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

• Procedural Requirements, Searching for Responsive Records:  "In their second FOIA request, Plaintiffs sought[] [t]he 'Report on Government Police Training and Equipping Programs' submitted to Congress."  "In developing its search plan, the Department determined that three bureaus were 'reasonably likely to have documents responsive to [this] request.'"  "Plaintiffs argue that the Department's search for the reports to Congress that Plaintiffs described in their FOIA request was inadequate because the Department failed to search the Bureau of Legislative Affairs."  "According to Plaintiffs, '[i]t is undisputed that at least one such 'Report on Government Police Training and Equipping Programs' was submitted from State to Congress in FY 2016.''  "In support of their contention that the State Department submitted the Report on Government Police Training and Equipping Programs to Congress, Plaintiffs cite a report from the House Committee on Armed Services."  "Plaintiffs misread the House Committee report."  "[T]he State Department posits that 'it would be unreasonable to expect [the Bureau of Legislative Affairs] involvement . . . unless State was required to and actually did communicate directly with Congress,' . . . and there is no evidence that the State Department was, in fact, required to or did communicate directly with Congress regarding the reports at issue."  "[I]n the words of the State Department's declarant, the 'congressional records cited by Plaintiffs . . . in no way indicate that State was responsible for providing the sought-after reports to Congress, and in fact suggest to the contrary that another Executive Branch agency was responsible for compiling and communicating those reports.'"  "Against this background, the Court is persuaded that the Department reasonably determined that it was unlikely that any responsive records were maintained by the Bureau of Legislative Affairs."  "Indeed, Plaintiffs seem to concede as much in their reply brief, shifting their argument . . . to complain that the Department erred by failing to 'search the Office of the Secretary of State.'"  "On the existing record, the Court cannot conclude that the Department has carried its burden of demonstrating that copies of the requested reports are unlikely to be found in the Office of the Secretary."  "The House Committee on Armed Services directed the Secretary to work in coordination with the Secretary of Defense in preparing the 2016 report, and, even if this direction was not enacted into law . . . it undoubtedly drew the attention of responsible Executive Branch officials."  "The Court will, accordingly, deny both the Department's motion and Plaintiffs' cross-motion for summary judgment with respect to the adequacy of the search in this one limited respect."  "In all other respects, the Court concludes that the Department's searches were adequate."
   
• Exemption 5, Deliberative Process Privilege; Litigation Considerations, Foreseeable Harm Showing: "Documents 1 and 45 are draft documents that the Department withheld in full pursuant to Exemption 5."  "Plaintiffs assert that the Department 'bears the burden of demonstrating that records designated as drafts have not subsequently been adopted.'"  The court holds that "the agency bears the burden of justifying its withholding, and that, no, that does not mean that the agency must trace the lineage of each draft or evidently deliberative record to ensure that the agency did not, at some point, adopt the predecisional record, 'formally or informally, as the agency position on an issue or . . . in its dealings with the public.'"  "What the agency must do to carry its burden is provide the Court with a reasoned and sound basis for concluding that the record at issue was—and remained—predecisional."  "[T]he Court concludes that garden-variety deliberative records will not, in most cases, invite a reasonable inference that the draft or recommendation was ultimately adopted by the agency and, accordingly, will not put the agency to the 'burden' of tracing the records' lineage to put any doubt to rest."  "When an agency employee who is separated by multiple levels of review from the ultimate decisionmaker, for example, sends an email to a colleague raising questions about a proposal in its early stages of review—at least in most cases—the agency can safely assume that the email was not adopted by the agency in a final decision or operative policy."  "On the other end of [the] spectrum, a memorandum prepared for the decisionmaker's signature that bears the date of the final decision, that is on letterhead, and that contains no edits or marginalia might reasonably invite further inquiry as to whether the unsigned memorandum constituted, as a matter [of] substance if not form, the operative agency decision or policy."  "Finally, on rare occasion, an agency might, after diligent investigation, be unable to determine whether such a seemingly final or near-final document was ultimately issued, without change, as the agency's final decision or policy."  "Under those unusual circumstances, '[r]equiring disclosure based on that lack of knowledge would have the precise chilling effect on the "uninhibited" exchange of views and recommendations that the deliberative process privilege is designed to protect[]' . . . and might therefore support invocation of the deliberative process privilege."  "Applying these principles here, the Court concludes that the Department must do more to support its contention that Document 1 is protected by the deliberative process privilege but that it has done enough to satisfy its burden with respect to Document 45."  "Document 1 is an undated draft memorandum from the State Department's Executive Secretary to the Defense Department's Executive Secretary titled 'Department of State Submission: Report to Congress on U.S. Government Police Training and Equipping Programs.'"  "That title refers (at least in part) to the precise report that Plaintiffs sought in the second FOIA request."  Additionally, "one might reasonably infer that the Executive Secretary was merely charged with conveying the State Department’s '[s]ubmission' to DOD for inclusion in the final report."  "To be sure, it is possible that changes were made before the submission was sent to DOD, and it is not at all clear that DOD merely inserted the State Department's submission in the report that was submitted to Congress."  "But the prospect that the State Department's 'submission' was submitted to Congress without change warrants further investigation by the Department and requires further evidence before the Court can conclude that the Department has carried its burden for purposes of summary judgment."  "The Department's description of Document 45, in contrast, is sufficient to support the Department's motion for summary judgment."  "Unlike Document 1, it is clear from that description that the letter is, in fact, a working draft."  "[T]he draft letter 'contains edits in redline and comment bubbles.'"  "Comments of that type fall squarely within the deliberative process privilege, and the Court can discern no basis to infer (or even to suspect) that the Department adopted the 'drafter's preliminary, uncleared thoughts' as its final decision or policy."  "The Court also agrees with the Department that disclosure of the withheld materials would cause foreseeable harm, potentially chilling agency discussion on sensitive topics related to Leahy vetting that may follow as a result."  "Finally, the Court is persuaded that the Department conducted a sufficient review of Document 45 to determine whether any portion may be segregated from exempt portions and released." 
  
