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100REPORTERS v. U.S. Dep't of State, No. 19-1753, 2022 WL 1223709 (D.D.C. Apr. 26, 2022) (Moss, J.)


100REPORTERS v. U.S. Dep't of State, No. 19-1753, 2022 WL 1223709 (D.D.C. Apr. 26, 2022) (Moss, J.) 

Re:  Request for records concerning "vetting of foreign security personnel pursuant to two statutes commonly referred to as the 'Leahy Laws'"

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; denying plaintiffs' cross-motion for partial summary judgment


  • Exemptions 6 and 7(C):  "The Department invokes FOIA Exemption 6 to withhold from twenty-two records the names of foreign security officials who either underwent Leahy vetting or who were discussed by officials who were vetting the individuals' security force unit."  "The first asserted effect—the 'privacy interest in . . . names and other identifying information' of those subject to Leahy vetting—lacks sufficient specificity or support to sustain the Department's reliance on Exemption 6."  "To start, the Department does not indicate what 'other identifying information' it has in mind."  "Even more importantly, the Department’s assertion that the individuals at issue have a 'privacy interest' in the withheld information is too conclusory to support its invocation of Exemption 6; indeed, it is difficult to imagine a case in which an agency might invoke Exemption 6 where that assertion would not apply."  "Nor does the Department address whether different subjects of vetting are differently situated in relevant respects."  "The Department's third concern—that 'release could discourage host governments from submitting necessary vetting information in the future'—is even less availing."  "To be sure, this assertion might support a finding of foreseeable harm, but it does not support a finding that the individuals at issue have a non-de-minimis privacy interest."  "Disclosing the names of those subject to vetting, for example, might well dissuade host governments from submitting necessary information, but that is not a privacy interest."  "The Department's second concern—'releasing the names of vetted individuals could expose those individuals to harassment and retaliation'—raises a more traditional privacy interest, and thus the Department's argument comes closer to the mark."  "It still falls short, however, for lack of sufficient detail."  "As the Department puts it in its reply brief: 'disclosure of the vetted foreign officers' names and other identifying information could, in certain circumstances, expose them to harassment by making public their affiliation with the United States Government.'"  "The question that the Department leaves unanswered is 'under what circumstances' does that risk exist?"  "Without specific answers to [this question] and other questions, the Court cannot assess the nature and extent of the privacy interest—or distinct privacy interests—at stake."  "Plaintiffs, for their part, fail to grapple with the real-world risk of harassment or retaliation that at least some of these individuals might face if the Department were to release all of the names and identifying information that the Plaintiffs seek."  "[T]he Court is persuaded that, in at least some cases, the requested disclosures could pose a serious risk to the individuals at issue."  "The Court is also persuaded that Plaintiffs have identified a substantial public interest in disclosure; in particular, they observe that disclosure of the vetted individuals' names is necessary to 'examine and illuminate State's compliance with the Leahy Laws.'"  "In short, this is one of those Exemption 6 cases in which 'the interests on both sides of the relevant balance are weighty . . . or at least possibly so."  "But, without more specific information, the Court cannot weigh those competing interests."  "In light of the Court's preceding analysis of Exemption 6, the Department's invocation of Exemption 7(C) requires little additional discussion."  "With respect to Exemption 6, the Court has already concluded that the Department's assertions of a privacy interest fail for lack of sufficient detail."  "Because the privacy inquiry is the same under Exemption 7(C), the Court reaches the same conclusion with respect to that exemption." 
  • Exemption 7, Threshold:  "Although a novel question, the Court is persuaded that the Department compiles Leahy vetting records for law enforcement purposes."  "The State Leahy Law provides that if the funds must be withheld based on a finding that the security unit at issue engaged in gross violations of human rights, the Secretary must, 'to the maximum extent practicable, assist the foreign government in bringing the responsible members of the unit to justice.'"  "Any doubt about whether the statutory phrase 'law enforcement purposes' is capacious enough to encompass the goal of bringing those responsible for gross violations of human rights to justice, moreover, is put firmly to rest by the Department's list of 'the four most common forms of' gross violations of human rights, which includes torture, extrajudicial killing, enforced disappearance, and rape under the color of law."  "Nor is the Court persuaded by Plaintiffs' contention that holding that Leahy vetting records are compiled for law enforcement purposes would effectively read the law-enforcement-purposes requirement out of FOIA."  "The purpose of the Leahy Laws and the State Department's enforcement efforts is to prevent grave violations of international, foreign, and (at times) domestic law, including acts of torture, murder, and rape."  "Those efforts bear no resemblance to the type of day-to-day administrative actions implementing statutes that Plaintiffs invoke." 
