Unrow Human Rights Impact Litig. Clinic v. U.S. Dept. of State, No. 13-1573, 2015 WL 5730606 (D.D.C. Sept. 29, 2015) (Jackson, J.)

Unrow Human Rights Impact Litig. Clinic v. U.S. Dept. of State, No. 13-1573, 2015 WL 5730606 (D.D.C. Sept. 29, 2015) (Jackson, J.)

Re: Request for specific diplomatic cable that United Kingdom allegedly sent to United States concerning Chagos Archipelago

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 1:  "[The] Court finds that Defendants’ detailed affidavits set forth reasons for invoking Exemption 1 that are both plausible and logical . . . and given the substantial deference owed to government affidavits in this context, the Court concludes that Defendants have carried their burden."  "First of all, both State and DIA establish, by way of respective declarations, that State is the proper classification authority for the document."  "[Plaintiff] does not refute these statements or present evidence to the contrary, and in any event, courts must 'accord substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record.'"  "Second, [defendant's] declaration asserts that the withheld document is a '[State] Department telegram . . . and that '[t]he information contained in [the] cable is owned by and under the control of the U.S. Government.'"  "[Plaintiff] does not dispute these statements—indeed, a diplomatic cable between the United States and a foreign government is exactly what [plaintiff] seeks from Defendants’ possession."  "Third, Defendants establish that the document in question meets the requirements of Section 1.4 of executive order."  The court relates that "[defendant's declarant] stated in his affidavit that '[t]he document contains a report of a conversation with senior officials of the British Government regarding that government’s plans ... cover[ing] a variety of sensitive political and strategic considerations,' and that 'the entirety of the cable contains information provided to the United States with the clear expectation of confidentiality.'"  "[Plaintiff] not only presents no evidence to the contrary, but its own allegations about the nature of the document are in accord with the description that Defendants provide."  Additionally, "[defendant's declarant] declared that the document at issue 'concerns sensitive aspects of U.S. foreign relations, including, in particular, issues relating to the plans and intentions of a foreign government.'"  "Again, [plaintiff] does not contest this description."  "Thus, the withheld document satisfies Section 1.1(a) of E.O. 13526 because it falls within the categories listed in Sections 1.4(b) and 1.4(d)."  Finally, the court relates that "[defendant's declarant] declared that the document’s disclosure would not only 'damag[e] our relations with the British Government' . . . but would also impair 'future access not only to the sources of the [document in this case], but also to others who might provide sensitive information to U.S. officials that is important to U.S. foreign policy interests.'"
   
• Waiver:  "[B]ecause a plaintiff cannot satisfy its burden of demonstrating waiver by pointing to general, similar, or categorical information under this Circuit’s clear precedent, . . . this Court concludes that Plaintiff has failed to establish that Defendants waived the right to invoke Exemption 1."  The court finds that "[plaintiff] finds itself in an unfortunate Catch–22: everything it asserts about the content of the withheld document is based on The Guardian document . . . but The Guardian document has never been officially acknowledged and thus cannot form the basis of a valid waiver claim."
   
• Litigation Considerations, In Camera Inspection:  The court declines to conduct in camera review.  The court explains that "[d]efendants have established that the responsive document logically and plausibly falls within Exemption 1 . . . and it would not be proper for this Court to conduct further review in order to second guess Defendants’ determinations."  Additionally, regarding plaintiff's waiver argument, the court finds that "the proper inquiry is not whether or not the withheld document and The Guardian document are actually identical, but whether or not State intended to convey as much in its letter to [plaintiff]."  "In camera review cannot resolve that question, and this Court declines to conduct such a review for this purpose."  Finally, the court finds that "[plaintiff] presents no evidence that Defendants’ segregability analysis was inaccurate or improper, and 'it is not the Court’s role to search through a party’s exhibits ... with the hope of finding the alleged matching pieces.'"
   
• Procedural Requirements, Consultations and Referrals:  "[The] Court also rejects [plaintiff's] separate contention that DIA acted improperly when it forwarded its own responsive document to State rather than releasing it."  The court relates that "the record is unambiguous that DIA possessed a copy of a seemingly responsive document that originated with State, and DIA believed State to be the proper authority to make the determination about responsiveness and disclosure."