United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE.
Israeli-Palestinian conflict casts a long shadow, one that
extends even to this Freedom of Information Act suit.
Plaintiff here, the American Center for Law and Justice,
challenges the State Department's withholding of portions
of a report containing information about the work of the
United Nations Relief and Works Agency for Palestine Refugees
in the Near East (UNRWA). State withheld the information
under FOIA Exemption 1, contending that its release would be
a threat to national security. In this suit, ACLJ challenges
the withholding, and State now moves for summary judgment.
Because the Court finds that the invocation of Exemption 1 is
sound, it will grant the Motion.
a non-profit organization “dedicated to the defense of
constitutional liberties secured by law.” ECF No. 1
(Compl.), ¶ 5. In line with its mission, Plaintiff
regularly makes records requests to federal, state, and local
governments and then publishes its findings. Id.
This case stems from one such request. In recounting the
procedural history, the Court, for the purposes of this
Motion, accepts as true ACLJ's factual retelling of all
that has transpired.
February 15, 2018, Plaintiff submitted a FOIA request to
State's Office of Information Programs and Services (IPS)
seeking various documents related to the work of the UNRWA.
Id., ¶ 7. The request specifically asked for a
State Department report concerning UNRWA aid to Palestinian
refugees. Id. When Defendant failed to make a
determination within the requisite twenty-day period,
Plaintiff filed the instant Complaint. Id.,
¶¶ 31-33; see 5 U.S.C. § 552(a)(6)(A)(i).
later amended its request, limiting it to the specific UNRWA
Report to Congress on Protracted Refugee Situations.
See ECF No. 15-4 (Defendant's Statement of
Undisputed Material Facts), ¶ 3; see also ECF
No. 16-2 (Redacted Report). Congress directed the State
Department to write such a report on UNRWA activities.
See S. Rep. No. 113-81, at 70 (2013). The Report
included information concerning the number of people
receiving UNRWA services and the extent to which such
services further the security interests of the United States
and Middle Eastern allies. See Redacted Report at 1, 3, 4;
see also ECF No. 15-1 (Declaration of Eric F. Stein), ¶
13, 2018, State released most of the five-page Report but
withheld certain portions pursuant to FOIA Exemption 1.
See Reply at 5; Stein Decl., ¶¶ 16-30. As
a classified document, the Report contained a classification
rationale and related markings by Anne C. Richard, the
Assistant Secretary for the Bureau of Population, Refugees,
and Migration (PRM). Richard had original classification
authority to review the Report. See Stein Decl.,
¶ 16. Further explaining the document's
classification, State submitted the Declaration of Eric F.
Stein, Director of IPS, who also had original classification
authority. Id., ¶ 1. The Declaration explains
that the release of the full Report would create a risk to
national security. Id., ¶¶ 13-30. On
August 20, Defendant filed the current Motion for Summary
Judgment. Plaintiff thereafter requested that the Court
review the Report in camera, which invitation this
Court accepted. See Opp. at 14; Minute Orders of
October 4 & 5, 2018. The Court has now reviewed the
judgment may be granted “if 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 genuine issue of material fact is one
that would change the outcome of the litigation.”
Laverpool v. Dep't of Hous. & Urban Dev.,
315 F.Supp.3d 388, 390 (D.D.C. 2018); see also Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(“Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”). Where
conflicting evidence exists as to a material issue, the Court
is to construe such evidence in the light most favorable to
the non-moving party. See Sample v. Bureau of
Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual
assertions in the moving party's affidavits or
declarations may be accepted as true unless the opposing
party submits his own affidavits, declarations, or
documentary evidence to the contrary. See Neil v.
Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).
cases typically and appropriately are decided on motions for
summary judgment. See Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). In
FOIA cases, the agency bears the ultimate burden of proof.
See Dep't of Justice v. Tax Analysts, 492 U.S.
136, 142 n.3 (1989). The Court may grant summary judgment
based solely on information provided in an agency's
affidavits or declarations when they “describe 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.” Larson v. Dep't of
State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation
omitted). “Uncontradicted, plausible affidavits showing
reasonable specificity and a logical relation to the
exemption are likely to prevail.” Ancient Coin
Collectors Guild v. U.S. Dep't of State, 641 F.3d
504, 509 (D.C. Cir. 2011). This standard applies most
saliently in national-security cases. See ACLU v. U.S.
