United States District Court, District of Columbia
LAWRENCE U. DAVIDSON, III, Plaintiff,
UNITED STATES DEPARTMENT OF STATE, et al, Defendants. Re Document No. 25
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
RUDOLPH CONTRERAS United States District Judge
Lawrence U. Davidson, III, pro se, is the sole
proprietor of Export Strategic Alliance, a company that seeks
to collect on an allegedly unpaid invoice for services it
rendered to Libya's former government. Mr. Davidson
claims that he asked Defendant the United States Department
of State to help him collect on that invoice, to no avail. He
then submitted Freedom of Information Act (FOIA) requests to
the Department and sought information about how the
Department had handled Mr. Davidson's previous
communications with the Department. Dissatisfied with the
Department's processing of his FOIA requests, Mr.
Davidson filed this suit.
Department now moves for summary judgment on Mr.
Davidson's FOIA claims. Mr. Davidson has, however, raised
a genuine issue of material fact with respect to the adequacy
of the Department's search. And the Department's
Vaughn Index does not allow the Court to assess the propriety
of all of its withholdings. Accordingly, the Court will deny
the Department's motion in part. But because no genuine
issue of material fact exists to indicate that, for the
documents listed in the Department's Vaughn Index, the
Department's FOIA withholdings were improper, the Court
will grant the Department's motion with respect to those
Lawrence U. Davidson, III, is a United States citizen and the
sole proprietor of Export Strategic Alliance, a company that
allegedly contracted with the Great Socialist Peoples Libya
Arab Jamahiriya, Libya's former government. Compl. ¶
7, ECF No. 1; Def's Statement of Undisputed Material
Facts ¶¶ 1-2, ECF No. 25-1 [hereinafter Defs.'
Statement]. Mr. Davidson claims that, under a contract
between his company and the Jamahiriya, his company would
have delivered the Jamahiriya medicine valued at seventy
million dollars, as well as twelve million metric tons of
foodstuffs valued at four and a half billion dollars. Compl.
¶ 7; Defs.' Statement ¶ 2. He further claims
that, after he provided twenty-eight million dollars in
services, the Jamahiriya never paid his company for the
outstanding invoice. Compl. ¶ 7; Defs.' Statement
to Mr. Davidson's complaint, on or around November 8,
2011, Mr. Davidson began collection efforts on his
company's invoice by submitting copies of the invoice to
various Libyan governmental entities, including the Libyan
embassy in Washington, D.C. Compl. ¶ 23. Those efforts,
however, proved unsuccessful: according to Mr. Davidson,
"[o]ther than electronic acknowledgment of receipt of
the invoice, no . . . communications were received" from
the government officials that Mr. Davidson contacted.
around September 1, 2012, Mr. Davidson sought assistance from
officials at Defendant the United States Department of State.
Compl. ¶ 24; Defs.' Statement ¶ 2. According to
Mr. Davidson's complaint, he contacted many individual
Department officials and asked them for '"commercial
diplomacy' or in the alternative a 'Letter
d'Marche, '" a formal diplomatic communication.
Compl. ¶ 26. Like his efforts to obtain payment from
Libya, Mr. Davidson claims that his efforts to obtain
assistance from the Department were also unsuccessful.
See Compl. ¶¶ 24-35 (alleging that
"[t]he vast majority of [Mr. Davidson's] telephone
calls went unacknowledged or returned").
2013, Mr. Davidson tried a third strategy: FOIA requests. Mr.
Davidson submitted his first FOIA request to the Department
in October 2013. Compl. 14, ¶ 52; Defs.' Statement
¶ 3; see also Answer Ex. 1, ECF No.
8-1, at 1-2 (reproducing Mr. Davidson's first FOIA
request). In his request, which he titled
"Privacy Act/Freedom of Information Request, " Mr.
all documents or communications of all such character whether
e-mail, memorandums, meeting agendas, transcripts,
investigations, notes either received or submitted wherein
the issue either specifically or by implication is Lawrence
U. Davidson, III d/b/a Export Strategic Alliance held in the
United States State Department for the period beginning June
Answer Ex. 1, ECF No. 8-1, at 1. Mr. Davidson also noted that
his request placed "particular emphasis" on certain
records: (1) "[investigations conducted by the Bureau of
Diplomatic Security, " (2) "[c]onsular [a]ssistance
given to U.S. [c]itizens in Libya, " and (3)
communications with or from certain entities that mentioned
Mr. Davidson or his company in their text. Id. For
the third category, Mr. Davidson named the entities whose
communications he sought: the American embassy in Libya, as
well as numerous named individuals. See id., ECF No.
8-1, at 1-2. The Department responded soon after, but
with simply a form letter informing Mr. Davidson that the
Department could not process his request because he had not
"provided identifying information, " such as names,
dates of birth, and "citizenship status for all parties
associated with [his] request." See Compl.
