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Davidson v. United States Department of State

United States District Court, District of Columbia

September 2, 2016

UNITED STATES DEPARTMENT OF STATE, et al, Defendants. Re Document No. 25


          RUDOLPH CONTRERAS United States District Judge


         Plaintiff 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.

         The 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 withholdings.

         II. BACKGROUND[1]

         A. Non-FOIA Communications

         Plaintiff 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].[2] 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 ¶2.

         According 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. Id.

         On or 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.[3] 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").

         B. FOIA Requests

         In 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).[4] In his request, which he titled "Privacy Act/Freedom of Information Request, " Mr. Davidson sought

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 30, 2009.

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.[5] 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 Department's response).

         Mr. 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).

         Mr. 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).

         At some 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).

         C. Procedural History

         Mr. 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.

         The 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).

         During 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).[6]

         In 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 parties' positions.


         "FOIA 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).

         The 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).

         When 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. 1979).

         IV. ...

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