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American Center for Law and Justice v. United States Department of State

United States District Court, District of Columbia

December 4, 2018

AMERICAN CENTER FOR LAW AND JUSTICE, Plaintiff,
v.
UNITED STATES DEPARTMENT OF STATE, Defendant.

          MEMORANDUM OPINION

          JAMES E. BOASBERG UNITED STATES DISTRICT JUDGE.

         The 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.

         I. Background

         ACLJ is 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.

         On 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).

         ACLJ 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), ¶ 14.

         On July 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 Report.

         II. Legal Standard

         Summary 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).

         FOIA 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).

         III. Analysis

         Congress 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)).

         On the 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 755).

         In the 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 ...


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