Tuesday, February 5, 2019
Osen LLC v. Dep't of State, No. 18-6070, 2019 WL 464810 (S.D.N.Y. Feb. 5, 2019) (Rakoff, J.)
Re: Request for six specific cables
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment
- Waiver: "[T]he Court finds that the information at issue has not been officially disclosed and that State has not waived its right to assert exemptions." Responding to plaintiff's argument "that the government's statements regarding the unauthorized disclosure of documents on WikiLeaks constitute an official acknowledgement of the information within the cables concerned here," the court finds that "[t]he press statement merely acknowledges that a leak occurred without discussing specifically any of the documents leaked or their content." Responding to plaintiff's argument "that much of the redacted information has been disclosed in other non-WikiLeaks-related government disclosures," the court finds that, "[h]ere, the disclosed documents, while they may overlap to some degree with the subjects of conversation in the cables, do not relate the same discussions and, accordingly, by no means match or are as specific as the information redacted from the cables."
- Exemption 1: The court holds that "State's submissions clearly and plausibly outline why the harms it traces from official disclosure of the redacted information remain a risk despite any unofficial disclosures." "These rationales are consistent with the Second Circuit's recognition . . . that anything short of an official acknowledgement 'necessarily preserves some increment of doubt regarding the reliability of the publicly available information,' which serves the purpose of protecting 'the accuracy of the facts stated . . . and whether there is anything left to hide on the subject.'"
- Exemption 3: The court relates that "[t]he Government withheld information from . . . an eight-page cable . . . from the U.S. Embassy in Baghdad to State on the ground that it was exempted from disclosure under Section 1112 of the National Defense Authorization Act for Fiscal Year 1997, as amended, 10 U.S.C. § 424, because it concerns intelligence sources and methods and because it concerns the function of one or more of the organizations of the Department of Defense listed in 10 U.S.C. § 424 (the Defense Intelligence Agency, the National Reconnaissance Office, and the National Geospatial-Intelligence Agency), and Section 102A(i)(1) of the National Security Act of 1947, as amended, 50 U.S.C. § 3024(i)(1)." The court finds that "State is not required to explain further what 'sources or methods' are at issue, and the Court finds that the material falls within the relevant statutes."
Updated March 22, 2019