Smith v. U.S., No. 18-00777, 2019 WL 4860823 (D.D.C. Sept. 30, 2019) (Chutkan, J.)

Smith v. U.S., No. 18-00777, 2019 WL 4860823 (D.D.C. Sept. 30, 2019) (Chutkan, J.)

Re:  Requests for document titled "'Guidance on Release of Information Relating to the Potential for Israeli Nuclear Capability'"

Disposition:  Granting defendants' motion to dismiss; denying plaintiff's cross-motion for summary judgment and amended cross-motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  "[T]he court finds that [plaintiff's] failure to file an appeal deprived the DOS of the opportunity to exercise its discretion and expertise on the request."  The court finds that "there is no question that [plaintiff] failed to properly exhaust his administrative remedies."  "Putting aside the fact that, at the time he sued the DOS, [plaintiff] had not filed a FOIA request with the DOS, . . . after the DOS responded to his belated request, [plaintiff] did not file an appeal."
   
• Exemption 1:  "[The] court finds that the DOE is entitled to summary judgment on whether it is precluded from invoking exemption 1 because of its official acknowledgment."  The court relates that "Plaintiff challenged only whether the DOE waived its right to invoke exemption 1 'because the fact that Israel has a nuclear weapons program has already been officially disclosed.'"  "In support of his argument that the information sought has been officially acknowledged, [plaintiff] cites: (1) statements from the CIA Director of Science and Technology . . . ; (2) the U.S. Central Intelligence Agency 1974 Special National Intelligence Estimate; (3) a report by the United States Airforce Counterproliferation Center of the Air War College . . . ; (4) an Institute for Defense Analyses report . . . ; and (5) a 2008 statement from former President Jimmy Carter."  "Each of [plaintiff's] proffered official acknowledgment fails for the same reason: none of them are directly attributable to the DOE."  "The D.C. Circuit has made clear that courts in this district 'do not deem "official" a disclosure made by someone other than the agency from which the information is being sought.'"
   
• Exemption 7(E):  The court holds that "[t]he explanation set forth in [defendant's] declaration satisfies the exemption 7(E) standard."  "There is a logical nexus between the DOE’s activities and a legitimate national security law enforcement purpose."  The court relates that "[defendant] states that the document at issue has been 'prepared for the sole purpose of assisting the Federal Government in identifying and protecting sensitive information as defined in the Atomic Energy Act of 1954, as amended, and Executive Order 13,526, Classified National Security Information.'"  "Release of this classification guide would 'provide insight into the types of information the government considers to be classified,' thereby reducing and potentially nullifying the effectiveness of the classification procedure, which is still in effect."  "In addition, it 'would impair the DOE's ability to enforce laws related to protecting classified information from public release.'"
   
• Litigation Considerations:  Regarding plaintiff's two global challenges, the court finds that "[plaintiff's] 'evidence' is completely speculative, and he has not offered any facts to indicate that the DOE seeks to avoid embarrassment by withholding the classification guide."  For similar reasons, "[t]he court . . . cannot find that the DOE withheld the classification guide in order to conceal violations of law."
   
• Litigation Considerations, In Camera Inspection:  "[T]he court rejects [plaintiff's] request for an in camera review."