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Brennan Center for Justice v. Department of State

United States District Court, District of Columbia

November 6, 2017

BRENNAN CENTER FOR JUSTICE, Plaintiff,
v.
DEPARTMENT OF STATE, Defendant.

          MEMORANDUM OPINION

          BERYL A. HOWELL Chief Judge.

         The plaintiff, Brennan Center for Justice, challenges the response of the defendant, the U.S. Department of State, to the plaintiffs request, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for all agency records pertaining to unpublished international agreements between the United States and other nations from 1990 to the present. While the original request sought almost thirty years of records, the parties have narrowed the scope of their dispute to redacted information in nine documents prepared for and released in full to the Congress. The parties have now filed cross-motions for summary judgment regarding the propriety of the disputed redactions, and the defendant has moved to dismiss the plaintiffs claims as to those documents no longer disputed. Def'sMot. Dismiss, or, in the Alternative, Summ. J. ("Def'sMot."), ECF No. 27; Pl's Cross-Mot. Summ. J. ("Pl's Cross-Mot."), ECF No. 29. For the reasons discussed below, the defendant's motion to dismiss and for summary judgment is granted, and the plaintiffs cross-motion for summary judgment is denied.

         I. Background

         The plaintiffs January 2014 FOIA request sought the defendant's records regarding unpublished international executive agreements transmitted to Congress, pursuant to the Case- Zablocki Act, 1U.S.C. § 112b. Pl's Mem. Opp'n Def.'s Mot. & Mem. Supp. Cross-Mot. ("Pl's Opp'n") at 1-2, ECF No. 28. The plaintiff, a nonpartisan law and policy institute, sought these records under FOIA for the purpose of understanding the "scope and nature of international agreements that have been withheld from the full Congress and the public on national security grounds." Id. at 3 (quoting Compl. ¶5). The parties' narrowed dispute is whether the defendant must produce the classification levels for each individual unpublished international agreement listed in nine documents for each of the nine years 2004 through 2011 and 2013. Id. at 5, 8.

         A. The United States's Unpublished International Agreements

         The Secretary of State must, as a general rule, publish in a compilation entitled United States Treaties and Other International Agreements international agreements that the United States has concluded with another nation. 1 U.S.C. § 112a(a). Under the Case-Zablocki Act, the Secretary transmits to Congress the text of any such agreement, other than a treaty, "as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter." Id. § 112b(a). The Secretary may determine, however, that a non-treaty agreement need not be published if one of several statutorily-specified criteria apply. Id. § 112a(b). One such criterion is that "public disclosure of the text of the agreement would, in the opinion of the President, be prejudicial to the national security of the United States." Id. § 112a(b)(2)(D). Upon determining that a particular agreement's publication would prejudice the national security, the Secretary must transmit the agreement to the appropriate House and Senate committees, rather than to the full Congress, "under an appropriate injunction of secrecy to be removed only upon due notice from the President." Id. § 112b(a).

         The Case-Zablocki Act also requires the Secretary to transmits annually to Congress an index of international agreements not published or proposed to be published that the United States "has signed" or "proclaimed, " or "with reference to which any other final formality has been executed, or that has been extended or otherwise modified, during the preceding calendar year." Id. § 112b(d)(1). This index lists each agreement "by country, date, title, and summary, " and describes "the duration of activities under [each] agreement and [each] agreement itself." Id. The Secretary may submit such index in classified form. Id. § 112b(d)(2).

