United States District Court, D. Columbia
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CANNING, Plaintiff, Pro se, Leesburg, VA.
STEINBERG, Plaintiff, Pro se, Leesburg, VA.
UNITED STATES DEPARTMENT OF STATE, Defendant: Kyle Renee
Freeny, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Federal
Programs Branch, Washington, DC.
OPINION AND ORDER
D. MOSS, United States District Judge.
George Canning and Jeffrey Steinberg (" Plaintiffs"
), acting pro se, brought this action under the
Freedom of Information Act (" FOIA" ), 5 U.S.C.
§ § 552, et seq. Plaintiffs seek an order
requiring Defendant United States Department of State ("
the Department" ) to produce two groups of records: (1)
a 2010 memorandum from the President to his foreign policy
advisors, entitled " Presidential Study Directive
11" (" PSD-11" ), and certain related
documents; and (2) documents pertaining to the Muslim
Brotherhood. See Dkt. 1 at 7.
parties have cross-moved for partial summary judgment with
respect to the first portion of Plaintiffs' FOIA request.
Dkts. 19, 23, 35. Plaintiffs also seek in camera
review of approximately ninety original documents that were
withheld in full by the Department. Dkts. 22, 36. For the
reasons given below, the parties' motions for partial
summary judgment are GRANTED in part and DENIED in part. The
Department is directed to supplement its declarations with
the additional information described in this Memorandum
Opinion and to disclose the portion markings on two documents
that were released in part. Plaintiffs' motions for
in camera review are DENIED.
factual and procedural background of this case is not
disputed. In December 2012, Plaintiff Canning filed a FOIA
request for " certain information created and/or
compiled by the Department of State, concerning Presidential
Study Directive 11 ('PSD-11')." Dkt. 1 at 7 (Ex.
A). The request sought a copy of PSD-11 itself, "
[d]ocuments and other information created or compiled by the
State Department which were utilized internally . .., in the
creation of PSD-11," and " [d]ocuments and other
information created or compiled by the State Department which
were generated pursuant to the mandates of PSD-11."
Id. In addition, the request sought " [a]ll
reports created or compiled by the State Department from 2005
to present, concerning contacts or interviews with, or
otherwise about, individuals identified as leaders of the
Muslim Brotherhood, or otherwise analyzing the Muslim
Brotherhood's role in Muslim nations." Id.
Plaintiff requested a fee waiver and expedited production of
responsive records. Id. at 7-9.
January 2013, the Department acknowledged receipt of the FOIA
request. See Dkt. 1 at 18 (Ex. B). The Department
granted the fee waiver request but denied expedited
processing. Id. at 18, 20. Plaintiff Canning filed
an administrative appeal of the denial of his motion to
expedite. Id. at 21-22 (Ex. C). He also asked that
Plaintiff Steinberg be deemed a co-requester and permitted to
join in the appeal. See id. at 22, 26. The
Department upheld the denial of expedited processing.
Id. at 31-32 (Ex. D). Although the record is not
entirely clear on this point, the Department also apparently
agreed to treat Plaintiff Steinberg as a co-requester.
2013, Plaintiffs filed this action. See Dkt. 1. They
seek an order compelling the Department to search for and to
produce all responsive records on an expedited basis.
Id. at 5-6. The parties conferred and agreed that
the Department would prioritize the production of records
responsive to the first portion of Plaintiffs' FOIA
request, that is, the request for PSD-11 and certain related
documents. See Dkt. 30 ¶ 2 (Dec. 22, 2014,
Joint Status Report). At the parties' request, the Court
granted the parties leave to file
cross-motions for partial summary judgment with respect to
the Department's satisfaction of the first portion of the
FOIA request. See June 12, 2014, Minute Order;
see also Dkt. 16. Although Plaintiffs agreed to
narrow the scope of the second portion of the FOIA request,
see Dkt. 30 ¶ 2 & n.1, the processing and
production of responsive documents is still ongoing,
see Dkt. 42 ¶ 1 (Aug. 24, 2015, Joint Status
Report). Accordingly, issues relating to the second portion
of Plaintiff's FOIA request are not presently before the
August 2014, the Department moved for partial summary
judgment. See Dkt. 19. It attached a declaration
by John F. Hackett, Acting Director of the Office of
Information Programs and Services of the United States
Department of State, see Dkt. 19-2 ¶ 1 ("
First Hackett Decl." ), which explained that of the 144
fully processed responsive documents, 10 had been released in
full, 77 had been withheld in full, and 57 had been released
in part, see id. ¶ 105; see also id.