Dep't of Def. 628 F.3d 612, 624 (D.C. Cir. 2011).
enacted FOIA “to pierce the veil of administrative
secrecy and to open agency action to the light of public
scrutiny.” Dep't of Air Force v. Rose, 425
U.S. 352, 361 (1976) (internal quotation marks and citation
omitted). The statute provides that “each agency, upon
any request for records which (i) reasonably describes such
records and (ii) is made in accordance with published rules .
. . shall make the records promptly available to any
person.” 5 U.S.C. § 552(a)(3)(A). Consistent with
this statutory mandate, federal courts have jurisdiction to
order the production of records that an agency improperly
withholds. Id. § 552(a)(4)(B). “Unlike
the review of other agency action that must be upheld if
supported by substantial evidence and not arbitrary and
capricious, the FOIA expressly places the burden ‘on
the agency to sustain its action' and directs the
district courts to ‘determine the matter de
novo.'” Dep't of Justice v. Reporters
Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989)
(quoting 5 U.S.C. § 552(a)(4)(B)). “At all times
courts must bear in mind that FOIA mandates a ‘strong
presumption in favor of disclosure.'” Nat'l
Ass'n of Home Builders v. Norton, 309 F.3d 26, 32
(D.C. Cir. 2002) (quoting U.S. Dep't of State v.
Ray, 502 U.S. 164, 173 (1991)).
other hand, “Congress was also aware that
‘legitimate governmental and private interests could be
harmed by release of certain types of
information.'” AquAlliance v. U.S. Bureau
of Reclamation, 856 F.3d 101, 102 (D.C. Cir. 2017) (quoting
Dep't of Justice v. Julian, 486 U.S. 1, 8
(1988)). FOIA, accordingly, “balance[s] the
public's need for access to official information with the
Government's need for confidentiality.”
Weinberger v. Catholic Action of Haw., 454 U.S. 139,
144 (1981). In pursuit of this interest in confidentiality,
“[n]ine categories of information are exempt from
FOIA's broad rules of disclosure.” Elec.
Privacy Info. Ctr. v. Office of the Dir. of Nat'l
Intelligence, 982 F.Supp.2d 21, 27 (D.D.C. 2013) (citing
5 U.S.C. § 552(b)(1)-(9)). “These exemptions are
to be narrowly construed . . . and th[e] Court can compel the
release of any records that do not satisfy the requirements
of at least one exemption.” Id. at 27-28
(citing Reporters Comm. for Freedom of the Press, 489 U.S. at
spotlight here is Exemption 1, which covers matters that are
“specifically authorized under criteria established by
an Executive order to be kept secret in the interest of
national defense or foreign policy and . . . are in fact
properly classified pursuant to such Executive order.”
5 U.S.C. § 552(b)(1). The propriety of an agency's
withholding is considered de novo by a reviewing
court. Id. § 552(a)(4)(B). Given the
Executive's “unique insights into what adverse
[e]ffects might occur as a result of public disclosure of a
particular classified record, ” Ray v. Turner,
587 F.2d 1187, 1194 (D.C. Cir. 1978) (internal quotation
marks omitted), however, courts have “consistently
deferred to executive affidavits predicting harm to the
national security, and have found it unwise to undertake
searching judicial review.” Larson, 565 F.3d
at 865; see also id. (“Today we reaffirm our
deferential posture in FOIA cases regarding the
‘uniquely executive purview' of national
security.”) (citation omitted). “[I]n the
national security context, ” therefore, “the
reviewing court must give ‘substantial
weight'” to agency declarations. ACLU v. U.S.
Dep't of Justice, 265 F.Supp.2d 20, 27 (D.D.C. 2003)
(quoting King v. Dep't of Justice, 830 F.2d 210,
217 (D.C. Cir. 1987)); see Frugone v. CIA, 169 F.3d
772, 775 (D.C. Cir. 1999) (stating that, “mindful that
courts have little expertise in either international
diplomacy or counterintelligence operations, we are in no
position to dismiss the CIA's facially reasonable
concerns” regarding harm that disclosure could cause to
national security). In according such deference, “a
reviewing court must take into account . . . that any
affidavit or other agency statement of ...