  • Exemption 7(E); Litigation Considerations, Vaughn Index/Declarations; Litigation Considerations, Foreseeable Harm Showing:  "Plaintiffs challenge the Department's withholding of information from ten documents under Exemption 7(E)."  "The Department has adequately supported its invocation of Exemption 7(E) with respect to most of the information at issue."  "The Court credits the Department's explanation that the disclosure of information that would allow individuals to 'see what specific information is given more or less weight in assessing eligibility for assistance,' . . . would create 'a "chance of a reasonably expected risk" of circumvention of the law."  "The Court is also persuaded that the Department's redaction of one sentence from Document 50 pursuant to Exemption 7(E) was justified."  "The Department withheld one sentence in the document because 'the information in that sentence reveals sensitive, non-public law enforcement procedures used by the Department in implementing the Leahy Laws' reporting requirements and determining which units rejected pursuant to the Leahy Laws would be named in a publicly-available list.'"  "Because publicly identifying those units that have engaged in gross violations of human rights is one of the sticks used to enforce the law and to discourage human rights violations, disclosure of how the Department decides 'which units rejected pursuant to the Leahy Laws would be named in a publicly-available list[]' . . . 'could reasonably be expected to risk circumvention of the law[]' . . . by providing pointers for how an offending unit might evade one important feature of the law."  "The Court cannot reach the same conclusion, however, with respect to at least portions of Documents 21 and 25."  "The Court cannot discern . . . how each item withheld from Document 25 pursuant to Exemption 7(E) could reasonably lead to circumvention of the law."  "If, on the other hand, the Department has withheld more granular information relating to, for example, red flags that typically help Department officials detect gross violations of human rights, then Exemption 7(E) would likely apply."  "But without further detail, the Court cannot conclude that the Leahy Vetting Guide should be withheld under Exemption 7(E)."  "Finally, the Department has withheld various portions of Document 21."  "For the reasons explained above, most of these withholdings are well-supported."  "One withholding, however, is not adequately supported on the present record."  "[T]he Department redacted 'procedural information related to the proper workflow and use of the Department's [INVEST] database.'"  "As with Document 25, it is unclear how disclosing information relating to the use of this database—the existence of which is public—'could reasonably be expected to risk circumvention of the law.'"  "The Court is unpersuaded, however, by Plaintiffs' more sweeping challenge to the Department's invocation of Exemption 7(E), arguing that the withheld records 'do little more than discuss publicly available information.'"  "The problem with Plaintiffs' argument . . . is that they offer no reason to doubt the Department's good-faith representations that the withheld information is not public and that the disclosure of those non-public details would risk circumvention of the law."  Moreover, "[a]lthough the D.C. Circuit has yet to opine on what an agency must do to show foreseeable harm under Exemption 7(E), courts have acknowledged on at least two occasions that the foreseeable-harm requirement is similar to (and was not intended to heighten) Exemption 7(E)'s 'circumvention of the law' requirement."  "The Court therefore concludes that the Department has satisfied the foreseeable-harm requirement for Documents 6, 11, 20–23, 27, 50, and most of Document 21." 
  • Exemption 7(F):  "The Department invokes Exemption 7(F) to withhold material from two spreadsheets containing data from the INVEST database for Egypt and Iraq."  "The information that the Department seeks to withhold was inadvertently disclosed to Plaintiffs, however, and is the subject of a separate dispute over whether the Court should order Plaintiffs to return or to destroy the inadvertently disclosed records."  "The Court's resolution of that dispute, discussed below, obviates the need for the Court to determine whether the Department's withholdings satisfy Exemption 7(F)'s substantive requirements."|
  • Waiver and Discretionary Disclosure:  "The Department now seeks to assert Exemptions 6, 7(C), and 7(F) to withhold the information in the spreadsheets that has already been disclosed to Plaintiffs, requesting that the Court 'direct Plaintiffs to return or destroy the Department's January 17, 2020, production of the[ ] two spreadsheets.'"  "But absent legal authority indicating that the Court has the authority to order that a FOIA recipient return records that were inadvertently released without redactions, the Court has no reason to consider whether the proposed redactions would be proper, were the Department allowed a mulligan."  "The even more substantial difficulty that the Department faces is that it fails to identify any authority that the Court has to order Plaintiffs to return the unredacted versions of the spreadsheets."  "The Court will, accordingly, deny without prejudice the Department's request that the Court order the return of the inadvertently released records."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Exemption 6
Exemption 7(C)
Exemption 7(E)
Exemption 7(F)
Exemption 7, Threshold
Litigation Considerations, Foreseeable Harm Showing
Litigation Considerations, Vaughn Index/Declarations
Litigation Considerations, “Reasonably Segregable” Requirements
Procedural Requirements, Searching for Responsive Records
Waiver and Discretionary Disclosure
Updated May 20, 2022