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Stevens v. U.S. Dep't of State, 20 F.4th 337 (7th Cir. 2021) (Wood, J.)

Date

Stevens v. U.S. Dep't of State, 20 F.4th 337 (7th Cir. 2021) (Wood, J.)

Re:  Three requests for records concerning oversees campuses of certain American universities

Disposition:  Affirming district court's grant of government's motion for summary judgment

  • Litigation Considerations, Adequacy of Search:  The Court of Appeals for the Seventh Circuit first "address[es] a docket-management dispute."  The court relates that "[the government] asked [the requester] to provide a set of keywords that could be used to streamline productions from [a larger universe of potentially responsive] documents."  "If [the requester] were unsatisfied with the adequacy of the filtered production, then the parties would discuss how to evaluate any remaining documents."  The court relates that "[the requester] agreed" and "[t]he Department moved forward with the . . . production."  "Only . . . a year after the status report and months after the Department's productions were complete . . . did [the requester] first object."  The court finds that "[i]t is true that in this case the parties never set an explicit deadline for [the requester] to object to the adequacy of the filtered results."  "But that fact did not strip the district court of all power to manage the case; to the contrary, it remained entitled to take reasonable steps to keep the case moving forward."  "And given the timeline just described, the court was well within its rights to hold that [the requester's] objections came too late."  "Accordingly, in assessing the adequacy of [one part of] the Department's . . . search, we do so in light of [the requester's] acquiescence to the Department's reliance on the keyword list."  However, the court relates that "[i]t is worth noting, in this connection, that nothing [the court] decide[s] today precludes [the requester] from filing a new FOIA request seeking documents not captured by the keyword list."

    The court then responds to plaintiff's argument concerning the agency's presumption of good faith and finds that "the Department has documented its extensive, good-faith efforts to satisfy the three requests in a thorough declaration prepared by its chief FOIA officer."  "And it has produced hundreds of documents over the course of four years of negotiation and engagement with [the requester]."  "Nothing in this history is incompatible with good faith."  The court then notes that "[a]n agency is entitled to support its searches through affidavits, so long as they are 'non-conclusory' and 'reasonably detailed.'"  "An affidavit is sufficiently detailed if it 'set[s] forth the search terms used' and 'the kind of search[es] performed,' and 'aver[s] that all files likely to contain responsive documents were searched.'"  The court finds that "[the government's] declaration satisfies each of these criteria."  Responding to plaintiff's argument concerning "choosing databases to search," the court finds that "[the government's] records are spread across offices in over 200 countries; some discretion is inevitable."  "In [the court's] assessment, the Department's account of its methods provides sufficient detail for us to say that its methods were reasonable."  Additionally, the court finds that "[n]one of the criticized omissions was unreasonable."  However, the court relates that "[it] must comment on one aspect of the district court's reasoning."  "It struck [the requester's] factual contentions in her complaint because it deemed them not to be based on her personal knowledge."  "[The court has] concerns about that reasoning."  "[The requester] was asserting a predictive fact – that the locations in question were likely to contain responsive materials."  "Rule 56 is concerned with facts 'that would be admissible in evidence,' which we take to be of a different sort."  "A FOIA claimant is entitled to argue that a search was unreasonable because a likely storehouse was not searched."  "District courts are free to disagree with that prediction, but they should be cautious about treating Rule 56(c)(4) as a bar to such a prediction when the claimant has relied on accurate, albeit secondhand, information about the responsibilities of specific departments or officials."
     
  • Exemption 1:  The Court of Appeals for the Seventh Circuit relates that "[h]ere, the Department withheld material classified pursuant to Executive Order 13,526, which establishes the rules for identifying and handling classified material throughout the executive branch."  "[The requester] launches a facial assault on Order 13,526, asserting, among other things, that it 'leads to the abdication of the role of the Judiciary.'"  The court finds that "it does no such thing."  "Using such sources as Vaughn indices, sworn affidavits, and in camera review, courts are able to assess national-security withholdings made pursuant to Order 13,526, as this case illustrates."  "[The requester's] more specific challenges to the Department's national-security withholdings fare no better."  "These and the other national-security grounds for the challenged withholdings are articulated in convincing detail in the Vaughn index."
     
  • Exemption 3:  The Court of Appeals for the Seventh Circuit relates that, in conjunction with Exemption 3, the government relied on 8 U.S.C. § 1202(f) which protects "[m]aterial 'pertaining to the issuance or refusal of visas' . . . ."  "[The requester] contests the Department's reliance on these two statutes to support its withholding of three documents, arguing that records withheld under sections 552(b)(3) and 1202(f) must pertain to a 'past or pending request' and that the three documents in question do not."  The court finds that "[h]ere, . . . two of the three withheld documents are emails titled 'Help with U.S. Visa,' while the third is a letter 'pertain[ing] directly to the issuance or refusal of a visa.'"  "They would thus satisfy even the requirement that [the requester] urges us to adopt (an invitation, [the court] note[s], that [it is] declining)."
     
  • Exemption 5, Deliberative Process Privilege:  The Court of Appeals for the Seventh Circuit relates that "[h]ere, the Department has invoked the deliberative-process privilege to withhold cables and emails containing preliminary agendas for official visits, memo drafts, and the like."  "[The requester] does not specifically contest the deliberative nature of any of these documents."  "Instead, she makes two general objections."  "First, she asserts that cables are never deliberative because they always 'constitute final agency action.'"  The court finds that "[t]his is incorrect, as is evident from some of the cables described in the Vaughn index."  "Second, [the court relates that] she argues that a document is only predecisional if it pertains 'to the formation or adoption of an official agency policy' or 'adjudication.'"  "But [the court holds that] the privilege is not so limited."  "A document is predecisional if it is generated before an agency's final decision on a matter, whether that matter is official or not."
     
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The Court of Appeals for the Seventh Circuit relates that "[the requester] suggests that some of the withheld documents could instead have been produced in part."  "But she provides no specifics."  "And [the court's] independent review of the Vaughn index, coupled with the Department's production of portions of more than 350 segregable documents, leave[s] [the court] confident that the Department's efforts to identify such documents were sufficient."
Court Decision Topic(s)
Court of Appeals opinions
Exemption 1
Exemption 3
Exemption 5
Exemption 5, Deliberative Process Privilege
Litigation Considerations, Adequacy of Search
Litigation Considerations, “Reasonably Segregable” Requirements
Updated January 12, 2022