         B. The Plaintiff s FOIA Request

         On January 31, 2014, the plaintiff requested records pertaining to the Secretary's non-publication of international agreements pursuant to the Secretary's authority under 1 U.S.C. § 112a and those agreements' transmission to Congress in compliance with the Case-Zablocki Act. Pl's Opp'n at 3. For a period of almost thirty years-1990 to the present-the plaintiff sought (1) the number of international agreements withheld from publication due to a determination that such agreements' publication posed a risk to national security; (2) the number of international agreements withheld from publication pursuant to 22 C.F.R. § 181.8(a)(9), which implements the Case-Zablocki Act, see Id. § 181.1, by providing for non-publication of international agreements that have received a national security classification; (3) the number of international agreements transmitted to appropriate congressional committees under an injunction of secrecy; (4) the number of such agreements presently held under an injunction of secrecy; (5) the number of such agreements for which an injunction of secrecy was removed; and (6) the title, date, identity of the parties, and description of those agreements whose injunction of secrecy was removed. Pl's Opp'n at 3-4. The plaintiff also sought, for the period 1972 to the present, any unclassified reports submitted, in whole or part, to Congress in compliance with the Case-Zablocki Act, and, for a slightly shorter period, any report submitted under this law to the Speaker of the House of Representatives and Chairman of the Senate Committee on Foreign Relations. Id. at 4. Finally, the plaintiff sought records explaining what constitutes, under 1 U.S.C. § 112b(a), an "appropriate injunction of secrecy" or a disclosure that is "prejudicial to the national security of the United States, " or any other terms or provisions of 1 U.S.C. §§ 112a(b)(2)(B), 112a(b)(2)(D), 112a(c), 112b(a), 112b(b), 112b(d), or 112b(e), or 22 C.F.R. §§ 181.2(a)(1) or 181.7. Id.

         The defendant, by letter dated February 26, 2014, acknowledged receipt of the plaintiffs FOIA request and denied the plaintiffs request for expedited processing, but did not provide an estimated date of completion for the request. Id. at 5.

         C. The FOIA Lawsuit and the Documents At Issue

         Ten and a half months after the plaintiff had submitted its FOIA request, the defendant had not issued a final response determining whether the defendant would release the requested records. Id. The plaintiff filed the instant action under FOIA on December 17, 2015, to compel the defendant to produce the requested records. Id. At that time, the defendant had not finished processing the plaintiffs FOIA request. Def.'s Statement of Material Facts as to Which There is No Genuine Issue ("Def.'s SUMF") ¶ 1, ECF No. 27. Between June 6, 2016 and January 17, 2017, the defendant undertook a rolling production of records to the plaintiff, producing to the plaintiff ninety-three records in full and forty-three records in part and withholding another twenty-two records entirely, which the defendant documented through submission to the Court of nine Status Reports. See Defendant's First through Ninth Status Reports, ECF Nos. 14, 15, 16, 18, 19, 21, 22, 23 & 24. Among the records the defendant produced to the plaintiff were a 2012 Index, which contained no classified agreements and which the defendant thus produced in full, and a similar index for the year 2014, which the defendant redacted in part to remove information regarding an agreement whose content, but not existence, was classified. Decl. of Eric F. Stein, Dir., Office of Info. Programs & Servs. ("OIPS"), U.S. Dep't of State ("First OIPS Decl.")¶ 19 n.l, ECF No. 27-1. Using the information the defendant produced, the plaintiff was able to publish a table in a report, entitled The New Era of Secret Law (Oct. 2016), that listed, for the years 2004 through 2014, the number of published and unpublished international agreements that the United States concluded, as well as the percentage of such agreements not published. Pl.'sOpp'nat6. [1]

         The parties ultimately agreed to further narrow their dispute to the defendant's redaction of the classification levels of each executive agreement listed in the following nine documents, totaling 164 pages:

1. Document C05997746: a 10-page table entitled "Case Act Index - 2004 (Sorted by Country)" ("2004 Index");
2. Document C05997747: a 19-page table entitled "Case Act Index - 2005 (Sorted by Country)" ("2005 Index");
3. Document C06005005: a 23-page table entitled "Index of International Agreements for the 2006 reporting year submitted in fulfillment of the requirements of 1 U.S.C. 112b (d)" ("2006 Index");
4. Document C06005002: a 19-page table entitled "Index of International Agreements for the 2007 reporting year submitted in fulfillment of the requirements of 1 U.S.C. 112b (d)" ("2007 Index");
5. Document C06005001: a 27-page table entitled "2008 Index of International Agreements Not Printed in TIAS submitted in fulfillment of the requirements of 1 U.S.C. § 112b(d)" ("2008 Index");
6. Document C06004999: a 17-page table entitled "Index of International Agreements for the 2009 reporting year submitted in fulfillment of the requirements of 1 U.S.C. 112b ...

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