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Canning v. United States Dep't of State

United States District Court, D. Columbia

September 30, 2015

GEORGE CANNING and JEFFREY STEINBERG, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF STATE, Defendant

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          GEORGE CANNING, Plaintiff, Pro se, Leesburg, VA.

         JEFFREY STEINBERG, Plaintiff, Pro se, Leesburg, VA.

         For UNITED STATES DEPARTMENT OF STATE, Defendant: Kyle Renee Freeny, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Federal Programs Branch, Washington, DC.

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         MEMORANDUM OPINION AND ORDER

         RANDOLPH D. MOSS, United States District Judge.

         Plaintiffs 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.

         The 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.

         I. BACKGROUND

         The 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.

         In 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.

         In June 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

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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 Court.

         In August 2014, the Department moved for partial summary judgment. See Dkt. 19.[1] 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 ¶ 5.

         In 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.

         On 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.

         In 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

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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.

         After 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" ).[2] 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.

         II. LEGAL STANDARD

         The 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. § 552(a)(4)(B).

         FOIA 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,

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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).

         III. DISCUSSION

         The 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.

         Plaintiffs, 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.

         The Court begins with the parties' arguments regarding the documents withheld pursuant to Exemption 1.

         A. Exemption 1

         FOIA 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 " could reasonably

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be expected to cause identifiable or describable damage to the national security." EO 13526 § 1.4(d); see id. § 1.2.

         Most of 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.

         According 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 documents.

         1. Classification Markings On Documents Withheld In Full

         Plaintiffs' 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 ΒΆ 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 " ...


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