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Canning v. United States Department of State

United States District Court, District of Columbia

October 24, 2018

GEORGE CANNING, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF STATE, Defendant. SAE PRODUCTIONS, INC., Plaintiff,
v.
UNITED STATES DEPARTMENT OF STATE, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.

         This action involves two overlapping Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requests for State Department records, and two lawsuits seeking to compel the Department to release those records. The first request, submitted by Plaintiffs George Canning and Jeffrey Steinberg (“the Canning Plaintiffs”), sought (1) a 2010 memorandum from the President to his foreign policy advisors, entitled “Presidential Study Directive 11” (“PSD-11”), and related records, and (2) records concerning the Muslim Brotherhood. Dkt. 72-4 at 2. That request is the subject of the litigation in Canning v. Department of State, No. 13-cv-831 (“the Canning case”). The parties to the Canning case, with leave of the Court, previously filed cross- motions for summary judgment with respect to the first category of records-records relating to PSD-11-and the Court issued an opinion resolving those motions. Canning v. Dep't of State, 134 F.Supp.3d 490 (D.D.C. 2015) (“Canning I”). The second request, submitted by SAE Productions, Inc. (“SAE”), piggybacked on the first. It referred to a news report about the Canning case and requested copies of three documents quoted in the article and all other “records that are being processed pursuant to” the Canning Plaintiffs' FOIA request. Dkt. 72-4 at 24-25. The second request is the subject of the litigation in SAE Productions, Inc. v. Department of State, No. 15-cv-1245 (“the SAE case”).

         Given the overlap between the Canning and SAE cases, the Court granted the State Department's motion to consolidate, see Minute Order (July 13, 2017), which the Department filed almost two years after the Court issued the Canning I opinion, Dkt. 67. After the cases were consolidated, the State Department moved for summary judgment with respect to all remaining claims in the two cases, Dkt. 74; the Canning and SAE Plaintiffs opposed that motion, Dkt. 80, Dkt. 77; and the Canning Plaintiffs also filed a cross-motion for summary judgment with respect to one document, Dkt. 79, and contested the adequacy of the State Department's response to the Canning I decision, Dkt. 49. As narrowed by the parties in their respective briefs, only the following issues remain for decision: SAE (1) contests the adequacy of the State Department's search for responsive records and (2) challenges the Department's reliance on FOIA Exemption 5 to withhold certain purportedly deliberative records, and the Canning Plaintiffs (1) challenge the Department's reliance on FOIA Exemption 1 to withhold certain purportedly classified records that were classified after they submitted their FOIA request and (2) dispute its invocation of FOIA Exemption 5 to withhold certain purportedly deliberative records.

         For the reasons explained below, the Court concludes that the Department's search was adequate. With respect to those records that were classified in whole or in part after the Canning Plaintiffs submitted their FOIA request, the Court concludes that the Department has satisfied the requirements of Executive Order 13562-which governs the processes for post-request classification of responsive records-for all but four of the withheld records. As to those four, however, the Department has not yet shown that it complied with Executive Order 13562, and thus has not shown that it properly invoked FOIA Exemption 1. With respect to the Defendant's reliance on the deliberative process privilege to withhold various records, the Court concludes, first, that the Canning Plaintiffs have failed to establish the absence of a dispute of material fact as to the one document at issue in their cross-motion for summary judgment; second, that the Department has failed to carry its similar burden as to three “draft” letters to King Abdullah of Saudi Arabia; and, finally, that the Department has carried its burden as to its remaining assertions of the deliberative process privilege. The Court will, accordingly, grant in part and deny in part the Department's motion for summary judgment and will deny the Canning Plaintiffs' cross-motion for summary judgment.

         I. BACKGROUND

         A. FOIA Requests

         1. Canning Plaintiffs' Request

         In December 2012, George Canning submitted a FOIA request to the State Department seeking four categories of records:

(1) A copy of Presidential Study Directive 11 [“PSD-11”], as issued by President Obama.
(2) Documents and other information created or compiled by the State Department which was utilized internally to the State Department and/or in submission to the President, in the creation of PSD-11.
(3) Documents and other information created or compiled by the State Department which were generated pursuant to the mandates of PSD-11.
(4) All reports created or compiled by the State Department from 2005 to [the] 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.

Dkt. 72-4 at 2. PSD-11 is a classified document, which Plaintiffs claim was created “for the purpose of ordering an assessment of the Muslim Brotherhood and other ‘political Islamist' movements.” Dkt. 1 at 2 (SAE Compl. ¶ 6), SAE Prods., Inc. v. Dep't of State, No. 15-cv-1245 (D.D.C.); see also Dkt. 1 at 3 (Canning Compl. ¶ 10). Jeffrey Steinberg was later added as a co-requester, and Canning and Steinberg filed suit together in June 2013 seeking to compel the Department to search for and to produce all responsive records on an expedited basis. See Dkt. 1 (Canning Compl.).