¶ 53; Defs.' Statement ¶ 4; see also
Answer Ex. 2, ECF No. 8-1, at 3 (reproducing the
Davidson submitted a second, nearly identical FOIA request in
November 2013. See Compl. ¶ 54; Defs.'
Statement ¶ 5; see also Answer Ex. 3, ECF No.
8-1, at 4-5 (reproducing Mr. Davidson's second FOIA
request). This time, though, Mr. Davidson specified that he
was "an American Citizen" and indicated that the
named individuals whose communications he sought were also
"upon information [and] belief. . . American
Citizens." See Answer Ex. 3, ECF No. 8-1, at 4.
But the Department issued Mr. Davidson an identical response:
it told him that it could not process his request for lack of
"identifying information." See Compl.
¶ 55; Defs.' Statement ¶ 6; see also
Answer Ex. 4, ECF No. 8-1, at 6 (reproducing the
Department's second response).
Davidson alleges that, when he sent the Department his two
FOIA requests, he also sent copies of his requests to the
Department's Office of Inspector General (OIG).
See Compl. 14-15, ¶¶ 52, 56; see
also Answer Ex. 6, ECF No. 8-1, at 10 (responding, in a
letter from OIG to Mr. Davidson, to Mr. Davidson's
"FOIA . . . request dated October 15, 2013").
Unlike the Department itself, OIG did not respond to Mr.
Davidson's FOIA request by refusing to process Mr.
Davidson's request for lack of identifying information.
Instead, the record shows that, on November 15, 2013, OIG
issued Mr. Davidson a letter, which stated that OIG had
"conducted a thorough and reasonable search" and
had "found no records responsive to the portion of [his]
request for documents pertaining to [him] or [his] business
for the period beginning June 30, 2009." Answer Ex. 6,
ECF No. 8-1, at 11. With a letter dated January 7, 2014, Mr.
Davidson appealed OIG's decision to the Chairman of the
Appeals Panel of the Department of State. See Compl.
15, ¶ 49; Answer 5, ¶ 49; see Answer Ex.
7, ECF No. 8-1, at 9 (reproducing Mr. Davidson's appeal
letter). In his appeal letter, "to establish an
error" and to establish that responsive documents
"did in fact exist, " Mr. Davidson alleges that he
included an example of a communication between himself and
the Department. Compl. 15-16, ¶ 49; see Answer
Ex. 7, ECF No. 8-1, at 9 (stating that Mr. Davidson attached
an "Example of Transmission submitted to State
Department persons" with his appeal letter).
point afterward, the Department opened a new FOIA request for
Mr. Davidson. See Compl. 15-16, ¶ 49; Answer
4-5, ¶¶ 49, 56. Mr. Davidson implies that the
Department's decision to open another request resulted
from his appeal of OIG's decision. See Compl.
15-16, ¶ 49 (explaining that "a new case was
opened" after Mr. Davidson submitted his sample
communication as "evidence that documents did in fact
exist"). But the Department contends that "it
re-opened [Mr. Davidson's] FOIA case" because Mr.
Davidson submitted a third FOIA request, and that the
Department's subsequent processing of any potentially
responsive documents applied only to non-OIG records. Answer
4-5, ¶ 56; id. at 5, ¶ 49. And the
Department has produced a copy of a "resubmission"
of Mr. Davidson's FOIA request, which is dated February
20, 2014. See Answer Ex. 5, ECF No. 8-1, at 7-8.
That request is nearly identical to Mr. Davidson's
November 2013 FOIA request: it includes the same text as the
November 2013 request, but adds two individuals' names to
the list of named individuals whose communications Mr.
Davidson sought. Compare Id. (including Wendy
Sherman and Carlos Dejuana in the list of named individuals),
with Answer Ex. 3, ECF No. 8-1, at 4-5 (reproducing
the November 2013 request). The Department asserts that it
acknowledged receipt of Mr. Davidson's third request by
letter, that it initiated searches in response to his
request, and that in May 2014 it provided an estimated
completion date of December 2015. Defs.' Statement
¶¶ 10-11; see also Compl. 15-16, ¶ 49
(agreeing that Mr. Davidson received a December 2015
estimated completion date).
Davidson filed suit in this Court in August 2014.
See Compl. After recounting the history of his
FOIA-related communications with the Department, Mr.
Davidson's complaint asked the Court to "[i]ssue a
declaratory judgment directing the State Department to comply
with [his FOIA] request in a timely manner."
See Compl. 14-16. After the Department asserted in
October 2015 that it had completed its production of
responsive documents, it filed a motion for summary judgment,
which is now before the Court. See Joint Status
Report 1, ECRNo. 23; Def.'s Mot. Summ. J., ECF No. 25.
Department states that, of the 157 responsive records that it
retrieved in response to Mr. Davidson's FOIA request,
"34 were released in full, 100 were released in part,
and 23 were withheld in full." Defs.' Statement
¶ 45. To justify its withholdings, the Department
invokes FOIA Exemptions 5 and 6, see 5 U.S.C. §
552(b)(5), (6), as well as Exemption (d)(5) under the Privacy
Act of 1974, see Id. § 552a(d)(5) (denying
individuals access to "information compiled in
reasonable anticipation of a civil action or
proceeding"). See generally Def.'s Mem. P.
