Citizens United v. U.S. Dep't of State, No. 18-1862, 2021 WL 3268385 (D.D.C. July 29, 2021) (Moss, J.)
Date
Citizens Unied v. Dep't of State, No. 18-1862, 2021 WL 3268385 (D.D.C. July 29, 2021) (Moss, J.)
Re: Request for records concerning October 2016 meeting between Department officials and Christopher Steele
Disposition: Granting defendant's renewed motion for summary judgment
- Exemption 1; Waiver & Discretionary Disclosure, Waiver & Litigation Considerations, In Camera Inspection: The court considers the withholding of "'non-public information about the engagement of an intelligence source (Steele) by the FBI, including where and when that engagement occurred.'" "Particularly when considered in light of the deferential standard that governs judicial review of executive branch classification determinations, the Court is persuaded that the first set of redactions are protected under Exemption 1." "To start, the information at issue was designated as classified by an authorized official." "According to [that official], the withheld 'intelligence source and method information was . . . determined to be classified by an FBI Original Classification Authority' and 'is currently and properly classified at the SECRET level.'" "The information at issue, moreover, was owned or controlled by the United States. Documents 4 and 9 are State Department records, created by a State Department official in the course of her employment, thus satisfying the second prong of the classification test." "As to the third and fourth prongs, [defendant] explains 'the information redacted on page 5 of Document 9 and in the second redaction block of Document 4 is intelligence method information about the FBI's engagement with an intelligence source' and 'that disclosure of this intelligence source and method information could reasonably be expected to cause serious damage to national security.'" "He then explains that '[p]ieces of information like this about how or where the FBI engaged an intelligence source could be used, along with other publicly-available information about this and other sources, to form a mosaic picture about the FBI's engagement with intelligence sources that could be exploited to undermine FBI source interactions in the future.'" "To the extent that [plaintiff] maintains that the Department has officially acknowledged the redacted information and has therefore waived Exemption 1's protection," the court finds that "[plaintiff] does not even attempt to satisfy this demanding standard." Finally, "[f]or the reasons already explained, the Department has satisfied its burden as to the applicability of Exemption 1 and thus it is 'neither necessary nor appropriate' for the Court to conduct the in camera review that [plaintiff] requests."
- Exemption 3; Waiver & Discretionary Disclosure, Waiver; Litigation Considerations, In Camera Inspection; Litigation Considerations: Regarding "redactions involv[ing] 'non-public information about an intelligence source (not Steele) that could potentially identify the source,'" the court "grant[s] summary judgment in the Department's favor." The court relates that "the Department relies on the National Security Act [of 1947] to support its withholdings on behalf of the FBI." "The National Security Act, in relevant part, requires the Director of National Intelligence to 'protect intelligence sources and methods from unauthorized disclosure.'" "The Court has little doubt that revealing such information could reasonably disclose the intelligence source." "But, in any event, the Court must defer to the FBI's determination, because '[t]he judiciary "is in an extremely poor position to second-guess" the predictive judgments made by the government’s intelligence agencies regarding' the risk of disclosure or the harm posed by such disclosure." "The Department's redactions on page 1 of Document 9 and the third redacted block on Document 4 present a slightly closer question." "The Department does not detail how the redacted information relates to the intelligence source but, instead, asserts that the withholdings concern non-public information about an intelligence source other than Steele and that the release of this information could potentially identify that source." "The Court is nonetheless persuaded that the Department has carried its burden." "[Defendant] explains that the specific redactions in question contain information about a particular intelligence source – other than Steele – and he also identifies the consequences of disclosure: publicly identifying that intelligence source." "That is enough, although just enough, to satisfy the requirements of Exemption 3." Finally, regarding defendant's withholding of one sentence "'consist[ing] of information regarding the issuance or refusal of a visa'" under the Immigration and Nationality Act ("INA"), the court finds that "[i]n considering Exemption 3 and the . . . provision of the INA at issue here – 8 U.S.C. § 1202(f) – the D.C. Circuit has opined that § 1202(f) qualifies under Exemption 3 and that it broadly protects 'information pertaining to visa issuances and denials.'" "Here, the Deputy Director of the State Department's Office of Information Programs and Services attests that the redacted information 'describes the place of issuance, date of issuance, and current status of an individual's U.S. visa.'" "That is sufficient."
Regarding plaintiff's foreseeable harm argument, the court holds that "[a]lthough the FOIA Improvement Act of 2016 . . . permits agencies to withhold information, in whole or in part, 'only if . . . the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection (b),' that provision does not apply to information that is 'exempted from disclosure under subsection (b)(3).'" "And, in any event, even if some of the information at issue were present 'in some form in the public domain,' that would 'not necessarily mean that official disclosure [would] not cause harm cognizable under a FOIA exemption.'"
Responding to plaintiff's official acknowledgment argument, the court finds that "[b]ecause [plaintiff] has not shown that 'the specific information' that it seeks is already in the public domain and that it is there by virtue of an 'official disclosure,' . . . its argument fails."
"Finally, [plaintiff], once again, asks that the Court resolve any uncertainty by conducting an in camera review." "But, once again, such review is 'neither necessary nor appropriate' where, as here, the Department has met its burden, and the FOIA requester has not met its own."
- Litigation Considerations, "Reasonably Segregable" Requirements: Regarding the information withheld under Exemption 1, "[b]ased on these explanations for each withholding, the Court is persuaded that the Department has satisfied its burden to show 'with reasonable specificity why' the contents of Documents 4 and 9 could not be further released." Regarding the information withheld under Exemption 3, the court relates that "[t]he FBI determined 'that no portion of the five-page document can be disclosed because the entire document is exempt pursuant to Exemption 3.'" "More specifically, 'the entire document is intelligence information, which if disclosed would reveal non-public information about [an] intelligence/investigative method – i.e., the specific research at issue.'" "In addition, revealing 'the specific information on the pages would significantly narrow down the identity of the source who supplied the information to [the Department], thus risking the revelation of the intelligence source.'" "This explanation improves upon the conclusory nature of the Department's previous explanation, which merely stated that 'the information on these pages was fully covered by the cited FOIA exemptions' and 'that any potentially non-exempt information was so intertwined with exempt information that it could not be reasonably segregated for release.'"
Court Decision Topic(s)
District Court opinions
Exemption 1
Exemption 3
Litigation Considerations, In Camera Inspection
Litigation Considerations, “Reasonably Segregable” Requirements
Waiver and Discretionary Disclosure
Updated August 20, 2021