¶ ¶ 8, 9-13. The Hackett declaration further
explained that due to a " miscommunication" some
documents were " mistakenly never processed" and
that 20 such documents had been " referred to other
agencies with equities in the information." Id.
¶ ¶ 13, 31; Dkt. 19 at 12 n.3. These agencies were
later identified as the Central Intelligence Agency ("
CIA" ) and the United States Agency for International
Development (" USAID" ). See Second
Declaration of John F. Hackett, Dkt. 25-1 ¶ ¶ 15,
16, 24; Third Declaration of John F. Hackett, Dkt. 27-1
October 2014, Plaintiffs cross-moved for partial summary
judgment, arguing that the Department improperly withheld
PSD-11 and other responsive documents in whole or part and
that the Department had failed to release or account for
other responsive documents. See Dkt. 23 at 1-2. In
addition, Plaintiffs moved for in camera review of
the classification markings on approximately 90 original
documents, including PSD-11, withheld under Exemption 1.
See Dkt. 22 at 1-2.
November 14, 2014, the Department submitted a second
declaration accounting for 17 of the 20 outstanding
responsive documents. See Dkt. 25-1. It explained
that these documents were " prepared by the CIA,"
had been referred to that agency for review, and were
withheld in full under FOIA Exemption 1 as " relat[ing]
directly to intelligence activities, sources, or
methods." See id. ¶ 24. The declaration
also addressed several issues raised in Plaintiffs'
motion for summary judgment. See id. ¶ 5-14. A
few days later, the Department submitted a third declaration
describing the last three outstanding responsive documents,
which had been referred to USAID. See Dkt. 27-1
¶ 5. Two of the USAID documents were released in full.
Id. The Department redacted the third document,
withholding " the names and identifying details" of
" certain local organizations that have received U.S.
support." Dkt. 27-1 ¶ 6. At that point, the
Department stated that it had " produced or
Vaughned all information" responsive to the
first portion of Plaintiffs' FOIA request. See
Dkt. 27 at 3.
December 2014, Plaintiffs filed a second motion for partial
summary judgment addressing the 20 documents referred to the
CIA and USAID. See Dkt. 35. Plaintiffs also filed a
second motion for in camera review, again seeking
review of the classification markings on the documents
withheld in full under Exemption 1, and in addition, seeking
in camera review of the contents of PSD-11.
See Dkt. 36 at 1-2.
the pending motions were fully briefed, the parties jointly
notified the Court that the Department had obtained the
emails of former Secretary of State Hillary Clinton and
certain other former State Department employees
(collectively, " the Clinton emails"
). The parties have agreed that the
Department will search the Clinton emails for documents
responsive to both portions of Plaintiff's request.
See Dkt. 42. The parties have also agreed that the
additional search of the Clinton emails does not pose any
barrier to resolution of the pending motions. See
Dkt. 40. The parties confirmed this position at the September
21, 2015, status conference. Accordingly, the Court resolves
the pending motions on the understanding that issues relating
to the search of the Clinton emails and any additional
responsive documents identified in that search can be
addressed at a later date.
