Stevens v. Dep't of State, No. 17-2494, 2020 WL 1330653 (N.D. Ill. Mar. 23, 2020) (Lee, J.)

Stevens v. Dep't of State, No. 17-2494, 2020 WL 1330653 (N.D. Ill. Mar. 23, 2020) (Lee, J.)

Re:  Requests for records concerning State Department's relationship with foreign campuses of American universities

Disposition:  Granting in part and denying in part defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[T]he Court finds that all but two of the Department's subdivisions performed reasonable searches for the requested records."  "Accordingly, the Department's request for summary judgment as to the adequacy of the search is denied as to those two subdivisions, but granted in all other respects."  "To satisfy the Court's concerns, the [two subdivisions] must perform an additional search for 'Northwestern,' along with any follow-up searches they deem reasonable."  The court explains that "[m]ost of the Department's subdivisions used 'Northwestern' as their primary search term."  "But two of those subdivisions . . . looked for 'Northwestern University' rather than 'Northwestern.'"  "Usually, agencies may not search for the formal version of a name without also looking for informal variants."  However, regarding the remainder of the divisions, the court finds that "[p]ursuant to the terms of the agreement, the Department used twenty-one different keywords – including many with a wildcard term – to narrow its search results."  "Although [plaintiff] questions that approach, she does not propose any additional keywords."  "Nor does she explain why using additional terms would be essential to a reasonable search."  The court finds that "the Department's decision not to go beyond the keyword search agreement does not undercut the reasonableness of its efforts."  Additionally, the court relates that "[plaintiff] faults the Department for failing to 'follow-up on any known leads.'"  "The primary lead that [plaintiff] identifies is an email from the Dean of Northwestern's Qatar campus to the then-Ambassador to Qatar."  "Because that email refers to a prior meeting between the Dean and the Ambassador, . . . [plaintiff] submits that the Department should have widened its search to look for information about that meeting . . . ."  "But [the court finds that] [plaintiff] has failed to rebut the presumption of good faith."  "Notably, the Department did perform supplemental searches of the Ambassador's classified and unclassified email."
   
• Exemption 1:  The court first finds that "[plaintiff's] blanket objection to any information withheld pursuant to [Executive Order 13,526] [because, in plaintiff's view, it is "'circular, vague, unduly broad, and in contravention of FOIA's language and stated purpose'"] misses the mark."  Second, regarding a "classified cable [that] describes 'the effects of education in Qatar,'" "the Court finds it plausible that an informant provided the Department with sensitive information about the impact of education on Qatari citizens."  "Thus, the Department has adequately supported its decision to withhold this document."  Third, regarding a "cable [that] 'report[s] on discussions between the U.S. Ambassador to Qatar and a Qatari government official," "[c]onsidering the high-level officials involved, the Court is persuaded that divulging the content of their conversations could plausibly harm national security."  "And, contrary to [plaintiff's] suggestion, that the Department reclassified [this document] during this litigation does not cast doubt on this justification."  Fourth, regarding a cable "featur[ing] 'discussions of sensitive national security topics involving U.S. interests in Qatar,'" the court finds that "it is . . . plausible that the Department's analysis of a statement criticizing another government would be sensitive."  "Thus, the Department has adequately supported its decision to withhold portions of this document."  Fifth, regarding documents "featur[ing] Department-created 'scenesetters' designed to prepare American officials for visits to Qatar," "[b]ecause it is plausible that briefing materials intended for relatively high-level officials would contain some sensitive information, the Department has adequately supported its decision to withhold portions of these records."  Sixth, regarding "'an intelligence report classified at the secret level,'" the court finds "[t]hat publishing a classified report would expose intelligence gathering techniques is sufficiently logical to defeat [plaintiff's] challenge to the DIA's decision to withhold this document."
   
• Litigation Considerations, In Camera Inspection:  The court relates that "[plaintiff] urges the Court to compel in camera review of the documents discussed above."  "'In the absence of any indicia of bad faith,' however, a plaintiff's 'speculation about the withheld documents is insufficient to justify in camera review.'"
   
• Exemption 3:  The court holds that "the Department has justified its decision to withhold portions of [one document]."  "As relevant here, 8 U.S.C. § 1202(f) directs the Department to treat records 'pertaining to the issuance or refusal of visas' as confidential."  "In keeping with that statutory obligation, the Department withheld [one document], an email titled 'Hon. Dana Shell Smith – Help with U.S. Visa.'"  "Challenging that decision, [plaintiff] speculates that the redacted information may relate to a prospective rather than an actual applicant."  "But the relevant Vaughn entry, which clarifies that '[t]he Department withheld information regarding the identity of a visa applicant,' forecloses that possibility."  "Equally unavailing is [plaintiff's] argument that the Department waived Exemption 3 by disclosing information about the applicant."  "The Department avers that a visa applicant sent an email to the Ambassador Smith, not that the Ambassador disclosed any protected information in response."
   
• Exemption 4:  "[T]he Court concludes that [certain] course materials fall within Exemption 4."  "The critical fact is that the challenged documents '[are] not shared by [the professor] beyond her students.'"  "Put differently, although [the professor] distributes those documents to paying students, she does not make them available to the public."  "Because those course materials 'would customarily not be released to the public by the person from whom [they were] obtained,' [Exemption 4] permits the Department to withhold them."
   
• Exemption 5, Deliberative Process Privilege:  "[T]he Department has established that it properly invoked Exemption 5."  "Contrary to [plaintiff's] suggestion, many of the challenged records do relate to official policy decisions."  "And the other documents reflect the sort of informal policy deliberations that also implicate the deliberative process privilege."
   
• Litigation Considerations:  The court notes that "[plaintiff] fails to highlight any records that she believes should have been disclosed."  "Instead, she cites the principle that 'employees generally have no expectation of privacy regarding their names, titles, grades [and] salaries.'"  "Without more, however, the Court cannot tell which records [plaintiff] believes were improperly withheld."  "Thus, [plaintiff] has waived argument as to this exemption."