Muttitt v. Dep't of State, No. 10-202 (BAH), 2013 WL 781709 (D.D.C. Mar. 4, 2013) (Howell, J.)

Date: 
Monday, March 4, 2013
Re: Request for records regarding the development of Iraq's energy policy and national hydrocarbon law Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's motion for leave to file additional evidence
  • Litigation/Policy and Practice Claim: The court notes "plaintiff concedes that he did not state a separate cause of action for any policy or practice related to the denial of requests for expedited processing or fee waivers." Plaintiff may not "raise a policy-or-practice claim for the first time at summary judgment," because it does not "put the defendant on notice of the policy-or-practice claims." The court explains that the "boilerplate language commonly invoked in prayers for relief [] does not magically enlarge the plaintiff's otherwise specific FOIA claims into broad, policy-or-practice claims."
  • Procedural/Expedited Processing/Mootness: The court explains that "an important question to ask in determining whether a requester's claim regarding the denial of a request for expedited processing is moot is what relief the requester still has available if the denial is deemed incorrect." The court finds, that in this case, the "plaintiff's causes of action regarding the denial of his specific requests for expedited processing are now moot." "[T]he only scenario in which a court can properly grant relief to a FOIA requester 'on the merits' of an expedited processing claim is when an agency has not yet provided a final substantive response to the individual's request for records. After that point, the timing of any further processing of an individual's request…necessarily occurs at the direction of the court – pursuant to a scheduling order, not the expedited processing provision of the FOIA." Although the plaintiff argues that the defendant has not completed its response because he has challenged the adequacy of the search and the withholdings, the court concludes "[o]nce an agency has made its final determination under § 552(a)(6)(A), the timeliness of that determination is no longer a live controversy fit for judicial review."
  • Adequacy of Search: Plaintiff objects that the defendant "'did not search the backup system to which . . . emails are required to be copied." The court notes that "'[f]rom the agency's sworn statements, there is no reason to believe that an electronic backup recordkeeping system of the kind described by the plaintiff actually exists. The agency's own regulations give it the option of keeping such records in electronic, paper, or microform format . . . and the defendant[] . . . has thus far elected to archive any retained e-mail records in paper format." While plaintiff argues that the defendant must specify exactly where it looked for retired paper records, "[t]he clear context of the agency's declaration, however, confirms that the agency's search encompassed all retired files likely to contain responsive records." The defendant is entitled to summary judgment on the adequacy of its search efforts.
  • Exemption 1: The Court concludes "that the plaintiff has failed to articulate a cognizable challenge to the defendant's determination" to withhold certain classified information. The plaintiff does not challenge the defendant's assertion that the information pertains to a specific classification category or the defendant's assertion of harm from disclosure; therefore, he concedes them. Segregability: "The plaintiff contends that, through its declaration, the State Department has officially disclosed five pieces of information" from a classified document and that the defendant "'must segregate the information which only relays the information already publicly released." The defendant explains that "the pieces of information cited by the plaintiff are 'inextricably intertwined with exempt portions' of the documents." Additionally, "the plaintiff's argument incorrectly 'presumes that [the cited] information…exists in a format that may be distilled and produced to him." "[T]he Court finds the agency's explanation of non-segregability logical and reasonable because the 'pieces of information' denominated by the plaintiff appear unlikely to exist within the withheld document such that they could be discretely separated from the classified portions of the document." The plaintiff next challenges whether the defendant has followed the procedural requirements for classifying information after receipt of a FOIA request, particularly whether a "general grant of delegated authority to conduct the document-by-document review required by [Executive Order 13,526, §1.7(d)] is invalid." The court rejects the policy argument put forward by plaintiff stating "the Court 'disagrees with the plaintiff['s] cramped reading of Executive Order 13,526' because '[n]othing in the text of the Order evinces any intent to require the senior agency official to direct others to make document-by-document classification determinations 'each time such classification is desired and for each document.'" However, the court determines that the defendant "must submit further information to establish that it complied with § 1.7(d)." The defendant "must put forth evidence that an individual authorized to classify information under § 1.7(d) in fact classified the information withheld from documents."
  • Exemption 5/Deliberative Process Privilege: The court finds that the defendant "has failed to provide sufficient information regarding [the documents in question] for the Court to conclude that they were properly withheld under the deliberative process privilege." The defendant's Vaughn Index includes "conclusory quotations from case law" and "perfunctory citations [that] do not fill the gaps in the factual context necessary to invoke the deliberative process privilege." The court determines that a description of "the nature of the deliberative process involved, the role the document played in that process, and the nature of the decisionmaking authority vested in the document's author – are noticeably absent from" the defendant's description of the documents.
  • Exemption 5/Attorney-Client Privilege: The court finds "[a]s a result of the gaps in the State Department's declaration, the Court does not have enough information to determine, one way or the other, whether the attorney-client privilege applies." The information provided was "sparse" and must provide more than "the talismanic adjective 'legal' and the conclusory phrase 'attorney client privileged' to establish that a document was sent for the purpose of conveying legal advice." The defendant must provide "with some reasonable level of detail the nature of the legal issue or issues for which the advice was being sought and whether the withheld e-mails seek legal advice, convey legal advice, or both."
  • Exemption 5/Segregability: "In light of the deficiencies in the defendant's Vaughn index…the Court concludes that the defendant's segregability efforts – at least with respect to the documents for which the Court has denied summary judgment to the defendant – do not meet" the standard articulated in recent case law.
Topic: 
Adequacy of Search
District Court
Exemption 1
Exemption 5
Expedited Processing
Litigation Considerations
Mootness
Procedural
Segregability
Updated August 6, 2014