Canning v. U.S. Dept. of State, No. 13-831, 2015 WL 5776005 (D.D.C. Sept. 30, 2015) (Moss, J.)

Canning v. U.S. Dept. of State, No. 13-831, 2015 WL 5776005 (D.D.C. Sept. 30, 2015) (Moss, J.)

Re: Request for certain memorandum, as well as for records concerning Muslim Brotherhood

Disposition: Granting in part and denying in part defendant's motion for partial summary judgment; granting in part and denying in part plaintiff's motion for partial summary judgment

• Exemption 1:  "[T]he Court concludes that the Department’s declarations adequately support the conclusion that the partly-withheld documents are, in fact, classified and entitled to protection."  The court notes that, "[i]n Plaintiffs’ view, the Department’s failure to offer additional information about the documents’ original classification status (such as the classification date and the name of the original classifier) casts additional doubt on the representations in the Hackett declarations."  However, the court finds that "where the record does not indicate that the documents in question were classified after the FOIA request, the Department has no such obligation."  "Because the Department has offered declarations attesting that the classification criteria in EO 13526 are satisfied, it is Plaintiffs’ burden to raise a genuine question of fact regarding the documents’ classification."  "Plaintiffs’ 'doubt' on this score . . . is insufficient."

Regarding documents classified after the FOIA request, "[t]he Court is persuaded that§ 1.7(d) limits post-request classification authority in order to prevent abuse and to ensure that a senior government official takes responsibility for intervening classification decisions that thwart otherwise valid FOIA requests."  "The Court also concludes, however, that the delegation . . . was, on its face, consistent with this stringent construction of § 1.7(d)."  The court relates that the designee "was authorized to make document-by-document classification determinations subject to the 'direction' of the designated 'senior agency official,' the Under Secretary of State for Management."  Additionally, the court relates that "[p]laintiffs argue that [the designee] should be required to explain the timing of the decisions, that is, 'what changed' to justify classification of previously unclassified documents."  "The Court disagrees; EO 13526§ 1.7 imposes no such requirement and Plaintiffs do not cite any authority that does impose such a requirement."  "On the other hand, the Court cannot confirm on the present record that [the designee] personally reviewed each document at issue to accomplish the 'document-by-document' determination contemplated by § 1.7(d) or that she kept the Under Secretary 'apprised of actions taken under [that] authority.'"  To remedy this, the court states that "[t]he Department may, within 60 days, submit additional declarations."

In response to plaintiff's argument "that [certain] redacted portion markings would reveal that the redacted paragraphs are not classified and accordingly not exempt from disclosure," the court does find that "the Department is directed to disclose the unclassified portion markings."

• Litigation Considerations, In Camera Inspection:  The court holds that "[i]n this case, in camera review is neither necessary nor appropriate."  "If in camera review were justified solely on the basis of Plaintiffs’ 'doubt,' it is difficult to imagine any FOIA action in which such review would not be warranted."
   
• Waiver:  The court rejects plaintiff's waiver argument.  The court finds that "there is no evidence that the . . . language [quoted in a Washington Post article] actually appeared in [the classified document] and there is no basis to conclude that, even if it did, any disclosure was authorized."  "More generally, there is no indication here that the government has officially disclosed or acknowledged [the document's] contents."

• Procedural Requirements, Consultations and Referrals:  The court rejects plaintiff's argument "that the Department is 'required' to submit declarations from the agencies that 'originated'  the documents."  Additionally, "[t]he Court agrees with the Department that [the] original classification authority who is familiar with FOIA procedures and has reviewed the documents in question—may make a decision based in part on information obtained in the course of his official duties without triggering a need for additional declarations from the individuals he consulted."  The court finds that "[t]o be sure, agencies must provide the reviewing court with sufficient information to justify their withholding decisions."  "In some situations, that may require additional declarations from other agencies."  "But Plaintiffs do not identify any information essential to the Court’s review that can only be obtained from CIA or USAID officials."

• Exemption 5, Deliberative Process Privilege:  "[T]he Court upholds the application of Exemption 5 to the challenged documents."  The court relates that defendant's "declaration explains that [the withheld document] 'directed certain high-ranking officials, including officials at the Department, to assist in policy deliberations on sensitive national security topics,' which in turn prompted agency 'deliberations about how best to respond to the President’s inquiry,' 'required relevant subject-matter experts within the Department to candidly evaluate particular foreign policy approaches, weigh various foreign policy considerations, and make recommendations for policy priorities,' and 'precipitated an internal dialogue among officials about the best way to respond to the inquiry set forth in the [withheld document].'"  "'Collectively, this internal evaluation, commentary, and dialogue is 'predecisional,' i.e., antecedent to the adoption of a policy, and . . . deliberative, i.e., reflective of the give-and-take of the consultative process, with regard to the shaping of the Department’s response to the policy inquiry set forth in the [the withheld document].'"  Additionally, the court finds that "[defendant's] declaration establishes that these emails were reviewed for reasonably segregable non-exempt material and that all such material was released."  Addressing plaintiff's argument concerning segregability, the court finds that "[p]laintiffs’ reading of Exemption 5 is too strict."  "'While it is true that 'purely factual material usually cannot be withheld under Exemption 5,' it can be where 'it reflects an exercise of discretion and judgment calls' and where its exposure would enable the public to probe an agency’s deliberative processes.'"

• Exemption 6:  "[T]he Court concludes that—although it is a close question—the Department has met its burden with respect to the application of Exemption 6 to this document."  The document at issue was "redacted to remove 'the names and identifying details of certain local organizations that have received U.S. support in order to protect the personal privacy interests of individuals who work for those organizations.'"  The court holds that "[a]ssuming for the moment that the disclosure of information about the organizations would identify the individuals involved, the Court has little trouble concluding that disclosure 'would constitute a clearly unwarranted privacy invasion.'"  The court explains that "[t]he Department and USAID are far better positioned than Plaintiffs or the Court to determine whether, on these facts, disclosure would lead to the identification of particular individuals in those countries."

• Procedural Requirements, Searching for Responsive Records:  "The Court concludes that the Department’s reading of the FOIA request is reasonable."  The court explains that "[p]laintiff . . ., who has some experience filing FOIA requests, drafted the request to ask for the specific three categories of information identified above—not for all information relating in any way to [the withheld document]."  "He could have drafted the request broadly to encompass other documents related to [the withheld document], but chose not to do so."

• Litigation Considerations, "Reasonable Segregable" Obligations:  "The Court concludes that the Department has met this burden."  "[Defendant's] declarations state that reasonably segregable portions of the responsive documents have been released."  "The information in the declarations substantiates with 'reasonable specificity,' . . . that the Department has reviewed the documents for segregable material as required by the FOIA."