United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.
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”).
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.
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
Canning Plaintiffs' Request
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.).
SAE Productions Request
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.
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).
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).
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.
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,
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)).
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).
Adequacy of the Search
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
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).
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 ...