& A. Supp. Mot. Summ. J. 13-24, ECF No. 25 [hereinafter
Defs.' Mem.] (invoking the three exemptions).
the course of briefing on the Department's motion for
summary judgment, the Department asserts that it discovered
two additional responsive documents and released both
documents in part to Mr. Davidson. See Defs.'
Reply Supp. Mot. Summ. J. 5-7, ECF No. 29 [hereinafter
Defs.' Reply]; Stein Deck ¶ 27, ECF No. 29-1. As
with the original 157 responsive records, the Department
invokes FOIA Exemption 5, FOIA Exemption 6, and Privacy Act
Exemption (d)(5) to justify its withholdings with respect to
the two additional documents, and makes the same arguments in
doing so. Compare Defs.' Mem. 13-24 (alleging
withholdings of information "compiled in the reasonable
expectation of civil litigation, " information subject
to "civil discovery privileges, " information
subject to the deliberative process privilege, and employee
names and contact information), with Defs.'
Reply 5-7 (same).
response, Mr. Davidson (1) contends that the Department's
search for responsive documents "fail[ed] to
account" for certain potential sources of responsive
records, see Mem. Opp'n Mot. Summ. J. 2, ECF No.
28 [hereinafter Pl's Opp'n]; (2) challenges the
Department's withholdings under FOIA Exemptions 5 and 6,
see Id. at 2-8; and (3) accuses the Department of
harboring an "intent not to be compliant with FOIA,
" id. at 8. The Court reviews the applicable
legal standard before analyzing the merits of the
cases typically and appropriately are decided on motions for
summary judgment." Defenders of Wildlife v. U.S.
Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009).
Summary judgment is appropriate when "the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). A "material" fact is one
capable of affecting the substantive outcome of the
litigation. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute is "genuine" if
there is enough evidence for a reasonable jury to return a
verdict for the non-movant. See Scott v. Harris, 550
U.S. 372, 380(2007).
principal purpose of summary judgment is to streamline
litigation by disposing of factually unsupported claims or
defenses and determining whether there is a genuine need for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317,
323-24 (1986). The movant bears the initial burden of
identifying portions of the record that demonstrate the
absence of any genuine issue of material fact. See
Fed.R.Civ.P. 56(c)(1); Celotex, 477 U.S. at 323. In
response, the non-movant must point to specific facts in the
record that reveal a genuine issue that is suitable for
trial. See Celotex, 477 U.S. at 324. In considering
a motion for summary judgment, a court must "eschew
making credibility determinations or weighing the evidence,
" Czekalski v. Peters, 475 F.3d 360, 363 (D.C.
Cir. 2007), and all underlying facts and inferences must be
analyzed in the light most favorable to the non-movant,
see Anderson, 477 U.S. at 255. Nevertheless,
conclusory assertions offered without any evidentiary support
do not establish a genuine issue for trial. See Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
assessing a summary judgment motion in a FOIA case, a court
makes a de novo assessment of whether the agency has
properly withheld the requested documents. See 5
U.S.C. § 552(a)(4)(B); Judicial Watch, Inc. v. U.S.
Dep 't of Homeland Sec, 598 F.Supp.2d 93, 95 (D.D.C.
2009). To prevail on a motion for summary judgment, "the
defending agency must prove that each document that falls
within the class requested either has been produced, is
unidentifiable or is wholly exempt from the Act's
inspection requirements." Weisberg v. U.S. Dep't
of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980) (internal
quotation marks omitted) (quoting Nat'l Cable
Television Ass 'n v. FCC, 479 F.2d 183, 186 (D.C.
Cir. 1973)). To meet its burden, a defendant may rely on
declarations that are reasonably detailed and non-conclusory.
See Citizens for Responsibility & Ethics in Wash. v.
U.S. Dep't of Labor, 478 F.Supp.2d 77, 80 (D.D.C.
2007) ("[T]he Court may award summary judgment solely on
the basis of information provided by the department or agency
in declarations when the declarations describe 'the
documents and the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and
are not controverted by either contrary evidence in the
record nor by evidence of agency bad faith.'"
(quoting Military Audit Project v. Casey, 656 F.2d
724, 738 (D.C. Cir. 1981))). "Ultimately, an
agency's justification for invoking a FOIA exemption is
sufficient if it appears 'logical' or
'plausible.'" Wolfv. CIA, 473 F.3d 370,
374-75 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689
F.2d 1100, 1105 (D.C. Cir. 1982)). Generally, a reviewing
court should "respect the expertise of an agency"
and not "overstep the proper limits of the judicial role
in FOIA review." Hoyden v. Nat'l Sec.
Agency/Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C. Cir.