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Judicial Watch, Inc. v. U.S. Department of State

United States District Court, District of Columbia

September 6, 2017



          JOHN D.BATES United States District Judge

         This case arises from identical Freedom of Information Act ("FOIA") requests that Judicial Watch submitted to the Department of State and the Federal Bureau of Investigation, seeking any records concerning Anwar Aulaqi, [1] an American-born Muslim cleric who was killed by a drone strike in Yemen in September 2011. After several years of document productions and ongoing negotiations, the parties have narrowed their remaining disputes to two issues: whether the FBI properly withheld in full seven surveillance videos under FOIA Exemption 7(E), and whether the State Department conducted an adequate search for records under FOIA. Now before the Court are the parties' cross-motions for summary judgment. The Court will grant summary judgment to the FBI and deny Judicial Watch's cross-motion for summary judgment on the question whether the FBI properly withheld the surveillance videos. The Court is not able to grant either the State Department's or Judicial Watch's respective motions for summary judgment regarding whether the State Department conducted an adequate search, and therefore will deny both motions. However, the State Department may file a renewed motion that supplements the record and addresses the concerns raised by the Court below.

         I. BACKGROUND

         Anwar Aulaqi was a U.S. citizen born in New Mexico in 1971. PL's Stmt, of Undisputed Facts [ECF No. 54] ¶ 6. Aulaqi grew up in Yemen and later studied at universities in the United States. See Nat'l Comm'n on Terrorist Attacks Upon the U.S., The 9/11 Comm'n Report at 221 (2004), available at ("9/11 Comm'n Report").[2] The FBI investigated Aulaqi in 1999 and 2000 after learning that he may have been contacted by an associate of Osama Bin Laden. See PL's Stmt, of Undisputed Facts ¶ 8 (citing 9/11 Comm'n Report at 517). The FBI also investigated Aulaqi's contacts with two of the 9/11 hijackers at mosques in San Diego and Virginia. Id. (citing 9/11 Commission Report at 221, 517). After the 9/11 terrorist attacks, the FBI conducted video and photographic surveillance of Aulaqi between at least September 27, 2001 and March 29, 2002, at various locations in and around Washington, D.C. Id¶ 19. Thereafter, Aulaqi left the United States and returned to Yemen. He was killed by a drone strike in Yemen on September 30, 2011. Id¶ 6.

         The same day that Aulaqi was killed, Judicial Watch submitted identical FOIA requests to the State Department and the FBI requesting:

[A]ny and all records concerning, regarding or related to a deceased individual named Anwar al-Awlaki, a/k/a Anwar Aulaqi. This individual was born on April 22, 1971 in Las Cruces, New Mexico and died on or about September 30, 2011. As proof of death, [Judicial Watch has] enclosed a copy of the New York Times obituary of the individual.

Compl. [ECF No. 1] ¶¶ 6, 9; see also Answer [ECF No. 10] ¶¶ 6, 9.

         By letter dated October 6, 2011, the FBI acknowledged receipt of Judicial Watch's FOIA request, assigned it a request number, and advised that the FBI was searching the indices to the Central Records System for responsive information. Compl. ¶ 10; Answer ¶ 10; Hardy 1st Decl. [ECF No. 51-4] ¶ 6. By letter dated October 20, 2011, the State Department acknowledged receipt of the FOIA request and assigned it a case control number. The State Department indicated that it would notify Judicial Watch "as soon as responsive material has been retrieved and reviewed." Compl. ¶ 7; see also Answer ¶ 7.

         Neither defendant agency provided a substantive response before Judicial Watch filed this lawsuit on June 4, 2012. See Answer ¶ 12. On August 30, 2012, the Court issued a scheduling order under which the State Department and FBI were to provide monthly productions of any non-exempt responsive records. See Aug. 30, 2012 Scheduling Order [ECF No. 15] at 1. Thereafter, the defendant agencies conducted their respective searches and produced records responsive to the FOIA request. The FBI ultimately released more than 4, 400 pages of non-exempt, responsive records, in full orpart, between December 21, 2012 and September 30, 2014. Hardy 1st Decl. ¶ 8. The State Department released 448 non-exempt, responsive records, in full or part, from nine departmental records systems between September 28, 2012 and June 19, 2015. Fischer Decl. [ECF No. 51-5] ¶¶ 7-32.

