Canning v. Dep't of State, No. 13-831, 2020 WL 1703890 (D.D.C. Apr. 8, 2020) (Moss, J.)

Canning v. Dep't of State, No. 13-831, 2020 WL 1703890 (D.D.C. Apr. 8, 2020) (Moss, J.)

Re:  Request for 2010 memorandum from President Obama to his foreign policy advisors, entitled Presidential Study Directive 11, and records concerning Muslim Brotherhood

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

• Exemption 1:  "[T]he Court will grant summary judgment in favor of the State Department with respect to the Exemption 1 withholdings."  Previously, "the Court held that the Department had failed to carry its burden because the employee who reviewed those documents attested only that he 'will apprise the Under Secretary for Management' of his classification decisions."  "There was, in other words, 'no evidence that the Under Secretary was aware that the four records were subject to reclassification; there [was] no evidence that he had the opportunity to express a contrary view; and there [was] no evidence he guided, managed, or supervised [the other official’s] review in any way, beyond merely assigning the review responsibility to him.'"  "The Department has now submitted a declaration attesting that, during the relevant timeframe, 'the Department had no Under Secretary for Management' and that the 'Deputy Under Secretary for Management exercised all of the authorities of' that office 'pursuant to a delegation of authority.'"  According to that declaration, the reviewing official 'apprised the Deputy Under Secretary for Management of [his] classification actions and [the Deputy Under Secretary] concurred with those actions.'"  "'In plaintiffs' view, [this] cur[es] the problem regarding these four documents as set out in [Canning II].'"  "As this issue is no longer in dispute . . . the Court will grant summary judgment in favor of the State Department with respect to the Exemption 1 withholdings."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "the State Department is entitled to summary judgment with respect to its withholdings under Exemption 5."  Previously, "the Court held that the Department had failed to carry its burden of showing that the three 'drafts' of the letter were deliberative because the declaration that it proffered was insufficiently clear:  the declaration described the documents as in 'draft form,' which 'at least raise[d] the question whether [the declarant] mean[t] to distinguish between the "form" and the "substance" of the records.'"  The court relates that "[t]he Department has now filed a supplemental declaration from the same official, attesting that, when he previously indicated that 'these letters were all in draft form, [he] did not intend to suggest that they were not drafts in substance.'"  "Rather, he simply 'do[es] not know whether these drafts contain language that was ultimately finalized in whole or in part.'"
   
  "Plaintiffs contend that this description is, once again, inadequate, principally because the declarant's credibility is undermined by his assertion that the draft documents – two of which are Arabic translations – were relied upon by President Obama, who does not speak Arabic, in his deliberative process."  The court finds that "[t]hey are mistaken for a number of reasons."  "For one, disclosure of these drafts, which could easily be translated back into English, would undermine the interest in unfettered decisionmaking protected by the deliberative process privilege."  "Second, the use of translations is presumably most common when the Executive Branch focuses on matters relating to foreign relations and foreign commerce, areas where the deliberative process privilege applies with special force."  "This case does, however, present one wrinkle."  "Because the State Department has been unable to locate the final versions of the letter to King Abdullah (if, in fact, a letter was sent), it can neither confirm nor deny that the President adopted any of the drafts as his final decision."  The court finds that "an agency need not, at least in the ordinary course, 'compare each draft document to its corresponding final decision.'"  "One reason that courts do not typically require an agency to demonstrate that a draft differs from the final agency record is that such a showing might 'expose what occurred in the deliberative process between the draft's creation and the final document's issuance.'"  Additionally, "[t]he demand is far from innocuous in the context of this case . . . because the Department does not know whether the letter was ever sent and, if it was sent, the Department does not know whether the final version is identical to the drafts."  "Requiring 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."