         2. SAE Productions Request

         In June 2014, a publication based in Dubai-Gulf News Report-published an article entitled “U.S. Document Reveals Cooperation Between Washington and Brotherhood.” Dkt. 72-4 at 26. According to the article, President Obama issued PSD-11 in 2010 to obtain “an assessment of the Muslim Brotherhood and other ‘political Islamist' movements.” Id. Although observing that “PSD-11 remains classified, ” the article reported that, pursuant to “an ongoing . . . FOIA[] lawsuit, thousands of pages of documentation of the . . . State Department's dealings with the Muslim Brotherhood are in the process of being declassified and released to the public.” Id. The article then quoted from three documents “obtained under . . . FOIA”: (1) “A State Department Cable” regarding an April 2012 meeting between “Mission Benghazi” and “a senior member of the Muslim Brotherhood steering committee;” (2) “Another State Department paper . . . contain[ing] talking points for Deputy Secretary of State William Burns' scheduled . . . meeting with [a] Muslim Brotherhood leader” and noting that, until recently, “the Muslim Brotherhood was banned for over three decades;” and, finally, (3) “An undated State Department cable” that referred to “Mohammad Swan, Chairman of [the] Justice and Construction Party.” Id. at 26-27.

         Shortly after the Gulf New Report article appeared, SAE submitted a FOIA request to the State Department that requested copies of the documents discussed in the article and “all . . . records that are being processed pursuant to” the FOIA request mentioned in the article. Dkt. 72-4 at 24-25. The State Department has since confirmed that the only FOIA request relating to the Muslim Brotherhood that was pending before it at the relevant time was the Canning Plaintiffs' request. Dkt. 72-1 at 5 (First Stein Decl. ¶ 9); Dkt. 74-2 at 2 (Def.'s SUMF ¶ 5). The Department, accordingly, released to SAE all of the records that it had previously released to the Canning Plaintiffs. Dkt. 72-1 at 6 (First Stein Decl. ¶ 11).

         B. Procedural History

         Prior to consolidation of the Canning and SAE cases, the parties to the Canning case conferred and agreed to prioritize the production of records relating to PSD-11 and, with leave of the Court, filed cross-motions for partial summary judgment regarding the Department's response to that portion of the Canning Plaintiffs' request. Canning I, 134 F.Supp.3d at 497- 98. While those motions were pending, the State Department continued to process and to produce records responsive to the remaining portion of the Canning Plaintiffs' request-that is, their request for records relating to the Muslim Brotherhood. Id. at 498. In the Canning I decision, the Court granted in part and denied in part the parties' competing cross-motions for partial summary judgment. The Court granted the Canning Plaintiffs' motion to the extent it sought disclosure of the portion markings that were redacted from two documents, but otherwise denied the motion. Id. at 518. The Court, moreover, denied the Department's cross-motion with respect to the withholding of records that were classified after the Canning Plaintiffs' submitted their FOIA request, but otherwise granted the motion. Id. With respect to the post-request classification of responsive documents, the Court directed the Department to supplement the record with additional information regarding the post-request classification process. Id. The Department did so, Dkt. 48, and the Canning Plaintiffs challenged the adequacy of that further submission, Dkt. 49; see also Dkt. 51 (Department's reply).

         After the Court issued the Canning I decision, the parties agreed to defer entry of a further briefing schedule until the Department had completed its review and processing of potentially responsive records, Dkt. 53, and the parties engaged in extended negotiation regarding the terms and scope of the search, Dkts. 55-65. After agreeing that the Department's search was adequate and narrowing their disagreement regarding the relevant withholdings, the parties jointly proposed a schedule for briefing the remaining issues. Dkt. 66 at 2.

         Shortly before the Court issued the Canning I decision, SAE brought its own FOIA action. SAE Prods., Inc. v. Dep't of State, No. 15-cv-1245 (D.D.C. filed June 4, 2013). That action was assigned to Judge Chutkan and proceeded along a parallel schedule for over two years. Over that time, SAE withdrew its request for PSD-11, Minute Order (Nov. 30, 2015), SAE Prods., No. 15-cv-1245, and the Department made several productions. See, e.g., id., Minute Order (Jan. 5, 2016), SAE Prods., No. 15-cv-1245, Minute Order (April 18, 2016), SAE Prods., No. 15-cv-1245, Minute Order (Aug. 25, 2016), SAE Prods., No. 15-cv-1245. Eventually, SAE and the Department proposed that Judge Chutkan adopt the same briefing schedule set in the Canning case, and the State Department indicated that it intended “to move shortly to consolidate [the SAE] case with Canning.” Dkt. 24 at 2, SAE Prods., No. 15-cv-1245. The Department subsequently moved to consolidate, Dkt. 25, SAE Prods., No. 15-cv-1245, and neither SAE, Dkt. 26, SAE Prods., No. 15-cv-1245, nor the Canning Plaintiffs opposed that motion, Dkt 67. The Court, accordingly, consolidated the cases and set a revised briefing schedule. Minute Order (Sept. 27, 2017). The State Department has now moved for summary judgment in both cases, Dkt. 74; the Canning Plaintiffs and SAE have opposed that motion, Dkt. 80, Dkt. 77; and the Canning Plaintiffs have cross-moved for partial summary judgment with respect to a single document, Dkt. 79.