  "Document 12 is an 'intra-agency email exchange between officials in [DRL, including SHR] and [the Bureau of International Narcotics and Law Enforcement Affairs].'"  "In the only portion of the email chain that Plaintiffs challenge[] . . . an SHR official gives 'practical and logistical advice . . . about certain practices [a] Foreign Service Officer and her office may want to implement in order to help navigate the Leahy vetting process.'"  "Because the portion of the email chain at issue does not merely discuss law or policy already adopted but, rather, provides 'uncleared[ ] and unofficial discussions and recommendations . . . about practical techniques [for] the vetting process,' . . . the Department's reliance on Exemption 5 is well founded."  "The Court also agrees with the Department that disclosure of the withheld materials would cause foreseeable harm, potentially chilling agency discussion on sensitive topics related to Leahy vetting that may follow as a result."  "Finally, the Court is persuaded that the Department has released all segregable portions of Document 12." 
  
  "Documents 6, 11, 23, and 29 are email chains in which State Department personnel discuss ongoing Leahy vetting processes for particular units and individuals."  "As an initial matter, the Court notes that Exemption 5 does not merely protect deliberations over the formulation of generally applicable agency policies; it also protects deliberations regarding discrete agency decisions applying those policies, at least where those decisions involve some exercise of discretion."  "The deliberative process privilege, accordingly, protects the Department's predecisional, deliberative communications regarding whether specific security units should be approved in Leahy vetting." 
  
  "To be sure, if the application of the established policy to the facts were purely mechanical, involving no judgment or discretion, the Department would be hard pressed to characterize that process as deliberative."  "But that is not the case here."  "The Court also agrees with the Department that disclosure of the withheld materials would cause foreseeable harm, potentially chilling agency discussion on sensitive topics related to Leahy vetting that may follow as a result."  "Finally, the Court is persuaded that the Department has released all segregable portions of Documents 6, 11, 23, and 29." 
  
  Lastly, "Plaintiffs challenge the Department's withholding of a number of documents under Exemption 5 only on the ground that the Department failed to satisfy FOIA's requirement that an agency withhold information 'only if' it 'reasonably foresees that disclosure would harm an interest protected by an exemption.'"  "The Court has reviewed each entry in the Department's Vaughn index for Documents 14, 16, 19, 24, 28, 30, and 50, and it concludes that the Department has carried its burden of establishing that it was 'reasonably foreseeabl[e] that disclosure would harm an interest protected by' Exemption 5."  "Far from the type of 'perfunctory state[ment] that disclosure of all the withheld information—regardless of category or substance—would jeopardize the free exchange of information' that the D.C. Circuit has admonished 'will not suffice[]'. . . the Department's revised Vaughn index addresses each individual document with specific reasons why disclosure would cause foreseeable harm." 
   
• Exemption 5, Deliberative Process Privilege; Litigation Considerations, "Reasonably Segregable" Requirements; Litigation Considerations, Vaughn Index/Declarations; Procedural Requirements, "Reasonably Segregable" Obligation:  "Documents 31 through 44 are spreadsheets exported from the Department's INVEST database for Afghanistan, Mexico, Colombia, Philippines, Cambodia, Bangladesh, Egypt, and Iraq."  "The Department invokes Exemption 5 only with respect to the 'NOTES' columns."  "[A]ccording to the Department, 'the vast majority of [the] entries [in the notes field] . . . predate the final determination and . . . instead reflect the various milestones achieved during the vetting process prior to a final determination.'"  "What this assertion leaves unanswered is whether some or all of this information is factual."  "'Factual material that does not reveal the deliberative process,' of course, 'is not protected.'"  "Plaintiffs argue that the Department has failed to demonstrate that the information in the 'NOTES' columns is deliberative because it has provided 'no information[ ] whatsoever[ ] about the specific deliberative process purportedly at stake, or the role these notes purportedly play in that process.'"  "In response, the Department does not dispute that at least some of the entries in the notes field were made after a final decision was made."  "But, in the Department's view, that does not end matters because its 'categorical approach' was 'born out of necessity:' the spreadsheets contain 'more than 160,000 rows of information,' and “[a]pproximately 45,000 of those rows include an entry in the 'NOTES' column.'"  "Given this volume, the Department maintains that '[i]t would be overly burdensome for [it] to review and describe each separate entry' in its Vaughn index."  "[T]he Court is unpersuaded by the Department's contention that it was not required to review potentially responsive and non-exempt records because doing so 'would be overly burdensome.'"  "To be sure, 45,000 rows is still substantial, but it is not uncommon for a FOIA request to impose a substantial burden on the responding agency."  "The Court agrees that preparing a Vaughn index containing tens of thousands of entries may prove unduly burdensome and that the Department can likely explain and justify any withholdings by addressing categories of entries."  "But that does not relieve the Department of its obligation to ensure that it is withholding only those records that fall within a FOIA exemption."  "Burden alone cannot relieve the Department of its obligation to sort the predecisional from the postdecisional entries and to release the latter."  "Until the Department conducts the necessary review, which the Court recognizes may take months if not years to complete, it is premature for the Court to pass on which, if any, materials are deliberative."

• 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."