)
State had acknowledged receipt of UNROW's four other FOIA
requests on April 30, 2013. ( See Defs.' SOF
¶ 5 (citing Letter from Mary Therese Castor, Chief,
Requester Commc'ns Branch, IPS, to UNROW (Apr. 30, 2013),
Ex. 5 to Hackett Decl., ECF No. 27-6 at 1-3); see
also Pl.'s SOF ¶ I.5.) After reviewing those
requests, State " determined that the only records
system reasonably likely to contain the record sought by
[UNROW] was the Central Foreign Policy Records"
database. (Defs.' SOF ¶ 11 (citing Hackett Decl.
¶ 17); cf. Pl.'s SOF ¶ I.11.) State
searched the Central Foreign Policy Records database using
the " [m]essage [r]eference [n]umber" in
UNROW's requests (Defs.' SOF ¶ ¶ 13-14)
and, according to State, the search returned " a single
responsive record" ( id. ¶ 14). (
Cf. Pl.'s SOF ¶ ¶ I.13-14.) State also
received from DIA a copy of UNROW's request to DIA and
the document that DIA had identified as responsive. (
See Defs.' SOF ¶ 17; see also
Pl.'s SOF ¶ I.8.)
5, 2013, State wrote a letter to UNROW in response to
UNROW's FOIA requests stating that " [r]ecord
searches by the Department of State and by the Defense
Intelligence Agency each resulted in the retrieval of one
identical document responsive to [UNROW's]
requests[,]" and explaining that " [a]fter
reviewing this document," State had " determined
that it must be withheld in full" pursuant to FOIA
Exemption 1 because " [t]he material [in the document]
is currently and properly classified under Executive Order
13526 in the interest of national defense or foreign
relations." (Letter from Walter, to Beydoun (Jul. 5,
2013), Ex. 10 to Hackett Decl., ECF No. 27-11, at 1; see
also Defs.' SOF ¶ ¶ 20-21; cf.
Pl.'s SOF ¶ ¶ I.20-21.)
filed the instant action in federal court on October 15,
2013. ( See Compl.) UNROW's complaint maintains
that Defendants improperly withheld the document in question
( see id. ¶ ¶ 5-6) and asks this Court to
issue an injunction requiring Defendants to release the
document ( see id. ¶ 7). Defendants filed their
motion for summary judgment on September 23, 2014 (
see Defs.' Mot.), arguing that they are entitled
to judgment as a matter of law because they " conducted
reasonable and adequate searches for records responsive to
[UNROW]'s FOIA requests" ( id. at 19) and
provided sufficiently detailed affidavits justifying their
invocation of Exemption 1 to withhold the responsive document
in its entirety ( see id. at 19-29). UNROW
filed its cross-motion for summary judgment and opposition to
Defendants' motion on October 23, 2014. ( See
Pl.'s Cross-Mot.) UNROW insists that Defendants may not
invoke Exemption 1 to withhold the document at issue because
the document is available in the public domain and, according
to UNROW, Defendants have officially acknowledged its
contents. ( See Pl.'s Br. at 28-36.) Moreover,
UNROW argues that even if Exemption 1 was properly invoked,
Defendants have failed to provide the requisite level of
detail necessary to justify their withholding of the
requested document in its entirety. ( See
id. at 14-22, 37-39.) Finally, UNROW contends that
DIA's referral of the responsive document in its
possession to State was improper ( see id.
at 39-45), and that this Court's in camera
review of the document in question is necessary to resolve
the parties' cross-motions for summary judgment (
see id. at 36-37).
parties' cross-motions for summary judgment are now fully
briefed and ripe for this Court's review.
APPLICABLE LEGAL STANDARDS
FOIA cases typically and appropriately are decided on motions
for summary judgment." Sciacca v. FBI, 23
F.Supp.3d 17, 26 (D.D.C. 2014) (quoting Defenders of
Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87
(D.D.C. 2009) (internal quotation marks omitted));
seeRushford v. Civiletti, 485 F.Supp. 477,
481 n.13 (D.D.C. 1980) (explaining that " the
development of a factual record would, as a practical matter,
be impossible" without revealing the very information
that the government seeks to protect), aff'd sub
nom.Rushford v. Smith, 656 F.2d 900 (D.C. Cir.
1981). Under Rule 56 of the Federal Rules of Civil Procedure,
a court must grant summary judgment when the pleadings,
disclosure materials on file, and affidavits " show that