Smith v. NARA, No. 18-2048, 2019 WL 6345274 (D.D.C. Nov. 27, 2019) (Chutkan, J.)

Smith v. NARA, No. 18-2048, 2019 WL 6345274 (D.D.C. Nov. 27, 2019) (Chutkan, J.)

Re:  Requests for letters from former Presidents Bush and Clinton to Israel regarding Nuclear Non-Proliferation Treaty

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

• Litigation Considerations, Jurisdiction:  The court holds that "[b]ecause the requested material is a presidential record and the twelve-year restriction period is still in place, the [Presidential Records Act ("PRA")] precludes judicial review of the Archivist's determination restricting access to the document sought."  The court relates that "NARA argues that its Glomar response is unreviewable because President Bush's presidential records are still subject to the twelve-year restricted period under the PRA."  The court finds that "[t]he document sought, a letter sent from President Bush during his presidency to a foreign state regarding foreign policy, satisfies the definition of presidential records under the PRA."  Additionally, the court finds that, "[p]ursuant to the PRA, President George W. Bush invoked the twelve-year restriction period for his presidential records falling under § 2204(a), including for properly classified documents in the interest of national defense or foreign policy."  "During the twelve-year restricted period, the Archivist's determination to restrict access to presidential records under § 2204(a) is not subject to judicial review, except where the President himself challenges a determination that violates his rights or privileges."
   
• Exemption 1, Glomar:  The court holds that "[b]ecause [defendant's] Declaration logically and plausibly supports NARA's conclusion 'that acknowledging the mere existence of the responsive records would disclose exempt information,' . . . NARA has met its burden of showing that exemption 1 protects the information sought from disclosure."  This response involves "[plaintiff's] FOIA request to the Clinton Library seeking an alleged letter from President Clinton to Israel regarding the Nuclear Non-Proliferation Treaty."  "First, [the court finds that] [defendant's] Declaration establishes – and [plaintiff] does not dispute – that [defendant's declarant] has proper classification authority pursuant to Executive Order 13,526."  "Second, information regarding the existence of a presidential letter is 'owned' and 'produced' by the United States government."  "Third, the information at issue – an alleged letter from President Clinton communicating to Israel the United States' diplomatic posture on Israel's nuclear development – pertains to sections 1.4(b) and (d) of Executive Order 13,526, as it 'could confirm or refute the substance of information exchanged between the United States and one or more foreign governments.'"  "Thus, the Declaration establishes that the information withheld satisfies the first three criteria for proper classification under Executive Order 13,526."  Fourth, the court finds that "[defendant's] lengthy summary of the harmful national security consequences of acknowledging the letter satisfies the final requirement for classification under Executive Order 13,526."  "The detail in [defendant's] Declaration is enough to support a Glomar response." 
   
• Responding to plaintiff's arguments, the court first finds that "[plaintiff] has failed to rebut the presumption of good faith that the court accords to the otherwise satisfactory [defendant] Declaration."  The court finds that "[m]ost of [plaintiff's] bad faith argument consists of speculative and unsubstantiated allegations that the information contained in [defendant's] Declaration is inaccurate and misleading."  Second, the court finds that "[b]ecause neither the Kissinger memorandum nor President Obama's 2010 remarks 'necessarily match' the information that [plaintiff] requests, and The New Yorker article is not an official disclosure, [plaintiff] fails to show any official acknowledgement of an Israel nuclear letter signed by President Clinton."  The court explains that "[w]hile the Kissinger memorandum sheds light on the United States' foreign policy concerns related to Israel's nuclear capacity in 1969, the memorandum does not – and could not – show that President Clinton wrote a letter more than two decades later."  Additionally, "President Obama's statement regarding United States policy on nuclear non-proliferation issues does not confirm that President Clinton had previously signed a letter recognizing the same policy, as [plaintiff] alleges."  Also, "The New Yorker article, which relies on information from unnamed sources, does not establish that the alleged letters 'already have been made public through an official and documented disclosure.'"  Third, responding to plaintiff's "argu[ment] that United States aid to Israel violates the [Arms Export Control Act ("AECA")] because it is public knowledge that Israel has a nuclear weapons program[]" and "that the alleged letter sought in his FOIA request is evidence of these violations of the AECA[,]" the court finds that "the AECA only bars foreign aid to countries that the President has determined to be delivering or amassing nuclear reprocessing equipment, materials, or technology."  "[Plaintiff] has not shown that the President has found Israel to be engaging in such activity, and he lacks standing to compel such a determination."
   
• Litigation Considerations, In Camera Inspection:  Responding to plaintiff's request for in camera inspection, the court holds that "[b]ecause [defendant's] Declaration is sufficient to support NARA's Glomar response, the agency need not conduct a search for any responsive records nor submit them for in camera review."