Freedom of Information Act is premised on the notion that
" an informed citizenry" is " 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)
(citation omitted). The Act requires federal agencies to
produce agency records upon public request unless the
information requested falls within one of nine enumerated
exemptions. 5 U.S.C. § § 552(a)(3) & (b). Of
relevance here are Exemption 1, which covers " matters
that are . . . specifically authorized under criteria
established by an Executive order to be kept secret in the
interest of national defense or foreign policy and . . . are
in fact properly classified pursuant to such Executive
order," id. § 552(b)(1); Exemption 5,
which covers " inter-agency or intra- agency memorandums
or letters which would not be available by law to a party
other than an agency in litigation with the agency,"
id. § 552(b)(5); and Exemption 6, which covers
" personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of personal privacy," id. §
552(b)(6). The Court reviews the agency's application of
FOIA exemptions de novo, and the agency bears the
burden of sustaining its action. Id. §
cases are typically resolved on motions for summary judgment
under Federal Rule 56 of the Federal Rules of Civil
Procedure. See, e.g., Beltranena v. U.S.
Dep't of State, 821 F.Supp.2d 167, 175 (D.D.C.
2011). To prevail on a summary judgment motion, the moving
party must demonstrate that there are no genuine issues of
material fact and that he or she is entitled to judgment as a
matter of law. See Celotex Corp. v.
Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). In a FOIA action, the agency may meet its burden
by submitting " relatively detailed and
non-conclusory" affidavits or declarations, SafeCard
Servs. Inc. v. SEC, 926 F.2d 1197, 1200, 288
U.S.App.D.C. 324 (D.C. Cir. 1991), and an index of the
information withheld, see Vaughn v. Rosen,
484 F.2d 820, 827-28, 157 U.S.App.D.C. 340 (D.C. Cir. 1973);
Summers v. Dep't of Justice,
140 F.3d 1077, 1080, 329 U.S.App.D.C. 358 (D.C. Cir. 1998).
The reviewing court must " 'ascertain whether the
agency has sustained its burden of demonstrating that the
documents requested . . . are exempt from
disclosure.'" Assassination Archives & Research
Ctr. v. CIA, 334 F.3d 55, 57, 357 U.S.App.D.C. 217 (D.C.
Cir. 2003) (quoting Summers, 140 F.3d at 1080).
Department asserts that it has fully satisfied its FOIA
obligations with respect to the first part of Plaintiffs'
FOIA request--that is, the request for PSD-11 and certain
related documents--because it " conducted a thorough
search for responsive documents and has released to
Plaintiffs all responsive information not subject to an
exemption under FOIA, including all reasonably segregable
information." Dkt. 19 at 9. It further asserts that
PSD-11 is exempt from disclosure on three independent
grounds: under FOIA Exemption 1, as classified material, and
under FOIA Exemption 5, pursuant to the deliberative process
privilege and the presidential communication privilege.
See Dkt. 19 at 19, 22-24, 27-30; Dkt. 19-2 ¶
54. Apart from those documents produced without redactions,
the Department asserts that the other responsive documents
are exempt in whole or part under Exemptions 1, 5, and/or 6.
See Dkt. 19-2 ¶ ¶ 32-53, 55-104; Dkt. 25-1
¶ ¶ 5-24; Dkt. 27-1 ¶ ¶ 5-10.
for their part, cross-move for summary judgment with respect
to certain documents that they allege were improperly
withheld. See Dkts. 23, 35. Plaintiffs'
principal contention is that the Department improperly
withheld approximately 90 documents, including PSD-11, under
Exemption 1. See Dkt. 23 at 15-29. In conjunction
with this argument, Plaintiffs seek in camera review
of the classification markings on these documents.
See Dkt. 22 at 1-2, Dkt. 23 at 26, Dkt. 36 at 1-2.
Plaintiffs also argue that PSD-11 is not covered by Exemption
5, see Dkt. 23 at 37-48, and seek in camera
review of its contents to determine whether it contains
" statements of existing policy" that are not
exempt, see Dkt. 36 at 2 (emphasis in original).
Plaintiffs further argue, among other things, that the
Department improperly classified or upgraded the
classification of certain other documents after receipt of
Plaintiffs' FOIA request, see Dkt. 23 at 18-24;
failed to provide affidavits from CIA or USAID officials
regarding the 20 documents referred to those agencies for
review, see Dkt. 35 at 6; improperly withheld
certain non-deliberative documents under Exemption 5's
deliberative process privilege, see Dkt. 23 at
44-45; improperly invoked Exemption 6 to redact identifying
information about certain foreign organizations, see
Dkt. 35 at 3-6; and failed to identify or account for
additional responsive documents that are known to exist,
see Dkt. 23 at 49-51, Dkt. 23-1 ¶ ¶ 6-11.
