Canning v. Dep't of State, No. 2018 WL 5281905 (D.D.C. Oct 24, 2018) (Moss, J.)

Canning v. Dep't of State, No. 2018 WL 5281905 (D.D.C. Oct 24, 2018) (Moss, J.)

Re:  Request for certain records concerning a program study

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

• Litigation Considerations, Adequacy of Search:  "The Court thus concludes that the Department's search for records responsive to [plaintiff's] FOIA request was adequate and that the Department, accordingly, is entitled to summary judgment on this issue."  The court explains that defendant's declarations adequately described the search terms, search timeframe, and search locations.
   
• Exemption 1:  "The Court concludes that the Department has satisfied the requirements of Executive Order 13562 regarding the post-request classification of responsive records for all but four of the withheld records."  "As to those four, the Department has not yet shown that it complied with Executive Order 13562, and thus has not shown that those documents were properly withheld."  The court relates that "Plaintiffs challenge the withholding of documents, or portions thereof, that were classified after they submitted their FOIA request."  The court relates that, "with respect to records that are classified after the agency receives a FOIA request, Executive Order 13526 permits classification only if three conditions are satisfied: (1) the records must otherwise meet the requirements for classification, (2) the classification must be 'accomplished on a document-by-document basis,' and (3) that review must occur either (a) 'with the personal participation' of 'the agency head, the deputy agency head, or the senior agency official designated under' the Executive Order or (b) 'under the direction' of one of those three officials."  The court finds that "[t]here is no support, moreover, for the Canning Plaintiffs' contention that FOIA or Executive Order 13526 imposes the further requirement that, if an agency does not classify a record until after it receives a FOIA request, the agency must not only explain the basis for its classification decision but must also explain 'what changed.'"  "The Court is not convinced, however, that the Department has carried its burden with respect to the four records that [the Under Secretary] reviewed pursuant to the March 23, 2016 notice."  "There is no evidence that the Under Secretary was aware that the four records were subject to reclassification; there is no evidence that he had the opportunity to express a contrary view; and there is no evidence he guided, managed, or supervised [the Under Secretary] review in any way, beyond merely assigning the review responsibility to him."
   
• Exemption 5, Deliberative Process Privilege:  "Having reviewed the Vaughn index and the parties' pleadings, the Court concludes that the Department has carried its burden of showing that it properly invoked Exemption 5 with respect to all of the withheld material, with the exception of the three 'draft' letters to King Abdullah."  The court relates that, "[a]ccording to the Department, the withheld material 'is pre-decisional and deliberative with respect to the final determination on the content of the letter,' and its release 'would impede the ability of responsible executive branch officials to formulate' policy 'by inhibiting candid discussion and the expression of recommendations and judgments regarding future courses of action.'"  "The Court concurs in the assessment that a draft document proposing how to define terms used in a presidential national security directive lies at the core of the deliberative process privilege."  "The Court is, once again, persuaded that draft memoranda, which address 'whether and how to provide support' to foreign governments, lie at the core of the privilege."  "On the present record, however, the Court cannot discern what significance the Department attaches to the word 'draft,' and, to the extent it intends to distinguish between 'drafts in form' and 'drafts in substance,' the Department has not briefed any of the potentially relevant legal issues."  "It may be that the documents were drafts, both as a matter of 'form' and 'substance.'"  "It may be that the President had yet to sign off on the documents, and that the Department contends that a recommendation that is ultimately approved remains a recommendation until finally and formally approved."  "Or it may be that the Department takes the view that a pre-decisional, presidential recommendation does not lose its exempt status, even after the President formally adopts the recommendation without modification."