         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 . . . [and] 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 (1978). The Act embodies a “general philosophy of full agency disclosure.” U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 494 (1994) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 360 (1976)). It thus mandates that an agency disclose records on request unless they fall within one of nine exemptions. See 5 U.S.C. § 552(b). “These exemptions are ‘explicitly made exclusive' and must be ‘narrowly construed.'” Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011) (first quoting EPA v. Mink, 410 U.S. 73, 79 (1973), then quoting FBI v. Abramson, 456 U.S. 615, 630 (1982)).

         FOIA cases are typically resolved on motions for summary judgment under Federal Rule of Civil Procedure 56. See 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, 322-23 (1986). An agency may meet this burden by submitting “relatively detailed and non-conclusory” affidavits or declarations, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and an index of the information withheld, Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973); Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). An agency “is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced . . . or is wholly exempt from [FOIA's] inspection requirements.'” Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). The Court reviews the agency's decision de novo, and the agency bears the burden of sustaining its action. 5 U.S.C. § 552(a)(4)(B).

         III. ANALYSIS

         A. Adequacy of the Search

         As noted above, the Canning Plaintiffs do not contest the adequacy of the Department's search. Dkt. 66 at 1 (Joint Status Report ¶ 3). Although SAE does not challenge the adequacy of the Department's search for the second category of records it seeks-that is, “copies of documents processed pursuant to” the Canning Plaintiffs' FOIA request-it does argue that the Department has failed to carry its burden of showing that it conducted a reasonable search for the first category of records-that is, copies of the documents identified in the Gulf News Report article. Dkt. 77 at 8. According to SAE, the Department has not indicated which search terms and timeframe it used and has not explained why it searched only a single database, the “FREEDOMS 2” or “F2” database. Id. In short, according to SAE, the Department has not offered “even a scintilla of information” regarding the search. Id. As explained below, this contention is belied by the record.

         An agency fulfills its obligations under FOIA to conduct an adequate search “if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.'” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). The agency “cannot limit its search to only one record system if there are others that are likely to turn up the information requested, ” but, at the same time, it need not “search every record system.” Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Similarly, the agency need not deploy every conceivable search term or permit the FOIA requester to dictate the search terms in the course of litigation, but it must use terms reasonably calculated to locate responsive records. Agility Pub. Warehousing Co. K.S.C. v. NSA, 113 F.Supp.3d 313, 339 (D.D.C. 2015). To prevail on summary judgment, the agency must submit declarations that “‘denote which files were searched,' [and] by whom those files were searched, and [that] reflect a ‘systematic approach to document location.'” Liberation Newspaper v. U.S. Dep't of State, 80 F.Supp.3d 137, 144 (D.D.C. 2015) (quoting Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 371 (D.C. Cir. 1980)); see also Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006); Oglesby, 920 F.2d at 68. Those declarations “are accorded a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.'” SafeCard Servs., 926 F.2d at 1200 (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). But where “a review of the record raises substantial doubt, particularly in view of ‘well defined requests and positive indications of overlooked materials,' summary judgment is inappropriate.” Valencia-Lucena, 180 F.3d at 326 (citation omitted).

         The State Department relies on two declarations from Eric Stein, the Director of the Department's Office of Information Programs and Services (“IPS”), in support of its contention that it conducted an adequate search for the records identified in the Gulf News Report article. See Dkt. 72-1 (First Stein Decl.); Dkt. 81-1 (Second Stein Decl.). In the first, Stein attests that the IPS Branch Chief for Litigation and Appeals reviewed SAE's FOIA request for “copies of all the State Department documents and records identified in [the] June 18, 2014 Gulf News Report” and “determined that the only FOIA lawsuit against the Department concerning the Muslim Brotherhood was the suit filed by Plaintiffs Canning and Steinberg.” Dkt. 72-1 at 5 (First Stein Decl. ¶ 9). Based on this assessment, which SAE does not dispute, the Branch Chief searched the “F2” database “using information quoted in” the “Gulf News Report article cited in SAE's request, ” and she “located the documents described in the article.” Dkt. 72-1 at 5 (First Stein Decl. ¶ 9). The second Stein declaration further attests that the IPS Branch Chief used search terms derived from the Gulf News Report article's quotations from the ...


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