Court begins with the parties' arguments regarding the
documents withheld pursuant to Exemption 1.
Exemption 1 covers " matters that are . . . (1)(A)
specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly
classified pursuant to such Executive order." 5 U.S.C.
§ 552(b)(1). Here, the applicable order is Executive
Order No. 13526 (" EO 13526" ), 75 Fed.Reg. 707
(Dec. 29, 2009), which establishes procedural and substantive
requirements for classification. EO 13526 authorizes the
classification of information pertaining to " foreign
relations or foreign activities of the United States,
including confidential sources," where the "
unauthorized disclosure" of such information "
be expected to cause identifiable or describable damage to
the national security." EO 13526 § 1.4(d); see
id. § 1.2.
the responsive documents withheld in whole or part by the
Department, including the document at the heart of this
action, PSD-11, were withheld under Exemption 1. As explained
in the first Hackett declaration, PSD-11 is
[a] five-page signed memorandum, dated August 12, 2010, from
the President of the United States to a select and limited
group of senior foreign policy advisors, cabinet officials,
and agency heads, including the Secretary of State, that
discusses sensitive national security topics concerning the
Middle East and North Africa.
Dkt. 19-2 ¶ 54. PSD-11 instructed these officials to
engage in policy discussions and to report the results back
to the President. See Declaration of Daniel Sanborn,
Dkt. 19-1 ¶ ¶ 6-9. Plaintiffs agree that PSD-11 was
" an important step in the creation of the
[Administration's] present policy" with respect to
the Middle East. See Dkt. 1 ¶ 9. The first
Hackett declaration explains that PSD-11 was withheld in full
because it is a classified document, the disclosure of which
" could have the potential to inject friction into, or
cause damage to, a number of our bilateral relationships,
with countries whose cooperation is necessary to U.S.
national security." Dkt. 19-2 ¶ 54. The other
responsive documents that were withheld in whole or part
under Exemption 1, all of which are related to PSD-11, were
withheld for similar reasons. See id. ¶ ¶
32-42; see also Dkt. 25-1 ¶ ¶ 15-25.
to the Department's declarations, Hackett, who has
original classification authority, see Dkt. 19-2
¶ ¶ 1, 37, " made certain" that the
documents withheld under Exemption 1 were properly classified
in accordance with the procedural and substantive
requirements of EO 13526, id. ¶ 37; see
also Dkt. 25-1 ¶ ¶ 15-25. Plaintiffs dispute
this, questioning whether many of the documents are " in
fact properly classified." See, e.g., Dkt. 39
at 3 (" plaintiffs have come to doubt that the
entirely-withheld documents . . . have all in fact been
classified" ) (emphasis in original). Plaintiffs offer
several arguments applicable to different groups of
Classification Markings On Documents Withheld In
principal argument is that the documents withheld in full
under Exemption 1, including PSD-11, may not bear the
required classification markings. See Dkt. 23 at
26-27, Dkt. 33 at 7-12; Dkt. 39 at 3. Plaintiffs do not cite
any evidence that these documents are missing markings,
instead relying on the argument that other documents
withheld in part under Exemption 1 are missing classification
markings and, accordingly, the same is likely to be true of
the documents withheld in full. See Dkt. 23 at 26
(describing the Vaughn index as " unreliable on
this point" ) (emphasis in original). The Department
disputes this, noting that some of the partly-withheld
documents were properly marked, see Dkt. 25 at 25,
and clarifying that other partly-withheld documents were
originally classified but erroneously marked as unclassified,
seeid. at 26; Dkt. 25-1 ¶ 8. As
explained in Part A.4 below, the Court concludes that the
Department's declarations adequately support the
conclusion that the partly-withheld documents are, in fact,
classified and entitled to protection. For present purposes,
however, the Court need not resolve that issue. Given the