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Unrow Human Rights Impact Litigation Clinic v. United States Dep't of State

United States District Court, D. Columbia

September 29, 2015

UNROW HUMAN RIGHTS IMPACT LITIGATION CLINIC, Plaintiff,
v.
U.S. DEPARTMENT OF STATE, et al., Defendants

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[Copyrighted Material Omitted]

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          For 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. Beydoun.

         For 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.

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         MEMORANDUM OPINION

         KETANJI BROWN JACKSON, United States District Judge.

         Plaintiff 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

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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.)

         Before 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.)[1] 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 15-18).

         Upon 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.

         I. BACKGROUND

         UNROW 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

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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 Nos. 29-11-29-22.)[2]

         On 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.)[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.)

         On 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

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(" 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).)[4]

         Meanwhile, 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.)

         On July 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.)[5]

         UNROW 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

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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).

         The parties' cross-motions for summary judgment are now fully briefed and ripe for this Court's review.

         II. 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 ...


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