         On December 18, 2014, the State Department and the FBI informed the Court that they had "finished the primary processing of responsive materials, " with the exception of certain records referred to non-defendant agencies for processing. See Dec. 18, 2014 Joint Status Report [ECF No. 27] at 1. On June 19, 2015, the State Department and the FBI provided Judicial Watch with draft Vaughn indices addressing all documents withheld pursuant to an applicable FOIA exemption. See July 24, 2015 Joint Status Report [ECF No. 28] at 1-2. The State Department also conducted supplemental searches of additional records, including: retired electronic files used by employees in the Office of the Secretary during former Secretary Clinton's tenure; unclassified and classified emails of six individuals who served under Secretary Clinton; tens of thousands of pages of documents provided to the State Department by four individuals who served under Secretary Clinton; and approximately 30, 000 emails (comprising approximately 55, 000 pages) provided to the State Department by Secretary Clinton. See Feb. 12, 2016 Joint Status Report [ECF No. 40] at 2-3; Fischer Decl. ¶¶ 70-78. The State Department released more than 1, 700 records, in full or part, from these supplemental searches. Fischer Decl. ¶¶ 33-39.

         On July 8, 2016, the State Department sent a letter to then-FBI Director James Comey requesting that the FBI provide any additional work-related emails of Secretary Clinton. Fischer Decl. ¶ 79. The FBI transferred this information to the State Department on July 21 and August 5, 2016. Id. A search of these emails yielded two responsive records. Id¶81. The parties have continued to cooperatively engage in ongoing negotiations in an effort to narrow the issues in dispute. See Jan. 12, 2017 Joint Status Report [ECF No. 50] ¶2. As a result, the parties proposed a briefing schedule and identified five remaining disputed issues. See Id. The parties then filed cross-motions for summary judgment, which further narrowed the remaining issues to two: (1) whether the FBI can withhold in full seven surveillance videos under FOIA Exemption 7(E); and (2) whether the State Department conducted an adequate search for responsive records. The Court addresses these issues below.


         Summary judgment is appropriate where "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). Evidence is construed in the light most favorable to the non-moving party; however, factual assertions made in the moving party's declarations may be accepted as true unless the opposing party submits affidavits, declarations, or documentary evidence to the contrary. See, e.g., Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006); Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

         "FOIA cases typically and appropriately are decided on motions for summary judgment." Georgacarakos v. FBI, 908 F.Supp.2d 176, 180 (D.D.C. 2012) (internal quotation marks omitted) (quoting Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)). FOIA provides a '"statutory right of public access to documents and records' held by federal agencies." Citizens for Responsibility & Ethics in Wash, v. U.S. Dep't of Justice, 602 F.Supp.2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)). As the Supreme Court has explained, FOIA is "a means for citizens to know what their Government is up to." Nat'l Archives & Records Admin, v. Favish, 541 U.S. 157, 171 (2004) (internal quotation marks omitted). Thus, FOIA requires federal agencies to make their records available to the public upon request, unless the requested information falls under one of nine statutory exemptions to disclosure. See 5 U.S.C. § 552(b).

         District courts review denovo an agency's decision to withhold requested documents under a statutory exemption, and the agency "bears the burden of proving the applicability of claimed exemptions." Am. Civ. Liberties Union (ACLU) v. U.S. Dep't of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011); 5 U.S.C. § 552(a)(4)(B). To satisfy its burden, the agency may submit supporting declarations of responsible agency officials. See ACLU, 628 F.3d at 619. "If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the withheld information logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." Id. Agency declarations are afforded "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible.'" ACLU, 628 F.3d at 619 (some internal quotation marks omitted) (quoting Larson v. U.S. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). In cases like this one, which implicate national security concerns, courts must "accord substantial weight to agency affidavits." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal quotation marks omitted); Ctr. for Nat. Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 926-27 (D.C. Cir. 2003) ("[B]oth the Supreme Court and this Court have expressly recognized the propriety of deference to the executive in the context of FOIA claims which implicate national security.").


         A. FBI Surveillance Videos

         The FBI withheld seven surveillance videos in full under FOIA Exemption 7(E).[3] Judicial Watch argues that the FBI has not sustained its burden of showing that the videos may be withheld in full and, at a minimum, the FBI should be required to release segregable portions of the videos. The Court disagrees and finds the FBI properly withheld the videos and thus is entitled to summary judgment.

         FOIA exemption 7(E) exempts from disclosure "records or information compiled for law enforcement purposes, " the production of which "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E). The D.C. Circuit has recognized that "Exemption 7(E) sets a relatively low bar for the agency to justify withholding." Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). The agency need only demonstrate "logically how the release of the requested information might create a risk of circumvention of the ...

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